Leavelle Franklin v. State ( 2015 )

ACCEPTED
06-14-00046-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/25/2015 9:06:18 AM
DEBBIE AUTREY
CLERK
NOS. 06-14-00046-CR and 06-14-00047-CR
IN THE COURT OF APPEALS FILED IN
6th COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXASTEXARKANA, TEXAS
AT TEXARKANA 3/25/2015 9:06:18 AM
DEBBIE AUTREY
LEAVELLE FRANKLIN, Clerk
Appellant
v.
THE STATE OF TEXAS, Appellee
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
COMES NOW the Appellant, LEAVELLE FRANKLIN, by and through
counsel of record, Jason Horton, pursuant to Texas Rule of Appellate Procedure 49,
and hereby submits the following Motion for Rehearing for the Court’s consideration.
POINT FOR REHEARING
Appellant respectfully requests that this Court revisit its application of Taylor v.
State.
ARGUMENT
In Taylor, the Court of Criminal Appeals specifically agreed with the Austin
Court of Appeals that,
consistent with the rationale for admitting statements made for purposes
of medical diagnosis or treatment over a hearsay objection, it is
appropriate to require the proponent of the evidence to show that the out-
of-court declarant was aware that the statements were made for that
Motion for Rehearing
Leavelle Franklin vs. State of Texas
6th Court of Appeals Nos. 06-14-00046-CR and 06-14-00047-CR
Page 1 of 7
purpose and that “proper diagnosis or treatment depends upon the
veracity of such statements.”
268 S.W.3d 571, 588-89 (Tex.Crim.App. 2008) (emphasis added); citing Jones v.
State, 92 S.W.3d 619 (Tex.App.—Austin 2002, no pet.). The Court noted that a “tacit
presumption” of reliability may exist when statements are made while the declarant is
sitting in the emergency room in the immediate aftermath of an injury or on a
physician’s cold examination table in the interest of diagnosing and curing some
exigent disease or ailment. 268 S.W.3d at 589.
However, the Court also recognized that “reclining on a therapist’s or
psychiatrist’s couch” is not the same as sitting in the emergency room in the
immediate aftermath of an injury or on a physician’s cold examination table.
Therefore, if the declarant makes statements for medical diagnosis or treatment while
sitting in a therapist’s office, the tacit presumption of reliability is far less compelling,
and the record must reflect both (1) that truth-telling was a vital component of the
particular course of therapy or treatment involved, and (2) that it is readily apparent
that the child-declarant was aware that this was the case. 268 S.W.3d at 590.
Taylor does not give appellate courts the power to “infer from the record that
the victim knew it was important to tell a SANE nurse the truth in order to obtain
medical treatment or diagnosis.” Court’s Opinion at p.11. In all contexts, Taylor
requires, at the very least, that the proponent of the evidence show that the out-of-
Motion for Rehearing
Leavelle Franklin vs. State of Texas
6th Court of Appeals Nos. 06-14-00046-CR and 06-14-00047-CR
Page 2 of 7
court declarant was aware that the statements were made for medical purposes and
that proper diagnosis or treatment depends on the veracity of such statements.
Here, Lach (the SANE nurse) provided no evidence that she informed the girls
that their proper diagnosis or treatment depended on the veracity of their statements.
Lach testified that (1) she explained to the girls who she was; (2) she explained the
nature of the exam; (3) the girls had an understanding that they were there for medical
diagnosis or treatment; and (4) that she would be writing down everything they said
verbatim. (6 RR 124-125) It is undisputed that Lach did not provide any testimony
indicating that she informed the girls how important it was for them to tell the truth.
Even so, this Court concluded that, since Lach was a medical professional, an
inference could be made that the victims knew it was important to tell Lach the truth.
In support of its position, the Court cited Prieto, Thomas, Duckworth, and Bahle.
Court’s Op. at p.11.
In Prieto, the Amarillo Court of Appeals specifically cited Taylor for the rule
that the proponent of the evidence must show that the declarant was aware that the
statements were made for the purposes of medical diagnosis or treatment and that
proper diagnosis or treatment depended on the veracity of the statements. 337 S.W.3d
918, 921 (Tex.App.—Amarillo 2011, pet. ref’d). This was the position taken by
Appellant in his brief.
Motion for Rehearing
Leavelle Franklin vs. State of Texas
6th Court of Appeals Nos. 06-14-00046-CR and 06-14-00047-CR
Page 3 of 7
Prieto did not, however, make any reference to the length of time that elapsed
between the outcry and the SANE. Here, this Court specifically noted the following:
On Wednesday, April 3, 2013, after the girls spoke to the responding
officer, they were taken to the emergency room. At the hospital,
Conesha spoke with a nurse who explained that it would be difficult to
collect evidence because several days had passed since the alleged abuse.
As a result, Conesha decided against subjecting the children to a sexual-
assault examination. Instead, the children were taken to the Texarkana
CAC on April 4, 2013, to undergo a forensic interview.
…It was not until April 18, 2013, that the children were taken to see
outcry witness Kathy Lach, a SANE, for a medical examination
conducted at the CAC.
Court’s Op. at pp. 4-5.
Therein lies the basis for Appellant’s point on appeal and this Motion for
Rehearing. After the outcries, the girls were immediately taken to the emergency
room where a SANE could have been performed on a cold examination table. This
would have created the tacit presumption, or inference, of reliability. However, after
being informed by a medical professional that evidence collection was unlikely, the
girls’ mother decided against the examinations.
Over two weeks later, and at the request of law enforcement, Lach subjected
these children to the invasive SANE even though she consistently testifies that over
90% of alleged victims never show signs of abuse. Unlike the SANEs in Thomas,
Duckworth, and Bahle, which were all performed in the emergency room immediately
Motion for Rehearing
Leavelle Franklin vs. State of Texas
6th Court of Appeals Nos. 06-14-00046-CR and 06-14-00047-CR
Page 4 of 7
after the outcry, these SANEs were admittedly conducted in a “kid-friendly”
environment some eighteen days after the alleged abuse. Even if the unpublished
opinions cited by this Court allude to an inference that victims understand the
importance of telling a SANE nurse the truth in order to obtain medical diagnosis or
treatment, none of those decisions indicate that such an inference is applicable when a
victim (1) is immediately taken to an emergency room; (2) refuses treatment; and (3)
is then forced by law enforcement to undergo a SANE over two weeks later.
As per the express language of Taylor, the State should have been required to
show not only that the girls’ statements were made for medical diagnosis or treatment,
but the State should have also been required to show that “proper diagnosis or
treatment depend[ed] on the veracity of such statements.” Here, the State did not
produce such evidence, and to permit an “inference” of reliability when the SANE
was conducted in what amounts to a therapist’s office over two weeks after the alleged
abuse does not comply with the letter or spirit of the Court of Criminal Appeals’
extensive rationale in Taylor.
Motion for Rehearing
Leavelle Franklin vs. State of Texas
6th Court of Appeals Nos. 06-14-00046-CR and 06-14-00047-CR
Page 5 of 7
WHEREFORE, Appellant respectfully requests that the Court grant this
Motion for Rehearing, and, after reconsidering and applying the facts to the law as
stated herein, conclude that admitting Lach’s complained-of testimony was reversible
error requiring a reversal of Appellant’s convictions.
Respectfully submitted,
JASON HORTON LAW FIRM
114 West Broad Street
Texarkana, Texas 75501
Mail to:
P.O. Box 1596
Texarkana, Texas 75504
T- (903) 792-2000
F- (903) 792-2100
www.jasonhortonlaw.com
BY: /s/ Jason Horton
Jason Horton
jason@jasonhortonlaw.com
Texas Bar Number 24041130
ATTORNEY FOR APPELLANT
Motion for Rehearing
Leavelle Franklin vs. State of Texas
6th Court of Appeals Nos. 06-14-00046-CR and 06-14-00047-CR
Page 6 of 7
CERTIFICATE OF SERVICE
On the 25th day of March, 2015, I hereby certify that a true and correct copy of
the foregoing instrument will be served on Mr. Jerry Rochelle, Bowie County District
Attorney, according to the Texas Rules of Appellate Procedure and the rules of this
Court.
/s/ Jason Horton
Jason Horton
Motion for Rehearing
Leavelle Franklin vs. State of Texas
6th Court of Appeals Nos. 06-14-00046-CR and 06-14-00047-CR
Page 7 of 7