Joseph Michael Gomez v. State of Texas--Appeal from 29th District Court of Palo Pinto County

Opinion filed May 10, 2007

In The

Eleventh Court of Appeals

____________

   No. 11-05-00384-CR

__________

   JOSEPH MICHAEL GOMEZ, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 12,177

O P I N I O N

The jury convicted Joseph Michael Gomez of aggravated sexual assault of a child. The jury found the enhancement paragraph to be true and assessed appellant=s punishment at fifty years confinement. We affirm.

In his sole point of error, appellant argues that the trial court denied his right of confrontation pursuant to the Sixth Amendment of the United States Constitution. Appellant=s complaint concerns the accommodations the trial court made during the testimony of the victim, who was eight years old at the time of trial.

The State called the victim as a witness; and she testified generally about her age, school, and family. The victim stated that she was in court because of appellant and identified appellant. The victim testified that she told her grandmother about Abad things@ that appellant had done to her. The victim stated that she could not remember what she told her grandmother. When questioned by the State, the victim repeatedly said she could not remember the Abad things@ that she told her grandmother. The victim said she was Anervous@ to talk about what happened. The victim further testified that she was afraid to tell the jury what happened to her.

The State asked the victim if appellant did something that she did not want him to do, and the victim responded, AYes.@ The victim then again stated that she told her mother and grandmother what appellant had done but that she could not remember. The victim testified that she did not have any clothes on when appellant did these things to her. The victim further testified that appellant did not have clothes on and that she saw appellant=s private part. When asked if appellant did something to her private parts, the victim responded, AYes.@ The victim then testified that she was too embarrassed to tell the jury what appellant did to her private parts and that she would not tell the jury what appellant had done to her. She refused to tell the jury what appellant had done to her. The trial court then granted the State=s request for a recess.

After the recess, the trial court made Asome accommodations to the comfort of [the victim] in providing the balance of her testimony and the cross-examination.@ The trial court allowed the victim to sit in her mother=s lap and instructed her mother not to speak to, gesture, or nudge the victim. The trial court required everyone to leave the courtroom but the victim, her mother, the jury, attorneys for the State, appellant, appellant=s attorney, the court reporter, and the bailiff. The trial court then stated its plan to Are-situate the placing of [appellant]@ to the right of the bench. The trial court then stated:

The record will reflect that the witness chair is immediately to the left of the bench.

The chair which has been placed immediately to the right of the bench is within -- I=ll say it=s three or four feet of the chair occupied by [appellant=s] attorney.

At any time during the direct testimony or the cross-examination of [the victim], if the [appellant=s] attorney needs to confer with his client and the some three to four feet that they are separated by presents a problem, [appellant=s attorney] will be allowed to have any amount of recesses and time-outs, if you will, as may be necessary in his opinion to confer with his client.

Appellant=s attorney objected arguing that the accommodations violated the Confrontation Clause. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides in part that, A[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.@ See also Delaware v. Fensterer, 474 U.S. 15, 22 (1985); Hightower v. State, 822 S.W.2d 48, 50 (Tex. Crim. App. 1991). The Confrontation Clause is primarily concerned with ensuring Athe reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.@ Marylandv. Craig, 497 U.S. 836, 845 (1990). A number of factors are important in accomplishing this purpose including: (1) a personal examination of the witness in the presence of the accused; (2) the witness testifying under oath; (3) the witness being subject to cross examination; and (4) the jury observing the demeanor of the witness. Id. at 845 46.

The victim testified under oath and was subject to cross-examination. The jury was able to observe the victim as she testified. After the trial court made the accommodations, appellant could not see the victim, although he was present in the courtroom. A defendant=s right to confront accusatory witnesses may be satisfied absent a Aphysical, face-to-face confrontation@ when denial of confrontation is necessary to further an important public policy. Id at 850. In order to allow a modification of the face to face element of the confrontation right, we must determine (1) whether an important state interest exists and (2) whether the procedural modification used in the trial was necessary to further that interest. Id. at 855.

A State=s interest in protecting child abuse witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify use of a special procedure that permits a child to testify at trial in the absence of face-to-face confrontation with the defendant. Hightower v. State, 822 S.W.2d at 51. We must now determine whether the trial court=s procedural modification was necessary to further the interest of protecting the child victim of sexual abuse from the trauma of testifying.

In order to find that the modification procedure is necessary, the trial court must determine that the child would be traumatized by the presence of the defendant and that the emotional distress suffered by the child witness in the presence of the defendant is Amore than de minimis.@ Id. The record shows that the victim was afraid to testify about the offense while appellant was visible to her in the courtroom. While appellant was in her sight, the victim continued to state that she was Aembarrassed@ to testify and that she could not remember what appellant had done to her. The trial court found that the modifications were necessary to accommodate the victim. The trial court did not err in allowing the victim to testify without having appellant visible to her during her testimony.

Moreover, Virginia Elaine Caldwell, a sexual assault nurse examiner at Cook Children=s Medical Center, examined the victim. Caldwell testified that the victim stated appellant touched the victim=s Aprivates@ and her Abottom@ with appellant=s hand and his Aprivate.@ Caldwell further testified that, based upon her examination of the victim, she determined that the victim suffered a blunt-force penetrating trauma consistent with the Apenetration of the vagina by a male sexual organ or a finger.@ Any error in allowing the victim to testify without face-to-face confrontation with appellant did not contribute to the conviction or punishment of appellant. Tex. R. App. P. 44.2(a). Appellant=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

May 10, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.