# Eldred, Zack Jr. > Court of Appeals of Texas · December 28, 2015 URL: https://www.frixlaw.com/law-library/cases/4075615 ## Case - **Court:** Court of Appeals of Texas - **Decided:** December 28, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4075615 ## Opinion text 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) 18 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 20 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.. 21 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4075615. Public record. Not legal advice.