                                    NO. 07-07-0389-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                SEPTEMBER 29, 2009
                          ______________________________

                               ROYCE JIMINEZ, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2007-417,074; HONORABLE CECIL G. PURYEAR, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant Royce Jiminez appeals from his conviction of indecency with a child and

the resulting sentence of imprisonment for a term of eight years in the Institutional Division

of the Texas Department of Corrections. Via five issues, appellant contends the trial court

reversibly erred. We affirm.
                                         Background


       By a July 2007 indictment, appellant was charged with six counts of indecency with

a child, all alleging contact between appellant and a boy then almost seven years old.1

Five of the six counts alleged appellant touched the child’s genitals. Those five counts

alleged the touchings occurred on or about March 14 (count I); March 1 (count III);

February 1 (count IV); February 15 (count V); and January 1 (count VI), all in 2006. Count

II of the indictment alleged appellant caused the child to touch appellant’s genitals, on or

about March 14.


       After the close of the evidence, the court submitted each of the six counts to the jury

with a separate verdict form. The jury found appellant guilty of counts I through IV and not

guilty of counts V and VI. After punishment evidence, the jury assessed punishment of

imprisonment for eight years on each count, and the court sentenced appellant

accordingly, ordering the sentences served concurrently.


       Appellant does not challenge the sufficiency of the evidence supporting his

convictions, so we will recite only so much of the evidence as is necessary to an

understanding of the issues presented. Both appellant and the boy, eight years old by the

time of trial, testified. It suffices at this point to say that the State’s evidence was detailed

concerning the incidents on March 14, 2006, which the testimony showed occurred in a




         1
           See Tex. Penal Code Ann. § 21.11 (Vernon 2001). The State abandoned before
trial a seventh count alleging indecency by exposure.

                                               2
restroom at a clinic.2 Appellant acknowledged he and the boy went to the restroom at the

same time at the clinic, but disputed the boy’s version of the events that occurred there.

The evidence regarding the touchings alleged to have occurred on or about the other dates

was more general. The boy testified appellant fondled him while they drove in appellant’s

vehicle. He described some details of the fondlings, and said the same thing happened

more than once. Although it was undisputed the boy on some occasions had ridden alone

in the vehicle with appellant, a close family friend, appellant denied he ever fondled the

boy.


                                           Analysis


Election


       In appellant’s first two issues, he contends the trial court erred by refusing to require

the State to timely elect the acts on which it relied for conviction.3 By his first issue,

appellant contends this refusal denied him notice in violation of his due process and due

course of law rights, and by his second issue contends it denied his right to a unanimous

jury verdict.




       2
          The evidence included, for example, testimony by a nurse concerning appellant’s
visit to the clinic on March 14, and her memory that the boy accompanied appellant.
       3
       Appellant preserved error by his motions to require election. Absent such a motion
by the defendant, the State is not required to make an election. O’Neal v. State, 746
S.W.2d 769, 771 (Tex.Crim.App. 1988); Crawford v. State, 696 S.W.2d 903.
(Tex.Crim.App. 1985).

                                               3
       As a general rule, when the State’s evidence shows multiple instances of conduct

conforming to a single indictment allegation, on proper request the State must elect the

instance on which it will rely for conviction. Martinez v. State, 225 S.W.3d 550, 555

(Tex.Crim.App. 2007); O’Neal v. State, 746 S.W.2d 769, 771 (Tex.Crim.App. 1988).

Appellant’s contentions concerning election have no application to count II, which was the

only count alleging appellant caused the boy to contact his genitals. The only evidence

supporting that count showed the incident happened on March 14. Nor do we think

appellant’s issues concerning election have application to count I, which alleged appellant

had contact with the boy’s genitals on March 14. The record is abundantly clear that the

State relied on its evidence of the events of March 14 to show appellant’s guilt under count

I.


       The other four counts were identical except for their on-or-about dates, and the

State did not attempt to show the specific date on which any of the vehicle incidents

occurred. After the State rested its case-in-chief, appellant asked the court to require the

State to elect which acts it was relying on to seek a conviction. The court denied

appellant’s request. As noted, the jury found appellant guilty of two of the counts and not

guilty of two.


       We agree with appellant that, by the State’s evidence, the jury was told of multiple

instances of conduct by appellant conforming to the allegations of the two counts of which




                                             4
he was found guilty.4 The State concedes the trial court committed error by failing to

require an election in that circumstance, and we agree. But the State contends the error

was harmless, and we agree with that contention as well.


       We analyze the harm resulting from failure to require an election by considering its

consequences with regard to the four purposes Texas courts have identified for the

election rule: (1) to protect the accused from the introduction of extraneous offenses; (2)

to minimize the risk that the jury might choose to convict, not because one or more crimes

were proved beyond a reasonable doubt, but because all of them together convinced the

jury the defendant was guilty; (3) to ensure unanimous verdicts, that is, all of the jurors

agreeing that one specific incident, which constituted the offense charged in the indictment,

occurred; and (4) to give the defendant notice of the particular offense the State intends

to rely on for prosecution and afford the defendant an opportunity to defend. See Dixon

v. State, 201 S.W.3d 731, 734 (Tex.Crim.App. 2006) (so analyzing harm); Phillips v. State,

130 S.W.3d 343, 349 (Tex.App.–Houston [14th Dist.] 2004), aff’d 193 S.W.3d 904

(Tex.Crim.App. 2006) (describing purposes). Appellant focuses his argument on two of the

four purposes of the rule, proper notice and jury unanimity. Our analysis is conducted

under the standard for constitutional error, requiring reversal unless we find beyond a




       4
        Those counts contained on-or-about dates of March 1 and February 1, 2006, but
the evidence provided no basis for a distinction between incidents allegedly occurring on
those dates and those occurring on the dates contained in the counts for which appellant
was found not guilty.

                                             5
reasonable doubt that the error did not contribute to the conviction or punishment.5 Tex.

R. App. P. 44.2(a); Dixon, 201 S.W.3d at 734, citing Phillips, 193 S.W.3d at 914.6


       In Dixon, the Court of Criminal Appeals conducted a harm analysis in a case

involving sexual assault of a child about the same age as the victim here. Dixon, 201

S.W.3d at 731. The victim in Dixon described how the defendant assaulted her, relating

a sequence of events that occurred, according to her testimony, “one hundred times.” The

only distinction among the occurrences to which the child testified was that one incident

occurred during the day, but all others were at night. Id. at 731. Similarly, the boy here

testified to the place and manner in which appellant fondled him. The boy said appellant

“gently squeezed” his “pee-pee” while they were in the front seat of appellant’s “SUV.”

Asked how many times such incidents occurred, he once said two times, later said three

times and elsewhere indicated as many as five or six times.             He said the incidents

happened on “different days.”


       In Dixon, en route to its conclusion, beyond a reasonable doubt, that the trial court’s

error in failing to require an election did not contribute to the defendant’s conviction or


       5
        We note also that appellant was sentenced to confinement for a period of eight
years on each of the four counts for which he was convicted. However, his sentences
were ordered to run concurrently.
       6
         If the State fails to elect but the evidence presented clearly indicates which specific
incident the State is relying on, the error is not harmful. Phillips, 130 S.W.3d at 352. Thus
if we are incorrect with regard to count I of the indictment, and the trial court’s error extends
to the failure to require the State to elect which incident it relied upon to prove guilt on
count I, that error also was harmless because, as noted, the State’s evidence clearly
indicated the incident at the clinic restroom on March 14 was the specific incident on which
it was relying.

                                               6
punishment, the court rejected contentions that the defendant was deprived of adequate

notice, 201 S.W.3d at 736, and that there was a risk of a non-unanimous verdict. Id. at

735. Given the similarities between the evidence presented in Dixon and the State’s

evidence supporting counts III and IV here, we find the Court of Criminal Appeals’s

analysis of harm in that case applicable here. If the jury believed the boy’s testimony that

appellant fondled him while they rode in his vehicle, its decision on appellant’s guilt did not

turn on which incident occurred on or about which date, but turned on how many incidents

of fondling it determined had occurred. See Young v. State, No. 14-08-00629-CR, 2009

WL1660698 (Tex.App.–Houston [14th Dist.] June 16, 2009, no pet.) (mem. op., not

designated for publication); Jackson v. State, Nos. 10-07-00129-CR, 10-07-00130-CR,

10-07-00131-CR, 10-07-00132-CR, 10-07-00133-CR, 10-07-00134-CR, 2008 WL 4149940

(Tex.App.–Waco Sept. 3, 2008, pet. ref’d) (mem. op., not designated for publication);

Ramon v. State, No. 11-07-00062-CR, 2008 WL 2612569 (Tex.App.–Eastland July 3,

2008, pet. ref’d) (mem. op., not designated for publication) (all also applying Dixon analysis

in comparable cases). And, as the State points out, the jury’s acquittal of appellant on two

of the four counts supports the conclusion the absence of an election was harmless.

Appellant’s first two issues are overruled.


Hearing Regarding Proper Outcry Witness


       In appellant’s third issue, he contends the trial court erred by refusing to hold a

hearing required by article 38.072 of the Code of Criminal Procedure. Tex. Code Crim.

Proc. Ann. art. 38.072 (Vernon Supp. 2004-05). Prior to trial, the State filed notice of its


                                              7
intent to introduce outcry statements pursuant to article 38.072 through two witnesses, the

boy’s father and a police officer. Article 38.072 provides that outcry testimony from the first

adult, other than the defendant, to whom a child witness made statements describing an

alleged offense against the child will not be inadmissible because of the hearsay rule if the

article’s requisites are met.7


       The law is clear that the requirements of article 38.072 are mandatory and must be

followed for the outcry statement to be admissible over a hearsay objection. Long v. State,

800 S.W.2d 545, 547 (Tex.Crim.App. 1990); Duncan v. State, 95 S.W.3d 669, 671

(Tex.App.–Houston [1st Dist.] 2002, pet. ref’d). At trial, appellant apprised the trial court of

his request for a hearing by requesting a hearing pursuant to article 38.072, bench filing

his objection pursuant to Rule 802 of the Texas Rules of Evidence and a motion for

hearing pursuant to article 38.072 and obtaining a running objection concerning these

issues. Lankston v. State, 827 S.W.2d 907, 911 (Tex.Crim.App. 1992). Thus, as the State

concedes, the trial court abused its discretion by admitting testimony to the boy’s outcry

without first conducting a hearing to identify the outcry witness and to make the required




        7
          The statement is admissible if: (1) on or before the 14th day before the date the
proceeding begins, the party intending to offer the statement notifies the adverse party of
its intention to do so, provides the adverse party with the name of the witness through
whom it intends to offer the statement, and provides the adverse party with a written
summary of the statement; (2) the trial court finds, in a hearing conducted outside the
presence of the jury, that the statement is reliable based on the time, content, and
circumstances of the statement; and (3) the child testifies or is available to testify at the
proceeding in court or in any other manner provided by law. See Tex. Code Crim. Proc.
Ann. art. 38.072(2)(b) (Vernon 2004-05).

                                               8
finding concerning the reliability of the statement. Duncan, 95 S.W.3d at 671; Bottenfield

v. State, 77 S.W.3d 349, 359 (Tex.App.–Fort Worth 2002, pet. ref’d).




       To assess the harm resulting from the trial court’s error, we apply the standard

applicable to non-constitutional error. Tex. R. App. P. 44.2(b); Bottenfield, 77 S.W.3d at

359-60. Non-constitutional error must be disregarded unless it affects substantial rights

of the defendant. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001). A substantial

right is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997);

Hankton v. State, 23 S.W.3d 540, 548 (Tex.App.–Houston [1st Dist.] 2000, pet. ref’d). A

conviction should not be overturned for such error if, after examining the record as a whole,

we have fair assurance the error did not influence the jury, or had but a slight effect.

Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Likewise, improper

admission of evidence is not reversible error if the same or similar evidence is admitted

without objection at another point in the trial. Leday v. State, 983 S.W.2d 713, 718

(Tex.Crim.App. 1998); Moore v. State, 233 S.W.3d 32, 36 (Tex.App.–Houston [1st Dist.]

2007, no pet). See also Duncan, 95 S.W.3d at 672 (improper admission of outcry

testimony was harmless error because similar testimony was admitted through

complainant, pediatrician, and medical records).


       The State’s article 38.072 notice stated the following summary of the boy’s father’s

anticipated outcry testimony:

                                             9
              On or about March 20, 2006, the victim, disclosed numerous incidents
       of sexual abuse, including multiple acts of Indecency with a Child. On or
       about March 20, 2006, the victim told [his father] that the defendant, Royce
       Jiminez, had exposed his penis to the victim, caused the victim to touch the
       defendant’s penis, caused the victim to expose his penis to the defendant,
       and the defendant touched the victim’s penis. Additionally, the victim stated
       that the defendant had touched the victim’s penis on numerous occasions.


The notice gave the following summary of the testimony of the interviewing police officer:


                On or about March 24, 2006, the victim, disclosed numerous incidents
       of sexual abuse, including acts of Indecency with a Child. On or about
       March 20, 2006, the victim told him that the defendant, Royce Jiminez, had
       exposed his penis to the victim, caused the victim to touch defendant’s penis,
       caused the victim to expose his penis to the defendant, and the defendant
       touched the victim’s penis. The victim also stated that the defendant would
       “squeeze” the victim’s penis and stated the defendant wanted to see if the
       victim’s penis “got hard.” Victim also stated defendant would tell victim “not
       to tell” and/or that the sexual abuse was a secret. Additionally, the victim
       stated that the defendant had touched the victim’s penis on five different
       occasions.


       As noted, the boy testified without objection at trial both to the incident in the clinic

restroom, when he said appellant touched his penis and had the boy touch appellant’s

penis, and to appellant’s fondlings of his penis in appellant’s vehicle. The trial testimony

presented by the boy’s father and the police officer was consistent with the summaries

provided in the State’s notice, and related the boy’s reports of the same events to which

the boy testified.


       Because the outcry witnesses’ testimony included the same facts that were admitted

into evidence without objection, we must conclude the trial court’s error in admitting the

outcry testimony without the required hearing did not affect appellant’s substantial rights,


                                              10
and thus was harmless. Tex. R. App. P. 44.2(b); Thomas v. State, 1 S.W.3d 138, 142

(Tex.App.–Texarkana 1999, pet. ref’d) (error in admission of improper outcry witness was

harmless when other proper evidence of such statements was admitted); Duncan, 95

S.W.3d at 672.


      We overrule appellant’s third issue.


Admission of Interview Video


      In appellant’s fourth issue, he complains of the trial court’s admission, over his

hearsay objection, of the video interview of the boy, conducted by a forensic interviewer.

The State argues that appellant painted the boy as a liar and the video thus was

admissible as a prior consistent statement. The State also contends that because the

same evidence came in elsewhere without objection, any error was cured.


      We first address the State’s argument that the video was admissible as a prior

consistent statement under Rule 801(e)(1)(B). See Tex. R. Evid. 801(e)(1)(B). The Texas

Court of Criminal appeals has recognized four requirements that must be met for prior

consistent statements to be admissible. Hammons v. State, 239 S.W.3d 798, 804

(Tex.Crim.App. 2007). The State has not satisfied the fourth requirement that “the prior

consistent statement must be made prior to the time that the supposed motive to falsify

arose.” Id. Appellant’s theory of the case at trial was that the boy’s motive to lie arose

when his father began to question him about a statement he had made in front of

appellant. Appellant asserted the boy lied to his father during that conversation, then


                                             11
repeated the lies to the forensic interviewer and in court.8 See, e.g., Torris v. State, No.

05-07-00829-CR, 2008 WL 3307093 (Tex.App.–Dallas July 31, 2008, pet. struck)

(videotaped statement was made well before witness met with prosecutors when the

supposed alteration in testimony was to have occurred, making the statement admissible

as a prior consistent statement). The videotaped statement was made after this discussion

took place, thereby running afoul of the fourth requirement and making the statement

inadmissible under Rule 801(e)(1)(B). See Martinez v. State, 276 S.W.3d 75, 82-83

(Tex.App.–San Antonio 2008, pet. ref’d) (recorded statement not admissible under Rule

801(e)(1)(B) to refute suggestion victim falsely accused defendant because victim’s alleged

motive to lie arose before CPS statement was recorded); citing Harughton v. State, 805

S.W.2d 405, 407-08 (Tex.Crim.App. 1990) (finding video statement not admissible as prior

consistent statement because alleged motive for fabrication arose prior to video

statement). See also Dowthitt v. State, 931 S.W.2d 244, 264 (Tex.Crim.App. 1996). We

find the trial court erred in admitting the videotape.


       However, the error does not require reversal for the same reason the admission of

the outcry witness testimony did not. In situations where an improperly admitted videotape

“essentially repeated the testimony” of the victim, when the victim also testifies and the

videotape is cumulative of the victim’s properly admitted testimony on the same issue,

courts often disregard the error reasoning that it could not have affected the appellant’s




       8
        The State does not identify any other occasion from which the boy’s supposed
motive to lie would have risen.

                                             12
substantial rights.9 Dunn, 125 S.W.3d at 615, citing Jensen v. State, 66 S.W.3d 528, 537

(Tex.App.–Houston [14th Dist.] 2002, pet. ref’d); Matz v. State, 21 S.W.3d 911, 912

(Tex.App.–Fort Worth 2000, pet. ref’d) (op. on remand). That is the case here. We find

that, because the testimony of the boy at trial “essentially repeated” the statement

contained in the videotaped interview, the erroneous admission of the tape does not affect

the substantial rights of appellant. See Tex. R. App. P. 44.2(b). We overrule appellant’s

fourth issue.


Confrontation through Cross-Examination


       In appellant’s last issue, he contends the trial court erred by disallowing him from

questioning the boy’s father about his disciplinary practices before the jury. He argues the

practices provided an additional motivation for the boy to lie to his father during their initial

conversation, and he was deprived of the opportunity to cross-examine the father about the

motive.


       The evidence showed that appellant and the boy’s father had a conversation in which

appellant related his version of the events in the clinic restroom, indicating the boy made a

comment about appellant’s penis. Appellant also told the boy’s father that the boy recently

had made a comment about the penis of a horse they saw while driving in appellant’s




          9
         However, some courts focus on the length of the improperly admitted testimony.
Dunn, 125 S.W.3d at 615, citing Moore v. State, 82 S.W.3d 399, 406 (Tex.App.–Austin
2002, pet. ref’d). In Dunn, the court included in their analysis a comparison of the length
of time it took the jury to hear the improperly admitted evidence with the properly admitted
evidence. Here, in comparison with the live testimony presented at trial, the video is quite
brief.

                                               13
vehicle.10 The boy’s father decided to talk with his son about those events, and took him into

the study of their home and closed the door. During their conversation, the boy made the

outcry statement against appellant. The father further testified he “can be a hard dad,” and

that going into the study and closing the door would have indicated to his son that their

conversation would be serious. Asked if that setting typically indicated the discussion would

be serious, the father said, “Yeah, it’s a serious talk . . . . It has to do with his behavior, with

his mom, or school grades.”


       As noted, appellant’s theory of the case at trial was that the boy lied to his father

during that conversation, then repeated the lies to the forensic interviewer and in court. To

pursue that theory, appellant took the boy’s father on voir dire examination outside the

presence of the jury. Asked how he disciplined his son, the father said he “put him in time

out.” He also said at times he took his son to a public field for what he called “boot camp,”

which he defined as “[g]oing out to a field and doing agilities, bear crawls, things like that.”

He also had the boy do exercises he called “up-downs,” where the boy would run five yards,

drop to the ground and do five push-ups, get up and run again. Asked how his son reacted

to the boot camp activities, the father said, “He does it. He . . . does the bear crawls or the

up and downs, and he responds and his behavior is corrected.”




        10
         Appellant testified the boy and his female cousins accompanied appellant to feed
appellant’s horses. While there, the boy saw a horse and said “Wow, girls, did you see
that horse’s penis?” Appellant testified that the comment “kind of startled” him and he “kind
of snapped” at the boy and told him “you don’t talk like that around girls” and told the boy
he would talk to the boy’s father about the comment. The boy admitted to his father that
he made a comment along these lines.

                                                14
       Following this offer of proof, the State objected pursuant to Rules 608(b), 401 and

403. See Tex. R. Evid. 608(b), 401, 403. The State argued that the questions elicited

specific instances of physical discipline of the boy. The State further argued the evidence

was not relevant, and that it was more prejudicial than probative because the defense was

trying to insinuate the boy’s father was a bad parent or utilized bad parenting skills. The trial

court sustained the objections, the action of which appellant complains in his fifth issue.


       We review a trial court’s decision to exclude evidence under an abuse of discretion

standard. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex.Crim.App. 1999); Montgomery v.

State, 810 S.W.2d 372, 379-80 (Tex.Crim.App. 1991) (op. on reh’g). An abuse of discretion

occurs when a trial court’s decision is so clearly wrong that it lies outside the “zone of

reasonable disagreement.” Gonzales v. State, 117 S.W.3d 831, 839 (Tex.Crim.App. 2003).

We first note our agreement with appellant that the right to confrontation by cross-

examination is a fundamental constitutional right. Thomas v. State, 897 S.W.2d 539, 542

(Tex.App.–Fort Worth 1995, no pet.), citing Shelby v. State, 819 S.W.2d 544 (Tex.Crim.App.

1991). The exposure of a witness’s motivation to testify is a proper and important function

of cross-examination. Thomas, 897 S.W.2d at 542, citing Olden v. Kentucky, 488 U.S. 227,

109 S.Ct. 480, 102 L.Ed. 513 (1988). We further agree that while extrinsic evidence of

specific acts of conduct is generally not admissible to attack a witness’s response, an

exception exists where evidence shows bias or motive for the witness to testify untruthfully.

Thomas, 897 S.W.2d at 542, citing Murdock v. State, 840 S.W.2d 558 (Tex.App.–Texarkana

1992), rev’d on other grounds, 856 S.W.2d 262.




                                               15
       But the trial court also maintains broad discretion to impose reasonable limits on

cross-examination. Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App. 1997). The trial

court must carefully consider the probative value of the evidence and weigh it against the

risks of admission, inter alia, harassment, undue prejudice, confusion of the issues,

endangering the witness, and the injection of cumulative or collateral evidence. Lagrone, 942

S.W.2d at 613; Hodge v. State, 631 S.W.2d 754, 758 (Tex.Crim.App. 1982). A trial court

must weigh each Confrontation Clause issue on a case-by-case basis, so that both the

defendant's right to cross-examine and the risk factors associated with the admission of the

evidence are carefully taken into account. Hoyos v. State, 951 S.W.2d 503, 510 (Tex.App.–

Houston [14th Dist.] 1997), aff'd, 982 S.W.2d 419 (Tex.Crim.App.1998). See also Davis v.

Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).


       Appellant cross-examined the boy’s father on the serious setting of their outcry

conversation, and on his own description of himself as a “hard dad.” The record of cross

examination contains the following exchange:


       Q:     Okay. Now, [boy’s father], you also mentioned that the study is where you
              settle issues; is that correct?
       A:     That is correct.
       Q:     And that you can be a hard dad; is that correct, as well?
       A:     That is correct.
       Q:     And that any time you took [the boy] into the study, it was going to be for
              serious matters, such as his behavior . . . . Is that fair to say, as well?
       A:     Yes, sir.


       The father’s testimony provided ample basis for appellant to argue the boy had a

motivation to lie to avoid discipline for his comments about the horse’s penis and appellant’s.


                                              16
The father’s testimony that his disciplinary methods involved time out and boot camp would

have provided cumulative or collateral evidence at most, and we think the trial court also

reasonably could have determined the testimony risked confusing the issues.


       Appellant relies on Thomas, 897 S.W.2d at 542. However, the testimony appellant

proferred had far less probative value than the evidence excluded in Thomas. There, the

defendant admitted he and the complainant engaged in sexual intercourse but he claimed

it was consensual. Thomas, 897 S.W.2d at 541. The trial court disallowed the defendant

from cross examining the complainant about her jealous and violent boyfriend, and her fear

of him. Id. at 541-42. The defendant successfully argued on appeal that the testimony was

admissible, and that its exclusion was harmful, pointing out his sole defense was that the

complainant fabricated the assault because she feared her boyfriend. Id. at 542.


       We cannot find an abuse of discretion by the trial court in denying appellant’s offer

of proof and refusing to permit him to ask questions of the boy’s father concerning the

discipline of his child. We overrule appellant’s fifth issue.


       Finding no reversible error, we affirm the judgment of the trial court.




                                                   James T. Campbell
                                                       Justice

Do not publish.




                                              17
