Leavelle Franklin v. State

ACCEPTED
06-14-00046-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/23/2015 2:22:43 PM
DEBBIE AUTREY
CLERK

IN THE COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS
AT TEXARKANA FILED IN
6th COURT OF APPEALS
___________________________________________________
TEXARKANA, TEXAS
1/23/2015 2:22:43 PM
NOS: 06-14-00046-CR & 06-14-00047-CR DEBBIE AUTREY
Clerk
___________________________________________________

LEAVELLE FRANKLIN, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE
_______________________________________________________

Appeal from the 102nd District Court
of Bowie County, Texas
_______________________________________________________

BRIEF ON BEHALF OF THE APPELLANT, LEAVELLE FRANKLIN
_______________________________________________________

Jason Horton
jason@jasonhortonlaw.com
Texas Bar No.: 24041130

JASON HORTON LAW FIRM
114 West Broad Street
Texarkana, Texas 75501
Mail To:
Post Office Box 1596
Texarkana, Texas 75504
T-903-792-2000
F-903-792-2100
www.jasonhortonlaw.com

ATTORNEY FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT
 IDENTITY OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.1, the undersigned counsel

of record certifies that the following listed persons have an interest in the outcome of

this case. These representations are made so that the Justices of this Honorable Court

can evaluate whether they are disqualified to serve or should recuse themselves from

participation in the decision of this case.

Trial Court Judge:
102nd Judicial District Court Judge Honorable Bobby Lockhart

Defendant/Appellant:
Leavelle Franklin

Attorneys for Defendant/Appellant at Trial:
William Williams
Texas Bar No. 24072804
Chad Crowell
Texas Bar No. 24072808
Bowie County Public Defender’s Office
424 West Broad Street
Texarkana, Texas 75501

Attorney for Defendant/Appellant on Appeal:
Jason Horton
Texas Bar No. 24041130
JASON HORTON LAW FIRM
P.O. Box 1596
Texarkana, Texas 75504

Attorneys for the State of Texas/Appellee at Trial and on Appeal:
Bowie County Assistant District Attorney Samantha Oglesby
Texas Bar No. 24070362
Bowie County Assistant District Attorney Kelley Crisp
Texas Bar No. 24062683
601 Main Street
Texarkana, Texas 75501

-2-
 TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ....................................................... 2

TABLE OF CONTENTS ..................................................................................... 3

INDEX OF AUTHORITIES ................................................................................ 5

STATEMENT OF THE CASE ............................................................................ 7

ISSUES PRESENTED ......................................................................................... 8

ISSUE I.

The trial court erred by permitting the introduction of Sexual
Assault Nurse Examiner Kathy Lach’s reports because Lach did not
inform the alleged victims that a proper diagnosis depended on the
veracity of their statements.

ISSUE II.

The State’s direct examination of forensic interviewer Melanie
Hughes opened the door to cross-examination regarding the
inconsistencies in the girls’ claims of abuse without fear of the State
offering extraneous offense evidence in rebuttal.

ISSUE III.

After the “Rule” was invoked, the trial court erred by permitting
Child Advocacy Clinical Director Karrah Dickeson to remain in the
courtroom while the alleged victims testified.

ISSUE IV.

During final closing argument, the State’s instruction for the jury
to “[g]o back there and fight for those little girls” was an improper plea
for abandonment of objectivity, and the trial court erred by overruling
Appellant’s objection to the same.

-3-
STATEMENT OF FACTS................................................................................... 9

SUMMARY OF THE ARGUMENT ................................................................. 21

ARGUMENT ..................................................................................................... 22

PRAYER ............................................................................................................ 44

CERTIFICATE OF COMPLIANCE ................................................................ 45

CERTIFICATE OF SERVICE........................................................................... 45

-4-
 INDEX OF AUTHORITIES

CASES Page

Alejandro v. State, 493 S.W.2d 230
(Tex.Crim.App.1973) ..................................................................................41

Barnes v. State, 70 S.W.3d 294
(Tex.App.-Fort Worth 2002) .......................................................................41

Bass v. State, 270 S.W.3d 557
(Tex.Crim.App. 2008) .................................................................................31

Brandley v. State, 691 S.W.2d 699
(Tex.Crim.App. 1985) .................................................................................42

Cantu v. State, 366 S.W.3d 771
(Tex.App.—Amarillo 2012) ..................................................................32, 33

Cofield v. State, 891 S.W.2d 952
(Tex.Crim.App. 1994) .................................................................................23

De La Paz v. State, 279 S.W.3d 336
(Tex.Crim.App. 2009) .................................................................................31

Felder v. State, 848 S.W.2d 85
(Tex.Crim.App.1992) ..................................................................................41

Green v. State, 934 S.W.2d 92
(Tex.Crim.App. 1996) .................................................................................30

Harris v. State, 122 S.W.3d 871
(Tex.App.—Fort Worth 2003) ....................................................................41

King v. State, 953 S.W.2d 266
(Tex.Crim.App. 1997) .................................................................................28

Lopez v. State, 2014 WL 1267249 at *1
(Tex.App.—Amarillo 2014, pdr ref’d)........................................................26

Martinez v. State, 17 S.W.3d 677
(Tex.Crim.App.2000) ..................................................................................41

-5-
Martinez v. State, 178 S.W.3d 806
(Tex.Crim.App. 2005) .................................................................................23

Montgomery v. State, 810 S.W.2d 372
(Tex.Crim.App. 1991) ...........................................................................22, 23

Moore v. State, 882 S.W.2d 844
(Tex.Crim.App. 1994) .....................................................................38, 39, 40

Mosley v. State, 983 S.W.2d 249
(Tex.Crim.App.1998) ..................................................................................41

Page v. State, 213 S.W.3d 332
(Tex.Crim.App. 2006) .................................................................................22

Potier v. State, 68 S.W.3d 657
(Tex.Crim.App. 2002) .................................................................................37

Sauceda v. State, 129 S.W.3d 116
(Tex.Crim.App. 2004) .................................................................................22

Taylor v. State, 268 S.W.3d 571
(Tex.Crim.App. 2008) ...............................................................23, 24, 25, 27

Wiley v. State, 74 S.W.3d 399
(Tex.Crim.App. 2002) .................................................................................37

STATUTES and RULES

Texas Rule of Appellate Procedure 44.2(b) ............................................28, 41

Texas Rule of Evidence 614....................................................................39, 40

Texas Rule of Evidence 802..........................................................................23

Texas Rule of Evidence 803........................................................23, 24, 25, 30

-6-
 STATEMENT OF THE CASE
The State joined two separate Indictments in a single proceeding and tried

Appellant on six separate counts of Aggravated Sexual Assault of Child. Appellant

was convicted and sentenced to LIFE in prison on each count. The trial court stacked

each sentence within the Indictments but ran the Indictments concurrent with one

another, for a total of three consecutive LIFE sentences.

On appeal, Appellant contends that the trial court committed reversible error by

(1) permitting the introduction of the SANE reports; (2) concluding that the State did

not open the door to cross-examination regarding the alleged victims’ inconsistent

claims of abuse; (3) permitting an expert to remain in the courtroom in violation of the

“Rule;” and (4) overruling Appellant’s objection to the State’s improper plea for

abandonment of objectivity during final closing argument. The following brief is filed

in support of Appellant’s contentions.

-7-
 ISSUES PRESENTED

I.

The trial court erred by permitting the introduction of Sexual Assault Nurse
Examiner Kathy Lach’s reports because Lach did not inform the alleged victims that a
proper diagnosis depended on the veracity of their statements.

ISSUE II.

The State’s direct examination of forensic interviewer Melanie Hughes opened
the door to cross-examination regarding the inconsistencies in the girls’ claims of
abuse without fear of the State offering extraneous offense evidence in rebuttal.

ISSUE III.

After the “Rule” was invoked, the trial court erred by permitting Child
Advocacy Clinical Director Karrah Dickeson to remain in the courtroom while the
alleged victims testified.

ISSUE IV.

During final closing argument, the State’s instruction for the jury to “[g]o back
there and fight for those little girls” was an improper plea for abandonment of
objectivity, and the trial court erred by overruling Appellant’s objection to the same.

-8-
 STATEMENT OF FACTS

Appellant is the biological father of alleged victims “Barbara” and “Tasha”. (6

RR 91) “Barbara” and “Tasha” live with their mother, Conesha, and Conesha’s

boyfriend Bobby. (6 RR 90)

Appellant would occasionally get the girls on a weekend, usually on a holiday,

so it didn’t surprise Conesha when Appellant called and asked if he could have the

girls on Easter weekend in 2013. (6 RR 92) According to Google, Easter Sunday was

March 31, 2013. Upon their return from visiting Appellant, Conesha thought it was

unusual that neither “Barbara” nor “Tasha” hugged her or Bobby when they came in

the door. Conesha and Bobby also thought it was unusual that Appellant did not come

in with the girls before he headed back home. (6 RR 81, 93) Later that night,

Conesha went to check on the girls after she unexpectedly heard the upstairs bathroom

door close. Conesha found “Tasha” asleep and “Barbara” in the bathroom. (6 RR 95)

“Barbara” told Conesha that she wiped herself and saw some blood. (6 RR 95)

Conesha had “Barbara” wipe herself again, but no blood was found. (6 RR 96)

Conesha testified that she immediately thought “Barbara” had been molested. (6 RR

97) Conesha asked “Barbara” if she had been sexually abused, and “Barbara” shook

her head no. Conesha claimed that “Barbara” appeared scared. (6 RR 97)

Conesha let it go, but at some point later in the week she told Bobby that she

thought something was wrong with the girls. (6 RR 98-99) She asked Bobby to speak
-9-
with the girls, and Bobby told her he would speak with them after work the next day.

(6 RR 99) Prior to speaking with Bobby, seven-year-old “Barbara” told Conesha that

Appellant had been “molesting her.” (6 RR 101) According to Conesha, “Barbara”

said Appellant touched her between the legs, and, after speaking with Bobby,

“Barbara” told Conesha that Appellant put his penis in her mouth. (6 RR 101, 102)

Bobby did not speak with the girls until the following Wednesday evening. (6

RR 82) According to Bobby, “Tasha” told him Appellant made her put her mouth on

his penis, then Appellant got on top of her and started “hunching.” Bobby defined

“hunching” as having sex, and he also said “hunching” could be kids “screwing on

each other” in the playground. (6 RR 83, 85) “Barbara” told Bobby that Appellant

put his hand between her legs and was trying to put his finger inside her, and that

Appellant put her on her back and got on top of her. That’s when Appellant told

“Barbara” that she was his new girlfriend. (6 RR 88) After hearing all of this, Bobby

called the police. (6 RR 87)

Bowie County Sheriff’s Deputy Cole Ogden responded to the call. (6 RR 112)

Ogden did not collect any evidence because the abuse allegedly occurred somewhere

else. (6 RR 113) Ogden testified that he did not speak with the girls, nor did he

retrieve the girls’ clothing. (6 RR 113, 116) Conesha told Ogden that she believed

the blood “Barbara” described was from Appellant disciplining “Barbara”. (6 RR

117) However, Ogden’s offense report claimed that “victim one” came back and said
- 10 -
that her father touched her private part. (6 RR 117) According to Ogden, this is why

he advised Conesha and Bobby to take the girls to the hospital. (6 RR 117) On

redirect by the State, without any objection from Appellant’s trial counsel and no

additional evidence introduced in support, Ogden claimed it was his understanding

that the girls had been “raped” by their father. (6 RR 118)

According to Record Exhibit 2, the girls were taken to the Texarkana Children’s

Advocacy Center (CAC) on April 4, 2013. During her CAC interview, “Tasha”

claimed Appellant touched her private part while she was in the backseat of

Appellant’s car. Appellant was driving the car at the time. “Tasha” claimed this

happened sixteen times. “Tasha” said her “Paw Paw” was in the front seat talking

with Appellant when Appellant would reach in the back and touch her private parts.

“Tasha’s” clothes were on, and Appellant touched her on top of her clothes.

“Tasha” also said that Appellant touched her private parts on top of her clothes

as they rode a motorcycle. As one hand touched her private parts, Appellant’s other

hand was in his lap, and all of this happened while the motorcycle was moving.

“Tasha” said that Appellant only touched her two times and never touched her before

that Friday. After identifying various body parts, “Tasha” said that Appellant touched

her private parts on Sunday in the backseat of a car, and not on the motorcycle.

“Tasha” unequivocally said that (1) no one had ever shown her videos or pictures of

- 11 -
naked people; (2) no one had ever touched her privacy under her clothes; and (3) no

one had ever made her touch their privacy parts.

“Tasha” said that Appellant also reached back and put his hand in “Barbara’s”

privacy part while they were in the backseat of the car. The car was moving, and

“Barbara’s” shorts were on. “Tasha” said that she had blood on her privacy part

because Appellant whooped her with a belt on her butt.

During “Tasha’s” interview, CAC forensic interviewer Melanie Hughes left the

room to discuss the case with the law enforcement officers who had been watching the

entire time. Upon Hughes’ return, “Tasha” again said that no one had ever made her

touch a boy’s or a man’s privacy part, and that no one had ever shown her videos or

pictures of people with no clothes on. See Record Exhibit 2.

Record Exhibit 2 also contains “Barbara’s” April 4, 2013, CAC interview.

“Barbara” thought she was there to talk about drawing and painting. “Barbara” said

that Appellant touched her “lips” (part of her face) while at her “Paw Paw’s” house,

then “Barbara” said Appellant touched her lips at Gloria’s house. “Barbara” said she

was bleeding on her butt because she did not wipe herself. “Barbara” said that her

daddy’s man part touched her lips while they were at Gloria’s house. Although

“Barbara” referred to both Bobby and Appellant as her “daddy,” it appears as though

“Barbara” was referring to Appellant when discussing the incident with the man part.

- 12 -
 “Barbara” said that she was in the living room when Appellant’s man part

touched her lips. When Melanie asked “Barbara” to tell her more, “Barbara” pointed

to a drawing and said “his knees.” “Barbara” said Appellant’s man part went inside

her lips and tasted like milk and felt like gum. “Barbara” drew what a man part

looked like, then said Appellant put his man part in her middle part. “Barbara” said

that she and Appellant were in Appellant’s room because Gloria, Bobby and

Appellant were fighting after Gloria and Bobby witnessed the alleged sexual abuse.

“Barbara” said Appellant flipped her over in the bed and put his man part in her

middle part. At first “Barbara” said they were both clothed, but then she said

Appellant took her clothes off and put them back on. Then “Barbara” said she went to

the doctor because her butt was bleeding after Appellant whooped her with a belt. She

said Appellant’s man part felt soft, then changed the subject and said it was cold in the

room. “Barbara” then said her clothes were on when Appellant’s man part went in her

middle part, and this only happened one time. Like “Tasha”, “Barbara” said that no

one had ever shown her videos of people without clothes on.

Just as she did during “Tasha’s” interview, Hughes left the room to discuss

“Barbara’s” interview with law enforcement. When she returned and resumed

questioning, “Barbara” said that nothing came out of Appellant’s man part when it

went in her middle part. However, chocolate milk came out when Appellant’s man

- 13 -
part touched her lips, and the milk went in her mouth. It tasted like “white.” She spit

it in a towel and put the towel in the kitchen.

“Barbara” said blood came out of her middle part and went in her butt. She also

said Appellant laid on her when she was on her stomach, and Appellant fell asleep on

her at some point. This made “Barbara” feel hungry, and “Barbara” reached out and

felt some Lucky Charms cereal when Appellant was laying on top of her. See Record

Exhibit 2.

Fourteen days after the CAC interviews, and at the request of law enforcement,

the girls were examined at the CAC by Sexual Assault Nurse Examiner Kathy Lach.

(6 RR 148) Kathy Lach testifies for the State in almost every Bowie County sexual

assault trial, commonly drawing objections from defense counsel for her “90%”

testimony. Lach routinely testifies, as she did in this case, that physical trauma is not

present in 90% of sexual assault victims. (6 RR 138) Prior to Lach’s trial testimony,

Appellant’s trial counsel conducted a hearing outside of the jury’s presence to obtain a

ruling on whether Lach’s routine “90%” testimony is reliable for purposes of

providing an expert opinion on the same. (6 RR 16-36) Appellant did not object to

Lach’s qualifications. The objection was that Lach’s “90%” testimony is based on

“junk science.” (6 RR 36) The trial court permitted the testimony, most likely

because Lach testified that she had performed over 500 sexual assault examinations

and documented no physical trauma in 90% of those examinations. (6 RR 27)
- 14 -
 Because Lach testifies that her examinations are performed for “medical

diagnosis or treatment,” she is able to tell juries what alleged sexual assault victims

tell her about their history of abuse over hearsay objections. (6 RR 123) Here, unlike

“Barbara’s” recorded CAC interview, Lach testified that “Barbara” told her Appellant

assaulted her orally and anally, and that Appellant penetrated her vagina. (6 RR 133-

135) According to Lach, “Barbara” said that “milk,” and not chocolate milk, came

out of Appellant’s middle part when he put his middle part in her mouth. (6 RR 134)

Unlike “Tasha’s” recorded CAC interview, Lach testified that “Tasha” described oral,

anal, and vaginal sexual assault, along with touching and digital penetration. (6 RR

136)

Lach’s interviews with the girls were not recorded. Lach testified that her

reports are based solely on what is relayed to her by the alleged victims, and her

subsequent referrals for counseling are based solely on the history given by the

alleged victims. (6 RR 153-154) Lach obtained no physical evidence from “Barbara”

or “Tasha,” and her examination showed no physical trauma on either child. (6 RR

137, 153) While she may have explained to “Barbara” and “Tasha” that she would be

writing down everything they said verbatim and that the girls were there for medical

diagnosis or treatment, Lach did not provide any testimony indicating she told either

of the girls that a proper diagnosis depends on the veracity of their statements. (6 RR

125)
- 15 -
 CAC forensic examiner Hughes testified that Texas law requires children to

take an oath during their forensic interviews. (6 RR 195) Hughes testified in detail as

to why children have a hard time testifying and remembering things, and that it is very

common for children to have inconsistent stories. (6 RR 198-199) Hughes routinely

compares police reports to her interviews and looks for “consistency” in core details.

(6 RR 201) In this case, Hughes saw no signs of coaching, and “Barbara” and

“Tasha” “appear[ed] to be testifying to something that they did, in fact, actually

experience.” (6 RR 203)

After this line of questioning, Appellant’s trial counsel objected and moved for

a ruling that the State opened the door for cross-examination regarding the

inconsistencies in the girls’ stories of abuse without fear of Appellant being attacked

with extraneous offense witnesses the State had waiting to testify. The trial court

denied Appellant’s motion, indicating Hughes’ testimony did not open any doors. (6

RR 206-212)

Hughes also testified that her interviews are monitored by law enforcement, and

that the interviews are set-up so they are “legally defensible” in court. (6 RR 217-

219)

Prior to “Tasha” taking the stand, the State requested that Karrah Dickeson, the

CAC Clinical Director, remain in the courtroom while “Tasha” and “Barbara” testified

because Dickeson was going to be an expert witness and she needed to observe the
- 16 -
girls’ testimony. (6 RR 220-221) Appellant’s trial counsel objected “until [he knew]

the basis of why [Dickeson] needs to observe the testimony.” (6 RR 221) Without

requiring anything further from the State, the trial court overruled Appellant’s

objection. (6 RR 221)

After a series of leading questions, “Tasha” testified that (1) she saw

Appellant’s privacy when he sexually abused her; (2) Appellant touched his privacy to

her privacy; (3) Appellant put his privacy in her mouth; (4) Appellant put his privacy

in her rear end; (5) she saw Appellant sexually abuse “Barbara;” and (6) Appellant

showed her videos of people hunching. (6 RR 225-229) Appellant’s trial counsel

played a portion of “Tasha’s” recorded CAC interview outside of the jury’s presence

to refresh “Tasha’s” recollection, but Appellant’s trial counsel did not cross-examine

“Tasha” regarding her inconsistent allegations of abuse in fear of opening the door to

extraneous offense evidence. (6 RR 238-244)

“Barbara” began her trial testimony by not being able to distinguish her right

hand from her left hand, and she was confused with the difference between the truth

and a lie. (6 RR 246, 250) “Barbara” testified that Appellant put his hand on her

private part, and “I think that’s all.” (6 RR 256) She didn’t know if Appellant’s

middle part touched her middle part, but she answered “yes” when asked if

Appellant’s middle part went in her middle part. (6 RR 256) “Barbara” testified that

Appellant’s middle part went in her buttocks, and, while this was going on, the
- 17 -
television was playing nasty movies with people hunching. (6 RR 257-259)

“Barbara” testified that “Tasha” did not see Appellant do these things because there

was a curtain separating them. (6 RR 259)

According to “Barbara,” Appellant had his underwear on when he put his penis

in her mouth on Easter weekend. (6 RR 262) Milk came out of Appellant’s middle

part and it went in her mouth. “Barbara” said it tasted like plain milk. (6 RR 263-

264) “Barbara” testified that she was bleeding between her legs because Appellant

sexually abused her. (6 RR 265) Contrary to “Tasha’s” CAC interview, “Barbara”

testified that Appellant never touched her between her legs in the car. (6 RR 266)

“Barbara” did say that Appellant told them they were his girlfriends as he abused

them. (6 RR 268) According to “Barbara,” Appellant asked “Barbara” if she liked

the abuse and then spanked her when she said no. (6 RR 278)

Appellant’s trial counsel played “Barbara’s” recorded CAC interview outside of

the jury’s presence to refresh “Barbara’s” recollection. (6 RR 273) Appellant’s trial

counsel cross-examined “Barbara” regarding several inconsistencies between the

video and “Barbara’s” trial testimony, but none of the cross-examination questions

were related to the actual claims of abuse in fear of the State claiming the door was

opened to extraneous offense evidence. (6 RR 275-277) Although given the

opportunity, Appellant’s trial counsel indicated he did not need to conduct a further

proffer regarding the inconsistencies between the CAC interviews and the trial
- 18 -
testimony. (6 RR 282) The recorded CAC interviews were offered as Record Exhibit

2.

Karrah Dickeson, who was permitted to observe both “Barbara” and “Tasha”

testify, told the jury that the girls did not know words like “sexual abuse” before going

to counseling. (7 RR 16) Dickeson testified that these words help children express

themselves because they need to know what they experienced. (7 RR 17) She

claimed that the girls struggled with avoidance, and that the abuse was very difficult

for them to talk about. (7 RR 20-21) Dickeson was then able to inform the jury as to

why “Tasha” had a difficult time testifying based solely on Dickeson’s observations of

her testimony. (7 RR 21-22) The State then attempted to introduce “Barbara” and

“Tasha’s” statements for a fourth time through Dickeson, claiming the statements

were made for medical diagnosis or treatment. (7 RR 22-24) Fortunately, the trial

court sustained Appellant’s objection and did not permit Dickeson to testify as to what

the girls told her.

Appellant decided against testifying during the guilt/innocence phase. (7 RR

28) Immediately after Appellant informed the trial court of his decision, the State

informed the trial court that there were six extraneous victims prepared to testify

across the hall. (7 RR 30) The State reluctantly conceded that Appellant did not open

the door to this evidence during trial. (7 RR 33)

- 19 -
 During final closing argument, the State instructed the jury to “go back there

and fight for those little girls.” Appellant’s trial counsel immediately objected in that

it was improper for the State to instruct the jury to be an advocate for the State. The

trial court overruled the objection. (7 RR 63-64)

During a recorded custodial interview, Appellant voluntarily waived his right to

counsel and vehemently denied abusing his own daughters. (10 RR at Record Exhibit

1) A redacted version of this interview was played for the jury. (6 RR 174) During

pretrial hearings, Appellant rejected all plea offers and said, “I don’t care if they give

me the death penalty, I didn’t do it.” (2 RR 5; 3 RR 11, 17-18) No DNA testing was

performed on the girls, and law enforcement did not search the girls for hair samples.

(6 RR 168) Lead Investigator Todd Aultman testified that no evidence was collected,

and he didn’t even attempt to look for the towel “Barbara” allegedly spit the “milk”

into. (6 RR 179-180) Gloria Stokes, Appellant’s stepsister, testified that she saw

Appellant in a car on Easter weekend, but, because of the way Appellant pulled up

and left, she couldn’t tell if the girls were in Appellant’s car or not. (7 RR 8) She

later testified that no one was in the car with Appellant on Easter weekend. (7 RR 10)

Nonetheless, the jury found Appellant guilty on all six counts and sentenced

him to LIFE in prison on each count. (7 RR 68; 9 RR 28-29)

- 20 -
 SUMMARY OF THE ARGUMENT

These cases are hard on everyone involved. Young children should never

have to be marched into a courtroom and subjected to direct or cross-examination.

Parents should not be forced to relive traumatic events over and over again. The State

should not have to spend precious resources prosecuting these cases because sexual

assaults should never occur. Nevertheless, when the State does choose to subject

someone to prosecution, regardless of the charge, that person is entitled to a fair trial.

Prior to calling the alleged victims to the stand, the State called five witnesses

to replay different versions of the alleged victims’ stories; explain why the victims

would have no injuries; explain why the alleged victims’ stories might be inconsistent;

explain why the alleged victims might have a hard time testifying; and simply bolster

the alleged victims’ credibility. In the process, the trial court (1) permitted the

introduction of inadmissible hearsay; (2) prevented Appellant from effectively cross-

examining the State’s witnesses; (3) permitted an unsupported violation of the “Rule;”

and (4) permitted improper closing argument that instructed the jury to be an advocate

for the State and check their objectivity at the deliberation room door. Even though

each of these errors supports a reversal of Appellant’s convictions, the cumulative

effect of these errors demands it.

- 21 -
 ARGUMENT

ISSUE I

The trial court erred by permitting the introduction of Sexual Assault Nurse
Examiner Kathy Lach’s reports because Lach did not inform the alleged victims that a
proper diagnosis depended on the veracity of their statements.

STANDARD OF REVIEW

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse

of discretion. Page v. State, 213 S.W.3d 332, 337 (Tex.Crim.App. 2006); citing

Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App. 2004). “If the ruling was

correct on any theory of law applicable to the case, in light of what was before the trial

court at the time the ruling was made, then we must uphold the judgment.” Id. A trial

court’s ruling will be upheld as long as it falls within the “zone of reasonable

disagreement.” Page, 213 S.W.3d at 337; citing Montgomery v. State, 810 S.W.2d

372 (Tex.Crim.App. 1991)(op. on reh’g).

PRESERVATION OF ERROR

Appellant’s trial counsel objected to the introduction of the SANE reports as

hearsay, also informing the trial court that the reports were not business records

because they were created for the purposes of litigation. (6 RR 127) Appellant’s trial

counsel informed the trial court that the reports were confusing, and that the State was

only introducing them to get a third hearsay statement in front of the jury. (6 RR 127)

- 22 -
The trial court overruled Appellant’s objections because Lach testified that the reports

were made in the course of medical diagnosis or treatment. (6 RR 127-128)

Therefore, this issue was properly preserved.

ARGUMENT

“Hearsay is not admissible except as provided by statute or [the Rules of

Evidence] or by other rules prescribed pursuant to statutory authority.” Taylor v.

State, 268 S.W.3d 571, 578 (Tex.Crim.App. 2008); citing Tex. R. Evid. 802. Once

the opponent of hearsay makes the proper objection, the burden shifts to the proponent

of the evidence to establish an exception to the hearsay rule that would permit the

admissibility of the evidence despite the fact that the evidence is hearsay. Taylor at

578-579; citing Martinez v. State, 178 S.W.3d 806, 815 (Tex.Crim.App. 2005) and

Cofield v. State, 891 S.W.2d 952, 954 (Tex.Crim.App. 1994).

Here, although the SANE reports contained hearsay, the trial court concluded

that the reports were admissible because the statements contained therein were made

for purposes of medical diagnosis or treatment. (6 RR 127-128) Pursuant to Texas

Rule of Evidence 803(4):

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
Treatment. Statements made for purposes of medical diagnosis
- 23 -
 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.

Taylor provides an in-depth analysis of the federal and Texas application of the

hearsay exception found in Rule 803(4). According to the Court of Criminal Appeals,

We agree 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 purpose and that “proper diagnosis or treatment
depends on the veracity of such statements.”…Absent such
awareness on the declarant’s part, we cannot be sure that the self-
interested motive to tell the truth, making such statements
sufficiently trustworthy to overcome a hearsay objection, is
present.

268 S.W.3d at 589 (emphasis added).

The Court 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 in the interest of diagnosing and curing

some exigent disease or ailment. 268 S.W.3d at 589. “This explains the almost

universal tendency…to assay the record, not for evidence of such awareness, but for

any evidence that would negate such an awareness, even while recognizing that the

burden is on the proponent of the hearsay to show that the Rule 803(4) exception

applies.” Id. (footnote citations omitted).

- 24 -
 Further,

In the therapist's office, however, this tacit presumption is far less
compelling. It is not always so readily apparent (indeed, it may
not always be accurate) in the mental-health context that truth-
telling is vital. Not even an older, more mature child (maybe not
even an adult) will necessarily recognize and appreciate the
necessity (assuming there is a necessity) always to tell a mental-
health provider the truth in order to assure the efficacy of
treatment. In this context we think it is incumbent upon the
proponent of the hearsay exception to make the record 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.
Otherwise, the justification for admitting the out-of-court
statement over a valid hearsay objection is simply too tenuous.

268 S.W.3d at 590.

In footnote 95, the Court noted multiple cases in which Texas courts inferred

that young children understood the need to be truthful when making statements to

health care professionals. In footnote 70, the Court noted multiple cases in which

Texas courts have held that out-of-court statements from child-victims were

inadmissible under Rule 803(4) because there was no reason to believe that the child

would (or even could) have appreciated that the purpose of the statement was to

facilitate diagnosis or treatment.

In an unpublished opinion, the Amarillo Court of Appeals recently applied the

Taylor rationale to SANE reports, reaffirming that the declarant must be made aware

that a proper diagnosis or treatment depended on the veracity of the statements made

- 25 -
to the SANE. Lopez v. State, 2014 WL 1267249 at *1 (Tex.App.—Amarillo 2014,

pdr ref’d). In Lopez, the court ruled that the statements in the SANE report were

admissible because

[t]he record…revealed that [the SANE] informed the child 1) that
she works for the hospital and takes care of children, 2) that “its
real important for him to tell me the truth about what's going on so
I know how to take care of him,” and 3) that if he said his ear hurt
but his stomach actually hurt, she would not be able to take care of
him correctly. According to the same witness, the child victim
knew both that he was there for medical diagnosis and treatment
and that she used what was told to her for medical diagnosis and
treatment.

2014 WL 1267249 at *1.

Here, Lach 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) She did not, however, provide any testimony indicating that she

informed the girls how important it was for them to tell the truth. Contrast this to

Melanie Hughes’ testimony that Texas law requires children to take an oath to tell the

truth during forensic interviews. (6 RR 195) The CAC interviews clearly show

Hughes explaining the difference between the truth and a lie to both “Barbara” and

“Tasha” in a “kid-friendly” environment. The State routinely gets people like Hughes
- 26 -
qualified as experts in the field of forensic examination because these individuals are

allegedly trained to make children so comfortable that they will tell the truth when

they might not under other circumstances. Yet here the girls told extremely different

stories to Hughes and Lach. Hughes’ interviews were recorded; Lach’s were not.

Lach’s examination was, according to her, conducted in a “kid-friendly” environment

some eighteen days after the alleged abuse, and fourteen days after the girls’

interviews with Hughes. (6 RR 162, 139) Hughes’ interviews were conducted the

day after the alleged outcries.

As noted in Taylor, the CAC’s kid-friendly environment 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 in the interest of diagnosing and curing some

exigent disease or ailment. 268 S.W.3d at 589. Therefore, the tacit presumption that

the girls would be aware that Lach’s questions were designed to elicit accurate

information, and that their veracity would serve their best interests, is far less

compelling.

Because the State provided no evidence that truth-telling was a vital component

of the SANE reports, the State failed to carry its burden of proving the admissibility of

the SANE reports over Appellant’s hearsay objection. The trial court’s erroneous

admission of the SANE reports falls outside of the zone of reasonable disagreement,

- 27 -
and the ruling was not correct on any theory of law applicable to this case. As a

result, the trial court abused its discretion.

Harm Analysis

Texas Rule of Appellate Procedure 44.2(b) provides “that an appellate court

must disregard a nonconstitutional error that does not affect a criminal defendant’s

‘substantial rights.’” Jackson at 887. A defendant’s substantial rights are affected

when the error has a substantial and injurious effect or influence in determining the

jury’s verdict. Id.; citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).

“A criminal conviction will not be reversed for nonconstitutional error if the appellate

court, after examining the record as a whole, ‘has fair assurance that the error did not

influence the jury, or had but a slight effect.’” Jackson at 887-888 (citations and

footnote omitted).

In voir dire, the State made specific reference to the “one witness rule.” (5 RR

41-43) The State wanted the jury to understand that Appellant could be convicted

based solely on the testimony of the alleged victims without the State providing any

other evidence in support of the victims’ claims. So, what was the purpose of calling

Lach as a witness?

“Barbara” and “Tasha” were taken to the hospital for treatment immediately

after their outcries. Yet the State did not subpoena any hospital employees as trial

witnesses. Fourteen days after their hospital visit, and at the request of law
- 28 -
enforcement, Lach examined the girls at the CAC office with a colposcope. (6 RR

147) Lach used this highly invasive tool on these young girls even though she

testified that any trauma would have most likely healed itself after eighteen days. (6

RR 141) Had Lach not used the colposcope, it would have very been difficult for the

State to claim that Lach’s SANE reports were taken for purpose of medical diagnosis

or treatment.

More time was devoted to Kathy Lach than any other witness in this case,

including the alleged victims. Through Lach, the State was able to spend a significant

amount of time informing the jury as to why “Barbara” and “Tasha” would have no

physical trauma, as well as explaining, in highly prejudicial detail and in words these

girls wouldn’t even understand, specifics of alleged sexual abuse that was never

mentioned in the girls’ CAC interviews. The State was permitted to have an “expert”

witness simply regurgitate what “Barbara” and “Tasha” allegedly told Lach, in Lach’s

own words, without fear of Appellant pointing out the multiple inconsistences

between Lach’s report and the girls’ initial statements made “under oath.” The State

had no fear of Appellant pointing out the inconsistencies because the State, from the

very beginning of this trial, threatened to call multiple extraneous offense witnesses if

Appellant even thought about cross-examining “Barbara” and “Tasha.” (6 RR 9)

This was extremely harmful and prejudicial to Appellant’s constitutional right to

present a defense.
- 29 -
 It likewise cannot be said that Lach’s testimony did not influence the jury or

had but a slight effect. Lach was able to explain why the girls would have no injuries,

then follow-up with informing the jury that “Barbara” and “Tasha” allegedly told

Lach about abuse that virtually mimicked the language used in the Indictments. This

was not what Rule 803(4) was designed to accomplish and the erroneous admission of

Lach’s SANE reports demands a reversal of Appellant’s convictions.

ISSUE II

The State’s direct examination of forensic interviewer Melanie Hughes opened
the door to cross-examination regarding the inconsistencies in the girls’ claims of
abuse without fear of the State offering extraneous offense evidence in rebuttal.

STANDARD OF REVIEW

Whether or not a party “opens the door” to the introduction of otherwise

inadmissible evidence is reviewed for an abuse of discretion. Green v. State, 934

S.W.2d 92, 101-2 (Tex.Crim.App. 1996). “If the ruling was correct on any theory of

law applicable to the case, in light of what was before the trial court at the time the

ruling was made, then we must uphold the judgment.” Id. A trial court’s ruling will

be upheld as long as it falls within the “zone of reasonable disagreement.” Page, 213

S.W.3d at 337; citing Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.

1991)(op. on reh’g).

- 30 -
 PRESERVATION OF ERROR

After the State concluded its direct examination of forensic examiner Hughes,

Appellant’s trial counsel requested a hearing outside of the jury’s presence and

informed the trial court that the State’s line of questioning put the veracity of the girls’

statements at issue. (6 RR 205-206) Appellant’s trial counsel argued that he was now

free to address the inconsistencies in the girls’ statements without fear of the State

attacking Appellant with extraneous offense evidence. (6 RR 207) The trial court

held that Hughes’ testimony did not open any doors and denied Appellant’s motion.

(6 RR 212) Therefore, this issue was properly preserved.

ARGUMENT

Evidentiary doors may be opened in a variety of ways. A defense attorney’s

opening statement may open the door to extraneous offense evidence to rebut

defensive theories presented therein. See, e.g., De La Paz v. State, 279 S.W.3d 336

(Tex.Crim.App. 2009) and Bass v. State, 270 S.W.3d 557 (Tex.Crim.App. 2008). If a

defense attorney claims that an alleged sexual assault victim has fabricated a story

against his client, the State may put on evidence that his client sexually assaulted other

girls in the same manner. Bass at 558.

Appellant’s trial counsel sought a ruling that utilized this same rationale, but in

reverse: Because the State elicited testimony from Hughes that put the girls’ veracity

- 31 -
at issue, the State opened the door to cross-examining the girls regarding the

consistency of their allegations. Appellant’s trial counsel was correct.

According to Hughes, it is the law in Texas that children take an oath during

their forensic interviews. (6 RR 195) Hughes testified in detail as to why children

have a hard time testifying and remembering things, and that it is very common for

children to have inconsistent stories. (6 RR 198-199) Hughes compares police

reports to her interviews and looks for “consistency” in core details. (6 RR 201) In

this case, Hughes saw no signs of coaching, and “Barbara” and “Tasha” “appear[ed]

to be testifying to something that they did, in fact, actually experience.” (6 RR

203) This was a direct opinion on the truthfulness of the girls’ allegations, which is

inadmissible in Texas courts. See, e.g., Cantu v. State, 366 S.W.3d 771, 777

(Tex.App.—Amarillo 2012).

Accordingly, Appellant’s trial counsel claimed that Hughes’ testimony opened

the door to cross-examination of the girls regarding the consistency of their stories. In

response, the State argued, in part, that:

We have – now, I mean, frankly I think that we are free to ask
[Hughes] what we want to ask. If he comes back and tries to
pursue that, then that’s a defense he is seeking. That’s what he is
putting out there. But to say that he gets to hammer these kids,
and we don’t get to bring in the extraneous is not how it works…

…In this case, we have multiple extraneous offense victims, and
the State is, as you can tell from Ms. Crisp’s comments

- 32 -
 throughout the course of this trial, is seeking to get that
information introduced at trial…

(6 RR 208-209) The State went on to cite Cantu for the proposition that expert

testimony regarding coaching is appropriate, but, the State claimed, Hughes was never

asked if the girls were telling the truth. (6 RR 209)

The State specifically asked Hughes if the girls “…did in fact appear to be

testifying to something that they did, in fact, actually experience,” to which Hughes

responded, “Yes, ma’am.” (6 RR 203) How could this not be a comment on the

veracity of the girls’ statements? Hughes testified that it is very common for

children’s stories to be inconsistent, yet she looks for “consistencies” between a

child’s interview and police reports. (6 RR 198-201)

Although Appellant’s trial counsel could have objected to Hughes’ testimony,

Appellant’s trial counsel allowed Hughes to testify and simply asked for a ruling that

Hughes placed the veracity, or the consistency, of the girls’ statements at issue so he

could effectively cross-examine the girls and defend Appellant against the State’s

theories that (1) there was consistency between the girls’ interviews and the other

reports, and (2) that the girls did in fact appear to be testifying about something they

actually experienced.

The trial court’s ruling not only permitted the bolstering of the girls’ testimony,

but the ruling also made certain that Appellant would not challenge Hughes’

- 33 -
testimony even though the State was in possession of evidence that significantly

undermined Hughes’ expert opinion. This was an abuse of the trial court’s discretion.

Harm Analysis

The girls’ CAC interviews are clearly inconsistent with (1) the SANE reports,

(2) the outcry witnesses, and (3) the girls’ trial testimony. In her CAC interview,

“Tasha” only claimed Appellant touched her private part while they were driving in a

car. “Tasha” said that her clothes were on and her “Paw Paw” was in the front of the

car talking with Appellant as Appellant reached back and touched her private part.

The only other time Appellant touched her private part was when they were riding on

a motorcycle, and Appellant somehow had one hand on her private part and his other

hand in his lap. “Tasha” told Hughes that she had never seen photos or videos of

naked people. See Record Exhibit 2.

During trial, after a series of leading questions, “Tasha” testified that (1) she

saw Appellant’s privacy when he sexually abused her; (2) Appellant touched his

privacy to her privacy; (3) Appellant put his privacy in her mouth; (4) Appellant put

his privacy in her rear end; (5) she saw Appellant sexually abuse “Barbara;” and (6)

Appellant showed her videos of people hunching. (6 RR 225-229) Contrary to

Hughes’ testimony, the “core details” of “Tasha’s” CAC interview and her trial

testimony were very inconsistent.

- 34 -
 According to “Barbara’s” CAC interview, she was in the living room when

Appellant’s man part touched her lips. When Hughes asked “Barbara” to tell her

more, “Barbara” pointed to a drawing and said “his knees.” “Barbara” said

Appellant’s man part went inside her lips and tasted like milk and felt like gum.

“Barbara” drew what a man part looked like, then said Appellant put his man part in

her middle part. “Barbara” said that she and Appellant were in Appellant’s room

because Gloria, Bobby and Appellant were fighting after Gloria and Bobby witnessed

the alleged sexual abuse.

“Barbara” said Appellant flipped her over in the bed and put his man part in her

middle part. At first, “Barbara” said they were both clothed, but then she said

Appellant took her clothes off and put them back on. “Barbara” said she then went to

the doctor because her butt was bleeding after Appellant whooped her with a belt. She

said Appellant’s man part felt soft, then changed the subject and said it was cold in the

room. “Barbara” then said her clothes were on when Appellant’s man part went in her

middle part, and this only happened one time. Like “Tasha,” “Barbara” said that no

one had ever shown her videos of people without clothes on.

“Barbara” said that nothing came out of Appellant’s man part when it went in

her middle part. However, chocolate milk came out of Appellant’s man part when it

touched her lips, and the milk went in her mouth. It tasted like “white.” She spit it in

a towel and put the towel in the kitchen. “Barbara” also said that blood came out of
- 35 -
her middle part and went in her butt. “Barbara” claimed Appellant laid on her when

she was on her stomach and fell asleep on her at some point. This made her feel

hungry, and “Barbara” said she reached out and felt some Lucky Charms cereal when

Appellant was laying on top of her. See Record Exhibit 2.

During trial, however, “Barbara” testified that Appellant put his hand on her

private part, and “I think that’s all.” (6 RR 256) She didn’t know if Appellant’s

middle part touched her middle part, but she answered “yes” when asked if

Appellant’s middle part went in her middle part. (6 RR 256) “Barbara” testified that

Appellant’s middle part went in her buttocks, and, while this was going on, she saw

nasty movies with people hunching on television. (6 RR 257-259) Appellant had his

underwear on when he put his penis in her mouth on Easter weekend. (6 RR 262)

Milk came out of Appellant’s middle part and it went in her mouth. “Barbara” said it

tasted like plain milk. (6 RR 263-264) Contrary to her CAC interview, “Barbara”

testified that she was bleeding between her legs because Appellant sexually abused

her. (6 RR 265) Contrary to “Tasha’s” CAC interview, “Barbara” testified that

Appellant never touched her between her legs in the car. (6 RR 266) Appellant told

them they were his girlfriends as he abused them, and Appellant asked “Barbara” if

she liked the abuse and then spanked her when she said no. (6 RR 268, 278)

There are many inconsistencies between the girls’ CAC interviews and the

girls’ trial testimony. Even though Hughes testified that she looked for consistencies
- 36 -
in the girls’ interviews and the police reports, and that the girls’ appeared to be talking

about something they did, in fact, actually experience, the trial court would not give

Appellant the benefit of cross-examining Hughes without fear of being attacked by

extraneous offense evidence the State was itching to introduce. This violated

Appellant’s constitutional right to present a meaningful defense.

“Erroneous evidentiary rulings rarely rise to the level of denying the

fundamental constitutional right to present a meaningful defense.” Potier v. State, 68

S.W.3d 657, 663 (Tex.Crim.App. 2002). There are two ways such error might violate

a defendant's constitutional rights: (1) by following a state evidentiary rule that

categorically and arbitrarily stops the defendant from offering relevant, reliable

evidence vital to his defense, or (2) by a trial court's clearly erroneous ruling

excluding relevant, reliable evidence that “forms such a vital portion of the case that

exclusion effectively precludes the defendant from presenting a defense.” Wiley v.

State, 74 S.W.3d 399, 405 (Tex.Crim.App. 2002) citing Potier, 68 S.W.3d at 665.

Here, the trial court’s ruling excluded relevant, reliable evidence that formed a

vital portion of Appellant’s case. There was no physical evidence introduced during

Appellant’s trial. The only evidence indicating Appellant sexually abused anyone

came from the stories told by the alleged victims. Yet Appellant was unable to inform

the jury as to the many, many inconsistencies in the girls’ stories without fear that the

State would march multiple witnesses into the courtroom to testify that Appellant
- 37 -
abused them at some point in the past. From the outset of the trial, the State informed

Appellant that they would attempt to introduce extraneous offense evidence if

Appellant cross-examined the girls on the details of their stories. (6 RR 9) This is not

how the evidentiary rules were designed to be utilized. The State should not have

been permitted to knowingly put on inconsistent testimony, then use the threat of

extraneous offense evidence should the known inconsistencies be brought to light in

front of the jury. Appellant’s fundamental constitutional rights were violated, which

demands a reversal of Appellant’s convictions.

ISSUE III

After the “Rule” was invoked, the trial court erred by permitting Child
Advocacy Clinical Director Karrah Dickeson to remain in the courtroom while the
alleged victims testified.

STANDARD OF REVIEW

A trial court’s decision to permit a witness to remain in the courtroom after the

“Rule” is invoked is reviewed for an abuse of discretion. Moore v. State, 882 S.W.2d

844, 848 (Tex.Crim.App. 1994).

PRESERVATION OF ERROR

Prior to “Tasha” taking the stand, the State requested that Dickeson remain in

the courtroom while “Tasha” and “Barbara” testified because Dickeson was going to

be an expert witness and Dickeson needed to observe the girls’ testimony. (6 RR 220-

221) Appellant’s trial counsel objected “until [he knew] the basis of why she needs to
- 38 -
observe the testimony.” (6 RR 221) Without requiring anything further from the

State, the trial court overruled Appellant’s objection. (6 RR 221) Therefore, this

issue was properly preserved.

ARGUMENT

The State invoked the “Rule” prior to opening statements. (6 RR 63) The

“Rule” is found in Texas Rule of Evidence 614, which provides as follows:

At the request of a party the court shall order witnesses excluded
so that they cannot hear the testimony of other witnesses, and it
may make the order of its own motion. This rule does not
authorize exclusion of:

(1) a party who is a natural person or in civil cases the spouse of
such natural person;

(2) an officer or employee of a party in a civil case or a defendant
in a criminal case that is not a natural person designated as its
representative by its attorney;

(3) a person whose presence is shown by a party to be essential to
the presentation of the party's cause; or

(4) the victim in a criminal case, unless the victim is to testify and
the court determines that the victim's testimony would be
materially affected if the victim hears other testimony at the trial.

A party seeking an exception under Rule 614 has the burden of showing that

one of the enumerated sections is met. Moore at 848. Here, no such showing was

made. The State simply informed the trial court that Dickeson was going to be an

expert witness and she needed to observe the girls’ testimony. Even though

- 39 -
Appellant’s trial counsel requested that the State provide a more detailed basis, which

is expressly required by Rule 614(3), the trial court required nothing further from the

State and overruled Appellant’s objection. As a result, the trial court abused its

discretion. See Moore at 848.

Harm Analysis

The trial court’s error will not require reversal if this Court determines that the

error was harmless beyond a reasonable doubt. Moore at 848.

In front of the jury, the State asked Dickeson if she had the benefit of seeing the

girls testify, to which she responded, “Yes, ma’am, I did.” (7 RR 16) Dickeson then

testified that the girls did not know words like “sexual abuse” until they started

receiving treatment. (7 RR 17) Compare this to Conesha’s outcry testimony where

Conesha said “Barbara” told her that Appellant had been “molesting her.” (6 RR 101)

Dickeson stated that knowing words like “sexual abuse” helps the girls

understand “what it is that they have experienced.” (7 RR 17) This was another

direct opinion on the truthfulness of the girls’ allegations, which drew an objection

from Appellant’s trial counsel. The State responded, “I mean, the expert was in the

courtroom and has explained to the jury why a five-year-old could use the term sexual

abuse.” (7 RR 17)

It appears as though Dickeson’s testimony was offered to clear up any

confusion the jury may have had with the girls using terms like “sexual abuse” during
- 40 -
their testimony. The State also used Dickeson to help explain why “Tasha” had

difficulty testifying as to the graphic details of sexual abuse. (7 RR 21-22) In a round

about way, the State was able to make double-certain that the jury did not think the

girls’ testimony was coached or inconsistent. Appellant was undoubtedly harmed

when the jury heard yet another witness testify that, in her expert opinion, the girls

had been abused. Therefore, the trial court’s error was not harmless beyond a

reasonable doubt.

ISSUE IV

During final closing argument, the State’s instruction for the jury to “[g]o back
there and fight for those little girls” was an improper plea for abandonment of
objectivity, and the trial court erred by overruling Appellant’s objection to the same.

STANDARD OF REVIEW

According to Harris v. State:

The purpose of closing argument is to facilitate the jury's proper
analysis of the evidence presented at trial in order to arrive at a
just and reasonable conclusion based solely on the evidence.
Barnes v. State, 70 S.W.3d 294, 308 (Tex.App.-Fort Worth 2002,
pet. ref'd). To be permissible, the State's jury argument must fall
within one of the following four general areas: (1) summation of
the evidence; (2) reasonable deduction from the evidence; (3)
answer to argument of opposing counsel; or (4) plea for law
enforcement. Felder v. State, 848 S.W.2d 85, 94–95
(Tex.Crim.App.1992), cert. denied, 510 U.S. 829, 114 S.Ct. 95,
126 L.Ed.2d 62 (1993); Alejandro v. State, 493 S.W.2d 230, 231
(Tex.Crim.App.1973). If a jury argument exceeds the bounds of
proper argument, the trial court's erroneous overruling of a
defendant's objection cannot be reversible error unless, in light of
the record as a whole, the argument had a substantial and injurious
- 41 -
 effect or influence on the jury's verdict. TEX.R.APP. P. 44.2(b);
Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.Crim.App.2000);
Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op.
on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143
L.Ed.2d 550 (1999).

122 S.W.3d 871, 883-884 (Tex.App.—Fort Worth 2003, pdr ref’d)

PRESERVATION OF ERROR

Appellant’s trial counsel immediately objected when the State instructed the

jury to “go back there and fight for those little girls.” (7 RR 63-64) The trial court

overruled the objection. (7 RR 64) As a result, this issue was properly preserved.

ARGUMENT

The State’s instruction for the jury to “go back there and fight for those little

girls” does not fit into any of the four categories outlined above. Rather, the State’s

demand was a “plea for abandonment of objectivity.” See, e.g., Brandley v. State, 691

S.W.2d 699, 713 (Tex.Crim.App. 1985). The jury is not supposed to fight for either

side. The jury is chosen based on their ability to view the evidence objectively and

reach a true verdict. The State’s instruction for the jury to fight for “Barbara” and

“Tasha” removed any objectivity from their deliberations and was highly

impermissible.

Harm Analysis

The State’s impermissible argument came at the very end of the trial, at a point

where Appellant had no chance of responding. After the trial court overruled
- 42 -
Appellant’s objection, the jury was left with the false impression that it was their duty

to go back to the jury room and fight for “Barbara” and “Tasha”. In light of the record

as a whole, and considering the multiple points of error raised herein, this argument

had a substantial and injurious effect or influence on the jury's verdict. Therefore, this

error also demands a reversal of Appellant’s convictions.

- 43 -
 PRAYER

For the reasons set forth above, Appellant prays that this Court reverse the

judgment of the trial court and render a judgment of acquittal. In the alternative,

Appellant prays that the cause be remanded for a new trial, and for any other and

further relief that this Court deems Appellant justly entitled.

Respectfully submitted,

JASON HORTON LAW FIRM
114 West Broad Street
Texarkana, Texas 75501
Mail To:
Post Office 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 No. 24041130

ATTORNEY FOR APPELLANT

- 44 -
 CERTIFICATE OF COMPLIANCE

I certify that this document was prepared with Microsoft Word, and that,

according to that program’s word-count function, the sections covered by Tex. R.

App. P. 9.4(i) contains 8,537 words.

/s/ Jason Horton
Jason Horton

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has been

forwarded to the following listed persons this 23rd day of January, 2015:

Mr. Jerry Rochelle
Bowie County District Attorney
Bowie County Plaza
601 Main Street
Texarkana, Texas 75501

/s/ Jason Horton
Jason Horton

- 45 -