OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
Appellant was indicted for the offense of indecency with a child, V.T.C.A., Penal Code, Section 21.11. Upon the conclusiоn of his trial, the jury found appellant guilty and sentenced him, after enhancement, to life imprisonment in the Texas Department of Corrections.
The Dallas Court of Appeals reversed appellant’s conviction and remanded for a new trial.
Powell v. State,
We granted the State’s petition for discretionary rеview to determine whether the Court of Appeals correctly concluded that Article 38.071, Sections 4 and 5, supra, constituted an unconstitutional infringement on appellant’s right to confrontation under the State and Federal Constitutions. Sеe Tex.R.App.P., Rule 200. After com- *436 píete consideration of the issues presented therein and although we agreе with the finding made by the Court of Appeals, we must vacate their judgment and remand the cause to them for further review.
Befоre appellant’s trial, the State requested that a videotaped interview with the child-victim be made pursuant to Artiсle 38.071, Section 4, V.A.C.C.P. That section reads in part as follows:
“[T]he court may, on the motion of the attorney for any party, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroоm before the court and the finder of fact in the proceeding. Only those persons permitted to be present аt the taking of testimony under Section 3 of this article may be present during the taking of the child’s testimony, and the persons operating the equipment shall be confined from the child’s sight and hearing as provided by Section 3. The court shall permit the dеfendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or seе the defendant.”
At the time of the State’s request and again at trial, appellant objected to the creatiоn and admission of this evidence on the basis that it denied his right to confront and cross-examine the witnesses against him. Appеllant’s objections were overruled. The trial court, therein, allowed the State to proceed with the interview аnd to admit the tape at trial. 1 Upon the conclusion of the guilt/innocence phase of the trial, appеllant requested that the complainant, the child-victim, be called to give testimony under cross-examination beforе the trier of fact. Relying on Section 5 of Article 38.071, supra, the trial court denied appellant’s request. 2 The court did аfford appellant the opportunity to further cross-examine the complainant via the videotape рrocess, an alternative appellant rejected as a further denial of his right 1» confront the witness against him. As a result, appellant was never afforded, fully and completely, his right to confront the witness against him at trial.
At the time the Statе’s petition in this case was granted, this Court was in the process of considering several cases in which the constitutionаlity of particular sections of Article 38.071 were being questioned. We have since determined that Section 2 of Article 38.071 is in fact unconstitutional as a violation of the confrontation clause of the Texas and United States Constitutions.
Long v. State,
Given the reasoning behind
Long
and it's progeny, and that this Court’s holdings in those cases support those made by the lower court in this case, we find no reason to disturb the basic analysis and conclusion reached by the Court of Appeals. See also
Coy v. Iowa,
— U.S.-,
Under the facts of the casе before us we are unable to hold that the statute under scrutiny here affords the guarantee of a physical enсounter between appellant and his accuser. Therefore, we find Article 38.071, Sections 4 and 5, V.A.C.C.P., unconstitutional as а violation of the confronta *437 tion clause of both the Texas and United States Constitutions.
However, this Court has said that error, such as that in
Long,
is subject to a harmless error analysis under Rule 81(b)(2) of the Texas Rules of Appellate Procedure.
Mallory v. State,
Therefore, the finding by the Court of Appeals that Article 38.071, V.A.C.C.P., Sections 4 and 5 are unconstitutional is affirmed. The order of reversal of conviction and remand for new trial entered by that court is, however, vacated and we remand to the Court of Appeals for harm analysis pursuant to Rule 81(b)(2), supra.
Notes
. The creation and subsеquent introduction at trial of the videotape resulted in appellant losing what is two basic essentials in any criminal рroceeding: 1) the right to confront, face to face, one's accusers; and 2) the right to be present for crоss-examination of witnesses. The latter not only includes physical presence as indicated in the prior, but also inсludes the ability to communicate with counsel in the course thereof. Such rights are guarantees against both conviсtions in absentia as well as convictions by unknown or unseen evidence or witnesses.
. Under Section 5 of the statute, a child may not be required to give in court testimony when that child has given a taped interview pursuant to either Section 3 or 4 of the statute.