concurring.
I agree with Justice Grant’s opinion, but write to add my comments and additional reasons why I do not believe the statute in question violates either the constitutional right of confrontation or due process.
In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), and other cases, the United States Supreme Court made it abundantly clear that it is the right to confront the witnesses at trial, Id. at 157, 90 S.Ct. at 1934, 26 L.Ed.2d at 496, that is protected by the Sixth Amendment, and as stated by the court:
[T]he Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.
Id. at 158, 90 S.Ct. at 1935, 26 L.Ed.2d at 497. Confrontation at the time the prior statement is made is not required. Again, as the court said in Green:
[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.
Id. at 159, 90 S.Ct. at 1935, 26 L.Ed.2d at 497 (emphasis added). Tex.Code Crim. Proc.Ann. art. 38.072 (Vernon Supp.1988) provides several procedural and substantive safeguards, including the right to cross-examine the declarant at trial.
Long v. State, 742 S.W.2d 302 (Tex.Crim.App.1987), should not be applied to this case for two additional reasons. First, in important ways which will be mentioned later, Article 38.072 is different from the statute construed in Long. Second, the Long decision is, quite simply, wrong. It is hoped that when this general issue is again considered by the Court of Criminal Appeals it will use a more legally principled and enlightened analysis.
In Long, the court refused to follow California v. Green, supra, and attempted to justify its refusal by the fact that the out-of-court statement in that case was made at a preliminary hearing where cross-examination was available. The attempted justification is not valid. The opinion in Green makes it clear that, even when there is no opportunity for cross-examination at the time of the earlier statement, its admission does not violate the confrontation clause. The court said:
[T]he out-of-court statement may have been made under circumstances subject to none of these protections [i.e., cross-examination, oath, and presence before the jury]. But if the declarant is present and testifying at trial, the out-of-court statement for all practical pur*345poses regains most of the lost protections.
California v. Green, supra (emphasis added).
Neither Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), nor Vasquez v. State, 145 Tex.Crim. 376, 167 S.W.2d 1030 (1942), relied on by the court in Long, is apposite. In both those cases, the declarant was not available at trial.
I recognize that we in Texas are free to construe our state constitutional guarantee of confrontation more liberally than the Supreme Court construes the federal guarantee, but it is fallacious reasoning of the rankest sort to use the same principles of constitutional construction as in the federal cases, and yet reach the opposite result. Texas has always used and still uses the same principles of construction that are used in federal constitutional analysis in these questions. Our state guarantee of confrontation was designed to protect the same fundamental core values the federal guarantee sought to protect. Unlike some of the other constitutions, our State Constitution was formulated long after the Federal Constitution, and its fundamental principles and freedom guarantees were largely derived from the same sources as the federal ones. 1 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 35, 42 (1977). It is not “liberal construction,” but nonsense, to say that those principles mandate different results even though the federal and state guarantees are essentially the same.
Moreover, even when the declarant is not available to testify at trial, an out-of-court statement may be admitted without violating the confrontation clause if it fits within a firmly rooted and recognized exception to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); California v. Green, supra.
Article 38.072 is an expansion of such an exception. As to evidence of the fact of the complaint only, it does no more than place a statutory imprimatur on a'traditional exception to the hearsay rule recognized in England and many of our states for nearly two centuries, and in Texas since at least 1884 — the rape victim’s outcry exception.1 Sentell v. State, 34 Tex.Crim. 260, 30 S.W. 226 (1895); Lawson v. State, 17 Tex.App. 292 (1884); 4 Wigmore on Evidence § 1135 (1940), and cases there cited.
The fact that a rape or sexual abuse victim made a complaint of the crime is admissible under any of these three principles:
(1) As spontaneous declarations, sometimes said to be part of the “res gestae.” The complaint must have been made reasonably soon after the crime so that it has the reliability of an excited utterance. 1 R. Ray, Texas Law of Evidence Civil and Criminal § 775 (Texas Practice 3d ed. 1980); 1A R. Ray, Texas Law of Evidence Civil and Criminal § 927 (Texas Practice 3d ed. 1980); 4 Wigmore on Evidence § 1139 (1940).
(2) As evidence of the fact of the complaint. As Professors Ray and Wigmore both observe, if the victim makes complaint of the crime, at any time however remote, this fact may be given in evidence by the State as part of its case-in-chief regardless of the fact that the utterance is not spontaneous. 1A R. Ray, Texas Law of Evidence Civil and Criminal § 927 (Texas Practice 3d ed. 1980); 4 Wigmore on Evidence § 1135 (1940); 6 Wigmore on Evidence § 1761 (1940). Professors Ray and Wigmore fully cite and collate the authorities supporting this rule, and they need not be repeated here. Admission of this kind of evidence is justified as a legitimate forestalling of an adverse inference that would otherwise be drawn in this particular class of cases. If no mention were made of a complaint by the victim, the adverse inference might be drawn that, either the act did not occur, or that it was with the victim’s consent. Roberson v. State, 49 S.W. 398 (Tex.Crim.App.1899). The length of time between the crime and the complaint *346goes to the weight, and not to the admissibility of the evidence. Conger v. State, 63 Tex.Crim. 312, 140 S.W. 1112 (1911); Roberson v. State, supra. This exception goes all the way back to the “hue and cry” rule recognized by the common law. Indeed, a long standing Texas statute not only allows such proof, but requires it to sustain a conviction based on the uncorroborated testimony of a victim who was over the age of fourteen years at the time of the offense. Tex.Code Crim.Proc.Ann. art. 38.-07 (Vernon Supp.1988). Only the fact of the crime, and not its details, may be admitted under this exception. Hanks v. State, 142 Tex.Crim. 186, 151 S.W.2d 808 (1941); Reeves v. State, 111 Tex.Crim. 89, 10 S.W. 2d 90 (1928). The complaint is admissible only to show outcry, and not for the truth of the matter stated.
(3) Evidence of the complaint as a prior consistent statement to rehabilitate the victim after impeachment. 1A R. Ray, Texas Law of Evidence Civil and Criminal § 927 (Texas Practice 3d ed. 1980).
The justification for continuing to recognize these exceptions on the grounds of their reliability and the public policy reasons favoring them are capably discussed in J. Myers & N. Perry, Child Witness Law and Practice § 5.38 (1987).
Thus, the out-of-court statement in this case would have been admissible under the second principle noted, even if Article 38.-072 had never been enacted. Although it was admissible on the issue of complaint only, Buckley did not ask for an instruction limiting the evidence for that purpose, or object to its admission on any ground other than hearsay and the statute’s alleged unconstitutionality.
Article 38.072 also does not violate either the due process guarantee of the United States Constitution or the due course of law provision of the Texas Constitution.
The statute does not deny due process. As noted in Long, due process requires a fair trial in a fair tribunal. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Since all the safeguards of face-to-face confrontation at trial, effective cross-examination, and reliability of the statement are preserved in Article 38.072, it does not deny that essential fairness required by due process.
Finally, even if Article 38.072 is construed to be constitutionally infirm in its general application, it is not in its application to Buckley, the appellant in this case. The State called the victim as a witness and had her testify as a part of its case-in-chief Buckley’s counsel cross-examined her both as to the fact of the crime and the truth of her out-of-court statement, so he was not only afforded an opportunity for full and effective cross-examination, he availed himself of that opportunity. Unlike the defendant in Long, the State was not allowed to “introduce [its] case-in-chief twice.”
Buckley may not defeat the operation of the statute on grounds that it might be unconstitutional as applied to someone else. He must show that it operated to deprive him of a constitutional right. No such deprivation has been shown in this case.
For the reasons stated, I concur in the judgment.
. Technically the rule is not an exception to the hearsay rule. The statement is not hearsay at all, since it is admitted not for the truth of the matter asserted, but only for the fact of its utterance.