      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                                          ON REMAND
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                                       NO. 03-98-00520-CR
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                                      Roy Torres, Appellant

                                                  v.

                                   The State of Texas, Appellee


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   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
        NO. 0975467, HONORABLE MICHAEL F. LYNCH, JUDGE PRESIDING
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               In an unpublished opinion, we affirmed appellant Roy Torres’s convictions for

aggravated sexual assault on a child and for indecency with a child by contact. The Court of Criminal

Appeals granted appellant’s petition for discretionary review and held that we erred in upholding the

trial court’s ruling admitting in evidence a videotaped interview with the five-year-old victim of the

offense. Torres v. State, 33 S.W.3d 252 (Tex. Crim. App. 2000).

               The Court of Criminal Appeals concluded that a discussion with the child concerning

her telling the truth at the end of her taped interview failed to substantially satisfy the statutory

requirement that the victim be sworn or admonished before giving the videotaped testimony. Id. at
257.1 The cause was remanded to this Court “to assess the question of harm arising from the

erroneous admission of the tape.” Id.

                A constitutional error that is subject to harmless error review requires reversal unless

the appellate court determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment. Tex. R. App. P. 44.2(a). Any other error that does not affect a substantial

right must be disregarded. Id. 44.2(b); see also Tex. R. Evid. 103(a). The Court of Criminal Appeals

did not specify whether we are to apply rule 44.2(a) or rule 44.2(b) to the error it found in this cause.

                The error designated by the Court of Criminal Appeals resulted from a violation of

article 38.071, section 5(a)(10) of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann.

art. 38.071, § 5(a)(10) (West Supp. 2001). Generally, the violation of a statutory provision is not

of constitutional dimensions. See Aguirre-Mata v. State, 992 S.W.2d 495, 498 (Tex. Crim. App.

1999); Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998); Carranza v. State, 980 S.W.2d




        1
            The Code of Criminal Procedure provides the following:

            Sec. 5. (a) On the motion of the attorney representing the state or the attorney
            representing the defendant and on a finding by the trial court that the
            following requirements have been substantially satisfied, the recording of an
            oral statement of the child made before a complaint has been filed or an
            indictment returned charging any person with an offense to which this article
            applies is admissible into evidence if:

                                                  ....

                (10) before giving his testimony, the child was placed under oath or was
                otherwise admonished in a manner appropriate to the child’s age and
                maturity to testify truthfully . . . .

Tex. Code Crim. Proc. Ann. art. 38.071, § 5(a)(10) (West Supp. 2001).

                                                   2
653, 656 (Tex. Crim. App. 1998); Davis v. State, 22 S.W.3d 8, 12 (Tex. App.SHouston [14th Dist.]

2000, no pet.); McCuller v. State, 999 S.W.2d 801, 805 (Tex. App.STyler 1999, pet. ref’d). We

conclude that the trial court’s misapplication of article 38.071, section 5(a)(10) is statutory error, not

constitutional error.

                Other than constitutional error, any error that does not affect a defendant’s substantial

rights must be disregarded. Tex. R. App. P. 44.2(b). A defendant’s substantial rights are affected

when the error has a substantial and injurious effect or influence in determining the jury’s verdict.

Johnson v. State, No. 1353-99, slip op. at 5, 2001 Tex. Crim. App. LEXIS 23, at *7 (Tex. Crim.

App. March 28, 2001); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Lopez v. State,

990 S.W.2d 770, 777-78 (Tex. App.SAustin 1999, no pet.); Tate v. State, 988 S.W.2d 887, 890 (Tex.

App.SAustin 1999, pet. ref’d). However, a criminal conviction should not be overturned for

nonconstitutional error if the appellate court, after examining the entire record, has fair assurance that

the error did not influence the jury, or had but slight effect. Johnson v. State, 967 S.W.2d 410, 417

(Tex. Crim. App. 1998); Scaggs v. State, 18 S.W.3d 277, 290 (Tex. App.SAustin 2000, pet. ref’d);

Ortiz v. State, 999 S.W.2d 600, 606 (Tex. App.SHouston [14th Dist.] 1999, no pet.); Lopez, 990

S.W.2d at 777-78; Tate, 988 S.W.2d at 891.

                Appellant first argues that the error is of constitutional dimension. We have rejected

that argument. Appellant, relying on Garza v. State, 963 S.W.2d 926 (Tex. App.SSan Antonio 1998,

no pet.), insists that in conducting a harm analysis under Rule 44.2(b) we should consider (1) the

source of the error, (2) the nature of the error, (3) whether and to what extent it was emphasized by

the State, (4) the probable collateral consequences of the error, (5) how much weight a juror would



                                                    3
probably place on the error, and (6) whether declaring the error harmless would encourage the State

to repeat it with impunity. However, we note that in his brief appellant has made no attempt to apply

these six factors to this case. The suggested analysis is not appropriate for determining harm in this

case.2

               In assessing Rule 44.2(b) harm, it is the responsibility of the appellate court to assess

harm after reviewing the record, and the burden to demonstrate whether appellant was harmed by trial

court error does not rest on either appellant or the State. Johnson v. State, No. 1353-99, slip op. at

7. It is the responsibility of the appellate court to determine whether a trial error affected the

resulting judgment. Id. at 6.

               In addition to the erroneously admitted videotape, the record includes the live

testimony of the five-year-old victim. She testified that appellant had inserted his penis into her

mouth. She denied genital-to-genital penetration, even though she had reported such conduct before

trial.

               Dr. Beth Nauert, a pediatrician, testified that the victim told her that “Roy kept doing

nasties to me. He puts his private in mine.” Dr. Nauert testified that she examined the victim and

found in the child’s hymen a healed tear that was at least a week old and that the condition of the




         2
          The six factors adopted for the harm analysis in Garza are those suggested in assessing
harm under the former Rule of Appellate Procedure 81(b)(2). See Harris v. State, 790 S.W.2d
568, 584-88 (Tex. Crim. App. 1989). While these factors may well apply in assessing harm
resulting from prosecutorial misconduct, they have little utility here in assessing the harm
resulting from the trial court’s error in admitting in evidence the videotape. The source and
nature of the error was the trial court’s error in admitting the tape for the jury’s consideration.
In this case, only factor (5), how much weight a juror would probably place on the error, would
be of use in assessing harm.

                                                  4
child’s hymen was consistent with vaginal penetration. Dr. Nauert also testified that the victim was

infected with chlamydia, a sexually transmitted bacteria.

                The victim’s grandmother testified that while she was at the dinner table, the victim

became very upset and said that the appellant had “put his private in my private.” The victim’s older

sister testified that she had peeked through the door and saw appellant in his bed lying on top of the

victim.

                Diana Garza-Louis, a licensed psychotherapist in private practice, testified that the

victim had been referred to her by the Child Protective Services through the Children’s Advocacy

Center. Garza-Louis testified that the victim told her that appellant put his private in her private and

in her mouth.

                The erroneously admitted videotape recorded the victim’s interview with Anna Lee,

a social worker employed at the time of the interview by the Austin Police Department as a child

abuse counselor. The victim, using anatomically correct dolls, showed Lee how appellant had

inserted his penis into her “private.” The victim told Lee that she had reported appellant’s conduct

to her grandmother and to her mother. The victim’s mother was not a trial witness.

                The jury had an advantage that we do not have of hearing the witnesses and observing

the demeanor of each witness including the victim. Nevertheless, it is our duty to determine from the

record whether in our judgment the improperly admitted videotape had more than a slight effect in

influencing the jury’s determination of appellant’s guilt.

                We have reexamined the entire record including the videotape. From our examination

of the record, we have fair assurance that the error did not influence the jury’s verdict, or had but



                                                   5
slight effect. We conclude that the jury’s verdict was no more than slightly influenced by the

erroneously admitted videotape. We hold that the error did not affect appellant’s substantial rights

and should be disregarded. Tex. R. App. P. 44.2(b).

                The judgment of the trial court is affirmed.




                                               Carl E. F. Dally, Justice

Before Justices B. A. Smith, Yeakel and Dally*

Affirmed

Filed: May 3, 2001

Do Not Publish




*
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
    Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




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