Zack Eldred, Jr. v. State
431 S.W.3d 177
| Tex. App. | 2014Background
- Defendant Zack Eldred was convicted of continuous sexual abuse of a child under 14 based on allegations by Holly Keilburg that multiple discrete sexual acts occurred when she was 13; jury assessed life imprisonment.
- Victim disclosed the abuse to her mother, medical personnel at a hospital visit on May 9, 2011, and was later interviewed by Missy Davison (forensic interviewer) at the Children’s Advocacy Center on May 17, 2011. Medical records from the hospital recorded explicit statements attributed to the victim.
- At trial the State called the victim, Davison as an outcry witness, and Karrah Dickeson as an expert on grooming; defense objected to Davison (hearsay/outcry), to Dickeson (irrelevant/Rule 403), and sought to introduce evidence of two prior sexual assaults on the victim.
- The trial court admitted Davison’s outcry testimony (overly broad defense objection), admitted Dickeson’s expert grooming testimony, and excluded evidence of the victim’s prior sexual abuse after defense withdrew one objection and later sought a different basis.
- On appeal the Sixth Court of Appeals affirmed: Davison was a proper outcry witness for most events (some earlier events had different outcry witnesses), Dickeson’s testimony was relevant and not unfairly prejudicial, and the rape‑shield/medical‑exception claim was not preserved for review.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Eldred) | Held |
|---|---|---|---|
| Admissibility of Davison as outcry witness | Davison was the first adult to whom the victim made a discernible description for many of the discrete events; Article 38.072 applies | Davison inadmissible because victim made discernible statements to several adults earlier and victim was 14 at some disclosures | Court: Davison was a proper outcry witness for most events; medical/hospital records showed other adults were proper outcry for three events; defendant’s overly broad objections failed to preserve event‑specific error |
| Applicability of Article 38.072 when outcry occurred after victim turned 14 | Outcry statute applies because the offense was committed while victim was under 14 even if outcry occurred later | Article 38.072 does not apply if outcry occurred when victim was 14 | Court: Agreed with State; statute applies where offense occurred under 14 and outcry occurred before victim’s 18th birthday (Harvey precedent) |
| Admissibility of expert testimony on grooming (Dickeson) | Grooming testimony is relevant, assists jury, and may be based on hypotheticals and facts presented at trial; probative value not substantially outweighed by prejudice | Expert irrelevant and unfairly prejudicial because she had no personal knowledge of victim or facts | Court: Overruled objections; expert qualified, testimony relevant and tied to case facts; Rule 403 balance favored admission (minimal time, probative value, not unfairly prejudicial) |
| Exclusion of prior sexual‑abuse evidence (rape‑shield/medical exception) | Prior abuse admissible to rebut State’s medical evidence about hymen | Prior‑abuse evidence necessary to explain medical findings and rebut inference defendant caused hymenal condition | Court: Error not preserved—defense withdrew initial medical‑exception objection and later raised a distinct ground; therefore appellate review denied; also noted victim’s testimony isn’t medical evidence for that exception |
Key Cases Cited
- Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App.) (outcry must be more than general allusion; must be discernible)
- Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App.) (one outcry witness per event; outcry is event‑specific)
- Brown v. State, 189 S.W.3d 382 (Tex. App.—Texarkana) (discernible statement need not include how/when/where; must be event‑specific)
- Sanchez v. State, 354 S.W.3d 476 (Tex. Crim. App.) (hearing required when outcry reliability is contested; victim must testify or be available)
- Harvey v. State, 123 S.W.3d 623 (Tex. App.—Texarkana) (Article 38.072 applies when offense occurred under statutory age even if outcry occurred after that age)
- Vela v. State, 209 S.W.3d 128 (Tex. Crim. App.) (three‑part inquiry for expert testimony: qualification, reliability, relevance)
- Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App.) (expert must tie testimony to facts; hypotheticals permissible)
- Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App.) (expert may testify from facts made known at trial; hypotheticals approved)
- Morris v. State, 361 S.W.3d 649 (Tex. Crim. App.) (recognizes grooming as permissible expert topic under Rule 702)
- Willover v. State, 70 S.W.3d 841 (Tex. Crim. App.) (to preserve error on mixed admissible/inadmissible proffer, objection must identify inadmissible portions)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (U.S. Sup. Ct.) (federal precedent recognizing Rule 403‑type prejudice vs. probative balancing for scientific evidence)