Court of Appeals of Texas, Sixth District, Texarkana
Submitted Date: June 14, 2018
Appeal from the 276th District Court Camp County, Texas Trial
Court No. CF-16-01679
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss, III Chief Justice
Carlos Garcia was convicted by a jury of aggravated sexual
assault of Sally Smith,  a disabled individual, sentenced to
sixty years' imprisonment, and ordered to pay a $10,
000.00 fine. On appeal, Garcia argues that the trial court
erred in allowing Smith's mother to remain in the
courtroom during Smith's testimony. Finding no error in
the trial court's ruling, we affirm its judgment.
a party's request, the court must order witnesses
excluded so that they cannot hear other witnesses'
testimony." Tex. R. Evid. 614. Before hearing any
evidence, Rule 614 was invoked, and the trial court excluded
potential witnesses, including Smith's mother, Ronnie
Smith. However, after Ronnie testified, the State asked that
she be allowed to remain in the courtroom during Smith's
testimony. Garcia objected, pointed out that Ronnie was not
allowed in the room during Smith's Children's
Advocacy Center interview "so that there's no
suggestibility by an outside source," and argued that
"the mother being in the room is making it suggestible
to [Smith]." After questioning Smith, the trial court
overruled Garcia's objection and allowed Ronnie to remain
in the courtroom.
trial court specifically based its ruling on Article 38.074
of the Texas Code of Criminal Procedure. Under that Article,
a trial court may allow "any person whose presence would
contribute to the welfare and well-being of a child,"
Tex. Code Crim. Proc. Ann. art. 38.074, § 1(2) (West
Supp. 2017), to remain in the courtroom during the child
victim's testimony if the trial court finds, by a
preponderance of the evidence, that: "(1) the child
cannot reliably testify without the possession of the item or
presence of the support person, as applicable; and (2)
granting the motion is not likely to prejudice the trier of
fact in evaluating the child's testimony." Tex. Code
Crim. Proc. Ann. art. 38.074, § 3(b) (West Supp. 2017).
argues that the trial court misapplied Article 38.074 because
Smith, though having the mental capacity of a child, was
twenty years old at the time of trial. The State concedes
Article 38.074's inapplicability. However, it argues that
Article 36.03 permitted Ronnie's presence in the
courtroom. We agree.
36.03 was enacted as a part of 2001 legislation strengthening
the ability of crime victims and particular witnesses to
participate in certain criminal justice proceedings.
See Act of May 14, 2001, 77th Leg., R.S., ch. 1034,
§ 1, 2001 Tex. Gen. Laws 2290, 2290. The current version
of Article 36.03 states:
(a) Notwithstanding Rule 614, Texas Rules of Evidence, a
court at the request of a party may order the exclusion of a
witness who for the purposes of the prosecution is a victim,
close relative of a deceased victim, or guardian of a victim
only if the witness is to testify and the court determines
that the testimony of the witness would be materially
affected if the witness hears other testimony at the trial.
(b) On the objection of the opposing party, the court may
require the party requesting exclusion of a witness under
Subsection (a) to make an offer of proof to justify the
Tex. Code Crim. Proc. Ann. art. 36.03 (West
2007). A trial court is "without authority
to exclude [a qualifying witness] unless the court
determine[s] her testimony would be materially affected if
she heard the other testimony at trial." Wilson v.
State, 179 S.W.3d 240, 248 (Tex. App -Texarkana 2005, no
pet.). In the absence of such a showing, a trial court does
not err in allowing the witness to remain in the courtroom.
See id. Additionally, unlike Rule 614, Article 36.03
places the burden on the party seeking exclusion of a witness
to make an offer of proof to justify the
exclusion. Thus, "legal guardians of crime
victims should generally be permitted to stay in the
courtroom." Parks v. State, 463 S.W.3d 166, 174
n.6 (Tex. App-Houston [14th Dist] 2015, no pet.) (citing Tex.
Code Crim. Proc. Ann. art. 36.03(a)).
the evidence at trial established that, as a result of a
guardianship proceeding, Ronnie was appointed as Smith's
permanent legal guardian of Smith's person and estate.
Ronnie was initially excluded from the courtroom as many of
the State's witnesses testified. When the State asked
that she be allowed to remain during Smith's testimony,
Garcia failed to argue or make any showing that Ronnie's
testimony would be materially affected if she heard
Smith's testimony, presumably because Ronnie testified
before Smith and was not recalled. Additionally, the record
also shows that Garcia failed to make an offer of proof
justifying Ronnie's exclusion. As a result, we find no
error in the trial court's decision to allow Ronnie to
remain in the courtroom and overrule Garcia's point of
separate point, Garcia also argues that Ronnie's presence
in the courtroom during Smith's testimony violated the
Confrontation Clause and his due process rights. "As a
prerequisite to presenting a complaint for appellate review,
the record must show that: (1) the complaint was made to the
trial court by a timely request, objection, or motion."
Tex.R.App.P. 33.1(a)(1). Additionally, a "point of error
on appeal must comport with the objection made at
trial." Clark v. State,365 S.W.3d 333, 339
(Tex. Crim. App. 2012). "Therefore, if a party fails to
properly object to constitutional errors at trial, these
errors can be forfeited." Id. Here, the record