COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-399-CR
STEVEN RAY GAITAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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OPINION
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I. INTRODUCTION
Appellant Steven Ray Gaitan appeals his conviction for two counts of
murder. In two points, Gaitan argues that his Confrontation Clause
constitutional rights were violated when the trial court allowed a child witness
to testify by closed-circuit television. For the reasons set forth below, we hold
that the trial court did not err by permitting the child witness to testify by
closed-circuit television and, alternatively, we hold that any error was harmless.
Accordingly, we affirm the trial court’s judgment.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
On October 5, 2004, at about 10:30 p.m., X.P., who was eight years
old, and his brother C.P., who was two or three years old, drove with their
mother, Stella P., to the home of a family friend. As Stella P. and her sons
arrived at the residence, Gaitan and a passenger, Manuel Garza Gonzales,
simultaneously pulled up in front of the residence. Gaitan, Stella P., and her
sons all exited the vehicles. The boys went to the front yard of the residence
while Stella P. and Gaitan talked. A confrontation occurred between Stella P.
and Gaitan, and Gaitan shot Stella P.; she fell into the street, bleeding. Gaitan
tried to place Stella P. into the backseat of her vehicle, but when he was
unsuccessful, he simply drove away. Stella P. was left lying in the street where
she died.
During the trial, the jury heard testimony via closed-circuit television from
X.P. and live testimony from Gonzales, along with others. At the conclusion
of the evidence, the jury convicted Gaitan for the murder of Stella P., and the
trial court sentenced Gaitan to life imprisonment and assessed a $10,000 fine.
This appeal followed.
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III. R IGHT TO C ONFRONT W ITNESSES
In his first point, Gaitan argues that the trial court erred by permitting
X.P., a child witness, to testify by closed-circuit television.1 Gaitan contends
that the State failed to prove the necessity for this procedure and that,
consequently, he was improperly denied his right to face-to-face confrontation
of the child witness against him. In his second point, Gaitan contends that
Texas Code of Criminal Procedure article 38.071, section 3—the statute
authorizing a child to testify by closed-circuit television—is unconstitutional as
applied to him in this case because the State failed to prove an interest in
protecting X.P. from Gaitan’s presence. 2 These points are interrelated, so we
discuss them together below.
1
… It appears from the record before us that during X.P.’s testimony,
X.P., the attorneys and the judge went to an adjoining room and that X.P.’s live
testimony was broadcast from the adjoining room to the courtroom and was
viewed by Gaitan and the jury on a screen in the courtroom. During X.P.’s
testimony, the trial court repeatedly told Gaitan’s counsel that he could request
a break at any time to confer with his client.
2
… Gaitan properly raised his as-applied constitutional challenge in the trial
court. Accord Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995);
Barnett v. State, 201 S.W.3d 231, 232-33 (Tex. App.—Fort Worth 2006, no
pet.) (both recognizing that as-applied constitutional challenge is waived if it is
not raised in the trial court).
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A. The Law
The Texas Code of Criminal Procedure authorizes a trial court to order
that the testimony of a child younger than thirteen years of age be taken in a
room other than the courtroom and be televised by closed-circuit equipment in
the courtroom to be viewed by the court and the finder of fact if the trial court
determines that the child would be unavailable to testify in the presence of the
defendant about an offense, including murder. T EX. C ODE C RIM. P ROC. A NN. art.
38.071, §§ 1(1), 3(a) (Vernon Supp. 2007); see also Barnes v. State, 165
S.W.3d 75, 84-85 (Tex. App.—Austin 2005, no pet.). In making a
determination of unavailability, the trial court shall consider relevant factors,
including the relationship of the defendant to the child; the character and
duration of the alleged offense; the age, maturity, and emotional stability of the
child; the time elapsed since the alleged offense; and whether the child is more
likely than not to be unavailable to testify because of emotional or physical
causes, including confrontation with the defendant, or the child would suffer
undue psychological or physical harm through his involvement at the hearing or
proceeding. T EX. C ODE C RIM. P ROC. A NN. art. 38.071, § 8(a)(1)-(2).
Because this statute operates to deprive a defendant of face-to-face
confrontation, the trial court must hear evidence and make a case-specific
determination: (1) that the use of the statutory procedure utilized is necessary
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to protect the welfare of the particular child witness who seeks to testify; (2)
that the child witness would be traumatized, not by the courtroom generally,
but by the presence of the defendant; and (3) that the emotional distress
suffered by the child witness in the presence of the defendant is “more than de
minimis, i.e., more than mere nervousness or excitement or some reluctance to
testify.” Hightower v. State, 822 S.W.2d 48, 51 (Tex. Crim. App. 1991);
Gonzales v. State, 818 S.W.2d 756, 762 (Tex. Crim. App. 1991). These
findings are not required by the statute but are constitutionally required. See
also Maryland v. Craig, 497 U.S. 836, 855-56, 110 S. Ct. 3157, 3169 (1990);
Hightower, 822 S.W.2d at 51. If the trial court makes these findings, then the
Confrontation Clause does not prohibit the use of a procedure that, despite the
absence of face-to-face confrontation, ensures the reliability of the evidence by
subjecting it to rigorous cross-examination. Gonzales, 818 S.W.2d at 762.
B. The Facts
The trial court conducted a pretrial hearing on “The State’s Motion to
Have Testimony of Child Witness Taken Outside the Courtroom.” At the
hearing, the trial court heard testimony from Wichita Falls police officer Betty
King and heard expert testimony from Walter Swinhoe, a licensed counselor and
therapist.
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Officer King testified that she talked to X.P. at the scene of his mother’s
murder. Officer King said that X.P. had witnessed “a particularly violent
offense” and that he was in shock when she spoke to him. X.P. was
concerned about his mother and kept asking Officer King when he would get
to see her. Officer King said that both X.P. and C.P. were worried about what
was wrong with their mother because they had observed her “laying at the end
of the driveway there on the ground and they weren’t really sure what was
wrong with her.”
Walter Swinhoe testified that he was the director of the Taft Counseling
Center. Swinhoe testified that X.P.’s grandmother had arranged for X.P. to
receive counseling from him because X.P. was experiencing negative reactions
from his mother’s death, including nightmares, and needed help in grieving for
his mother. Swinhoe counseled X.P. on April 26, 2006; May 2, 2006; and May
9, 2006. Swinhoe testified that X.P. showed increased “arousal signs,”
increased agitation, and signs of post-traumatic stress disorder (PTSD). 3 X.P.
was very guarded and avoided talking about the incident, other than to say that
he had heard a firecracker and saw something at the scene. Swinhoe said that
3
… Swinhoe testified that he was not able to trace the trauma creating
the PTSD to this incident and that before this incident occurred, X.P. started
out with a difficult lifestyle that involved frequently moving.
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X.P.’s avoidance of talking about the incident is “one of the greatest signs of
trauma.” Swinhoe testified that he asked X.P.’s grandmother to stop talking
about the incident because X.P. would cover his face, get visibly agitated, and
show some aggravation or anger when his grandmother would bring up
“momma or the incident.”
When asked whether it would be harmful to X.P.’s welfare to have him
testify while in the same room with Gaitan, Swinhoe testified:
I believe that if the perpetrator was in this room and due to the
signs and symptoms, it would definitely exacerbate the signs and
symptoms that are already present and create more night terrors,
more of the internal conflict. He might not show it, but it would
definitely exacerbate it.
Swinhoe explained that X.P.’s distress from testifying in Gaitan’s presence
would be much more severe than just nervousness, excitement, or reluctance
to testify and that it might even create a secondary trauma. 4 Swinhoe testified
that if the trial court required X.P. to testify in Gaitan’s presence, X.P. would
suffer undue psychological harm and that his emotional stability could be
harmed.
4
… Swinhoe explained that the secondary trauma that might result from
X.P.’s having to testify in Gaitan’s presence “might be worse or more difficult
to process than even the first trauma, because it’s almost like survivor’s guilt.
And . . . when he comes up with his own fears in reality, it would be worse
than the reality itself.” Swinhoe also stated that “the event that create[s] that
[anxiety and agitation] would create a lot more distress in a courtroom.”
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Swinhoe said that the primary risk of trauma for X.P. in the courtroom
setting would be confrontation with the perpetrator of the offense and that if
confrontation with the perpetrator could be avoided, that would prevent undue
harm to X.P. Swinhoe explained that for X.P., it would be particularly traumatic
to be put in a room with Gaitan and a lot of people and ask X.P. to go through
the events of October 5, 2004, because X.P. would develop a new fear based
on Gaitan’s presence and the fear of getting in trouble for telling the people
who are present about what Gaitan did. Swinhoe based this conclusion on
X.P.’s request, expressed during counseling, to find a safe place where no one
could hear him or see him cry when he talked about his mother.
At the conclusion of the hearing, the trial court ruled:
Well, having heard the testimony given, I’ve taken into
account all of the factors, including the relationship of the
Defendant to the child, the character and duration of the alleged
offense and the age, maturity and emotional stability of the child
and the time elapsed and I come to the inescapable conclusion that
significant trauma would be had should [X.P.] be required to testify
in the same room with the presence of the Defendant in this
matter.
So I order that the testimony be taken by closed-circuit
television. We will certainly give Mr. Gaitan every opportunity to
confer with his attorney and Mr. Rasmussen will be able to take a
break at any time he wishes to do so to confer with his client on
that matter.
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The trial court also signed an order granting the State’s motion. The
order states, in part:
[T]he court finds that the child witness in this cause is unavailable
to testify because he would suffer undue psychological and
physical harm through his involvement at trial. The procedure
provided for the child victim’s testimony to be taken in article
38.071, section 3 of the Texas Code of Criminal Procedure is
necessary to protect his welfare. Moreover, the Court notes that
the child would be traumatized by the presence of the defendant in
the courtroom, and that his level of emotional distress would be
more than de minimis.
C. Application of the Law to the Facts
The State’s evidence, outlined above, satisfies the statutory and
constitutional requirements needed to authorize the use of closed-circuit
television for the presentation of X.P.’s testimony. The evidence establishes
that X.P. is “unavailable” to testify under the statutory definition
because—considering the relevant factors—he would suffer undue
psychological or physical harm through his involvement at the trial. See T EX.
C ODE C RIM. P ROC. A NN. art. 38.071, § 8(a)(2). And the evidence likewise
illustrates that the trial court made a case-specific determination that the use
of closed-circuit television to present X.P.’s testimony was necessary to protect
X.P.’s welfare, that X.P. would be traumatized by being forced to testify in
Gaitan’s presence, and that the emotional distress that X.P. would suffer if
forced to testify in Gaitan’s presence would be more than de minimis and more
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than mere nervousness, excitement, or some reluctance to testify. See, e.g.,
Hightower, 822 S.W.2d at 51; Gonzales, 818 S.W.2d at 762. Thus, we hold
that the State met its burden and that the trial court’s decision—especially
considering that X.P.’s testimony was presented live via closed-circuit television
and that Gaitan had the opportunity to and did cross-examine X.P. at trial—did
not violate Gaitan’s Confrontation Clause rights. See Gonzales, 818 S.W.2d
at 762 (discussing Maryland v. Craig); Francis v. State, No. 07-05-00293-CR,
2007 WL 1490461, at *2 (Tex. App.—Amarillo May 22, 2007, no pet.) (mem.
op.) (not designated for publication). We further hold that, because the State
met its burden to present sufficient evidence of the requisite statutory and
constitutional factors, Gaitan’s as-applied constitutional challenge fails; article
38.071, section 3 did not operate unconstitutionally as applied to Gaitan in this
case.
D. No Harm in Any Event
Moreover, even assuming that the trial court erred by allowing X.P. to
testify by closed-circuit television, X.P.’s testimony was such that it would not
have affected the jury’s deliberations or verdict. T EX. R. A PP. P. 44.2(a); Wall
v. State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006) (explaining that “[i]f an
appellate court rules that a constitutional error in the admission of evidence is
harmless, it is, in essence, asserting that the nature of that evidence is such
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that it could not have affected the jury’s deliberations or verdict”); see also
Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).
Gaitan himself testified at the guilt-innocence phase of his trial that he
shot Stella P., albeit accidentally. And Gonzales’s testimony mirrored X.P.’s
testimony. Gonzales testified that he heard a gunshot but did not see Gaitan
shoot Stella P. Gonzales testified that he observed Gaitan trying to place Stella
P. into the car and that he saw Gaitan drive away, leaving Stella P. lying in the
street. Thus, after carefully reviewing the record and performing the
appropriate harm analysis, even if the trial court erred by permitting X.P. to
testify via closed-circuit television, we hold that beyond a reasonable doubt the
trial court’s error did not contribute to Gaitan’s conviction or punishment
because other evidence admitted during the trial showed that Gaitan shot and
murdered Stella P. See T EX. R. A PP. P. 44.2(a); see Davis v. State, 203 S.W.3d
845, 853-56 (Tex. Crim. App. 2006) (holding that Crawford error—admitting
victim’s testimonial statements to officer that supported deadly weapon
finding—was harmless beyond a reasonable doubt because other evidence at
trial showed that appellant attempted to strangle victim with rope), cert. denied,
127 S. Ct. 2037 (2007); Wall, 184 S.W.3d at 745-46 (holding that error in
admitting statement made by victim at hospital was not harmful because the
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other witnesses who testified at trial overwhelmingly established appellant’s
guilt, even disregarding the erroneously admitted evidence).
We overrule Gaitan’s first and second points.
IV. C ONCLUSION
Having overruled both of Gaitan’s points, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL A: CAYCE, C.J.; HOLMAN and WALKER, JJ.
PUBLISH
DELIVERED: March 20, 2008
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