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Click here for the full text of this decision FACTS:On May 9, 2002, Yvette Benavides (Yvette) dropped off her two minor daughters B.B. and Y.B. at the home of her mother-in-law Maria Benavides (Maria). The paternal grandmother provided child care for her two granddaughters from 7 a.m. until 4:30 p.m. Jose Morales was married to Maria at this time and was the girls step-grandfather. The children in the Benavides family referred to him as “Joe-Joe.” Since the youngest daughter Y.B. was still asleep, Yvette laid her down with the Maria in the grandmother’s room. Meanwhile, the older daughter B.B., then 4 years old, said she was not sleepy and wanted to watch cartoons. B.B. was laid on the living room couch to watch cartoons. Morales was present in the kitchen, having just returned home from working the night shift. Yvette left for work. When Yvette picked up her children after work, she observed B.B. wiggling around as if she had to use the bathroom. Yvette, concerned she would have an accident, prodded her into the bathroom, following her to help her undress. B.B. then told her mother she did not want to go to the bathroom because it would hurt her. When asked what she meant, B.B. said she was not supposed to tell but would if her mother promised not to tell anyone else. B.B. revealed that Joe-Joe sat on the floor next to her while she was watching cartoons and put his hands under her shorts and underwear and then sexually assaulted her with his finger. B.B.’s parents took her to Driscoll Children’s Hospital where she received a sexual assault examination. Three tears and a labial agglutination were found. A forensic interviewer recorded B.B.’s statement as to the incidents. The parents were told by Child Protective Services not to talk to B.B. about what happened. Yvette testified at trial that B.B. stated, while being bathed, that she was mad at Joe-Joe for hurting her. In a pretrial hearing, the state requested the trial court find B.B. to be an unavailable witness under Texas Code of Criminal Procedure Art. 38.071. In making this determination, the court considered an admitted affidavit of a licensed counselor who had been seeing B.B. since the incident with Morales occurred and the sworn testimony of Cynthia Villanueva, then an assistant district attorney who testified that B.B. would suffer serious and undue psychological harm if made to testify. The trial court found B.B. unavailable, and she did not testify. As B.B. was found unavailable under Art. 38.071, two additional videotapes were made and admitted into evidence at trial over Morales’ objections. At trial, which commenced on Feb. 22, 2005, Morales pled not guilty to the offense of aggravated sexual assault of a child. The state also tendered testimony of another child, C.T., who subsequently made an outcry statement against Morales. C.T., B.B.’s cousin, lived in Morales’ home and testified that on five separate occasions Morales inappropriately touched her. C.T.’s testimony was admitted over Morales’ objections. The jury found Morales guilty of aggravated sexual assault of a child. He was sentenced to 99 years and assessed a $5,000 fine. Morales appealed. HOLDING:Affirmed. In his first point of error, Morales contends the trial court erred in admitting the three videotapes of B.B.’s statement in evidence as unfair, prejudicial and in violation of his constitutional right to confront witnesses. The court, however, concluded that Morales did not show deprivation of his constitutional right to cross-examine the child because: 1. He did not object to the trial court’s declaration that B.B. was unavailable; 2. The trial court provided him the redress he sought (submission of interrogatories to the child witness); and 3. He has not shown that the trial court disregarded his substantial rights. Under Art. 38.071, the court stated, the right to confrontation is not violated if the defendant is given the opportunity to submit written interrogatories to the unavailable witness. Morales consistently chose to submit written interrogatories as his method of confrontation, the court noted, rather than consider the suggestion by the trial court that an interrogation by closed circuit video was also available. In his second point of error, the court stated, Morales argued that the trial court erred in admitting evidence of extraneous offenses regarding C.T., the victim’s cousin and Morales step-granddaughter, because its prejudicial effect outweighed its probative value. The state responded this extraneous evidence was necessary to establish why its expert witness had reason to believe Morales committed the act in question and Morales’ state of mind, an essential element of the crime. The state further argued that Morales opened the door by attacking the credibility of the victim, suggesting he had been framed by family members and suggesting fabrication and conspiracy. The court concluded the trial court properly conducted the balancing test in admitting the evidence under Texas Rule of Evidence 403 and did not abuse its discretion in concluding that the probative value of the extraneous offense evidence was not substantially outweighed by any prejudicial effect. OPINION:Castillo, J.; Valdez, C.J., and Justices Yanez and Castillo, J.J.

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