in the Matter of W.E.J., a Juvenile ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00243-CV
IN THE MATTER OF W.E.J., A JUVENILE
From the County Court at Law
Navarro County, Texas
Trial Court No. C2114-JV
OPINION
In two issues, appellant, W.E.J., asserts that the trial court violated his Sixth
Amendment right of confrontation when it denied his request for forensic interviews of
two child victims to be transcribed and then translated from Spanish to English. See
U.S. CONST. VI. We affirm.
I. BACKGROUND
On July 31, 2013, the State filed an original adjudication petition against
appellant, alleging that appellant had committed two acts of aggravated sexual assault
of a child against K.O. and two acts of indecency with a child against G.O.—both of
whom are appellant’s nieces. At the conclusion of the trial, the jury adjudicated
appellant on one count of aggravated sexual assault and two counts of indecency with a
child. After receiving the jury’s verdicts, the trial court determined that appellant was
“in need of rehabilitation or the protection of the public or the child requires that
disposition be made.” Thereafter, the trial court conducted a disposition hearing. At
the conclusion of the hearing, the trial court placed appellant on probation until his
eighteenth birthday. Subsequently, appellant filed a motion for new trial, which was
overruled by operation of law. See TEX. R. CIV. P. 329b(c). This appeal followed.
II. ANALYSIS
In both of his issues on appeal, appellant challenges the trial court’s denial of his
request for the forensic interviews of the child victims to be transcribed and translated
from Spanish to English, arguing that the trial court’s ruling violated his Sixth
Amendment right to confront and cross-examine witnesses. See U.S. CONST. amend. VI.
We disagree.
Article 39.15 of the Code of Criminal Procedure provides the procedure for the
trial court to follow regarding a request for discovery of a child advocacy center’s
forensic interview to the defense. See TEX. CODE CRIM. PROC. ANN. art. 39.15 (West
Supp. 2014). Specifically, article 39.15(c) provides the following: “A court shall deny
any request by a defendant to copy, photograph, duplicate, or otherwise reproduce” a
recording of the interview “provided that the state makes the property or material
reasonably available to the defendant.” Id. art. 39.15(c). A recording of the interview is
“reasonably available to the defendant if, at a facility under the control of the state, the
state provides ample opportunity for the inspection, viewing, and examination of the . .
In the Matter of W.E.J. Page 2
. material by the defendant, the defendant’s attorney, and any individual the defendant
seeks to qualify to provide expert testimony at trial.” Id. art. 39.15(d).
Here, the record shows that appellant’s counsel viewed the video of the forensic
interviews of K.O. and G.O. and that he used a translator to transcribe and translate the
interviews of the child victims from Spanish to English. Nevertheless, appellant
requested that the trial court allow for a translated transcription of the interviews to be
played in front of the jury. The State responded that the granting of appellant’s request
would result in an unauthorized duplication of the interviews, which constitutes a
violation of article 39.15(c). See id. art. 39.15(c). After a hearing, the trial court denied
appellant’s request.
Because article 39.15(c) requires the trial court to deny a request to duplicate or
reproduce evidence depicting or describing sexual abuse against a child, and because
we believe that appellant’s request amounted to an unauthorized duplication of the
interviews, we cannot say that the trial court abused its discretion in denying
appellant’s request to have the forensic interviews of the child victims translated and
transcribed for the jury. See id.; State v. Dittman (In re District Attorney’s Office of the 25th
Judicial Dist.), 358 S.W.3d 244, 246 (Tex. Crim. App. 2011) (holding that the discretion of
the trial court in matters of discovery includes the discretion to exercise the statutory
authority to order production of evidence for inspection and copying); Martinez v. State,
327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (noting that we review the trial court’s
decision to admit or exclude evidence under an abuse-of-discretion standard); see also In
re Ligon, No. 09-14-00262-CR, 2014 Tex. App. LEXIS 6916, at **2-4 (Tex. App.—
In the Matter of W.E.J. Page 3
Beaumont June 26, 2014, orig. proceeding) (mem. op., not designated for publication)
(stating that article 39.15 of the Code of Criminal Procedure is well-settled law and that
it “is a mandatory statute that requires the trial court to deny the defendant’s request to
reproduce a child advocacy center’s forensic interview of a child victim”).
In any event, appellant appears to argue that such a construction of article 39.15
violates his Sixth Amendment right to confront and cross-examine witnesses. In
support of this contention, appellant relies heavily on the United States Supreme
Court’s decision in Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974),
and the Court of Criminal Appeals’ decision in Coronado v. State, 351 S.W.3d 315 (Tex.
Crim. App. 2011). We do not find either case to be persuasive in this matter.
The Davis case involved a decision by the trial court that prevented the
defendant from cross-examining a juvenile witness about his adjudication for burglary
and his probationary status. 415 U.S. at 310-12, 94 S. Ct. at 1107-08. The Davis court
stated that the rights to confront and impeach a witness guaranteed by the Sixth
Amendment supersede the right of a witness to testify free from embarrassment and
with an unblemished reputation. Id. at 320, 94 S. Ct. at 1112. More specifically, the
Davis court held that: “The State’s policy interest in protecting the confidentiality of a
juvenile offender’s record cannot require yielding of so vital a constitutional right as the
effective cross-examination for bias of an adverse witness.” Id. at 320, 94 S. Ct. at 1112.
Here, the record demonstrates that appellant’s counsel viewed the video of the
forensic interviews and used his own translator to transcribe and translate word for
word the interviews of the child victims from Spanish to English. Additionally,
In the Matter of W.E.J. Page 4
appellant vigorously cross-examined the child victims, G.O. and K.O., and the forensic
interviewer, Yesenia Gonzalez. The record reflects that appellant impeached and cross-
examined all of the witnesses regarding inconsistencies and potential biases and
motives. In fact, appellant’s counsel also questioned Gonzalez’s interpretation of the
Spanish interviews by comparing her testimony to that of appellant’s translation of the
interviews. It is not the case that appellant was prevented from confronting or cross-
examining any of the aforementioned witnesses about topics that appellant deemed
relevant.
Given this evidence, we find that the fact scenario in the instant case is
substantially different from that of Davis. Accordingly, we cannot say that the record
demonstrates that the trial court’s denial of appellant’s motion to translate and
transcribe the videotaped forensic interviews of the child victims damaged appellant’s
right to confront and cross-examine witnesses to the degree shown in Davis.
Appellant also relies on the Coronado decision. See 351 S.W.3d at 315. In
Coronado, the child victim did not testify, and pursuant to section 2 of article 38.071,
written interrogatories were used in lieu of the child’s live testimony.1 Id. at 318-19; see
TEX. CODE CRIM. PROC. ANN. art. 38.071, § 2 (West Supp. 2014). The Court of Criminal
Appeals held that the procedure authorized by section 2 of article 38.071 violated a
defendant’s right to confront witnesses and, thus, was unconstitutional. Coronado, 351
1Prior to the Coronado decision, parties typically provided written interrogatories to a neutral
interviewer who would then ask the questions in a recorded interview of the child. See TEX. CODE CRIM.
PROC. ANN. art. 38.071, § 2 (West Supp. 2014); see generally Coronado v. State, 351 S.W.3d 315 (Tex. Crim.
App. 2011).
In the Matter of W.E.J. Page 5
S.W.3d at 316. Such is not the case here. As noted earlier, both of the child victims
testified, and there is testimony recounting specific instances of sexual abuse allegedly
perpetrated by appellant against the child victims. The written-interrogatory procedure
used in Coronado was not used in the instant case. Furthermore, the record indicates
that appellant’s attorney viewed the video of the forensic interviews and was allowed
to have his own translator watch the video and provide a translation of the interviews.
Given this evidence, we are not persuaded by appellant’s reliance on Coronado.
Ultimately, appellant has not directed us to any relevant authority holding that
the procedures prescribed in article 39.15 of the Code of Criminal Procedure are
unconstitutional. Instead, appellant supports his contention that article 39.15 deprives
him of his Sixth Amendment right to confront and cross-examine witnesses by
analogizing the circumstances in both Davis and Coronado. See 415 U.S. at 308, 94 S. Ct.
at 1105; see also 351 S.W.3d at 315. And as stated above, we do not find either case to be
persuasive in this matter. As such, we cannot say that appellant has adequately
demonstrated that his Sixth Amendment rights were violated in this case. We overrule
appellant’s issues on appeal.
III. CONCLUSION
Having overruled both of appellant’s issues on appeal, we affirm the judgment
of the trial court.
In the Matter of W.E.J. Page 6
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed April 23, 2015
[CV06]
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