Gonzales v. State

OPINION ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

The issue in this case concerns the constitutional rights of appellant, Antonio Gonzales, to confront a ten year old witness at his trial for murder. The child, secured in a room away from appellant, testified via a closed-circuit television system. Appellant insists that such violated rights guaranteed him under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution. The Court of Appeals agrees with appellant and has reversed his conviction. Gonzales v. State, 784 S.W.2d 723 (Tex.App.— San Antonio 1990). We granted the State’s petition to review the Court of Appeals opinion and will now reverse.

I.

FACTUAL BACKGROUND

On August 29, 1987, paramedics were called to the home located at 3800 South Zarzamora in San Antonio. There they found the body of five year old Yvette M_wrapped in a sheet on the living room sofa. Upon conducting an initial examination, the paramedics discovered that the child was “very thin with a bloated stomach,” and that she was unkempt — paramedics described her as “filthy” and observed that she had head lice. The child's body was covered with bruises and abrasions; there were lacerations on her head. This aroused the paramedics’ suspicions and they called the police.

When the police arrived they started their investigations by talking to Yvette’s mother and the mother’s live-in boyfriend, appellant. Both the mother and appellant told investigators that the child had fallen in the bathroom while taking a shower. The police tried to interview Yolanda, the deceased’s sister, but she would only cry; there were visible “old injuries” on her face. Subsequent investigations, including an autopsy which revealed the child had died as a result of acute trauma to the head and the search of the home and seizure from the adult’s bedroom of a three-foot long wooden club with human blood on it, lead to the indictment of both the mother and appellant for Yvette’s death. On June 28, 1988, appellant’s trial on the merits began.

Prior to any testimony being heard by the jury, the State moved to present the testimony of Yolanda M_, via closed-circuit television. The motion purported to be based upon Sections 3 and 4, of Article 38.071 of the Texas Code of Criminal Procedure. After conducting a “hearing” the trial court judge granted the State’s motion on June 28, 1988. Thereafter, the State began its case in chief but did not call Yolanda to testify. The trial was recessed before the child testified.

That very next day, June 29, 1988, the Supreme Court issued its opinion in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Perceiving conflicts between the Coy decision and the manner in which the trial court granted the State’s first motion, the State on June 30, 1988, filed a second motion to have the child testify via the closed-circuit system and therein alleged the following:

“Comes now the State of Texas, through her legal representative the Criminal District Attorney for Bexar, County, Texas, and moves the court pursuant to Article 38.071 Sec 3, and 4, of the Texas Code of Criminal Procedure, to order that the testimony of Yolanda M_, a child be taken in a room other that (sic) the courtroom, and be televised by closed-circuit equipment in the courtroom to be viewed by the Court and the finder of fact in the proceeding in the above styled and numbered cause for the following reasons:

“1. Yolanda M_, age 10, is the stepdaughter of [appellant] in the above styled and numbered cause. The [appellant] is charged with the murder of Yvette M_, 5 years old. Yvette M_ and Yolanda ML_were sisters.

“2. Yolanda M_is the complainant in 88CR1402, Aggravated Sexual Assault; the defendant in that cause is Antonio Gonzales, the same defendant in the above styled and numbered cause.

“3. The above styled and numbered cause occurred August 29, 1987. The Aggravated Sexual Assault 88CR1402 also occurred August 29, 1987.

“4. Yolanda M_is currently undergoing psychological counseling because of the trauma of seeing her sister, Yvette, beaten with a club about the head and immediately afterwards, seeing Yvette sexually assaulted by the defendant, Antonio Gonzales, on August 29, 1987.

“5. The child, Yolanda M_, is very intimidated by the defendant, Antonio Gonzales and fears that he will kill her for telling what occurred on August 29, 1987.”

There was a hearing on the State’s second motion after the State presented to the jury all of its evidence except the testimony of Yolanda. At that hearing the State called Irma Alvarez, who was employed with the Family Violence Unit of the District Attorney’s Office, and Janie Ramos, the child’s grandmother, to testify outside the presence of the jury. Both witnesses substantiated the allegations in the State’s second motion.

Specifically, Alvarez testified that it was her job with the District Attorney’s Office to prepare child witnesses for trial by getting them comfortable with the new surroundings of the courtroom. She first talked with Yolanda when the child came to the office for an interview. Although it was out of the ordinary for Alvarez to take the statements of the child witnesses — this being the job of the investigators — she actually conducted the interview with Yolanda after the male investigator determined that he would not be able to get the child to talk with him. Alvarez explained:

“Usually, it is the investigator’s position to take those statements. But ... Yolanda was very traumatized, and the investigator was a male; and she felt very uncomfortable talking with him. She was crying the entire session he was there in the room with her, so he asked me if I would talk to her; and I talked to her for about two hours. And I came to realize that she was very frightened of men.”

Alvarez began meeting with the child about two months prior to the trial and continued to do so on a weekly basis. These sessions lasted for about an “hour and a half or two.” During the last two weeks prior to trial Alvarez spent “about four to six hours on a daily basis” with the child. Yolanda told Alvarez that appellant began sexually assaulting her when she was eight years old and that the last assault occurred the morning of her sister’s death. Alvarez testified that “the mere mention of having to testify against the defendant made [Yolanda] cry very much,” and that Yolanda was unable to be in any room where there was a male present. She testified that “it would hurt [Yolanda’s] emotional stability more than it has been hurt already if she was to confront the defendant once again.” The child was undergoing counseling.

The grandmother testified that Yolanda has been staying with her since Yvette’s death. She testified that Yolanda has suffered emotionally from the incident. She has had nightmares and wakes up in the night screaming. She does not eat. The child will not go into the bathroom alone and does not wish to take a bath by herself. Initially, Yolanda saw a male doctor for counseling. She, however, was afraid of him and a female doctor began treatment. The grandmother testified that Yolanda was afraid of appellant “[b]ecause he told her that he was going to get out very quick and that he was going to take her so she wouldn’t say anything.” She testified that appellant has threatened to kill the child. Because of all of the events in Yolanda’s life, the grandmother believed that if the child were forced to testify in the same room as appellant, such would hurt her emotionally.

After hearing this testimony, the trial court, over appellant’s objections, once again granted the State’s motion and allowed Yolanda to testify via the closed-circuit television system. The judge entered the following findings of fact:

“1. On June 30,1988, a pre-trial hearing was held on the State’s Motion to Use Closed Circuit Television Equipment, pursuant to Article 38.071 of the Texas Code of Criminal Procedure.

“2. The State proposed to present the testimony of a child witness through closed circuit television equipment situated in the 186th District Court and a remote location within the District Attorney’s Office.

“3. The system consisted of two-way audio and video closed circuit system which allowed the child to observe the defendant while she testified from a remote location and further allowed the defendant to simultaneously observe the child while she testified.

“4. The State presented the testimony of a[n] expert technician who detailed the workings of the system.

“5. In support of its motion the State argued a particularized need and a compelling state interest in the protection of child witnesses who are too traumatized by the prospect of testifying in the same room as the defendant.

“6. The State presented the testimony of a child advocate, employed with the Bexar County District Attorney’s Office, Family Violence Unit, whose main duty is to prepare children to testify in the courtroom. The witness stated she was well-acquainted with the child and with the facts of this particular case. She unequivocally stated that through many hours of observation and interaction with the child witness she observed the ten-year-old girl to be very traumatized, very distraught, very frightened of the defendant, was intimidated by him and that the child was undergoing counseling. This witness specifically stated that there was a great need to present the testimony of this child witness from another room other than the one in which the defendant would be present.

“8. The State presented the testimony of the child witness’ grandmother with whom the child has resided since the incident resulting in defendant’s trial herein. She stated that the child has been suffering a great deal, has had nightmares, fears being alone, has been undergoing counseling, that she is not well, and that it would hurt the child emotionally to testify in the courtroom in the presence of the defendant. She further stated that it was her opinion that the child would be Unable to testify with the defendant present.”

The trial court then concluded that as a matter of law:

“1. The closed-circuit system was necessary to further the essential state interest in the protection of this child witness. “2. The presence of an intimidation factor and severe trauma to this child witness created the necessity of presenting her testimony via closed-circuit equipment.

“3. The two-way closed-circuit system employed by the State did not offend the defendant’s right to confrontation of witnesses against him ... and was within the holding of the United States Supreme Court’s decision of Coy v. Iowa....”

Yolanda testified before the jury that on a Saturday morning appellant came into the living room where she and her sister were watching cartoons. Appellant took her little sister into the bathroom. She waited outside the bathroom door where she was able to see inside. Yolanda observed appellant strike her sister on the back and in the head with “a bat.” When appellant noticed Yolanda watching, he called her into the bathroom. Appellant forced Yolanda to hold Yvette’s hands while he repeated the beatings. When he finished battering the child, appellant put Yvette on the toilet and sexually assaulted her while Yolanda watched. Appellant then got a sheet, wrapped Yvette in it and dragged her body out of the bathroom. Yolanda testified that appellant then made her and her younger brother clean up the blood that had splattered on the floor and walls. Appellant told Yolanda that if she ever told anyone what had occurred he would kill her. After being examined by the prosecuting attorney, appellant’s attorney cross-examined Yolanda.

II.

FEDERAL LAW

In Coy v. Iowa, four Supreme Court Justices believed that “the Confrontation Clause [of the Sixth Amendment to the United States Constitution] guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” 487 U.S. at 1016, 108 S.Ct. at 2800 (emphasis added), citing Kentucky v. Stincer, 482 U.S. 730, 748, 749-750, 107 S.Ct. 2658, 2669-2670, 96 L.Ed.2d 631 (1987) (Marshall, J., dissenting). However, two members of the Court who joined in the ultimate holding of the Coy opinion — that in that case the procedure of placing a screen between the accused and the child witnesses while the children testified before the jury violated the accused’s Sixth Amendment rights— refused to conclude that the Confrontation Clause always required a “face-to-face” encounter between the witness and the accused. Justice O’Connor writing for the concurrence agreed that the accused’s rights under the Confrontation Clause “were violated in this case.” 487 U.S. at 1022, 108 S.Ct. at 2803. Nevertheless, in her opinion “[Sixth Amendment] rights are not absolute but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony.” Id., (O’Connor, J., joined by White, J., concurring) (emphasis added). Two terms later, a majority of the Court did find such “an appropriate case.”

In Maryland v. Craig, — U.S. —, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), Justice O’Connor, now writing for the majority of the Court, determined that Maryland’s statutory procedure allowing for the use of a one-way closed-circuit television system for the receipt of testimony by a child was not violative of the Sixth Amendment’s Confrontation Clause. The Craig majority determined that “[although face-to-face confrontation forms ‘the core of the values furthered by the Confrontation Clause,’ ” — U.S. at —, 110 S.Ct. at 3164, 111 L.Ed.2d at 679, quoting California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-1935, 26 L.Ed.2d 489 (1970), such “is not the sine qua non of the confrontation right.” Id., citing Delaware v. Fensterer, 474 U.S. 15, 22, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (per curiam opinion); Ohio v. Roberts, 448 U.S. 56, 69, 100 S.Ct. 2531, 2540, 65 L.Ed.2d 597 (1980); Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1109-1110, 39 L.Ed.2d 347 (1974); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); Pointer v. Texas, 380 U.S. 400, 406-407, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965); 5 Wigmore, Evidence § 1395, p. 150 (Chadbourne rev. ed. 1974). The majority specifically held that:

“Given the State’s traditional and transcendent interest in protecting the welfare of children and buttressed by the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court, we will not second guess the considered judgment of the Maryland Legislature regarding the importance of its interest in protecting child abuse victims from the emotional trauma of testifying. Accordingly, we hold 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 use of a special procedure that permits a child in such cases to testify at trial against the defendant in the absence of face-to-face confrontation with the defendant.” — U.S. at —, 110 S.Ct. at 3168-3169, 111 L.Ed.2d at 685 (citations omitted).

The Court emphasized, however, that the finding of “necessity” must be on a case by case basis. “[T]he trial court must hear evidence and determine”: First, “whether use of the one-way closed-circuit procedure is necessary to protect the welfare of the particular child witness who seeks to testify.” — U.S. at —, 110 S.Ct. at 3169, 111 L.Ed.2d at 685, citing among other cases, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608-609, 102 S.Ct. 2613, 2621, 73 L.Ed.2d 248 (1982). Second, the trial court must also find “that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.” Id., citing State v. Wilhite, 160 Ariz. 228, 772 P.2d 582 (App.1989); State v. Bonello, 210 Conn. 51, 554 A.2d 277 (1989); Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987). Third and finally, the trial court must determine 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.” Id. If the trial court makes these three findings, then “the Confrontation Clause does not prohibit the use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.” — U.S. at —, 110 S.Ct. at 3169, 111 L.Ed.2d at 686. The Craig Court observed that the “rigorous adversarial testing” was accomplished in the case before it through the child (1) testifying under oath, (2) being subjected to full cross-examination and (3) being observed by the judge, the jury and the defendant. See — U.S. at —, 110 S.Ct. at 3170, 111 L.Ed.2d at 686.

III.

STATE LAW

Although the issue was not raised and argued by appellant in his brief before the Court of Appeals, that Court decided that the Texas Constitution provided for “face-to-face” confrontation. Gonzales, 784 S.W.2d at 727 (“we do not find that Coy differs that much from earlier decisions reached under TEX.CONST. art. I, § 10”) (dicta), citing Kemper v. State, 63 Tex.Crim. 1, 138 S.W. 1025, 1029 overruled by Robertson v. State, 63 Tex.Crim. 216, 142 S.W. 533, 546 (1911). The State takes issue with this finding. The State points out that “if there has been cross-examination there has been confrontation.” State’s Brief on the Merits at p. 41, quoting from Long v. State, 742 S.W.2d 302, 306 (Tex.Cr.App.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988), overruled by Briggs v. State, 789 S.W.2d 918 (Tex.Cr.App.1990). The State reasons that because in this case there was cross-examination there was compliance with Article I, Section 10 of the Texas Constitution. We agree.

In Long this Court suggested that the State Constitution afforded greater confrontational rights than those afforded under the Federal Constitution. 742 S.W.2d at 309 n. 9. Nevertheless, the State Constitution has never required that the accused and the witnesses against him come “face-to-face” in the trial court in all situations. See, e.g., Porch v. State, 51 Tex.Crim. 7, 99 S.W. 1122, 1124 (1907); Kerry v. State, 17 Tex.App. 178, 182-183 (1884); Greenwood v. State, 35 Tex. 587, 590-592 (1872). In fact, we have interpreted the State and Federal Constitutions as not requiring any type of confrontation (much less “face-to-face” confrontation) between certain hearsay declarants and the accused at trial. See, e.g., Porter v. State, 578 S.W.2d 742, 745 (Tex.Cr.App.1979); Coulter v. State, 494 S.W.2d 876, 881 (Tex.Cr.App.1973); Heflin v. State, 274 S.W.2d 681, 684 (Tex.Cr.App.1955); Lane v. State, 59 Tex.Crim. 595, 129 S.W. 353, 357-358 (1910); Taylor v. State, 38 Tex.Crim. 552, 43 S.W. 1019,1020 (1898); Black v. State, 1 Tex.App. 368, 381-385 (1876); Burrell v. State, 18 Tex. 713, 731-732 (1857). As the Court in Garcia v. State, 151 Tex.Crim. 593, 210 S.W.2d 574 (1948), recognized:

“It is generally agreed that the process of confrontation has two purposes. The main and essential one is to secure the opportunity of cross-examination [but t]he granted right is not fixed or immov-able_ Exceptions exist to its application, as evidenced by the receipt of evidence of dying declarations and res ges-tae statements of deceased persons and the reproductions of testimony given by witnesses where prior opportunity of cross-examination has been accorded.” 210 S.W.2d at 579 (opinion on rehearing) (citations omitted).

Thus, like the Craig court’s interpretation of the Confrontation Clause, this Court has interpreted the right to confrontation under the Texas Constitution in light of important policy considerations such that, while finding face-to-face confrontation furnishes the greatest assurance of compliance with the Constitution we have not determined that such is the only method of guaranteeing the confrontation rights afforded by Article I, Section 10 of the Texas Constitution.

We understand and readily accept that we are at liberty to interpret our Constitution as providing greater safeguards than those provided under the federal Constitution. Neither appellant nor the Court of Appeals, however, has presented us with compelling arguments for such actions on our part and we do not perceive any justification for doing so in the case before us. As discussed above, the Craig court outlined the important considerations which would justify a departure from a face-to-face confrontation. Those same considerations are equally applicable in the case before us today. Taking into account first, that there was confrontation in the form of cross-examination in the case before us, and second, the exigencies of the particular case before us, we will not read the right to confrontation guaranteed under our State Constitution as affording appellant the right to face-to-face confrontation. In short, we will use the same analysis applied in Craig to determine if the State Constitution has been violated in the case before us.

IY.

APPLICATION OF THE LAW TO THE FACTS

When we apply the Craig criteria to the case at bar, we must conclude that appellant was not denied his constitutional rights as guaranteed under him under either the State or Federal Constitution. That is, in the case at bar where the trial court has made specific findings supported by evidence that the two-way closed-circuit system: was needed to protect Yolanda’s welfare; that absent such a procedure Yolanda would be incapable of testifying in front of appellant; and that if the child were forced to testify in front of appellant such would add to or cause “severe trauma” to the child, we hold the use of the closed-circuit system did not offend either Constitution. We take into account that, albeit in a room away from appellant, the child’s testimony was subject to rigorous adversarial testing. Yolanda testified under oath, was subject to extensive cross-examination, and was observed by the judge, the jury and appellant. See Craig, — U.S. at —, 110 S.Ct. at 3169-3170, 111 L.Ed.2d at 686. Indeed, due to the two-way system that was utilized (unlike the one-way system in Craig), Yolanda was able to observe appellant while she testified. See and cf., Coy, 487 U.S. at 1019, 108 S.Ct. at 2802 (“A witness ‘may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts.’ ”), quoting Jay v. Boyd, 351 U.S. 345, 375-376, 76 S.Ct. 919, 936, 100 L.Ed. 1242 (1956) (Douglas, J., dissenting); Craig, — U.S. at —, 110 S.Ct. at 3174, 111 L.Ed.2d at 692 (“[Ujnwillingness [of child to testify in front of the defendant] cannot be a valid excuse under the Confrontation Clause whose very object is to place the witness under the sometimes hostile glare of the defendant.”) (Scalia, J., dissenting).

The Court of Appeals in this case decided that allowing the child to give her testimony via the closed-circuit system was constitutionally infirm. Specifically, the Court of Appeals — while correctly assuming that the opinion expressed by Justice O’Connor would control disposition of this case— found that use of the closed-circuit system violated the Confrontation Clause because in this case “[t]here is no statute declaring a public policy regarding the situation, nor any legislative finding of necessity.” We cannot agree with this analysis.

The Texas Legislature has sanctioned the use of a closed-circuit system (see footnote 3) but specified that the use of such is for those cases when the child witness is the “victim” of the offense and the offense is one specified within the statute. See Article 38.071, Sections 1 and 3, Y.A.C.C.P. Here the trial court judge allowed the child to testify in this murder case by way of the closed-circuit system because he believed that, since she was the victim in a sexual assault case then pending against appellant in another district court, the situation was covered by the statute. The Court of Appeals found that Article 38.071 did not authorize the trial court’s actions because the child was neither the victim of the offense then being tried nor was the offense one that is enumerated in Article 38.071. Gonzales, 784 S.W.2d at 728. This may be so; nevertheless, addressing the question of whether the Legislature intended to extend Article 38.071’s application to such a situation is really unnecessary for resolution of the issues. As the State has pointed out: “the ‘bottom line’ or central legal issue is the same with or without reference to article 38.071(3); the question being did the State’s prosecutorial innovation violate the defendant’s right to confrontation.” State’s Motion for Rehearing p. 4.

True, in Craig, the Supreme Court did talk in terms of the “State mak[ing] an adequate showing of necessity [such that] the state interest in protecting the child witness from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure_” — U.S. at —, 110 S.Ct. at 3169, 111 L.Ed.2d at 685. And we recognize that in Cog the Court intimated that exceptions to face-to-face confrontation “would ... be allowed only when necessary to further an important public policy.” 487 U.S. at 1021, 108 S.Ct. at 2803. But we see no reason why an expression of this important public policy must necessarily be in the form of an act or statute. More importantly, we have found nothing in any pertinent opinion from this Court or from the Supreme Court that would permit only the Legislature to make this “public policy” determination on behalf of the State. Here we recognize that among the general public policy considerations supporting the trial court’s actions in the case before us, are: (1) an expressed legislative concern that “seeks ... [t]o exclude the offender from all hope of escape”; (2) an expressed legislative concern to protect children under similar circumstances; and (3) the expressed affirmation and reaffirmation by the judiciary of this State and the United States that the protection of children is a legitimate and compelling state goal. See New York v. Ferber, 458 U.S. 747, 756-757, 102 S.Ct. 3348, 3354-3355, 73 L.Ed.2d 1113 (1982) (state interest in safeguarding the physical and psychological well-being of a minor is compelling); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982) (state interest in safeguarding protection of minor victims from further trauma); FCC v. Pacifica Foundation, 438 U.S. 726, 749-750, 98 S.Ct. 3026, 3040-3041, 57 L.Ed.2d 1073 (1978) (government interest in well-being of its youth); Ginsberg v. New York, 390 U.S. 629, 640, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195 (1968) (state has interest in the welfare of children and safeguarding them from abuses); Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 443, 88 L.Ed. 645 (1944) (state may secure against dangers to children). See also Duckett v. State, 797 S.W.2d 906, 916 n. 15 (Tex.Cr.App.1990). Given these legitimate — indeed, unquestionable — state goals or public policies applicable to the case before us today, and given the trial court’s case-specific determination that a certain procedure akin to that used in Craig was needed to protect the child witness, we do not read Coy or Craig as mandating some sort of enabling statute for the trial court’s actions.

The judgment of the Court of Appeals is reversed and the cause is remanded to that Court to address appellant’s due process claims that were not addressed on original submission.

. Apparently the other children in the home were too young and incapahle of being interviewed. Because of the visible injuries on Yolanda’s face and the death of Yvette, the surviving children were taken into custody.

. At trial, the doctor who performed the autopsy on the child testified that "because of the number of injuries" she had to separate the child's wounds into three categories: “very acute” (those injuries occurring within a twenty-four to forty-eight hour period); "subacute” (those which were about a week old); and "remote” (those which were over a month old). She described Yvette’s injuries as:

"The very acute injuries were those to the head, which resulted in a large amount of swelling of the brain, which caused her death. There were also very acute contusions to the upper and lower extremities, such as the slides show; also, to the back of both hands were recent bruises.

“The subacute or healing type of injuries were the injuries to the frenulum, to the mouth, the injury to the undersurface of the chin, and the incomplete amputation to the tip of the forefinger of the left hand.

"The evidence of older injuries would be all the scattered scars, mostly to the face, head and chest.”

. In 1983, the Legislature enacted Article 38.071, V.A.C.C.P., which provided in five sections for the taking of a child’s testimony who is a victim of an offense. Since its enactment, the Article has gone through several alterations — some in response to two decisions from this Court finding Sections 2, 4 and 5 facially unconstitutional. See Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988), overruled by Briggs v. State, 789 S.W.2d 918 (Tex.Cr.App.1990). See also Powell v. State, 765 S.W.2d 435 (Tex.Cr.App.1989). In its current form, Section 3 provides:

"The court may, on the motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed-circuit equipment to be viewed by the court, the court reporter and the finder of fact in the proceeding. Only the attorneys for the defendant and the State, persons necessary to operate the equipment, and any person whose presence would contribute to the well-being of the child may be present in the room during his testimony. Only the attorneys may question the child. Any person necessary to operate the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them. The comí: shall permit the defendant to observe and hear the testimony of the child in person, but the court shall ensure that the child cannot hear or see the defendant. On the application of the attorney for the defendant the court may recess the proceeding before or during cross-examination of the child for a reasonable time to allow the attorney for the defendant to confer with the defendant.”

. The hearing was nothing more than the attorney for the State arguing why the closed-circuit system was needed and the attorney for the defense lodging objections to the procedure. No testimony was heard.

. An employee with the Data Point Corporation, which was responsible for installing the closed-circuit system, also testified. He told the court how the system would work and what would be televised over the monitors that were to be placed in the court room and the room where the child was located. According to his testimony the child would be able to see and hear the State’s attorney when she was asking the questions and the defense attorney along with appellant when they were asking the questions. (When the child testified, the prosecutor asked her to identify appellant. Yolanda did so, saying that he was wearing a blue shirt.) Yolanda would not be able to see the jury or the judge but everyone in the courtroom would be able to see and hear her.

. We have reviewed the tape and note here that the child's facial expressions and demeanor are clearly visible to the viewer. She is seated in a chair and most of her body can be seen. Alvarez is seated next to the child; she remains silent throughout the examination and cross-examination.

. The Coy Court “Ie[ft] for another day ... the question whether any exceptions exist” to the “irreducible literal meaning of the Clause: ‘a right to meet face-to-face all those who appear and give evidence at trial.'" 487 U.S. at 1021, 108 S.Ct. at 2803 (emphasis in the original), quoting California v. Green, 399 U.S. 149, 175, 90 S.Ct. 1930, 1944, 26 L.Ed.2d 489 (1970) (Harlan, J., concurring).

. Pursuant to the Maryland statute, the trial court must first find that testimony by the child in the courtroom will result in the child suffering "serious emotional distress such that the child cannot reasonably communicate." If so found, the child, the prosecutor, and the defense attorney withdraw to another room where the child is examined and cross-examined. The judge, the jury and the defendant remain in the courtroom where the child’s testimony is televised via a closed-circuit one-way television system. The child cannot see the defendant but the defendant can see the child and remains in electronic communication with his counsel throughout the procedure. Objections are made and ruled on as if the witness were in the courtroom. See Maryland Courts & Judicial Procedure Code Annotated § 9-102 (1989).

. The Craig Court explained that the need for the second finding by the trial court was because:

"Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would he unnecessary because the child could be permitted to testify in less intimidating surroundings albeit with the defendant present." — U.S. at-, 110 S.Ct. at 3169, 111 L.Ed.2d at 685 (emphasis added).

. Here the Court was not willing to decide precisely what would suffice to meet this "more than a de minimis " standard. It noted that in the case before it, however, the standard established by the Maryland Statute whereby there must be a finding that the child will suffer serious emotional distress such that the child cannot reasonably communicate "clearly suffices to meet constitutional standards.” -U.S. at -, 110 S.Ct. at 3169, 111 L.Ed.2d at 685.

. This Court decided the issues regarding the defendant’s right to confrontation in Long based upon "independent” State grounds. Long, 742 S.W.2d at 323 n. 22.

. Early in this Court’s history, however, it was determined that the State constitutional provision providing that "the accused ... shall be confronted by the witnesses against him ...," Tex. Const, art. I, § 10, would be interpreted in accordance with the Sixth Amendment to the United States Constitution:

"The Constitution of 1876, in the Bill of Rights, provides that the accused 'shall be confronted by the witness against him.’ The Constitution of the Republic of Texas in 1836, when after the battle of San Jacinto and defeat of Santa Anna, a Republican form of government was here instituted, this exact language was used. Again in 1845, when, after knocking at the door, Texas was admitted into the sisterhood of states, this same language was brought forward in the organic law; and was also reiterated in the Constitutions adopted in 1861, 1866, and 1869. The language has been the same in each of these instruments. The sixth amendment to the Constitution of the United States provides that the accused shall have the right to be ‘confronted with the witnesses against him,’ and this same language is written into the supreme law of almost every state in the Union, and was embodied in the Constitution of the United States, and the different states of the Union prior to the date of the organization of the Republic of Texas, and at the time of its admission into the Union. Consequently Texas has but borrowed or copied this provision from the Constitutions and laws of the different governments of English-speaking people. Owing to the different constructions placed on this provision of the Bill of Rights by this court at different periods of its existence, we have given the question more than usual consideration, and have searched, not only the decisions of our own state but those of the courts of the United States and of the courts of last resort of the different states and have also burrowed into the role of construction and the construction given this language by the courts of England prior to the Declaration of Independence by the colonies. It is recognized by all courts that this provision was a part and parcel of the English law in the colonies prior to the revolt of the colonies, and we, in adopting this clause, but reiterated what was the law in the colonies prior to our independence.

"So when Texas adopted this clause, it was no announcement of a new right to a person accused of crime, but was simply a preservation of a right that was part of the law of England, of the Union, and of almost every state therein, and in arriving at a proper construction thereof, and to give the language its proper meaning, we must look to the decisions of England, of the United States, and the courts of the different states in the Union, for of such of them as were in existence at the birth of the Texas Republic they had long had this principle embedded in their system of government_’’ Robertson v. State, 63 Tex. Crim. 216, 142 S.W. 533, 533-534 (1911) (emphasis added).

. Admittedly, in Kemper, the Court held that a defendant "confronts” the witnesses against him by “having them come face-to-face.” 138 S.W. at 1039. Kemper was overruled the same year it was decided in Robertson v. State, which held that evidence of a witness from a former trial is admissible against an accused at his subsequent trial where the witness is either dead, insane or kept out of court by the wrongful actions of the accused. 142 S.W. at 546. Remarkably, the Court of Appeals relied upon this overruled case to find that the Texas Constitution always requires that the accused person, shall "come face-to-face” with the witnesses against him. Gonzales, 784 S.W.2d at 727. Robertson specifically held otherwise.

. The state’s generalized "showing of necessity” (phraseology in Craig) appears to be nothing more than a delineation of "important public policy” (phraseology in Coy) that in certain situations, face-to-face confrontation must yield. However, as discussed above, this finding of necessity or public policy on the State’s part is ancillary to the trial court’s finding of necessity based upon the particular facts of the case. See Craig, — U.S. at —, 110 S.Ct. at 3169, 111 L.Bd.2d at 685 (”[t]he requisite finding of necessity must of course be a case-specific one ...”). See also Coy, 487 U.S. at 1021, 108 S.Ct. at 2803 (“even as to exceptions from the normal implications of the Confrontation Clause ... something more than the type of generalized finding underlying such a statute is needed when the exception is not firmly rooted in our jurisprudence”).

. See Article 1.03, V.A.C.C.P. See also Craig, — U.S. at —, 110 S.Ct. at 3175, 111 L.Ed.2d at 693 (”conviction[ ] of [a] guilty defendant ] ... is not an unworthy [State] interest”) (Scalia, J., dissenting).

. While we might find that Article 38.071 was not intended to cover the exact situation before us, that Article is a clear indication to us that the Legislature has recognized the importance of protecting the young from the turmoil associated with having to give testimony in a courtroom and because of such it has acted to eliminate or alleviate that trauma within the parameters of the Constitution. When the Legislature amended Article 38.071 in 1987 it added a statement of purpose:

“Purpose. The purpose of this statute is to establish procedures for the taking of testimony of child complainants in certain criminal prosecutions, while preserving the constitutional rights of defendants....

“The state interest concerns the children who are victims of sexual offenses and who are subjected to the intimidating nature of confronting the defendant and the pressures related to the ordinary participation of the victim in a courtroom, trial. In addition, because a child is more likely than an adult to have a difficult time recovering from the trauma related to an offense, it is in the state’s interest that the child victim provide testimony as early as possible.

“Finally, it is in the interest of all parties that sufficient discretion be afforded courts hearing such cases, so that the competing interest can be balanced in an individualized manner. By providing the changes included in the Act the legislature believes that the courts will have a sufficiently flexible system that properly protects the rights of defendants while reducing the deleterious effects of the criminal justice system on certain child sex crime victims.” [Emphasis added.]

Thus, Article 38.071 denotes a general legislative intent to protect the youth of this State from the traumas associated with testifying in a courtroom and this should be weighed as a factor in favor of upholding the trial court’s decision in the case before us, not as the Court of Appeals would have it, as a factor to be weighed against the trial court’s actions.