July-August 2007

Leveling the playing field

Brad Settersberg

Assistant County Attorny in Fannin County

By all accounts, 17-year-old Joseph Lee Belt was a quiet, hard-working, well-mannered young man. He was polite to his neighbors and helped his grandmother, with whom he lived in Bailey. He held a job, raised animals for show, and never used foul language. But Joey, as his family called him, had his sinister side too, and it surfaced on the afternoon of October 21, 1999.

The crime

Belt’s cousin, Jack, was visiting for the day. Jack was 9 years old and lived with his mother just a few blocks away. While Jack was inside playing video games, Belt approached him and told Jack to come out into the backyard. He led Jack to a small storage shed and, once the boy was inside, closed the door behind them. Motioning to a .22 rifle leaning against the wall, Belt instructed Jack to pull down his pants, turn around, and bend over. He threatened to kill Jack unless he did as he commanded. When Jack bent over, he felt an intense, excruciating pain in his “backside,” as Belt tried repeatedly, but unsuccessfully, to insert his penis into Jack’s anus. This went on for several minutes, with 9-year-old Jack crouched on the dirt floor of the shed, crying and unable to focus on anything but the pain. Belt then instructed Jack to turn around and give him oral sex, again threatening to kill Jack if he did not comply. Although Jack cried during the assault, he never called out for help because he was afraid of what his cousin would do. When the assault was over, Belt reiterated his threat to kill Jack if he didn’t keep his mouth shut.

This wasn’t the first time Belt had sexually assaulted his young cousin. Years earlier, Belt had forced him to perform oral sex at their grandmother’s house in south Bonham. Much as in the more recent case, Belt waited to get Jack alone and outside (this time in a rabbit pen) and threatened him with physical harm unless he remained silent.
The sum total of these experiences was an abiding and certain understanding in Jack that Joey Belt was capable of just about anything. For years, Jack didn’t tell a soul about the abuse he suffered at the hands of his cousin. Instead, he internalized the assaults and continued to live as he always had: close to his attacker, forced to see and interact with him as if nothing had ever happened, and under the constant threat of retaliation and continued abuse.

Not surprisingly, Jack acted out. He had behavior problems and difficulty in school, and he frequently got into fights. Jack also acted out sexually, as victims of sexual assault often do. Only after a neighbor confronted him about his behavior did Jack finally break down and tell what had happened to him in the shed. The neighbor in turn told Jack’s mother, who took him to the local hospital, where Jack gave a similar outcry to the attending physician. He was scheduled for an interview with CPS (Bonham did not have a children’s advocacy center at this time) and for a SANE exam in neighboring Denison. The exam showed no findings, but Jack related the abuse to the examining nurse. Based on these outcries, a warrant was obtained for Belt’s arrest. Five and a half years later, the case finally went to trial.

Victim issues

It is a distressing reality in our jurisdiction that some cases, even those as heinous as aggravated sexual assault of a child, can go five or six years before going to trial. Resources and funding priorities being what they are in a rural county, our trial schedule is motivated almost entirely by the desire to avoid overcrowding in our jail. Defendants who can make bond, like Belt, have a decided advantage in avoiding their day in court. And when that day finally comes, it brings with it unique challenges for the State. Over time, witnesses tend to disappear. Memories fade. Evidence gets lost. All of this happened with the Belt case. However, after locating all relevant witnesses, arranging to bring Jack and his family in from North Dakota, and resolving ourselves to the fact that the .22 rifle and forensic interview tape were lost forever, we ran into one problem we were completely unprepared for: Jack was not willing to talk.

Leading up to trial, I spoke to Jack a couple of times by telephone. He was understandably reluctant to talk but was nonetheless forthcoming with details about what happened. He understood what would be required of him: that he would come into the courtroom, take an oath to tell the truth, and then relate the most humiliating events of his life to a room full of strangers. He knew all of this would be on the record. He knew he would have to match wits with a defense attorney. He knew he would be attacked as a liar. Most importantly, he knew he would have to do all of it in front of the person who assaulted him. But somehow there was a substantial disconnect between Jack’s objective understanding of his role and his emotional readiness to play it.
I discovered this disconnect for the first time less than two hours before we were supposed to be in court. We had picked a jury that morning, and defense counsel had requested a hearing to test Jack’s competency to testify. While we adjourned for lunch, I met Jack face-to-face for the first time in my office. I explained the situation to him and tried to go over his testimony, but Jack wouldn’t cooperate. He said he was nervous and that he didn’t want to go through with it, and he refused to tell me anything but the most peripheral of facts. As I tried to probe Jack a little more, he became aggressive and at one point told me he was getting his family and going home. I could tell I was getting nowhere, so I released him for lunch, told my investigator to make sure he didn’t skip town, and went back to my office to ponder our next move.

CCP to the rescue

I discussed the matter with assistant county attorney James Moss, who reminded me of a case in which we’d tried to offer the child victim’s forensic interview tape in lieu of her testimony. We had been unsuccessful in doing so, but the idea got me thinking. In certain types of cases, Article 38.071 of the Code of Criminal Procedure allows the State to offer a child victim’s testimony via videotape or closed circuit television when the court determines that the victim is unavailable to testify in the defendant’s presence.1 “Unavailable” in this sense means more than just uncomfortable. The child must be traumatized by the defendant’s presence beyond mere nervousness, excitement, or unwillingness to testify.2 My understanding at the time was that a counselor, family member, or someone else would have to describe the toll that testifying would take on the victim. At this late stage, I had no such witness.
At the hearing, though, it proved not to be a problem. All of the pressure Joey Belt had brought to bear on Jack over the years still lingered when Jack took the stand. After I cleared some background questions and began to ask about Jack’s relationship with his cousin, Jack came unglued. He began to hyperventilate. He complained of being light-headed and unable to breathe. He stated repeatedly that he did not want to answer questions and that he wanted to leave. Even when the judge became involved in the questioning, Jack did not budge.3

The hearing lasted over an hour, with Jack vociferously declaring he would not answer questions. We never even discussed the abuse. It was obvious Jack’s behavior was more than mere hysterics or teenage angst. Everyone watching could see that he was struggling with something he had hoped and tried to put behind him for years. Right before our eyes Jack reverted from the tough, strong, 15-year-old young man who walked into that courtroom to the meek and terrified little boy who was sexually assaulted in the shed so many years ago. But in between long, often stubborn pauses in which he repeatedly fought back tears, Jack gave enough information to establish his competence and lay the predicate for our outcry witness. At the conclusion of the hearing, the court, over objection, declared Jack would be allowed to testify from an adjacent room while the jury watched through live, closed-circuit television.
Testimony began the next day, and Jack was our sixth witness. Before he was brought in, the court took a 15-minute recess so we could set up the video camera. From a technical standpoint, it was really very simple. The video camera and tripod came from our children’s advocacy center and connected to the TV through a 50-foot A/V cable.4 The camera and television had matching ports, so it was just a matter of plugging the cable in and stretching it between the adjoining rooms. Plug and play at its best.
The only people in the side room were Jack, lead defense counsel, the court reporter, the judge, and me. The defendant remained in the courtroom with his co-counsel, my co-counsel, the bailiff, and the jury. Importantly, the defendant had access to one of his lawyers at all times, and defense counsel was permitted to break the proceedings whenever necessary to confer.

Procedurally, the examination went as it normally would with the exception of periodic conference breaks by counsel. There were only a few of those, and they came at natural stopping points, such as transition from direct-examination to cross and back.
Jack was much improved in this setting, though still extremely hesitant. He was quite apprehensive as the questions were posed to him, and his testimony just seemed to crawl along. I became worried the jury might find it too disjointed to follow, especially without a real live person sitting in front of them. But though he was slow, Jack was very clear. He was unwavering, and most importantly, he was believable. He related exactly what Belt had done to him in that shed, and all of my concerns about the jury following Jack’s testimony evaporated once we returned to the courtroom. It seems Jack’s story moved four of the jurors to tears, while the rest sat motionless and watched with rapt attention.5


Joey Belt was found guilty of two counts of aggravated sexual assault of a child and two counts of indecency with a child. He was sentenced to terms of 50 years, 25 years, 11 years, and six years, and was fined $40,000.

Jack’s testimony carried the day. The jury later told me they would never have sentenced such a young defendant to such a harsh term had the severity and brutality of his crimes not been apparent.6 They credited Jack and the raw emotion underlying his testimony with getting them to see past six years of the court’s inaction, the missing rifle and video, forgetful witnesses, the defendant’s benign appearance, and the recalcitrant teenager on the stand. Instead it allowed them to see the little boy who had been hurt and terrified years before.

If Jack had been forced to take the stand in front of Belt, I have no doubt his emotion would have inhibited his ability to relate what happened. In this case, the provisions of Article 38.071 made the difference between a guilty and not guilty verdict. And though it may only apply to a fraction of cases in which the facts are perfectly aligned, I have no doubt that 38.071 will continue to be an invaluable tool in the prosecution of crimes against Texas children.


1 See Tex. Code Crim. Pro. Art. 38.071, sec. 3 (Vernon 2005). Basically, the article applies to assaultive and sexual crimes against children. Note that the Court of Criminal Appeals has ruled that the procedures outlined in Art. 38.071 may be used for witnesses older than 13, even though the statute states that it applies to witnesses younger than 13. See Marx v. State, 987 S.W.2d 577, 580 (Tex. Crim. App. 1999) (13-year-old mentally retarded child victim could testify via closed-circuit television).
2 See Hightower v. State, 822 S.W 2d 48 (Tex. Crim. App. 1991).
3 Prosecutor: Why didn’t you tell anyone immediately after the events [in the shed] were over?
The witness: I want to leave. I—I can’t breathe. I need to get out of here. I need to leave.
The Court: OK. You need to go ahead and answer the question.
The witness: I don’t want to answer the question.
The Court: I’m not insensitive to the fact that you have—that you don’t want to answer the question, but you need to go ahead and answer the question.
The witness: I don’t want to answer the question. I want to leave. I’m not answering no questions.
The Court: You need to answer the question. [long pause] We will be here until the questions are answered.
The witness: So be it. [long pause]
The Court: You need to answer the question now.
The witness: Can you not get that I’m not going to answer any questions? I mean, what’s so hard—what do you not understand about that? Answering no questions. I’m in a very uncomfortable spot. I can’t breathe. I’m shaking. About to pass out. There’s too many people in this room for me to say anything.
4 The one with the red, white, and yellow hookups, available at any Wal-Mart or electronics store.
5 This came from my co-counsel, Richard Glaser, who is our elected county attorney.
6 Belt was sentenced the day after his 24th birthday.