Keeter v. State

• Decision Date: 01 May 2002
• Docket Number: No. 1057-01.,1057-01.
• Citation: 74 S.W.3d 31
• Parties: Jackie Russell KEETER, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

74 S.W.3d 31

Jackie Russell KEETER, Appellant, v. The STATE of Texas.

No. 1057-01.

Court of Criminal Appeals of Texas.

May 1, 2002.

As Corrected May 6, 2002.

Sandy S. Gately, Gatesville, for Appellant.

Jeffrey L. Van Horn, First Asst. St. Atty., Matthew Paul, State's Atty., Austin, for State

OPINION

KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined.

We granted the State's petition to determine whether the Court of Appeals erred in failing to give proper deference to the trial court's ruling. We will reverse.

A. BACKGROUND

1. Trial

In May 1998, appellant lived with Eva and her eight-year-old daughter, J.K. On May 21st, the girl's father (Travis) and his fiancee (Rhonda) arrived unannounced and asked that the child be permitted to come to their home for a summer visit. Eva was not home at the time, but appellant allowed Travis and Rhonda to take J.K. out to eat. At the restaurant, J.K. told Rhonda that appellant had been molesting her and had molested her the day before. As a result of this outcry, Children's Protective Services (CPS) and the sheriff's department were called, and ultimately, appellant was indicted for indecency with a child.

At trial, J.K. testified that appellant had been molesting her a long time, "almost every day," although she did not remember when it started. She said, among other things, that appellant "put his private into my private," but she also said that she never saw his private parts. J.K. further testified that these incidents usually occurred during the afternoon, that she screamed during the incidents because they were painful, that appellant warned her not to tell Eva and J.K obeyed because she was afraid of him, and that the last incident occurred in the morning the day before Travis and Rhonda arrived.

Rhonda testified that she did not know J.K until that visit. Rhonda described the outcry statement at the restaurant. Sheriff's Investigator Buster testified that he interviewed Rhonda and J.K. on May 21st, but he did not describe the contents of the interview. During cross-examination he admitted that J.K. did not recognize male genitalia.

The defense called the child's mother (Eva), her babysitter (Vennie), and appellant's father (Jack). Eva testified that May 20th was the last day of school, that J.K. had a half-day of school in the morning, and that she took J.K. to a party at a playmate's house in the afternoon. She further testified that appellant was home that day, sick in bed. Eva described her house as having two bedrooms, one occupied by Eva and appellant, and the other occupied by appellant's father. Vennie and four children slept in the living room. Eva also testified that appellant worked from 6:00 a.m. to sometimes 6:00 to 8:00 p.m. and had been working those hours for about a year. Finally, Eva testified that J.K. and appellant got along well, that J.K. was not afraid of appellant, that Eva and J.K. got along well, and that J.K. never mentioned any problems concerning appellant.

Vennie confirmed that J.K. was in school the morning of the 20th and that appellant was home sick. She testified that appellant usually worked until 7:00 or 8:00 p.m. and that he never kept the children, even on weekends. She also testified that J.K. had a good relationship with appellant and was not afraid of him. Finally, Vennie testified that J.K. would have told her about any problems with appellant.

Jack testified that J.K. went to school the morning of the 20th and then went to a party at a friend's. He confirmed that appellant was home, sick. He stated that J.K. confided in him about her problems and that she was not afraid of appellant. Finally, he testified that appellant worked from 6:00 a.m. to 6:00 p.m., five to six days per week.

A jury convicted appellant and sentenced him to life imprisonment.¹

2. Motion for New Trial

Shortly after trial, the child recanted. A motion for new trial was filed and the trial court conducted a hearing about the recantation. At the hearing, Eva testified that Travis brought J.K back to her because "he was tired of her lying." When Eva came home from work the day J.K. arrived, J.K. asked to talk to her. J.K told Eva, "I lied.... I wanted to go stay with daddy and you wouldn't let me." On cross-examination, Eva denied telling J.K. that Eva could not make it financially without appellant.

On direct examination, Travis testified that he had told the prosecutor three or four months before trial, in a cell phone call, that he did not believe J.K. On cross-examination, however, he testified that he had told the prosecutor earlier that he did believe J.K. Through subsequent questioning by the prosecutor, Travis admitted that he had told the prosecutor in January, a month before trial, that he believed J.K.'s story. Travis then maintained that the cell phone call must have occurred later than he thought. Travis also testified that J.K. accused Jack during trial of making some threatening comments to J.K., and he testified that Jack harassed him—trying to get Travis to pressure J.K. into changing her story. And he testified that J.K. was not given any notice that he was coming to visit her. On redirect, Travis testified that, earlier in 1998, he had written a letter to Eva asking her to allow him to take J.K. for the summer.

Rhonda testified that she never believed J.K.'s accusations: she "kept changing her story one too many times.... She will say he did it, then if we asked—talked about it, she'd say he didn't do it or I never said that. She just wasn't consistent with her story." Rhonda admitted that she had a poor relationship with J.K.: "I was not going to tolerate her lying, being dishonest, being disrespectful to other people.... I told [Travis] he either gets her under control to where she minds and listens, not throw fits, and hits me, be mean to me or she can go back home to her mother." When asked about her experience with J.K., Rhonda indicated that J.K. "lies a lot."

J.K. testified that she made up the accusations because she wanted to live with her father. She said that her mother told her she could not go to her father's for the summer, and she said that the idea for her story came from things her eleven-year-old best friend had told her. J.K. denied telling Investigator Buster that she changed her story because Eva said she could not make a living without appellant. J.K. claimed she told Buster "that my mom said that she needed help and I had to help her out," with, for example, washing dishes or cleaning her room. J.K also denied telling Buster that her three-year-old stepsister suggested the plan about accusing appellant of something. J.K. claimed her stepsister told her that she "could go with [Travis] if something happened." J.K. did admit that Jack had threatened at trial to take her father away and was mean to her until after she changed her story.

Investigator Buster and CPS worker Johnson testified that they jointly conducted an interview with J.K. prior to the hearing on the motion for new trial. According to both of them, J.K. said: (1) that she changed her story because Eva was having a hard time making a living without appellant and she missed him, and (2) her three-year-old stepsister suggested to her the plan to accuse appellant.

In a letter order, the trial court denied the motion for new trial and indicated that he did not believe the recantation testimony:

I don't find the new testimony that recants the trial testimony to be credible. To do so would require me to believe that this young child made up her testimony because her (younger!!!) sister told her she would have to make something up about the defendant so she could get to go and spend the summer with her dad, when she did not previously know her dad was coming and when she had not seen him in two years.

3. Court of Appeals Opinion

Relying on past precedent, the Court of Appeals set forth a four part test for granting a new trial based upon newly-discovered evidence:

(1) the newly-discovered evidence was unknown to the movant at the time of trial;

(2) the movant's failure to discover the evidence was not due to his want of diligence;

(3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and

(4) the evidence is probably true and would probably bring about a different result in another trial.²

According to the Court of Appeals, a recantation is considered to be "probably true" unless "the trial court finds the recantation to not be credible based on the trial evidence and the evidence at a hearing on the motion [for new trial]."³

After analyzing several cases, the Court of Appeals concluded that the trial court abused its discretion in finding that the recantation was not credible.⁴ The court first found that the trial court had misrepresented the facts.⁵ Although the trial court had characterized the father's visit as "unexpected," the Court of Appeals observed that Travis had previously written Eva about having J.K. visit, that J.K. discussed the matter with Eva, and that Eva said "no."⁶ The Court of Appeals also disbelieved the evidence that J.K. attributed the idea of accusing appellant to her three-year-old stepsister:

As for whose idea it was to accuse Keeter of something, J.K. testified she got ideas from listening to her eleven-year-old friend, E., who had witnessed firsthand the physical abuse of her mother. Investigator Buster and the CPS worker attempted to contradict that, and claimed J.K. told them during an interview at her school that J.K.'s three-year-old stepsister came up with the suggestion to accuse Keeter of something. However, Buster admitted J.K. said something about an older girl telling J.K. "what grown people do or something to that effect." J.K. also denied she got the idea from her stepsister. All her stepsister said was she "could go with [Travis] if something happened."⁷

The Court of Appeals also...