The opinion
IZ12-15
No. PD-1212-15
ORIGINAL
RECEIVED IN
IN THE COURT OF CRIMINAL
appe£Q|JRT of criminal appeals
OF THE STATE OF TEXAS
ZACK G. ELDRED. JR PETTIONER PRO-SE
DEC 23 2015
Vs • Abel Acosta, Clerk
THE STATE OF TEXAS RESPONDENT
PETITION IN CAUSE NO.11FO762-102
FROM THE 102nd DISTRICT COURT OF
BOWIE COUNTY TEXAS
AND
THE COURT OF APPEALS FOR THE
SIXTH JUDICIAL DISTRICT OF TEXAS
i.'TEXARKANA
CASE NO.06-1300128-CR
DECIDED MARCH 5 2014
HABEAS CORPUS
PETITION FOR OUT-OF-TIME PDR
CAUSE No. WR-79,560-03
PETITION SEEKING DISCRETIONARY REVIEW
PD-1212-15
Mr. Abel Acosta( Clerk;
Office of The Court Of
Criminal Appeals Of
Texas.
P.O. Box 12308
Capitol Station
Austin, Texas 78711
Dear Mr, Acosto:
Please Find in this Writ Envelope my Petition For
Discretionary Review and file it with the Court. I also as
to the Inactment of Tex.R.APP.P. Rule 2,to SUSPENION of the
Amount of Copies requird to be Filed. Also Please inform me
as to you receining of my Petition For Discretionary Review.
Thank you for your time and service..
Respectfull Submitted
Zack G, JiX5red,Jr. PRO-Se
TDCJ #1812117
Clements Unit
9601 Spur 591
Amarillo, Tx 79107-9606
Zack G. Eldred,Jr
Petitioner Pro-Se
TDCJ #1812117
William P. Clements Unit
9601 Spur 591
Amarillo, Tx 79107-9606
TABLE. OF. CONTENTS
Table of Contents I
Index of Authorities .:. -.i'.IIL IV :'.
Statement Regarding Oral Argumnets... 1
Statement of the Case 2
Statement of Procedural History 4
Ground for Review 4
Reason for Granting Review. 5
Statement of Facts 6
Arguments and Authorities 14
Ground For Review 14
Ground One: The Court of Appeals, Affirming
Judgment,Erred by misappling Article 38.072 of Texas Code
Of Criminal Procedure by allowing Missy Davison to be -
designated as the proper Outcry witness as applied by the
Trail Court in a Artical 38.072 Hearing 14
Ground Two: The Court of Appeals,By affirming
Judgment,Erred by finding Karrah Dickeson admissible
Testimony relevant where in Fact her testimony was inadmissable
Under Texas Rule of Evidence 401 and 403 was well as the
•Science Dickeson applied unrelied 21
. Ground Three: The Court Of Appeals,-By Affirming Judg
ment,Erred by concluding Eldred did not preserve the medical
exception argument argument for appellate review 28
INDEX OF AUTHORITIES
CASES
Brown V. State,189S.W.3d 382,385(Tex.App.Texarkana 2009).18,16,19
Broderrick V. State, .35 S.W.3d 67,73 (Tex.App.Texarkana 2000
pet, ref'd. 18,19.20
Brumit V. State,296 S.W.3d639 Tex.Crim.App.2006) 22,28
Cantu V. State,842 S.W.2d 667,682,(Tex.Crim.App(1992)....22
Daubert V. Merrell Dow Pharm.,INC.509,595 (1993) 26
Fuentes V. State,991 S .W. 2d (Tex .Crim .App. 1 999 ) 30
Garcia V. State/792 S.W.2d88,92(Tex.Crim.App.1990) 15,22
Ibarra V. State,11 S.W.3d 189,197(Tex.Crim.App.1999) 31
Jonson V. State,517 S.W-2d 170,173(Tex.Crim.App.1978 29
Kelly V. State,824 S.W.2d568,572(Tex.Crim.App.1992) 26
Josy V. State,97S.W.3d687,692(Tex.App.Texarkana 2003,nO pet)19
Lankston V. State,827,S-W.2d907,909(Tex.Crim.App(1992)...31
Love V. State,861S.W.2d 899,903(Tex,Crim,App.1993) 22
Lopez V. State,200 S.w.3d246,251(Tex,App,Houston[14 dist.]
2000 6, pet .fef 'd) .. 23
Masly V. State/983S.W.2d249,265(Tex.Crim.App.1998(op.on reh'g)
cert.denied 526 U.S.1070,199 S.Ct.1466,143 L. Ed.2d500(1999)33
Mendez V. State,138S.W.3d334,341(Tex.Crim.App.2004) 17
Hiiles V. State,61S.W.3d 682, 686 (Tex .App-Houston [Dist 1
2001, pet. ref-d) 29
Mirelse V,State,413S.W.3d 98,104(Tex.App.San Antonio 2013)19
i.'l
III
Moreno V. State,858 S.W.2d 453,463(Tex.Crim.App.1993) Cert,denied 510 U.S.
96,144 S.Ct 445,126 L.Ed378 (1993)..... 22
Mosley V. State 983 S.W.2d 249,265(Tex.Crim.App. 1998) 17
Rodgers V. State, 205 S.W.3d(Tex.Crim.App.2006) 26
Sulazar V. State,385 S.W.3d 144,153(Tex.Crim.App.2001) 18,22
Smith V. State, 131 S.W13D 921,928(Tex.App.-Eastland 2004 22
Tennison V. State,969 S.W.2d 578,580(Tex.App.Texarkana 1998 No.pet).-.23
Thomas V. State,1 S.W.3d 138.140=41(Tex.App.Texarkana 1999,pet.ref'd..18:.
Thomas V. State,408 S.W.3d 877,884(Tex.Crim.App.2013) 31
Tillman V. State 254 S.W.3d 439 25
Turro V. State,867 S.W.2 43,47(Tex.Crim.App.1993) 30
Vela V. State,209 S.W.3d 128(Tex.Crim.App. 2006) 26
' '' : STATUESg^A-CrTES
Articial 38.072 Of The Tex.Code.Crim.Pro 4,5,10,12,13,15,16,17,18,
19,20,33
RULE
Tex.R.Evid.401 14,21,25,33
Tex-R.Of Evid.403 10,14,21,23,25,26,27,33
Tex.R.of Evid(c) 26
Tex. R. Evid 702 27
Tex. R. Evid 703 • 27
Tex.R.App.Ann 66.3(a) 5
Tex.R.App.Ann 66.3(b) •• 5
Tex.R.App.Ann 66.3(c) 5
Tex.R.App.Ann 66.3(d) • 5-
Tex.R.App.Ann 66.3(f)
Tex.R.App.P 33.1(a) • 17,33
Tex.R.App.P 33,1 (a) (2) 17
IV
NO. PD-1212-15
ZACK G. ELDRED, JR § IN THE COURT OF
PETITIONER PRO-Se §
§ CRIMINAL APPEALS
Vs.
§
THEASTATE OF TEXAS § AUSTIN, TEXAS
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Now Comes Zack G. Eldred Jr, PETITIONER PRO-SE and
Defendant in the Trail Court, and Respectfully Submits This
His Petition For Discretionary Review Complaing Of The
Ruling And Opinion By The Court Of Appeals For The SIXTH
SUPREME JUDICIAL DISTRICT AT TEXARKANA, TEXAS And Would
Show The Court As Follows:
STATEMENT REGARDING ORAL ARGUMENT
The Petitioner Request Oral Argument As The Issuse Are
Complex And Oral Argument Would Be Helpful!In Desiding The
Merites Of The Case..
STATEMENT OF THE CASE
Appellant ZACK G. ELDRED,JY- Was indicted for Continu
ous Sexual Abuse of a Child Under 14 Years of Age, Alleged
to have been committed in Bowie County Texas , on or about
September 1,2010 Though May 9,2010, On September 22,2011 by
the Grand Jury of Bowie County Texas, In Cause No. 11F0762-
102 (CR.P.)
The Trial Court granted a Motion to Ammend the Indict
ment on June 21,2012 Which allegel the offence occurred
July 1/2010 Though December 7,2010. (CR.P. 81)..
Continouse Sexual Abuse of a Child Under 14 Years of
Age is an Aggravated First Degree Felony, Punishablr by not
less than Twenty-Five (25) years and not more than Ninety-
Nine (99) years or life in the Institutional Division of the
DEpartment of Criminal Justice, in addition a fine not to <,
exceed Ten-Thousand (10,000) dollares maybe imposed. Petitione
was tried before a jury in the 102nd District Court in Bowie
County Texas, On September 12th,2012 to determine his guilt.
The jury returned a guilty verdrict on September 12th,2012.
(R.R.Vol.#p.177,178). On September 13th 2012 The jury
returned a verdict on.punishment, Life in the Insitiutonal
Division of the Texas Department of Criminal Justice in •
Cause NO.11F0762-102, The judge then sentenced the Petitoner
to Life in the Institutional Divsion of the Texas Department
of Criminal Justice in Cause No.11FO762-102 for Continuouse
Sexual Abuse of A Child Under 14 Years of Age (R.R.Vol.5p.45)
upon conviction Mr.Eldred made it known to his attorney Jeff
Harrelson that he wanted to appeal, The Order appointing
appellate counsel Ms Kristian Young was not signed untill
October 25,2012. Kristian Young received the Oder appointing
her to repersent ZACK G ELDRED Jr on October 29,2012. Ms.
Young filed a notice a Appeal and a Motion for Exension to
File notice of Appeal on November 5,2012. However the Thirty
Day deadline to file Eldred's Notice of Appeal was October
11,2012. Therefore the Sixth Court of Appeals entered Judgment
•dismissing Zack G Eldred Jr Appeal for want of Jurisdiction.
Pursuant to Eldred's request appellate Counsel was appointing
although Fourteen (14) days after the deadline to file notice
of Appeal had passed and the order appointing appellant
counsel was not recevied untill Eighteen(18) days after the
deadline to file notice of Appeal had passed. Zack G Eldred,Jr
requested that a Habeas Corpus be filed according seeking an
Out-Of-Time Appeal. Case No. 11FO762-102-A on March 22,2013.
On July 8,2013 The Court of Criminal Appeal Granted Eldred
an Out-OF-Time Appeal WR-79,560-01. The Appellant filed his
brief in Cause Numbers 06-12-0079-CR and 06-1200180-CR with
the Three issues on appeal to the Court of Appeals for the
SIXTH SUPREME JUDICIAL DISTRICT AT TEXARKANA TEXAS. 6th ;•••
District Court of Appeals affirmed the conviction
STATEMENT OF PROCEDURAL HISTORY
The Sixth Supreme Judicial Court Of Appeals At Texarkana
Texas Affirmed the conviction by Opinion on March 5,2014 in
06-13-00128-CR. No Motion for rehearing was filed. Petitioner
was never notifyed by his Appellant Counsel of his rights to
file for hearhearing or that his Appeal had been Affirmed or
that Petioner had 30 days to file for Discretionary Review.
Petitioner did not file a secound application for Writ of
Habeas Corpus in Cause No. 11FO762-102-B contending his
appeal attorney did NOT notify him that his rights to file
for Discretionary Review and causing him to miss the 30 day
deadline. Petitioners Writ of Habeas Corpuse WR-79,560-03 -••••
was Granted by the Court of CRiminal Appeal:and its mandate
was issued on September 21,2015. On September 15,2015 Petition
For Discretionary Review. Court of Criminal Appeals Granted
his Motion for Extension of Time untill December 21.2015 to
file his Petition for Discretionary Review..
GROUNDS FOR REVIEW
Appellant's Petition For Discretionary Review Is Based On The
Following Ground(S)
Ground One; The Court of Appeals, By affirming judgment
ERRED by misappling Article 38.072 of the Texas Code.Of
Criminal Procedure by allowing Missy Davison to be designated
as the Outcry witnes,.as applied by the Trail Court Article
38'072 hear ing...
Ground two; The Court of Appeals, by Affirming Judgment
ERRED by finding Karrah Dickeson testimony relevant where in
fact her testimony was INADMISSIBLE Under Texas Rule of
Evidence 401 and 403 and the science Dickerson Applied is
unreliable Falling under Junk Science...
Ground three; The Court of Appeal, by affirming Judgment
Erred by concluding Eldred did not perserve the Medical
exception argument for appeallate review...
REASON FOR GRANTING REVIEW
(1). The Court of Appeals decision Conflicts with the
decision of another Court of Appeals on the same matter.Tex.
R.App.p.Ann. 66.3(a)
(2). The Court of Appeals decided an important question
of State or Federal Law in conflict with the Appicable
decisions of the Court of Criminal Appeals or the United State
Supreme Court. Tex-R-App.Ann. 66.3(b)
(3). The court of Appeals decision conflicts with an
applicable decision of the Court of Criminal Appeals on and
important question of State Laws Tex-R-App.P.66.3(c)
(4). The Court of Appeals decision appearsd to have
misconstrued a statute, Rule,Regulation,or Odinance. Tex-R.
App.P.66.3(d).
(5). The Court of Appeals decision depared so far from
the accepted and usual course of Judicial proceeding, or
sanctioned such a departure by a lower Court, as to call for^
the exercise of the Court of Criminal Appeals power of
Supervision, jrex..R.App.P.Ann. 66.3(f)...
STATEMENT OF FACTS
Prior the trail on merits, The Court held a Hearing out
side the presence of the Jury to hear defense Attorneys
Objection to the State calling of Missy Davison as their Out-.
cry witnes under Article 38.078. Defense contins that Missy
Davison is Not the first person over the age of 18 to which
the alleged victim made statements about the offence, as well
As well as at the time of the statement she was not under 14
she was over 14 at the time of the Declaration.(R.R.Vol3.P5)
The Court then called on the State (R.R.Vol 3.P5) Ms.
OGLESBY and had a discussion on the matter of who is a proper
Outcry witness. The Court the states: Well I Think I asked
you and my able assistant yesterdat to find me a line of
cases, (R.R.Vol 3-P6). The word that they seem to use in each
and everyone of those cases is the word Discernable, and I
think they used that basically in describing the HOW,WHEN and
Where that you just mentioned. And several of those cases did
touch on the fact that the Outcry witness was not the first
person that was told basically a general statement,but not
somthing that was In-Depth. And that the Court ask the State
Do you have your CAC interviewer here this morning, MS.CRISP?
MS Crisp, Judge, I DO. The Court do you want to put her on
the stanmd ? Ms CRISP; YES SIR. The State would call Missy
Davison.. (R.R.Vol 3.P7)./ MS.CRISP:: Just to speed this pro
cess up, JUDGE, It's my understanding that we're going to
designate her as an Outcry. Ofcourse, WE do indend to design
ate her as an expert. IF Mr. Harrelson has no onjection, Im
not going to prove her up as a forensic interviewer if we
just are going to talk about details of the ....MR HARRELSON;
I don't think that's necessary for the purpose of this
hearing, But at Trail, Obviously I DO.. (R.R-Vol3.P8). The
State called Missy Davison who testified under Direct Exam
ination as to being an employ with the Texarkana Children's
Advocacy Center and as to how things where done there. She
testified as to what the victim Holly Keliburg had told her
at the center. (R.R.Vol3.P8,9,10,11,12,13).. Cross-Examination
BY MR.HARRELSON: Ms. Davison so you were at least awear
generally of the allegations that Ms. Sandoval had made before
your interview ? YES, SIR, Did you look at any medical
records before you spoke with her ? (R.R.Vol.3P.14).. NO SIR.
(R.R.Vol.3.P15). RECROSS EXAMINATION BY Mr.HARRLSON; While
she is on the stand, YOUR HONOR, THIS may touch a different
issue.. But, Ms Davison, Did Ms. Sandoval make any allagtions
against other indiviluals other than Zack Eldred when she was
being interviewed by you ? SHE told me about two other incid
ents that happened when she was at a younger age in life. If
I recall She said they had already been investigated, So we
didn't go into detail over those. Okay. BUT she did specific
ally mention her dad and stepfather? YES SIR, (R.R.VOL3.pl7)
Witness Dismissed.. MS CRISP; JUDGE, MR- HARRELSON and I have
agreed, I think we have, the victim is here. I Do intend to
call her and ask her a couple of questions, and just my
questions, and just my questioning is going to be very brief;
basically who did you tell,WMat did you tell them. I'm not
sure, I think Mr Harrelson has some medical that you want
7
to go though ? MR. HARRELSON.; I was going to Ask Ms.Sandoval
about what prople at the hospital. Depending on the depth of
her Testimony, I may need to introduce it, and I may not. THE
COURT: When did you want to call her, Right Now? MS.CRISP:
YEAH,, THE COURT sure.. MS.CRISP: Carolyn Sandoval (R.R.Vol-
3.P 18(. THE STATE then called Carolyn Sandoval (victim) she
testified that she was fixing to be 16 in December and that
from July 1st,2010 to December 7th,2010 She was 13 during that
time frame. Carolyn testified that her Mom took her to the
hospital and asked you if you were pregnant. And you told
her you were having a sexual affair with Zack Eldred;
(R.R.Vol 3.P20) She testified she did not tell her Mon the
details of what happened between you and Mr.Eldred ? NO,MA'AM
Sge futher testified that she talked to some nurses at the
Hospital.Do you remember giving them any details about
everything that happened; No,Ma'am. When carolyn was ask, I'm
Telling you'I'm repersenting to you that this is a peice of
paper that came straight from your Medical records. Basically
here at the bottom of the page it says that you and Zack have
been having sex for months. Do you remember saying that? Yes
Ma'am. Do you remember telling the nurse that he used a ..<:;•:
condom? Yes,Ma'am. Beyond giving some of this,you tell any-!
body there that day all that sort of different, ways that you
and him had your relationship? Did you tell anybody the
details there at the Hospital, or did you give it to the CAC
person that interviewed you? The person who interviewed me.*
(R.R.Vol 3.p21,22).. ON CROSS-EXAMINATION by Carolyn testified
that she remembered what month and it was she went to the
Hospital maybe not exact day, But was around close to the
middle of May. And she did not have any problem with the day
May 9th. She testified to talking to the people at the Hosp
ital before talking to Missy Davison at CAC. (R.R.Vol3.p22).
Witness was Dismissed,STATE and DEFENCE jointly offered the
medical as a record exhibit,(R.R.Vol 3.p23).. The State
offered Missy Davison as the witness number One, and ask the
Court if he wanted her to proceed as if she is the Outcry..
THE COURT: I tell you what,Let's just ,Iunderstand the point
you're trying to make., she's a qualified outcry witness
and I'M going to rule that she is such..(R.R.Vol3.p25).-Mr.
HARRELSON just for purposes of the record, Your Honor, in
the Medical records as I've submitted as Defence Exhibit(l)
for this hearing, the Note from the nurses at the Hospital
states that she addmitted to regular intercourse with the
man, She says Zack had put his penis in her mouth..At least
from our position she did make a detailed statements to the
persons at the Hospital,And they would be the correct Outcry
witness.. But I understand the court's ruling.(R.R.Vol3.p26)
The Court futher stated that her testimony to an interviewer
would still be admissible and it appears to the Court in this
cawe that's what's happened. Did she give a general statement,
to Law Enforcement about what happened, YES, Did she make a
little bit more general statment to the nurse, Perhaps £q.
But I don't think she got down to, and the word they constaintly
use was Discernable.. And I don't think thats she made a state
ment that clear as to all the all allegation;, especially in
this case where it's a Continouse Sexual assult. Other than
iust elements of the Sexual Assault case,the State has other
thing to prove and I think her statement to the CAC intervi
ewer is by far the first clear Outcry that she made of all
the incident's,(R.R.Vol3.p27).. MR. HARRELSON Noted his
obiection and stated obviously I'll OBJECT at the time of the
testimony, THE COURT I'm sure vou want to carry that Objection
each and ever time,, (R.RVol3.p27).. BEFORE the jury Missy
Davison testified that Carolyn told her about the relation
ship with the defended Zack Eldred,, MR. HARRELSON Obiected
Under 38.072... The Court Overrule It,, (R.R.Vol3.p41)..
Ms.Davison stated she was told by the victim as far as the
alleqations,, That Zack Eldred put his dick in her provate
area. She said that happened several times. She said that he
rubbed on her chest and private area his hi hand he also sucked
on her chest and private area with his mouth. She said that
she also put her mouth on his dick and sucked his dick,,
MR.HARRELSON made a 403 Rule Obiection to the line of testimony
the COURT OVERRULED IT,. (R.R.Vol3.p42).The state called Kim
Basinqer from Christus St.Michel's Hospital who is a SANE
nurse she testified that the victim told her the defendant
iust rubbed on her and I had a stronq orgasm..(R.R.Vol3.p96^0
She said that after that he would used his finqures inside
her and told her it would be sore for a few days.After the
sorness went away they had sex..
10
He allwavs used a condom (R.R.Vol3p.96>99) Carla,RN qoes on
to state .that when she collected the saliva swabs, she ask
the patient if Zack put his penis into her mouth and she said
YES..(-R-R.Vol3.p97-.. MR. ELLIOTT: We'd pass the witness,
your Honor.. MR.HARRELSON: Your HONOR,, If we could approach
the bench Based on this witness's testimony and reading the
Medical records: that i had previsously sumitted in the Outcry
hearinq, I would makea motion for a Mistrail,, stateing that
Missy Davison never should have been allowed to testify as
the outcry witness as she did,, because obviously this is the
same information that was related thouqh Missy Davison,.
(R-R.Vol3P.98). THE Court OVERRULED him.. MR.HARRELSON then
ask for a cautionary instruction to the Jury not to listen
to Missy Davison has told the Court,again the Court Overruled
him. MR.HARRELSON states lastly I think that the testimony by
this witnes that the alleqed hymen was not intact opens the
door to prior sexual contacts under the State's in Limine.
(R-R.Vol3.p98). The Jury is qoing to be left with the thouqht
that Zack Eldred was the one that caused her hyman not to be
intact, where as she has had at least two prior molestions
by two different men.(R.R.Vol3.p99). Carolyn Sandova (victim)
testified before the Jury that her leqal pseuonym,is Holly
Keilburq but its ok to use her name Carolyn, She testified
about the truth and what is to lie. (R,R,Vol3.pl03).She
testified that she knew zack Eldred from her stepdad and
that at some point they become friends in 2010.She was 13 at
the time and she turned 14 in December (R.R.Vol3.pl04). she
11
testified she had a sexual relationship with him and at this
time she lived in DeKalb, Bowie County Texas (R.R.Vol3.pl05).
MR.HARRELSON Crossexamened Carolyn an she testified that she
was victimized by hy her father and her Stepfather(R.R.Vol3
.pl88)..x
MR.HARRELSON ask to remove the jury so he could examen
victim on the Dad and Stepfather, She testified both did
sexaul abused her and there was touchinq but no intercourse.
(R.R.Vol 3.p 120,121,122,) MR HARRELSON at least I would
perfer the hearinq we've outside the presence of the jury as
what I would have asked her in the presence of the iury..THE
COURT; Yeah,I'm not qoinq to let you qo there (R.R.Vol3.pl27).
Karrah Dicken was called to testifiy she was examined as to
her qualification and traininq and she was a director at the
Texarkana Children's Adocaey Center (R.R.Vol3.p 103). MR.
HARRELSON made an Obiection as to qeneral relevance and under
403, that this cumulative to the previous testimony.
(R.R.Vol 3.p313). MS.DICKESON testified to the process of
qroominq a child in a sexual offence and that there are six
staqed to the qroiominq proces.. MR.HARRELSON Objected under
qenarel relevance and cumulative Rule 403,, Court Overruled
him(R-R.Vol3.p.l32, MS DICKESON was allowedd to qo thouqh
the 6 staqes(R.R.Vol3.pl32,133,134) MS Dickeson testified
she did not know anythinq about the case and was ask to •
answer so ; y hypothetical situation questons,She talked about
the vulnerablity of the victim (R.R.Vol3.pl32) She testified
to all these hypothical perpetrations that have no scientific
12
Facts (R.R.Vol 3.pl36-140). MR HARRELSON on cross-Examination
of Ms Dickeson. Ms. Dickeson testified she had not talked to
Carolyn Sandoval the victim or any of the other witnesses
(R.R.Vol3.pl40 witness was dismissed...
MR.HARRELSON moved for a driected verdict of acquittal based
on insufficient evidence for the underlying offenses that
would constitute the elements of Continuous Sexual Abuse of
Child Under 14, as well as all lesser included offenses, as
well as the in question. I think there's insufficient evidence
to prove those elements and would ask the court for a verdict
of acquittal. The Court OVERRULE the motion(R.R.Vol3.pl43)..
On direct appeal, the Petitioner raised three(3) issues.
(1) That the trail cour Erred in admitting the testimony
of Davison as outcry witness testimony under Article 38.072
of the Texas Code of Criminal Procedure as not be the
proper outcry witness.
(2). The Trail Court erred in allowing Karrh Dickeson to
testifiy, her testimony was Inadmissible under Texas Rule of
Evidence 401and 403-.
(3) The Trail Court ERRED in not allowing testimony of the
victim of past sexual experiences to rebut medical evidence
presented by the State..
The Sixth Court of Appeals affirmed, finding Davison
was a Proper Outcry witness, A fourteen year old can make an
outcry. The Trail Court did not err in admitting Dickeson's
testimony, that Dickeson's testimony was relevant. The Prej
udicial Effects of Dickeson's testimony did not substantially
outweigh the Probative Value. Eldred failed to perserve error
13
related to exclusion of prior sexual abuse evidence the
error argued on appeal is net the same as the objection ruled
upon by the Trail Court,Elder's third point of error has not
been preserved for appellate review. This petition is due on
or before December 21,2015, Following a proper extension
granted by this Court pursuant to Tex-R.App.p.66.2(c)..
ARGUMENTS AND AUTHORITIES
Petitioner raises (3) three grounds of review for this
Court. That is, the Court of Appeal by missapping Article
38.072 of the Texas Code of Criminal Procedure bv all.cw.ina
Missv Davison to be desionated as the orooer outcrv witnes
as aDDlied bv the Trial Court in a Artical 38.072 Hearina
and the Trail Court ERRED by allowing the hearsay Testimony
of the victim though Missy Davison.,
THE TRAIL COURT ERRED IN ALLOWING, KARRAH DICKESON TO
TESTIFIY, Her testimony was inadmissible under Texas Rule of
Evidence 401 and 403..
The Trail Court ERRED in not allowing testimony of the
victim of past sexual experiences to rebut the medical evidence
presented by the state..
GROUND ONE RESTATED
The forensic interviewer was not the proper outcry
witness pursuant to Texas Code of Criminal Procedure 38.072,
and the Trail Court ERED by allowinq the hearsay testimony
of the victim thouqh Missy Davison
14
.^_-__j§.M^?MP_-.°XJ?.?_y_L?w.
A Trail Court has broad discretion to determine the
admissibiliv of outcry evidence,an&Vwe-will riot disturb its deter
mination absent a showinq in the record that the Trail Court clealy c
abused i t ' s discretion, Garcia V. State 792 S.W. 2d@ 88,92(Tex-Crim.App.
1990) : Smith V. State 131 S.W. 3d@ 921,928 (Tex.App-Eastland 2004)...
« I
B. LAW ON OUTCRY WITNESS TESTIMONY
"Sec2(a) This article applies only to Statements that descrbe the
alleged offence that:
(1) were made by the child or person with a disability
against whom the offense was allegedly committed;and
(2). were made to the first persom, 18 years' of age or
older ,other than the defendant, to whom the child or person
with a Disability made a statement about the offense.
(a) A statement that meet the requirement of subsection
(a) is not inadmissiable because of the hearsay rule if:
(1) on or before the 14th day before the date the prot-
ceeding begins, the party intending to offer the statement;
(a) notifies the aderse party of its intention to
dlo so;
(B) Provides the adverse party with the name of the
witness though whom it intends to offer the statement:and
(C) Provides the aderse party with a written summary
of the statement-
(2). The trail court finds,in a hearing conducted out-
15
outside the presence of the jury,that the statement is reli
able based on the time, content, and circumstance of the
statement; and
(3) The child or person with a disability testifies
or is available to testify at the proceding in Court or in
any other mannar provided by Law.
Article 38.072, Texas Code of Criminal Procedure.
The Outcry witness is the "First" person,18 years or
older, to whom the child makes a statement that is some Dis
cernible manner describes the alleged offencse, Brown V. State
189 S.W. 3D@382,385 (Tex-App.-Texarkana 2006) ,Brown contends
that the Trail Court Erred in allowinq Smedly to testify about
her interview. He asserts Smedly was not the proper outcry
witness"under Article 38.072 of the Texas Code of Criminal
Procedure.
The only issue at the hearing was if Missy Davison vj, t<
was the proper outcry witness and what methods she used in
talking to the Childs Victim as a forensic interviewer..
The only issue at the hearsay was if Missy Davison was
the proper Outcry witness and what metheds she used in ;
talking to the child victim as a Forensic interview...
C ANALYISI AT THE TRAIL LEVEL
The Yrail Court Erred in Allowing the forensic inter
viewer Missy Davison to testify as the Outcry witness as she
was not the proper Outcry witness pursuant to Texas Code of
16
Criminal Procedure 38.072 , and the Trial Court Erred by
allowing the Hearsay testimony of the victim through Missy
Davison..
To perserve a complaint for appellate review, a party
must generally have presented to the Trail Court a timely
request, ob-jection, or motion that State the specific grounds
for the desired ruling, if they are not apparent from the
context of the request, objection, or motion, See Tex.r.App.
-P.33.1(a); Mosley V. State,983 S.W. 2d@249,265 (Tex.Crim.
App.1998) (op.on reh 'g ). ;Court denied . . 526 U.S. 1070,119 S,
CT,1466,143 L.Ed. 2d 500(1999). Further, The Trail Court must
have ruled on the request, Objection,or motion, either
expressly or Implcitly, or the complaining party must have
Objected to the trail Courts refusal to Rule Tex.R.APP.P.-
33.1(a)(2); Mendez V. State 138 S.W.3d@ 334, 341 (Tex.Crim-
App. 2004)..
Appellant's Trail Counsel, prior to testimony, stated
"The State filed a notice of intent to call Missy Davison •'.
as their Outcry witness under 38.072, and it is our poition
,that under the ststute she does not qualify as the outcry
witness. We have really one main issue, is that Missy
Davison is not the frist person over the age 18 to which the
alleged victim made ststements about the offense,as well as
at the time of the statement she was not under!14 she was
over 14 at the time of the declaration (R.R.Vol3 ,©5). It was
uncontested that Carolyn Sandoval made statement about her
alleged sexual activity toher Mother,and more specifically
17
at the Hospital. The state contended that the initial state
ment by the victim to her Mother,and to nurses or other:: •
individual at the Hosiptal was only a very general allegation
that she had sexual activity with Eldred.
In Brown V. State this Court Concluded that a "State
ment about the offense" more than a general allusion to Sex
ual abuse, it must describe the aleeged offense in some
discernible manner. 189 S.W. 3D@ 382 (Tex.App. Texarkana 2006
pet.ref'd) (citing Thomas V. State,1 S.W- 3d@ 138,140-41
(Tex.App.-Texarkana 1999,pet.ref 'd). . However, the proper .
outcry witness is not to be determind by comparing determined
by comparing statements the child gave to different and then
deciding which person received the most detailed statement
about the offense.. Brown V. State,189 S.W. 3d@382 (Tex.App-
Texarkana 2006, pet,ref'd (citing Broderrick V. State 35
S.W.3d@67,73 (Tex.App.-Texarkana 2000, pet,ref'd...
Davison was not the first adult to whom the victem made
an outcry ststement of the offense, Accordingly, Davison's
testimony as to the victim's hearsay ststement should have
been excluded
Tex.Code.Crim.poc art 38.072. Thus, when a defendant
is charged with certin offenses against a child under the age
of 14, Art. 38.072 allows into evidence the complainant's
out-of-court statement so long as that statment is a decri-
ption of the offense and is offered into evidence by the
complainant told the offense. Sanchz V. State PD-0086-11 -•••
(Tex.Crim.App. Dec.14,2011)
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D.ANALYSIS FOR GROUND ONE
At The Appellate Level
The Court of Appeal anaysis compriesd (3) three page
of the Court opinion. In actually adderssing why it would
not follow the holding in the case being cited by Petitioner
as a reason why the trail court did not abuse it's discretion
in finding the Stste's proposed outcry witness testimony
addmissiable as in Tex .Code. Crim. Proc. act. 381072 an the ..»
Court used the reasoning that it, The Court has observed that
"an outcry witness is not person-specifi, but event-specific
Brodcrick 35 S.W.#d@73.. Mireles V. State,413 S.W.3d §98,104
(Tex.App.-San Antoin 2013,pet.ref'd; Josey 97S.W.3d@687,692-
(Tex.App-Texarkana 2003,no pet),, The Stste Examened the
victim through Direct Testimony as shown in the Sixth Appeal-
Court opinion, page two of the opinion during the 38.072
hearing by the State: When amanda nad [DR. FORENBERY]
inrerviewed PT alone admitted to regular intercourse with the
man. When it first happened he just rubbed on me and I had
a strong Orgasm" She said that after that he used his
fingers inside of her and told her she woulf be sore for a
few day..We/the appeal Court stated review a Trail Courts
decision to admit testimony form an outcry witness for an
ajbu|§ ei H§cretion.B&om<^¥\i StatemlfiQ Sl.'Wx 3d@c 382:,;385::,i(.Te.x.
App-Texarkana 2006 pet.ref'd). But the Appeal Court over look
the refrences and exhibts of the medical records which clearly
shows that the proper outcry witness where the nurses at the
19
Hospital, And then the Court equivocly iqnored Broderick 35S.Wi
3d@73 its is well established that the proper outcry witness
is not to be determined by comparing the statements the child
gave to different indivduals and then decide which person
received, the most detailed statement about the offence. But
this is exactly what the Trail Court and the Court of Court
of appeal did, bottom of page three of the Sixth Court of
appeals opinion.. The Court even states the record in this
case does contain some rebuttal evidence relating to the
propriety of Davison as ab outcry witness. The record -
established that Keilburg talked sbout the abuse to numerous
adults prior to being interviewed by Davison on May 17,2011.
the medicle records from her May 9 hospital visit contain
several quotes attributed to Keilbury concerning abous,and
these notes were entered by "four" different hospital
employewt- Powell ,Fortenberry , Amanda Kelly,and Matthew Hull,
odia russette. The Appeals Court on page 4 of their opnion
states clearly second paragraph, nonetheless, the medical
records alone are sufficient to rebut the Stat'e evidence
that Davison was the outcry witness concerning three events-
The two initial events of abuse and the abuse that occurred
the night before the May 9th hospital visit. The Ciurt
clearly state Powell was the proper outcry witness for those
three events, So the Sixth Court Of Appeal know that Missy
Davison was not the first person over 18 that the victim made
her first outcry to as presribed by Art 38072 Tex.Code.
Crim. Proc.the appeal Court then state Eldred objected Very
Broadly to Davison's qualifiction as an outcry witness generally
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Eldred did not object on the basis that Davison did not
qualify as the outcry witness for those specifid event,and he
has raised no issue on this basis on Appeal.The Court futher
stated because Davison was a proper outcry witness for some
of the events of sexual abuse, the Trial Court did not abous
its dicretion in admitting her testimony and in overruleing
Eldred's overly-broad objections.
For this reason the Sixth Court Of Appeals overuled Eldred's
first point of Error-
GROUND TWO RESTATED
Ground two, The Court Of Appeals, By Affirming Judgement
Erred by, finding Karrah Dickeson's testimony relevant and
addmissible where her testimony was inadmissiable under Texas
Rule Of Evidence 401, and 403, The science Dickeson applied
is unreliable falling under "Junk Science"..
Karrah Dickeson's testimony was not relevent to where
Carolyn Sandoval was sexually assaulted by Appellant, Ms.
Dickeson did not interview the victim nodid she know anything
about Appellant's case any relevance the testimony of Karrah
Dickeson had was substantially by the unfair prejudice to the
jury by allowing her testify as to the process of "Grooming"
child victimes in sexual abuse by perpetrators.
Ms. Dickeson's testimony only encouraged the jury to convict
Appellant of continuous sexual abouse of a child, although
Ms. Dickeson had no knowlege of the victim or Appellant..
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