Taylor v. State

• Decision Date: 29 October 2008
• Docket Number: No. PD-1370-07.,PD-1370-07.
• Citation: 268 S.W.3d 571
• Parties: Rashik Ali TAYLOR, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

268 S.W.3d 571

Rashik Ali TAYLOR, Appellant v. The STATE of Texas.

No. PD-1370-07.

Court of Criminal Appeals of Texas.

October 29, 2008.

Nicole Deborde, Houston, for Appellant.

Carol M. Cameron, Assistant District Attorney, Houston, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

OPINION

PRICE, J., delivered the opinion of the Court in which MEYERS, JOHNSON, HOLCOMB and COCHRAN, JJ., joined.

The appellant was convicted of the offense of aggravated sexual assault of a child younger than fourteen.¹ The jury assessed his punishment at ten years' confinement in the penitentiary. The evidence against the appellant consisted of the testimony of the complaining witness, J.B., and a licensed professional counselor who had been counseling J.B. for some months after the offense came to light. On appeal, the appellant argued that certain testimony from the counselor, summarizing what J.B. had told her about the offense, had been improperly admitted over his hearsay objection. The First Court of Appeals held that the counselor's testimony was admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment.² We granted the appellant's petition for discretionary review to examine whether the hearsay exception embodied in Rule 803(4) of the Texas Rules of Evidence should apply under the circumstances.³

FACTS AND PROCEDURAL POSTURE

At Trial

The complaining witness, J.B., was thirteen years old at the time of the offense, and fourteen when she testified. She had been living mostly with her grandmother for the past two or three years because her mother was a drug abuser and a prostitute, "in and out of jail." She was a good student who admitted that she could probably do even better in school. At least on a cold record, she gives the impression of possessing a certain street savvy. The following account derives entirely from J.B.'s testimony, which made up the bulk of the State's case against the appellant. There was no forensic evidence to back up her story.

Sometime in March of 2005, while J.B. was on her spring break from school, she met the appellant, who was her mother's friend, for the first time. She knew him only by his nickname, "Skinny Man." Several weeks after she first met the appellant, J.B. was in a motel room one evening with her mother and "Uncle Lazy," a drug dealer who was the boyfriend of J.B.'s aunt. J.B. and her mother were drinking wine. Soon J.B.'s mother begin to crave drugs, so Uncle Lazy and J.B. drove her in a borrowed van to an apartment complex where she could prostitute herself for cocaine. Later, J.B.'s mother called to say that her abusive ex-boyfriend had abducted her and asked J.B. to call the appellant. The appellant drove to the motel and picked up J.B. and Uncle Lazy. He offered them cocaine, then suggested that Uncle Lazy go by himself to rescue J.B.'s mother. Uncle Lazy refused to leave J.B. alone with the appellant, so all three of them got into the appellant's car. The appellant put his hand on J.B.'s leg, but she pushed it off. They drove to the motel in which the appellant was staying. J.B. accompanied the appellant to his room, where he retrieved a nine-millimeter gun. While in the motel room, the appellant told J.B. that he wanted her and her mother to move in with him. "And then he was like, well, I just want to spend time with you, all this kind of stuff."

They left the motel and drove to another apartment complex that J.B. did not recognize. The appellant and Uncle Lazy got out of the car and began a conversation at the rear of the vehicle that J.B. did not pay attention to. But then she noticed that the appellant had pulled out his gun and was pointing it at Uncle Lazy. J.B. then "jumped in front of the gun and grabbed my uncle." The appellant tried to wrest her from Uncle Lazy, and pulled out a different, smaller caliber gun and held it to J.B.'s head. J.B. let go of Uncle Lazy and let the appellant put her back in the car. But she immediately jumped out of the window and began to run through the apartment complex. She heard a gun shot and assumed that the appellant had shot Uncle Lazy.⁴ When it became clear to J.B. that the appellant was going to catch her, she stopped running. He took her back to the car. She did not see Uncle Lazy anywhere. The appellant then drove her back to his motel.

Once back at the motel, J.B. tried to run again, but the appellant found her and took her to his room. There they did several lines of cocaine,⁵ and then the appellant asked J.B. to lie on the bed and disrobe. She did so because she felt "threatened and intimidated." The appellant then disrobed and had sex with J.B. She testified that it hurt the entire time, and she tried to push him off. "And every time I said stop or pushed harder, it would be—so I just gave up. * * * I'm wasting my energy. The more—I knew the more I fight the longer it would take. I knew that. So I just stopped." J.B. estimated that the assault lasted between one-and-a-half and two-and-a-half hours. When it was over, the appellant threw a bag of crack cocaine in her lap and told her it was for her mother, leading J.B. to suspect that her mother may have prostituted her to the appellant in exchange for drugs. The appellant then took J.B. back to her mother's motel, where her grandmother was waiting to take her home.

Because J.B. had been truant, a counselor from school called her over the weekend. J.B. asked the counselor, "[W]hat does rape mean?" On Monday, J.B. disclosed her ordeal to the school counselor, who in turn reported it to Child Protective Services. J.B. eventually underwent a medical examination, but only to determine whether she was pregnant or had contracted any sexually transmitted disease. About a month after the assault, J.B. began to see a therapist "through Child Advocacy."

Q. Now, you also stated you started getting therapy. What were you getting therapy for?

A. Post traumatic stress disorder. A little bit before all this had happened like towards the end of February beginning of March I had been diagnosed as bipolar. CPS thought it was best that I started to receive therapy. They didn't want me to start cutting myself because of what had happened.⁶

Q. So did you start seeing a therapist?

A. I started seeing a therapist.

Q. Do you know when that was?

A. That was—it started—like it started like a month or so after everything had happened. Like CPS got like really, really got involved and everything.

Q. Are you still seeing a therapist to this day?⁷

A. Yes.

Q. What's your therapist's name?

A. Denise Fuller.

On cross-examination, J.B. confirmed that she had talked about "this incident" with Denise Volet. It is not clear whether Denise Volet and Denise Fuller are one and the same.⁸

Denise Volet testified that she is a licensed professional counselor, formerly with Child Protective Services and in private practice at the time of trial, with extensive experience counseling victims of sexual assault and abuse. According to Volet, J.B. had begun therapy with another therapist at the Child Advocacy Center, but "there was a conflict of interest there since they work with CPS and everything, so [J.B.] was referred to me."⁹ J.B. began therapy with Volet on June 24, 2005, at least several months after the offense.¹⁰ Volet had been seeing J.B. on a weekly basis right up until the time of trial. The portion of her testimony that is relevant to the issue in this case is as follows:

Q. And what sort of issues are you working with [J.B.] on?

A. The resolution of the rape and the sexual assault. The resolution of the mother/daughter issues. Anger management. Learning how to control her own behaviors and making the right choices. And judgment decisions.

Q. Did she tell you the facts about the rape?

A. She did give me some details.

Q. What details did she give you?

[DEFENSE COUNSEL]: Objection. Calls for hearsay.

[PROSECUTOR]: This is a statement made for diagnosis or treatment, Your Honor.

[DEFENSE COUNSEL]: Although she is a licensed counselor, if I can ask her a question or two on voir dire before you make a decision on this? Would that be okay, Your Honor?

THE COURT: Okay. Take her on voir dire.

VOIR DIRE EXAMINATION

BY [DEFENSE COUNSEL]:

Q. Are you a medical doctor?

A. No, sir.

Q. Are you a psychiatrist?

A. No, sir.

Q. Are you under the supervision of a medical doctor or psychiatrist?

A. No, sir.

Q. You're not connected to any kind of medical doctor or psychiatrist in any way?

A. No, sir.

[DEFENSE COUNSEL]: Your Honor, I object. These are hearsay statements that are not made in the course of treatment.

[PROSECUTOR]: She is a licensed therapist treating [J.B.] for the issues that she described.

THE COURT: Overruled.

DIRECT EXAMINATION (continued)

BY [PROSECUTOR]:

Q. What did she tell you about what had happened?

A. She referred to the gentleman as Skinny. That's the name that she had for him. And how basically her mother had sent her to go with him. They went to a motel. She talked about being in a car. Talked about there being a gun. She talked about going upstairs into the room. Being afraid, knowing that something wasn't right and was going to happen. Skinny asking her to take her clothes off and her telling him she didn't want to. And trying to resist. She talked about the gun being on the night stand on the table. Her taking her clothes off. Getting on the bed. Skinny having sex with her. That it hurt. And she tried to get away from him and just couldn't. Then when it was over she talked about, you know, leaving. Being in the car. At some point the gun was in her lap for some reason. And she talked about that she had the thought of I just should shoot him now. She talked about doing drugs. Doing cocaine. I remember cocaine. I don't remember exactly what it was they drank. But she had been drinking and doing drugs. Had been given those things. She remembered getting out of the car. And what's typical of a...