Keller v. State

• Decision Date: 12 June 2020
• Docket Number: No. 05-18-00778-CR,05-18-00778-CR
• Citation: Keller v. State, 604 S.W.3d 214 (Tex. App. 2020)
• Parties: Bradley Allen KELLER, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

604 S.W.3d 214

Bradley Allen KELLER, Appellant

v.The STATE of Texas, Appellee

No. 05-18-00778-CR

Court of Appeals of Texas, Dallas.

Opinion Filed June 12, 2020

Discretionary Review Refused November 11, 2020

Laura Anne Coats, Houston, John Creuzot, Dallas, for Appellee.

Allan Fishburn, Dallas, for Appellant.

Before Justices Bridges, Molberg, and Partida-Kipness

Opinion by Justice Partida-Kipness

A jury convicted appellant Bradley Allen Keller of aggravated sexual assault of a child under fourteen years of age and sentenced him to seventy-five years' confinement. TEX. PENAL CODE § 22.021(a)(2)(b). The victim, L.K., was five years old at the time of the offense. In five issues, Keller contends: (1) the trial court erred by admitting extraneous offense evidence pursuant to article 38.37 of the code of criminal procedure, (2) the trial court erred by failing to exclude the extraneous offense evidence on Rule 403 grounds, (3) the trial court erred by failing to limit the definitions of the culpable mental states of "intentionally" and "knowingly" in the jury charge to the nature of Keller's conduct, (4) the trial court erred by including a definition of "reasonable doubt" in the jury charge, and (5) the trial court lacked jurisdiction to hear the case because the case was not properly transferred to the court's docket. We overrule Keller's issues and affirm the trial court's judgment.

BACKGROUND

L.K. is Keller's daughter. She was five years old when Keller committed the offense and was seven years old at the time of trial. Keller met L.K.'s mother, P.K., while he was vacationing in Hong Kong in 2007. Keller and P.K. began dating and married in March 2010. L.K. was born in Hong Kong in October 2010.

P.K. testified that Keller watched pornographic movies at home every day, and L.K. may have seen some of the movies while Keller was watching. P.K. also told the jury that Keller was interested in anal sex and wanted to have it frequently with her. She remembered L.K. saw Keller and P.K. having sex on one occasion. L.K. confirmed at trial that one time when they were living in Hong Kong she saw her dad trying "to stick his private in her [mom's] butt." L.K. also testified she saw her dad watching videos that were "gross" where "people were naked" and "people were trying to stick their private in other people's butts."

When L.K. was three years old, P.K. was in the bathroom with L.K. because she was potty training L.K. P.K. could see on L.K.'s face that she was having a difficult time urinating, and L.K. told her that it was very painful because her dad had put something inside where she urinates. P.K. testified that L.K. described Keller putting his penis inside of where she urinates, referring to her vagina. L.K. testified that she remembered Keller trying to put a reddish-pink toy that looked like a private part into her butt when they were in Hong Kong and that she told her mother about the toy. P.K. called Keller and asked him if this was true. Keller denied it. P.K. waited a day to call the police. But the Hong Kong police did not investigate and did not talk to L.K.

Keller, P.K., and L.K. moved to Texas in April 2015 when P.K. was pregnant with her and Keller's son. Keller and P.K. broke up approximately five months later. Their son, B.K., was born October 15, 2015. By the time B.K. was born, Keller no longer lived with P.K. and L.K. But Keller spent the night at P.K.'s home two or three nights a week.

The event in question occurred the evening of March 27, 2016 in P.K.'s Dallas home. P.K., L.K., and B.K. were sleeping in P.K.'s bedroom. Keller was sleeping on the couch in the living room. L.K. woke up hungry and asked P.K. to get up and cook something for her, but P.K. refused. According to L.K., she then went to the living room and ate leftover dumplings. L.K. was tired after she finished eating, so she lay down on the couch. L.K. testified that Keller came over to the couch and pulled down her pants and underwear. Keller pulled down his pants and L.K. saw his penis, which she called "his private." L.K. testified that Keller put a "kind of gel" on her butt and then tried to put his private in her butt. The gel got on the shirt L.K. was wearing.

L.K. was able to slip through Keller's legs to stop the assault and went to P.K. in the bedroom. L.K. told P.K. what happened. L.K. testified she told her mother that her dad tried to stick his private in her butt and her mother kept asking her if it really happened. P.K. testified that L.K. woke her up around 11:00 p.m. or midnight and told her that her dad had put the soft gel in the back where she goes "poo-poo" and then he put his penis "where you have bowel movement." According to P.K., L.K. told her that night that Keller put his penis "a little bit in" her rectum. L.K. also showed P.K. that her clothes were wet and told P.K. that "father after finish make my clothes dirty, so he took to wash." P.K. did not call the police that night but did talk to Keller. He denied the accusation and refused to leave that night.

A couple of days later, Keller showed up at P.K.'s apartment drunk and banged loudly on the door. P.K. was scared, so she called the police. She told L.K. to tell the police what Keller had done to her in the past. L.K. told the police about the assault from a few days prior and gave them the shirt with the gel on it. L.K. was taken to the Children's Advocacy Center for a forensic interview. The jury was shown the forensic interview at trial. The interview began at 12:10 a.m. on March 31, 2016. L.K. was five years old at the time of the interview and the incident in question. She told the interviewer that her dad always watches porn when he comes to visit her at home. L.K. went on to describe the incident from a few days prior to the interview. She told the interviewer that her dad pulled her pants and underwear down when she was on the couch after she finished eating and "tried to put his boy part in" her part, where "we poop in. The butt." At other times in the interview, L.K. referred to Keller's penis as his "private" or his "private part." When asked what she meant by "his boy part" and his "private" or his "private part," L.K. said she meant the part he uses to make babies and she also circled the penis on a diagram of a boy's body.

L.K. told the interviewer that when he tried the first time it "didn't work," so he got some jelly. She tried to sit criss cross on the couch but he straightened her legs and turned her around and bent her over the couch. Keller put the jelly on all of her private parts, which she said meant "the pussy and the butt." L.K. said the jelly "opened her butt up a little bit" and also got on her clothes. She also told the interviewer that Keller's private part was "excited." Then, he put his private part a little bit in her butt, and her butt "felt angry" when he did that. L.K. told the interviewer she was able to slide down through Keller's legs to get away from him and go to her mother. L.K. told the interviewer that Keller was angry about that because she wouldn't let him "do it." L.K. also told the interviewer that Keller did that to her a couple of times when they lived in Hong Kong, but this was the only time he did it in Dallas.

Some of L.K.'s statements to the interviewer seemed confused or inconsistent. For example, at one point she stated that she did not feel anything from Keller's body on the hole of her butt because she only felt the jelly. But she also stated that she could feel his penis on her butt. After the interview, L.K. returned home with her mother.

The police arrested and interviewed Keller that evening. After being given his Miranda rights, Keller agreed to speak to the detective without counsel present. Keller denied trying to put his penis in L.K.'s butt. He told the detective that on the evening in question, L.K. woke up hungry, so he made her some food. According to Keller, while L.K. was eating, he left the room to have sex with P.K. in the bedroom. When they finished, he returned to the living room and saw that L.K. had spilled noodles and soup on her clothes. Keller told the detective he took L.K. to the bathroom to clean her clothes and then took her back to her mother in the bedroom. Keller said he then went outside to smoke a cigarette and when he came back inside, P.K. came out of the bedroom and told him that L.K. had just told her that Keller had tried to stick his penis in her butt. Keller was surprised by this and denied that it happened. He told the detective he has no idea why L.K. would say such a thing, but he thinks she knew he went to have sex with P.K. and became jealous. He insisted his daughter was not telling the truth about what happened.

Keller also told the detective that L.K. would watch movies on his computer and if he logged her into the computer using his password, she would sometimes access and watch pornography on the computer. Keller also admitted that he would watch pornography on his computer when L.K. was in the house, but he would turn it off if she came in the room while he was watching a video. He also told the detective that he and P.K. talked about sex in front of L.K. Keller did not seem concerned that his five-year-old daughter watched pornographic videos or heard him talk about sex.

Child Protective Services (CPS) was brought into the case after the forensic interview of L.K. The CPS Investigator assigned to the case spoke to L.K. and P.K. at their home. When it was discovered that P.K. had known about the sexual abuse and had not done anything about it, the children were removed from the home and placed into foster care.

A couple of days after L.K. entered foster care, her foster mother took her for a sexual assault examination. L.K. became upset during the rectal examination. The foster mother reported during the examination that L.K. told her that her mother did not believe her about the sexual abuse and she wanted to put jelly in her pants so that her mother would believe...