65775

JAMIE LEE FORD

PETITIONER

PETITION FOR DISCRETIONARY REVIEW

WITH BRIEF IN SUPPORT

EL

COURT OFCR!W APPEALS

JUL 2 2 2015

F'LED IN

COURT OF CRIMINAL APPEALS

JUL 2 2 23;j

Abel Acosta, Clerk
TABLE OF CONTENTS

COVER PAGE

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 anemotional 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

FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

TRIAL COURT NO. CR12-0559

MEMORANDUM OPINION1

STATE

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 contextto the reader. Daughter2 told her olderfriend

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 thirtyseven 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