# Long v. State

> Court of Criminal Appeals of Texas · July 1, 1987 · 742 S.W.2d 302

URL: https://www.frixlaw.com/law-library/cases/9644878

## Case

- **Full name:** James Edward LONG, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 1, 1987
- **Citations:** 742 S.W.2d 302; 1987 Tex. Crim. App. LEXIS 627; 1987 WL 460
- **Precedential status:** Published
- **Opinion:** Concurring in part by Campbell
- **Judges:** Duncan, Teague, McCormick, Campbell, Davis, White
- **Cited by:** 152 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Briggs v. State, 1990 Tex. Crim. App. LEXIS 82 (1990).
- Negative treatments: 1
- Distinguished by: 3
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9644878

## How later opinions describe it (automated extraction)

- holding unconstitutional the then-applicable Texas videotape statute, upon which the Illinois statute was patterned, on similar grounds

## Opinion text

CAMPBELL, Judge,
concurring and dissenting.
While I agree with the majority’s ultimate disposition of this case, I do not believe that appellant was denied cross-examination as guaranteed by the Federal and State Constitutions. Clearly, in this fact situation, appellant was afforded an opportunity to question the victim and did, in fact, question the victim. In the view of the position taken by the majority in Part VII, however, I concur in the judgment of the Court.
Art. 38.071, § 2, V.A.C.C.P., violates the Due Process and Due Course of Law clauses of the Federal and State Constitutions when examined facially. The failure of the statute to specify when and by whom the child will be called for further testimony forces the accused to take the initiative in calling as a defense witness, a person whose testimony is likely to be adverse to his defense, thereby creating a Hobson’s choice. This forces the accused to, in effect, choose between his constitutional rights — the right to confrontation versus the right not to call witnesses or testify in his own behalf.
The Supreme Court has consistently emphasized that the confrontation clause is designed to permit the defendant to cross-examine the witnesses against him. To say that a defendant has a right to cross-examine witnesses implies that the State must endeavor to elicit its evidence in the form of direct testimony before resorting to out-of-court, videotaped statements, i.e., it should be the State’s duty to examine them in the form of direct examination.
This broader notion of confrontation is not only consistent with Supreme Court caselaw but also serves an important procedural purpose mentioned previously.
Certainly, it is beyond question that the duty is upon the State to prove each element of the charged offense beyond a reasonable doubt, and it is beyond question that an accused enjoys the presumption of innocence. But Art. 38.071, supra, simply commands the presence of the victim, leaving to the accused the joyous opportunity of calling the victim to the stand, thereby thwarting the public policy behind the statute, and almost guaranteeing his [the accused’s] own conviction in the process.
While critics may say that a right to remain passive is not a constitutional right at all, it seems to this writer that such a doctrine is firmly imbedded in the Fifth Amendment right that “no person shall be compelled in any criminal case to be a witness against himself ...” U.S. Constitution, Amend. V and in the right of the *330 accused to “not be compelled to give evidence against himself, ...” Texas Const., Art. I, Sec. 10.
With these observations, I join the judgment of the Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9644878. Public record. Not legal advice.