Ex Parte Crispen , 1989 Tex. Crim. App. LEXIS 166 ( 1989 )

OPINION

MILLER, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, Sec. 2, V.A.C.C.P. Applicant was convicted by a jury of aggravated sexual assault, V.T.C.A. Penal Code Sec. 22.-021(a)(l)(B)(i), and sentenced to life' imprisonment in the Texas Department of Corrections. Applicant’s conviction was affirmed on appeal. Crispen v. State, 702 S.W.2d 753 (Tex.App.—Tyler 1986).

On direct appeal applicant raised only two points of error, neither of which dealt with the contention he raises in this writ application. Applicant now contends the showing to the jury of a pretrial videotaped interview of the complainant and a social worker, made in compliance with Art. 38.-071, Sec. 2, V.A.C.C.P., violated his right of confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. 10 of the Texas Constitution and his right to due process under the Fourteenth Amendment to the United States Constitution and Art. I, Sec. 19 of the Texas Constitution. Applicant invokes our recent decision in Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), cert. denied — U.S. -, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988), wherein we held Art. 38.071, Sec. 2, supra, was unconstitutional as violative of the due process clause of the Fourteenth Amendment, the due course of law provisions in Art. I, Sec. 19 of the Texas Constitution, and the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Art. I, Sec. 10 of the Texas Constitution. The State did not file an answer to the writ application. In its findings of fact and conclusions of law, the convicting court determined a hearing on the writ was not necessary and recommended relief be denied.

In Ex parte Hemby, 765 S.W.2d 791 (Tex.Cr.App.1989), we held our decision in Long, supra, should be given retroactive effect to cases for which all direct appellate avenues had been exhausted before the date of that decision. The applicant in Ex parte Hemby timely objected to the admission of the videotaped testimony of the child complainant at trial, thus only the retroactivity of the Long decision and not preservation of error was the issue in that decision. We filed and set this application to address that issue, viz: whether “Long error” may be raised in a writ of habeas corpus when the applicant has failed to object to the admission of the videotape at trial on the ground that his confrontation rights were violated. Thus in this cause we address only the issue of whether a trial objection is required to preserve “Long error” for collateral review. Since we hold infra applicant waived any error by failing to object and do not address the merits of his claim, we express no opinion as to the cognizability of “Long error” via a writ of habeas corpus. See and cf. Ex parte Truong, 770 S.W.2d 810 (Tex.Cr.App.1989) (claim of unconstitutional jury charge on parole law not cognizable in postconviction habeas proceeding), and Ex parte Banks, 769 S.0W.2d 539 (Tex.Cr.App.1989) (Opinion on Rehearing) (exclusion of prospective jurors in violation of federal constitution cognizable). The scholarly remarks of our brother Clinton, in his concurring opinion, concerning the criteria of cog-nizability of habeas corpus claims in state courts will doubtless be revisited when the issue is squarely before the court.

In the case at bar, applicant asserts the State called the social worker who conducted the videotaped interview to testify at trial. No attorney for either party was present during the videotaped interview. After the social worker testified, the videotape was played before the jury over applicant’s objection to the “claim [chain?] of custody.” The State then called both the victim and the victim’s mother to testify. Applicant testified and denied committing the alleged offense. Applicant also introduced into evidence a physician’s statement indicating the victim showed no physical signs of sexual abuse. During deliberations, the jury sent a note to the trial judge requesting to see the videotape again, but there is nothing in the record before us to indicate whether the trial judge granted this request. As previously noted, applicant was found guilty and the trial court assessed punishment at life imprisonment.

The docket sheet reflects applicant’s trial began on January 22, 1985, and he was sentenced on January 30, 1985. Our decision in Long, supra, was delivered on July 1, 1987. Applicant contends cause exists for his “failure to object to the showing of the videotaped interview at the trial or to raise the issue [whether admission of the videotape denied applicant his right to confront and cross-examine the complainant] on direct appeal in that the only Court of Appeals to have addressed the issue prior to the trial and the filling (sic) of the Brief of Appellant had upheld the statute.” See Jolly v. State, 681 S.W.2d 689 (Tex.App.—Houston [14th Dist.] 1984), reversed 739 S.W.2d 345 (Tex.Cr.App.1987). We are not persuaded by applicant’s argument and hold, for reasons to be given, that a defendant who fails to object on confrontation grounds to admission of a videotape at trial may not raise the issue of “Long error” for the first time on collateral review.

Thus with regard to raising “Long error” on collateral attack, this Court adheres to the contemporaneous objection rule which is, generally, that “appellate courts will not consider any error which counsel for the accused could have called, but did not call, to the attention of the trial court at the time when such error could have been avoided or corrected by the trial court.” Gibson v. State, 726 S.W.2d 129 (Tex.Cr.App.1987), and cases cited therein. We have, however, declined to apply this rule to error involving a novel constitutional claim. Cf. Mathews v. State, 768 S.W.2d 731 (Tex.Cr.App.1989). In Mathews, we discussed this “novelty” analysis as used by federal and state appellate courts and reiterated our own rule that “a defendant has not waived his right to assert a constitutional violation by failing to object at trial if at the time of his trial the right had not been recognized.” Mathews, supra, 768 S.W.2d at 733, citing Ex parte Chambers, 688 S.W.2d 483 (Tex.Cr.App.1984) (Campbell, J., concurring). We concluded in Mathews that the decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that the State may not purposefully discriminate against blacks during voir dire through the use of its peremptory challenges, did not create a new constitutional claim and, thus, the appellant could not raise Batson error for the first time on appeal when there was no objection or anything in the record which allowed the appellant to show purposeful discrimination.

We likewise find that our decision in Long did not create a new constitutional claim. The Long decision was founded on principles of due process and the right of confrontation guaranteed by both the federal and state constitutions. Writing for the majority in Long, Judge Duncan thoroughly reviewed the history of the right of confrontation and its ratification on both federal and state levels. This Court concluded Art. 38.071, Sec. 2, supra, violated the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. 10 and Art. I, Sec. 19 of the Texas Constitution. The Long decision did not create a new claim under these constitutional provisions but determined that the statute, Art. 38.071, Sec. 2, supra, imper-missibly imposed barriers on an accused’s established constitutional rights. Although the defect in Art. 38.071, Sec. 2, supra, had not been addressed by this Court at the time of applicant’s trial, the rights affected by the statute were well-established at the time of his trial, and applicant apparently was aware of a possible constitutional defect in the statute in that the statute had already been challenged on appeal. We do not find that the claimed defect was novel so as to excuse applicant’s failure to object. Consequently, we hold that unobjected to Long error may not be raised for the first time by collateral attack.

The relief sought is denied.

McCORMICK, P.J., and CAMPBELL and DUNCAN, JJ., concur in the result.