Texas Courts of Appeals
Cervantes v. State
No. 10-19-00019-CR 10/4/19
Issues:
- Is it a violation of a defendant’s Sixth Amendment right for a court to permit a witness to testify in trial using real-time tele-video communication (Skype)?
- Is testimony of more than one outcry witness admissible under Code of Criminal Procedure Art. 38.072?
Holdings:
- No. The trial court utilized a system where the witness could testify without violating the defendant’s Sixth Amendment right to cross-examine the witness. The Skype system allowed for contemporaneous transmission and cross-examination. The witness confirmed that she could see both counsel tables on the screen and that she could see—and in fact did identify—the defendant. Additionally, counsel for the defendant was able to cross-examine the witness in the jury’s presence, and the jury was able to view the witness and her demeanor.
- Yes. Outcry testimony is specific to an event rather than a person. More than one outcry witness may testify when the outcry statements are about differing events and not a repetition of the same events. Read Opinion.
Commentary:
As to the first issue, there is little analysis, and only a little case law cited. For example, the court did not cite to Coronado v. State, 351 S.W.3d 315 (Tex. Crim. App. 2011). But the case law in this area is in fact sparse, even with the advancements in technology. Still, there is much more to be said about this issue than is present in this decision. Rely on this decision cautiously. Although it is not necessarily incorrect, it is a difficult thing to deny a defendant his right to face-to-face confrontation. Based on Coronado and other cases, a better approach might be to have the witness’s testimony taken by deposition with defendant, defense counsel, and prosecutor present, and perhaps even with the trial judge present to rule on any objections.
Texas Attorney General Request for Opinion
RQ-0317-KP Request Received 12/5/19
Question:
Does Code of Criminal Procedure Art. 59.06(d-2)(2) allow a sheriff’s office to make a donation from forfeited funds to a local non-profit entity to assist in the provision of mental health services, drug counselling services, and services for victims of domestic abuse? Read Request.