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Click here for the full text of this decision FACTS:The complainant D.P. was four years old at the time of the alleged sexual abuse and six years old at the time of trial. Murphy James Mitchell (appellant) is her uncle. D.P.’s mother, an outcry witness, testified that she left D.P. with Mitchell one day, and when she returned home, D.P. ran outside “babbling” that Mitchell had hurt her. At trial, the state called D.P. to the stand to testify. D.P. testified at length about where she went to school, favorite subjects, what games she liked to play and how old she was. However, when the prosecutor tried to question D.P. about the alleged sexual abuse, she became emotional, refused to talk about it and threw up as she left the courtroom. The trial court found her to be “unavailable” and excused her. The state called its next witness, Carmen Crabtree, a forensic interviewer at the Advocacy Center for Children in Galveston County. Crabtree testified that she conducted a videotaped interview of D.P. shortly after the alleged incident. The videotaped interview was admitted into evidence and played for the jury, over appellant’s hearsay objection, during Crabtree’s testimony. HOLDING:Affirmed. Under Texas Code of Criminal Procedure Art. 38.071, �8, a trial court may find a child victim unavailable to testify by considering factors including: the relationship of the defendant to the child; the character and duration of the alleged offense; the age, maturity and emotional stability of the child, and the time elapsed since the alleged offense; and whether the child is more likely than not to be unavailable to testify, because of emotional or physical causes, including the confrontation with the defendant or the child would suffer undue psychological or physical harm through his involvement at the hearing or proceeding. It is clear from the record, the court stated, that the trial court had sufficient information, based on the testimony it had already heard and from D.P.’s demeanor on the stand during her repeated but fruitless attempts to testify to conclude, after considering the factors set forth in �8, that D.P. was unavailable to testify. As such, the trial court’s finding that D.P. was unavailable was not an abuse of discretion, the court held. OPINION:Radack, C.J.; Radack, C.J., and Alcala and Bland, J.J.

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