Driggers v. State

• Decision Date: 17 March 1997
• Docket Number: No. 06-95-00179-CR,06-95-00179-CR
• Citation: Driggers v. State, 940 S.W.2d 699 (Tex. App. 1997)
• Parties: Wilburn Paul DRIGGERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 699

940 S.W.2d 699

Wilburn Paul DRIGGERS, Appellant, v. The STATE of Texas, Appellee.

No. 06-95-00179-CR.

Court of Appeals of Texas,

Texarkana.

Submitted Oct. 31, 1996.

Decided Nov. 22, 1996.

Order Overruling Rehearing

March 17, 1997.

Ebb B. Mobley, Longview, for appellant.

C. Patrice Savage, Assistant District Attorney of Gregg County, Longview, Matthew William Paul, State Prosecuting Attorney, Austin, for appellee.

Before CORNELIUS, C.J., and GRANT and STARR, JJ.

OPINION

GRANT, Justice.

Wilburn Driggers appeals from his conviction for aggravated sexual assault. Driggers contends that the trial court erred by allowing the complainant to testify by closed-circuit television, because there was insufficient evidence to show the necessity for the use of that procedure; that the evidence is insufficient to support his conviction; and that the court erred by excluding evidence of marital difficulties between him and his wife, Mary Driggers.

Driggers was convicted of aggravated sexual assault upon his six-year-old daughter. The evidence against him consisted of the testimony of the daughter, which was presented to the jury via closed-circuit television. The daughter testified that he had shown her "dirty books" on two occasions, and on the last occasion had masturbated in front of her and had directed her to rub and lick his privates. She informed her mother about the acts, and the mother reported her claims to Child Protective Services and the White Oak Police Department. Based on her testimony, the jury convicted Driggers and sentenced him to ten years' incarceration.

At the time of the incident, it is fair to say that the evidence shows that the marriage was already seriously troubled. By the time of the trial, divorce proceedings were in progress. As pointed out by the appellant, between the time of the charge and the trial, the mother had offered to let the daughter visit her father for a month in Arkansas. A.J. Randall, one of the officers who spoke with the child, voiced his reservations about the verity of the child's story.

Driggers first contends that the trial court erred by allowing the complainant to testify solely by closed-circuit television, because the evidence did not support the necessity of using that procedure. The use of this procedure is governed by TEX.CODE CRIM. PROC. ANN. art. 38.071 (Vernon Supp.1997). The point of error does not specify whether Driggers is complaining on statutory or constitutional grounds, but the latter portions of his argument under this point discuss constitutional issues in relation to United States Supreme Court authority.

In this case, Driggers contends that the requirements of Article 38.071 were not met. The Code provides that the court may permit closed-circuit testimony upon a finding that the minor is "unavailable." TEX.CODE CRIM. PROC. ANN. art. 38.071, § 1. "Unavailable" is thereafter defined as follows:

In making a determination of unavailability under this article, the court shall consider relevant factors including the relationship of the defendant to the child, the character and duration of the alleged offense, the age, maturity, and emotional stability of the child, and the time elapsed since the alleged offense, and whether the child is more likely than not to be unavailable to testify because:

(1) of emotional or physical causes, including the confrontation with the defendant or the ordinary involvement as complainant in the courtroom trial; or

(2) the child would suffer undue psychological or physical harm through his involvement at trial.

TEX.CODE CRIM. PROC. ANN. art. 38.071, § 8(a).

The constitutionality of this statute was addressed in relation to both the federal and Texas constitutions in Gonzales v. State, 818 S.W.2d 756 (Tex.Crim.App.1991). The Court concluded that on the issue of face-to-face confrontation, the state constitution provided no greater rights than the federal, and that the reasons expressed by the legislature for enacting this statute--safeguarding the physical and psychological well being of a minor--were legitimate and compelling state goals.

Driggers first argues that the oral finding by the trial court was not a sufficient finding of necessity for use of the closed-circuit arrangement. Gonzales adopted the Craig ¹ analysis, which sets out three criteria that are to be considered by the trial court in reaching its decision under this statute.

The court must determine (1) that the use of the one-way closed-circuit procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.

Three months later, the Court revisited this issue, and pronounced that, in Gonzales, it had held that specific findings must be made on each of these factors in order to meet constitutional requirements. Hightower v. State, 822 S.W.2d 48, 51 (Tex.Crim.App.1991). In Hightower, the State presented a motion upon which the trial court ruled without conducting an evidentiary hearing, and without making any written findings. The court acknowledged that written findings are not required by the statute, and then abated the cause so that an evidentiary hearing could be conducted and findings of fact and conclusions of law be entered. Although the court ordered written findings to be entered, it is not clear that the court would have returned the case solely on that basis, because the court also returned the case for an evidentiary hearing on the issue where none had previously been conducted.

In this case, an evidentiary hearing was conducted. The question presented by Driggers is whether the trial court's ruling is sufficient to meet the above criteria. At the conclusion of an evidentiary hearing on the issue of using the closed-circuit system, the trial court ruled as follows.

I find that all the requirements of the law for the use of the closed circuit TV have been fully proved to this Court's satisfaction, that the child would, in fact, be traumatized if this procedure were not--further traumatized if this procedure were not used. Therefore, the State's motion is in all things granted by the Court. That's it.

The oral findings of the trial court in this case are substantially less specific and thus less revealing of the court's reasoning than are the written findings set out in Hightower v. State, 822 S.W.2d at 52.

After concluding that the findings were inadequate, we abated this case so that the trial court could enter findings, which has now been done. In written findings, the trial court stated that (1) the child was seven at the time of trial; (2) the defendant was her father; (3) the child would not be able to verbalize in his presence; and (4) that a face-to-face confrontation would be traumatic and not in the best interest of the child's welfare.

Based upon these findings, the court held that (1) the closed-circuit procedure was necessary to protect the welfare of the victim; (2) the child would have been traumatized by the defendant's presence; and (3) the emotional and psychological impact on the child in the defendant's presence would be more than nervousness or a reluctance to testify.

The court's error has been cured, and this point of error is overruled.

Driggers next contends that the evidence is factually insufficient to support the verdict. In our review of the factual sufficiency of the evidence, we view all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996); Lisai v. State, 875 S.W.2d 35, 37 (Tex.App.--Texarkana 1994, pet. ref'd); Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992, pet. ref'd, untimely filed).

The evidence against Driggers consists of the testimony of his six-year-old daughter (seven at the time of trial). She testified that he had shown her pornographic magazines on at least two occasions and that she knew it was wrong for her to be looking at them. She testified that, while sitting with him on the couch in their living room, he had masturbated while looking at one of the magazines. While doing so, he asked her to rub his penis, which she did. He then asked her to lick him, which she did. She testified that his penis was inside her mouth. She further testified that the overt sexual contact occurred only once, in September. She reported the contact in December of the same year.

The mother, Mary Driggers, testified that the child told her about the acts on December 19, 1994. The mother testified that she had not believed the child at first, but began to do so after spending a day questioning her. After going to a baby-sitter for support she contacted Child Protective Services and the local police department. After being interviewed by a service worker, she gave a police officer a number of pornographic magazines that had been in the home. She also testified that she had once caught the child looking through the magazines.

Child Protective Services worker Katy Wady testified that she had interviewed the child and related specific items that she looks for in children's testimony to determine whether they have been coached or if their stories are rehearsed, and stated that those factors were not present in the child's testimony.

In the testimony of police officer A.J. Randall, he questioned the truthfulness of the child's account and the facts provided because he had some concern about the smoothness of the young child's first recounting of her allegations.

Driggers's father testified that in his observations, the appellant and the child had a happy and close relationship,...