SAMUEL RAYMOND MONK, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed September 15, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-86-00053-CR
............................
SAMUEL RAYMOND MONK, Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from the 203rd District Court
Dallas County, Texas
Trial Court Cause No. F85-73544-LP
.................................................................
ON REMAND FROM COURT OF CRIMINAL APPEALS
Before Justices McClung, Ovard and Burnett
        This case was remanded by the court of criminal appeals with the directive that we supplement the appellate record to include State's exhibit four, a videotape, which was introduced by the State during rebuttal. The court of criminal appeals expressed no opinion respecting the merits of any of Samuel Raymond Monk's arguments. After supplementing the record, we have viewed the videotape and we now reconsider the merits of appellant's arguments with regard to the tape.
        In his second point of error, appellant multifariously complains that a tape recorded conversation between complainant and Jan Delipsy, director of a private mental health clinic, was improperly admitted because it bolstered complainant's prior testimony and because it deprived appellant of his right to confrontation.
        With respect to the bolstering claim, the State may not bolster or support its own witnesses' testimony unless that testimony was impeached or undermined through vigorous cross-examination. See Farris v. State, 643 S.W.2d 694, 697 (Tex. Crim. App. 1982); Smith v. State, 595 S.W.2d 120, 124-26 (Tex. Crim. App. 1980). During direct examination, complainant, with the aid of anatomically correct dolls, described how her father used his finger to poke her "in the front" and "in the back" of her crotch area. She stated that her father put his "weenis" into her mouth, that he pulled down her jeans and poked her between the legs with his "weenis," and that he made her hold his "weenis" in her hand. She also testified that her father instructed her to lie about what happened. Complainant said that no one except her father had ever done anything like that to her.
        On cross-examination of the five-year-old complainant, appellant's counsel asked questions concerning an interview complainant had with Dennis Brewer, an attorney who had previously represented appellant on another charge involving indecency with a child. Complainant responded inconsistently stating that she knew and had met Brewer, but also that she did not know Brewer; she recited different versions of what she had or had not told Brewer. For example, complainant stated she told Brewer her father had never done anything to her, but then she later testified that she told Brewer her father had done "those things" to her. She denied saying she had made up the story about her father so that she could stay with her grandmother more frequently. Additionally, appellant's counsel attempted to elicit through complainant, as well as through other witnesses who testified, that law enforcement personnel had tainted her testimony and coached her to use certain words and terminology.
        Thereafter, appellant was allowed, over objection, to play an audio tape of a conversation between complainant and Brewer. On the tape, complainant told Brewer numerous times that neither her father nor anyone else had "poked her in the hiney." She stated that she told her grandmother that story so that she could spend more time with her; she was certain that neither her father nor anyone else had ever done those things to her and that her father never showed her his "pee-pee."
        We hold that complainant's testimony was significantly undermined during cross-examination and that she was further severely impeached by the tape-recorded conversation with Brewer. Thus, the State was properly allowed to counter with evidence which pertained to matters upon which complainant was impeached. Farris v. State, 643 S.W.2d at 697; see Lopez v. State, 643 S.W.2d 431, 435 (Tex. App.--Corpus Christi 1982, no pet.); R. RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL § 774 (Texas Practice 2d ed. 1980).
        Appellant additionally contends that the videotape did not relate to the impeached testimony. We disagree. Complainant's inconsistent statement, which was introduced via the audiotape, was a complete denial that the incident with her father had ever happened. The entire subject matter of the videotape was complainant's assertion that the incident did occur and her detailed description of how it happened. Thus, the rehabilitation of the impeached witness did not exceed the scope of that impeachment.
        We next address appellant's claim that the videotape deprived him of his constitutional right to confront and cross-examine witnesses. In Long v. State, 742 S.W.2d 302, 323 (Tex. Crim. App. l987), the court of criminal appeals held that article 38.07l, section 2 of the Texas Code of Criminal Procedure was unconstitutional. Therefore, the videotape was clearly not admissible under that statute. FN:1
However, the Long decision did not address whether a videotape may otherwise be admissible.
        This Court recently addressed the very issue raised by appellant. See Cartmill v. State, 748 S.W.2d 58l, 583 (Tex. App.--Dallas l988, pet. granted). Cartmill was a case involving a twelve-year-old girl who had been sexually assaulted and was, thereafter, videotaped by a social worker as the incident was discussed. At trial, the State questioned the complainant extensively and during cross-examination, defense counsel referenced the videotape and attempted to show that complainant gave a different version of the facts during direct examination.
        In rebuttal, the State introduced the videotape as a prior consistent statement of the complainant. This Court held that where the complainant testified and was cross-examined before the tape was introduced, the videotape could subsequently be admitted to rehabilitate the complainant. In such instances, the right to confront witnesses is not violated. Cartmill, 748 S.W.2d at 583.
        Even if the videotape were inadmissible, we conclude that any error in admitting it was harmless. The test for harmful error, even if the error is constitutional in nature, is whether there is a reasonable possibility that the evidence complained of contributed to the conviction or affected the punishment assessed. TEX. R. APP. P. 81(b)(2); Johnson v. State, 660 S.W.2d 536, 538 (Tex. Crim. App. l983). Here, the videotaped statement added nothing to complainant's testimony on direct examination during which complainant testified quite specifically concerning the sexual assault. Additionally, complainant's grandmother testified that on a variety of occasions, complainant had spontaneously complained that appellant had "poked" her in the crotch area; put his "weenis" in her mouth; placed his private part between her legs and "white stuff came out"; referred to sausage and balloons as looking "like Daddy's weenis."
        Because the statements the complainant made on videotape were virtually the same as her testimony on direct examination and because the videotape was introduced only after complainant testified at trial and was extensively cross-examined, we hold that even if the videotape were inadmissible, the error in admitting it could not reasonably have affected the jury's decision to convict, or its assessment of punishment. We therefore overrule the point of error and affirm the conviction.
 
 
                                                                          PAT McCLUNG
                                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
8600053rmf.uo5
 
 
FN:1 Article 38.07l of the Texas Code of Criminal Procedure provides in pertinent part:
 
        Sec. 2. (a) The recording of an oral statement of the child made before the indictment is returned or the complaint has been filed is admissible into evidence if the court makes a determination that the factual issues of identity or actual occurrence were fully and fairly inquired into in a detached manner by a neutral individual experienced in child abuse cases that seeks to find the truth of the matter.
            (b) If a recording is made under Subsection (a) of this section and after an indictment is returned or a complaint has been filed, by motion of the attorney representing the state or the attorney representing the defendant and on the approval of the court, both attorneys may propound written interrogatories that shall be presented by the same neutral individual who made the initial inquiries, if possible, and recorded under the same or similar circumstances of the original recording with the time and date of the inquiry clearly indicated in the recording.
                 (c) A recording made under Subsection (a) of this section is not admissible into evidence unless a recording made under Subsection (b) is admitted at the same time if a recording under Subsection (b) was requested prior to time of trial.
File Date[09-14-89]
File Name[860053F]