Watts v. State

OPINION

BURGESS, Justice.

A jury convicted Walker Ray Watts, Jr., of aggravated sexual assault. The trial court assessed punishment at forty years’ confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant raises two points of error.

Point of error one states: “The appellant’s Sixth Amendment right to be confronted with the witness against him was violated.” Point of error two avers: “The appellant’s right of confrontation pursuant to Article 1, Section 10, of the Texas Constitution was violated.” In interpreting the confrontation clause of the state constitution, the Court of Criminal Appeals has used the same analysis employed by the United States Supreme Court in federal confrontation clause cases. Gonzales v. State, 818 S.W.2d 756 (Tex.Crim.App.1991) (plurality opinion). Appellant presents both points under a single argument without urging that separate standards apply to the state and federal constitutions. Therefore, we shall address both points of error together.

Appellant’s victim was a ten-year-old boy. Prior to trial, the state filed a motion requesting that the testimony of the child be taken during the trial in a room other than the courtroom and viewed by the jury via closed circuit television, pursuant to Tex.Code CRIM.Proc.Ann. art. 38.071 (Vernon Supp.1993). During a pretrial hearing *247the child’s treating psychiatrist, Tom Mid-dlebrook, testified that the child suffers from a combination of mental disorders which produce periods of psychiatric instability following periods of stress. The homosexual nature of the abuse made public testimony especially difficult. In his opinion it would best serve the child’s interest for his testimony to be taken though the use of closed-circuit television. The trial court found the child would “suffer undue psychological harm” and granted the motion. The judge, the court reporter, and the attorneys for the state and the defense were present throughout the examination. Appellant posed no objection whatsoever to the testimony or the procedure employed to conduct the examination. Appellant acknowledges in his brief that he was given ample opportunity to confer with his counsel and through counsel to cross-examine the witness.

The essence of appellant’s complaint on appeal, as stated in his brief, is “where the only eye witness is a child victim that the defendant’s right to physically confront the child victim should override public policy concerns in protecting the victim....” The right of confrontation does not afford the right of face-to-face confrontation. Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Gonzales, supra, 818 S.W.2d at 764. The Texas Court of Criminal Appeals has held that a defendant’s rights under the federal confrontation clause were not violated in a procedure like the one utilized in this case. Hightower v. State, 822 S.W.2d 48 (Tex.Crim.App.1991).

The record supports the trial court’s finding that the child would suffer undue psychological harm by face-to-face confrontation. Appellant did not object to the use of closed-circuit television at the time of trial, thus failed to preserve any objection. Tex.Code CRIM.PROC.Ann. art. 1.14(a) (Vernon Supp.1993); Tex.R.Crim.Evid. 103(a); Tex.R.App.P. 52(a). Since Article 38.071 is not facially unconstitutional, a timely objection is necessary to preserve a complaint of denial of confrontation. Briggs v. State, 789 S.W.2d 918 (Tex.Crim.App.1990) (case decided under former version of Article 38.071).

Appellant goes on to complain that the trial court admitted inadmissible hearsay testimony. Appellant does not address a point of error to the admission of evidence, so appellant has limited his complaint to the denial of his right to confront witnesses. He complains that Dr. Middle-brook was not the first outcry witness as defined in Tex.Code CRIM.PROC.Ann. art. 38.-072 (Vernon Supp.1993), but Middlebrook was present at trial and thus available for confrontation. Appellant claims that Mid-dlebrook’s colleague, a therapist named Gary Ikener, was the first outcry witness. Ikener was not called to testify. Appellant has utterly failed to present to this Court how he was deprived of any constitutionally protected right. Nothing in the record suggests appellant could not have subpoenaed Ikener. Since appellant did not object to Middlebrook’s testimony on the grounds that he was not the first outcry witness, he cannot complain on appeal if the trial court considered Middlebrook’s testimony in determining whether the child was available to testify for Article 38.071 purposes. Furthermore, the trial court’s finding that Mid-dlebrook was the first outcry witness is supported by Middlebrook’s testimony that the child first confirmed the sexual assault and confided the details of the offense to him rather than to Ikener. Garcia v. State, 792 S.W.2d 88 (Tex.Crim.App.1990). We find no error in the court below. Points of error one and two are overruled. The judgment is affirmed.

AFFIRMED.