Clark v. State

• Decision Date: 30 April 1987
• Docket Number: No. 2-85-239-CR,2-85-239-CR
• Citation: 728 S.W.2d 484
• Parties: Freddie Lee CLARK, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 484

728 S.W.2d 484

Freddie Lee CLARK, Appellant, v. The STATE of Texas, State.

No. 2-85-239-CR.

Court of Appeals of Texas,

Fort Worth.

April 30, 1987.

Thomas L.G. Ross, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., and David K. Chapman, Asst., Fort Worth, for appellee.

Before the court en banc.

OPINION

HILL, Justice.

In accordance with TEX.R.APP.P. 101, we hereby correct the previous opinion and judgment of this court. We hereby withdraw our prior unpublished opinion and judgment of March 18, 1987.

Freddie Lee Clark appeals his conviction by a jury of the offense of aggravated sexual assault. See TEX.PENAL CODE ANN. sec. 22.021(a)(5) (Vernon Supp.1987). The jury assessed his punishment, enhanced by two prior felony convictions, at life imprisonment in the Texas Department of Corrections. Clark presents four points of error.

We affirm.

In his first and second points of error, Clark raises the issue of the constitutionality of the State's use of a videotape of the complainant, as authorized by TEX.CODE CRIM.PROC.ANN. art. 38.071 (Vernon Supp.1987). We may not reach the question of the constitutionality of a statute unless a decision on its constitutionality is absolutely necessary for a decision of the case. Smith v. State, 658 S.W.2d 172, 174 (Tex.Crim.App.1983). We shall therefore first consider Clark's remaining points of error.

In his third point of error Clark complains that the videotape was not admissible into evidence because the tape was not made by a technician competent in the operation of electronic video recorders. Admissibility of videotapes into evidence must meet the same standards of reliability and accuracy as other sound recordings. Roy v. State, 608 S.W.2d 645, 649 (Tex.Crim.App.1980).

These standards were first applied to criminal cases in Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977):

'The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording. They also indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows: (1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.'

Id. at 733.

In Edwards, the court further held that some of these requirements can be inferred from testimony, including the competency of the operator. Id.

Jacky Paul Smith, the videotape operator, testified he was an eight year police officer, with a specialization in child sexual and physical assault cases. As a part of his job, he videotaped about twenty to thirty child victims per month. He testified that the videotape equipment he used to interview the victim in this case was competent and accurate. Although he has had no special training for operating video equipment, Smith testified that he had reviewed the basic operating procedures for the equipment when his office received the equipment about three years ago, and that he was familiar with the operating instructions.

After reviewing Smith's testimony, we hold it supports the inference that he was competent to operate the videotape equipment. See Holland v. State, 622 S.W.2d 904, 906 (Tex.App.--Fort Worth 1981, no pet.). We overrule point of error number three.

In point of error number four, Clark complains the caption to S.B. 37, concerning jury instructions about parole and good time credit does not comply with TEX CONST. art. III, sec. 35 because the caption does not inform the reader that section 4(d) prohibits introduction of evidence on the operation of parole and good conduct time laws. See TEX.CODE CRIM.PROC.ANN. art. 37.07 sec. 4(d) (Vernon Supp.1987).

This point of error has been precluded by the passage of an amendment to article III, section 35 of the Texas Constitution on November 4, 1986 as discussed by the Court of Criminal Appeals in its opinion in Baggett v. State, 722 S.W.2d 700, 701-02 (Tex.Crim.App.1987). The Court noted that as a result of the recent amendment it no longer has the power to declare an act of the legislature unconstitutional due to the insufficiency of the caption, consequently this court likewise is without such power. We overrule point of error number four.

In point of error number one, Clark urges that the presentation of the complainant's videotaped testimony to the jury violated his right to be confronted by the witnesses against him, a right guaranteed by the sixth amendment to the United States Constitution and by TEX.CONST. art. I, sec. 10.

The complainant was called to the stand by the State. He testified that the statements he made in the videotape were true. He gave certain additional testimony, but did not testify at trial concerning the specific act of oral intercourse with which Clark was charged. The child was subjected to cross-examination and, after re-direct questioning by the State, to re-cross-examination.

The confrontation clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to a full and effective cross-examination. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Although the Green case deals with a prior out-of-court declaration which was inconsistent with trial testimony, we find that an overall reading of the case would justify the same result in the case at bar. See Walker v. State, 473 S.W.2d 497, 499 (Tex.Crim.App.1971).

Clark does not refer us to any United States Supreme Court or Texas Court of Criminal Appeals opinions which express a contrary conclusion. The facts in this case are distinguishable from two of this court's prior opinions in cases arising under the videotape statute, Buckner v. State, 719 S.W.2d 644 (Tex.App.--Fort Worth 1986, pet. pending) and Romines v. State, 717 S.W.2d 745 (Tex.App.--Fort Worth 1986, pet. pending), and are also distinguishable from the opinion of the Dallas Court of Appeals, Long v. State, 694 S.W.2d 185 (Tex.App.--Dallas 1985, pet. granted), in that in none of those cases was the complainant who appeared in the videotape first called by the State as a witness and then tendered to the defendant for cross-examination. We do not find the procedure followed in the case at bar to be a violation of Clark's right of confrontation because the complainant was present, was called by the State and testified, and was subjected to a full and effective cross-examination. We disavow any dicta in Buckner or Romines which is inconsistent with this opinion. We would not agree with any statement in Long which might be construed as inconsistent with this opinion.

In point of error number two, Clark complains that TEX.CODE CRIM.PROC.ANN. art. 38.071 deprives him of the right to a fair trial because it forces him to a choice of sacrificing cross-examination or to call a child-witness to testify before the jury.

When challenging the constitutionality of a statute, it is incumbent upon the appellant to show that in its operation the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to others is not sufficient. Parent v. State, 621 S.W.2d 796, 797 (Tex.Crim.App.1981); Daniel v. State, 704 S.W.2d 952, 954 (Tex.App.--Fort Worth 1986, no pet.). As we have previously noted, Clark, unlike the defendants in Bucker, Romines, and Long, was not put to the choice of sacrificing cross-examination or calling a child-witness to testify before the jury, because in the case at bar the State, not Clark, called the witness to testify. We hold that the statute as applied in this case did not deprive Clark of a fair trial. We overrule point of error number two.

The judgment is affirmed.

JOE SPURLOCK, II, J., concurs.

KELTNER and LATTIMORE, JJ., filed concurring opinions.

FARRIS, J., filed a dissenting opinion.

KELTNER, Justice, concurring.

I concur with the result reached by the majority, that article 38.071, section 2 was applied in a constitutional manner in this case. TEX.CODE CRIM.PROC.ANN. art. 38.071, sec. 2 (Vernon Supp.1987). However, I would hold that article 38.071, section 2 is constitutional and overrule this court's holdings in two cases. Buckner v. State, 719 S.W.2d 644, 650-51 (Tex.App.--Fort Worth 1986, pet. pending); Romines v. State, 717 S.W.2d 745, 749 (Tex.App.--Fort Worth 1986, pet. pending).

The majority of our court has previously held that section 2 is unconstitutional. Specifically, our court held that section 2 does not provide the accused with the right of confrontation and cross-examination, because the criminal defendant is required to either call the child-victim to testify, incurring the jury's possible wrath, or forego his right to cross-examination of his accuser. Buckner, 719 S.W.2d at 650-51; Romines, 717 S.W.2d at 745. Our court also held that the statute violates a defendant's sixth amendment right to confrontation by failure to allow cross-examination contemporaneous with the videotaped statement. Buckner, 719 S.W.2d at 650; Romines, 717 S.W.2d at 752-53. Both Buckner and Romines were heard by en banc panels of our court.

The majority of this panel finds that Buckner and Romines presented distinguishing facts from the instant case. Specifically, the majority holds that article 38.071, section 2 was not unconstitutionally applied in this case because unlike the facts in Buckner and Romines, the State called the complainant to the stand to testify after the videotape was shown. Thereafter, the complainant was subjected to cross-examination. These facts are clearly distinguishable from Buckner and Romines,...