Clark v. State

OPINION ON COURT’S OWN MOTION FOR REHEARING

McCORMICK, Judge.

Appellant was convicted by a jury of aggravated sexual assault and the jury assessed punishment, enhanced by two prior felony convictions, at life imprisonment in the Texas Department of Corrections.

At trial, over appellant’s objection, the videotaped testimony of the seven year old child victim was introduced as then authorized by Article 38.071, V.A.C.C.P. The Court of Appeals affirmed the conviction. Clark v. State, 728 S.W.2d 484 (Tex.App.— Ft. Worth 1987). We vacate that judgment and remand the cause to the Court of Appeals.

In his appeal, appellant claimed the admission of the videotaped testimony violated his right to confrontation guaranteed him under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution.

In an opinion subsequent to this case, we found Article 38.071, Section 2, supra, unconstitutional in that it denied a defendant the right of confrontation as guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution. Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), cert. denied — U.S. —, 108 S.Ct. 1301, 99 L.Ed.2d 511 (43 Cr.L.Rep. 4001, April 6, 1988).

Additionally, this Court recently held that errors such as those in Long were subject to harmless error analysis as required by the Texas Rules of Appellate Procedure, Rule 81(b)(2). Mallory v. State, 752 S.W.2d 566 (Tex.Cr.App.1988). In this case no harm analysis was performed.

Therefore, the judgment of the Court of Appeals is vacated and the case is remand*372ed to that court to consider appellant’s points of error in light of Long and Mallory.

ONION, P.J., dissents to the remand.