VICTOR EDWARD HORNAL, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00209-CR
 
VICTOR EDWARD HORNAL,                          FROM A DISTRICT COURT
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
        APPELLEE. OF COLLIN COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, LAGARDE AND WHITTINGTON
OPINION BY JUSTICE HOWELL
AUGUST 9, 1989
        Victor Edward Hornal appeals a jury conviction for rape of a child in which the jury assessed punishment of ninety-nine years' confinement. In seven points of error, appellant alleges error relating to (1) admission of certain testimony of the child complainant and other witnesses, (2) admission of hearsay testimony, and (3) the trial court's failure to grant a mistrial or continuance. We overrule appellant's assertions and affirm the trial court's judgment.
        The child complainant, T A , was six or seven years old at the time of the alleged sexual abuse by defendant in 1983. Complainant was residing with appellant, her natural mother, and her brother in Plano. Her mother worked varying shifts, which often left complainant at home alone with appellant. After complainant would return from school and before her brother came home, appellant would take complainant to her mother's bedroom, tie her hands and feet with socks, and force her to have vaginal, as well as anal, intercourse. The complainant testified that appellant sexually assaulted her on numerous occasions after school, and sometimes he attacked her again in the evenings. She told her natural mother about the abuse but said her mother did not believe her.
        Before her second grade year, complainant moved in with her natural father and stepmother in Garland. She told her stepmother about the sexual assaults by appellant, and, in the summer of 1985, either the stepmother or the father notified the Texas Department of Human Services (TDHS). Lynn Johnson of TDHS visited complainant's home and questioned her extensively. Complainant also made a videotape regarding the allegations of sexual abuse by appellant. In 1986, appellant was indicted on three counts of sexual abuse of a child. The jury convicted him only on the rape of a child count. FN:1
            I. THIRD-PARTY WITNESSES--TRUTH
                         AND VERACITY OF COMPLAINANT
        Appellant argues in his first point of error that the trial court erred in allowing the testimony of Lynn Johnson and complainant's stepmother regarding their beliefs as to the truth of the allegations against appellant made by complainant. During direct examination, Johnson stated that she "believed T had been sexually abused, that she was having a lot of problems, it appeared, as a result of that, . . ." Appellant's counsel objected that Johnson's testimony was hearsay, and the court overruled the objection. On appeal, appellant asserts that admission of the testimony invaded the province of the jury to determine credibility and, thus, the court erred. Appellant's objection at trial, however, does not comport with his complaint on appeal. Therefore, any error is waived. Pyles v. State, 755 S.W.2d 98, 116 (Tex. Crim. App.), cert. denied, 109 S. Ct. 543 (1988); Watkins v. State, 741 S.W.2d 546, 551 (Tex. App.--Dallas 1987, pet. ref'd).
        Appellant also claims that the testimony of complainant's stepmother invaded the province of the jury because she was allowed to testify that she did not believe that complainant lied about the sexual abuse committed by appellant. The following exchanges with the stepmother occurred at trial:
    Q: Didn't you, in fact, tell Lynn Johnson that T____was a liar?
 
                [STATE]: Objection, Your Honor.
        That's improper. It's also, hearsay.
 
                [DEFENSE]: How could it be hearsay if she's the one that made the statement?
 
                THE COURT: I'll let her answer the question.
 
    A: (By the witness) Yes.
 
                [DEFENSE]: I'll pass the witness.
 
RECROSS-EXAMINATION
    BY [STATE]:
 
    Q: [Stepmother], do you think T____ lied about what [appellant] did to her?
 
                [DEFENSE]: I'm going to object, Your Honor. That's improper and invades the province of the jury.
 
                THE COURT: I'll let her answer the question.
 
    A: (By the witness) Would you ask me again, please?
 
    Q: (By [STATE]) Do you think T___ is lying about what [appellant] did to her?
 
    A: No.
Assuming for argument's sake that this objection preserved any error for our review, FN:2 in most cases where an "invasion of the province of the jury" objection is made, it seeks to bar expert testimony. See, e.g., Pyles, 755 S.W.2d at 118-22; Kirkpatrick v. State, 747 S.W.2d 833 passim (Tex. App.--Dallas 1987, pet. ref'd). In general, expert testimony is not objectionable on those grounds. Kirkpatrick, 747 S.W.2d at 834; see also Hopkins v. State, 480 S.W.2d 212, 218 (Tex. Crim. App. 1972). These principles, however, appear inapplicable to the present case because the testimony emanated from a lay witness--complainant's stepmother.
        However, regardless of expert or lay status, one witness may not give an opinion as to the truth or falsity of the testimony of another witness. Ayala v. State, 171 Tex. Crim. 687, 689, 352 S.W.2d 955, 956 (1962); Kirkpatrick, 747 S.W.2d at 836. Such testimony ordinarily constitutes reversible error. See Miller v. State, 757 S.W.2d 880, 883 (Tex. App.--Dallas 1988, pet. ref'd). In the present case, though, we conclude that any error resulting from the admission of this testimony was harmless. See TEX. R. APP. P. 81(b)(2).
        First, the record reflects that the same evidence was elicited by the State on at least two other occasions without objection by appellant:
        Q: Did [stepmother] ever indicate to you that she didn't believe that T_____ had been sexually abused?
 
        A: No. She maintained that she believed that T_____ was telling the truth about the sexual abuse.
 
                . . . .
 
        Q: But as far as believing her, disbelieving her, did you ever get the impression they didn't believe her?
 
        A: No.
The defendant must object every time the allegedly inadmissible evidence is offered. Moore v. State, 675 S.W.2d 348, 350 (Tex. App.--Fort Worth 1984, pet. ref'd). Where testimony is previously admitted without objection, the admission of the same testimony at a later time does not constitute reversible error. Reed v. State, 703 S.W.2d 380, 386 (Tex. App.--Dallas 1986, pet. ref'd). Cf. Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984) (error in admission of evidence is cured when the same evidence comes in elsewhere without objection). Thus, any error in the admission of stepmother's testimony was rendered harmless by subsequent admission of essentially the same evidence.
        In addition, the State's question to stepmother was asked to rebut an inference put before the jury by the appellant's own previous question:
        [DEFENSE:] Didn't you, in fact, tell Lynn Johnson that T_____ was a liar?
 
                . . . .
 
        [WITNESS:] Yes.
 
                . . . .
 
        [STATE:] Do you think T____ is lying about what [appellant] did to her?
 
        [WITNESS:] No.
In sum, we conclude that any error in the court's admission of the stepmother's testimony was cured and otherwise rendered harmless by virtue of the same evidence being elicited without objection by both appellant and the State. Thus, we hold that, beyond a reasonable doubt, the objected-to evidence made no contribution to appellant's conviction. TEX. R. APP. P. 81(b)(2). We overrule point one.
 
II. ADMISSION OF VIDEOTAPE
        By point two, appellant maintains that the trial court erred in admitting a videotaped statement of complainant because admission of the tape violated his right to confront and cross-examine witnesses under the federal and state constitutions. The tape was made pursuant to article 38.071 of the Texas Code of Criminal Procedure. Appellant's counsel first mentioned the videotape during his opening statement to the jury: "There's a video tape in this case that was made in, I believe, June of '85. We're going to ask that it be shown to you because we think it's relevant and we think you can learn something from it."
        Subsequently, the State offered the tape during the testimony of the social worker, Lynn Johnson, who had made the tape with complainant. At that time, appellant's counsel said, "[W]e'll object to that tape until such time as the complainant herself, T____ A_____, testifies in this case." The trial court, noting that Complainant was scheduled to testify, overruled the objection and admitted the tape.
        Near the conclusion of appellant's evidence, the trial court suggested playing the videotape for the jury. Appellant's counsel objected that certain extraneous matters should be excised from the videotape. Despite a lengthy discussion about the videotape, the trial court never ruled on this objection. The record reflects that the complainant did testify and that an edited version of the tape was shown to the jury.
        Appellant's objections at the trial court level--that complainant had not testified and that the tape contained extraneous material--do not comport with appellant's objection on appeal. Even though the trial court mentioned the defendant's right to cross-examine, appellant's counsel never objected on constitutional grounds.
        Failure to object can waive an error involving constitutional rights. Russell v. State, 665 S.W.2d 771, 777 (Tex. Crim. App. 1983), cert. denied, 465 U.S. 1073 (1984). Appellate courts generally will not consider any error that counsel could have called, but did not call, to the court's attention at a time when the court could have avoided or corrected the error. Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh'g). This rule applies to constitutional errors. Id. In a case similar to the case at bar, this Court held that a failure to object to admission of a videotape under section 38.071 of the Code of Criminal Procedure waived appellant's right to complain on appeal, especially when the failure to object was apparently tactical or strategical. See Chitwood v. State, 703 S.W.2d 360, 361 (Tex. App.--Dallas 1986, pet. ref'd). For these reasons, we conclude that appellant waived his constitutional complaint because he failed to object at trial. We overrule point two.
 
 
 
 
 
III. DENIAL OF FACE-TO-FACE
 
CONFRONTATION
        In his third point, appellant asserts that the trial court denied his right to confront witnesses, in violation of the federal and state constitutions, when the court ordered complainant to sit to the right of the bench so that she could not see appellant while she testified. Appellant did not object to the trial court's action at any time on any grounds. Thus, any error was not properly preserved for appellate review. TEX. R. APP. P. 52(a). The complaint is waived; we overrule appellant's third point.
IV. WITNESS NOT DESIGNATED
BY STATE
        In point of error four, appellant asserts that the trial court erred in allowing a social worker, Lou Ann Munden, to testify when the State failed to designate Munden as a witness on its witness list. Upon proper motion, witnesses should be disclosed if they will be used by the State at any stage of the trial. Gowin v. State, 760 S.W.2d 672, 674 (Tex. App.--Tyler 1988, no pet.). In reviewing a court's decision to allow an unlisted witness to testify, we must determine whether the trial court abused its discretion. Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. [Panel Op.] 1981). The factors we must consider are whether the prosecutor acted in bad faith in failing to give the witness's name, and whether the defendant could have reasonably anticipated that the witness would testify despite the State's failure to disclose. Bridge v. State, 726 S.W.2d 558, 566, 567 (Tex. Crim. App. 1986).
        In the instant case, appellant made no showing of any bad faith on the part of the prosecutor in omitting Munden's name from the witness list. In fact, the record indicates that appellant knew that Munden would testify. Before voir dire commenced, appellant's counsel told the trial court that he was aware that the State had subpoenaed Munden to testify but wanted to clarify that fact because she had been omitted from the witness list. Finding no bad faith by the State and a reasonable anticipation--if not actual knowledge--by defendant that Munden would testify, we hold that the trial court did not abuse its discretion in allowing an undesignated witness to testify. We overrule point four.
V. ADMISSION OF HEARSAY TESTIMONY
        In his fifth point of error, appellant lists six occasions where he claims the trial court erred in admitting hearsay testimony. We will address each specific instance alleged.
        The first instance is the testimony of social worker Lynn Johnson, previously discussed under section I, regarding statements she made to complainant's father and stepmother during her investigation. Appellant objected that her testimony was hearsay. We note, however, that essentially the same evidence was admitted on several occasions without objection during Johnson's testimony. If an objected-to hearsay statement is sufficiently proven by other competent and unobjected-to evidence, the admission of the hearsay is properly deemed harmless and does not constitute reversible error. Livingston v. State, 739 S.W.2d 311, 333 (Tex. Crim. App. 1987), cert. denied, 108 S. Ct. 2858 (1988); Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986). Therefore, any error in the trial court's ruling was rendered harmless. See TEX. R. APP. P. 81(b)(2).
        The second instance concerns the following question by the State to Johnson:
        Q: Ms. Johnson, when you initially went out to the A____ home in June of 1985, were you made aware of the type of sexual abuse inflicted upon T____?
 
            [DEFENSE:] Object. Hearsay, your honor.
 
            [STATE:] Your honor, he's opened the door.
 
            THE COURT: . . . overruled.
The record reflects that when Johnson was recalled by appellant's counsel, the State asked her this same question, and appellant's counsel did not object. Thus, the same testimony to which appellant had earlier objected was elicited from the same witness without objection at a later point in the trial. Any hearsay admitted was thereby rendered harmless. See Livingston, 739 S.W.2d at 333.
        The third objection concerns a question to the social worker Munden: "Do you know whether or not T____ ever told her father or stepmother that she had been sexually abused?" Appellant's timely hearsay objection was overruled by the court. The context of the question reflects that the State was trying to prove only that complainant had told other people that the sexual abuse had occurred. It was not offered to show the specific allegations or conduct that formed the substance of her complaint. An out-of-court statement offered for the purpose of showing what was said, rather than for the truth of the matter asserted, does not constitute hearsay. Livingston, 739 S.W.2d at 331; Miller v. State, 755 S.W.2d 211, 215 (Tex. App.--Dallas 1988, pet. granted). Similarly, an extrajudicial statement offered for the purpose of showing that a conversation occurred, rather than for the truth of matter, is not hearsay. Zani v. State, 679 S.W.2d 144, 151 (Tex. App.--Texarkana 1984), rev'd on other grounds, 758 S.W.2d 233 (Tex. Crim. App. 1988). Consequently, we conclude that the objectionable question did not seek to elicit hearsay because it showed only that the statement was made and that a conversation occurred, without eliciting the contents of the conversation. Thus, the trial court did not err in allowing the response.
        The fourth complaint relates to the following exchange between the State and Dr. Carolyn Evans, a pediatrician who examined complainant:
        Q: What did she tell you?
 
        A: She told me that she had been sexually abused approximately two years prior to when I was examining her. She told me that her uncle had placed his weinie in her private parts and in her bottom. She said that it happened--
 
            [DEFENSE:] Object to all this being hearsay, Your Honor.
 
            THE COURT: Objection overruled.
We note that the objection came after Dr. Evans had substantially answered the question. To preserve error, appellant needed to object as soon as the grounds became apparent. Nickerson v. State, 686 S.W.2d 294, 298 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd). Failure to timely object waives error. Thompson v. State, 691 S.W.2d 627, 635 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). Here, the State's question should have alerted appellant's counsel to object on hearsay grounds before Dr. Evans began to answer. We conclude that appellant has failed to preserve error, if any. FN:3
        The final two instances of alleged hearsay occurred during the questioning of complainant's stepmother by the State:
        Q: What was the purpose of you taking her to the doctor?
 
        A: She had a yeast infection and she was very irritated.
 
        Q: Okay. And how did you come to find out about that?
 
        A: Well, she was--I was bathing her, and she was real red in her pubic area, and I asked her what happened, and she told me that her Uncle Vic did it.
 
            [DEFENSE:] Object to the hearsay, Your Honor.
 
            [THE COURT:] I'm going to overrule the objection.
In this situation, the witness's response falls within the exception to the hearsay rule allowing statements of then existing mental, emotional, or physical condition, which provides in pertinent part:
        The following are not excluded by the hearsay rule . . .
 
        (3). . . A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), . . .
TEX. R. CRIM. EVID. 803(3). Thus, any error in admitting the stepmother's response was harmless. See TEX. R. APP. P. 81(b)(2).
        The second complaint during the stepmother's testimony occurred as follows:
        Q: [By State] Now, you noticed that she was red in the pubic area?
 
        A: Yes.
 
        Q: And what did you do when you noticed that?
 
        A: I asked her what happened.
 
        Q: And what did she tell you?
 
        A: She told me that her Uncle Vic did it.
 
            [DEFENSE:] Object, Your Honor, to being hearsay.
 
                THE COURT: Objection is overruled.
In this instance, appellant's objection was untimely because the stepmother's preceding response and the State's question should have alerted appellant to the likelihood of a hearsay response. This failure to object timely, before the witness answered, waived any error. Accord Walsh v. State, 658 S.W.2d 285, 288-89 (Tex. App.--Fort Worth 1983, no pet.). Finding no error in the court's admission of the six alleged hearsay statements, we overrule point five.
VI. EXCLUSION OF STEP-GRANDFATHER'S TESTIMONY
        In point six, appellant claims that the trial court erred in excluding the testimony of complainant's step-grandfather, Ralph Jenkins. Appellant called Jenkins to refute an allegation of sexual abuse made by complainant against Jenkins. With this testimony, appellant sought to discredit complainant's credibility in the present case by introducing evidence of other sexual abuse charges made by complainant against other men.
        During cross-examination of the social worker Munden by appellant, the trial court excused the jury and heard testimony regarding complainant's accusation that Jenkins had sexually abused her by rubbing his penis up and down her back and by fondling her genitals. The State objected that the testimony should be excluded because it pertained to a collateral matter and because it was inadmissible evidence of specific instances of conduct of a witness. FN:4 The trial court, over this objection, allowed cross-examination by appellant on this subject.
        Before the jury, the social worker testified that the complainant had told another social worker, Lynn Johnson, that Jenkins had fondled complainant's genitals and had placed his penis against her back. Munden's notes reflected that the child's complaint against Jenkins occurred in January 1986. Her complaints against appellant were initiated in June 1985, while the abuse occurred in 1983-84. Munden further stated that she believed complainant's allegation that "something had happened with a step-grandfather."
        Dr. Joan Garner, a clinical psychologist who treated complainant, also testified about the allegations. She stated that complainant accused the step-grandfather of sexual abuse. Dr. Garner said that the allegations against Jenkins had never been validated; however, she had no reason to disbelieve complainant's allegations, and said she continued to believe complainant's assertions at the time of trial.
        Complainant also testified about the allegations against Jenkins. She stated that her step-grandfather would place her on his lap, push her down on his genitals, and sometimes fondle her genitals. She could not recall the exact date that she told the social worker about the incident, but expressly stated that the abuse by Jenkins occurred after the abuse by appellant. She also could not remember whether she told the social worker that Jenkins rubbed his penis against her back.
        As we have indicated, when appellant called Jenkins to testify that complainant's sex abuse charges were untrue, the State objected that the testimony was inadmissible both as a collateral matter and as improper impeachment by prior conduct of a witness. In general, a "collateral" matter is one which seeks only to test a witness's general credibility or relates to facts irrelevant to issues at trial. Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim. App. 1984). A matter is "collateral" if the cross-examining party would not be entitled to prove the matter as part of his case in chief. Shipman v. State, 604 S.W.2d 182, 184 (Tex. Crim. App. [Panel Op.] 1980); Posey v. State, 738 S.W.2d 321, 325 (Tex. App.--Dallas 1987, pet. ref'd). Such a determination is a question of relevancy, and the trial court's decision will be reversed only for an abuse of discretion. Williams v. State, 535 S.W.2d 637, 639-40 (Tex. Crim. App. 1976) (cited in Posey, 738 S.W.2d at 325).
        If appellant, during his case in chief, had sought to introduce evidence about complainant's prior charges of sexual abuse against the step-grandfather, the evidence likely would have constituted specific prior conduct of a witness. Generally, such specific instances of conduct of a witness, offered for the purpose of impeaching his credibility, may not be inquired into on cross-examination nor proved by extrinsic evidence. TEX. R. CRIM. EVID. 608(b); see also Golden v. State, 762 S.W.2d 630, 632 (Tex. App.--Texarkana 1988, pet. ref'd). As such, Jenkin's testimony would likely have been inadmissible.
        In sexual abuse cases, however, accusations are easily levied and difficult to disprove, especially when made by a child. FN:5 In those cases, therefore, specific instances of conduct--which otherwise would be collateral and inadmissible evidence--become admissible if they constitute prior false accusations made by the child complainant in the case. See, e.g., Rushton v. State, 695 S.W.2d 591, 594 (Tex. App.--Corpus Christi 1985, no pet.); Thomas v. State, 669 S.W.2d 420, 422-23 (Tex. App.--Houston [1st Dist.] 1984, pet. ref'd). The jury is entitled to hear testimony about prior false accusations by the complainant in sex abuse cases so that it may resolve the issue of the complainant's credibility. See Thomas, 669 S.W.2d at 423; see also Harrison v. State, 686 S.W.2d 220, 224 (Tex. App.--Houston [1st Dist.] 1984, pet. ref'd). We determine, based on these cases, that the prior false accusations must occur prior to or contemporaneously with the allegations for which the defendant is on trial. See Polvado v. State, 689 S.W.2d 945, 947 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd); Harrison, 686 S.W.2d at 223-24; Thomas, 669 S.W.2d at 423.
        In the present case, complainant's allegation against her step-grandfather was not a prior accusation. Complainant testified at least three different times that the incident involving Jenkins occurred after the allegations of sexual abuse by appellant. Complainant did not even meet Jenkins until after she had moved away from her natural mother and appellant. The report against the step-grandfather was made in January 1986, while the allegations against appellant came to light in June 1985. The abuse by appellant began as early as 1983.
        We conclude that the testimony of the step-grandfather was inadmissible impeachment evidence under rule 608(b) of the Texas Rules of Criminal Evidence. Despite the nature of the charges as sexual abuse, his testimony remained inadmissible because complainant's allegations against him were not prior false accusations. As the trial court did not err in excluding Jenkins' testimony, we overrule point six.
VII. REFUSAL OF MISTRIAL OR CONTINUANCE
        In his final point of error, appellant complains that the trial court erred in failing to grant a mistrial or continuance based on appellant's claimed surprise resulting from the State's late production of documents. The record reflects that on the day of trial, the State produced some additional notes from complainant's new TDHS caseworker--all entries made after the first trial of appellant, which ended in a mistrial. Appellant's counsel objected to the production at that late date, claiming it prevented the defense a "reasonable opportunity to prepare a defense with the documentation being submitted." The State told the trial court that the new caseworker would likely not testify; the prosecutor also said that as soon as she received the notes, she provided a copy to appellant's counsel. The court deferred its ruling until it had an opportunity to review the notes in camera.
        Near the close of the evidence, appellant moved for a mistrial because he had not been provided with the recent TDHS caseworker's notes. The court, having reviewed the notes, stated that it did not find any exculpatory matters favorable to the defendant, but allowed appellant to look at the notes. The court did not rule on the motion for mistrial. Appellant then orally moved for a continuance, and the court denied its motion. Appellant orally renewed its motion for continuance before the charge was read to the jury; again the motion was denied.
        The determination of whether to grant a motion for continuance lies within the sound discretion of the court; reversal will ensue only when an abuse is shown. Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1982), cert. denied, 462 U.S. 1144 (1983); McCraw v. State, 690 S.W.2d 69, 71 (Tex. App.--Dallas 1985, no pet.). The same rule applies to a motion for continuance filed during trial. See Ewing v. State, 549 S.W.2d 392, 394 (Tex. Crim. App. 1977). Generally, a court does not abuse its discretion in failing to grant an oral motion for continuance. Hightower v. State, 629 S.W.2d at 926; Lewis v. State, 674 S.W.2d 423, 427 (Tex. App.--Dallas 1984, pet. ref'd); see also TEX. CODE CRIM. PROC. ANN. art. 29.03 (Vernon 1989) (motion must be written and set forth sufficient cause).
        In the instant case, appellant filed a written motion for continuance based on the absence of a witness. However, he filed no written motion on the grounds he asserted orally at trial--that the late production of the new social worker's notes prevented appellant from properly preparing his defense. Moreover, the court stated that upon review it found no exculpatory evidence in the social worker's notes and gave appellant ample opportunity to review the twenty-eight pages of documentation. We see no abuse of discretion in the trial court's denial of a continuance based on these facts. Further, we note that the court's alleged error in failing to grant a mistrial on these grounds was not preserved for appellate review because appellant did not get a ruling on his motion. See TEX. R. APP. P. 52(a). Therefore, we overrule appellant's seventh point of error.
        We AFFIRM the trial court's judgment.
 
                                                  
                                                  CHARLES BEN HOWELL
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00209.F
 
FN:1 We assume this to fall under article 22.011(a)(2)(A) of the Texas Penal Code, which is aggravated sexual assault caused by the penetration of the female sexual organ of a child under fourteen years by any means.
FN:2 As expert testimony is no longer objectionable on the grounds that it invades the province of the jury, see Kirkpatrick v. State, 747 S.W.2d 833, 834 (Tex. App.--Dallas 1987, pet. ref'd); TEX. R. CRIM. EVID. 704, the law is unclear whether the same objection preserves error as to a lay witness's testimony. But see Hopkins v. State, 480 S.W.2d 212, 220 (Tex. Crim. App. 1972) (invasion of province of jury rule is long dead; we give it "official burial").
FN:3 We note that, even if error was preserved, the doctor's testimony falls within the hearsay exception of statements for the purpose of medical diagnosis or treatment. TEX. R. CRIM. EVID. 803(4). Any error, therefore, was harmless. See TEX. R. APP. P. 81(b)(2).
FN:4 Although the prosecutor did not cite the rule, we presume she was referring to rule 608(b) of the Texas Rules of Criminal Evidence.
FN:5 See Polvado v. State, 689 S.W.2d 945, 950 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd).
File Date[01-02-89]
File Name[880209F]