concurring.
This appeal requires a balancing of two powerful and competing interests: society’s legitimate concern for the welfare and protection of child witnesses versus the constitutional rights of the accused to confront his accusers and to be presumed innocent until proven guilty. Upon the State’s motion, the trial court permitted the thirteen-year-old complainant and a six-year-old witness1 to testify outside the presence of the appellant by way of closed-circuit television. Relying largely on the strength of Gonzales v. State, 818 S.W.2d 756 (Tex.Crim.App.1991), the majority affirms. I choose to write separately to express my concerns regarding the majority opinion, which I believe broadens the reach of Gonzales and ensures that, for child witnesses, testimony by closed-circuit television will become the rule rather than the exception. By way of specific example, I would hold that the trial court erred in permitting the nonvictim child witness to testify outside the presence of the appellant and the jury.
The trial court held a pretrial hearing and heard testimony to determine whether the nonvietim witness should be allowed to testify by closed-circuit television. To place the pretrial-hearing testimony in context, it is necessary to briefly review the case law in this area. In Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment provides the accused the right to confront face-to-face at trial the witnesses who testify against him. The Supreme Court held that confrontation was a core guarantee that ensures a fair trial and preserves the integrity of the fact-finding process in its search for the truth.
Justice Scalia, speaking for the Court, put it this way:
The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential “trauma” that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.
Id. at 1020, 108 S.Ct. at 2802.
The Court held that the placement of a screen, authorized by the Iowa statute, be*340tween the defendant and the child sexual assault victims during their testimony at trial violated the Confrontation Clause of the Sixth Amendment. Justice O’Connor, joined by Justice White, concurred in a separate opinion. She agreed that the Confrontation Clause was violated in the Coy ease, but noted her view that the rights involved were not absolute and might be subject to exceptions.
Two years later, Justice O’Connor writing for the Court found such an exception in the case of Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). In Craig, the Court upheld a Maryland statute which permitted the fact-finder to receive, by closed-circuit television, the testimony of a child witness alleged to be the victim of child abuse, i/the trial judge first determined that the testimony of the child victim in open court and in the presence of the defendant would result in the child suffering serious emotional distress to the extent that the child could not reasonably communicate.
Coy and Craig, then, set the stage for the Court of Criminal Appeals decision in Gonzales v. State, 818 S.W.2d 756 (Tex.Crim.App.1991). In Gonzales the court permitted a nonvictim child eyewitness in a murder ease to testify by closed-circuit television. However, the court specifically recognized that the trial judge was required to hear evidence and make the following specific findings in order to deviate from normal courtroom procedure:
First, [that] use of the one-way closed-circuit procedure is necessary to protect the welfare of the particular child witness who seeks to testify. Second, the trial court must also find that the child witness would be traumatized, not only by the courtroom generally, but by the presence of the defendant. Third ..., the trial court must determine 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.
Gonzales, 818 S.W.2d at 762. See also Hightower v. State, 822 S.W.2d 48, 51 (Tex.Crim.App.1991).
Applying Gonzales to the testimony presented at the pretrial hearing in this cause, the majority concludes that the trial court did not err in permitting the nonvictim child witness to testify by closed-circuit television. I disagree.
At the pretrial hearing, the State called two witnesses—the child’s natural mother and an expert witness with a license in professional counseling who had experience with child victims in sexual assault cases.
On direct examination the mother testified that her daughter had shown fear toward appellant but stated regarding whether her daughter could testify in open court that she was “ready for it” and “said she wanted to come.” On cross examination, when defense counsel explained to the mother that the child would not be testifying regarding the facts of her own complaint but merely as an eyewitness to some facts regarding the incident on trial, the mother unequivocally testified “well, that she’s okay with. I mean, she’s ready for that.”
The expert witness was even more emphatic regarding the child’s ability to give testimony in open court. In response to the prosecution’s questions the expert stated as follows:
Q. Okay. Doctor, do you feel like if she testifies in open court in the presence of Jeffery Steven Marx, that she will—the result would cause further serious emotional and physical distress than what she has now?
If no one was ugly to her, you know, made her feel really badly about it—I think Jennifer is more of a talker than most. She will probably come on and do it.
Of course, we can make her do that as you well know, but my concern is what would be the emotional and physical distress that would cause—that would be resulting from her testifying in open court in the presence of another. O’
In the presence of Jeffrey? t>
Yes, ma’am. f©
She tells me she wants to. So unless she gets more frightened than I ex- £> *341pect, that little girl would probably testify okay.
Even under direct questioning from the trial judge the expert opined that the child witness was “a very strong little girl ... who wants to tell her story.” Finally, the trial court asked the expert the ultimate question:
THE COURT: Do you think that there would be any emotional or physical problems with her confronting—testifying from that witness stand and having to confront [appellant]?
THE WITNESS: Your Honor, I couldn’t say for sure that there would not be. I wouldn’t expect it.
(Emphasis added.)
In my opinion, even after according due deference to the trial court, this testimony does not come close to meeting the Gonzales standards.
In addition, I am concerned about the presumption of innocence implications of the trial court’s action. Anytime a trial court deviates from normal courtroom procedure, it runs the risk that the jury will place the spotlight of blame upon the accused. If the presumption is that the appellant is innocent, a jury cannot help but wonder why the child witnesses are testifying outside the courtroom, closeted away from the ostensibly innocent defendant. Instructions to the jury are notoriously ineffective to prevent prejudice in this type of situation.
Additionally, while I am mindful that, as an intermediate appellate court, we are bound to follow Gonzales, I cannot help but observe the consequences of the Gonzales decision. The United States Supreme Court in Craig permitted a confrontational exception based upon a Maryland statute that set out particularized facts which invoked the statute as well as specific procedures to be followed thereafter. Likewise, Texas has such a statute to be followed in a specific class of cases. See Tex.Code Crim. Proc. Ann. art. 38.071 (West Supp.1997). The problem in Gonzales, which is also present here, is that the statute is inoperative because the child witnesses do not come within the purview of the legislative enactment. In Gonzales, the criminal offense was murder while the statute is limited to sex crimes involving children. In the instant cause, while the criminal offense fits the statute, the child witnesses do not. The complainant is thirteen years old while the statute is limited to those twelve and under. And, the six-year-old child witness is not the victim of the criminal offense as required by the statute but rather is a complainant in an extraneous criminal offense.
Faced with the inability to utilize the statute as evidence of Texas legislative policy, the court of criminal appeals in Gonzales allowed trial judges on a case-by-ease basis to provide the compelling state interest sufficient to override a defendant’s constitutional right to confront witnesses. This permits, in my opinion, the exception to swallow the rule. The district courts of this state are allowed to make these decisions on an ad hoc basis subject to appellate review only under an abuse of discretion standard. The Gonzales test appears to me to create the specter of nonuniform and inconsistent public policy depending on the geographic area of the state and the particular trial judge involved in the case. This phenomenon is particularly troubling in the sensitive area of a defendant’s right to a fair trial with all its constitutional due process implications.
For all of the foregoing reasons, I conclude that the trial court erred when it permitted the nonvietim child witness to testify outside the presence of the appellant and the jury. However, I concur in the result reached by the majority because I regard the error as harmless beyond a reasonable doubt. Tex. R.App. P. 81(b)(2).
Evidence against the appellant consisted of his voluntary confession, the testimony of the complainant, and testimony of other corroborative witnesses including that of the six-year-old child witness in question. In his confession, the appellant voluntarily admits engaging in sexual intercourse with the complainant which forms the basis for the jury’s verdict of guilt. A review of the child witness’s testimony reveals that she testified to having observed, through the window, the appellant and the complainant engaging in sex. The child’s testimony, though brief, is filled with contradictions and overly detailed *342descriptions of other persons present who witnessed the same sexual conduct who were either unavailable to the prosecution or would not verify the child’s story.
In sum, it is open to question whether the testimony of this child witness helped or hurt the prosecution. At best, it provided minimal corroboration of criminal conduct to which the appellant had already confessed. At worst, it provided the defense with considerable ammunition to challenge the prosecution’s case. Therefore, I conclude that, although the trial court erred in permitting the nonvietim witness to testify by closed-circuit television, it played no part in the appellant’s conviction.
In conclusion, these cases always present compelling and egregious fact situations. No judge can be unsympathetic to cases involving sexual abuse of child victims. However, I believe we must resist the temptation to bend immutable constitutional principles in order to protect society’s young. I fear the majority has pushed this delicate balance too far in that direction.
. In a separate cause, the appellant was accused of aggravated sexual assault of this witness. However, this child’s testimony at trial did not involve any of the facts of that alleged criminal episode, but rather some alleged eyewitness testimony regarding the incident on trial.