Petition for Writ of Certiorari — Texas v. Modgling

87-1565

No.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1987

THE STATE OF TEXAS,

Petitioner,

Vv.

OTIS LEN MODGLING,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

TEXAS COURT OF CRIMINAL APPEALS

JIM MATTOX MICHAEL P. HODGE

Attorney General of Texas Assistant Attorney General

Chief, Enforcement Division

MARY F. KELLER CHARLES A. PALMER*

First Assistant Assistant Attorney General

Attorney General

LOU McCREARY P.O. Box 12548, Capitol Station

Executive Assistant Austin, Texas 78711

Attorney General (512) 463-2080

* Counsel of Record

i-

When the child victim in a sexual abuse case

testifies at trial as part of the state’s case-in-chief and

is iuliy cross-examined, does the introduction of an

extrajudicial, videotaped statement of the child violate

the defendant’s right of confrontation?

en eT ET ae

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TABLE OF CONTENTS

Page

QUESTION PRESENTED... oSiwgsecacecteses i

TABLE OF AUTHORITIES... ..cccceceesce bs iv

OPINION BLAIW oc. 4 eee eee 1

JURISDICTION si «ss oe 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.................. 2

STATEMENT OF THE CASE................. 3 |

A. Course of Proceedings and Disposition Below . . 3 |

B. Statement of Peete . oss. aah ee Sa 3

SUMMARY OF THE ARGUMENT............. 6 |

REASONS FOR GRANTING THE WRIT......... 6 |

I. THE DECISION OF THE COURT BE-

LOW IS IN CONFLICT WITH THIS

COURT'S DECISIONS IN KENTUCKY

V. STINCER. 482 U.S. __, 107 S.CT.

2658 (1987), AND CALIFORNIA V.

GREEN, 399 U.S. 149 (1970)... ........ 6

-ili-

II. THE DECISION OF THE COURT BE-

LOW IS CONFLICT WITH DECISIONS

OF THE SUPREME COURT OF

ARKANSAS AND THE SUPREME

gg ee eee 8

il. THE COURT BELOW INCORRECTLY

DECIDED AN IMPORTANT ISSUE OF

FEDERAL CONSTITUTIONAL LAW... . .9

hela pee eee ences ec eeesseed 9

em

-iv-

TABLE OF AUTHORITIES

Cases Page

Barber v. Page, 390 U.S. 719 (1968). ............ 9

Burks v. United States, 437 U.S. 1 (1978). ........ 8

California v. Green, 399 U.S. 149 (1970)....... 6,7,8

Cogburn v. State, 732 S.W.2d 807 (Ark. 1987)...... 8

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

Pep ge Re ee ee ee ere eee eee 9

Fuller v. Oregon, 417 U.S. 40 (1974). ........... 9

Hudson v. Louisiana, 450 U.S. 40 (1981)......... 8

Jones v. State, 445 N.E.2d 98 (Ind. 1983)......... 8

Kantucky v. Stincer, 482 U.S. ___, 107 S.Ct. 2658

Reatard bats 2 de eee kee eS > 6,7,8,9

Long v. State, __ S.W.2d __, No. 867-85 (Tex.

Crim. App. July 1, 1987), cert. pending sub nom.

State of Texas v. Long, No. 87-1032........... 4

Oregon v. Kennedy, 456 U.S. 667 (1982).......... 8

Oregon v. Mathiason, 429 U.S. 492 (1977). ........ 8

-V-

Constitutions, Statutes and Rules

U.S. Const.,‘amend. VI 2,6

“te oe et ee os es a De ie ee ee oe oe oe oo oe oe A

SS See SOE 83-6625 0 62d a ed oe eee 2

Tex Code Crim. Proc. Ann. art. 38.071§ 2(Vernon

Supp. 1987), amended, Acts 1987, 70th Leg., 2nd

C.S., ch.55, §1, eff. October 20,1987.......... 2

Tex. Penal Code Ann. §22.021(a)(5)............ 3

No.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1987

THE STATE OF TEXAS,

Petitioner,

Vv.

OTIS LEN MODGLING,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

TEXAS COURT OF CRIMINAL APPEALS

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

NOW COMES the State of Texas, Petitioner!

herein, by and through its attorney, the Attorney

General of Texas, and files this Petition for Writ of

Certiorari.

OPINION BELOW

The opinion of the Texas Court of .Criminal

Appeals was delivered on January 27, 1988, and is

attached hereto as Appendix A. Modgling v. State,

__S.W.2d ___, No. 0468-86 (Tex. Crim. App. 1988).

1For clarity, the Petitioner is referred to as “the state,” and

the Respondent as “Modgling.”

ie maaan ails |

2

JURISDICTION

The state invokes the jurisdiction of this Court

pursuant to 28 U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The court below found that a state statute, Tex.

Code Crim. Proc. Ann. art. 38.071 §2, (Vernon Supp.

1987), as applied to Modgling, violated the right of

confrontation embodied in the sixth amendment to the

United States Constitution. The state statute was

amended by Acts 1987, 70th Leg., 2nd C.S., ch.55,§1,

effective October 20, 1987. The statute in effect at the

time of Modgling’s trial provided as follows:

§2 (a) The recording of an oral

statement of the child made before the

proceeding begins is admissible into

evidence if:

(1) no attorney for either party was

present when the statement was made;

(2) the recording is both visual and

aural and is recorded on film or videotape

or by other electronic means;

(3) the recording equipment was

capable of making an accurate recording,

the operator of the equipment was

competent, and the recording is accurate

and has not been altered;

44) the statement was not made in

response to questioning calculated to lead

the child to make a particular statement;

(5) every voice on the recording is

identified;

(6) the person conducting the inter-

view of the child in the recording is pre-

sent’ at the proceeding and available to

testify or be cross-examined by either

party;

(7) the defendant or the attorney for

the defendant is afforded an opportunity

to view the recording before it is offered

into evidence; and

(8) the child is available to testify.

(b) If the electronic recording of the

oral statement of a child is admitted into

evidence under this section, either party

may call the child to testify, and the

opposing party may cross-examine the

child.

STATEMENT OF THE CASE

A. Course of Proceedings and Dispo-

sition Below

The state has lawful and valid custody of

Modgling pursuant to a judgment and sentence of the

35th District Court of Brown County, Texas, in Cause

No. 10-245, styled The State of Texas v. Otis Len

Modgling. Modgling was charged with the felony

offense of aggravated sexual abuse of a child pursuant

to Tex. Penal Code Ann. §22.021(a)(5). Modgling pled ©

not guilty and was tried by a jury, which, on March 29,

1985, found him guilty of the offense charged.

Following a separate punishment hearing, the jury

assessed punishment of imprisonment for six years.

Modgling appealed to the Eleventh Court of

Appeals of Texas, which affirmed the conviction on

February 20, 1986. Modgling v. State, No. 11-85-

00117-CR. On March 20, 1986, the court of appeals

overruled Modgling’s motion for rehearing. Modgling

then filed a petition for discretionary review by the

Texas Court of Criminal Appeals. That court granted

the petition and, in an opinion delivered on January 27,

1988, reversed the conviction on the ground that the

admission of an extrajudicial, videotaped statement of

the child victim denied Modgling his right of

confrontation.2

B. Statement of Facts

The complaining witness against Modgling was

his seven year-old stepdaughter, Savannah Angeline

Motley. After Savannah told her mother, Sarah

Modgling, that she had been sexually abused by

Modgling, the child was interviewed by a social worker

for the Texas Department of Human Services, Sharon

Kay Oliver (SF IV 14, 16-17).3 The only other person

2The court below reversed Modgling’s conviction on the

basis of Long v. State, __. S.W.2d ___, No. 867-85 (Tex. Crim.

App. July 1, 1987), cert. pending sub nom. State of Texas v. Long,

No. 87-1032. There are two differences between this case and

Long. In Long, the Texas court ruled on the basis of the state and

federal rights of confrontation as well as the federal Due Process

Clause and the state Due Course of Law provision; here, by

contrast, the court below relied solely on the federal Confrontation

Clause. Thus, there can be no question in this case as to whether

the court’s decision might rest on an adequate, independent state

ground. Also, in Long, the child victim did not testify for the state

but instead was called by the defense for purposes of cross-

examination; here, the child did testify during the state’s case-in-

chief.

3"SF" refers to the statement of facts of Modgling’s trial,

the volume referenced by Roman numeral and the page by Arabic

number.

present at the interview was the child’s mother, who

helped to establish certain dates (SF IV 20). No

leading or suggestive questions were asked of the child

(SF IV 23), and the interview lasted approximately

twenty minutes (SF IV 24). A videotape was made of

the child’s statement, and defense counsel was

afforded an opportunity to view it (SF IV 26). At

defense counsel’s suggestion, the tape was edited and

re-edited so that the child’s mother did not appear on it

(SF IV 25-27). The edited tape, State’s Exhibit No. 1

(SF IV 28), was admitted at trial over objection (SF IV

39). The tape is not contained in the appellate record

in the court below, and its content is not set out in the

record.

After the videotaped statement was introduced,

the state put on several witnesses, including the child,

Savannah Motley. She first was questioned by the

court outside the presence of the jury to determine her

competency as a witness (SF IV 103-05). Savannah

then testified during the state’s case-in-chief (SF IV

123-39), following which she was cross-examined by the

defense (SF IV 140-43).

The defendant testified in his own behalf and

denied commission of the offense (SF IV 144 et seq.).

The defense then presented the testimony of seven

other witnesses, following which Modgling again took

the stand and testified further in his behalf (SF IV 244

et seq.). Because none of the witnesses for the state or

the defense had personal knowledge of the offense, the

trial was, in essence, a swearing match between

Modgling and the seven-year-old child.

SUMMARY OF THE ARGUMENT

There are special and important reasons to grant

review in this case. First, the decision of the court

below is in conflict with decisions of this Court,

including Kentucky v. Stincer, 482 U.S. __, 107 S.Ct.

2658 (1987). Second, the decision of the court below is

in conflict with decisions of other state courts of last

resort. Finally, the writ should issue because the court

below plainly misapplied federal constitutional law in

finding a violation of the Confrontation Clause.

REASONS FOR GRANTING THE WRIT

I.

THE DECISION OF THE COURT

BELOW IS IN CONFLICT WITH THIS

COURT’S DECISIONS IN KENTUCKY

V. STINCER. 482 U.S. __, 107 S.CT.

2658 (1987), AND CALIFORNIA V.

GREEN, 399 U.S. 149 (1970).

The court below found that the Texas statute, as

applied to Modgling, was unconstitutional because it

abridged his sixth amendment right to confront his

accusers. As the dissenting opinions correctly point

out, the Texas court misconstrued the federal

Confrontation Clause in finding that admission of the

out-of-court videotaped statement constituted a

constitutional violation even though the child witness

testified at trial and was fully cross-examined by the

defense.

In Kentucky v. Stincer, 482 U.S. __, 107 S.Ct.

2658 (1987), the Court considered whether the

exclusion of a defendant from a hearing held to

determine the competency of two child witnesses

violated the Confrontation Clause. In finding that it

did not, the Court emphasized that the overriding

consideration in deciding confrontation issues is

“whether excluding the defendant from the hearing

interferes with his opportunity for effective cross

examination." Jd. at __, 107 S.Ct. at 2664. See also

California v. Green, 399 U.S. 149, 159 (1970) ("[T]he

inability to cross-examine the witness at the time he

made his prior statement cannot easily be shown to be

of crucial significance as long as the defendant is

assured of full and effective cross examination at the

time of trial").

Here, it is undisputed that Modgling not only |

had the "opportunity" for effective cross-examination,

he in fact did cross-examine the child victim at trial.

Here, as in Stincer, "[t]here was no [Texas] rule of law,

nor any ruling by the trial court, that restricted

[Modgling’s] ability to cross examine the witnesses at

trial." Jd. at__, 107 S.Ct. at 2664.

While it is true that Stincer involved a pretrial

hearing on the witnesses’ competency to testify,

whereas the videotaped statement at issue here dealt

with the child’s substantive testimony, this distinction

is irrelevant to the confrontation issue:

[T]he question whether a particular

proceeding is critical to the outcome of a

trial is not the proper inquiry in deter-

mining whether the Confrontation Clause

has been violated. The appropriate ques-

tion is whether there has been any inter-

ference with the defendant’s opportunity

for effective cross-examination.

Id. at___ n.17,107 S.Ct. at 2666 n.17.4

The decision of the court below cannot be

squared with Stincer or Green. The Court should

exercise its certiorari jurisdiction to correct the Texas

court’s misinterpretation of federal constitutional law.

See Oregon v. Kennedy, 456 U.S. 667, 668-69 (1982)

(certiorari granted because state court took an "overly

expansive view of the Double Jeopardy Clause");

Oregon v. Mathiason, 429 U.S. 492, 493 (1977)

(certiorari granted because state court “has read

Miranda too broadly"); Hudson v. Louisiana, 450 U.S.

40, 44-45 (1981) (certiorari granted because Louisiana

Supreme Court failed to recognize that "there are no

significant facts which distinguish this case from

Burks" [v. United States, 437 U.S. 1 (1978)].

II.

THE DECISION OF THE COURT BE-

L.OW IS IN CONFLICT WITH DECK

SIONS OF THE SUPREME COURT

OF ARKANSAS AND THE SUPREME

COURT OF INDIANA.

In addition to being in conflict with decisions of

this Court, the opinion of the Texas court is also in

irreconcilable conflict with the opinions of the Supreme

Court of Arkansas in Cogburn v. State, 732 S.W.2d

807, 810-11 (Ark. 1987) and the Supreme Court of

Indiana in Jones v. State, 445 N.E.2d 98, 100 (Ind.

1983). In those cases, the Arkansas and Indiana

courts considered Confrontation Clause challenges to

similar state statutes and found that, where the defen-

4Were there a due process claim before the Court, this

distinction might be of greater import. See Stincer, 482 U.S. at

__, 107 S.Ct. at 2667-68.

dant was able to cross examine the child complainant

at trial, there was no confrontation violation. Where,

as here, there is a conflict of authority among two state

courts of last resort on an important issue of federal

constitutional law, the Court should exercise its cert-

iorari jurisdiction to resolve the conflict. E.g., Dun &

Bradstreet. Inc. v. Greenmoss Builders. Inc., 472 U.S.

749, 753 n.] (1985); Fuller v. Oregon. 417 U.S. 40, 42 &

n.3 (1974).

III.

THE COURT BELOW INCORRECTLY

DECIDED AN IMPORTANT ISSUE OF

FEDERAL CONSTITUTIONAL LAW.

As discussed in Sections I and II, supra, the

decision of the court below is in conflict with decisions

of this Court and other state courts of last resort. The

fatal flaw in the opinion of the Texas court is its failure

to recognize that a defendant’s right of confrontation is

a "trial right." See Barber v. Page, 390 U.S. 719, 725

(1968), cited in Stincer, 482 U.S. at__ n.9, 107 S.Ct. at

2663 n.9. Had the court below correctly applied settled

Confrontation Clause jurisprudence, it would have

recognized that because Modgling fully cross-examined

the child victim at trial, he was not denied his federal

right of confrontation. The writ should issue to correct

an obvious misconstruction of the federal Constitution.

CONCLUSION

For these reasons, the state prays that the

petition for writ of certiorari be granted.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

a

*Counsel of Record

10

MARY F. KELLER

First Assistant

Attorney General

LOU McCREARY

Executive Assistant

Attorney General

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division

*CHARLES A. PALMER

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 463-2080

Attorneys for Petitioner

ne

APPENDIX A ~

OTIS LEN MODGLING, Petition for Discre-

Appellant tionary Review from the

Court of Appeals,

NO. 0468-86 _ v. Eleventh Supreme

Judicial District of Texas

THE STATE OF TEXAS, (BROWN COUNTY)

Appellee

OPINION ON APPELLANT’S

PETITION FOR DISCRETIONARY REVIEW

The appellant was indicted for aggravated sex-

ual abuse of a child as proscribed by §22.021(a)(5) of

the Texas Penal Code. Following a jury trial, the

appellant was convicted and assessed punishment by

the jury at six years confinement in the Texas Depart-

ment of Corrections.

On appeal to the Eleventh Court of Appeals the

appellant claimed, inter alia, and most significantly,

that the trial court’s admission of a pretrial videotaped

interview of the complainant, as authorized by Art.

38.071 §2, V.A.C.C.P., was improper because the stat-

ute is an unconstitutional deprivation of his right of

confrontation under the Sixth Amendment to the

United States Constitution, as made applicable to the

states by the Fourteenth Amendment. See‘ Pointer v.

Texas, 380 U.S. 400, 85 S.Ct. 1065, 13/L.Ed.2d 923

(1965).1 In an unpublished opinion the Court of

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1Appellant in challenging the constitutionality of Art.

38.071 §2 V.A.C.C.P, relies solely on the Sixth and Fourteenth

Amendments to the United States the Texas and at no stage of

the proceeding urged Art. I §10 of the Texas) State Constitution.

See: White v. State, 543 S.W.2d 366,369 (Tex. Cr.App. 1976).

Hence the review in this case will be restricted to those

constitutional provisions. |

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A-2

Appeals, adhering to their previous holding in

Alexander v. State, 692 S.W.2d 563 (Tex.App.--Eastland

1985, no pet.), held that §2 of Art. 38.071 V.A.C.C.P.,

was not unconstitutional in that it did not deny the

right to effective cross-examination and confrontation

of a witness as guaranteed by the due process

requirements of the Sixth and Fourteenth Amend-

ments of the United States Constitution. Modgling v.

State, _S.W.2d___ (Tex.App., No. 11-85-117-Cr).

The appellant’s Petition for Discretionary Re-

view was granted to review the Court of Appeals’ con-

clusion.

In light of our recent decision in, Long v. State,

__§.W.2d__ (Tex.Cr.App., No. 867-85, delivered July

1, 1987) we find that the Court of Appeals erred and

appellant’s conviction must be reversed.

The facts pertinent to the constitutionality of

Art. 38.071 §2, V.A.C.C.P., are virtually indistin-

guishable from those of Long, supra, with the exception

that in the instant case the child witness testified

before the jury after the introduction into evidence of

the pre-trial videotaped interview, in the state’s case-

in-chief; rather than in rebuttal.

In Long v. State, supra, this Court after an ex-

tensive analysis of the confrontation clav<e of the Sixth

Amendment to the United States Consi:. .cion as made

applicable to the states by the Fourteenth Amendment

in relation to Art. 38.071 §2V.A.C.C.P., held the

following:

Based on our previous observations and

authorities for reasons stated, we find Art.

38.071, §2, supra, is both facially and as it

was applied to the appellant an unconsti-

—

A-3

tutional deprivation of his right of

confrontation under the Sixth and Four-

teenth Amendments to the United States

constitution.2

* * *

Having determined in Long, supra, that Art.

38.071 §2, V.A.C.C.P., is facially unconstitutional un-

der the Federal Constitution the court of appeals is re-

versed and the case is remanded to the trial court for a

new trial.3

PER CURIAM

(Delivered January 27, 1988)

EN BANC

DO NOT PUBLISH

2This Court in Long, Id., also found as an independent

state ground that Art. 38.071 §2 V.A.C.C.P, was facially uncon-

stitutional under Art.1§10, of the Texas State Constitution as

it was a denial of the guaranteed right confrontation and cross-

examination. As was previously stated appellant relied entirely

on the Federal Constitution.

This Court additionally found that Art. 38.071 §2,

V.A.C.C.P., was violative of both the Due Process Clause of the

Fourteenth Amendment to the United States Constitution and the

Due Course of Law provision of Art. I §19 of the Texas State Con-

stitution as the procedure permitted by the statute in question

allowed the prosecution to in essence introduce their ca%e-in-chief

twice, “permitting the state to bolster its version of the facts and

thus unconstitutionally alter the system to the extent that both

‘the perception as well as the reality of fairness...,’ Id., are

exchanged for the advantage integral to the duplication of

evidence." This procedure was found to stray too far from the

accepted trial practice giving the prosecution a benefit at-~the

expense of fundamental fairness to the defendant.

3Appellant had five additional Grounds of Review raised in

his Petition for Discretionary Review which this Court granted

review. However, since each ground dealt with the admissibility

of the pre- —_ videotaped interview it is not necessary to reach

those issues.

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APPENDIX B

OTIS LEN MODGLING, Petition for Discre-

Appellant tionary Review from the

Court of Appeals,

NO. 0468-86 _ v. Eleventh Supreme

Judicial District of Texas

THE STATE OF TEXAS, (BROWN COUNTY)

Appellee

DISSENTING OPINION

The majority today adds fuel to the fire named

Long v. State, _ _ S.W.2d ___, (Tex.Cr.App., No.867-85,

delivered July 1, 1987) by its handling of this case. The

very issues allegedly relied upon by the Long majority

to reverse the conviction of a child abuser are now

overlooked, with no analysis regarding appellant’s

constitutional rights to confrontation and due process

of law vis a vis the facts of this particular case. Judge

Teague points out in his dissenting opinion today, the

factual distinctions between the circumstances in Long

and those in the instant case deserve proper reflection

and a decision based upon these facts alone. I

disagreed with the Long majority as to the videotape

procedure denying the appellant his right to

confrontation and due process, and even more strongly

oppose the superficial “application” of the Long decision

in this case. Here, the child complainant was not only

“available” to testify, but was called as a witness by the

prosecution and was subsequently passed to the

defense for cross-examination. There is no indication

that appellant was stifled in his ability and opportunity

to question the complainant, or in the jury’s ability to

test the credibility and demeanor of the witness.

Finally, the majority has again failed to recognize,

much less discuss, the relationship between Art.

B-2

38.071, V.A.C.C.P. and our recently promulgated and

enacted rules of evidence for criminal actions. In Rule

80(e)(1)(D) it is unambiguously stated that a videotaped

statement taken in accordance with the procedures

required by Art. 38.071, supra, is admissible in

evidence as a prior statement of the complainant,

where the child testifies and is subject to cross-

examination concerning the statement. In the instant

case, the videotaped statement patently comes within

the parameters of the Court’s own rules. I am

disturbed both by the maverick manner in which this

case is decided, and by the majority’s apparent refusal

to follow, when expedient, the policies, procedures and

rules this court has set down for application in all

criminal matters. For these reasons, I respectfully

dissent.

+

W. C. DAVIS, Judge

Delivered January 27, 1988

Do Not Publish

McCormick, J. Joins

APPENDIX C

OTIS LEN MODGLING, ___— Petition for Discre-

Appellant tionary Review from the

Court of Appeals,

NO. 0468-86 _v. Eleventh Supreme

Judicial District of Texas

THE STATE OF TEXAS, (BROWN COUNTY)

Appellee

DISSENTING OPINION

I respectfully dissent.

The majority opinion correctly points out that "in

the instant case the child witness testified before the

jury after the introduction into evidence of the pre-trial

videotaped interview, in the State’s case-in-chief; rath-

er than in rebuttal." Thus, a clear distinction between

the facts of Long v. State, _S.W.2d__ (Tex.Cr.App., No.

867-85, July 1, 1987), and this cause exists.

Given the above facts, I must ask: Given the

facts that the complainant, appellant’s accuser, test-

ified in this cause, how has appellant been denied his

federal constitutional right of cross-examination and

confrontation and his federal constitutional right to the

effective assistance of counsel? To answer this

question by merely referring the reader to an overly-

broad and unnecessary holding that was made in Long,

supra, is actually not to answer the question at all.

In dissenting to the majority opinion, however, I

do not retreat one inch from what I stated in the

concurring opinion that I filed in Long v. State, supra,

in which I agreed with the majority opinion that, as

applied to that case, Art. 38.071, Sec. 2, V.A.C.C.P.

was clearly unconstitutional, under both the federal

and state constitutions.

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The issue that should be addressed by this

Court, but which is not, is whether, given the facts of

this cause, the due process clause of the Fourteenth

Amendment and the assistance of counsel clause of the

Sixth Amendment were violated by introducing the

videotape of the child witness before she testified in

this cause. This issue unquestionably is limited to

whether any of appellant’s rights were violated by the

State "bolstering" the videotaped recording with the

testimony of the child witness. Because the majority

opinion does not address this question, I am compelled

to respectfully dissent.

TEAGUE, Judge

s:

EN BANC

DELIVERED: January 27, 1988

DO NOT PUBLISH