Opinion
No. 05-03-01503-CR
Opinion filed July 28, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-75115-HN. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
The trial court convicted Dirk Max Dozier of indecency with a child. Dozier pled true to the enhancement allegation. The trial court assessed punishment at five years' confinement. In two points of error, Dozier contends: (1) the evidence is factually insufficient to support the judgment; and (2) the use of closed-circuit equipment for the child complainant's testimony at trial deprived him of the right of confrontation in violation of the Sixth and Fourteenth Amendments to the United States Constitution. The background of the case and the evidence adduced at trial are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. RS. App. P. 47.2(a), 47.4.
Factual Sufficiency of the Evidence 1. Standard of Review
In determining the factual sufficiency of the evidence, we must determine whether, considering all the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, slip op. at 11, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). There are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the judgment may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the judgment and evidence contrary to the judgment. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty judgment should not stand Id. This Court will give due and appropriate deference in reviewing the fact finder's determinations to avoid substituting our judgment for that of the fact finder and to avoid intruding on the province of the fact finder as the sole judge of the weight and credibility given to the witness's testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000).2. Applicable Law
A person commits the offense of indecency with a child if, with a child younger than seventeen years and not the person's spouse, whether the child is of the same or opposite sex, the person:(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or
(B) causes the child to expose the child's anus or any part of the child's genitals.Tex. Pen. Code Ann. § 21.11(a) (Vernon 2003). In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person. Id. § 21.11(c).
3. Application of Law and Facts
Evidence at trial indicated that Dozier entered J.E.S.'s house to fix a broken window in the living room. Dozier led J.E.S., then almost four years old, into the bathroom and put his finger in her "pee pee." J.E.S.'s father, Mark, testified that he witnessed the incident and asked Dozier to leave. Two weeks after the incident, a Dallas Children's Advocacy Center forensic scientist, Alejandro Torres, interviewed J.E.S. In the interview, J.E.S. said her brother was the only person who had ever touched her private parts. However, at trial J.E.S. stated Dozier touched her "private part" and it made her cry. Dozier cites the following evidence as the most important and relevant to his assertion that the evidence is factually insufficient to support his conviction. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). First, Dozier argues J.E.S. and her father, Mark, gave contradictory versions of the incident. Specifically, Dozier argues: (1) J.E.S. stated the incident happened during the day, while Mark stated the incident happened at night; (2) J.E.S. claimed her father did not witness the incident, while Mark stated he did witness the molestation; and (3) J.E.S. stated she did not tell her father about the molestation, while Mark stated J.E.S. told him what occurred in the bathroom. Second, Dozier argues that J.E.S. gave contradictory testimony regarding the incident. Specifically, she told Torres that her brother was the only person who molested her, and she testified at trial Dozier molested her. Third, Dozier contends the videotaped interview J.E.S. gave with the Dallas Children's Advocacy Center, in which J.E.S. stated the only person who molested her was her brother, evidences Dozier's innocence. Lastly, Dozier argues he denied committing the offense, and the State presented no physical evidence corroborating J.E.S.'s or Mark's testimony that he committed the offense. In summary, he argues that the evidence is "inconsistent, contradictory, and incredible." After reviewing all the evidence in a neutral light, including the evidence above, we conclude the court was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, slip op. at 11, 2004 WL 840786, at *7. We cannot say the evidence of guilt considered by itself is too weak to support the finding of guilt beyond a reasonable doubt, or that the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. See id. Because the fact finder is the sole judge of the weight and credibility of a witnesses's testimony, the trial court resolves any inconsistencies, contradictions, or credibility in the testimony. See Johnson, 23 S.W.3d at 7. As to the lack of physical evidence corroborating J.E.S.'s and Mark's testimony, this finding is not unusual in cases of abuse such as that described by the victim. See Murray v. State, 24 S.W.3d 881, 888 (Tex. App.-Waco 2000, pet. ref'd) (addressing issue of lack of physical evidence in claims including sexual assault and indecency by contact). We need not further detail the rest of the evidence. See Sims, 99 S.W.3d at 603. Accordingly, we conclude the evidence is factually sufficient to support the conviction. We overrule Dozier's first point of error.Right of Confrontation
In his second point of error, Dozier contends the use of closed-circuit equipment deprived him of his constitutionally guaranteed right of confrontation. The Sixth Amendment to the United States Constitution provides, in relevant part, that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. This right to confrontation was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406 (1965). Article 38.071 of the Texas Code of Criminal Procedure provides that a child who is to testify in the presence of a defendant about the offense of indecency with a child may testify by closed-circuit television under certain circumstances and subject to a determination of the child's unavailability. Tex. Code Crim. Proc. Ann. art. 38.071, §§ 1, 3, 8(a) (Vernon 2003). In Maryland v. Craig, 497 U.S. 836, 857 (1990), the United States Supreme Court determined that a statutory procedure allowing for the use of a one-way closed-circuit television system for the receipt of testimony by a child did not violate the Sixth Amendment's Confrontation Clause. The Court held that "if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant." Id. at 855; see Gonzales v. State, 818 S.W.2d 756, 761-62 (Tex.Crim.App. 1991). The court must find "necessity" on a case-by-case basis, by hearing evidence and determining (1) whether use of the one-way closed-circuit procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) that the child witness would be traumatized, not by the courtroom generally, but by the presences of the defendant; and (3) 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. Craig, 497 U.S. at 855-56; see Gonzales, 818 S.W.2d at 762. Here, the trial court conducted a hearing, at the State's request, to determine whether J.E.S. needed closed-circuit equipment for her testimony. J.E.S.'s mother, Joli, testified J.E.S. was doing well in counseling and that appearing in a court room with Dozier would be traumatic and counterproductive. Joli also told the court about an incident at a Maverick's basketball game where J.E.S. became "really upset" at the chanting of a player's name, Dirk Nowitzki. Joli stated J.E.S. needed reassurances the player was not the same "Dirk" from the crime. The court also heard testimony that J.E.S. crawled into a fetal position and covered her head with a pillow when told she would see Dozier in the courtroom. Dozier objected to the use of a closed-circuit, but the court decided a closed-circuit would be necessary, overruling the objection and ordering the use of the closed-circuit equipment. The trial judge reasoned that:[T]he use of closed circuit is necessary to protect the child's welfare. I believe she would be traumatized. I'm granting the request of the State.Specifically, Dozier argues the judge failed to make all required findings under Craig. It is true the trial court did not make a specific finding as to the third requirement in the Craig analysis. See Craig, 497 U.S. at 856. However, in Lively v. State, 968 S.W.2d 363, 367 (Tex.Crim.App. 1998), the Court of Criminal Appeals held the findings on the three criteria were implicit in the trial court's single explicit finding that the special procedure was necessary "due to potential psychological harm" the child would suffer by testifying in the courtroom. The court reasoned that nothing in Craig requires that a trial court make explicit, as opposed to implicit, findings regarding the necessity of a special case. Id. Thus, explicit findings on each prong are not required. See id. In the present case, the trial court made two explicit findings related to the Craig analysis. Although the judge did not state explicitly that the trauma would be more than de minimis, this finding was implicit in the trial court's explicit finding that closed-circuit equipment was necessary. See id. We afford almost total deference to the trial court's determination regarding use of closed-circuit television and will reverse only for an abuse of discretion. See Marx v. State, 987 S.W.2d 577, 581 n. 2 (Tex.Crim.App. 1999). The trial judge is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). In light of the evidence supporting the third prong, namely J.E.S's reactions upon hearing Dozier's first name and realizing she might have to see him again, the trial court did not abuse its discretion. We overrule Dozier's second point of error.