                              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
