Jorge Maximo Espinoza v. State ( 2014 )

NUMBER 13-13-00089-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JORGE MAXIMO ESPINOZA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Perkes and Longoria
Memorandum Opinion by Justice Longoria
By one issue, appellant Jorge Maximo Espinoza appeals his conviction for
continuous sexual abuse of a young child. See TEX. PENAL CODE ANN. § 21.02 (West,
Westlaw through 2013 3d C.S.). Appellant argues the trial court violated his Sixth
Amendment right to confront his accuser by allowing the complainant to testify through
closed-circuit television (CCTV). We affirm the trial court’s judgment.
I. BACKGROUND
The State alleged in the indictment that appellant sexually abused A.S.1 the minor
complainant in this case, over a period, “that was 30 or more days in duration, to-wit: from
on or about the 11th day of November, 2008 to on or about the 15th day of November,
2011.”
At trial, the State attempted to have A.S. testify in open court with appellant
present. The trial court summarized his observation of how the child reacted:
She testified in front of me [the trial court]. She testified in front of me and I
saw her, and she was two feet away from me, totally traumatized, couldn’t
answer any questions, was covering her face, and did not want to see the
defendant, told the interpreter that she was afraid of the defendant. Based
upon that—based upon those findings that I’m making at this time, that’s
when the Court made the decision that there was an adequate showing of
necessity [for the physical separation of the child from the defendant].
During the child’s testimony, she expressed fear of speaking; after she was asked
if she feared appellant, she covered her face with a paper; and generally became
emotional. However, the record itself indicates the child never specifically said she feared
appellant. After the trial court permitted the child to testify via CCTV, the State prosecutor
indicated that the child told the court that appellant’s presence caused her to become
unable to testify.2 Appellant objected on Crawford v. Washington grounds when the State
1 We will use the initials of the complainant to protect her privacy. See TEX. CODE CRIM. PROC. ANN.
art. 57.02(b) (West, Westlaw through 2013 3d C.S.).
2The prosecutor stated that the witness, “voiced her fear with regard to testifying in this location in
front of the appellant, through the interpreter.” The child’s actual statement does not appear in the
Reporter’s Record.
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proposed that the complainant testify via CCTV. See 541 U.S. 36, 38 (2004) (discussing
a defendant’s Sixth Amendment right of confrontation). After hearing argument from both
sides, the court determined, given the child’s reaction, the child sufficiently feared the
appellant to be unavailable to testify. See TEX. CODE CRIM. PROC. ANN., art. 38.071, § 4
(West, Westlaw through 2013 3d C.S.). The trial court then applied the test formulated in
Maryland v. Craig, 497 U.S. 836, 850 (1990), for determining whether a child witness may
testify via CCTV, overruled appellant’s objections, and decided to remove the child from
the physical presence of the appellant and allow her to testify via CCTV.
On the following day, the witness testified in a separate room in the judge’s
chambers with the attorneys for the State and defense present while appellant and the
jury watched over CCTV. Appellant’s counsel’s subsequent cross-examination of the
complainant fills sixty-one pages of the reporter’s record.
II. DISCUSSION
By one issue, appellant asserts that the trial court’s decision to allow the witness
to testify via CCTV violated his rights under the Confrontation Clause of the Sixth
Amendment. U.S. CONST. amend. VI.
A. Standard of Review and Applicable Law
On appeal we do not perform our own factual review, but decide whether the record
supports the trial judge’s fact findings. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990) (en banc) (citing Self v. State, 709 S.W.2d 662 (Tex. Crim. App.1986));
Johnson v. State, 698 S.W.2d 154, 159 (Tex. Crim. App. 1985). Moreover, appellate
courts should afford almost total deference to the trial court’s rulings on mixed questions
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of law and fact if the resolution of those question turns on an evaluation of credibility and
demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc);
Villarreal v. State, 935 S.W.2d 134, 139–139 (Tex. Crim. App. 1996) (en banc).
The Confrontation Clause of the Sixth Amendment guarantees that: “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI. The Texas Constitution provides an almost
identical provision. See TEX. CONST. art. III, § 10. The United States Supreme Court has
reaffirmed the right of a defendant to a face-to-face confrontation with the witnesses who
appear before the trier of fact. See Coy v. Iowa, 487 U.S. 1012, 1019 (1988). However,
the United States Supreme Court has also held, “if the State makes an adequate showing
of necessity, the state interest in protecting child witnesses from the trauma of testifying
in a child abuse case is sufficiently important to justify the use of a special procedure that
permits a child witness in such cases to testify at trial against a defendant in the absence
of face-to-face confrontation with the defendant.” Craig, 497 U.S. at 855.
Following the Craig decision, the Texas Court of Criminal Appeals determined that
a child could testify via CCTV in some circumstances in order to protect the welfare of the
child. Gonzales v. State, 818 S.W.2d 756, 764–65 (Tex. Crim. App. 1991) (citing Craig,
497 U.S. at 854). The Craig Court created a three-part test for justifying the use of CCTV:
(1) whether the welfare of the particular child witness necessitates use of the one-way
closed-circuit procedure; (2) whether the child witness “would be traumatized, not by the
courtroom generally”, but by the presence of the appellant; and (3) whether “the emotional
distress suffered by the child witness in the presence of the appellant is more than de
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minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.”
Id. at 758 (citing Craig, 497 U.S. at 854); see TEX. CODE CRIM. PROC. art. 38.071, § 4
(West, Westlaw through 2013 3d C.S.). The trial court itself can make determinations of
necessity based on observing the witness. Belt v. State, 227 S.W.3d 339, 343 (Tex.
App.—Texarkana 2007, no pet.); Mitchell v. State, 238 S.W.3d 405, 412 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d). The decision exists within the broad discretion of the
trial court, and great deference should be given by the appellate court to the trial court's
decision. Belt, 227 S.W.3d at 342 (citing Marx v. State, 987 S.W.2d 577, 583 (Tex. Crim.
App. 1999) (en banc)).
B. Analysis
In Crawford, decided after Craig, the United States Supreme Court “reiterated the
categorical right of confrontation that it had set out in Coy.” Coronado v. State, 351
S.W.3d 315, 322 (Tex. Crim. App. 2011) (citing Crawford, 541 U.S. at 69–72). The Court
explained that “where testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the Constitution actually prescribes:
confrontation.” Id. at 322, (citing Crawford, 541 U.S. at 68–69). Many courts have
interpreted Crawford as prohibiting use of pre-taped statements of child complainants
who do not testify because the appellant did not have an opportunity to cross-examine
the witness. Id. at 321 & n.52. Here, the jury did not hear pre-tapped statement by
complainant, but a real-time examination by the State followed by a lengthy cross
examination by appellant’s counsel. “The Supreme Court has never overturned the
holding in Craig, but, beginning with Crawford v. Washington, the Supreme Court has
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nibbled it into Swiss cheese by repeating the categorical nature of the right to
confrontation in every one of its more recent cases.” Coronado 351 S.W.3d at 321.
However, appellant does not argue on appeal that Crawford prohibits testifying by CCTV
but instead only that the conditions laid down in Craig were not met. Accordingly, we will
address appellant’s issue as he frames it: on the basis of the Craig test.
Appellant hinges his case on the argument that the State must show that the record
reflects that the child complainant specifically stated that appellant’s presence
traumatized her. Absent a clear statement on the record, appellant argues the State must
bring in an expert to determine whether or not the child would be sufficiently traumatized
by the appellant’s presence. The State responds that the trial court did not abuse its
discretion when it declared the child victim unavailable and allowed her to testify via
CCTV. The State argues that the trial court’s observation of the child’s emotionally-
charged behavior supports its decision. Applying the three-part test set out in Craig, we
agree with the State.
Regarding the first part of the test, we conclude that the trial court used the one-
way closed-circuit procedure through necessity to protect the welfare of the child witness
because appellant’s presence emotionally affected the witness. See Craig, 497 U.S. at
855–56; Marx, 987 S.W.2d at 580; Gonzales, 818 S.W.2d at 764–65. Regarding the
second part of the test, we conclude that the trial court also acted within its discretion
because the record supports that the child would have been traumatized and emotionally
affected by testifying in the presence of appellant and not only by the experience of
testifying in court in general, because she visibly shook, hid her face from appellant, and
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generally acted emotionally. See Craig, 497 U.S. at 855–56. Appellant argues that this
second prong is not satisfied unless the child witness specifically says on the record that
the appellant’s presence would harm her, or expert testimony states that testifying would
traumatize the witness. However, Craig does not require the witness must affirmatively
say that she cannot testify or that an expert must state the child would be traumatized,
and we find no authority supporting such a conclusion. We therefore conclude that the
trial court acted within its discretion by allowing the child witness to testify through CCTV
because the trial court properly found that appellant’s presence in particular affected her.
See Craig, 497 U.S. at 855–56. Regarding the third part of the test, we conclude that the
child witness exhibited more than mere nervousness or reluctance to testify. She hid her
face from appellant, and the prosecution told the trial court without objection that the child
told the interpreter that she feared appellant. Based on her conduct, the trial court rightly
concluded appellant’s presence, and not the experience of testifying itself, prompted her
to fear appellant and become unable to testify. See id.; Marx, 987 S.W.2d at 580;
Gonzales, 818 S.W.2d at 764–65.
After determining that the facts presented satisfy each part of this test, we conclude
that the trial court did not abuse its discretion and did not violate appellant’s Sixth
Amendment’s right to confrontation. See Craig, 497 U.S. at 855–56; Gonzalez, 818
S.W.2d at 764–65; see also Belt, 227 S.W.3d at 342–43; Ficarro v. State, No. 13-03-
00439-CR, 2007 WL 1218045, at *2 (Tex. App.—Corpus Christi Apr. 26, 2007, pet.
dism'd) (mem. op., not designated for publication) (finding, in a case where a child witness
testified but then became unresponsive, Sixth Amendment concerns were satisfied once
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the appellant had the opportunity to cross-examine the witness). Appellant’s sole issue
is overruled.
III. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
3rd day of July, 2014.
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