Gonzales v. State, 365-90

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation818 S.W.2d 756
Docket NumberNo. 365-90,365-90
PartiesAntonio GONZALES, Appellant, v. The STATE of Texas, Appellee.
Decision Date18 September 1991

Larry Zinn, San Antonio, for appellant.

Fred G. Rodriguez, Former Dist. Atty., Mary Roman, Diana Cruz, Barbara Hervey, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON THE STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

The issue in this case concerns the constitutional rights of appellant, Antonio Gonzales, to confront a ten year old witness at his trial for murder. The child, secured in a room away from appellant, testified via a closed-circuit television system. Appellant insists that such violated rights guaranteed him under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution. The Court of Appeals agrees with appellant and has reversed his conviction. Gonzales v. State, 784 S.W.2d 723 (Tex.App.--San Antonio 1990). We granted the State's petition to review the Court of Appeals opinion and will now reverse.

I. FACTUAL BACKGROUND

On August 29, 1987, paramedics were called to the home located at 3800 South Zarzamora in San Antonio. There they found the body of five year old Yvette M___ wrapped in a sheet on the living room sofa. Upon conducting an initial examination, the paramedics discovered that the child was "very thin with a bloated stomach," and that she was unkempt--paramedics described her as "filthy" and observed that she had head lice. The child's body was covered with bruises and abrasions; there were lacerations on her head. This aroused the paramedics' suspicions and they called the police.

When the police arrived they started their investigations by talking to Yvette's mother and the mother's live-in boyfriend, appellant. Both the mother and appellant told investigators that the child had fallen in the bathroom while taking a shower. The police tried to interview Yolanda, the deceased's sister, but she would only cry; there were visible "old injuries" on her face. 1 Subsequent investigations, including an autopsy which revealed the child had died as a result of acute trauma to the head 2 and the search of the home and seizure from the adult's bedroom of a three-foot long wooden club with human blood on it, lead to the indictment of both the mother and appellant for Yvette's death. On June 28, 1988, appellant's trial on the merits began.

Prior to any testimony being heard by the jury, the State moved to present the testimony of Yolanda M___, via closed-circuit television. The motion purported to be based upon Sections 3 and 4, of Article 38.071 of the Texas Code of Criminal Procedure. 3 After conducting a "hearing" the trial court judge granted the State's motion on June 28, 1988. 4 Thereafter, the State began its case in chief but did not call Yolanda to testify. The trial was recessed before the child testified.

That very next day, June 29, 1988, the Supreme Court issued its opinion in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Perceiving conflicts between the Coy decision and the manner in which the trial court granted the State's first motion, the State on June 30, 1988, filed a second motion to have the child testify via the closed-circuit system and therein alleged the following:

"Comes now the State of Texas, through her legal representative the Criminal District Attorney for Bexar, County, Texas, and moves the court pursuant to Article 38.071 Sec 3, and 4, of the Texas Code of Criminal Procedure, to order that the testimony of Yolanda M___, a child be taken in a room other that (sic) the courtroom, and be televised by closed-circuit equipment in the courtroom to be viewed by the Court and the finder of fact in the proceeding in the above styled and numbered cause for the following reasons:

"1. Yolanda M___, age 10, is the step-daughter of [appellant] in the above styled and numbered cause. The [appellant] is charged with the murder of Yvette M___, 5 years old. Yvette M___ and Yolanda M___ were sisters.

"2. Yolanda M___ is the complainant in 88CR1402, Aggravated Sexual Assault; the defendant in that cause is Antonio Gonzales, the same defendant in the above styled and numbered cause.

"3. The above styled and numbered cause occurred August 29, 1987. The Aggravated Sexual Assault 88CR1402 also occurred August 29, 1987.

"4. Yolanda M___ is currently undergoing psychological counseling because of the trauma of seeing her sister, Yvette, beaten with a club about the head and immediately afterwards, seeing Yvette sexually assaulted by the defendant, Antonio Gonzales, on August 29, 1987.

"5. The child, Yolanda M___, is very intimidated by the defendant, Antonio Gonzales and fears that he will kill her for telling what occurred on August 29, 1987."

There was a hearing on the State's second motion after the State presented to the jury all of its evidence except the testimony of Yolanda. At that hearing the State Specifically, Alvarez testified that it was her job with the District Attorney's Office to prepare child witnesses for trial by getting them comfortable with the new surroundings of the courtroom. She first talked with Yolanda when the child came to the office for an interview. Although it was out of the ordinary for Alvarez to take the statements of the child witnesses--this being the job of the investigators--she actually conducted the interview with Yolanda after the male investigator determined that he would not be able to get the child to talk with him. Alvarez explained:

called Irma Alvarez, who was employed with the Family Violence Unit of the District Attorney's Office, and Janie Ramos, the child's grandmother, to testify outside the presence of the jury. 5 Both witnesses substantiated the allegations in the State's second motion.

"Usually, it is the investigator's position to take those statements. But ... Yolanda was very traumatized, and the investigator was a male; and she felt very uncomfortable talking with him. She was crying the entire session he was there in the room with her, so he asked me if I would talk to her; and I talked to her for about two hours. And I came to realize that she was very frightened of men."

Alvarez began meeting with the child about two months prior to the trial and continued to do so on a weekly basis. These sessions lasted for about an "hour and a half or two." During the last two weeks prior to trial Alvarez spent "about four to six hours on a daily basis" with the child. Yolanda told Alvarez that appellant began sexually assaulting her when she was eight years old and that the last assault occurred the morning of her sister's death. Alvarez testified that "the mere mention of having to testify against the defendant made [Yolanda] cry very much," and that Yolanda was unable to be in any room where there was a male present. She testified that "it would hurt [Yolanda's] emotional stability more than it has been hurt already if she was to confront the defendant once again." The child was undergoing counseling.

The grandmother testified that Yolanda has been staying with her since Yvette's death. She testified that Yolanda has suffered emotionally from the incident. She has had nightmares and wakes up in the night screaming. She does not eat. The child will not go into the bathroom alone and does not wish to take a bath by herself. Initially, Yolanda saw a male doctor for counseling. She, however, was afraid of him and a female doctor began treatment. The grandmother testified that Yolanda was afraid of appellant "[b]ecause he told her that he was going to get out very quick and that he was going to take her so she wouldn't say anything." She testified that appellant has threatened to kill the child. Because of all of the events in Yolanda's life, the grandmother believed that if the child were forced to testify in the same room as appellant, such would hurt her emotionally.

After hearing this testimony, the trial court, over appellant's objections, once again granted the State's motion and allowed Yolanda to testify via the closed-circuit television system. The judge entered the following findings of fact:

"1. On June 30, 1988, a pre-trial hearing was held on the State's Motion to Use Closed Circuit Television Equipment, pursuant to Article 38.071 of the Texas Code of Criminal Procedure.

"2. The State proposed to present the testimony of a child witness through closed circuit television equipment situated in the 186th District Court and a "3. The system consisted of two-way audio and video closed circuit system which allowed the child to observe the defendant while she testified from a remote location and further allowed the defendant to simultaneously observe the child while she testified.

remote location within the District Attorney's Office.

"4. The State presented the testimony of a[n] expert technician who detailed the workings of the system.

"5. In support of its motion the State argued a particularized need and a compelling state interest in the protection of child witnesses who are too traumatized by the prospect of testifying in the same room as the defendant.

"6. The State presented the testimony of a child advocate, employed with the Bexar County District Attorney's Office, Family Violence Unit, whose main duty is to prepare children to testify in the courtroom. The witness stated she was well-acquainted with the child and with the facts of this particular case. She unequivocally stated that through many hours of observation and interaction with the child witness she observed the ten-year-old girl to be very traumatized, very distraught, very frightened of the defendant, was intimidated by him and that the child was undergoing counseling. This witness specifically stated that there was a great need to present the testimony of this child witness from...

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