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Click here for the full text of this decision FACTS:On June 9, 2004, complainant, A.S., who was 7 years old at the time, visited Cathy McIlveen’s home to play with her children. At one point, McIlveen asked A.S. if she would miss her father Charles Scott when she went to visit her mother the following Saturday. A.S. replied, “no.” When McIlveen asked A.S. why she would not miss Scott, A.S. said, “because he hurts me.” When asked how, A.S. cuffed her hand around McIlveen’s ear and spelled out “S-E-X.” McIlveen instructed A.S. to not tell her any more. That evening, McIlveen told her husband about A.S.’ revelation. The next morning, they called a police officer. Pursuant to the officer’s instructions, McIlveen took A.S. to the Children’s Assessment Center in Houston. Lisa Holcomb, a forensic interviewer at the center, interviewed A.S. on videotape. At trial, the trial court admitted the interview and allowed it to be played at trial. Pamela Stahner, a forensic nurse, also examined A.S. at Hermann Hospital. Stahner testified A.S. had a narrowed hymen. Based on the physical examination, she concluded A.S. suffered “sexual assault by history.” A.S. testified that on numerous occasions since she was 4 years old, appellant caused her to participate in various forms of sexual activities with him. In addition, Dr. Barbara Matthews, a licensed clinical psychologist who saw A.S. weekly in psychotherapy since June 2004, testified A.S. had said that Scott had “S-E-X” with her, it hurt a lot, and she did not want to talk about it anymore. Following his indictment and trial, a jury found Scott guilty of aggravated sexual assault of a child and sentenced him to 75 years of imprisonment. HOLDING:Affirmed. Scott first asserted that the trial court erred by excluding testimony from witness Michelle Haylock regarding A.S.’ reputation for truthfulness. Texas Rule of Evidence 608(a) provides that the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation. Haylock testified that A.S. had a “bad” reputation for telling the truth. The trial court, however, did not allow Haylock to testify to whether she believed that A.S. “should be believed under oath.” Regardless of whether a character witness testifies as a reputation or opinion witness, the court stated that such a witness may testify only about the fact witness’ character. Rule 608, the court stated, does not authorize a witness to testify that another witness is telling the truth or lying. Nonetheless, the court found that the question, “Is it such that she should be believed under oath?” was a further question as to reputation based on the witness’ opinion and thus allowed under Rule 608. Accordingly, the court held that the trial court erred by not allowing the witness to answer the question. But the court also found the error to be harmless. Haylock had already testified that A.S. had a bad reputation, the court noted. In addition, two school nurses, Kathy LaBrode and Kathy Jenkins, testified earlier that A.S. had a bad reputation for truthfulness. Second, Scott contended that the trial court erred by allowing Matthews to testify as a lay witness after Scott’s counsel objected to her testimony, because she was not listed as an expert. Scott argued that Matthews testified in an “expert manner,” causing the jury to give her testimony inappropriate weight. But the court disagreed. Under Texas Rule of Evidence 701, the court stated, a lay witness may testify in the form of opinions or inferences if they are rationally based on the perception of the witness and helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. Specifically, Scott complained of Matthews’ testimony stating, “Children don’t talk about things that trouble them unless they feel safe. And usually they’re scared to death of talking about something that might get the person who’s hurting them in trouble because they’re attached to that person. . . . Especially if it’s a caregiver.” The court found Matthews’ testimony to be that of a lay witness, because it satisfied the requirements of Rule 701. Matthews’ opinion, the court stated, “was rationally based on her perceptions.” Furthermore, the court stated, Matthews testified that she had experience both with children whom she was treating in her practice and children outside the context of her practice, giving her personal knowledge gained by her own observation and interaction with children. The court stated that a reasonable person could have such opinions by spending a significant amount of time around children. Moreover, the court stated, Matthews’ opinion “was not based on a scientific theory; but it was helpful to the jury and did not require significant expertise to interpret.” Therefore, the court found that the trial court did not abuse its discretion by admitting Matthews’ testimony as lay testimony. Third, Scott argued that the trial court should have instructed the jury that Matthews’ opinions were not offered and should not be considered as expert opinions. But the court found that because Scott failed to make a timely request for such an instruction, the court did not err in failing to give such an instruction. Similarly, the court found that by not objecting properly at trial, Scott waived his complaint to the admission of the videotape on the basis that it was not a proper outcry statement under Texas Code of Criminal Procedure Art. 38.072. Finally, Scott contended that the trial court erred by allowing McIlveen to testify regarding A.S.’ statements, because McIlveen’s testimony was hearsay. But the court found that the state did not offer McIlveen’s testimony to prove the truth of the matter asserted. Instead, it offered the testimony to show “the circumstances under which McIlveen called the police.” OPINION:Seymore, J.; Hedges, C.J. and Yates and Seymore, J.J.

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