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Click here for the full text of this decision FACTS:Jimmy Lee Flores, the appellant, was convicted for injury to a child by omission. This court affirmed. The Court of Criminal Appeals vacated this court’s judgment and remanded for reconsideration in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). During appellant’s trial, the state called his sister as a witness and asked her whether Shasta (the mother of Flores’ child) had told her how the child was injured on a particular occasion. The appellant objected, contending that the answer was hearsay. He asserted that its admission would violate his right to confrontation since he could not question Shasta about the statement, given her invocation of the spousal privilege. The trial court overruled the objections and allowed the witness to testify. In doing so, the witness stated that Shasta said the child suffered bruising to its face when appellant attempted to hit her (Shasta) and she (Shasta) used the child to deflect the blow. Furthermore, the witness stated that Shasta “said that night that the baby died that the baby woke up and Jimmy was going to hit Shasta, and she put the baby in the way, and that’s how he got his black eye.” HOLDING:Affirmed. The circumstances surrounding the utterance are pivotal in assessing whether or not it is testimonial. Such indicia as 1. to whom it was made; 2. was it volunteered or solicited; 3. was it uttered during casual conversation, a formal legal proceeding or an investigation; and 4. when it was made are worthy of consideration. The court holds the comments to be non-testimonial. They were made to an acquaintance or prospective relative (Shasta’s future sister-in-law) within hours after the infant died. One may infer that they were not part of some grand jury investigation, deposition or legal or judicial proceeding. Nothing indicates that the witness was working for the police or the prosecutor, sought to obtain information on behalf of the police or state, or sought to obtain information to use against Shasta or her brother at some later judicial proceeding. The relationship between the declarant and the witness, the time of the utterance, and the lack of any indicia suggesting that Shasta could have reasonably inferred that the statement would be used in a legal proceeding involving appellant compels the court to reject the notion that appellant was denied his right of confrontation. Crawford does not require a different outcome different from the one this court initially reached, the court concludes. OPINION:Quinn, C.J.; Quinn, C.J., Reavis and Campbell, JJ.

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