Marx v. State, 03-95-00333-CR

• Decision Date: 03 July 1997
• Docket Number: No. 03-95-00333-CR,03-95-00333-CR
• Citation: 953 S.W.2d 321
• Parties: Jeffrey Steven MARX, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 321

953 S.W.2d 321

Jeffrey Steven MARX, Appellant, v. The STATE of Texas, Appellee.

No. 03-95-00333-CR.

Court of Appeals of Texas Austin.

July 3, 1997.

F. N. "Trey" Brown, III, Burnet, for Appellant.

Sam Oatman, Dist. Atty., John Morgan Minton, Asst. Dist. Atty., Llano, for Appellee.

Before CARROLL, C.J., and KIDD and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

A jury convicted appellant, Jeffrey Steven Marx, of aggravated sexual assault of a child and assessed punishment at imprisonment for twenty-three years. See Tex. Penal Code §§ 22.011, 22.021 (West 1994 & Supp.1997). Marx brings seven points of error contending the trial court erred by: (1) allowing two child witnesses to testify by closed-circuit television; (2) not suppressing his confession; (3) failing to afford him a Batson hearing; (4) denying him six challenges for cause; (5) admitting evidence of extraneous wrongs; (6) not allowing cross-examination of the victim concerning possibly exculpatory evidence; and (7) allowing testimony by witnesses not on the prosecution's witness list who were present in the courtroom during other testimony after the rule had been invoked. We will affirm the conviction.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1994, thirteen-year-old B.J. told her grandfather and caseworkers at the children's advocacy center that Jeffrey Marx had sexually assaulted her earlier that summer. The next day, Investigator Jimmy Hopkins of the Burnet County Sheriff's Department obtained a warrant for Marx's arrest. While in custody, Marx confessed to having intercourse with B.J. when he and his wife took B.J. swimming at an area lake. He also admitted to engaging in sexual acts with four other girls, including two of his daughters and his niece J.M. Because Marx claimed he could not read or write, Chief Deputy Tim Moody entered the confession into a computer. A Burnet County grand jury subsequently indicted Marx for three counts of aggravated sexual assault against B.J. Count one of the indictment alleged genital penetration; counts two and three alleged penetration of the anus and digital penetration of the genitals, respectively.

Before trial, Marx filed two motions to suppress the confession, which he contended was taken in violation of his statutory and constitutional rights. See U.S. Const. amend. IV, XIV; Tex. Const. art. I, § 9; Tex.Code Crim. Proc. Ann. art. 38.22, § 2(a)(1-5) (West 1979). The trial court denied both motions. The prosecution filed a pretrial motion to allow B.J. and J.M., age six, to testify by two-way closed-circuit television. See Tex.Code Crim. Proc. Ann. § 38.071 (West Supp.1997). The trial court granted the State's motion. The jury found Marx guilty of count one but not guilty of counts two and three. The jury assessed punishment at twenty-three years of imprisonment.

DISCUSSION

Testimony by Closed-Circuit Television

In point of error one, Marx contends the trial court erred by allowing the two girls to testify by closed-circuit television because such testimony: (1) did not meet the prerequisites of article 38.071; (2) as applied, violated his right to confront the witnesses; and (3) facially and as applied, violated his right to due process of law. See U.S. Const. amend. V, VI, XIV; Tex.Code Crim. Proc. Ann. art. 38.071.

1. Statutory Compliance and Confrontation Challenge

Section 1 of article 38.071 allows testimony to be given by closed-circuit television in a prosecution for aggravated sexual assault only if

the offense is alleged to have been committed against a child 12 years of age or younger and if the trial court finds that the child is unavailable to testify at the trial of the offense, and applies only to the statements or testimony of that child[.]

Id. art. 38.071, § 1. Marx correctly notes that B.J. was thirteen years old at the time of this offense and J.M. was not the victim in this particular proceeding. He also contends the State failed to prove J.M. was "unavailable" as the statute requires. However, in Gonzales v. State, 818 S.W.2d 756 (Tex.Crim.App.1991), the Texas Court of Criminal Appeals upheld a child witness's testimony by closed-circuit television even though she was not the victim of the charged offense and even though the offense (murder) was not one enumerated in the statute. See id. at 765. Gonzales teaches that the statute is not the only basis for permitting closed-circuit testimony by a child victim in Texas:

[W]e see no reason why an expression of this important public policy must necessarily be in the form of an act or statute. More importantly, we have found nothing in any pertinent opinion from this Court or from the Supreme Court that would permit only the Legislature to make this "public policy" determination on behalf of the State.

Id. Gonzales involved a challenge to closed-circuit televised testimony on the ground it violated the defendant's confrontation right. See U.S. Const. amend. VI. The court of criminal appeals expressly adopted the United States Supreme Court's holding in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), that the State has a sufficiently important interest in protecting child victims from the traumatic effects of testifying to justify the use of closed-circuit televised testimony under certain circumstances. See Gonzales, 818 S.W.2d at 765 (citing Craig, 497 U.S. at 855, 110 S.Ct. at 3168-69). To justify the procedure's use under Craig and now Gonzales, the trial court must determine that the procedure is necessary by hearing evidence and finding: (1) the procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) the emotional distress suffered by the child witness in the presence of the defendant is not de minimis ("more than mere nervousness or excitement or some reluctance to testify"). Gonzales, 818 S.W.2d at 765 (citing Craig, 497 U.S. at 855-56, 110 S.Ct. at 3168-69); Hightower v. State, 822 S.W.2d 48, 51 (Tex.Crim.App.1991). This finding of necessity supplants the requirement of unavailability described in article 38.071. See Tex.Code Crim. Proc. Ann. art. 38.071, § 8. Accordingly, as long as the record in this case supports the finding of necessity, the trial court did not err by allowing B.J. and J.M. to testify by closed-circuit television merely because they did not meet the other requirements of article 38.071.

We review the trial court's rulings in a hearing on necessity for an abuse of discretion. See Hightower, 822 S.W.2d at 53; see also Act of July 20, 1987, 70th Leg., 2d C.S., ch. 55, § 2, 1987 Tex. Gen. Laws 180, 185 (Tex.Code Crim. Proc. Ann. art. 38.071) (stating preference for affording "sufficient discretion" to trial courts applying statute). Review of a necessity hearing typically involves reviewing a trial court's findings of fact. See Hightower, 822 S.W.2d at 53; Gonzales v. State, 822 S.W.2d 189, 194 (Tex.App.--San Antonio 1991), pet. granted and remanded, 831 S.W.2d 326 (Tex.Crim.App.1992) (later case involving Gonzales with a second victim); Dufrene v. State, 853 S.W.2d 86, 90 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd). Here the trial court did not record findings of fact. However, Marx did not request and does not challenge the absence of such findings. Therefore, we will determine whether the record supports the trial court's ultimate determination of necessity.

B.J.'s grandfather, Barney Raines, with whom she lived at the time of the offense and at trial, testified that B.J. was sixty percent J.M.'s mother, Crystal Hayden, took the stand to express her concern that testifying in court would be harmful and traumatic to J.M. The mother also testified that J.M. was wetting her bed and having nightmares, although these had occurred before J.M. had been asked to testify. J.M.'s therapist, Dr. Anita Calvert, testified that J.M. was "a wreck" and did not want to see Marx. Dr. Calvert also testified, however, that J.M. was a strong girl and "would probably testify okay" if she had to. When the court inquired whether Dr. Calvert thought testifying in court would cause J.M. any emotional or physical problems, Dr. Calvert answered "I couldn't say for sure that there would not be. I wouldn't expect it."

mentally retarded. B.J. had told her grandfather that Marx had threatened her. Raines felt that B.J. would suffer emotionally, and perhaps physically, if she testified in court. B.J. was in a special class for learning disabled students. Her teacher, Pat Fluitt, testified that B.J. had the educational level of a six or seven-year-old. Fluitt also related that B.J. dreaded testifying and had complained that she could not face Marx.

In our opinion, this record supports the trial court's decision to permit the televised testimony of both child witnesses. Regarding the complainant B.J., the evidence was that she was very frightened of facing Marx in court and testifying in his presence would cause her to suffer psychological, perhaps even physical, harm. The trial court was justified in concluding the procedure was necessary to protect this fourteen-year-old victim who had the emotional maturity of a six or seven-year-old.

Although there is less compelling evidence of the emotional distress that the eyewitness J.M. would suffer from testifying in the defendant's presence, the trial court was entitled to consider her tender age of six years and the fact that J.M. herself had allegedly been sexually assaulted by the defendant. The trauma to a child victim of confronting a perpetrator in the courtroom is not necessarily diminished because the subject of her testimony is the defendant's assault on another victim. Indeed, Gonzales permitted closed-circuit testimony by a child witness who had allegedly been sexually assaulted by the defendant. See 818 S.W.2d at 765.

After the trial court found it necessary to allow ...