OPINION
James Delevan Puderbaugh was indicted for having committed the first degree felony offense of aggravated sexual assault of a child younger than fourteen years of age. After the jury found Puderbaugh to be guilty, the court assessed punishment at seventy-five years of confinement in the Texas Department of Criminal Justice, Institutional Division. Puderbaugh raises five points of error in his appeal.
Point of error one urges, “The trial court erred by allowing a social worker to testify to statements made to him which incriminated appellant because the State did not show that the complainant knew the statements were being made for the purpose of medical diagnosis or treatment.” Richard Brouwer, a clinical social worker who practices with physicians in a family office practice, testified that the complainant C.P., was referred to him for counseling by C.P.’s family physician. Since starting treatment in June 1997, Brouwer had over 30 sessions with C.P., conducted approximately twice a month. In the course of her treatment, C.P. indicated that her father, the appellant, sexually abused her.
Statements made for purposes of medical diagnosis or treatment are excepted from the hearsay rule. Tex.R.Evid. 803(4). Puderbaugh argues C.P.’s statements to Brouwer, relating the abuse by Puderbaugh, are inadmissible under
Gohr-ing v. State,
Point of error two urges, “The trial court erred by allowing a social worker to testify to statements made to him whiсh incriminated appellant because the State did not show that the social worker qualified as an expert.” Puderbaugh argues that Brouwer’s testimony regarding statements made by C.P. during the course of play therapy was inadmissible because the reliability of his methodology was not shown to have been tested in this case. Puderbaugh complains that Brouwer’s method of diagnosis was not based on any standardized testing procedure, but on his training and experience.
For scientific evidence to be considered reliable, the underlying theory must be valid, the technique applying the theory must be valid, and the technique must be рroperly applied on the occasion in question.
Kelly v. State,
When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a “theory” or “technique” in these fields may be roughly accurate but somewhat misleading. The appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of thаt field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. These questions are merely an appropriately tailored translation of the Kelly tеst to areas outside of hard science. And, hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences.
Nenno,
This case is unusual because Brou-wer did
not
offer an expert opinion as to whether C.P.’s behavior is consistent with child victims of sexual abuse. The issue is not whеther Brouwer possesses sufficient expertise so that his opinion will aid the jury in its understanding of the evidence, but whether the methods employed in C .P.’s treatment are sufficiently reliable to permit Brouwer to relate to the jury statements made by C.P. during “play therapy.” Brouwer testified that he acquired a bachelor’s degree in psychology and a master of social work degree from Western Michigan University. He has been employed by St. Mary’s Hospital since 1981, working in a family health center that trains family physicians. He has puppets and stuffed animals in the room, which he uses in conversations with younger children like C.P. He asks the child to draw self-portraits and pictures of her family to be used as tools in their discussions. He has discussed this case, and others, with a psychiatrist and two other social workers who teach family practicе residents with him. The methods he uses in his treatment of C.P. are recognized methods in the field of social work. Pu-derbaugh did not produce any evidence challenging the legitimacy of the field of social work, nor did he rebut Brouwer’s expertise in the field or offer any publications questioning the legitimacy of play therapy.
See Campos v. State,
The appellant’s brief combines his argu.ment for the next two points of error:
Point of error three: The trial court errеd by prohibiting the jury from hearing that the complainant had made other accusations of abuse because these statements reflected on her credibility.
Point of error four: The trial court erred by kеeping defense counsel from *687 asking the complainant if she had ever had to testify in another criminal case.
The credibility of a witness may not be attacked with specific instances of conduсt other than conviction of crime. Tex.R.Evid. 608(b). While our state does not recognize a
per se
exception for sexual offenses, the Confrontation Clause may occasionally require the admission of evidence that the Rules of Evidence would exclude.
Lopez v. State,
In his bill of exceptions, defense counsel asked C.P. if she recalled telling someone that her baby sitter’s son had done something she didn’t like, if she ever madе such a statement, or if she ever made a statement about some black boys doing something to her, or if she recalled making a statement about “Chris” doing something to her. C.P. did not recall making such statements, nоr did she recall making any statements about anyone other than her father. The appellant’s brief does not direct us to any evidence that C.P. ever made an accusation of penile pеnetration against someone other than her father, nor does he identify any evidence in the record to support a claim that such an allegation, if made, was false. As was the case in Lopez, therе is no evidence that C.P. made a prior accusation that was false or that was similar to the accusation against Pu-derbaugh. Points of error three and four are overruled.
The final point of errоr contends, “The trial court erred by not declaring a mistrial when the complainant admitted she had been told that she could avoid answering questions by simply saying she didn’t remember.” The complainant was six years оld at the time of the offense and nine years old on the day of trial. Outside the presence of the jury, defense counsel asked C.P., “[H]as anyone ever told you that you could say I don’t remember when you really don’t want to answer, when it is a hard question?” C.P. replied yes, her mother had told her that. On cross-examination, C.P. stated that there were parts of the questions defense counsel asked that she did not understand. In denying the motion for mistrial, the trial judge mentioned that the complainant was crying and might have misinterpreted the question, and suggested he could question the mother or bring the child back in front of the jury.
The implication hеre is that C.P. may have testified falsely in front of the jury any time her response to a question was that she did not remember. The knowing use of perjured testimony by a prosecutor in obtaining a conviction violates a defendant’s due process rights and denies the accused a fair trial.
Davis v. State,
AFFIRMED.