
                                          NO. 07-08-0496-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                           OCTOBER 26, 2011

                                    ______________________________


                                      TOMMY CORONADO, APPELLANT

                                                  V.

                                     THE STATE OF TEXAS, APPELLEE

                                  _________________________________

                         FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

                             NO. CR-07L-208; HONORABLE ROLAND SAUL, JUDGE

                                   _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                     MEMORANDUM OPINION ON REMAND

      The Texas Court of Criminal Appeals has decided that the  statutory  procedure  established  by
article 38.071, section 2(b)  of  the  Texas  Code  of  Criminal  Procedure  is  not  an  appropriate
constitutional accommodation for the right of confrontation.  Accordingly, the prior opinion of  this
Court, Coronado v. State, 310 S.W.3d 156 (Tex.App.--Amarillo 2010, pet. granted),  was  reversed  and
the case was remanded for further proceedings consistent with the opinion of the  Court  of  Criminal
Appeals.   Coronado  v.  State,  ___S.W.3d  ___,  No.  PD-0644-10,  2011  Tex.Crim.App.  LEXIS   1248
(Tex.Crim.App. Sept. 14, 2011).  On remand, we reverse and remand the case to  the  trial  court  for
further proceedings.

                                              Background

      On December 19, 2007, Appellant was indicted for aggravated  sexual  assault[1]  and  indecency
with a child.[2]  On November 14, 2008, a pretrial hearing was held to  determine  the  admissibility
of the videotaped recording of the three-year-old child victim's forensic interviews  at  the  Bridge
Children's Advocacy Center, in accordance with the provisions of article 38.071 of the Texas Code  of
Criminal Procedure.  At the conclusion of that hearing, the trial court  determined  that  the  child
was "unavailable to testify" in the presence of Appellant, as that term is used  in  article  38.071,
and then ordered, as a condition precedent to the admissibility of  that  recording,  that  Appellant
have the opportunity to present written interrogatories to the child through  a  subsequent  recorded
interview.  Following the conclusion of the pretrial hearing, the interview on written questions  was
conducted.  At trial, in lieu of the child victim's live testimony, the State offered the  videotaped
recordings of the child's Bridge interviews.  A jury then convicted Appellant  of  aggravated  sexual
assault, a first degree felony, and indecency with a child, a  second  degree  felony.   Following  a
plea of "true" to the allegations contained in the enhancement portion of the  indictment,  the  jury
assessed Appellant's sentence, as to each offense, at confinement for life and  a  fine  of  $10,000.
Judgment was entered and this appeal followed.


                                      Confrontation of Witnesses


      Appellant contends that because he was allowed to cross-examine the child  victim's  videotaped
statements only through the use of written interrogatories,  presented  by  a  third  person,  via  a
videotaped interview, he was denied his right to face-to-face confrontation and cross-examination  as
guaranteed by the Sixth Amendment.  The Court of Criminal Appeals agreed finding that the  submission
of written interrogatories pursuant to the procedure authorized by section 2(b) of article 38.071  is
not a meaningful and effective  substitute  for  in-court,  sworn  testimony,  subject  to  "rigorous
adversarial testing" via face-to-face  confrontation  and  cross-examination  in  a  criminal  trial.
Coronado, 2011 Tex.Crim.App. LEXIS, at *39 - 40.  Accordingly, we find that the trial court erred  by
allowing the State to introduce the child victim's videotaped Bridge interviews.


                                            Harm Analysis

      A Confrontation Clause violation is subject to harmless error analysis.  Rubio  v.  State,  241
S.W.3d 1, 3 (Tex.Crim.App. 2007).  However, before constitutional error can  be  held  harmless,  the
reviewing court must be able  to  determine  beyond  a  reasonable  doubt  that  the  error  did  not
contribute to the appellant's conviction.  Chapman v. California, 386 U.S.  18,  26,  87  S.Ct.  824,
829, 17 L.Ed.2d 705 (1967).  Therefore, if there is a  reasonable  likelihood  that  a  Confrontation
Clause violation materially affected the jury(s deliberations, then the error is not harmless  beyond
a reasonable doubt.  Rubio, 241 S.W.3d at 3.  Ultimately, the  question  is  whether  the  State  has
proven beyond a reasonable doubt that the error complained of  did  not  contribute  to  the  verdict
obtained.  Id.

      In the instant case, the child victim's allegations of sexual abuse  were  hotly  contested  by
Appellant.  The only evidence implicating Appellant in the commission of these offenses were the out-
of-court statements of the three-year-old child victim.  Although the sexual assault  nurse  examiner
testified that the victim suffered injuries consistent with a  sexual  assault,  nothing  about  that
testimony directly implicates Appellant.  Based upon these facts, we cannot say beyond  a  reasonable
doubt that the introduction of the child  victim's  statements  did  not  contribute  to  the  jury's
verdict of guilt.

                                              Conclusion

      Having found that the violation of Appellant's right of  confrontation  of  witnesses  was  not
harmless, the judgment of the trial court is reversed and this cause is remanded to the  trial  court
for further proceedings.

                                                        Patrick               A.               Pirtle
                               Justice


Do not publish.
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[1]See Tex. Penal Code Ann. § 22.021(a)(1)(B)(1) and (2)(B) (West 2011).

[2]See Tex. Penal Code Ann. § 21.11 (a)(1) (West 2011).


