*1 667 however, Au- that the CONCLUSION argue, IV. Appellants not same as an 2000 order is gust inter- timely perfect an hold that to We a for new trial be- denying 51.014(a)(8), motion order appeal under section locutory their motion Appellants did not file cause no- file their Appellants required to were plea to the days to renewed twenty reconsider appeal tice of within request denying to jurisdiction merely Appel- court 10 order trial court’s order; instead, Appel- jurisdiction, required as prior plea lants’ to the reconsider its 26.1(b). hold by a We further their motion was “second rule lants contend denying Ap- 29 order August trial court’s authority requir- new plea upon based and renewed pellants’ motion reconsider ing a from the trial court.” opinion not, is under plea jurisdiction to the Thus, August Appellants contend that case, appealable a distinct facts of this is 29 order a stand alone order is interlocutory separate a timeta- order with 51.014(a)(8). appealable under section We appeal. ble for disagree. did not file their Appellants
Because absolutely is no There substan twenty days of the appeal of within notice Appellants’ tive difference between motion May 10, rule 2000 order accordance with plea to reconsider and to the renewed procedure, of we appellate 26.1 the rules of jurisdiction typical and a motion for new jurisdiction. appeal dismiss the for want Appellants’ trial or motion to reconsider.
motion that the trial court lacks reasserts
subject jurisdiction matter on same jurisdiction,
grounds plea as the to the prior May denying
refers to the order 10 that, contrary plea, alleges to that KEETER, Appellant, Jackie Russell order, subject the trial court does not have jurisdiction matter over the case. Appellee. Texas, The STATE fact that the motion mere cites additional No. 10-00-169-CR. authority support Appellants’ plea jurisdiction that was not included Texas, Appeals Court jurisdiction to the when it plea Waco. court, presented first to the trial 2001. second, sepa the motion into a transform 2,May 2001. Rehearing Overruled jurisdiction. rate plea and distinct Therefore, denying 29 order August appealable
the motion is an interlocu 51.014(a)(8).2
tory order under section Contrary Appellants’ subject jurisdiction error and argument, lack of is fundamental by jurisdiction may any appeal may matter be "raised first on be raised time Specifically, We, however, will lie time.” mandamus parties can the court. jurisdiction ruling plea correct a on a to the when we have only correct fundamental error ap adequate remedy by because there jurisdiction ab appellate to do so. In the Walker, Textron, peal. Helicopter Bell Inc. v. timely appeal, we have no sence of notice (Tex. 1990). S.W.2d Nor does any jurisdiction and decide appellate to hear raising holding party our foreclose issue, involving er fundamental even issues jurisdiction subject matter for the first lack of ror. appeal. It is a well-settled rule time
Sandy Gatesville, Gately, S. for appel- lant.
B.J. Shepherd, County Hamilton Dist. Peterson, Atty., Martin L. Hamilton Coun- Hamilton, Asst. ty Atty., appellee. Dist. DAVIS, Before Chief Justice Justice VANCE, and Justice GRAY. OPINION VANCE, Justice.
Jackie Russell Keeter convicted indecency eight-year-old with an child. primary against him was the outcry child and Department. in the she had Sheriffs to woman statement In- interviewed Sheriffs sentenced to life. Rhonda were just met. Keeter was CPS, and J.K. con- vestigator Buster and trial, the child recanted. Shortly after J.K. was taken tinued to accuse Keeter. Also, stepmother child’s father and *3 CPS, custody .by which turned into they prosecutor had both told the disclosed with whom she to Travis and Rhonda over did the child they trial not believe before the years the next while lived for two hearing, a the the truth. After pending. trial, finding the trial court denied new about a month after was not credible. Keeter was indicted recantation counts, May aggra- of 21 on the events two Finding the trial court its discre- abused indecency with a assault and vated sexual in for denying tion motion child, al- pertaining to the both offenses judgment will and remand we reverse May 20. The indict- leged molestation on the cause. para- contained an enhancement ment also convicted graph because Keeter had been BACKGROUND This indecency in of child. had For seven been range to punishment five increased May In the al- with Eva. 1998 when years, ninety-nine or life. occurred, Keeter, age twenty- crime leged nine, Eva lived in a small two-bedroom and THE TRIAL (Jack), house with Keeter’s father Eva’s 10, day, The trial lasted one (the eight-year-old daughter alleged J.K. guilt-innocence victim), the three children of Eva small occupies seventy-five pages of phase newborn, ages three and record. babysitter, had lived a live-in Vennie. J.K. Guilt-Innocence years.
with Keeter and Eva for three Travis, father, in biological lived an- J.K., Rhonda, In- The State called fiancee, county other with his Rhonda. ten, J.K., vestigator age Buster. then molesting that Keeter had been following undisputed. facts are time, day,” every for a “almost long Travis and unannounced Rhonda arrived 21, 1998, it when although she could remember May at Keeter’s home on Among things, other she accused asked if could come their home for started. my “put[ting] private his into a summer visit. Travis had not seen J.K. Keeter she never saw private,” although in two had never met she said years, Rhonda home, private parts. She “screamed” J.K. Eva was but Keeter let Travis and Rhonda take some- the incidents molestation because J.K. for Eva, restaurant, At warned her not to tell thing eat. while hurt. Keeter food, afraid of obeyed and she because she was getting Travis was in usually occur molesting him. The incidents would Rhonda that Keeter She would be alone in the afternoons. and the latest incident occurred Keeter; job ie., would be day before, May told house with 20.1 Rhonda in Travis, children would be hunting, went to the other and the three Children’s anyone (CPS), day-care, and Keeter would send brought which Protective Services Supp.2001). "outcry under Tex 1. This was an statement” (Vernon Code . art. 38.072 Crim.Proc.Ann objections else out on errands. The Timely prej- last incident two highly these day occurred on the sustained, before Travis and udicial statements were but a came, Rhonda which would make most for a motion mistrial was denied.3 May day recent molestation Eva, Vennie, The defense called alleged offenses in the indictment. Jack, Keeter’s father. Eva testified about in testified this molestation occurred May date the offenses morning. indictment, which said occurred Rhonda testified about the events of morning. Eva 20May was the last 1998. She did know J.K. until school, half-day and J.K. had a outcry this visit. described the She state- afternoon, morning. school In the *4 restaurant, ment at the and testified that Eva J.K. to a at a party playmate’s took J.K. “said he touched that he made day, house. Keeter was sick in home her touch him.” bed. Eva the living also described condi- Investigator Buster testified inter- tions in the house. There were two bed- viewed J.K. and Rhonda on 21. CPS rooms, Keeter, occupied by one Eva and representatives present were also and the other Jack. live-in Vennie-the videotape. made a The videotape was not babysitter-and slept the four in children introduced at trial or its contents de- room. When Eva not at was scribed. took hospital Buster J.K. to the home, children; kept Vennie Eva did for examination. The results of the day-care. have the children in Eva examination were not introduced at testified Keeter worked from 6 a.m. to no personnel and medical testified. Bust- p.m. sometimes 6 to work- 8 He er admitted on cross-examination he ing year. these hours for about a She during learned investigation that J.K. well, got J.K. and Keeter along and J.K. recognize genitalia.” “did not male Final- Also, was afraid of Keeter. Eva and ly, during questions by a series of two well, J.K. got along men- J.K. never State, Buster testified: any problems concerning tioned [Tjwelve Q: days days or thirteen it Keeter. you took to locate [Keeter]? Vennie, age thirty-three, was the live-in that, Something yes,
A: another like babysitter. Because she had no friends sir. elsewhere, town relatives lived Q: Okay. your investigation Where did with prac- was at house the children fromgo there? twenty-four tically day, days hours a seven Well, A: I offered Mr. a poly- Keeter a week. She confirmed that J.K. was in graph. He said he would take a poly- morning of May school the and Keeter graph —2 home, was at sick. Vennie testified usually p.m. 7 worked until or 8 Q: going Then after —without into children, kept He never even on week- just into, you what went what—what ends; Only she did. Eva disci- happened after that? plined the children. She that J.K. good "relationship A: Mr. Keeter taken into had a was federal with Keeter custody— was not afraid of him. Vennie believed polygraph appeal 2. The show record does not if a 3. Keeter does raise on denial was ever taken. motion. this were not these incidents prob- tails about any have told her about at trial. brought out Keeter. lem (cid:127) convict- July of Keeter was In confirmed that J.K. went to also Jack being court of a felon in federal ed 20th. morning She school the a He firearm. was possession party a at a and went to out noon impris- thirty months’ sentenced home, sick; Jack was friend’s. Keeter (Keeter actually an in- onment. off and was also at home. He work prison a federal assigned mate problems in J.K. confided her stated that time of trial on him, not afraid of and was 2000.) con- disciplined by Keeter. He plea briefly and made Eva testified firmed that Keeter worked 6 a.m. “feel that she did not leniency, days per to six week. p.m., five away from the should be taken [Keeter] jury guilty, only found Keeter but time. He long other three children for indecency with a child. offense of some- grow up them needs to watch day, Although it was late without time....” *5 break, immediately proceeded to jury a sentence of life The assessed punishment phase. The and break, After a six minute prison. documentary introduction of evidence for imposed p.m. court reconvened 6:01 and punishment phase occupy less than the sentence. fifteen of the pages record. TRIAL NEW THE MOTION FOR Punishment trial, brought after Travis Several weeks witness, called one Keeter’s State unmanagea- being J.K. to Eva’s. J.K. was sister, who testified that when she was ble, not get and J.K. did and Rhonda twelve, ages of seven and and between day, approached Later that J.K. along. Keeter ages was between eleven and up made all the Eva and said she had sixteen, he molested her on several occa- molesting allegations her. about Keeter sions, in- although they had never sexual defense attor- Eva took J.K. to Keeter’s anyone tercourse. She did not tell until ney, signed obtained affidavit who later, years she thirteen when told Later, Travis and recantation from J.K. learning husband Keeter had attorney they both told Rhonda involving on the indicted offenses J.K. allegations against Keeter believe documentary The State also introduced prosecutor before and had both told the following: attorney evidence trial about their doubts. which was filed a motion for (cid:127) seventeen, In 1987 when he was May presented 2000. Keeter heard on exposing his was accused recantation, and also about the genitals presence in the of a female to excul- the State’s failure disclose age under the of seventeen. He was information, ie., that Travis and patory indecency child in convicted of with a not they did Rhonda told State probation. and on That placed believe J.K. he al- was revoked 1989 because At called Eva hearing, with the defense legedly had sexual intercourse had not recantation. Eva of sev- to describe the age another female under or the trial spoken with Travis J.K. since was to two enteen. He sentenced had called 10. Eva said Travis imprisonment. Further de- on it, bring say her and stated he wanted to J.K. to her. will he “She did then we stay it, with Eva for summer “he say asked-talked about she’ll he didn’t lying.” tired Travis J.K. just and I never do or said that. She wasn’t a.m., asleep fell arrived about and J.K. story.” consistent with her Rhonda admit- work, Later, Eva to sofa. went and a poor relationship ted she had J.K. with when she home work J.K. asked “I going said: was not to She tolerate her lied_I talk “I to her.4 told to J.K. Eva dishonest, being lying, being disrespectful go stay daddy wanted to with [for I people_ to other told he ei- [Travis] you 1998] summer of wouldn’t let me.” gets ther under control where she Eva lawyer, took J.K. who Keeter’s listens, fits, minds not throw and hits among things go other advised her to to me, be mean can back go to me she However, to reopen CPS. CPS refused its home to her mother.” Rhonda said she cross-examination, investigation. On Eva Travis, instruction, tried CPS’s denied that Eva could not taking three or four counseling financially make it without Keeter. Eva times, go. Final- but did want though paying said even Travis his ly, your experience when asked “Was support, working child lies?”, responded: [J.K.] that Rhonda enough money pay the bills. “She lot.” lies a Travis testified next. said that in He Finally, attorney the defense 1998, he wrote he wanted J.K. briefly State had So, him come visit for the even summer. Travis Rhonda did believe though showed unannounced on about the molestation. 21, 1998, complete not a arrival was *6 The J.K. J.K. testify. State called to surprise. He testified he did not believe said she did not the truth trial about tell Fur- J.K. told truth about Keeter. you Keeter. The “What State asked: did thermore, he said about she “[A]ll J.K.: respond- not tell us the truth about?” J.K. year has told me lie. through was a thing.” ex- ed: “About the whole She thing has not told me one truthful.” She why up story: she plained prosecutor Travis he also testified told the my A: I dad. Because could live with he J.K. before trial did believe Howev- Well, Q: you your said mother er, he admitted on cross-examination go? couldn’t that, prosecutor prior to he had told he go A: believed J.K. Travis also confirmed that She said I couldn’t I during J.K. accused Jack the trial of mak- her—it was her summer and ing threatening J.K. some comments to didn’t know [sic]. Rhonda,
The got story defense called who also J.K. said she ideas for her about did from things eleven-year-old stated she not believe J.K’s accusa- her friend, E., about best her. E. tions believed told told prosecu- stepfather physically from the how her beginning, told about her trial. said mother. E. he “hurt “[J.K.] tor before Rhonda abused her mom,” her,” to kept story many naughty things “did “tried changing her one too her,” her in the times” about whether Keeter molested to suffocate “locked got I testimony she me for summer. The next when 4. Eva's was: "And to morning and home work told me she needed to house about four o’clock in the she couch, me, asleep she had talk to so sat down on fell and me I her there, staying Travis sat talked about her couch....” judge later the denied Two weeks bathroom,” her ... scream.” J.K. and “let “I order. It said: don’t re- letter tell the truth when she motion intended testimony new that recants Tra- find the from the summer with turned home To do so However, to be credible. testimony afraid by that time she was vis. this require would me to believe into trouble she get she up her be- telling Investigator young child made denied truth. her she prior (younger!!!) sister told hearing to the cause her Buster in an interview something up make about changed story her because Eva would have to that she get go and she could with- the defendant so told her Eva could make dad, Buster with her when she spend J.K. said she told the summer out Keeter. know her dad was com- my help previously “that mom said that she needed him in two out,” ing when had not seen help I her with for exam- and had cleaning judge room. The did not address years.” the dishes or ple doing withheld prosecution that it issue whether the also denied Buster She from the defense. three-year-old stepsister suggest- who exculpatory is included in arguably Keeter of some- That issue either plan accusing ed “According- thing. stepsister said her told her letter which stated judge’s go ly “could with if some- motion for new trial denied and [Travis] that J.K. ORDERED,” thing or the issue is happened.” J.K. did admit that Jack IT IS SO Tex.R.App.P. daddy her at trial take her denied. threatened deemed 21.8(c). away, until been mean THE RECANTATION ISSUE changed story.
recently Investigator also called Bust- State Legal Standard motion, hearing er. Prior to the on the trial based on Motions worker Johnson went to J.K.’s CPS evidence, including re newly discovered school and her. Buster at- interviewed by Tex. testimony, governed are canted tempted impeach testimony by (Vernon art. 40.001 Code CRiM. ProcAnn. stating inter- that J.K. told him this State, Supp.2001). 918 S.W.2d Ashcraft *7 (1) changed story view: she her because 648, 1996, pet. (Tex.App. 652-53 — Waco making time a having hard State, 699, ref'd); Driggers v. 940 S.W.2d living without Keeter and “she” missed 1997, pet. (Tex.App. 708 — Texarkana (2) Keeter, stepsis- three-year-old her State, ref'd); 990 S.W.2d 317 Monse suggested plan ter to her the to accuse 1999, pet. (Tex.App —Corpus Christi . did Keeter. He confirm that J.K. said she ref'd). It “A new trial shall be states: story spend the so she could the material evi an accused where granted also admitted summer with Travis. He has been to the accused dence favorable girl something about older since trial.” standard discovered grown people do or “what for a new for denial of a motion review the to that effect.” something discretion, i.e., whether trial is abuse arbitrary or unreasonable. the denial was also testified and CPS worker Johnson 652. The trial Ashcraft, S.W.2d at testi- 918 confirmed the substance of Buster’s deny in arbitrary or changed story court is unreasonable mony she her J.K. said (1) if the record reflects: having ing mak- the motion Eva was a hard time was un newly evidence missed the discovered Keeter and “she” ing without trial; movant at the time of suggest- known stepsister and that J.K.’s (2) failure to discover the movant’s to accuse Keeter. ed idea 674
evidence was not due to
want of
penetrating
dili
force
trauma.
Id. The evi-
(3)
gence;
hearing
at the
the evidence is
dence
was that the
admissible
child
cumulative,
foster
merely
corroborative,
disliked
care and
wanted
return
col
home,
(4)
lateral,
being pressured by
her moth-
impeaching;
or
the evi
er—who
believed
week-
probably
dence
true and
probably
her—
recant,
end
visits
and had been led to
bring
a different
result
another
believe that
she recanted
go
she could
State,
trial. Moore v.
882 S.W.2d
849
England to live with her aunt and sister.
(Tex.Crim.App.1994); Ashcraft,
918
Id. On the
signed
child
the recant-
at
“[I]n
S.W.2d
653.
“where
cases
a wit
affidavit,
ing
her mother took her unex-
has
ness
testified material inculpatory
pectedly
attorney’s
to the defense
office
against
verdict,
facts
an accused
where she was
get
father could
and before
for
motion
new trial has been
life sentence for the crime.
Then
Id.
on,
acted
such witness
affidavit
makes
took
mother
her to the District Clerk’s
falsely,’
general
rule is that
photo-
office
where
was shown the
evidence is
true
probably
and a
graph
her vagina
which
used
at
granted.”
new trial
(quoting
should be
Id.
unaware,
previously
which she was
State,
Williams v.
375 S.W.2d
451
angry
and the child became
and ashamed.
(Tex.Crim.App.1964)). An exception to
Finally,
Id.
her mother took her back to
general
rule occurs when the trial
the defense attorney’s office where she
court finds the recantation to not be credi
signed the affidavit. Id. The child testified
ble
on
based
evidence and the
at
hearing
on the motion
lied
Id.;
at
hearing
evidence
motion.
about the
angry
abuse because she was
709; Monse,
Driggers, 940
S.W.2d
father
protecting
for not
her from
“Credibility”
S.W.2d
is measured
by
sexual assault
intercourse six
seven
by whether the recantation is “probably
seven-year-old youn-
earlier
653;
Ashcraft,
true.”
Drig
S.W.2d at
ger
babysitter.
brother of the
Id. Howev-
gers,
most and she “screamed” that once that J.K. would tell because it hurt. None of the other the truth. house, in three adults (cid:127) hearing that Rhonda testified at three-year-old stepsister, saw recanting J.K. was even trial. before this daily abuse or heard her scream. (cid:127) J.K. said she would scream when the Vennie, the babysitter, who was happened. abuse At hearing on home constantly slept liv- motion, said she the idea ing children, room all four to accuse Keeter what her saw or anything. heard E. fi-iend which included the
(cid:127) usually testified the abuse oc- fact stepfather that E.’s made E.’s However, curred the afternoons. mother scream. it was uncontroverted that Keeter Based on the both at trial and p.m. worked until least 6 five to hearing, find we that evidence does six days per week. support finding the trial court’s (cid:127) “put J.K. testified private his J.K.’s recantation was not credible. private,” into my according but Therefore, the trial court abused its dis- Buster, he Investigator learned cretion in denying the motion for new trial. investigation that J.K. “did not Keeter’s issue sustained. recognize male genitalia.” (cid:127) Although J.K. was examined THE BRADY ISSUE
doctor alleged abuse, a report prepared, no Because we sustain the recantation is- presented medical evidence was sue, we need decide Keeter’s issue trial. Brady Maryland, prose- under that the (cid:127) no There was cutor failed inform defense counsel
upset May
on
anything
about what Travis and
him
Rhonda told
happened May
whether
regarding
testifying
stead
she told Buster that
help
Eva told
J.K. she needed to
around
house.
*10
83,
had
assaulted.
in which she
been
83 household
Brady Maryland,
v.
373 U.S.
truth.
the time she
there at
Keeter was not
(1963);
see
CONCLUSION
Finding that the trial court abused its motion, re- denying
discretion in we judgment, the cause
verse remand MIDLOTHIAN BUTANE GAS COM- for a new trial. INC.,
PANY, Midtex LP d/b/a dissenting. Justice GRAY Gas, al., Appellants, et Justice, GRAY, dissenting. COOPERATIVE, HILCO ELECTRIC relationship between victim and INC., al., Appellees. et two be- step-mother over the outcry sexual assault
tween victim’s No. 10-99-135-CV. apparently of trial had and the time Texas, Appeals Court of days after particularly good. Within Waco. step-mother victim’s told the victim must victim’s father either the step-mother their home or the would. leave ten, victim, eight year old now chose mother, live return to with her