                          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

                                         ------------

           FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

                                         ------------

                          MEMORANDUM OPINION 1

                                         ------------

     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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