COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-455-CR
DONALD JOSEPH BANKS, SR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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Because we made a minor modification to our original opinion, in the
addition of a footnote to page 4, we withdraw our prior opinion of May 22,
2008, and substitute the following memorandum opinion in its place.
1
… See T EX. R. A PP. P. 47.4.
I. Introduction
In two issues, appellant Donald Joseph Banks, Sr. appeals his convictions
for one count of injury to a child and one count of aggravated sexual assault.
He asserts that the trial court erred by allowing a child, “Jane Doe,” to testify
by videotaped closed-circuit television because the State failed to prove the
necessity of such procedure and because the statute authorizing the procedure
was unconstitutional as applied to him. We affirm.
II. Factual and Procedural History
The State alleged that, on June 5, 2005, Banks anally penetrated his
eight-year-old granddaughter, “Jane Doe,” when she spent the night at his
residence. Doe told her mother the next day about what had happened, and
Banks was arrested.
On August 7, 2006, a pretrial hearing was held on a motion to quash the
State’s subpoena of Doe, to determine whether to allow Doe’s recorded
testimony. Carissa Matlock, Doe’s guardian ad litem, testified that, based on
her relationship with Doe and her review of the records provided by Doe’s
counselor, Arthur Madden, she did not feel that it would be in Doe’s best
interest to testify in this case, either live or by closed circuit television. Matlock
added that she would do whatever possible to stop Doe from having to testify
because Doe was starting to make progress. However, Matlock did state that
2
it would be better for Doe to testify now than to wait until some point in the
future to bring the case.
A statement from Madden was also considered at this hearing. It read in
part:
4. In order to effectively process past abuse, the patient must
build a meaningful relationship with me and feel comfortable
discussing the events and associated trauma.
5. Only within the last month has [Doe] been able to form such a
relationship with me and been willing to approach the subject of
the abuse at the hands of her grandfather.
6. On June 26, 2006, during our session, for the first time, she
gave me her full recollection of the events surrounding her
grandfather’s abuse, but made clear to me that she would tell the
story only one time and did not want to talk about it again.
7. I do not believe that [Doe] will re-tell the events, especially in a
strange environment and to strangers. I predict that she will likely
refuse to speak about the assault.
8. I believe that to repeat her recollection or to face questions
about the assault will be harmful to [Doe]. [Doe] has already been
struggling in a therapeutic environment and she should not be
forced to repeat her recollections.
9. I believe that to testify or respond to questions about the abuse
will result in more trauma to [Doe].
10. I have no reason to believe that [Doe]’s version of the events
surrounding her grandfather’s assault is not true.
11. In conclusion, from a clinical standpoint, I do not believe that
it is in [Doe]’s best interest to be questioned or be forced to testify
about the assault at this time.
3
The trial court ruled,
So I’m going to go back and basically make the finding based on
everything that I’ve been provided that the child is younger than 13
years of age, is unavailable to testify in the presence of the
Defendant as outlined in the requirements and the conditions for
making such a finding. I’m going to basically say that the
testimony is going to be done by closed circuit television[.]
The trial court’s subsequent Order read in part,
The child, [Doe], is under thirteen (13) years of age.
The child, [Doe], is unavailable to testify in the presence of
the Defendant, [Banks], within the meaning of article 38.071 of the
Texas Code of Criminal Procedure. . . . [T]he child’s trial testimony
shall be taken via closed-circuit television on that date. Counsel for
the State and Counsel for the Defendant shall be permitted to
question the child fully at this time . . . . [T]he Defendant shall be
permitted to view and hear the testimony of the child as it
progresses, via one-way monitor. Defendant’s counsel shall be
permitted to take breaks and consult with the Defendant as
necessary.
On August 23, 2006, the trial court conducted a hearing in which Doe’s
videotaped testimony was taken.2 At the conclusion of testimony in the
hearing, the Court clarified that Banks had the opportunity to converse with
counsel during the hearing, and that the conversations took place whenever
they were requested.
2
… “Jane Doe” was cross-examined extensively by defense counsel,
consisting of some thirty-nine pages from the court reporter’s record.
4
On October 2, 2006, Banks pled not guilty to both counts. Banks
objected to the showing of Doe’s videotape, and the trial court overruled his
objection. Doe’s previously recorded testimony was shown to the jury, and
numerous other witnesses testified. The jury found Banks guilty of injury to a
child and aggravated sexual assault, assessing punishment at ten years’
confinement on the injury to a child count and ninety-nine years’ confinement
on the count of aggravated sexual assault. This appeal followed.
III. Face-to-Face Confrontation
In his first issue, Banks complains that he was denied his right to confront
Doe in person because the State failed to prove the necessity of allowing her
testimony to be presented by videotape. Specifically, Banks argues that there
was insufficient proof presented to the trial court that his presence would cause
trauma to Doe and that the trial court should have reassessed the
“unavailability” of Doe at the time of trial.
A. Standard of Review
When determining whether the trial court correctly determined that Doe
would not be required to confront Banks face to face, we review the court’s
ruling for an abuse of discretion. Rangel v. State, 199 S.W.3d 523, 531 (Tex.
App.—Fort Worth 2006, pet. dism’d); Barnes v. State, 165 S.W.3d 75, 84
(Tex. App.—Austin 2005, no pet.). We will not reverse a trial court’s ruling
5
that is within the zone of reasonable disagreement. See Green v. State, 934
S.W.2d 92, 102 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g).
B. The Statutory Requirements for Videotaped Testimony of a Child
Article 38.071 of the Texas Code of Criminal Procedure, entitled
“Testimony of child who is victim of offense,” sets forth, inter alia, the
parameters for videotaping a child’s testimony and the requirements for the trial
court to determine when a child is “unavailable” to testify in the presence of the
defendant about a sexual offense. T EX. C ODE C RIM. P ROC. A NN. art. 38.071
(Vernon Supp. 2007). Specifically, sections 4 and 8 of the article read in part
as follows:
Sec. 4. (a) After an indictment has been returned . . . the court
may order that the testimony of the child be taken outside the
courtroom and be recorded for showing in the courtroom before the
court and the finder of fact. . . . The court shall permit the
defendant to observe and hear the testimony of the child and to
communicate contemporaneously with his attorney during periods
of recess or by audio contact but shall attempt to ensure that the
child cannot hear or see the defendant.
(b) The court may set any other conditions and limitations on the
taking of the testimony that it finds just and appropriate, taking
into consideration the interests of the child, the rights of the
defendant, and any other relevant factors. The court shall also
ensure that:
6
(1) the recording is both visual and aural and is recorded on
film or videotape or by other electronic means[.]
....
Sec. 8. (a) In making a determination of unavailability under this
article, the court shall consider relevant factors including the
relationship of the defendant to the child, the character and
duration of the alleged offense, the age, maturity, and emotional
stability of the child, and the time elapsed since the alleged
offense, and whether the child is more likely than not to be
unavailable to testify because:
(1) of emotional or physical causes, including the
confrontation with the defendant; or
(2) the child would suffer undue psychological or physical
harm through his involvement at the hearing or proceeding.
(b) A determination of unavailability under this article can be made
after an earlier determination of availability. A determination of
availability under this article can be made after an earlier
determination of unavailability.
Id. art. 38.071, §§ 4, 8. Such statutory schemes have been generally
approved by the United States Supreme Court. See Maryland v. Craig, 497
U.S. 836, 857, 110 S. Ct. 3157, 3169 (1990) (concluding that a statutory
procedure utilizing closed-circuit television for receipt of testimony did not
violate a defendant’s rights under the Confrontation Clause articulated in the
Sixth Amendment in the United States Constitution).
In Craig, the Court said,
7
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 witness in such cases to
testify at trial against a defendant in the absence of face-to-face
confrontation with the defendant.
Id. at 855, 110 S. Ct. at 3169 (emphasis supplied). In making this “necessity”
finding, our court of criminal appeals has held that it
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.” 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.” 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.” 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.”
Gonzales v. State, 818 S.W.2d 756, 762 (Tex. Crim. App. 1991) (citations
omitted), cert. denied, 507 U.S. 939 (1993).
C. Application
In reviewing article 38.071, we first note that Doe was only nine years
old at the time of trial, thus meeting the statute’s “under age thirteen
requirement.” T EX. C ODE C RIM. P ROC. A NN. art. 38.071, § 1. Like in Barnes, the
8
trial court conducted a hearing on the necessity for using closed-circuit
television but did not make express findings of fact and conclusions of law.
See 165 S.W.3d at 84. By permitting the use of the closed-circuit television
system, however, the court implicitly made the constitutionally required
findings. See id. Banks urges that the evidence adduced at the hearing is not
sufficient to support these findings.
An initial review of section 8(a) of article 38.071 reveals that there are
two circumstances under which it may be determined that a child is
“unavailable” to testify, due to (a) emotional or physical causes, which include
confrontation of the accused, or (b) the suffering of undue psychological or
physical harm through the involvement of the accused in the hearing. T EX.
C ODE C RIM. P ROC. A NN. art. 38.071, § 8(a). Matlock’s testimony, as guardian
ad litem, and Madden’s letter appear to satisfy the first circumstance.
However, it is unclear whether this circumstance satisfies the requirement,
imposed by our court of criminal appeals in Gonzales, “that the child witness
would be traumatized, not by the courtroom generally, but by the presence of
the defendant.” Gonzales, 818 S.W.2d at 762.
Here, we seem to have a middle ground, wherein the concern expressed
by Matlock and Madden is for the child having to recount the occurrence itself
and the questioning of the surrounding events concurrent therewith. Naturally,
9
this would occur in a trial setting with the defendant present. However, at no
point did either Madden or Matlock directly mention that the defendant’s
presence was the source of the trauma. Rather, it was the questioning and the
recounting of the occurrence that they described as the source of the trauma.
Hence, we cannot say that article 38.071, section 8(a)(1) was satisfied, or that
section 8(a)(2) would have been. Therefore, there was insufficient evidence to
support the trial court’s order, constituting an abuse of the trial court’s
discretion.
D. Harm Analysis
Having found error, we must conduct a harm analysis to determine
whether the error calls for reversal of the judgment. T EX. R. A PP. P. 44.2. For
a constitutional error, we apply rule 44.2(a) and reverse unless we determine
beyond a reasonable doubt that the error did not contribute to the appellant’s
conviction or punishment. T EX. R. A PP. P. 44.2(a).
Our harmless error analysis should not focus on the propriety of the
outcome of the trial; instead, we should calculate as much as possible the
probable impact on the jury in light of the existence of other evidence.
Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied,
532 U.S. 944 (2001). We consider the source and nature of the error, the
extent that it was emphasized by the State, its probable collateral implications,
10
the weight a juror would probably place on the error, and whether declaring it
harmless would be likely to encourage the State to repeat it with impunity.
Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). This requires
us to evaluate the entire record in a neutral, impartial, and even-handed manner,
not “in the light most favorable to the prosecution.” Id. at 586.
Doe’s general videotaped testimony from the closed circuit hearing was
that, when she was eight years-old, she and her brothers stayed over at
Banks’s house after her mother dropped them off at a park and left them with
Banks.3 While she was in bed asleep, Banks pulled down her shorts and panties
and stuck his “body part” in her “bum-bum,” which woke her. 4 After she woke
up, she went into the bathroom, and after she wiped, she saw blood; she had
not been bleeding before she went to sleep. After she left the bathroom, she
went into the living room to sleep. Later, when she woke up, Banks took her
back to her house, where she told her mother what had occurred. Doe also
stated that she told Banks that she was going to tell her mother what he had
3
… Doe testified both that this was the first time she had stayed at
Banks’s house and that she had slept there on prior occasions.
4
… After being shown diagrams of a male and female body, Doe stated
that she called her rear end both her bum-bum and her butt, that she had
referred to Banks’s penis as his body part, and that his penis was what he had
put in her bum-bum.
11
done and after she told her mother, the police came, and she was taken to a
hospital where a nurse examined her and took the clothing that she had been
wearing at the time of the alleged sexual assault.
The question here is whether the trial court’s order allowing Doe to give
this testimony via closed-circuit television was harmless beyond a reasonable
doubt. See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).
In applying the “harmless error” test, our primary question is whether there is
a “reasonable possibility” that the error might have contributed to the
conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)
(op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
1. State’s Witnesses
Callie Siegler, the Sexual Assault Nurse Examiner (“SANE”) coordinator
at United Regional Hospital, testified that she had participated in Doe’s
examination on June 5, 2005, and described the history she took from Doe.
She recorded on her medical chart, word for word, that Doe told her that Banks
had humped her, that he ceased when she woke up, and that it hurt. Siegler
stated that, as they were about to begin the physical exam, Doe told her that
Banks had “put it inside me” and she pointed between her legs.
Siegler then testified that the physical examination revealed a fresh tear
posterior to the anus containing frank blood that was an inch and a half in
12
length. 5 She observed Doe’s injured area with both a colposcope and with the
naked eye. Siegler testified that State’s Exhibit 11 was a photograph of the
genital area of Doe, and that it showed a tear that was very close to the
entrance of the anus. Siegler testified that it was significant that there was a
tear in that area, as positive findings are found in less than 10% of
examinations. Siegler testified that the tear was consistent with Doe’s history
of sexual assault, although that type of injury was consistent with blunt force
trauma, which could be caused by things other than a male penis.
Estes testified that there was no trauma to Doe’s vaginal area, but that
there was an abrasion on the rectum that contained frank blood, and opined
that based on her experience and training, the tear of Doe’s rectum was a fresh
tear. Estes testified that State’s Exhibit 6 was a photograph taken with a
colposcope of Doe that shows the tear posterior to Doe’s anus.6 Estes testified
5
… Jamie Estes, another SANE, who performed Doe’s examination with
Siegler, defined frank blood as fresh, red blood from an actively bleeding
abrasion.
6
… Estes also testified that Dr. Jayme Coffman, from Cook Children’s
Hospital in Fort Worth, was emailed a copy of the photos. Dr. Coffman, a
pediatrician and healthcare provider to child victims of sexual abuse, also
testified at trial, during Banks’s case in chief. Estes testified that Dr. Coffman
had noted that the tear was in the perineum, but explained that the emailed
photos had not included the rectum; thus, there was no frame of reference for
Dr. Coffman to determine what area of Doe’s body she was looking at.
13
that the tear was consistent with anal penetration by the male sexual organ,
but agreed that there were causes other than anal penetration for that type of
injury. She testified that, to her knowledge, there was no trauma to the anus
and that there was no evidence of any type of lubrication.
Deanna Tofte, a Wichita Falls police officer, testified that she had been
the lead investigator in the Banks case. She testified that she had been
dispatched on June 5 in the evening on a report of possible sexual assault that
had occurred on June 4, and that the alleged victim was Doe. Officer Tofte
testified that she took Doe to the hospital, waited while the exam was
performed, and then took Doe to the child advocacy center, where Tracy
Anderson of CPS interviewed Doe. Officer Tofte stated that Doe’s interview
was recorded and that she watched the interview through a two-way mirror.
Based on Doe’s statement and the medical exam results, she obtained a search
warrant, served the warrant at Banks’s residence, and arrested him. 7
Officer Tofte testified that after she arrested Banks, she Mirandized 8 him
and then obtained a videotaped statement. Tofte further testified that she did
7
… Officer Tofte admitted that, in the search warrant, she made a mistake
in her “articulation of the actual injury and how it occurred.”
8
… Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
14
not threaten, coerce, or abuse Banks, nor promise him anything or deny him
water or access to the restroom. Tofte testified that State’s Exhibit 4 was an
original recording of Banks’s statement. State’s Exhibit 4 was published to the
jury.
Tammy Byers, a lab analyst with the Department of Public Safety
(“DPS”), testified that when she received State’s Exhibit 7, a box containing
vaginal and anal swabs and Doe’s clothing, she unsealed the box and tested its
contents. She testified that she did not detect any semen or spermatozoa on
the vaginal or anal swabs or on any of the clothing. Byers further stated that
there was a presumptive test for the presence of blood done on a stain in the
crotch area of the panties, and that it was positive, but that, without DNA, she
could not specifically state that it was human blood, and that she had no way
to tell how long the blood had been there.
Madden, Doe’s counselor, testified that on June 26, 2006, Doe told him
about the alleged assault. He read verbatim the following from his report:
It says, [Doe] states that at her grandfather’s . . . house in the
middle of the night, he woke her up. She states he was lying
behind her, and said that they were both on their sides. She states
he pulled down her shorts and was humping her. She states it
hurt, and she said, I’m going to tell Momma. He said, I didn’t do
it, and if I did, I’m sorry.
She states that she went to the bathroom and discovered she
was bleeding from the rectum. She states she then went to the
15
living room, where her grandfather’s girlfriend was sleeping on the
couch. She states Margie . . . woke up and gave her a sheet, and
[Doe] slept on the couch.
[Doe] said her grandfather . . . took them home the next
morning, and she told her mother as soon as she got home. Her
mother reportedly phoned the police.
Madden further testified that, in his experience, children typically prefer
not to disclose abuse, that it was unusual for the alleged victim to confront the
alleged abuser, and that it did not appear Doe was being used by anyone.
Although Madden also testified that part of the reason Doe had been brought
to counseling was physical abuse and neglect perpetrated by her mother, he
restated that, in his experience and training, eight-year-old females do not
typically dream about being sexually assaulted and that Doe exhibited signs and
symptoms consistent with sexual assault.
2. Defense Witnesses
Dr. David Sabine, a clinical psychologist, testified that he had been asked
to perform a psychological evaluation of Doe and that he had performed an
assessment of her intellectual, academic, and emotional functioning. Dr. Sabine
testified that there was no evidence in the tests that he conducted to support
the idea of sexual abuse. However, he also stated that he was not testifying
that sexual abuse had not occurred, and that a child with Oppositional Defiant
16
Disorder, 9 which Doe has, could be sexually abused. He added that Doe’s low-
average range intellectual ability made it less likely that she would fantasize
about sexual abuse. Dr. Sabine also testified that while it is common for
Oppositional Defiant children to lie about things, it is uncommon for them to lie
about sexual abuse.
Dr. Marvin Leon Morris, a forensic psychologist, testified that although
he had not examined Doe, he had reviewed records, reports, transcripts, and
videotapes related to her. He further testified that he felt that the CPS
interviewer did not ask the questions in a neutral way and might have biased
Doe. 10 Dr. Morris testified that he was not asked to tell the jury whether Doe
was abused, but rather, to tell the jury about what he felt to be a faulty
interview technique utilized by CPS. However, he also testified that he had
never performed the type of interview that CPS had performed and that he was
9
… Dr. Sabine testified that Oppositional Defiant Disorder
is a disorder of childhood that’s characterized by children who are
often oppositional, meaning that they resist authority and they’re
defiant. They often will say no when asked to do things. It also
involves sometimes lying and stealing and acting out in terms of
behavioral dyscontrol, being unable to manage their behavior well.
10
… Morris also stated that he had a problem with the videotaping done
by the trial court, as he felt leading questions were asked by both the State and
Banks’s counsel.
17
only there to testify about the proper procedure for concluding an interview.
He did not have an opinion whether the CPS interviewer, the SANE nurses,
Madden, or anyone else was not neutral prior to interviewing Doe.
Dr. Coffman testified that she had reviewed reports and photographs in
this case and found that, while there did not appear to be injury to Doe’s anus,
there was an acute tear near Doe’s anus, the location of which was unusual in
victims of sexual abuse. However, although she testified that anything that
might stretch the area of the anus could have caused the tear and bleeding that
occurred, she also testified that her findings were in agreement with Siegler and
Estes’s findings. She added that fewer than 5% of cases involving anal
penetration have positive findings in a medical exam of anal penetration. She
testified that the history given by Doe was consistent with the medical findings
of Siegler and Estes’s examination.
Banks testified that the allegations against him were false. He testified
that Doe’s mother would regularly drop Doe and her siblings off with him and
that the children, including Doe, had lived with him for a few months of the
prior year. He testified that on June 4, 2005, he had been drinking beer and
vodka in the park with some friends and that he was taking some medications
at the time. W hile he was at the park, Doe’s mother dropped Doe and her
siblings off at the park with him, where they remained for a couple of hours.
18
After picking up his girlfriend, Banks and the children went to his house. He
testified that he, Eddie, and Travon—Doe’s brothers—watched TV in the
bedroom, while Doe and her sister and his girlfriend watched TV in the living
room. Doe joined Banks and her brothers when it started storming outside,
because she was scared of thunderstorms.
Banks testified that, after a while, the children fell asleep and he lay down
in the bed with Doe’s back to him. Banks then testified that he fell asleep, and
the next thing he remembered was Doe telling him that she was hurting down
there.11 Banks testified that Doe claimed that he had poked her “down there,”
and that he told her that, if she hurt down there, to make sure she told her
mother. He testified that he did not try to have anal sex with Doe that evening
and that he kept the children until around 3:00 p.m. the next day, when he
took them to their mother’s house.
Banks stated that he had not done anything to Doe, and that he did not
know who did. Banks further testified that he did not know if eleven-year-old
Travon had done it, and that he did not think that five-year-old Eddie had done
it. Banks admitted that, at the beginning of Officer Tofte’s interview, he stated
that Doe was making the story up to get her mother’s attention, because she
11
… Banks testified, “And then she said, Papa, I’m hurting. And I said—I
told her not to let nobody hurt her down there, including me.”
19
was tired of being dropped off by her mother, and that Doe was mad at her
mother so she took it out on him.
Banks also testified that he had never spoken to anyone who raped an
eight-year-old, so he would not know if a man would remember doing it. Banks
admitted that he had no evidence to call Doe a liar, nor did he have evidence
to prove that anybody told her to make up her story. Banks testified that he did
not like anal sex and that he was passed out that night.12
3. State’s Rebuttal Witness
Tracy Anderson, Doe’s CPS investigator, testified that she interviewed
Doe in June 2005 and that the full interview, Exhibit 15, was videotaped.13 A
review of Exhibit 15 reveals that the evidence shown on this tape is the same
evidence with regard to Banks’s actions on June 5, 2005 as was shown on
Exhibit 12, Doe’s videotaped deposition.
4. Analysis
The trier of fact is the sole judge of the weight and credibility of the
evidence. See T EX. C ODE C RIM. P ROC. A NN. art. 38.04 (Vernon 1979);
12
… Banks’s attorney asked him, “Did you know you were having anal sex
with her?” Banks’s reply was inaudible.
13
… State’s Exhibit 15 was admitted over Banks’s objection and was
published to the jury.
20
Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). The jury
had the opportunity to observe Banks during his testimony and draw their own
conclusions about his credibility, and the credibility of all of the other
witnesses. The jury had the opportunity and responsibility to weigh that
evidence and determine whether, beyond a reasonable doubt, Banks committed
the offenses of aggravated sexual assault and injury to a child.14
In light of the substance of Doe’s testimony, which the jury heard from
several other witnesses, and the CPS interview videotape, which essentially
provided the same testimony by Doe herself, the error Banks complains of could
not have prejudiced the jurors’ decision-making, or their ability to properly apply
law to facts in order to reach a verdict. See Harris, 790 S.W.2d at 587–88.
After carefully reviewing the record and performing the required harm analysis
under rule 44.2(a), we hold beyond a reasonable doubt that the trial court’s
error did not contribute to Banks’s conviction or punishment. See T EX. R. A PP.
P. 44.2(a). And because of our determination that any error regarding the
admission of the videotape was harmless, it is unnecessary to reach Banks’s
14
… See T EX. P ENAL C ODE A NN. § 22.021(a)(1)(B)(i) & (2)(B) (Vernon 2007)
(stating that a person commits an offense if that person, intentionally or
knowingly causes the penetration of the anus of a child by any means when the
victim is younger than fourteen years old); Id. § 22.04(a) & (h) (describing the
injury to a child offense and stating that the offense may be subjected to
prosecution under both this section and another section of the penal code).
21
argument that Doe’s “unavailability” should have been reassessed at the time
of trial. We overrule Banks’s first issue. See T EX. R. A PP. P. 47.1.
V. Constitutional Challenge
In his second issue, Banks makes an “as applied” challenge to the
constitutionality of article 38.071 of the Texas Code of Criminal Procedure.
However, an “as applied” constitutional challenge must be raised at the trial
court level. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); see
also T EX. R. A PP. P. 33.1(a)(1); Mosley, 983 S.W.2d at 265.
Banks failed to raise this challenge to the trial court. Therefore, Banks
has failed to preserve any error for our review. Banks’s second issue is
overruled.
VI. Conclusion
Having overruled Banks’s two issues, we affirm the judgment of the trial
court.
BOB MCCOY
JUSTICE
PANEL A: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.
CAYCE, C.J. concurs without opinion.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
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DELIVERED: July 3, 2008
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