Keeter v. State

43 S.W.3d 667, 2001 WL 333121
CourtCourt of Appeals of Texas
DecidedMay 2, 2001
Docket10-00-169-CR
StatusPublished
Cited by14 cases

This text of 43 S.W.3d 667 (Keeter v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keeter v. State, 43 S.W.3d 667, 2001 WL 333121 (Tex. Ct. App. 2001).

Opinions

OPINION

VANCE, Justice.

Jackie Russell Keeter was convicted of indecency with an eight-year-old child. The primary evidence against him was the trial testimony of the child and an outcry [669]*669statement she made to a woman she had just met. Keeter was sentenced to life.

Shortly after trial, the child recanted. Also, the child’s father and stepmother disclosed they had both told the prosecutor before trial they did not believe the child was telling the truth. After a hearing, the trial court denied a new trial, finding the recantation was not credible.

Finding the trial court abused its discretion in denying the motion for new trial, we will reverse the judgment and remand the cause.

BACKGROUND

For seven years Keeter had been living with Eva. In May of 1998 when the alleged crime occurred, Keeter, age twenty-nine, and Eva lived in a small two-bedroom house with Keeter’s father (Jack), Eva’s eight-year-old daughter J.K. (the alleged victim), the three small children of Eva and Keeter, ages three to a newborn, and a live-in babysitter, Vennie. J.K. had lived with Keeter and Eva for three years. J.K’s biological father, Travis, lived in another county with his fiancee, Rhonda.

The following facts are undisputed. Travis and Rhonda arrived unannounced at Keeter’s home on May 21, 1998, and asked if J.K. could come to their home for a summer visit. Travis had not seen J.K. in two years, and Rhonda had never met J.K. Eva was not home, but Keeter let Travis and Rhonda take J.K. for something to eat. At the restaurant, while Travis was getting the food, J.K. told Rhonda that Keeter had been molesting her, and the latest incident had occurred the day before, ie., May 20.1 Rhonda told Travis, and the three went to Children’s Protective Services (CPS), which brought in the Sheriffs Department. J.K. and Rhonda were interviewed by Sheriffs Investigator Buster and CPS, and J.K. continued to accuse Keeter. J.K. was taken into custody .by CPS, which turned her over to Travis and Rhonda with whom she lived for the next two years while the trial was pending.

Keeter was indicted about a month after the events of May 21 on two counts, aggravated sexual assault and indecency with a child, both offenses pertaining to the alleged molestation on May 20. The indictment also contained an enhancement paragraph because Keeter had been convicted in 1988 of indecency with a child. This increased the punishment range to five to ninety-nine years, or life.

THE TRIAL

The trial lasted one day, April 10, 2000. The testimony for the guilt-innocence phase occupies seventy-five pages of the record.

Guilt-Innocence

The State called J.K., Rhonda, and Investigator Buster. J.K., by then age ten, testified that Keeter had been molesting her for a long time, “almost every day,” although she could not remember when it started. Among other things, she accused Keeter of “put[ting] his private into my private,” although she said she never saw his private parts. She “screamed” during the incidents of molestation because it hurt. Keeter warned her not to tell Eva, and she obeyed because she was afraid of him. The incidents would usually occur in the afternoons. She would be alone in the house with Keeter; Eva would be job hunting, the other children would be in day-care, and Keeter would send anyone [670]*670else out on errands. The last incident occurred on the day before Travis and Rhonda came, which would make the most recent molestation May 20, the day of the offenses alleged in the indictment. J.K. testified this molestation occurred in the morning.

Rhonda testified about the events of May 21, 1998. She did not know J.K. until this visit. She described the outcry statement at the restaurant, and testified that J.K. “said he touched her, that he made her touch him.”

Investigator Buster testified he interviewed J.K. and Rhonda on May 21. CPS representatives were also present and made a videotape. The videotape was not introduced at trial or its contents described. Buster took J.K. to the hospital for an examination. The results of the examination were not introduced at trial, and no medical personnel testified. Buster admitted on cross-examination he learned during his investigation that J.K. “did not recognize male genitalia.” Finally, during a series of two questions by the State, Buster testified:

Q: [Tjwelve days or thirteen days it took you to locate [Keeter]?
A: Something another like that, yes, sir.
Q: Okay. Where did your investigation go from there?
A: Well, I offered Mr. Keeter a polygraph. He said he would take a polygraph — 2
[[Image here]]
Q: Then after — without going into what you just went into, what — what happened after that?
A: Mr. Keeter was taken into federal custody—

Timely objections to these two highly prejudicial statements were sustained, but a motion for a mistrial was denied.3

The defense called Eva, Vennie, and Jack, Keeter’s father. Eva testified about May 20, the date of the offenses in the indictment, which J.K. said occurred in the morning. Eva said May 20 was the last day of school, and J.K. had a half-day of school in the morning. In the afternoon, Eva took J.K. to a party at a playmate’s house. Keeter was home that day, sick in bed. Eva also described the living conditions in the house. There were two bedrooms, one occupied by Eva and Keeter, and the other by Jack. Vennie-the live-in babysitter-and the four children slept in the living room. When Eva was not at home, Vennie kept the children; Eva did not have the children in day-care. Eva testified Keeter worked from 6 a.m. to sometimes 6 to 8 p.m. He had been working these hours for about a year. She said J.K. and Keeter got along well, and J.K. was not afraid of Keeter. Also, Eva and J.K. got along well, and J.K. never mentioned to Eva any problems concerning Keeter.

Vennie, age thirty-three, was the live-in babysitter. Because she had no friends in town and her relatives lived elsewhere, she was at the house with the children practically twenty-four hours a day, seven days a week. She confirmed that J.K. was in school the morning of May 20, and Keeter was at home, sick. Vennie testified that Keeter usually worked until 7 or 8 p.m. He never kept the children, even on weekends; she did. Only she and Eva disciplined the children. She testified that J.K. had a good "relationship with Keeter and was not afraid of him. Vennie believed [671]*671J.K. would have told her about any problem with Keeter.

Jack also confirmed that J.K. went to school the morning of the 20th. She got out at noon and went to a party at a friend’s. Keeter was at home, sick; Jack was off work and was also at home. He stated that J.K. confided her problems in him, was not afraid of Keeter, and was never disciplined by Keeter. He confirmed that Keeter worked 6 a.m. to 6 p.m., five to six days per week.

The jury found Keeter guilty, but only of the offense of indecency with a child. Although it was late in the day, without a break, the trial immediately proceeded to the punishment phase.

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Keeter, Jackie
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Bluebook (online)
43 S.W.3d 667, 2001 WL 333121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keeter-v-state-texapp-2001.