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Article 38.072 - Is incompetency to testify unavailability?

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September 29, 2015, 08:59
Michelle Putman
Article 38.072 - Is incompetency to testify unavailability?
I have an injury to a child case for trial next week. Victim was 3 at the time, is 4 now. She outcried to her mom who hit her. She can't tell the difference between a truth and a lie, and can't do the basic "If I said your shirt was blue, is that the truth or a lie?" Based on that, I know I can't qualify her to testify. Does that make her "unavailable" as a witness for 38.072? Seems to me it would defeat the purpose of the statute if it does. Thanks.
October 22, 2015, 11:50
Gretchen
I don't see that 38.072 applies to injury to a child cases, though 38.071 does (was that a typo in your question?).

I guess I'm unclear on your facts: are you saying the child was sexually abused (which would be an offense covered by 38.072), outcried to mom, and now the injury to a child case is against the mom for hitting her? Who did the child tell about mom hitting her? And is the Ohio v. Clark (2015) case helpful to you for your facts?
October 27, 2015, 11:00
Michelle Putman
Under 38.072, Sec. 1(1), it includes Chapter 22 (Assaultive Offenses), so injury to a child falls under that. I'll take a look at that Ohio v. Clark case. Thanks!