OPINION
RICKHOFF, Justice.
Appellant, Jerry Creekmore, was convicted by a jury of the offense of indecency with a child. Punishment was assessed at ten years [882]*882confinement. On appeal, appellant raises five points of error. We affirm.
The ten-year-old complainant sought to cry out the offense of sexual abuse by her stepfather to her school counselor in Floresville, Wilson County, Texas, by placing two notes in the counselor’s school mailbox. Summoned to the counselor’s office, the child told the counselor that two weeks before the initial outcry appellant sexually abused her and that the abuse had occurred on a regular basis in the past. The child described the abuse in detail and testified it occurred after school in either the child’s or appellant’s bedroom.
Point of error one complains that venue was not demonstrated sufficiently. The complainant clearly indicated the offense took place in her home, in Floresville, two weeks prior to her report to her counselor at school in Floresville and the Department of Human Services worker testified that the appellant and complainant lived in a trailer at 501 Goliad Rd., Wilson County, State of Texas. Venue is sufficiently established from the record. The point of error is overruled.
Next, appellant complains that the trial court erred in overruling his motion to dismiss because of former jeopardy. This court previously considered this issue by way of an interlocutory appeal from the trial court’s order overruling an application for writ of habeas corpus on the grounds that appellant was denied “his rights under the United States Constitution and under ‘Article I, section 14 of the Texas Constitution.’” In Cause No. 04-89-00403-CV, this court denied relief on August 8, 1989, for lack of jurisdiction.
The first trial began on June 12, 1989. The second trial began on August 21, 1989. In the first trial appellant requested and was granted a mistrial during the testimony of the first witness. Pretrial motion rulings will not be reversed unless there is a clear abuse of discretion, and in this context, facts presented that demonstrate that reasonable minds could not disagree as to the cause of the mistrial — that is, the identified intentional misconduct of the prosecutor. See Jacobs v. State, 787 S.W.2d 397, 400 (Tex.Crim.App.), cert. denied, 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 185 (1990).
Appellant states he was required to request a mistrial because the prosecutor violated the court’s order to disclose “certain very important information regarding multiple offenses and multiple outcries by the complainant.” No findings on the disputed fact issues were made or requested. The complainant during the first trial testified about leaving the two notes and then about sexual abuse which began about four years prior. The defense objected alleging surprise and prejudice and moved for a mistrial, which was granted. Appellant admitted to receiving discovery information that included allegations of previous abuse by this victim. The counselor testified the prosecutor asked her for the notes but she could not locate them in the school files so she could not furnish them to the prosecutor. The appropriate standard of review is set forth in Sanders v. State, 801 S.W.2d 955 (Tex.App.— El Paso 1990, pet. ref'd), as to when alleged intentional misconduct of the prosecutor constitutes the functional equivalent of an intent to provoke a mistrial. We cannot deduce from a close reading of this record such intentional prosecutorial misconduct. This point of error is overruled.
In the third point of error appellant complains that the trial court failed to submit his plea of former jeopardy to the jury. The record, however, shows that the plea, though filed, was not verified, that no evidence was submitted to the jury in support of the plea, that no submission was sought and that no objection to its absence from the charge was made. These failures and appellant’s failure to comply with Texas Code of Criminal Procedure articles 36.14 and 36.15 prevented his special plea from being heard by the trier of fact in accordance with article 27.07. See Tex.Code Crim.Proc.Ann. arts. 36.14, 36.15 (Vernon 1981 and Supp.1993) and art. 27.07 (Vernon 1989).
Point of error four complains of the admission of “third party extraneous offenses concerning appellant in violation of rule 404(b), Texas Rules of Criminal Evidence.” See Tex.R.Crim.Evid. 404(b). In rebuttal, prosecutors produced three witnesses who testi[883]*883fied they were about the same age as the complainant and in the appellant’s care when he sexually abused them in the same way. Defense objected “not only under Rule 6081 and the Boutwell2 theory, but on objections that these are going to be remote, going to prevent the Defendant from conducting cross examination on the basis that we are not prepared and asking for a continuance to defend and cross examine these witnesses?” The objection was overruled.
The first witness was appellant’s daughter who testified her mother was in the hospital having another baby when her father took her in a bedroom and “made me take his pants down, and he had an erection and he made me touch his penis and he proceeded to ejaculate in front of me.” She never told anyone until she was seventeen when she told the man who is now her husband. On cross-examination she admitted this was not the only time appellant abused her.
The next witness was appellant’s niece. She testified when she was eight or nine appellant was living behind her grandfather’s house in an apartment. When visiting, appellant would pick her up and “his hand went up and under my panties, and he fondled my private area.” On another occasion appellant “came home unexpectedly and caught me in the house in the restroom by myself ... I was in the process of pulling my shorts, or my underwear, or whatever I had on at the time, up, and he pulled them down and fondled my private parts and pulled my shirt up and fondled my breast.” She never told anyone till the second or third year of her marriage. On cross-examination she said,
I volunteered to help in any way that I could to get this stopped because I know what it did to my life ... in a child’s mind, my mind, I assumed that I was doing something, that I just didn’t know why it was happening to me because I assumed that it never happened to anybody else in the world.
She admitted she never confronted the appellant about this because she was terrified of him.
The third witness was another niece who testified she was eight when she returned to the States with her missionary parents for a reunion with the family. Appellant, “would attempt to get me in a corner or out of the house, or somewhere, and he would proceed to kiss me and fondle my breasts, or take my hands and cause me to fondle him, and this type of thing.” When she was seventeen she told her mother.
These rebuttal witnesses appeared after the victim’s testimony was challenged by: suggesting she was jealous; that she told lies; that her testimony was contradicted by defense witnesses; suggesting the child’s mother was lesbian; that the child and her mother watched x-rated movies; that mother and child touched each other in sexual ways and numerous other suggestions of general immorality all leading to the general premise that this was a plot against the appellant because he was a disciplinarian.
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OPINION
RICKHOFF, Justice.
Appellant, Jerry Creekmore, was convicted by a jury of the offense of indecency with a child. Punishment was assessed at ten years [882]*882confinement. On appeal, appellant raises five points of error. We affirm.
The ten-year-old complainant sought to cry out the offense of sexual abuse by her stepfather to her school counselor in Floresville, Wilson County, Texas, by placing two notes in the counselor’s school mailbox. Summoned to the counselor’s office, the child told the counselor that two weeks before the initial outcry appellant sexually abused her and that the abuse had occurred on a regular basis in the past. The child described the abuse in detail and testified it occurred after school in either the child’s or appellant’s bedroom.
Point of error one complains that venue was not demonstrated sufficiently. The complainant clearly indicated the offense took place in her home, in Floresville, two weeks prior to her report to her counselor at school in Floresville and the Department of Human Services worker testified that the appellant and complainant lived in a trailer at 501 Goliad Rd., Wilson County, State of Texas. Venue is sufficiently established from the record. The point of error is overruled.
Next, appellant complains that the trial court erred in overruling his motion to dismiss because of former jeopardy. This court previously considered this issue by way of an interlocutory appeal from the trial court’s order overruling an application for writ of habeas corpus on the grounds that appellant was denied “his rights under the United States Constitution and under ‘Article I, section 14 of the Texas Constitution.’” In Cause No. 04-89-00403-CV, this court denied relief on August 8, 1989, for lack of jurisdiction.
The first trial began on June 12, 1989. The second trial began on August 21, 1989. In the first trial appellant requested and was granted a mistrial during the testimony of the first witness. Pretrial motion rulings will not be reversed unless there is a clear abuse of discretion, and in this context, facts presented that demonstrate that reasonable minds could not disagree as to the cause of the mistrial — that is, the identified intentional misconduct of the prosecutor. See Jacobs v. State, 787 S.W.2d 397, 400 (Tex.Crim.App.), cert. denied, 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 185 (1990).
Appellant states he was required to request a mistrial because the prosecutor violated the court’s order to disclose “certain very important information regarding multiple offenses and multiple outcries by the complainant.” No findings on the disputed fact issues were made or requested. The complainant during the first trial testified about leaving the two notes and then about sexual abuse which began about four years prior. The defense objected alleging surprise and prejudice and moved for a mistrial, which was granted. Appellant admitted to receiving discovery information that included allegations of previous abuse by this victim. The counselor testified the prosecutor asked her for the notes but she could not locate them in the school files so she could not furnish them to the prosecutor. The appropriate standard of review is set forth in Sanders v. State, 801 S.W.2d 955 (Tex.App.— El Paso 1990, pet. ref'd), as to when alleged intentional misconduct of the prosecutor constitutes the functional equivalent of an intent to provoke a mistrial. We cannot deduce from a close reading of this record such intentional prosecutorial misconduct. This point of error is overruled.
In the third point of error appellant complains that the trial court failed to submit his plea of former jeopardy to the jury. The record, however, shows that the plea, though filed, was not verified, that no evidence was submitted to the jury in support of the plea, that no submission was sought and that no objection to its absence from the charge was made. These failures and appellant’s failure to comply with Texas Code of Criminal Procedure articles 36.14 and 36.15 prevented his special plea from being heard by the trier of fact in accordance with article 27.07. See Tex.Code Crim.Proc.Ann. arts. 36.14, 36.15 (Vernon 1981 and Supp.1993) and art. 27.07 (Vernon 1989).
Point of error four complains of the admission of “third party extraneous offenses concerning appellant in violation of rule 404(b), Texas Rules of Criminal Evidence.” See Tex.R.Crim.Evid. 404(b). In rebuttal, prosecutors produced three witnesses who testi[883]*883fied they were about the same age as the complainant and in the appellant’s care when he sexually abused them in the same way. Defense objected “not only under Rule 6081 and the Boutwell2 theory, but on objections that these are going to be remote, going to prevent the Defendant from conducting cross examination on the basis that we are not prepared and asking for a continuance to defend and cross examine these witnesses?” The objection was overruled.
The first witness was appellant’s daughter who testified her mother was in the hospital having another baby when her father took her in a bedroom and “made me take his pants down, and he had an erection and he made me touch his penis and he proceeded to ejaculate in front of me.” She never told anyone until she was seventeen when she told the man who is now her husband. On cross-examination she admitted this was not the only time appellant abused her.
The next witness was appellant’s niece. She testified when she was eight or nine appellant was living behind her grandfather’s house in an apartment. When visiting, appellant would pick her up and “his hand went up and under my panties, and he fondled my private area.” On another occasion appellant “came home unexpectedly and caught me in the house in the restroom by myself ... I was in the process of pulling my shorts, or my underwear, or whatever I had on at the time, up, and he pulled them down and fondled my private parts and pulled my shirt up and fondled my breast.” She never told anyone till the second or third year of her marriage. On cross-examination she said,
I volunteered to help in any way that I could to get this stopped because I know what it did to my life ... in a child’s mind, my mind, I assumed that I was doing something, that I just didn’t know why it was happening to me because I assumed that it never happened to anybody else in the world.
She admitted she never confronted the appellant about this because she was terrified of him.
The third witness was another niece who testified she was eight when she returned to the States with her missionary parents for a reunion with the family. Appellant, “would attempt to get me in a corner or out of the house, or somewhere, and he would proceed to kiss me and fondle my breasts, or take my hands and cause me to fondle him, and this type of thing.” When she was seventeen she told her mother.
These rebuttal witnesses appeared after the victim’s testimony was challenged by: suggesting she was jealous; that she told lies; that her testimony was contradicted by defense witnesses; suggesting the child’s mother was lesbian; that the child and her mother watched x-rated movies; that mother and child touched each other in sexual ways and numerous other suggestions of general immorality all leading to the general premise that this was a plot against the appellant because he was a disciplinarian. Appellant’s parents testified their son would never sexually abuse children. They also testified the victim viewed dirty magazines, talked about a sex act and was caught with her hands down the pants of a mentally retarded child.
Appellant then testified and denied the allegations and reviewed the moral attack on the child and mother. Dr. Judith Craig, a clinical psychologist, was allowed to view the testimony and testified as an expert on sexual abuse of children. She testified appellant did not fit her profile of an abuser, that “there is very strong reason to doubt that” he abused the child, and that in her opinion there “is great reason to doubt” the victim. Finally, on cross-examination, the doctor was asked, “... [D]id you interview Mr. Creek-more with regard to whether or not he was a pedophile”? The expert answered, “He says he is not. He says he has never sexually molested anyone.” The prosecutor then repeated the answer and again the summary expert witness repeated, “He said he has never sexually molested anyone, yes.” Later she stated she had no reason to doubt him because his he scale on the testing was not elevated and his behavior and demeanor did [884]*884not suggest lying. But she also stated that the child should be doubted because of her demeanor, including being too calm and not crying.
The trial court’s discretion to admit evidence should not be disturbed absent clear abuse of discretion. The most precise guidance on the application of the standard of review in the context of Tex.R.CRIM.Evid. 404(b) and 403 in cases involving the sexual abuse of children is found in Judge Clinton’s opinion in Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1990), decided after this trial. He states that:
the trial court must be given wide latitude to exclude, or, particularly in view of the presumption of admissibility of relevant evidence, not to exclude misconduct evidence as he sees fit. So long as the trial court thus operates within the boundaries of its discretion, an appellate court should not disturb its decision, whatever it may be.
The process cannot be wholly objectified. Reasonable men may disagree whether in common experience a particular inference is available. Where there is room for such disagreement, an appellate court that reverses a trial court’s ruling on relevancy accomplishes nothing more than to substitute its own reasonable perception of common experience for that of the trial court. The appellate court effectively displaces the trial court, commandeering a function institutionally assigned elsewhere.
Id. at 390.
In his concluding paragraphs, however, Judge Clinton finds he is able to commandeer this function when he balances inherent prejudice and probativeness. He decided in Montgomery that appellant’s behavior of frequently walking naked, with an erection, in front of his children was of marginal value and unfairly prejudicial because sexually related misconduct with children is “inherently inflammatory.” Judge Clinton then suggests that some in our society, presumably including Texas jurors and other members of the judiciary, might consider this “an undifferentiated sexual arousal imprudently displayed, or simply an incidental erection coupled with a damnable nonchalance.” After this euphemism he suggests, “jurors may have lost sight of specific issues ... and convict out of revulsion.” It is not the jurors who have lost sight of the issue, but it is the juror who is in need of the insight the examples of sexual behavior directed toward children by defendants can provide in order to overcome their reluctance to recognize this otherwise unimaginable parental crime. In the case before us the rebuttal evidence of appellant’s daughter and two nieces as to the abuse they suffered appeared only after the victim and her supporting witnesses were severely challenged, and, more determinatively, after appellant’s expert on child abuse provided her additional verification for his statement, made to the jury through the doctor, that he never before molested anyone. In Townsend v. State, 776 S.W.2d 316 (Tex.App. — Houston [1st Dist.] 1989, no pet.), the court allowed the six-year-old allegations of sexual abuse of two other children as rebuttal after that appellant’s expert also related his opinion that appellant did not fit the profile of an abuser. The court held the appellant by his own testimony and that of his expert had “opened the door” to sexual abuse that had been committed in a similar way. Finding the extraneous offense rebuttal evidence relevant to a material issue, we find the court did not abuse its discretion in weighing inherent value and prejudicial potential.
The Victim Group3
Trial courts are increasingly challenged with this same application of Rule 404(b) to alleged pedophilie behavior and find themselves resolving issues in favor of the admissibility of extraneous acts of sexual abuse to children in spite of ever clearer holdings to the contrary by the Texas Court of Criminal Appeals. An additional logically sound exception is necessary.
Where a parent or one in loco -parentis is accused of abusing a child in their care, control, or protection, the Montgomery reasoning is expanded so as to allow for the [885]*885admissibility of extraneous acts of abuse by the accused upon other children of the “victim” group. This group will be defined and discussed in more detail below.
Effective September 1, 1986, prior to this or the Montgomery trial, the Texas rules of criminal evidence became the most important guide to admissibility of extraneous conduct. While omitting the historical exceptions, the rule retains an inviting “such as” before the eight enumerated exceptions. After 1986, prosecutors still had to show extraneous misconduct was relevant as an “elemental fact or an evidentiary fact of consequence to determination of the action.” Vernon v. State, 841 S.W.2d 407, 411 (Tex.Crim.App.1992); Montgomery, 810 S.W.2d at 387-88. The Vernon court found because appellant did not cross examine any of the prosecution’s witnesses or tender any witnesses of his own and therefore did not impeach complainant that it was error for the trial court and court of appeals to conclude that appellant’s previous history of abusing his child was an “unnatural relationship” relevant to the issues tried. The message to the defense becomes that when defending pedophiles, defense counsels must lay down during the case-in-chief and not present witnesses in order to be safe from healing of their client’s previous similar behavior. A rule allowing victim group extraneous offense testimony in sexual abuse of children eases allows the defense to be free of this restriction and challenge all witnesses’ credibility and motivations. Medical experts and criminologists have long known that fixated, chronic pedophiles recidivate and the most relevant predictor of their current and future behavior is their past behavior. Pedophiles are not always fixated. Like other behavioral abnormalities, the behavior takes different forms in different people as the expert in this case explained. She testified, “many pedofiles have a particular age of child that they enjoy molesting ... Other pedofiles have what is called a polymorphis perversion sexuality, which is a way of saying that they will be sexual with any kind of infant.” For a fixated pedophile there is no effective treatment and confinement only removes them from the occasion of crime. Rule 404(b) is the most illogical response to pedophilic behavior and courts will continue to suffer frustration as they encounter these fact patterns until they realize that extraneous sexual behavior directed toward children is the best evidence of pedophilic behavior and not evidence of character as the rule was meant to envision.
However, we still have the Vernon holding that the evidence must be relevant to some material issue other than credibility. The logic lapse there is that character is always in issue when one is charged with sexually abusing children in their care.
Another court of appeals has embraced the import of this category in examining the admissibility of extraneous acts between the defendant and a third party, during the guilVinnocence stage of trial. In Mares v. State, 758 S.W.2d 932 (Tex.App. — El Paso 1988, pet. ref'd), the court acknowledged the admissibility of acts of the defendant upon other female students, where the defendant was charged with fondling a female student, even though identity was not an issue. There the court held:
the indicted and extraneous offenses are all connected to a common criminal scheme of 'progressively exploiting the student-teacher relationship with elementary school female students, while in a setting dominated by the Appellant, to physically achieve Appellant’s own sexual gratification.
Mares v. State, 768 S.W.2d at 937 (Emphasis added).
Although the court applied a different label to the acts in Mares, the logic is sound. It is readily apparent that courts of appeals, whether relying on other “exceptions” or simply applying different labels to the evidence, have exhibited an awareness and an acceptance of the need to apprise the jury of the other acts by the accused upon other children similarly situated in the accused’s care or control. See e.g., Morgan v. State, 816 S.W.2d 98, 105 (Tex.App. — Waco 1991, no pet.); Vernon v. State, 814 S.W.2d 845, 848 (Tex.App. — Fort Worth 1991, no pet.); Williams v. State, 732 S.W.2d 762 (Tex.App. — Beaumont 1987, no pet.); Wilson v. State, 730 S.W.2d 438 (Tex.App. — Fort Worth 1987, pet. ref'd); Kester v. State, 636 [886]*886S.W.2d 232 (Tex.App. — El Paso 1982, no pet.) Moreover, in presenting evidence by the State to prove that the act occurred between the parent and the child, to isolate the jury to a single incident, and not to other members of the victim group would be to leave the jury without the most logically relevant evidence available. In the case before us the rebuttal witnesses could not reveal the abuse until adulthood. Courts should recognize the implications of this delay for society’s weakest, most vulnerable members. Public policy requires that the state protect itself by safeguarding children.
The Texas Rules of Evidence sets out in Rule 102:
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
Tex.R.CRIM.Evid. 102.
This Court acknowledges the sound rule regarding the inadmissibility of propensity evidence in most situations. For example, to prove an accused had stolen a car, it would be unduly prejudicial to introduce evidence that he had smoked marijuana or struck his wife. To introduce such evidence would be to determine guilt based simply on propensity evidence.
However, the narrow area of abuse of children by a parent, or someone, almost always a male, in loco parentis requires a different analysis. A child’s credibility is always suspect, due to their limited communication skills, memory, and sophistication in general with the world. It is this innocence and dependence on adults which creates the protection of the adult parent or authority figure from discovery. As the evidence shows in this case the children often cannot even conceive why this is occurring to them so they do not seek assistance. The child is dependent on this adult for care, protection and other needs.
For example, if a child was assaulted by a stranger in a park, the child is much less likely to remain silent as to the act or the perpetrator. However, in situations where the victim is a child, and the perpetrator of the assault is a parent, whether biological or by marriage or by situation (as with live-in companions of a parent or another family member), or one in authority over the child (such as a teacher, scout leader, doctor, babysitter), the child victim is much more likely to remain silent due to the influence of the adult over the child and the helplessness of the child in that situation. The helplessness of the child is magnified when outcry has been made to another parent or authority figure and the child is not supported for whatever reasons.
Oftentimes the parent/authority figure abuser has access to other children which the abuser can dominate. This victim “group” may consist of the other siblings or other children within the extended family unit, the school class or scouting group, to which the abusing adult has privacy, influence by reason of authority, and absence of other adults. It is this group that requires particularized protection.
Abused Children as a Victim Group Have Been Recognized as Deserving of Special Protections
Victims as a group in general have been recognized as requiring more protection within the parameters of the criminal justice system. The Texas Legislature responded to the growing urgency of stronger victims rights by passing Tex.Code CRIM.Proc.Ann. arts. 56.01-56.10 (Vernon Supp.1993). Article 56.02 of the Texas Code of Criminal Procedure is the portion which creates the Crime Victim’s Rights. Article 56.02 was enacted through House Bill 235 of the 69th Legislature, ch. 588, § 1 of the Texas General Session Laws. The Ml analysis of the House Committee on Criminal Jurisprudence, describes the purpose of the bill, which created other statutes in addition to Article 56.02: “This bill would provide certain rights to victims of sexual assault and bodily injury crimes and to families of victims who have died as a result of criminal offenses. These rights include the right to be informed, to be heard, and to be protected.” House Comm. On Criminal JURISPRUDENCE, [887]*887Bill Analysis, Tex.H.B. 235, 69th Leg., R.S. (1985).
This bill analysis summarizes the arguments of the bill’s supporters:
For too long, the victims of crime have been left out of the criminal justice process. They are often regarded as mere witnesses of the state or simply as troublesome spectators, this attitude gives an increasing number of victims and their families the impression the state is more concerned with the rights of the criminal than with those of the victim.
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Id. (emphasis added).
The Texas Constitution was also amended to contain similar provisions including Tex. Const, art. I, § 30(c) & (d) which provides:
(c) The legislature may enact laws to define the term “victim” and to enforce these and other rights of crime victims.
(d) The state, through its prosecuting attorney, has the right to enforce the rights of victims.
The House Research Organization bill analysis of the constitutional amendment, states in the digest portion, in pertinent part:
This proposed constitutional amendment, similar to the one enacted in Michigan, would serve to enlighten the public about the purpose and nature of the criminal justice system. When coupled with the Crime Victims’ Bill of Rights that was enacted by the 69th Legislature, this amendment and its implementing legislation would finally address the plight of the innocent. Adoption of this proposal was one of the recommendations of the House Select Committee on Sentencing and Recidivism, which said victims need a set of rights in the law analogous to those accorded criminal defendants, (emphasis added).
House RESEARCH ORGANIZATION, Bill Analysis, H.J.R. 19, 71st Leg., R.S. (1989).4
The Court of Criminal Appeals and this court have found previously that child victims of abuse are of special interest. In Gonzales v. State, 818 S.W.2d 756 (Tex.Crim.App.1991), the court, relying on this court’s opinion and the United States Supreme Court, held that allowing a traumatized seven year old sexual abuse victim to testify by the use of two way closed circuit television adequately protected the defendant’s confrontation rights under the State and Federal Constitutions. In that opinion the Court of Criminal Appeals quoted extensively from Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). There, a pertinent portion of the Court’s opinion is as follows:
Given the State’s traditional and transcendent interest in protecting the welfare of children and buttressed by the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court, we will not second guess the considered judgment of the Maryland Legislature regarding the importance of its interest in protecting child abuse victims from the emotional trauma of testifying.
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Gonzales v. State, 818 S.W.2d at 761 citing Maryland v. Craig, 497 U.S. at 855-56, 110 S.Ct. at 3168-3169.
The Court also relied on prior decisions of the United States Supreme Court in finding:
“the expressed affirmation and reaffirmation by the judiciary of this State and the United States that the protection of children is a legitimate and compelling state goal,” See New York v. Ferber, 458 U.S. 747, 756-757, 102 S.Ct. 3348, 3354-3355, 73 L.Ed.2d 1118 (1982) (state interest in safeguarding the physical and psychological well being of a minor is compelling); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982) (state interest in safeguarding protection of minor victims from further trauma); FCC v. Pacifica Foundation, 438 U.S. 726, 749-750, 98 S.Ct. 3026, 3040-3041, 57 L.Ed.2d 1073 (1978) (government interest in well-being of its youth); Ginsberg v. New York, 390 U.S. 629, 640, 88 S.[888]*888Ct. 1274,1281, 20 L.Ed.2d 195 (1968) (state has interest in the welfare of children and safeguarding them from abuses); Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 443, 88 L.Ed. 645 (1944) (state may secure against dangers to children). See also Duckett v. State, 797 S.W.2d 906, 716 n. 15 (Tex.Crim.App.1990).
Gonzales v. State, 818 S.W.2d at 766.
In conclusion, while the trial court’s inclusion of this rebuttal testimony is sustainable otherwise, this court finds that under the limited fact situations where as parent or one in loco parentis is accused of abusing a child in their care, control or protection, the Montgomery rule is expanded so as to allow for the admissibility of extraneous acts of abuse by the accused upon other children of the “victim” group.
We adopt this victim group expansion to the rule precluding extraneous offenses because the current rule as interpreted is not a logical restriction in trials involving incestuous pedophilia. These trials are a fast growing segment of our jury trial docket and the principal vehicle for reviewing extraneous act issues. Each case invariably includes the same cast; the dependant, passive, often un-supporting mother; her invincibly innocent child; the abusive male who violates his status as a protector; and the rebuttal witness who was previously abused and once shared the complainant’s status.
Judge Clinton, writing for the majority on rehearing in Montgomery, acknowledges the need for a precise, easy-to-apply exception when he identifies a need to counteract a perceived societal aversion to the notion that parents or others, perceived by the victim child to be in loco parentis, would actually commit sex crimes against these children. He also acknowledges that sexual crimes against children naturally occur in secrecy and the child, if they come forward, is the only witness and so their credibility is subject to question. Similar misconduct by the accused may well shore up the testimony of the child if it in logic shows a lascivious attitude and a willingness to act on it that a jury might otherwise be loathe to attribute to a parent figure toward his child. Id. at 394. To decide otherwise would be to restrict trial courts from allowing the most logical and relevant testimony possible, the testimony of the victimized children, while encouraging the expanded use of secondary evidence ... expert witness opinions.
Appellant next complains he “was denied his l’ight of due course of law in violation of Article 1 section 13 and 19 of the Texas Constitution” because a discovery request previously granted by one judge was not satisfied to his satisfaction and the next trial judge denied his continuance and “revoked Judge Eschenburg’s previous discovery order ... and admitted evidence over Appellant’s objection which had been covered by the discovery order.” Appellant’s brief fails to particularize the information sought, allege how he was harmed, or how the outcome of the trial would have been affected. Discovery is discretionary. Quinones v. State, 592 S.W.2d 933 (Tex.Crim.App.1980).
In the final point of error appellant contends the trial judge should have allowed him to ask his expert whether another expert, who prepared a report, had stated an opinion as to the validity of the charges. This admissibility question was also within the sound discretion of the trial court and will not be reversed unless it affects the substantial rights of the accused. No such demonstration having been made this point is overruled.
The judgment is affirmed.