Long v. State

• Decision Date: 01 July 1987
• Docket Number: No. 867-85,867-85
• Citation: 742 S.W.2d 302
• Parties: James Edward LONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 302

742 S.W.2d 302

56 USLW 2031

James Edward LONG, Appellant, v. The STATE of Texas, Appellee.

No. 867-85.

Court of Criminal Appeals of Texas En Banc.

July 1, 1987.

Frank Jackson, Bruce Anton, Dallas, for appellant.

Henry Wade, Dist. Atty. and John D. Nation, Kenneth Carden and Knox Fitzpatrick, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

I.

The appellant was indicted for sexual abuse of a child as then proscribed by § 21.10, Tex. Penal Code. ¹ Following a jury trial, the appellant was convicted and assessed the maximum punishment at that time permitted under the statute: twenty years in the Texas Department of Corrections and a $10,000.00 fine.

On appeal to the Fifth Court of Appeals the appellant claimed, inter alia, and most significantly, that the trial court's admission of a pre-trial videotaped interview of the complainant, as authorized by Art. 38.071, § 2, V.A.C.C.P., was improper because the statute is an unconstitutional deprivation of his right of confrontation under the Sixth Amendment to the United States Constitution, as made applicable to the states by the Fourteenth Amendment. See: Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). And, is similarly unconstitutional under Art. I, § 10 of the Texas Constitution (1876). In a published opinion, Long v. State, 694 S.W.2d 185, (Tex.App.--Dallas 1985, pet. granted), the Court of Appeals agreed with the appellant's contentions and decided that Art. 38.071, § 2, supra is patently and as utilized in the appellant's prosecution unconstitutional. Because there are conflicting Court of Appeals' opinions we granted the State's Petition for Discretionary Review to review that decision. ²

According to the record, shortly before the appellant's trial, at the request of the District Attorney's Office, the assistant director of the Dallas Rape Crisis Center had a videotaped interview with the twelve-year-old complainant. During the taped interview, the complainant commented upon her relationship with the appellant and revealed a number of sexually related incidents occurring between her and the appellant. According to M____ P____, the appellant was her mother's boyfriend who had lived with them for some extended period of time. That her first sexual experience with the appellant occurred when she was about five and one-half years old. At that time, while the child's mother was working, the appellant took her into her mother's bedroom and "started sucking my vagina."

Then, utilizing anatomically correct dolls, the complainant revealed a sordid and disgusting series of sexual activities between her and the appellant that included both anal and oral sex, which occurred anywhere from two to seven times a day during the approximately three years he lived with the complainant and her mother.

At the appellant's trial, the videotape of the interview was admitted into evidence and played for the jury. Prior to the tape being admitted into evidence the appellant interjected an objection to the admissibility of the videotape essentially on the basis that it denied the appellant his right of confrontation.

After the videotape was displayed to the jury, the State called several witnesses, including the complainant's mother. Since their testimony is not pertinent to the issue confronting the Court it will not be summarized. Thereafter, the State rested its case in chief.

The appellant then testified. In summary, after recounting the events surrounding his arrest and a conversation he had with the complainant's mother, the appellant stated that the complainant's allegations were not true. He then testified to his prior relationship with the complainant and her mother, i.e., how long and when he lived with them. He also testified to certain additional matters not relevant to this appeal; therefore, that portion of his testimony will not be summarized.

On cross-examination, in addition to several other matters that are also not pertinent to this appeal, the appellant again denied ever engaging in anal or oral intercourse with the complainant.

The appellant's wife then testified essentially about their relationship and the appellant rested.

The State in rebuttal, pursuant to Art. 38.071, § 2(b), supra called the complainant, M____ P____ to testify. After preliminary questioning relative to her age, school attendance, and apparent nervousness the State began to ask questions more pertinent to the prosecution. At that point the appellant objected, asserting that the State's questioning was "improper rebuttal ... [and] nothing more than reiteration of what occurred on direct." The appellant's objection was overruled. The complainant then proceeded to relate essentially the same series of sexually related encounters with the appellant that had been recorded on the videotape and previously displayed to the jury. During her testimony the appellant again objected, this time, however, he claimed the testimony was "improper bolstering." The trial court also overruled this objection and the complainant's testimony continued. It is satisfactory and sufficient to note that the balance of her direct testimony was her recounting the same specific sexual experiences she had with the appellant that had already been displayed to the jury in the videotape.

On cross-examination the complainant recalled the videotape tape session, conversations she had with the prosecutor and a District Attorney's investigator, as well as who, what and when she told of the sexual abuse. Concluding his cross-examination the appellant asked the following question, that was answered as noted:

"Q. Okay. Now, M____, did you tell someone that back down in the past that the reason that you told your mother that you were having this type of relationship with Mr. Long here is because you didn't want them to get back together?

"A. Yes, that [sic] true."

On redirect the complainant claimed that she also told of the sexual abuse "because they were talking about getting back together, and I just went through so much pain and it hurt so bad, ..."

The appellant returned to the stand and reiterated that none of the sexual encounters with the complainant had occurred, and that he had requested her mother have the complainant physically examined.

At that point both sides rested and closed. ³

II.

At issue in this case is whether Art. 38.071, § 2, V.A.C.C.P. infringes upon a defendant's right to be confronted by his accusers as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Art. I, § 10 of the Texas Constitution. ⁴ Because of the very significant and controversial nature of this issue a thorough analysis of one's right of confrontation is necessary.

It is undeniable that the theory and principle of confrontation is indelibly linked to the practice of excluding from evidence hearsay statements. In fact, confrontation arose from the evolution of what we know as the hearsay rule. Historically, the judicial policy of excluding hearsay statements "as a distinct and living idea, ... [did] not gain a complete development and final precision until the early 1700s." Wigmore, Wigmore on Evidence, 3rd ed., vol. 5, p. 9 (Boston: Little, Brown and Co., 1940) [hereinafter referred to as Wigmore ].

At the inception of the procedure that was to ultimately become the jury trial (circa 1300's), the trial witness, as we perceive him today, was an unknown character. Instead, evidence was reviewed by the jury principally from previously designated witnesses who did not testify in open court. Rather, the jury solicited their knowledge, which they had acquired from some usually undisclosed source, and conferred with them privately. Consistent with that practice, in those disputes "where facts were involved which, as we should think, needed other testimony, the counsel stated them by allegations, and a special witness might or might not be present to sustain the allegation." Id., p. 11. Therefore, as late as at the beginning of the sixteenth century it was common practice for a jury to obtain "evidence" from sources outside the court, including assertions of what another had said or would say.

Gaining in popularity at this time was the frequent use of ex parte depositions, both sworn and unsworn. During this period of time, however, these methods of acquiring evidence were also being sincerely questioned. Nevertheless, the practice persisted. ⁵

By the 1680's the wholesale acceptance of hearsay statements had fallen into disfavor and excluding such evidence was quickly becoming common practice. Although, according to Wigmore, "[n]o precise date or ruling stands out as decisive ...," Id., p. 16, it is generally accepted that the hearsay rule became established "between 1675 and 1690." Id.

The hearsay rule came about principally because the former methods of obtaining evidence failed to protect one against errors or untrustworthiness. One means of exposing these deficiencies was the procedure of cross-examination in which the adverse witness' statements were scrutinized. It has been stated that "many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examination." Id., p. 3. Thus, the principal purpose of the hearsay rule and the primary factor responsible for the doctrine's evaluation and acceptance was that it ensured the right of cross-examination. Accordingly, the fundamental purpose of the rule, at least historically, was to provide an opportunity to cross-examine the witness.

Going hand-in-hand with the development of the hearsay rule was the concept of physical confrontation, or the right of having the witness present for the purpose of cross-examination. As the hearsay rule...