Mallory v. State

• Decision Date: 15 June 1988
• Docket Number: No. 061-86,061-86
• Citation: 752 S.W.2d 566
• Parties: Wallace MALLORY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 566

752 S.W.2d 566

Wallace MALLORY, Appellant, v. The STATE of Texas, Appellee.

No. 061-86.

Court of Criminal Appeals of Texas,

En Banc.

June 15, 1988.

Thomas R. Newman, Texarkana, for appellant.

John F. Miller, Jr., Dist. Atty. and James Elliott, Asst. Dist. Atty., Texarkana, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

Appellant was convicted by a jury of aggravated sexual assault and punishment was assessed by the jury at twenty-five years in the Texas Department of Corrections. The indictment alleged that the appellant "intentionally and knowingly cause[d] the penetration of the vagina of R______ S______, a child younger than 14 years of age who was not the spouse of said defendant by penetrating the vagina of R______ S______ with the sexual organ of Wallace Mallory...."

The testimony of the victim was introduced into evidence through a videotaped recording of an interview with the victim, made in compliance with Art. 38.071, § 2, V.A.C.C.P. Rejecting the appellant's claim in his direct appeal that the child videotape statute was unconstitutional as a violation of his right of confrontation, the Sixth Court of Appeals held that Art. 38.071, § 2, was constitutional; therefore, the trial court did not err when it admitted the videotape into evidence. Mallory v. State, 699 S.W.2d 946 (Tex.App.--Texarkana 1985, pet. granted ).

In his petition for discretionary review the appellant continues his attack on the constitutionality of Art. 38.071, § 2, supra. We granted his request for review to make that determination pursuant to his claimed reason for review that the court of appeals "decided an important question of state or federal law which has not been, but should be settled by the Court of Criminal Appeals." Rule 200(c)(2) Tex.R.App.Pro.

During the trial the following facts were presented: At the time of the offense, the victim was a seven-year old girl. On September 5, 1983, the date of the alleged offense, the appellant was paid by the parents of the victim to baby-sit their children.

On September 12, 1983, the victim's mother noticed a vaginal discharge in the victim's underwear. On September 15, 1983 she took the victim to Dr. Gurav in New Boston. The doctor ran some tests and examined the victim for evidence of trauma. At trial, after being called to the stand by the appellant, Dr. Gurav testified that the cultures which he took from the victim showed the presence of gonococci bacteria. Gurav stated that if the culture was "a male smear, it is gonorrhea; if it is a female patient since the culture did not grow, I cannot swear if it is positive or negative." Dr. Gurav testified that he prescribed penicillin for treatment of the victim's infection. On direct examination, Gurav stated there was no evidence of trauma. However, on cross-examination, he admitted that if the assault occurred on the alleged date of September 5th, the trauma would have healed by the time of the September 15 examination.

On October 7, 1983, the victim's mother took her to be examined by a physician in Texarkana, Dr. Ayers. At trial, the mother testified that Dr. Ayers examined the victim and diagnosed her as having gonorrhea. The appellant made no objection to the admission of this hearsay statement. On October 8th, the victim told her mother what had happened between her and the appellant on September 5, 1983. On the same day, the victim's mother reported it to the police.

At that time, the victim's mother took her to see a Ms. Sann Sisco of the Department of Human Resources. Ms. Sisco videotaped a statement by the victim in which the child claimed that she had been sexually assaulted by the appellant on September 5th. Four days prior to the trial, Ms. Sisco made a second similar videotape of the victim's statement. The latter videotape was admitted into evidence.

On the tape, the victim stated that she was sexually assaulted by a black man named "Slick," who was identified as the appellant. Her description of what physically happened to her was conveyed by the use of anatomically correct dolls. Her verbal description was that the appellant "got on top of me and he stuck his ding aling [sic] in mine." Appellant objected to the admission of the tape as violating his right of cross-examination. The trial court overruled the objection. The victim did not testify during the trial.

While the appellant's petition for discretionary review was pending, this Court decided 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 (1988). In Long we concluded that Art. 38.071, § 2, supra, constituted an unconstitutional infringement upon a defendant's right of confrontation as secured by the Sixth Amendment to the United States Constitution and Art. I, § 10 of the Texas Constitution. The conclusion we reached in Long v. State, id., is equally applicable to this case; therefore, we find that the trial court erred when it admitted into evidence the videotaped testimony of the child.

Determining that the trial court erred in admitting the victim's videotaped testimony into evidence rather than concluding our examination of the case begins it. In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) the U.S. Supreme Court, based upon Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), decided that a trial court violated the defendant's Sixth Amendment right of confrontation when it admitted into evidence the confessions of three co-defendants, only one of which testified. Rather than automatically reverse the defendant's conviction the Court, citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), stated that because the "case against Harrington was so overwhelming that we conclude that this violation of Bruton was harmless beyond a reasonable doubt...." Harrington v. California, supra, 395 U.S. at 254, 89 S.Ct. at 1728. Thus, the Supreme Court applied a harmless error test to admitted violations of a defendant's right of confrontation.

Recently, in Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Supreme Court affirmed its position by applying the harmless error analysis of Chapman v. California, supra, to another violation of a defendant's right of confrontation. In this case, the trial court unconstitutionally restricted the defendant's cross-examination of a state's witness. The Court simply held that "the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other confrontation clause errors, is subject to Chapman harmless-error analysis." Id.

We see no reason to depart from this conclusion. Although the right of confrontation is vital to an ordered criminal justice system, and of constitutional magnitude it is nonetheless a trial right. As such, a violation of such a right does not invariably tarnish the truth finding process to the extent that automatic reversal is called for in every case. Therefore, even in instances of constitutional violations of the right of confrontation a harmless error analysis is necessary and appropriate.

In Chapman v. California, supra, the U.S. Supreme Court stated that "before a federal constitutional error can be harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id., 386 U.S. at 24, 87 S.Ct. at 828. Chapman v. California, supra, has been cited extensively by this Court since 1967. The Chapman test for harmless error, however, has experienced numerous semantic modifications. For example, in Cole v. State, 484 S.W.2d 779 (Tex.Cr.App.1972), the Court stated: "Before an error of constitutional dimension can be held to be harmless error, however, the reviewing court must be able to declare that it was harmless beyond a reasonable doubt." Id., at 783. Somewhat differently, in Bass v. State, 622 S.W.2d 101 (Tex.Cr.App.1981), without citing Chapman v. California, supra, the Court commented that "the question is whether there is a reasonable probability that the evidence complained of might have contributed to the conviction." Id., at 104. In Maynard v. State, 685 S.W.2d 60 (Tex.Cr.App.1985), Chapman v. California, supra, was cited in support of the following analysis: "The test for harmless error is not whether a conviction could have been had without the improperly admitted evidence, but whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id., at 67.

The comparative, yet distinguishable language utilized to express the tests for harmless error, is not indicative that they are erroneous or that they departed significantly from the analysis endorsed by the Supreme Court in Chapman v. California, supra. On the contrary, under the facts of the case each test was properly expressed. However, the elective propriety of expressing the test for harmless error in a less than uniform fashion is no longer available. Rule 81(b)(2) of the unified Rules of Appellate Procedure has eliminated such discretion.

In 1983 the Senate-House Select Committee on the Judiciary made a number of recommendations relative to improving the States's judicial system. Among the numerous recommendations was that the civil and criminal rules of appellate procedure be unified as much as possible. See: Hambleton and Paulsen, "New Rules: A Pocket Introduction," 49 Tex.Bar Journal 554 (1986). Responding to the Legislature granting this Court rule making authority (Art. 1811f V.A.T.S.), on December 18, 1985, we approved the new rules. They became effective on September 1, 1986. Since September 1, 1986, the test for harmless error, with some exceptions not applicable to this case, is Rule 81(b)(2) which provides as follows:

Criminal Cases. If the appellate record in a criminal case reveals error in the proceedings...