Rangel v. State

250 S.W.3d 96

Rodolfo RANGEL, Appellant, v. The STATE of Texas.

No. PD-0447-06.

Court of Criminal Appeals of Texas.

February 13, 2008.

Rehearing Denied April 9, 2008.

Stephen R. Bjordammen, Wichita Falls, for Appellant.

Lisa C. McMinn, Asst. State's Atty., Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

PER CURIAM.

Rodolfo Rangel was convicted of, among other things, aggravated sexual assault of a child. The trial judge assessed his punishment at fifty years' imprisonment.

Rangel appealed, claiming that the trial judge's decision to admit a videotaped interview of the child-victim with a CPS investigator in lieu of the victim's testimony violated his rights under the Confrontation Clause to the Sixth Amendment.¹ Rangel alleged that the videotaped interview was inadmissible because he did not have an opportunity to cross-examine the victim and the victim's statements constituted testimonial hearsay.² The court of appeals held that the victim's statements were testimonial under the United States Supreme Court's decisions in Crawford v. Washington and Davis v. Washington.³ However, the court went on to hold that Rangel waived his confrontation challenge because he failed to avail himself of the procedure set out in Article 38.071, Section 2(b),⁴ which, according to the court, "provides an effective alternative means to the traditional face-to-face confrontation at trial."⁵

Both Rangel and the State petitioned us for review. We granted both petitions.

The State's ground for review asks us to decide the following issue:

Did the court of appeals apply the correct analysis to determine that the statement of a four-year-old child was testimonial under Crawford v. Washington?

Directed at the court of appeal's holding that he waived his confrontation claim, Rangel's ground for review reads as follows:

Whether [Rangel's] Sixth Amendment rights were violated when the unavailable complainant's testimonial hearsay statements were admitted into evidence pursuant to statutory authority.

We conclude that our decision to grant review of the State's and Rangel's petitions was improvident. We should make clear that in dismissing these petitions we are in no way endorsing the court of appeals's opinion. In her dissent, Judge Cochran does not address why the issues are not properly before us. In reviewing whether the court of appeals erred by holding that the videotaped statement of the victim is "testimonial" under Crawford, we are limited to considering only the evidence before the judge at the time the ruling was made.⁶ A thorough review of the record reveals that all of the evidence—most importantly, the videotape and the evidence concerning the circumstances surrounding the interview—that would be required to properly analyze the court's ruling was admitted after the trial judge made his ruling on Rangel's confrontation objection. The issue was never consensually re-litigated by the parties at a later time.⁷ We refuse to examine the propriety of a trial judge's ruling based on evidence that the trial judge had no opportunity to consider when he made his ruling. Judicial restraint and prudence prevent us from reaching out and grabbing issues simply because they are interesting and important. We will exercise our discretionary review authority only where the issues are properly presented for our consideration. By exercising our discretionary review authority in this manner, it cannot be said, with any validity, that we "shirk our duty. . . ." The State's petition is therefore dismissed as improvidently granted. Further, because our decision to grant review of Rangel's petition was predicated on our decision to address the threshold "testimonial" issue, we also dismiss Rangel's petition as improvidently granted.

WOMACK, J., concurred.

COCHRAN, J., filed a dissenting opinion in which JOHNSON, J., joined.

COCHRAN, J., filed an opinion dissenting to the dismissal of the petitions for discretionary review, in which JOHNSON, J., joined.

I respectfully dissent to the Court's action in dismissing the State Prosecuting Attorney's (SPA) and Appellant's petitions for discretionary review. Appellant raises important questions under the Sixth Amendment concerning the constitutionality of the child-videotape statute¹ in the post-Crawford² world. Other courts have cited Rangel, both favorably and unfavorably, on this critical and recurring issue.³ Trial and appellate courts across the country are attempting to find a suitable accommodation between the defendant's constitutional right of confrontation and a young child's inability to testify fully and accurately in the courtroom setting. We should not shirk our duty in resolving appellant's constitutional question and in providing guidance to the Texas bench and bar.

Appellant was convicted of various counts of aggravated sexual assault, indecency with a child, and attempted indecency with a child, involving his own or his wife's children. Appellant's daughter, C.R., was six years old at the time of trial and was one of the three children he was found to have molested. Before trial, the State moved to admit an out-of-court forensic videotape of her statements taken under Article 38.071 in lieu of her live, in-court testimony. The appellant objected that using the videotape instead of live testimony violated both his right to confrontation and cross-examination. The trial court admitted the videotape, and C.R. did not testify. The court of appeals concluded that the forensic videotape was "testimonial" under Crawford, but that appellant's confrontation rights were not violated because he could have submitted written questions for C.R. to answer during another out-of-court videotape session.⁴

We granted both appellant's and the SPA's petitions for discretionary review to decide whether the provisions of Article 38.071 allowing the admission of an out-of-court, ex parte videotaped statement by a child victim in lieu of that child's courtroom testimony violate a defendant's right of confrontation.⁵

I would hold that the child-videotape statute, Article 38.071, cannot be construed to allow the admission of out-of-court testimonial hearsay statements unless the child testifies at trial or the defendant has had a prior opportunity to cross-examine that child. To the extent that the statute cannot accommodate the demands of the Confrontation Clause as explained in Crawford and Davis, it violates appellant's Sixth Amendment rights.

I.

Debbie Adams, a Child Protective Services (CPS) investigator, began investigating appellant and his wife, Rosa, for possible child abuse in January of 2003. A week later, CPS removed the four children from appellant's home after one of them, G.T., told Ms. Adams that appellant has sexually abused her. The children were placed in foster care and received extensive counseling. Local law-enforcement officials were also notified, and Detective Julie Elliot began a criminal investigation into the alleged sexual abuse.

C.R. was appellant's biological daughter; she was four years old at the time she was placed in foster care. Cheryl Polly, a licensed professional counselor, was C.R.'s therapist. She testified that C.R. exhibited behaviors and symptoms consistent with being the victim of sexual abuse: She experienced nightmares, bed-wetting, sexual acting out, and defiance. According to Ms. Polly, C.R. said that appellant had inserted his finger into her genitals. By the time of trial, C.R.'s symptoms had largely subsided, but she tended to "dissociate" or "zone out" when she was asked about appellant's abuse.

Two months after the children had been removed from their parents' home, Camille Cleveland, a CPS investigator, conducted a videotaped "forensic interview" of C.R. at "Patsy's House," the Wichita Children's Advocacy Center. Ms. Cleveland explained that "it's a safe environment. Alleged perpetrators or someone that has been accused of abusing a child . . . are not allowed. . . . There's also a few Child Protective Service workers housed there as well as some law enforcement officers so we can work the cases jointly." Ms. Cleveland conducted the videotaped interview on March 26, 2003. Detective Julie Elliott watched the interview.

Before trial, the State moved to admit the March 26th videotape instead of calling C.R. as a witness. Appellant objected. Therefore, the trial judge conducted a pretrial hearing to determine whether C.R. was an "unavailable" child witness and if the videotaped interview could be used in lieu of her in-court testimony under Article 38.071.⁶ At that hearing, Ms. Polly explained that "testifying live in the courtroom would be extremely traumatic" for C.R. In her opinion, testimony via closed circuit TV would be less traumatic, but she still did not think that C.R. "would be able to do it because there would still be strangers involved in that." The trial judge expressed his concern at attempting "to balance both sides of the potential right—harm to the child as well as the defendant's right to confrontation." Appellant's counsel objected to the proposal as violating both his confrontation and cross-examination rights:

Well, Judge, not only are we dealing with a confrontation issue here, we're dealing with a cross-examination issue here. If the—if the State is allowed to introduce the videotape of [C.R.] and in connection with that there's a finding that she's unavailable, that essentially— that essentially puts me in this position. Camille Cleveland, a worker for CPS, who is clearly aligned with the State— you know, they may—they may take a position differently, but CPS is clearly aligned with the State in the prosecution of this case. Was allowed to interview in an environment subject only to the control of CPS, this one witness, present questions to this witness, receive the responses from that witness, and that is going to be the sum total testimony from this witness.

Counsel elaborated further: The...