Hipolito Alvarez v. The State of Texas--Appeal from 181st District Court of Potter County (majority)Annotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
MAY 15, 2012
THE STATE OF TEXAS,
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 58,169-B; HONORABLE RICHARD DAMBOLD, PRESIDING
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Hipolito Alvarez, appeals his conviction for sexually abusing a child.
His sole issue involves the trial court‟s decision to allow the child victim to testify via
closed-circuit television. This allegedly was error because the Texas statute allowing
that violates the Confrontation Clause appearing in the Sixth Amendment to the United
States Constitution, as those requirements were purportedly interpreted in Craig v.
Maryland, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) and its progeny. That
is, it is not enough to merely satisfy the dictate of art. 38.071, §1 of the Texas Code of
Criminal Procedure, i.e. that the child be “unavailable to testify in the presence of the
defendant.” TEX. CODE CRIM. PROC. ANN. art. 38.071, §1 (West Supp. 2011). Rather,
the evidence must show that the child is unable to communicate or reasonably unable
to testify in court while in the presence of the defendant.1 We overrule the issue and
affirm the judgment.
Appellant‟s attack upon art. 38.071 et seq. on the basis of its purported failure to
comport with the Confrontation Clause was not raised below. Nor did he contend that
the evidence had to allow the trial court to conclude that the child was “unable to
communicate” or “reasonably unable to testify” in the presence of the defendant, as
opposed to merely being “unavailable” to testify, i.e. any distress or trauma would be
more than de minimus or that significant emotional harm would result.
arguments were not preserved for review. See Karenev v. State, 281 S.W.3d 428, 434
(Tex. Crim. App. 2009) (stating that facial challenges to the constitutionality of a statute
may be waived); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)
(holding that the grounds urged on appeal must comport with those mentioned at trial,
otherwise they are waived).
Accordingly, the judgment is affirmed.
Do not publish.
Appellant expressed in his brief that he did not dispute nor concede that “any distress or trauma
here was more than de minimus . . . or that „significant emotional harm‟ would result, if this complainant
were made to testify . . . before this appellant.” And, those were the two findings entered by the trial court
upon receiving evidence on the matter.