Lowrey v. State , 764 S.W.2d 4 ( 1988 )

ON REMAND

CORNELIUS, Chief Justice.

Mitchell D. Lowrey was convicted of aggravated sexual assault of a child and assessed punishment of fifty years’ confinement. The victim, R_L_, was Lowrey’s six year old stepson.

On original submission we overruled Lowrey’s sole contention, which was that it was error to admit in evidence a videotaped statement of the child victim. The Court of Criminal Appeals reversed our judgment, holding that the admission of the videotape violated Lowrey’s constitutional rights to be confronted by the witnesses against him. Lowrey v. State, 757 S.W.2d 358 (Tex.Crim.App.1988). The case is now before us on remand to determine if the error in admitting the videotape was harmful under Tex.R.App.P. 81(b)(2) so as to require that Lowrey be afforded a new trial. Lowrey v. State, supra; Mallory v. State, 752 S.W.2d 566 (Tex.Crim.App.1988).

Rule 81(b)(2) requires that we review the record to determine if the error was harmful. It is proper to find the error harmless only if, in light of the entire record, we determine beyond a reasonable doubt that it made no contribution to the conviction or the punishment. Mallory v. State, supra.

The evidence produced by the videotape here added virtually nothing to the State’s case except some details concerning the manner of the commission of the offense. R_L_’s mother testified in detail about how he and his brother told her of Lowrey’s acts on them, including anal intercourse on R_L_; how she had twice taken R_ L_ to doctors to investigate the reported incidents; and how on one occasion she had found in R_ L_’s underwear a mixture of feces and “sperm.” All of this evidence was admitted without objection.¹ Additionally, a psychologist who interviewed R_L_and a medical doctor who examined him testified. The psychologist testified that R_L_ex-hibited all the characteristics of a sexually abused child as indicated by standard psychological tests, and that in one spontaneous drawing test R_L_, in response to a request that he draw a person, drew a human figure with an erect male sex organ with an X superimposed over it. The psychologist testified that the response was rare and very significant in the context of the allegations of sexual abuse against R_L_The medical doctor testified that R_L_’s anus was irritated and bruised in a manner that would indicate the type of sexual abuse which had been charged against Lowrey. All of this evidence, together with other evidence of guilt, came in without any objection and was not disputed. There was no evidence or contention that any other person had access to R_L_or an opportunity to have committed the sexual acts alleged. The only defense evidence was Lowrey’s testimony in which he denied that he committed the acts.

In view of the overwhelming evidence that the acts occurred and that Lowrey was the perpetrator, we find beyond a reasonable doubt that the videotape of R_ L_, which simply reiterated the testimony and demonstrated the physical acts, did not contribute to the conviction or the punishment. The error in admitting the videotape was therefore harmless.

For the reasons stated, the judgment of the trial court is affirmed.

1 . The fact that some of this evidence was hearsay does not deprive it of probative weight in determining the sufficiency of the evidence. Chambers v. State, 711 S.W.2d 240 (Tex.Crim. App.1986).