*3 аrgument based on evidence. Edwards’ is MORRISS, C.J., and Before ROSS in- that the statement was contention CARTER, JJ. moved admissible because the State never OPINION the trial court to declare child unavail- matter, able, held on hearing no was that by Justice Opinion CARTER. to presented and the State never appeals Brandi Edwards from her con- ar- show the child was unavailable. She by jury aggra- viction for the offense of that, specific there no gues because was vated sexual assault of a child. The testify finding the child was unavailable to punishment forty years’ im- assessed Edwаrds, in trial court presence $10,000.00 and a fíne. prisonment Amend- violated the and Fourteenth Sixth Edwards that the trial contends court to ments the United States Constitution by admitting videotaped 38.071, erred the child’s and the Texas Article Section of evidence, statement into that the statute See Const. Procedure. Code Criminal permitting VI, XIV; the admission of such evidence amends. TexCode PROC. Crim. (Vernon unconstitutional, experts 38.071, § is that the State’s Supp.2003). Ann. art. improperly provide were permitted court, testify in open The child did not perceived opinion testimony abоut con- but the child, truthfulness of and that the ad- ducted with her before indictment testimony by mission of the sexual assault jury. objected presented to the Counsel by nurse examiner about statements made hearsay, grounds including denial of the right the child was violative of her of con- confrontation, right of unavailabili- frontation. also Edwards contends objections ty issue. were overruled. the cumulative effect of all of these errors contends there no evidence Edwards right process denied her to due under the un- the child was support a conclusion is legal- Constitution that the evidence that, in absence argues available. She factually support ly and insufficient evidence, necessary precursor of such verdict. videotape met to admission of the was not five-year- officials observed this School trial court therefore erred “acting in a old child out” sexual fashion. admitting it into evidence. her, spoke A counselor and the school determination that encounters. The court’s having child described sexual preliminary step child is unavailable is A was made to Child Protective reрort taken, that must be met in satisfy order to not been and the out-of-court testi- requirements of mony is inadmissible. Tex.Code CRIM. PROC. Ann. (Vernon art. 38.071 Supp.2003). See Live The Texas expresses statute1 the con- (Tex. ly 366-67 cept that a may be “unavailable” to Crim.App.1998). The statute requires testify open court certain circum- that, before such an interview may be stances. It mandates that the entire arti-
used, the court must determine the child is
applies
cle
only
hearing
to a
in which the
reasons,
unavailable based
proper
in
court determines the child is unavailаble.
cluding
the factors set out
Article
It
type
sets out the
of evidence that must
38.071, Section 8 of the Texas Code of be
considered
the trial court: the rela-
*4
Criminal Procedure. The law has recog
tionship
defendant,
of the
the
the
alleged offense,
nized that children
age,
who are victims of
maturity, and emo-
stability
child,
in
tional
may
crimes
some
instances be so trau
the time
elapsed since the
by
matized
in
offense.
testifying
open court in the
presence of the accused that an accommo
It further allows the court to cоnsider
dation should be made. Section 8 of the
the
physical
emotional or
effect on the
provides
statute
guidelines and factors for
child confronting the defendant and wheth-
the trial court to
making
consider in
er the child would
psychologi-
suffer undue
determination of unavailability.
cal harm by testifying at the trial. After
matters,
the court considers all these
attempts
Texas statute
to address
would be able to make a
In
decision.
this
recognize
importance
the
of
right
the
ease, no hearing was conducted on this
to confront witnesses and bаlance it with
issue and no
for
evidence was introduced
possible
imposed
trauma
on a child
the trial court to consider.
in
attempting
testify
presence
of a
reviewing
im
trial court’s
defendant. Article 38.071 allows evidence
plied finding
unavailability,
we look to
by
statements made
a child victim in
see whether the trial court abused its dis
settings outside the traditional
in-court
making
cretion in
that determination. See
procedure, under
limited circumstances.
State,
Marx v.
987 S.W.2d
580-81
38.071,
Article
Section 1 explicitly states
(Tex.Crim.App.1999). We will not reverse
that the
applies
article
to a
in
proceeding
a trial
ruling
court whose
was
within
which the court determines a child would
disagreement.
zone of reasonable
Green
be
in
testify
presence
unavailable
(Tex.Crim.
2(a)
the defendant. Section
of the Texas
App.1996); Montgomery v.
Code of Criminal Procedure then allows
(op.
391 (Tex.Crim.App.1990)
the recording of an oral statement of the
on reh’g).
child to be admitted if
court
makes
Thus,
specified
pre-
determinations.
as a
In this
the court admitted the
matter,
liminary
requires
the statute
with the child without
trial court to determine thе child is un-
any
un
evidence
reflect the
was
available before the statements obtained
testify.
doing,
available to
In so
it allowed
out of
may
court
be used. Without evi-
evidence into the record
violation of the
dence of this nature and a
review such
ruling
Texas statute. The
of the trial
court,
by
evidence
the trial
preliminary
court is therefore outside the zone of rea
step
necessary by
made
statute
has
disagreement.
sonable
The State has not
(Ver-
Supp.2003).
1. Tex.Code
non
Crim. Proc. Ann. art. 38.071
extremely
from the victim
required adequate showing
made the
fair
say
cannot
assur-
significant.
unavailable. See Tex.Code
Ajnn.
admitting
tape
38.07, §
ance that
error
this
art.
1. In
CRiM. PROc.
influence the
into evidence did not
showing
required
absence of the
but a
unavailable,
slight
had
effect.
trial
child was
we conclude the
by admitting
court abused its discretion
remanding
are
this case for fur-
As we
the evidence.
will discuss
proceedings,
ther
we
other
Edwards,
though
even
by
issues raised
that the admission of
We have concluded
disposition
they
necessary
are not
clearly
violated Article
statement
of this aрpeal.
38.071
the Texas Code Criminal Pro-
Therefore,
analysis
cedure.
our
of harm is
Clause —Admission
II. Confrontation
Tex.R.App.
42.(b).
governed
P.
Under
Videotape
analysis,
if it
disregard
we
error
implicates
This out-of-court statement
does not affect Edwards’
substantial
the Confrontation Clause. U.S. Const.
rights.
Wright,
amend. VI. In Idaho
rights
Substantial
are not affected
*5
805,
3139,
110
videotape. Supreme Court ex- the United States videotape sets out the actions of plained procedures constitutional- Edwards in a manner that does appear not ly under the Confrontation required Specifically, elsewhere the evidence. when a witness has testified in Clause only identifies Edwards as court from the open require- are different perpetrator, graphically but demon- imposes ments the Clause Confrontation occasions to inter- predicate strated several as a for the introduction of out- case, activity In this viewer how such sexual occurred of-court declarations.3 we believe that such with mother. We have out-of-court declarations. mission, alternatively, Wright, if the evidence was
2.
In Idaho v.
the Court determined
particularized
showing
supported by a
apply
appropriate
that it
same
guarantees
of trustworthiness.
analysis
types
as to
to such evidence
other
(1990).
States by examining Confrontation Clause the “indicia reliability” of the carefully statement. We have reviewed the agree analysis We with the and conclusion videotape and examined these as factors of the Tyler Appeals Court of that Article follows: firmly hearsay
38.071 is not a
rooted
ex-
The
ception.
statute is of relative recent
Spontaneity
Consistency
A. The
origin and cannot be
firmly
considered
the Statement
question
rooted.
turn to the
wheth-
outcry,
After the
the child
er the
was takеn to
presumption
State rebutted the
County
inadmissibility by showing
Advocacy
the Fannin
Child
Center
such statement
Griffith,
to
such particular guarantees
have
for an
Michelle
interview
reliability.
trustworthiness to establish
coordinator
and forensic
interviewer.
Maryland
be conducted
necessary
prove
in accordance with
determined
not
it is
to
a child
836, 845,
Craig, 497 U.S.
110 S.Ct.
protection
physical
needs
of his or her
(1990),
Iowa,
Coy
L.Ed.2d 666
psychological well-being
prerequisite
as a
1012, 1019,
108 S.Ct.
H3 Terminology Unexpected of a the interview C. Use of appeared Griffith conduct Age Child of Similar nonleading questions. As Griffith with identify body parts, having the child terminology sexual The child did use she to refer to her mother’s state- began However, five-year-old. expected of a actions, as, “mom says ments and such videotape on the clearly what is evident sexy.” child on occasions at- several activity was not that such child’s belief tempted to demonstrate sexual acts to occasions, re- many she On abnormаl. Griffith. After the child mentioned her graphi- allow her quested that Griffith mom, asked, your sexual some cally Griffith “What acts. On demonstrate occasions, child in fact demonstrat- replied, “nasty mom do?” and child clearly Griffith ed such acts. She showed again The child then tried dem- stuff.” position in to Edwards relationship onstrate. activity. terminology, Her sexual interview, Throughout the child was importantly, her demonstration more very At all expressive and talkative. oc- in which sexual acts way times, only person who she stated curred, knowledge which a far exceed “nasty did stuff” and “tоuches me” was her five-year-old normally possess. would instances, many mom. volun- than request- teered more information D. Lack of Motive to Fabricate ed questions. in the The statements made in this The defendant case is the child’s interview are not inconsistent with mother. is no in the tes- There indication the outcry those made to witness and any animosity timony that the child feels nurse. We find statement exhibited a mention dur- toward her mother. She did high degree spontaneity and was consis- ing the did not like she tent other statements made. ab- family. another member of the аny
sence of motivation for the child to story as moth- fabricate such a to her own B.Mental State of Declarant truth- er that such statement was indicates *7 Griffith, In the interview with the child ful. school, teacher, her identified and the lived, persons
names of all whom she with Giving Age-Appropriate E. The of an including dog, her On the Rascal. video- Oath
tape, the demeanor of the child was that inquiring concerning Before of the child expected five-year-old. of a moved She involved, clearly ex- any Griffith issue up room on around the and stood severаl they “truth plained the child were in the occasions, and would indicated she rather it room.” to the child was explained She Overall, play nearby toys. ap- she only really hap- important to tell what peared relaxed and with the cooperative, asked the if she pened and then child knew normally usual movement that ac- would what if she should he. The child happened a child of It was company age. her obvi- get “whooping” (whip- you answered that many ous references the child from if he. ping) you clearly tell a Griffith gravity did not she understand brought child’s the need to to the attention she conduct described. interview interview, and the child be honest in the five-year-old reveals the candor the conse- acknowledged she understood acts, explaining compre- sexual without This the relia- quences lying. supports bility activity. of such of her statement. hending seriousness F. Presence of the Defendant J. Submission Interrogato- of Written
Interview ries September On the State filed a no- instance, In this the defendant is the tice of intention to use the videotaped mother. The defendant was not present began statement. Voir dire 22. October agree the interview. While we Defense counsel stated at voir dire she absence of the defendant is a serious factor would interrogatories submit written to be considered, to be weighed must be videotaped and submitted to the along against all other indicia of reliability of statement, with the but later decided not such statement when viewed the totality interrogatories to do so. No were submit- of the circumstances. ted. Relationship G. of the Declarant to the K. Manner in which the Interview was
Interviewer Conducted The record not indicate the child appeared be conducted any prior had relationship with Griffith. professional began in a manner. Griffith From all appearances on the videotape, by asking simple questions, such they strangers were before this interview. school, as where went to who was her she It does appear not the child had rea- any teacher, family dog. the names of her try son to to “please” Griffith. The ab- The child As placed seemed to be at ease. sence of such a relationship lеnds addition- discussed, we have ad- properly Griffith al credibility to the child’s statement. necessity of tell- monished the focus,
ing the truth. As the child lost they Griffith would remind the child need- Length H. of Time First Between Out- talk, ed she to continue their would cry Making a Statement again reasonably become attentive. The The outcry witness testified the initial demeanor child indi- and behavior of the contact occurred January 2001. It active, cated she was an talkative five- appears con- interview was year-old. continually told the Griffith ducted day. Griffith that same This get child that she said whatever would virtually would indicate that opportuni- no her in the child on though trouble. Even ty could exist for the child to refine several occasions indicated she wanted story or to have extensive contacts Griffith, demonstrate sexual acts with Grif- might affect the nature of that Ac- story. only fith reminded the child she needed cordingly, this weighs favor of admis- *8 explain such acts. The entire interview sion. approximately forty-five lasted minutes. interview, At the conclusion of the Griffith Quality Tape I. The the of left the child in the room for a few alone videotape operating. minutes while the videotape clearly both shows Grif- The child drew on the blackboard and fith and during the child at all times the appeared at ease. Furthermore, interview. portion the audio above, videotape the is clear. The can For analyzed voices the reasons we have that, be readily. totality heard and identified The activ- on the we conclude based ity circumstances, of the fully particular child the is the in the and documented. The is of videotape high “particularized factors to cоnsider for a quality. trustworthiness,” guarantee of the child’s
ns
Now,
Q.
[Objections.]-
sufficiently
allow
factors?
type
reliable to
statement
asking you
not
wheth-
admissibility
you understand I’m
of this
without
videotape
the
asking
I’m
are
telling the truth.
er she’s
of the Confrontation Clause.
violation
that indi-
that
see there
you
there factors
sup-
the factors
we find that
Specifically,
to
you
some truthfulness
cate to
there’s
of the
porting
reliability
the
statement
The answer consisted
saying.”
what she’s
outweigh
that do not. We
clearly
those
gestures
McCarty’s explanation
constitutional error has
therefore conclude
tape,
child on the
by the
demonstrations
shown.
not been
trying
encour-
unusual behavior
to
Testimony
Expert
III.
Witness
in a
with her
age
participate
Griffith
demonstration,
clear-
of her actions
sexual
trial court erred in
Edwards asserts the
a
ly
demonstrating describing admitting expert testimony
Wagoner
Ed
to her and of know-
happened
couch what
com-
McCarty.
and Loretta
Edwards
good.
ing it felt
plains
testimony
an im-
such
constituted
as to the truthfulness and
proper opinion
may
testify
expert
An
witness
not
veracity of the child.
truthful,
exрert
but an
that witness is
symp
may testify
Protective
that the
exhibits
Wagoner,
Ed
a former Child
worker,
sexual abuse. Cohn
toms consistent with
was asked:
Services
(Tex.Crim.
State,
819
S.W.2d
Q.
you
After
an outcry
received
may
“cross
not
App.1993).
witness
abuse,
you
sexual
what factors did
look
directly
testify
line” and
as to
the'
you
at to determine —what factors would
truthfulness,
con
victim’s
as
does not
telling
look at to determine if a child was
subject
on which
testi
matter
cern
the truth?
expert
of an
assist the
mony
witness could
answering
question,
the witness
trier of fact. Yount
age,
stated
the factors werе
level
(Tex.Crim.App.1993).
of development,
typical-
a child would
what
ly
sexuality at
point
know about
admissible,
To
testi
expert
be
time, appropriate
knowledge, oppor-
sexual
of fact.
mony must “assist”
trier
tunity, and access to the defendant.
702; Duckett v.
Tex.R. Evid.
(Tex.Crim.App.1990).
Ex
S.W.2d
Thereafter,
asked,
“How
Wagoner
testimony
of fact
pert
assists
trier
you
does
saw on
[the victim]—what
“the
jury
qualified
is not
best
when
tape, how does that —how does her testi-
possible degree”
intelligently
to determine
mony
tape
fit into what those fac-
help
issue without
partiсular
tors are?” The witness then answered
Duckett, 797
at 914.
testimony.
great
exhibited
deal
But,
testimony
aid—not
expert
must
knowledge
activity
about sexual
and that
Expert
decision. Id.
supplant
jury’s
—the
to identify inappropriate
she was able
sex-
if it
testimony
assist the
nasty.
it as
activity
being
ual
describe
truth
opinion
“a
on the
constitutes
direct
pointed
also
she
Wagoner
out
was able
allega
complainant’s
a child
fulness” of
detail what had happened
describe
*9
Yount,
was
the truth.”
describing
After
pet.
(finding
Christi
emergency
truthfulness,
the factors for
the witness
testify
room nurse could
as to victim’s
asked,
was
“How does
...
803(4)
[the victim] fit
statement under Rule
though
even
into what those factors are?” The witness
evidence).
collecting
nurse was also
then testified she exhibited such factors.
challenges
Edwards
this evidencе on the
McCarty likewise
objection
testified over
right
basis that it violates her
of confronta
as to factors that indicated to her the child
tion under the
Amendment
Sixth
to the
exhibited some indicia of
truthfulness
United States Constitution. She cites Lo
the interview.
State,
pez v.
(Tex.Crim.App.
18
220
S.W.3d
The witnesses here were asked to com- 2000),
proposition
for the
that the Confron
ment
directly
factors to
if
determine
tation
if
prevail
Clause will
there is a
telling
child was
the truth. These
conflict
the Rules of
between
Evi
observations, such
age,
as
level of develop-
Loрez,
dence.
In
the defendant was at
ment, sexual knowledge, opportunity, and tempting to
that the vic
present evidence
access, may all be judged and determined
tim had previously made false accusations
by
jury
without
help
of an expert.
against
sexual assault
other individuals.
We find that
testimony regarding
608(b)
objected
State
under Rule
the factors
for truthfulness observed
The issue
Texas Rules of Evidence.
the experts directly comment as to the was whether the
Clause de
Confrontation
such,
truthfulness of the child. As
it does
complain
manded that the еvidence of the
not assist
and is inadmissible.
prior
allegations
ant’s
abuse
false
Tex.R. Evid. 702.
against
person
than the defendant
other
608(b)’s
despite
pro
Rule
admissible
History Testimony
IV. Medical
scription
in
against admitting specific
urges
Edwards further
stances of conduct.
Id. at 222-23. The
trial court erred
allowing
testimony
Appeals
Texas Court of
stated
Criminal
Lawson,
of Geri
the sexual assault nurse
that “the Confrontation
occasional
Clause
examiner, concerning statements the child ly may
admissibility
of evi
require
made to her
a medical examination. dence that
of Evidence would
the Rules
The evidence
exclude.”
final
shows the child was taken
Id. at 225. The
conclusion
to the nurse for a
medical examination at
court was
such evidence
803(4)
hospital.
Rule
of the Texas
inadmissible and the Confrontation Clause
provides
admissibility.
Rules of Evidence
did not
Id. at
exception
an
mandate its
hearsay
rule
“statements made for
226.
purposes
diagnosis
of medical
or treatment
arguing
for the
Edwards is
describing
medical history,
past
or
or
exclusion of evidence rather than its ad-
present
sensations,
symptoms, pain, or
or
missibility,
Lopez.
as in
inception
general
character of the
discussed,
cause or external source thereof insofar as
all
previously
As we have
reasonably pertinent to diagnosis
prohibited by
or treat-
out-of-court
are
statements
803(4);
ment.” Tex.R. Evid.
Wright,
Mendoza
the Confrontation
Clause.
State,
628,
805,
3139,
S.W.3d
633 (Tex.App.-Cor U.S.
110 S.Ct.
H7
pro
opinion
the
before
Craig
treat-
diagnosis or
benefit
purposes
for
of medical
at 51.
Hightower, 822 S.W.2d
White,
at
ceeded.
firmly
ment is
rooted.
502 U.S.
Therefore,
the Texas Court
Criminal
736;
v.
n.
112 S.Ct.
United States
356
and
appeal
the
authorized
Appeals abated
(8th Cir.2000).
Sumner,
sis witness court had conduct- Driggers, In the trial ny. hearing and made a evidentiary an ed from This is also different determination. Hightower The State cites the cases of where no evidence present (Tex.Crim.App. v. 48 no hearing court and presented 1991), Driggers Here, nothing is there conducted. refd), (Tex.App.-Texarkana pet. trial which to base determination support of its motion to remand to the that the was unavailable. court for trial cоurt on the issue of hearing unavailability complainant of the child it is appropriate we do not believe As testify. it is abate this appeal, this late date to analysis a harm unnecessary conduct Hightower, the issue was whether testimony. concerning expert complied trial court had the constitu inadmissible portions of specified the have Craig, requirements Maryland tional testimony expert witnesses 3157, 111 L.Ed.2d S.Ct. any proceedings. further assist (1990), court evi requiring a to hear de- rehearing The State’s motion to autho specific findings dence and make nied. testimony by rize closed-circuit television Ap The Texas Court Criminal
child. com stated trial court had not
peals also requirements, but
plied with these have the
noted the trial court did not