Jose Guadalupe Reyes v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00119-CR Jose Guadalupe Reyes, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 0984356, HONORABLE FRED A. MOORE, JUDGE PRESIDING Appellant Jose Guadalupe Reyes was convicted of the offense of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2000). The jury assessed appellant's punishment at imprisonment for twelve years. Appellant asserts that the "trial court erred in allowing the child victim to testify via closed-circuit television." We will affirm the judgment. Appellant complains specifically that the trial court did not have sufficient evidence and abused its discretion in finding the child victim was "unavailable to testify" in the courtroom and in allowing the victim to testify by the use of closed-circuit television. Further, appellant contends that this error resulted in depriving him of his federal and state constitutional right to be confronted with the witness against him. See U.S. Const. amend. VI, XIV; Tex. Const. art. I, § 10. The Supreme Court has held that if there is an adequate showing of necessity, the state interest in protecting a child from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a procedure that permits the child to testify without face-to-face confrontation with the defendant, and that the use of such a procedure would not violate the defendant's Sixth Amendment right of confrontation. See Maryland v. Craig, 497 U.S. 836, 855 (1990); Ruiz v. State, 939 S.W.2d 245, 246 (Tex. App.--Austin 1997, no pet.). In determining whether the Texas Constitution is violated by a procedure that permits a child to testify without face-to-face confrontation with a defendant, the Court of Criminal Appeals used the same analysis that was applied in Maryland v. Craig. See Gonzales v. State, 818 S.W.2d 756, 764 (Tex. Crim. App. 1991). In proper circumstances the use of closed-circuit television has been approved for the protection of child victim witnesses. See Craig, 497 U.S. at 855; Marx v. State, 987 S.W.2d 577, 579-83 (Tex. Crim. App. 1999); Gonzales, 818 at 764; Ruiz, 939 S.W.2d at 246-47. The Code of Criminal Procedure provides the trial court may order that the testimony of a child be taken during the trial in a room other than the courtroom and be televised into the courtroom by closed-circuit equipment. See Tex. Code Crim. Proc. Ann. art. 38.071, § 3 (West Supp. 2000). In the trial of a defendant for the offense of indecency with a child, the Code of Criminal Procedure provides guidelines for the trial court's determination of whether a child victim twelve years of age or younger is "unavailable to testify": Sec. 8. (a) In making a determination of unavailability under this article, the court shall consider relevant factors including the relationship of the defendant to the child, the character and duration of the alleged offense, the age, maturity, and emotional stability of the child, and the time elapsed since the alleged offense, and whether the child is more likely than not to be unavailable to testify because: (1) of emotional or physical causes, including the confrontation with the defendant or the ordinary involvement as complainant in the courtroom trial; or (2) the child would suffer undue psychological or physical harm through his involvement at trial. Tex. Code Crim. Proc. Ann. art. 38.071, § 8(a) (West Supp. 2000). In this case, the trial court found the complainant was "unavailable to testify" and allowed the seven-year old complaining witness to testify in a room other than the courtroom. In the courtroom, the jury and appellant could see and hear the witness testify through the use of closed-circuit television. We must determine whether the trial court abused its discretion in finding that the complainant was "unavailable to testify" in the courtroom and whether receiving the complainant's testimony by the use of closed circuit television was justified. Prior to trial, the Honorable Bob Perkins, Judge of the 331st District Court of Travis County, conducted a hearing, and during trial, the Honorable Fred A. Moore, the trial judge, conducted a hearing. The purpose of both hearings was to determine whether there was a necessity for receiving the complainant's testimony by closed-circuit television. Both judges ruled that the use of closed-circuit television was necessary to give the complainant the protection afforded child witnesses by Article 38.071. In addition to their own observations and argument of counsel, both judges had the benefit of expert testimony. Mary Elizabeth Deterreire, a psychologist with a Ph.D. in psychology and thirteen years of experience in treating sexually abused children, testified in both hearings. Deterreire had provided treatment for both the victim and his parents. Her treatment of the victim included ten sessions for a total of fourteen hours. Although her treatment of the victim ceased six months before trial, Deterreire had an opportunity to observe the victim for an hour at the time of trial before she testified. Deterreire based her testimony on a number of factors: The victim was depressed; he continuously displayed the hyperactivity and anxiety common to sexually abused children; he had nightmares, clung to his parents, would not stay with others, engaged in sexual behavior with their dog, and required his parents' constant supervision; appellant lived next door to the victim; appellant's son was the victim's best friend; and appellant told the victim that if he told about the abuse he had suffered, appellant would kill the victim's father. Deterreire had reviewed the State's file and a videotape of the victim's interview at the Children's Advocacy Center. Deterreire had been in the victim's home to make an assessment of his family. Deterreire's opinion was based on the facts of this case and her twenty-five years of clinical experience, legal research, and her expertise as a clinician working with child abuse victims. Deterreire testified that the trauma of being sexually assaulted would remain with the victim throughout his life. She had a "strong opinion" that the victim would be traumatized by being in physical proximity or having visual contact with appellant in the courtroom. If required to be in appellant's presence, Deterreire believed the victim's condition would worsen. Deterreire testified that the use of closed-circuit television was necessary to protect the child's welfare. She testified that the additional trauma that the victim would suffer if he had to testify in appellant's presence was more than de minimus, more than mere nervousness or excitement, and more than reluctance to testify. She believed that to re-expose the victim to appellant would resurrect flashbacks, anxiety, and shame. Deterreire concluded that "to bring the [victim] into the courtroom in such close proximity to the defendant [ ] would further regress him and impede any coping capacity that he now has to be able to answer simple questions regarding the charges." The evidence is sufficient for the trial court's determination and what we said in Ruiz is applicable to this case. "[T]he closed-circuit television procedure [was] necessary to protect the welfare of the child witness, the child witness would be traumatized by the presence of the defendant, and the emotional distress suffered by the child witness in the presence of the defendant [would be] more than de minimus, that is more than nervousness or reluctance to testify." Ruiz, 939 S.W.2d at 247. We hold that the record shows an adequate basis and the necessity for allowing the victim to testify by the use of closed-circuit television; the trial court did not abuse its discretion in using the procedure followed. That procedure did not deprive appellant of his federal and state constitutional right to be confronted with the witness against him. Appellant's point of error is overruled. The judgment is affirmed. Carl E. F. Dally, Justice Before Chief Justice Aboussie, Justices Patterson and Dally* Affirmed Filed: August 31, 2000 Do Not Publish * Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998). .D. in psychology and thirteen years of experience in treating sexually abused children, testified in both hearings. Deterreire had provided treatment for both the victim and his parents. Her treatment of the victim included ten sessions for a total of fourteen hours. Although her treatment of the victim ceased six months before trial, Deterreire had an opportunity to observe the victim for an hour at the time of trial before she testified. Deterreire based her testimony on a number of factors: The victim was depressed; he continuously displayed the hyperactivity and anxiety common to sexually abused children; he had nightmares, clung to his parents, would not stay with others, engaged in sexual behavior with their dog, and required his parents' constant supervision; appellant lived next door to the victim; appellant's son was the victim's best friend; and appellant told the victim that if he told about the abuse he had suffered, appellant would kill the victim's father. Deterreire had reviewed the State's file and a videotape of the victim's interview at the Children's Advocacy Center. Deterreire had been in the victim's home to make an assessment of his family. Deterreire's opinion was based on the facts of this case and her twenty-five years of clinical experience, legal research, and her expertise as a clinician working with child abuse victims. Deterreire testified that the trauma of being sexually assaulted would remain with the victim throughout his life. She had a "strong opinion" that the victim would be traumatized by being in physical proximity or having visual contact with appellant in the courtroom. If required to be in appellant's presence, Deterreire believed the victim's condition would worsen. Deterreire testified that the use of closed-circuit television was necessary to protect the child's welfare. She testified that the additional trauma that the victim would suffer if he had to testify in appellant's presence was more than de minimus, more than mere nervousness or excitement, and more than reluctance to testify. She believed that to re-expose the victim to appellant would resurrect flashbacks, anxiety, and shame. Deterreire concluded that "to bring the [victim] into the courtroom in such close proximity to the defendant [ ] would further regress him and impede any coping capacity that he now has to be able to answer simple questions regarding the charges." The evidence is sufficient for the trial court's determination and what we said in Ruiz is applicable to this case. "[T]he closed-circuit television procedure [was] necessary to protect the welfare of the child witness, the child witness would be traumatized by the presence of the defendant, and the emotional distress suffered by the child witness in the presence of the defendant [would be] more than de minimus, that is more than nervousness or reluctance to testify." Ruiz, 939 S.W.2d at 247. We hold that the