Ford, Jamie Lee ( 2015 )

65775
EL
COURT OF CR!W APPEALS
JUL 2 2 2015
JAMIE LEE FORD
PETITIONER
PETITION FOR DISCRETIONARY REVIEW
WITH BRIEF IN SUPPORT
F'LED IN
COURT OF CRIMINAL APPEALS
JUL 2 2 23;j
Abel Acosta, Clerk
TABLE OF CONTENTS
PAGE
COVER PAGE
INDEX OF AUTHORITIES A
STATEMENT OF THE CASE B
ISSUES PRESENTED C
STATEMENT OF FACTS C
ARGUMENT 1_3
summary of the argument 3
PRAYER 3
CERTIFICATE OF SERVICE \j{ $
INDEX OF AUTHORITIES
PAGE
Cohn v State 849 Sw2d p 817 (Tex-crim.app 1993) 2
Duckett v State 797 sw2d p906 (tex.crLm.appl990)
Fuller v State 224 sw3d p823 (Tex-app-Texarkana 2007)RR 3
In RE BLD 113 sw3d p340 (Tex 2003) 1
Montgomery v State 810 sw2d p372 (Tex.crim.app 1990) 2
Salinas v State 166sw3d p 368 (tex.app-ft Worth 2005) 1
Sessums v State 129 sw3d p242 (Tex.app-texarkana 2004)RR 3
State v Bailey 201 sw3d p 739 (Tex.crim.app 2006)RR 1
Tittizer v Union Gas Corp 171 sw3d p857 (Tex 2005) 1
Vela v State 159 Sw3d pl72 (Tex.app-Corpus Christi 2006) 2
Young v State 137 sw3d p 65,72 (Tex.Crim.app 2004) 2
TEXAS RULES
T.R.A.P- 38.9 1
A
A
STATEMENT OF THE CASE
This case involves a jury trial of Jamie Lee ford for the
offense of contionus sexual abuse of a child under the age of
fourteen. While he did not testify, a theory of medical treatment
was advanced. Testimony included a neighbor and a sane nurse
a sentence of thirty-five years was given with an appeal
following. The grounds raised focused on an abuse of discretion
and trial court err in overrulling of defense motion for mis
trial regarding bolstering.
Appellate counsel David Richards did not contact the
defendant about the decision by the second court of appeals
affirming, nor was the defendant aware that his appeal was
given by another attorney.
Having only received the court's opinion was Mr.
Ford able to pursue a petition for discretionary review with
the assistance of a writ writer.
The second court of appeals affirmed Ford's case on
April 23,2015, and an extension to file an (PDR) was granted
on May 29,2015. This Petition follows.
ISSUE PRESENTED
Whether the Second court of appeals claim
that it was difficult to understand Ford's
second point of error compels reversal for
further briefing
STATEMENT OF FACTS
It is within the procedural arena that the parties contend
their issues. Trial counsel's objections form the predicate
leading to this petition for review.
The objections lodged involved realability and bolstering.
The two witnesses were a neighbor and a sane nurse, The court
of appeals opinion states their difficulty in understanding
ford's second point, alleding his failure to discuss the sub
stance of his complaint. Accordingly, Ford's case was affirmed
on a failure to preserve error, ffhis is in conflict with other
court of appeals on the same issue.
ARGUMENT
The second court of appeals claims that Ford did not cite
any authorities to explain his second point of error, (pg 7)
and stated their difficulty in understanding his second point,
(pg 9)
While the T.R.A.P. rules are discretionary as this court
has held, see State v Baily 201 sw3d p739 (Tex.crim.app 2006)RR
"T.R.A.P. 38.9 gives the appellate courts some discretion in
remeding substantive defects in particular briefs.
Other courts have also held that "adhering to tenets of
preservation is important, however appellate courts should
avoid being overly techinical in their application" see
Tittizer v Union Gas corp 171 sw3d p 857 (Tex 2005)., citing
In RE BLd 113 sw3d p 340 (Tex2003) "describing the underpinnings
of procedural rules of fairness as to the parties and to
judicial economy.
As in a prior decision by the second court of appeals
that "the appellant raises a troubling issue allowing that the
trial court improperly admitted expert testimony that directly
commented on the credibility of the victim" Salinas v State
166 sw3d p368 (Tex.app-Ft Worth 2005) In Ford's case the sane
nurse was unable to make a diagnosis of sexual abuse.
counsel's objection of "boosting credibility" was
sustained and the state was instructed to rephrase its
question.
1
The prosecution then with a subtle change in the question
permitted an artful yet cognent distinction urged to create an
improper inference. This caused defense counsel to object again,
request an iHStruction to disregard and a mistrial which was
denied
The Ft worth's opinion recognized appellate counsel's cite
for a mistrial, Young vs State 137 sw3d p65,72 (Tex.crim.app2004)
Yet they erred by not conducting an analysis of what was before :
the trial court at time of trial. Montgomery v State (Tex.crim.appp
1990) 810 sw2d si
The court of criminal appeals has reversed this issue see
Vela v State 159 sw3d pl72(Tex.app-Corpus Christi 2006) af'd in
part reversed in part and remanded, state filed PDR 209 sw3d p
128 (Tex.crim.app 2006) Judgment of COA vacated and remanded,
Vela v State 251 Sw3d p794 (Tex.app-Corpus Christi 2008) Appeals
court did not give proper deference to the trial courts ruling.
As to the substance of testimony in the instant case,
Bolstering can elicit undue "refers to an undue tendendacy to
sugest an improper basis commonly though not necessarily an-
emotional one" Cohn v State 849 sw2d p817 (ex.crim.app 1993,
overrulling Duckett v State 797 sw2d p906 (Tex.crim.app 1990).
The decision of the second court of appeals conflicts with
other court of appeals on this issue of objection. See
Fuller v State 224 sw3d P823 (Tex.app-Texarkana 2007) RR for
a new trial, "Three courts have found failure to object to the
repeated elicitation and offer of this type of testimony to
constitute ineffective assistance of counsel when presented on
direct review" "There is no conceivable stradegy or tatic that
would justify allowing this kind of testimony in front of ajury"
Sessums v State 129 sw3d p242 (Tex.app-Texarkana 2008).
SUMMARY OF THE ARGUMENT
to the extent that Ford's appellate counsel failed to
take the minimal effort to inform his client the affirmance
of the appeal, such effort carried over to the brief submitted,
and it is not clear whether the court of appeals knew this,
however, their opinion sufficiently provides a basis for
review. The petitioner has shown that a conflict exsists
between the 2nd court of appeals and other courts on the
issu^and substance related to the objections raised
PRAYER
The petitioner prays that the court of criminal appeals
grant his Petition and remand the case back to the 2nd
court of appeals for further administration and relief.
CERTIFICATE OF SERVICE
I, Jamie Lee Ford do certify under penalty of pernury that
a copy of the foregoing Petition for discretionary review was m;i
mailed on thel4th day of July 2015 first class postage pre-paid
to the following parties: Kathleen Catania, asst criminal
district attorney at 117 Fort Worth highway, Weatherford,Texas
76086. This pursuant to T.R.A.P. 9.5
Pursuant to T.R.A.P. 68.11 a copy of the foregoing
instrument as described above was also sent toLisa McMinn
state prosecuting ?^pr(jey. . Price Daniel bldg
209 w. 14th rm 202 P.O. Box 12405 Capitol Station, Austin,
Texas 78711-2405
Page h,
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00148-CR
JAMIE LEE FORD APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CR12-0559
MEMORANDUM OPINION1
I. Introduction
Appellant Jamie Lee Ford appeals his conviction for continuous sexual
abuse of a child under the age of fourteen. See generally Tex. Penal Code Ann.
§ 21.02 (West 2002). In two points, Ford argues that the trial court abused its
discretion by allowing the State's expert, a sexual assault nurse examiner, to
'See Tex. R. App. P. 47.4.
testify at trial and that the trial court erred by overruling his motion for mistrial.
We will affirm.
II. Background
Because neither of Ford's points require an entire recitation of the
evidence adduced at trial, we provide only a recitation necessary to dispose of
Ford's points and to provide context to the reader. Daughter2 told her older friend
a "secret," alleging that her biological father, Ford, would say he was cleaning her
or checking her for "bumps and bruises," but Daughter, rather than describing
what would be considered appropriate adult touching, went on to describe what
appeared to be sexual acts. Daughter also told her friend not to tell anyone
because she feared growing up without a dad, but the friend told her own
parents, who went across the street and told Daughter's mother. When Mother
asked Daughter about what she had told her friend, Daughter told Mother and
the friend's parents that Ford had been sexually assaulting her for years. Later,
the State indicted Ford for the continuous sexual abuse of a child.
At trial, Daughter, ten years old at the time, testified that throughout her
first through third grades in elementary school, Ford would have her undress in
his bedroom and lay on the bed. Sometimes he would cover her face and touch
her sexual organ with his hand. Other alleged acts included numerous incidents
2We usealiases when possible to protect the minor child's identity in this
case.
of fondling and digital penetration and at least one allegation of penetration of her
mouth with his penis.
One of the Fords' neighbors testified that he was reluctant to believe
allegations made against Ford until he witnessed Daughter's outcry and asked
Daughter if her dad was touching her. He then believed her. According to
Neighbor, Daughter "got real upset and turned her face . . . where we could
barely hear her" and said Ford had been touching her. At one point, Neighbor
testified that Daughter was "a stand-up little girl." When the State asked what he
meant by Daughter being a "stand-up" girl, defense counsel objected that the
State was trying to "boost credibility." The trial court instructed the State to
rephrase its question, and the State complied. After further testimony by
Neighbor that Daughter would "fess up" to mistakes, the State asked if that was
"the kind of thing that makes [Neighbor] think [Daughter was] a stand-up kid?"
Defense counsel then lodged a "boosting credibility" objection, and the trial court
sustained the objection and instructed the jury to disregard the Neighbor's
answer. Defense counsel then moved for a mistrial, and the trial court denied the
motion.
The State also introduced the testimony of Rebecca Sullivan, the sexual
assault nurse examiner who had performed a sexual assault exam on Daughter
shortly after Daughter's outcry. Sullivan said that she performed a detailed
sexual history interview and exam of Daughter. Sullivan testified that the results
of her exam were normal but that "completely normal" results were seen in 85-
95% of children with penetration by any means. Defense counsel lodged a
reliability objection to the State's witness, and the trial court overruled the
objection.
The jury returned a verdict of guilty and assessed punishment at thirty-
seven years' incarceration. The trial court entered judgment accordingly, and
this appeal followed.
III. Discussion
In his first point, Ford argues that the trial court abused its discretion by
allowing the State to introduce "testimony under the medical records exception."
Specifically, Ford argues that the trial court erred by improperly admitting
"medical records . . . concerning the sexual assault examination conducted
months after the alleged assaults... for the reason stated in this Court's
decision in Salinas v. State." See 166 S.W.3d 368, 371 (Tex. App.—Fort Worth
2005, pet. ref'd) (holding that expert testimony diagnosing sexual abuse based
on a child's medical history had been erroneously allowed). In short, Ford argues
that the State's expert witness was impermissibly allowed to testify to the
complainant's credibility, thereby bolstering it.
The State counters that Ford's reliance on Salinas is misplaced because
the expert who testified concerning the medical records in this case "never gave
a diagnosis of sexual abuse" and therefore could not have based her testified-to
diagnosis "merely [upon] a verbal history given to her" by the complainant. We
agree with the State.
We review the trial court's decision to admit or exclude scientific expert
testimony under an abuse of discretion standard. Sexton v. State, 93 S.W.3d 96,
99 (Tex. Crim. App. 2002). The trial court abuses its discretion if it acts without
reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d
372, 380 (Tex. Crim. App. 1991) (op. on reh'g). Thus, we will uphold the trial
court's decision as long as it is within the zone of reasonable disagreement,
given the evidence presented and the requirements of Rule 702 of the Texas
Rules of Evidence. Sexton, 93 S.W.3d at 99.
Rule 702 provides that an expert may testify if the expert's "scientific,
technical, or other specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue." Tex. R. Evid. 702; Duckett v. State,
797 S.W.2d 906, 914 (Tex. Crim. App. 1990), disapproved on other grounds,
Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (noting that to be
admissible, expert testimony must "assist" the trier of fact). Expert testimony
does not assist the jury if it constitutes "a direct opinion on the truthfulness" of a
child complainant's allegations. Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim.
App. 1993) (holding testimony regarding an opinion of truthfulness "does more
than 'assist the trier of fact to understand the evidence or to determine a fact in
issue'; it decides an issue for the jury."). In other words, an expert may testify
that a child complainant exhibited symptoms consistent with sexual abuse but not
that a complainant is truthful. Cohn, 849 S.W.2d at 818-19; Salinas, 166 S.W.3d
at 370.
Because Ford's argument is predicated on this court's decision in Salinas,
a discussion and comparison between Salinas and this case is warranted. 166
S.W.3d at 370. In Salinas, the complainant testified that the defendant had
digitally penetrated her anus with his finger. Id. The State's expert testified that,
generally, there will be no physical evidence of the insertion of a finger into the
anus of a six-year-old child. Id. Nevertheless, the expert testified that she had
diagnosed sexual abuse based solely upon the history provided by the
complainant, noting that the complainant's medical exam results were "consistent
with that history." Id. That is, the expert "diagnosed sexual abuse by digital
penetration of the anus [solely] because the child told her that digital penetration
had occurred." Id. This Court held that such testimony was "a direct comment
on the credibility of the complaining witness." Id. at 371. Accordingly, we held
that "[b]ecause there was no physical indication of digital penetration, [the
expert's testimony [could] only be seen as an attempt to directly bolster the
credibility of the complainant and a direct comment on the complainant's
truthfulness." Id. This Court further stated that "Although [the expert] could
[have] properly testified] that the physical exam was normal, the trial court
abused its discretion in admitting [the expert's testimony that she had diagnosed
sexual abuse based on the child's medical history." Id.
In this case, as the State argues, the facts are distinguishable from
Salinas. Here, with respect to any physical findings of sexual assault, the State's
expert witness testified that the results of her examination of Daughter were
consistent with what a medical professional would expect to find based upon
generally accepted scientific literature. Specifically, the State's expert testified
that she saw no physical signs of sexual abuse and that she was unable to make
a diagnosis of sexual abuse. Thus, unlike in Salinas, the expert witness in this
case made no diagnosis of sexual abuse.
Because the State's expert witness in this case never testified directly
about Daughter's credibility or honesty and because a trial court may admit
expert testimony that a child exhibits physical signs that have been empirically
shown to be common among children who have been sexually abused, including
that the child exhibited no physical signs of sexual abuse at all, the expert
witness did not "bolster" Daughter's testimony, and the trial court did not abuse
its discretion by allowing the expert to testify. See Salinas, 166 S.W.3d at 370;
compare Reyes v. State, 274 S.W.3d 724, 730 (Tex. App.—San Antonio 2008,
pet. ref'd) (holding that doctor's testimony about behavioral characteristics
common among abused children was permissible under rule 702 of Texas Rules
of Evidence). We overrule Ford's first point.
In his second point, Ford argues that the trial court erred by denying his
motion for mistrial. Other than citing one case standing for the proposition for
when a mistrial is appropriate, Ford does not cite any authority to explain what
his second point of error actually is. See Young v. State, 137 S.W.3d 65, 69, 72
(Tex. Crim. App. 2004) ("A grant of a motion for mistrial should be reserved for
those cases in which an objection could not have prevented, and an instruction to
disregard could not cure, the prejudice stemming from an event at trial."); see
also Tex. R. App. P. 38.1 (i) ("The brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and
to the record."); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000) ("In
failing to provide any relevant authority suggesting how the judge's actions
violated any of appellant's constitutional rights, we find the issue to be
inadequately briefed."), cert, denied, 532 U.S. 1053 (2001).
In his brief, Ford does point to a colloquy in the record wherein the
prosecutor asked questions of Neighbor, and Neighbor specifically answered one
of the questions that Daughter is a "stand-up little girl." Defense counsel
objected to the line of questioning, stating that the prosecutor was attempting to
"boost credibility." The trial court instructed the prosecutor to rephrase the
question, and the prosecutor capitulated. Later in the same colloquy, the
prosecutor asked the witness whether when other children in the neighborhood
would get in trouble, Daughter would not. Neighbor answered "Yes." Then
again, the prosecutor asked Neighbor if Daughter was involved in "trouble,"
whether Daughter would "fess up that she was doing it, too?" And Neighbor
again answered "Yes." Yet again, the prosecutor asked Neighbor if this conduct
by Daughter is why he believed Daughter to be a "stand-up kid?" The witness
answered, "Absolutely." Defense counsel then objected that the prosecutor was
attempting to "boost[] credibility." The trial court sustained the objection,
8
instructed the jury to disregard the witness's answer, and then denied Ford's
motion for mistrial. See Young, 137 S.W.3d at 72.
The State argues that this colloquy indicates that Ford failed to timely
object at trial to the evidence he now complains of on appeal because the
question had been asked and answered multiple times prior to and in-between
Ford's objections.
It is difficult to understand Ford's second point because of his failure to
discuss the substance of his complaint. See Tong, 25 S.W.3d at 710.
Regardless, we agree with the State that Ford has failed to preserve this error for
our review because the witness was allowed to answer the same question
multiple times without Ford objecting. See Dinkins v. State, 894 S.W.2d 330, 355
(Tex. Crim. App.) ("[I]f a question clearly calls for an objectionable response, a
defendant should make an objection before the witness responds."), cert, denied,
516 U.S. 832 (1995). We overrule Ford's second point.
IV. Conclusion
Having overruled both of Ford's points on appeal, we affirm the trial court's
judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 23, 2015