Long v. State

McCORMICK, Judge,

dissenting.

When the members of this Court promulgated and adopted the rules of evidence in December of 1985, to go into effect on September 1, 1986, we expressly included within the statements which are not hearsay in nature the videotape statement made by a child victim under Article 88.071, V.A. C.C.P. See Tex.R.Crim.Ev.Rule 801(e)(1)(D). Today, a majority of the Court decides that this same statute is unconstitutional both facially and in its application, without making any reference to or analyzing the statute in terms of Rule 801, supra.

The crux of the majority decision is that a criminal defendant’s federal and state constitutional rights to confrontation and due process are impermissibly infringed by a statute too broad in scope which forces a defendant co choose between calling the child and inflaming the jury or waiving cross-examination. Today’s opinion may be characterized as a dangling carrot held out to the Legislature, enticing them to attempt to fashion a more narrow procedure, affecting only certain types of cases, and not run afoul of our judicial stamp of disapproval. Given the broad brush wielded by the majority, however, it is apparent that no future statute will be allowed to survive absent a procedure which allows contemporaneous cross-examination to be made at the time the child is interviewed on tape.

I embrace the concept that the opportunity for cross-examination lies as a cornerstone of the right of confrontation and that it is the opportunity for confronting an adverse witness at trial that is the cornerstone issue. See Pennsylvania v. Ritchie, — U.S.-, 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987), and cases cited therein. I cannot agree that Article 38.071, supra, interpreted along with the Court’s own rules of evidence, violates either principles of confrontation or due process.

Confrontation in the most basic sense requires that witnesses be present at trial and that the defendant be permitted to have the opportunity to cross-examine them. See Pointer v. Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965); Mattox v. United States, 156 U.S. 237 , 5 S.Ct. 337 , 39 L.Ed. 409 (1895); Garcia v. State, 210 S.W.2d 574 (Tex.Cr.App.1948). In other words, and as the majority notes, “by requiring an accuser’s presence in court the opportunity of cross-examination is necessarily attained.” Article 38.071, Section 2, supra, satisfies this requirement by providing that the child will be available to testify. The majority responds that availability is not enough; that the hearsay nature of the videotaped statement lacks crucial “indicia of reliability.” See Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973); Nelson v. O’Neil, 402 U.S. 622 , 91 S.Ct. 1723 , 29 L.Ed.2d 222 (1971); California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970).

At first blush it does appear that the Legislature intended to create a new hearsay exception, and if used in lieu of live testimony, such is admittedly the nature of the videotaped statement. The hearsay nature of these statements in such a setting does not render them inadmissible, however, for the simple reason that the declar-ant is available to testify at trial. Where the declarant is available for purposes of cross-examination, the Supreme Court of the United States has consistently found hearsay evidence admissible, reasoning that the opportunity to cross-examine the declarant about the content of the out of court statements sufficiently tests the reliability of those statements. See Kentucky v. Stincer, 631 U.S.-, 107 S.Ct. 2658 , 96 L.Ed.2d-(1987); Chambers v. Mississippi, supra; Nelson v. O’Neil, supra; California v. Green, supra.

A much different situation exists in the instant case. The complaining witness testified, albeit after the videotape was played for the jury. Under Rule 801(e)(1), supra, the videotaped statement is not hearsay. That rule reads in pertinent part:

*331 “Rule 801.

“(e) Statements which are not hearsay. A statement is not hearsay if:

“(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (D) taken and offered in accordance with Article 38.071 of the Texas Code of Criminal Procedure, ...”

Article 38.071, supra, standing alone, requires only that the child-victim be available to testify if her hearsay statement is admitted; our rules of evidence provide for admission of the child’s prior taped statements as non-hearsay where the child actually does testify.

It would appear clear that in adopting Rule 801(e)(1)(D), supra, this Court has already seen fit to construe Article 38.071, supra, in a manner which recognizes the statute’s facial validity while requiring that certain due process requirements be met before the statute in its application will also pass constitutional muster. Thus, in the instant case, the statement was admissible as non-hearsay because the declarant testified at trial, was subject to cross-examination by defense counsel regarding the statement, and the statement was taken and offered in accordance with Article 38.-071, supra.

We, therefore, come full circle, back to the crucial issue of confrontation. The majority notes that Article 38.071, supra, requires the declarant to be made available, then remarks that the State’s argument that the confrontation requirement is satisfied vis a vis this availability appears “persuasive until one notices the collateral procedural consequences of such action” (emphasis supplied), to wit: bolstering of the unimpeached videotaped statement by use of the child’s live testimony.

Given the fact that appellant took the stand, denying the allegatiops and attempting to cast doubt on the child’s credibility, I would not hold the rebuttal testimony improper. Too, the majority has not up to this moment addressed the fact that the videotaped interview was properly admissible, as it was introduced at trial, under the auspices of our own rules of evidence.

This Court has the obligation not to act as a super-legislature, substituting our opinion for that of the second branch of government. We have, instead, the responsibility to construe statutes in a constitutional manner where possible. Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App. 1978); Broyles v. State, 552 S.W.2d 144 (Tex.Cr.App.1977). If the majority of this Court is concerned with fundamental due process concerns and with meeting its judicial responsibilities, the option of a savings construction of Article 38.071, supra, remains. It is a simple matter to require the State to call the child-declarant before playing the videotape, thus preserving what the majority views as the defendant’s right to remain passive as well as any and all far-flung rights of confrontation. Absent a savings construction, the members of the Court today ignore both the power of the Legislature to change rules of evidence and our own prior interpretation of Article 38.-071 as shown by Rule 801(e)(1), both supra. See Werner v. State, 711 S.W.2d 639 (Tex. Cr.App.1986); Gross v. State, 165 Tex.Cr. R. 463, 308 S.W.2d 54 (1958). For these reasons, I respectfully dissent.

DAVIS and WHITE, JJ., join in this dissent.