# Lively v. State

> Court of Criminal Appeals of Texas · May 20, 1998 · 968 S.W.2d 363

URL: https://www.frixlaw.com/law-library/cases/9664371

## Case

- **Full name:** Ricky Austin LIVELY, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 20, 1998
- **Citations:** 968 S.W.2d 363; 1998 Tex. Crim. App. LEXIS 65
- **Precedential status:** Published
- **Opinion:** Dissent by Meyers
- **Judges:** Mansfield, McCormick, Keller, Price, Holland, Womack, Meyers, Baird, Overstreet
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9664371

## How later opinions describe it (automated extraction)

- noting that trial court heard testimony that child Aregressed@ when in the defendant=s presence and that requiring the child victim to testify would pose a Arisk@ to the child=s recovery
- noting that trial court heard testimony that child “regressed” when in the defendant’s presence and that requiring the child victim to testify would pose a “risk” to the child’s recovery
- noting, “Nothing in [Craig] requires that a trial court make explicit, as opposed to implicit, findings regarding the necessity of a special procedure to protect a … witness.”

## Opinion text

MEYERS, Judge,
dissenting.
The majority answers the simplest question presented in this case by saying nothing different or more insightful than was said by the Court of Appeals. 1 A more interesting and difficult question might have been presented, but is dependent upon the unusual facts in this case and unreachable due to procedural default. Even the question addressed by the majority is not clearly briefed and presented and thus should not have been entertained by this Court. 2 At any rate, the majority does not resolve the issue in a legally meaningfiil manner, relying largely on the facts of this particular case rather than providing analysis of pertinent legal principles. This case ought to be held as improvidently granted.
BAIRD and OVERSTREET, JJ., join.
. The tougher question that might have been presented is whether Code of Criminal Procedure article 38.071 and Maryland v. Craig, 497 U.S. 836 , 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990), apply to a child witness who is an alleged co-defendant and principal actor. This issue is probably procedurally defaulted because it was not clearly articulated and argued in the Court of Appeals, and, even assuming it was adequately presented to that court, appellant does not complain before this Court of the Court of Appeals' failure to address it. The simpler question presented and addressed by the Court is whether Craig requires the trial court to make explicit findings.
. Before the Court of Appeals and before this Court in his petition for discretionary review, appellant argued the trial court should have made explicit findings under Craig . In his brief on his petition for discretionary review appellant argued for the first time that Craig does not apply at all.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9664371. Public record. Not legal advice.