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Click here for the full text of this decision FACTS:The appellant, Jeremy Gutierrez, was convicted of felony theft. On direct appeal, the appellant contended that the trial court erred by 1. admitting an accomplice’s videotaped statement; 2. admitting his own videotaped confession made after he requested counsel; 3. admitting his own videotaped confession because it was the product of undue influence; 4. failing to include an instruction in the jury charge about his request for counsel; and 5. failing to include an instruction in the jury charge about undue influence. HOLDING:Affirmed. The appellant contends the trial court erred in allowing a pharmacy technician’s videotaped statement to be played to the jury. He contends the statement was hearsay and he was denied his Sixth Amendment right to confrontation because the pharmacy technician was not present to testify. In the technician’s statement, he confessed that he stole drugs from the M.D. Anderson Cancer Center’s pharmacy and resold them. He also implicated three other individuals, including appellant. The technician explained that appellant would steal drugs from Methodist Hospital and the technician would buy them and then sell them to a third individual. In Crawford v. Washington, 124 S.Ct. 1354 (2004), the court emphasized, “where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” The court held that out-of-court testimonial statements by a witness who fails to testify at trial are barred by the Confrontation Clause unless the witness is unavailable and the accused had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable under the rules of evidence. Because the technician’s videotaped statement was an out-of-court testimonial statement, it is admissible under Crawford only if the technician was unavailable to testify and appellant had an opportunity to cross-examine the technician. However, appellant had no opportunity to cross-examine the technician either before or during trial. Therefore, the admission of the technician’s videotaped statement violated appellant’s Sixth Amendment rights. The Court of Criminal Appeals has adopted a three-prong test for reviewing courts to apply when assessing harm in Confrontation Clause cases. First, the court assumes that the damaging potential of the cross-examination is fully realized. Second, with that assumption in mind, the court reviews the error under the following factors: 1. the importance of the witness’s testimony in the prosecution’s case; 2. whether the testimony was cumulative; 3. the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; 4. the extent of cross-examination otherwise permitted; and 5. the overall strength of the prosecution’s case. The lawfully admitted evidence overwhelmingly established appellant’s guilt. Moreover, the technician’s statement was corroborated by appellant’s own confession. The court concludes beyond a reasonable doubt that admission of the technician’s statement was harmless. The court overrules the appellant’s other assertions of error. OPINION:Seymore, J.; Hedges, Fowler and Seymore, JJ.

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