                                                                                                                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
