2 Points of Error

Appellant advances two points of error, both concerning evidentiary rulings. First,

appellant complains that the trial court erred “when it admitted hearsay statements of the child

through Nilima Mehta, a psychiatrist, for the purpose of medical diagnosis when the child did not

have personal knowledge of the incident being reported.” Second, on the same basis, appellant urges

that the trial court erred in admitting hearsay statements of the child through William Lee Carter, a

psychologist. The hearsay statements were similar in nature and referred to the same incident that

was the basis of count III of the indictment.

Background and Facts

Appellant does not challenge the legal or factual sufficiency of the evidence to

support his three convictions. The evidence makes clear that there are two incidents to be kept in

mind. The incidents occurring on or about January 26, 2001, were the basis for the allegations

underlying counts I and II of the indictment. M.R., the complainant, who was fifteen years old at

the time, was drunk and “out of it.” He had no real recollection of the incident that was described

for the jury in some detail by his mother. The other incident, apparently occurring in May 1997, can

be des cribed as the “bathtub -shower” incident. It formed the basis of the allegations underlying

count III of the indictment. M.R. testified as to this incident and was somewhat uncertain only as

to whether appellant’s penis, finger, or hand touched his bottom while they were in the shower. It

is only this last described incident that is involved in the contentions urged by appellant in his points

of error. M.R. did not relate the 2001 incidents to either the psychiatrist or the psychologist, as they

later confirmed.3 Adelita Ramirez, appellant’s wife and mother of the complainant, M.R., detailed her

long relationship with appellant. Sometime near the end of January or in the first week of February

2001, she came home one evening and found M.R. missing from her Austin apartment. Her search

for him proved futile. The next morning between three or four o’clock, appellant and M.R. came

to the apartment. Appellant was not living there at the time. Both were drunk. Adelita described

M.R. as “stoned” and “bumping in to walls.” Adelita told M.R. to go to sleep in her bed with the

three younger children. He did so. Appellant laid down on the living room couch. A little later,

Adelita heard appellant get up. After a few minutes, Adelita began to investigate. She observed

appellant squatting down beside the bed. M.R.’s pants had been pulled down and appellant had his

left hand in M.R.’s buttocks. At the same time, appellant was masturbating himself with his right

hand. Adelita kicked appellant over. She smelled his left hand which smelled like bowel movement.

She began shaking M.R. and hitting him to awaken him. She asked if M.R. had not felt what his

father was doing to him. M.R. mumbled and soon went back to sleep. An argument ensued between

Adelita and appellant. He pulled the telephone jack from the wall so she could not use the telephone.

About seven o’clock that morning, Adelita drove appellant to his sister’s house.

Adelita did not report the incident to the police because M.R. told her that he would

run away from home if she did. In April 2001, she decided that she did not want M.R. to run away

or hurt himself. Knowing that there was an outstanding warrant of arrest for M.R., she called his

juvenile probation officer and told him that M.R. was at home. The next morning, Adelita reported

the incident she had observed to the police.1 At one point, without objection, M.R. testified to another shower incident when appellant

pulled him down on appellant’s nude lap and he felt appellant’s penis, although it was not erect.

4 M.R. also testified. He was sixteen years of age at the time, and committed to the

Texas Youth Council. He related his lengthy juvenile delinquency record including burglary, theft,

and criminal trespass. He acknowledged his excessive use of alcohol and marihuana and stated that

he had experimented with acid, cocaine, and embalming fluid. As to the incident described by his

mother, M.R. explained that he had gone with appellant to th e home of appellant’s brother, Jerry,

where they smoked marihuana and drank alcohol and became intoxicated. M.R. recalled that it was

late when he got home and went to bed. He passed out and did not feel appellant touch him.

M.R. did testify t hat when he was about eleven or twelve years old, in 1997, that

appellant would make him shower with appellant when both were naked; that this occurred five or

six times when his mother was not at home, over his protests; and, that each time he would hurry and

try to get out of the bathtub-shower.

When testifying about the shower incident, the basis of count III of the indictment,

M.R. testified that appellant would stand behind him and wash his back; that once he felt “something

on my bottom” which was appellant’s penis or felt like appellant’s “private.” Later, he testified that

he hurried to get out and did not turn around to look. It felt like a finger but it did not feel like a

finger. 1 M.R. testified that he did not tell anyone about these shower incidents. He was

embarrassed. In fact, he denied any sexual abuse when he talked to his probation officers and to a

psychologist named Nelson.5 With regard to the first point of error concerning the admission of hearsay testimony,

we find that Dr. Nilima Mehta, a board-certified psychiatrist, who had practiced for fourteen years,

was a State’s wi tness. She had received her medical education in India. While employed by the

Austin Child Guidance Center, Dr. Mehta reported that on April 25, 2001, M.R. was brought to her

by his probation officer for an evalua tion and treatment recommendations. His mother was also

present.

During her direct examination, she made the following complained-of statement:

During my individu al interview with [M.R.], he told me -- he talks about his

biological father hurting him and described the incident where dad would force him

to stay in the bathtub and would wipe his back, and once he felt his private or his

hand on his back. He denied any -- denies dad having anal intercourse.

Th e brief statement related only to the 1997 incident. At the conclusion of the

evaluation, Dr. Mehta diagnosed M.R. with “adjustment disorder wit h mixed features of emotion

and conduct.” She prescribed Zoloft, an anti-depression drug. Dr. Mehta never saw M.R. again.

With regard to the second point of error involving the admission of hearsay testimony,

we find that Dr. William Lee Carter, a licensed psychologist at the Cedar Crest Ho spital and

Reside ntial Treatment Center in Belton, was a State’s witness. His qualifications were not

challenged. According to Dr. Carter, M.R. was placed at the aforesaid Center on May 9, 2001. It

was during the direct examination of Dr. Carter about one of his sessions with M.R. that the

complained-of testimony was elicited. The record reflects:

Q. And did you -- did he discuss the abuse by his father during this session?6

A. Yes. Now, my notes indicated that for the two or three days prior to that -- I

wrote that he had been in a steep emotional and beh avioral decline, and he

expressed feeling completely overwhelmed. He identified the greatest stressor

in his life as being the effect of his father’s sexual abuse

-- sexual abuse of him,

which was approximately three -- three to four years prior to that

.

(Emphasis added).

It is obvious that the reference was to the 1997 incident. Dr. Carter noted that M.R.

was not given to discussing details of any sexual abuse and he did not pressure M.R. to do otherwise.

Dr. Carter, like Dr. Mehta, testified that M.R. did not mention to him the incident in January 2001.

Discussion

To preserve error for appellate review, the comp laining party must make a timely,

specific objection and obtain a ruling. Tex. R. App. P. 33.1; B roxton v. State

, 909 S.W.2d 912, 918

(Tex. Crim. App. 1995). During Dr. Mehta’s voir dire examination, appellant objected to her

testimony on the basis of Rules 403, 404(b), 602, 803(1) and 803(4), Texas Rules of Evidence. The

separate objections were overruled and appellant was not required to later repeat the objections

before the jury. Tex. R. Evid. 103(a)(1). As to Dr. Carter’s testimony, appellant asked generally to

make the same objections earlier made. The trial court permitted and then overruled these

objections.

Assuming the preservation of error on the grounds stated, we observe that both points

of error seem to be an attempt to uniquely blend Rules of Evidence 602 and 803(4) while stressing

that the child (M.R.) did not have personal knowledge of the 1997 incident “being reported” by the

doctor-witnesses.2 Rule 602 (Witness’s Lack of Personal Knowledge) provides:

A witness may not testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has person al knowledge of the matter.

Evidenc e to prove personal knowledge may, but need not, consist of the

testimony of the witness. This rule is subject to the provisions of Rule 703,

relating to opinion testimony by expert witnesses.

Tex. R. Evid. 602.

3 Rule 803(4) provides:

The following are not excluded by the hearsay rule, even though the declarant is

available as a witness.

(4) Statements for Purposes of Medical Diagnosis or Tr eatment.

Statements made for purposes of medical diagnosis or treatment

and describing medical history, or past or present symptoms, pain,

or sensations, or the inception or general character of the cause or

external source thereof insofar as reasonably pertinent to diagnosis

or treatment.

Tex. R. Evid. 803(4).

7

This attempt to blend Rules 602 2 and 803(4) 3 appears contrary to the record and the

law. Rule 602, relating only to witnesses, is not directly applicable to the points of error raised.

Appellant is not challenging the lack of personal knowledge by the witnesses, Doctors Carter and

Mehta, but a decla

rant’s out-of-court statements reported by the witnesses. Moreover, the record

shows that when M.R. testified as a witness, he did not display a lack of personal knowledge about

the 1997 shower incident, although his testimony may have b een a little inconsistent as to what

actually touched him.

It does not appear that the unique blend of rules theory was presented to the trial court

at all. Certainly it was not with sufficient specificity to make the trial court aware of the objection.8

Tex. R. App. 33.1(a)(1)(A). A complaint on appeal must comport with the trial objection or nothing

is presented for review. W ilson v. State

, 71 S.W.3d 346, 349 (Te x. Crim. App. 2002); F uller v.

State , 827 S.W.2d 919, 925 (Tex. Crim. App. 1992).

To reach the proper result here, we need not rely alone on the failure to preserve the

error now urged. As noted, M.R. testified about the 1997 shower incident. In addition, prior to the

testimony of Doctors Carter and Mehta, M.R. testified, without objection, that he related the 1997

incident to a psychiatrist (“a sort of Indian looking woman”) (Dr. Mehta) and also to Dr. Carter in

Belton.

The imprope r admission of evidence is not reversible error when substantially the

same facts are proven by unobjected testimony. B rooks v. State

, 990 S.W.2d 278, 287 (Tex. Crim.

App. 1999); Anderson v. State , 717 S.W.2d 622, 626-27 (Tex. Crim. App. 1986); Hitt v. State , 53

S.W.3d 697, 708 (Tex. App.—Austin 2001, pet. ref’d); Miranda v. State

, 813 S.W.2d 724, 739 (Tex.

App.—San Antonio 1991, pet. ref’d). Thus, overruling an objection to evidence will not generally

result in reversal when the same facts are received without objection, either before or after the

complained-of ruling, and regardless of whether the other evidence was introduced by the defendant

or the State. Leday v. State , 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).

Under the circumstances, the trial court did not err in the admission of the testimony

of the doctors of which appellant now complains. Appellant’s lack of personal knowledge argument

goes to the inconsistency of M.R.’s testimony as to what touched his “bottom” while he was in the

shower during the 1997 incident. Moreover, the 1997 incident was the underlying basis for count9

III of the indictment which charged indecency with a child by exposure not by contact. The points

of error are overruled.

The judgments are affirmed.

John F. Onion, Jr., Justice

Before Chief Justice Law, Justices Puryear and Onion *

Affirmed

Filed: February 5, 2004

Do Not Publish

* Before John F. Onion, Jr., Presiding Jud ge (retired), Court of Criminal Appeals, sitting by

assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).