                                                                                 ACCEPTED
                                                                             03-14-00234-CR
                                                                                     5355071
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                       5/20/2015 10:57:18 AM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK




                    No. 03-14-00234-CR                      FILED IN
                                                     3rd COURT OF APPEALS
                    No. 03-14-00235-CR                    AUSTIN, TEXAS
                                                     5/20/2015 10:57:18 AM
In The Court Of Appeals for the Third District,   Austin,  Texas
                                                         JEFFREY  D. KYLE
                                                              Clerk


                     Joe Derek Carr,
                        Appellant
                            vs.
                    The State Of Texas,
                         Appellee


Appeal from the 147th District Court of Travis County, Texas
  Cause Numbers D-1-DC-11-100059 & D-1-DC-11-902003


                        State’s Brief


                                  Rosemary Lehmberg
                                  District Attorney
                                  Travis County, Texas

                                  Rosa Theofanis
                                  Texas Bar No. 24037591
                                  Assistant District Attorney
                                  District Attorney’s Office
                                  P.O. Box 1748
                                  Austin, Texas 78767
                                  Phone: 512.854.9400
                                  Fax: 512.854.4206
                                  Email: Rosa.Theofanis@traviscountytx.gov
                                  AppellateTCDA@ traviscountytx.gov

       Oral Argument Not Requested
              Identity of Parties and Counsel


         In accordance with Texas Rule of Appellate
   Procedure 38.2(a)(1)(A), the State supplements
   the Identity of Parties and Counsel set out in the
   appellant’s brief as follows:

Appellate             Ms. Rosemary Lehmberg
Prosecutors           Travis County District Attorney
                      P.O. Box 1748
                      Austin, TX 78767

                      Rosa Theofanis
                      Assistant District Attorney
                      Travis County District Attorney
                      P.O. Box 1748
                      Austin, TX 78767




                             i
                                             Table of Contents
Identity of Parties and Counsel .................................................................i
Index of Authorities................................................................................. iii
Statement of the Case ...............................................................................2
Statement Regarding Oral Argument ......................................................3
Statement of Facts ....................................................................................3
Summary of the Argument .....................................................................17
State’s Reply to the Point of Error One ..................................................21
  The trial court did not abuse its discretion in allowing the State’s
  witnesses to testify about the nature of the relationship between the
  appellant and Veronica Navarro because the statements were
  relevant evidence of the “previous relationship existing between the
  accused and the deceased” and, as statements showing Navarro’s
  state of mind, did not violate the rule against hearsay. Alternatively,
  if it was error to permit the witnesses to testify about the
  relationship, it was harmless error......................................................21
State’s Reply to the Point of Error Two ..................................................46
  The evidence is sufficient to support the appellant’s murder conviction
  as well as his conviction for tampering with evidence. .......................46
State’s Reply to the Point of Error Three ...............................................62
  The trial court did not abuse its discretion in excluding evidence
  concerning Chris Kashimba’s past contacts with law enforcement
  because, as specific instances of conduct that were not prior
  convictions, they were inadmissible as impeachment evidence.
  Alternatively, any error in excluding the testimony was harmless....62
State’s Reply to the Point of Error Four .................................................72
  The trial court did not abuse its discretion in allowing the admission
  of a phone call from the appellant to his mother recorded while he was
  in jail because it was properly authenticated by voice identification.
  Alternatively, any error in admitting the testimony was harmless. . 72



                                                    i
State’s Reply to the Point of Error Five..................................................78
  The trial court did not abuse its discretion in admitting State’s
  Exhibit 318, the recorded phone call from the appellant to his mother
  from jail, because, as a recorded call voluntarily made to a non-State
  actor, the exhibit did not violate the appellant’s right against self-
  incrimination. Even if State’s Exhibit 318 was admitted in error, it
  was harmless. .......................................................................................78
State’s Reply to the Point of Error Six....................................................83
  The trial court did not abuse its discretion in denying the appellant’s
  motion for new trial because the newly-discovered evidence it was
  based upon merely showed that the appellant and Navarro were
  together prior to her death, did not contradict the evidence at trial,
  and would not have brought about a different result at trial. ............83
Prayer ......................................................................................................87
Certificate of Compliance........................................................................88
Certificate of Service ...............................................................................88




                                                      ii
                                        Index of Authorities

Cases
Angel v. State, 627 S.W.2d 424 (Tex. Crim. App. 1982).........................81
Autry v. State, 626 S.W.2d 758 (Tex. Crim. App. 1982).........................81
Bagheri v. State, 119 S.W.3d 755 (Tex.Crim.App. 2003) ................. 68, 71
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)................. 47, 61
Cardenas v. State, 115 S.W.3d 54 (Tex. App.—San Antonio 2003, no
 pet.) .......................................................................................................31
Chapman v. State, 115 S.W.3d 1 (Tex. Crim. App. 2003) ......................80
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .....................60
Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) .........................42
Cordova v. State, 698 S.W.2d 107 (Tex. Crim. App. 1985).....................48
Delamora v. State, 128 S.W.3d 344 (Tex. App.—Austin 2004, pet. ref’d)
  ........................................................................................................ 85, 87
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) .................37
Dorsey v. State, 24 S.W.3d 921 (Tex. App.—Beaumont 2000, pet. ref’d35
Duncan v. State, 2013 Tex. App. LEXIS 3169, at *14 (Tex. App. —
 Dallas Mar. 22, 2013, no pet.)(mem. opinion not designated for
 publication)...........................................................................................75
Fain v. State, 986 S.W.2d 666 (Tex. App—Austin 1998, pet. ref'd) 29, 33,
 35, 36
Ford v. State, 919 S.W.2d 107 (Tex. Crim. App. 1996)...........................25
Garcia v. State, 201 S.W.3d 695 (Tex. Crim. App. 2006) ................. 27, 28
Garcia v. State, 246 S.W.3d 121 (Tex. App—San Antonio 2007, pet.
 ref'd)......................................................................................................31
Gonzalez v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006) 36, 37, 38, 39,
 40
Graham v. State, 566 S.W.2d 941 (Tex. Crim. App. 1978).....................55
Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) .......... 49, 52, 58
Hacker v. State, 389 S.W.3d 8601 (Tex. Crim. App. 2013.......... 49, 51, 58
Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004) ....................24
Hankins v. State, 180 S.W.3d 177 (Tex. App.—Austin 2005, pet. ref’d)
  ........................................................................................................ 76, 81
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............ , 48, 49, 61

                                                       iii
Houston v. State, 185 S.W.3d 917 (Tex. App. .—Austin 2006, pet. ref'd.)
   ..............................................................................................................42
Jackson v. Virginia, 443 U.S. 307 (1979).................................... 47, 56, 61
Jessop v. State, 368 S.W.3d 653 (Tex. App.—Austin 2012, no pet.) ......37
Johnson v. State, 611 S.W.2d 649 (Tex. Crim. App. 1981).....................80
Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002) ...........................85
Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App. 1995), cert. denied,
  519 U.S. 826 (1996) ..............................................................................36
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999)........................ 42, 46
Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998) ........................42
Losada v. State, 721 S.W.2d 305 (Tex. Crim. App. 1986).......................80
Martinez v. State, 17 S.W.3d 677 (Tex. Crim. App. 2000) ............. passim
Martinez v. State, 186 S.W.3d 59 (Tex. App.—Houston [1st Dist.] 2005,
  pet. ref'd)...............................................................................................33
Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991)..........................44
Minnesota v. Murphy, 465 U.S. 420 (1984) ............................................80
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on
  reh'g) ......................................................................................... 22, 72, 78
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................77
Norton v. State, 771 S.W.2d 160 (Tex. App. .—Texarkana 1989, pet.
  ref'd)......................................................................................................34
Pena v. State, 864 S.W.2d 147 (Tex. App. .— Waco 1993, no pet.) ........34
Phillips v. State, 436 S.W.3d 333 (Tex. App.—Waco 2014, pet. granted)
   ........................................................................................................ 74, 75
Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001) ....... 21, 62, 72, 78
Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009) ...................25
Reynolds v. United States, 98 U.S. 145 (1879).......................................38
Russo v. State, 228 S.W.3d 779 (Tex. App.—Austin 2007, pet. ref'd) ....34
Salazar v. State, 127 S.W.3d 355 (Tex. App—Houston [14th Dist.] 2004,
  pet ref'd)................................................................................................30
Salazar v. State, 38 S.W.3d 141 (Tex. Crim. App. 2001).................. 83, 87
Saldivar v. State, 980 S.W.2d 475 (Tex. App. —Houston [14th Dist.]
  1998, pet. ref'd).....................................................................................34
Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989) ...............25
Schoff v. State, 2010 Tex. App. LEXIS 1350 (Tex. App.—Austin Feb. 23,
  2010, no pet.) (mem. op., not designated for publication) ...................67

                                                        iv
Shafer v. State, 82 S.W.3d 553 (Tex. App.—San Antonio 2002, pet. ref'd)
   ..............................................................................................................85
Stobaugh v. State, 421 S.W.3d 787 (Tex. App. Fort Worth 2014)..........56
Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ......................48
Thrailkille v. State, 2002 Tex. App. LEXIS 8972 (Tex. App.—Beaumont
  Dec. 18, 2002)( opinion not designated for publication) ......................35
Vann v. State, 853 S.W.2d 243 (Tex. App. —Corpus Christi 1993, pet.
  ref'd)......................................................................................................36
Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003) .....................85



Statutes & Constitutions

TEX. CODE CRIM. PROC. art. 38.08 ...........................................................80
TEX. CODE CRIM. PROC. art. 38.36 ..................................................... 27, 31
TEX. CODE CRIM. PROC art. 38.49 ................................................ 38, 39, 41
TEX. PENAL CODE § 19.02.........................................................................61
TEX. PENAL CODE § 37.09.........................................................................61
TEX. R. APP. PROC. 33.1............................................................................24
TEX. R. APP. PROC. 38.1............................................................................24
TEX. R. APP. P. 44.2...................................................................... 42, 68, 76
TEX. R. EVID. 608 .....................................................................................63
TEX. R. EVID. 611 .....................................................................................63
TEX. R. EVID. 801 .....................................................................................32
TEX. R. EVID. 803 ............................................................................... 28, 33
TEX. R. EVID. 901 ................................................................... 73, 74, 75, 76
U.S. CONST. AMEND. V..............................................................................80




                                                        v
                   No. 03-14-00234-CR
                   No. 03-14-00235-CR

            In the Court Of Appeals Third District
                        Austin, Texas


                        Joe Derek Carr,
                           Appellant

                               vs.

                      The State of Texas,
                           Appellee


           Appeal from the 147th District Court
                  Travis County, Texas
   Cause Numbers D-1-DC-11-100059 & D-1-DC-11-902003


                          State’s Brief


To the Honorable Court of Appeals:

      The State of Texas, by and through the District Attorney
for Travis County, respectfully submits this brief in response to
that of the appellant.




                              1
                    Statement of the Case

      The appellant, Joe Derek Carr, was indicted for murder

and tampering with physical evidence, a human corpse. (D-1-

DC-11-902003: CR 6)( D-1-DC-11-100059: CR 14.) The

appellant pled not guilty and was tried by a jury. (3 RR 16)

The jury found him guilty as charged. (8 RR 90) The appellant

elected to go to the court for punishment; the court assessed a

sentence of sixty years for murder and twenty years for

tampering with evidence. (9 RR 110.) The appellant filed a

motion for new trial, which was denied by the trial court. (10

RR 26.) The appellant filed notice of appeal (D-1-DC-11-

902003:CR 128)( D-1-DC-11-100059: CR 143) and the trial

court certified his right to appeal. (D-1-DC-11-902003:CR

104)( D-1-DC-11-100059: CR 119.)




                               2
               Statement Regarding Oral Argument

     Because the issues, facts, legal authorities, and

arguments pertinent to the instant appeal are adequately

addressed in the briefs submitted by the parties, the State

respectfully asserts that the Court’s decisional process would

not be significantly aided by oral arguments. Accordingly, the

State does not request oral argument.


                     Statement of Facts

     On the morning of July 6, 2011, Jack Cudeyro was out on

Lake Travis with a colleague testing a new propeller on his boat

when he saw what he thought was a tarp or a tent in the water.

3 RR 173- 175. As the men got closer, it looked like something

was inside of it. 3 RR 176. Cudeyro touched the package and “it

felt like a shoulder.” 3 RR 177. He moved his arm down and felt

something that felt like a forearm muscle. 3 RR 177. Cudeyro




                              3
testified “At that moment, I knew something was in there that

didn't need to be in there.” 3 RR 177. The men took a small

pocket knife and made a small cut in the material, opened it with

their fingers and saw flesh. 3 RR 178.

     Travis County Park Police responded to the scene. 3 RR

182-183. 3 RR 191. The body was found along the shoreline of

Pace Bend Park in an area of the park that was largely abandoned

and had overgrown roads. 3 RR 191. 3 RR 197. One officer

described that “looking at the tent, you could almost make out,

you know, it was a person lying facedown. You [could] see the

elbows kind of protruding up, her bottom sticking up in the air,

the legs bent back.” 3 RR 202. By the odor, it was apparent that

victim “had been out there awhile.” 3 RR 202. It was also obvious

that the body was either anchored or tied or stuck to something

that was under the water. 3 RR 202.




                              4
     In fact, the body had been bound with a rope and there was a

rope around the victim’s neck that was attached to cinder blocks

and paint cans. 3 RR 235. The body was wrapped in a Coleman

tent. 3 RR 176. 3 RR 203. 3 RR 248. Inside, the victim was

wearing an oversized black high-waisted skirt with no underwear

and a medium-sized gray long-sleeved shirt. 3 RR 244. 3 RR 246-

247. Also inside the tent there was also a black trash bag. 3 RR

255. The victim was identified as Veronica Navarro. 4 RR 137.

     Navarro, a 22 year old native of Laredo, was the second-

oldest in a family of six children. 3 RR 32-34. When she

graduated high school and “became independent,” Navarro moved

to Austin, a place she knew well from spending summers with her

aunt and cousin Anna Karen growing up. 3 RR 34. After moving,

when she was are 18 or 19 years old, Navarro began a romance

with Chris Kashimba, a childhood friend and an across-the-street




                              5
neighbor of her aunt. 3 RR 35. The relationship was on-and-off

and, according to Navarro’s sister, the two would frequently

disagree and argue about money because “sometimes he would

just not work and she was always working.” 3 RR 35. 3 RR 43.

     During an “off” period with Kashimba, Navarro had begun

dating the appellant, an employee of the Pedernales Fire

Department. 3 RR 36. 4 RR 138-139. After this, Navarro had

resumed her relationship with Kashimba, but about a month prior

to her death, Navarro and Kashimba had broken things off again

and she had resumed a relationship with the appellant. 3 RR 36-

37. At the time of her death, the appellant was Navarro’s

boyfriend. 4 RR 138-139.

     Navarro had moved in with the appellant to a house in a

very “rural,” “secluded” area in Spicewood, Texas approximately

three miles from Highway 71 West in Burnet County. 4 RR 272.




                              6
3 RR 38. 5 RR 23. Nonetheless, for the month following their

break-up, Navarro and Kashimba continued to communicate in

secret, and Kashimba anticipated that they would reunite. 3 RR

99. Although the appellant had bought Navarro a car, he also

acted jealous and Navarro “was upset” because the appellant

“would never let her do anything and would never let her go

anywhere.” 3 RR 51-52. 3 RR 56. Navarro confided to her cousin,

Anna Karen Perez, that the appellant “wasn't what she expected.”

3 RR 155.

     On Friday, June 24th, 2011, Navarro’s cousins from Laredo

were going to be in town and made plans to go out to eat, but

Navarro wasn’t able to join them. 3 RR 158-159. Instead, she

went to a barbecue at a friend’s house with the appellant and his

young son, where Navarro seemed “unhappy” and where the

appellant, who was drinking, “was definitely not being very nice to




                              7
    her,” to the point that his friend confronted him about the way he

    was treating Navarro. 3 RR 60-65.

         Navarro’s family also had plans to go out to dinner and

    dancing on Saturday, June 25th, but Navarro said she could not

    join them because the appellant “had to leave.” 3 RR 158.

         The following day, Sunday, June 26th, 2011, Navarro also

    failed to “swing by” and see her cousins before they departed for

    Laredo on Sunday afternoon. 3 RR 161-162. That day, Navarro

    exchanged about 30 phone calls text messages with Chris

    Kashimba and roughly 6 phone calls or text messages with the

    appellant.1 6 RR 68. 6 RR 70.

         On Monday, June 27th, 2011, Navarro interviewed for a job

    with Carousel Pediatrics as a medical assistant. 3 RR 70-72. At


1 Throughout this statement, the State assumes that Navarro is the user of
Navarro’s phone, Kashimba is the user of Kashimba’s phone and the appellant
is the user of the appellant’s phone.




                                  8
    her interview, Navarro said she was willing to work weekends and

    was interested in work at the office’s “Springdale location,” in East

    Austin. 3 RR 76. Kashimba saw Navarro following her job

    interview. 3 RR 101. Navarro cried, said she loved Kashimba and

    that she wanted to break up with the appellant. 3 RR 102. Upon

    their parting, Kashimba anticipated that Navarro was going to go

    home, break up with the defendant and reunite with him. 3 RR

    102. After Navarro’s departure, Kashimba called her around 7 pm

    “and she said that she was on her way and she was going to be

    there and that everything was okay.” 3 RR 104-105.

         Shortly after that, the appellant called Navarro three times

    from his house.2 6 RR 42-43 At 8:11 Navarro made a call to the

    appellant that showed her location as being near US Highway 71.


2The call was serviced from the cell tower nearest his home. Hereinafter,
calls serviced by the cell tower nearest to the appellant’s house will be treated
as calls originating “from” his home.




                                     9
6 RR 43. 5 RR 130. The call lasted 1 minute, 32 seconds and was

the last time that Navarro answered her phone or made a call or

sent a text from her phone. 6 RR 43. 5 RR 127. 5 RR 124. 6 RR

27.

      At 8:24 p.m., the appellant made a ten second call to

Navarro. 6 RR 43-44. Then, for the next two hours, the

appellant’s phone went silent. 6 RR 44. At 10:32 p.m. the

appellant made a call from his house to a Lowe’s store located in

Austin Texas. 6 RR 44-45. Fifteen minutes later, the appellant

called Spicewood General Store. 6 RR 45. At 11:41 p.m., the

appellant’s phone called the Pedernales Fire Department twice

within a minute, but with a duration of zero seconds. 6 RR 45-46.

That was the last call of the night originating from the appellant’s

cell phone. 6 RR 47.




                              10
     The next morning, on Tuesday, June 28th, the appellant had

a shift at work at 9:00 a.m. 4 RR 25. On the job, the appellant

was normally very “upbeat,” talkative and cheery. 4 RR 67.

However, that morning, when the truck went out on call, the

appellant was acting out of character, providing none of the usual

assistance and participation that he would usually provide as

engineer on the fire truck. 4 RR 18-22. 4 RR 64- 66.   Back at the

station, the appellant was “quiet” and “standoffish,” walking over

and curling up in a recliner with his hat over his head. 4 RR 22.

4 RR 66. Then, around 7 p.m., he asked to leave early because he

was not feeling well. 4 RR 22-23. 4 RR 26. In fact, the appellant

insisted upon leaving before reinforcements could arrive, causing

the firetruck to go out of service for about 45 minutes. 4 RR 23-24.

That day, Chris Kashimba made ten phone calls or text messages

phone to Veronica's phone but zero were received. 6 RR 68. The




                              11
appellant made no attempts to exchange phone calls or text

messages with Navarro. 6 RR 70.

     On June 29th, 2011, between 1:15 a.m. to 2:30 a.m. in the

morning, the appellant’s cell phone data records were consistent

with someone driving down Highway 71, going out to Pace Bend

Park to the location where Navarro’s body was recovered, and

then going back. 6 RR 124. 6 RR 109-119.

     On Thursday, June 30th, the appellant’s cell phone records

showed him departing his home in Spicewood and traveling south

all the way down into the Rio Grande Valley. 6 RR 52-54.

     The appellant was scheduled to come to work on Friday, July

1st at 9:00 but did not show up. 4 RR 26-27. By that time, the

appellant’s cell activity was being serviced by a cell site located on

South Padre Island. 6 RR 54. By mid-morning, the appellant’s

morning cell activity was being serviced by a cell site located just




                               12
east of Brownsville, just a couple of miles from the border of

Mexico and Texas. 6 RR 54. Later, the appellant told his

lieutenant that he hadn’t come to work that day because “his

girlfriend and he had split up and he didn't want to leave the

house fearing that she was going to demolish -- or just tear up

stuff in the house.” 4 RR 32-33.

     On Saturday, July 2nd, the appellant’s cell activity was

being serviced by cell sites located near Port Isabel and on South

Padre Island. 6 RR 55.

     On Sunday, July 3rd of 2011, the appellant’s midmorning

cell activity was being serviced by cell sites located near

Harlingen. 6 RR 55. Then, the appellant’s cell activity indicated

that he was traveling northward, and by that afternoon, the

appellant’s cell activity was being serviced by cell sites located

near Spicewood, Texas, again. 6 RR 55-56. Throughout the rest of




                               13
that late afternoon into the evening hours, the appellant’s cell

activity indicated a lot of movement ranging from West Austin to

South Austin and further west near Bee Cave, as far as Johnson

City, where relatives of the appellant lived , to cell sites just south

of the defendant's house and near the fire department. 6 RR 56-

58.

      On Monday, July 4th, at 9:00 am, the appellant was

scheduled to work again and came to work. 4 RR 31-32. The

appellant performed as normal at work that day: “eager, energetic,

get[ting] things done around the station.” 4 RR 34.

      The appellant stayed on duty for the following shift on July

5th because he had “worked a trade” with another firefighter. 4

RR 35. That day, the appellant was playing a game on his phone

and “just kind of rambunctious about that all day.” 4 RR 99. The




                               14
appellant’s second shift ended at 9:00 a.m. on the morning of July

6th. 4 RR 36

     After the appellant got off work on July 6th, he went to an

outdoor music event where he ran into an acquaintance, Sarah

Hansen, a convenience store clerk who worked near the fire

station. 7 RR 15-16. Hansen invited him to sit with her group for

the concert and ended up leaving the concert with him and going

to his house in Spicewood that night. 7 RR 16-19. Although the

appellant seemed “spacey” and “flighty,” she stayed the night and

the two had intercourse. 7 RR 19-24. On, Thursday, July 7th,

around 9 or 10 a.m., the appellant drove Hansen to a friend’s

house. 7 RR 25-26. The last time there was any cell site

information for the appellant’s phone was at 9:35 a.m., on July 7th

of 2011. 6 RR 62.




                             15
     Stormy Davis, with the Pedernales Fire Department, was

notified about the identification of Navarro on Friday, July 8th, in

the afternoon or early evening. 4 RR 102-103. 4 RR 140-141. The

following morning, on Saturday, July 9th, a Canadian border

crossing employee called the fire station seeking to verify

employment information for the appellant. 4 RR 103-104. Davis

called the Travis County Sheriff's Office to let them know about

the call from border crossing. 4 RR 103-105.

     The appellant had aroused the suspicions of Canada Border

Services Agency officer Prosper Kuwonu by trying to enter

Canada with the claim that he was making a trip for four weeks

without a credit card or a debit card, just $2000.00 cash. 7 RR 31-

45. Kuwonu returned the appellant to the U.S. side of the border

after being informed that that the appellant was a suspect in a

murder investigation. 7 RR 30-45. An arrest affidavit was made




                              16
for the appellant on the charge of tampering with evidence. 4 RR

219. 4 RR 221. 4 RR 227. The appellant was released to Pembina

County authorities and held in the Pembina County Jail for

approximately 11 days. 7 RR 59. 7 RR 67.

     During the time he was detained, the appellant called his

mother seeking her assistance to be released from jail. State's

Exhibit 318. In that call, the appellant’s mother asked him “Joe

Derek, did you kill Veronica?,” “Tell me, did you hurt her, yes, or

no?” and “But, you didn’t do anything wrong?,” but the appellant

responded with evasions. Id.


                 Summary of the Argument

1.   The court did not abuse its discretion in allowing the
     State’s witnesses to testify regarding Veronica Navarro’s
     characterization of her relationship with the appellant.
     The statements the appellant complains of were relevant
     as evidence of the “previous relationship existing between
     the accused and the deceased” and did not violate the
     rule against hearsay because they were statements




                               17
     showing Navarro’s state of mind. Furthermore, the
     appellant forfeited his right to object to their
     admissibility through “forfeiture by wrongdoing.” Any
     argument that the statements fell afoul of Texas Rules of
     Evidence 403 or 404(b) was forfeited as well because it
     wasn’t raised at trial. Regardless, even if the statements
     were admitted in error, the error was harmless because
     the same evidence was introduced without objection in
     other forms and the evidence did not have a substantial
     effect in determining the jury’s verdict.

2.   The cumulative force of all the incriminating
     circumstances were sufficient for a rational trier of fact to
     find that the appellant intentionally or knowingly caused
     the death of Veronica Navarro, and, knowing that an
     investigation of Navarro’s death was pending, he altered,
     destroyed, or concealed her corpse with intent to impair
     its availability as evidence in the investigation. The
     evidence at trial proved that the appellant had the
     motive and opportunity to kill Navarro and that the
     appellant had tried to conceal Navarro’s death. The
     evidence included physical evidence found with Navarro’s
     body, autopsy results concluding she died by homicide,
     cell phone evidence tracing the appellant to the location
     where her body was dumped and testimonial evidence
     recounting the incriminating acts, words, and the conduct
     of the appellant surrounding the crime, including his
     attempt to escape to Canada after Navarro’s body was




                              18
     discovered. The evidence was sufficient to support the
     conviction on both charges.

3.   The trial court did not abuse its discretion in excluding
     evidence concerning Chris Kashimba’s past contacts with
     law enforcement because, as specific instances of conduct
     that were not prior convictions, they were inadmissible as
     impeachment evidence. The appellant argues that
     specific instances of conduct should nonetheless have
     been admissible to disprove Kashimba’s testimony that
     he and Navarro “never fought,” which he characterizes as
     a misrepresentation. However, in context, Kashimba’s
     statement that he and Navarro “never fought” meant
     that they never physically fought. Thus, the specific
     incidences the appellant sought to admit, containing no
     physical violence, did not contradict Kashimba’s
     testimony and were ultimately inadmissible.
     Alternatively, even if the evidence should have been
     allowed, its exclusion was harmless.

4.   State’s Exhibit 318, a telephone call between the
     appellant and his mother that was recorded while he was
     being held at the Pembina County jail, was properly
     authenticated. Since the voices on the recording were
     identified by witnesses at trial, the phone call was
     properly authenticated by voice identification and it was
     not an abuse of discretion to admit it. Contrary to the
     appellant’s claim, telephone calls do not have to be
     authenticated “by the number assigned at the time." So




                             19
     long as the evidence is sufficient to support a finding that
     the matter in question is what its proponent claims,"[t]he
     requirement of authentication or identification as a
     condition precedent to admissibility” has been satisfied.
     Texas Rule of Evidence 901 also does not require that
     evidence be authenticated by more than one sufficient
     means. Alternatively, if the court erred in permitting it
     into evidence, the error was harmless.

5.   The admission of State’s Exhibit 318 also did not violate
     the appellant’s right against self-incrimination. The
     content of State’s Exhibit 318 is not equivalent to a
     prosecutor's comment on a defendant's failure to testify
     at trial. Because the recorded exchange was voluntarily
     made, out-of-court, and did not involve a State actor, the
     Fifth Amendment rights the appellant claims were not
     implicated and the court did not abuse its discretion in
     admitting the evidence. Alternatively, if admission of the
     exhibit was an error, it was harmless.

6.   The trial court did not abuse its discretion in denying the
     appellant’s motion for new trial. The newly-discovered
     evidence that formed the basis of the motion was a
     surveillance video that proved the appellant and Navarro
     were shopping together on June 26, 2011, which was
     consistent with the evidence at trial. Even though the
     State’s theory was that their relationship was strained, it
     was undisputed that the appellant and Navarro were
     “together” on that date. Based on this, the appellant




                              20
     failed to establish that the evidence would “probably
     bring about a different result,” an essential requirement
     for a new trial based on newly discovered evidence, and
     thus the trial court did not commit an abuse of discretion
     in overruling the motion for new trial.


      State’s Reply to the Point of Error One

     The trial court did not abuse its discretion in
     allowing the State’s witnesses to testify about the
     nature of the relationship between the appellant
     and Veronica Navarro because the statements
     were relevant evidence of the “previous
     relationship existing between the accused and the
     deceased” and, as statements showing Navarro’s
     state of mind, did not violate the rule against
     hearsay. Alternatively, if it was error to permit
     the witnesses to testify about the relationship, it
     was harmless error.

Standard of Review
     A trial court's decision to admit or exclude evidence is

reviewed for abuse of discretion. Powell v. State, 63 S.W.3d

435, 438 (Tex. Crim. App. 2001). A trial court does not abuse




                              21
its discretion as long as its decision to admit or exclude

evidence is within the "zone of reasonable disagreement."

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990) (op. on reh'g).

Argument and Authorities

     The appellant argues that the trial court abused its

discretion in allowing hearsay testimony of the appellant’s

alleged bad character in violation of Texas Rules of Evidence

403, 404(b) and 802. But the statements the appellant

complains of were admissible as evidence of the relationship

between the appellant and Veronica Navarro and did not

violate the rule against hearsay because they were statements

showing Navarro’s state of mind. Furthermore, the appellant

forfeited his right to object to their admissibility through




                               22
“forfeiture by wrongdoing.” Any argument that the statements

fell afoul of Texas Rules of Evidence 403 or 404(b) was forfeited

as well because it wasn’t raised at trial. Regardless, even if the

statements were admitted in error, the error was harmless

because the same evidence was introduced without objection in

other forms and the evidence did not have a substantial effect

in determining the jury’s verdict.

Preservation of Error

     The appellant complains of different portions of

testimony being admitted in violation of Texas Rules of

Evidence 403, 404(b) and 802 and states that error was

preserved by a running objection at trial. Appellant’s Brief,

Nos. 03-14-00234-CR & 03-14-00235-CR at 10, 11, citing 3 RR

50; 3 RR 93. To the extent that the appellant objected and




                               23
obtained running objections, the objections were to hearsay

only. See 3 RR 50. 3 RR 93. 3 RR 154. For this reason, any

complaint regarding admission of evidence in violation of

Texas Rules of Evidence 403 or 404(b) has been forfeited. TEX.

R. APP. PROC. 33.1(a)(2); Martinez v. State, 17 S.W.3d 677, 686

(Tex. Crim. App. 2000).

     Additionally, because the appellant’s briefs make no

argument in support of his conclusory allegation of Rule 403

and 404(b) violations, the claims should be overruled. See TEX.

R. APP. PROC. 38.1. (The parties must present “clear and

concise argument for the contentions made, with appropriate

citations to authorities and the record.”); Hankins v. State, 132

S.W.3d 380, 385 (Tex. Crim. App. 2004) (“Because the

appellant does not provide any argument or authority in

support of this contention, it is inadequately briefed”).




                               24
     Furthermore, even the hearsay objection was preserved

only if "the running objection constituted a timely objection,

stating the specific grounds for the ruling." Ford v. State, 919

S.W.2d 107, 113 (Tex. Crim. App. 1996) quoting Sattiewhite v.

State, 786 S.W.2d 271, 284-85 n. 4. (Tex. Crim. App. 1989). An

“advocate who lodges a running objection should take pains to

make sure it does not encompass too broad a reach of subject

matter over too broad a time […].” Sattiewhite v. State, 786

S.W.2d 271, 283, n. 4 (Tex. Crim. App. 1989). Because counsel

did not delineate the exact nature, grounds and extent of his

running objection, and did not object to statements on a case-

by-case basis, the trial judge was not given the opportunity to

rule on the statements that the appellant complains of on

appeal with any particularity. See Resendez v. State, 306

S.W.3d 308, 312-313 (Tex. Crim. App. 2009)(“ The parties, not




                              25
the judge, are responsible for the correct application of

evidentiary rules; in order to preserve a complaint for appeal,

the complaining party must have done everything necessary to

bring the relevant evidentiary rule and its precise and proper

application to the trial court's attention.”)

      Admissibility under Rule 803(3)

      The appellant argues that the trial court abused its

discretion in allowing into evidence multiple statements that

he claims violated the rule against hearsay. Appellant’s Brief,

Nos. 03-14-00234-CR & 03-14-00235-CR at 10-11. Taking each

instance of complained of testimony in turn, even assuming

proper preservation, the trial court did not abuse its discretion

in allowing the enumerated testimony to come into evidence

because it either was not hearsay or fell under the Rule 803(3)




                                26
hearsay exception because it indicated the victim’s state of

mind.

     "In all prosecutions for murder, the state or the

defendant shall be permitted to offer testimony as to all

relevant facts and circumstances surrounding the killing and

the previous relationship existing between the accused and the

deceased, together with all relevant facts and circumstances

going to show the condition of the mind of the accused at the

time of the offense." TEX. CODE CRIM. PROC. art. 38.36(a). This

evidence includes evidence regarding the romantic relationship

between the victim and the accused, including whether their

relationship was strained or ending. Garcia v. State, 201

S.W.3d 695, 702-703 (Tex. Crim. App. 2006). “[I] n some

situations, prior acts of violence between the victim and the

accused may be offered to illustrate the nature of the




                              27
relationship.” Garcia v. State, 201 S.W.3d at 702-703.

Nonetheless, “these specific acts of violence must meet the

requirements of the Rules of Evidence in order to be

admissible.” Id. at 702.

     Rule 803(3) of the Rules of Evidence excepts from the

hearsay rule "[a] statement of the declarant's then-existing

state of mind (such as motive, intent, or plan) or emotional,

sensory, or physical condition (such as mental feeling, pain, or

bodily health), but not including a statement of memory or

belief to prove the fact remembered or believed unless it

relates to the execution, revocation, identification, or terms of

declarant's will." TEX. EVID. R. 803. A victim’s expression of

fear of the accused, as a statement of the declarant's then

existing state of mind, falls within the Rule 803(3) hearsay

exception. Martinez v. State, 17 S.W.3d 677, 689 (Tex. Crim.




                               28
App. 2000). Evidence regarding a victim’s intent to continue in

a relationship has also been ruled admissible under the Rule

803(3) hearsay exception as showing the victim’s state of mind.

Fain v. State, 986 S.W.2d 666, 680 (Tex. App—Austin 1998,

pet. ref'd).

      First, the appellant asserts that the court abused its

discretion in allowing Manuela Navarro to testify that

Veronica Navarro “was upset because she said that [the

appellant] would never let her do anything and would never let

her go anywhere.” 3 RR 56. Navarro said this during a

conversation about why she could not get together with her

family who were in from Laredo for the weekend. 3 RR 55-56.

The statement was a hyperbolic one that was not intended to

be taken literally for the matter asserted, that she could

“never” go anywhere, but to be understood as a statement that




                              29
she felt controlled. As such, it was a statement of her emotion

and her mental feelings of being upset, stuck and frustrated at

the time she expressed them. Statements concerning the

declarant's then existing emotional condition or mental feeling

are admissible under Rule 803(3). Martinez v. State, 17

S.W.3d at 689 (Tex. Crim. App. 2000) (holding declarant's

statement she was afraid fit exception in 803(3)); Salazar v.

State, 127 S.W.3d 355 (Tex. App—Houston [14th Dist.] 2004,

pet ref'd)(holding victim’s feelings of sadness, fear,

embarrassment, nervousness, worry and anger were

admissible under exception in 803(3) because they concerned

the declarant's then existing emotional condition or mental

feeling). Navarro’s statement was properly admitted because

it both expressed her state of mind and showed the “previous




                               30
relationship existing between the accused and the deceased.”

TEX. CODE CRIM. PROC. art. 38.36(a).

     Kashimba’s testimony that Navarro was “afraid” of the

defendant and that she “didn't like his attitude” (3 RR 93) also

fell squarely within the 803(3) exception as “a victim's

statement regarding her emotional response to a particular

person." Garcia v. State, 246 S.W.3d 121, 132 (Tex. App—San

Antonio 2007, pet. ref’d), citing Cardenas v. State, 115 S.W.3d

54, 63 (Tex. App.—San Antonio 2003, no pet.); and Martinez,

17 S.W.3d at 688.

     Kashimba’s testimony that Navarro said the appellant

would “scream or throw things, throwed little fits, temper

tantrums,” and that he “drank a lot” and became more

aggressive” was likewise admissible. 3 RR 94-95. A statement




                              31
is hearsay only if offered in evidence “to prove the truth of the

matter asserted." TEX. R. EVID. 801(d). In this instance,

Kashimba’s testimony concerning the appellant’s fits and

behavior when drinking was offered to show Navarro's state of

fear within the relationship, her motivation in breaking up

with the appellant, and her intent in leaving the relationship

with the appellant; therefore, it was not hearsay offered for the

truth of the matter asserted. Kashimba’s statement that “I

would see bruises,” was also not hearsay, but his own

observation. 3 RR 94.    However, even if the testimony had

been hearsay, it would fall under the exception for "[a]

statement of the declarant's then existing state of mind [or]

emotion" because Kashimba’s testimony ultimately concerned

Navarro’s state of mind about her relationship with the

appellant and her fear of him. TEX. R. EVID. 803(3).




                               32
     The court also did not abuse its discretion in allowing

Kashimba to testify that Navarro said she planned to get a job

and break up with the appellant because these statements

expressed her future plans and intent. 3 RR 102. “Hearsay

statements relating to the declarant's existing state of mind--

such as mental feelings or intent--are generally admissible

when that conduct is relevant to some aspect of the case.”

Martinez v. State, 186 S.W.3d 59, 67 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d), (holding that testimony that indicated

complainant's intentions of leaving appellant were admissible

under Rule of Evidence 803(3), citing TEX. R. EVID. 803(3);

Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000).)

See also, Fain v. State, 986 S.W.2d 666, 680 (Tex. App.—

Austin 1998, pet. ref'd), (victim's statement to a third party

that she was frustrated in the relationship, but intended to




                               33
continue the relationship with the defendant admissible under

Rule 803(3)); Russo v. State, 228 S.W.3d 779, 809-810 (Tex.

App.—Austin 2007, pet. ref’d), citing Saldivar v. State, 980

S.W.2d 475, 495 (Tex. App. —Houston [14th Dist.] 1998, pet.

ref'd) (“finding under Rule 803(3) that the trial court did not

err in admitting into evidence the murder victim's prior

statement that she was going to fire defendant, an employee”);

Pena v. State, 864 S.W.2d 147, 149- 150 (Tex. App.--Waco

1993, no pet.) (“upholding admission under Rule 803(3) of

murder victim's statement that she wanted to leave defendant,

but felt economically trapped”); Norton v. State, 771 S.W.2d

160, 165-66 (Tex. App.--Texarkana 1989, pet. ref'd) (“finding no

abuse of discretion in admission of prior statement by murder

victim that he intended to go to defendant's shop”). The

testimony of Anna Karen Perez that Navarro said that her




                               34
relationship was not what she expected and that she had

concerns about moving in with the appellant (3 RR 155-156)

was admissible by the same principle: it expressed her existing

state of mind. Fain v. State, 986 S.W.at 679-680. See

Thrailkille v. State, 2002 Tex. App. LEXIS 8972 (Tex. App.—

Beaumont Dec. 18, 2002)( opinion not designated for

publication)(holding declarant’s statement to ex-boyfriend that

her relationship with the defendant was over was

admissible)(“Under Rule 803(3) of the Rules of Evidence,

statements of the intent of the declarant with regard to

relations have been held to be admissible as showing future

intent, and also admissible to demonstrate state of mind.”) and

citing Dorsey v. State, 24 S.W.3d 921, 928 (Tex. App.—

Beaumont 2000, pet. ref’d), (“testimony that victim not getting

along with husband/defendant, and victim had been seeking




                              35
divorce”); Vann v. State, 853 S.W.2d 243, 250 (Tex. App. —

Corpus Christi 1993, pet. ref'd)(“testimony that the victim

stated that he was not happy in his marriage and wanted to

find a way out was admissible as a statement of emotional

state and intent to act”).

     “The admissibility of an out-of-court statement under an

exception to the general hearsay exclusion rule is within the

trial court's discretion.” Fain v. State, 986 S.W.2d at 680,

citing Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App.

1995), cert. denied, 519 U.S. 826 (1996). The trial court did not

abuse its discretion in admitting the evidence the appellant

now contests as admissible under Rule 803(3).




                              36
     Forfeiture by Wrongdoing

     “An evidentiary ruling, such as the one admitting […]

out-of-court statements, will be upheld on appeal if it is correct

on any theory of law that finds support in the record.”

Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).

Jessop v. State, 368 S.W.3d 653, 686 (Tex. App.—Austin 2012,

no pet.), citing De La Paz v. State, 279 S.W.3d 336, 344 (Tex.

Crim. App. 2009); (“[A] trial court's evidentiary ruling must be

upheld if it is correct under any theory of law that is

reasonably supported by the record, even if the trial judge gave

the wrong reason for the ruling.”) All of the hearsay

statements by Veronica Navarro that the appellant now

complains of were admissible because the appellant forfeited

his right to object to their admissibility through “forfeiture by

wrongdoing.”




                               37
      “The doctrine of forfeiture by wrongdoing has been a part

of the common law since at least 1666.” Gonzalez v. State, 195

S.W.3d 114, 117 (Tex. Crim. App. 2006), citing Reynolds v.

United States, 98 U.S. 145, 158 (1879). "The doctrine is based

on the principle that 'any tampering with a witness should

once for all estop the tamperer from making any objection

based on the results of his own chicanery.'" Gonzalez v. State,

195 S.W.3d at 117. In 2013, "Forfeiture by Wrongdoing" was

codified in the Texas Code of Criminal Procedure as an

evidentiary exception. TEX. CODE CRIM. PROC. art 38.49.

Under that statute, “A party to a criminal case who wrongfully

procures the unavailability of a witness or prospective witness

(1) may not benefit from the wrongdoing by depriving the trier

of fact of relevant evidence and testimony; and (2) forfeits the

party's right to object to the admissibility of evidence or




                               38
statements based on the unavailability of the witness as

provided by this article through forfeiture by wrongdoing.”

TEX. CODE CRIM. PROC. art 38.49.

     Texas Code of Criminal Procedure art 38.49 applies only

to an offense committed on or after the effective date of the act

that enacted it, September 1, 2013. TEX. CODE CRIM. PROC. art.

38.49. However, the doctrine existed before its codification

and, in Gonzalez v. State, the Texas Court of Criminal Appeals

applied the doctrine in the context of Confrontation Clause

objections. Gonzalez v. State, 195 S.W.3d 114, 119 (Tex. Crim.

App. 2006). The Court’s rationale and analysis in that case

suggest that the doctrine applied to hearsay objections as well.

See Gonzalez v. State, 195 S.W.3d at 119 (“While courts have

widely accepted the doctrine of forfeiture by wrongdoing to




                              39
reject both hearsay objections and confrontation claims, the

test for determining whether there is a forfeiture has varied.”)

     In this case, the record supports a finding of forfeiture by

wrongdoing according to the law at the time the offense was

committed in that (1) the declarant was unavailable, (2) as a

result of the defendant's act of misconduct. Gonzalez v. State,

195 S.W.3d at 119. The doctrine of forfeiture by wrongdoing is

applicable “even though the act with which the accused is

charged is the same as the one by which he allegedly rendered

the witness unavailable.” Id. at 125. Furthermore, although,

in Gonzales, the Court of Criminal Appeals declined to reach

the question of whether forfeiture by wrongdoing requires that

the “accused specifically intends that the witness be made

unavailable when he engages in the wrongful conduct,” given

the current statute’s disavowal of a requirement that the




                              40
offering party show that “the actor’s sole intent was to

wrongfully cause the witness’s or prospective witness’s

unavailability,” that requirement should not be applied to the

appellant’s action in this case. See Id.; TEX. CODE CRIM. PROC.

art. 38.49(d). Because the appellant “wrongfully procured the

unavailability” of Navarro by killing her, he forfeited his right

to object to her out-of-court statements coming into evidence.

      Based on both of the theories above, the trial court did

not abuse its discretion in allowing Navarro’s out-of-court

statements concerning her prior relationship with the

appellant into evidence.

Harmless Error

      Assuming, arguendo, that the court erred in allowing the

jury to hear the testimony, a trial court’s failure to properly




                               41
enforce evidentiary rules is non-constitutional error and will be

disregarded unless it affected the appellant's substantial

rights. TEX. R. APP. P. 44.2(b). The court need not reverse if,

after examining the record as a whole, it has “fair assurance

that the error did not influence the jury's deliberations to

appellant's detriment or had but a slight effect." Ladd v.

State, 3 S.W.3d 547, 566 (Tex. Crim. App. 1999); see TEX. R.

APP. P. 44.2(b). Erroneously admitted evidence "will not result

in reversal when other such evidence was received without

objection, either before or after the complained-of ruling."

Coble v. State, 330 S.W.3d 253, 286 (Tex. Crim. App. 2010)

(citing Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.

1998)); Houston v. State, 185 S.W.3d 917, 924 (Tex. App.—

Austin 2006, pet. ref’d).




                               42
      Here, in addition to Navarro’s statements objected-to as

hearsay, Navarro’s cousin said she saw that Navarro was

afraid. 3 RR 155. Chris Kashimba as testified that he “would

see bruises.” 3 RR 94. The appellant’s friend, Juan H. Darios,

testified that at the barbecue that they had together a few days

before Navarro’s death, the appellant “was definitely not being

very nice to her. He had been drinking quite a bit of beer. And

I just kind of objected to the way his behavior was towards her,

the way he talked to her.” 3 RR 62. Sarah Hansen, the

convenience store clerk who had sex with the appellant during

the time between Navarro’s death and the discovery of her

body testified that the appellant had a “six-pack of Lone Star

tall boys” with three remaining the day she ran into him at the

music festival and that he continued to drink and that “could

tell that he had alcohol in him” that night. 7 RR 17-18. There




                              43
was also additional evidence that Navarro planned to leave the

appellant including her willingness to work weekends in East

Austin which was incompatible living in Spicewood and taking

care of the appellant’s son. 3 RR 76. Because "substantially

the same evidence," that the appellant complains of:

demonstrating the appellant’s bad treatment of Navarro after

excessive drinking, and her fear of him and plans to leave the

relationship was admitted elsewhere without objection, any

potential error in admitting the evidence through hearsay was

harmless. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App.

1991).

         Furthermore in light of the evidence as a whole, the

complained-of testimony likely had but a slight effect on the

jury. The jury convicted the appellant of murder and

tampering with evidence based on a web of powerful




                                44
interrelated testimonial and physical evidence including cell

phone evidence showing the victim was on her way to the

appellant’s house when she answered her last call, cell phone

evidence that the appellant never once attempted to contact

Navarro after her phone went silent, that the appellant’s cell

phone traveled to the abandoned and remote site where

Navarro’s body was found in the early morning hours, that the

victim was wrapped in a Coleman tent matching an empty bag

found in the appellant’s home and weighted with paint cans

containing the same kind of paint used in the appellant’s

home, that the appellant was behaving strangely the morning

after Navarro was likely killed, that the appellant fled to the

Canadian border and attempted to enter there after Navarro’s

body was discovered and that the appellant was evasive when




                              45
his own mother asked him point-blank if he had killed

Navarro.

      Based on this overwhelming evidence, the court can have

fair assurance that the error either had no influence on the

jury's deliberations or had but slight effect. Ladd v. State, 3

S.W.3d at 566. The appellant’s point of error should be

overruled.


             State’s Reply to the Point of Error Two

     The evidence is sufficient to support the
     appellant’s murder conviction as well as his
     conviction for tampering with evidence.



Standard of Review

     A court reviewing for sufficiency of evidence must

determine whether, viewing all the evidence in the light most




                               46
favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 319

(1979); Brooks v. State, 323 S.W.3d 893, 899, 912 (Tex. Crim.

App. 2010).

Argument and Authorities

     The appellant argues that “[n]othing tied him to the tent,

rope, or paint cans found with Navarro’s body” (Appellant’s

Brief, No. 03-14-00234-CR at 16-17) and that “there is

absolutely no evidence that Appellant caused Navarro’s death”

(Appellant’s Brief, No. 03-14-00235-CR at 17). Because the

combined and cumulative force of all the incriminating

circumstances points to the appellant’s guilt of both offenses,

the evidence was sufficient to support both convictions.




                               47
     "Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish

guilt." Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App.

Jan. 16, 2013), quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). “In reviewing the sufficiency of the

evidence, [the court] should look at ‘events occurring before,

during and after the commission of the offense and may rely on

actions of the defendant which show an understanding and

common design to do the prohibited act.’" Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007), quoting Cordova v. State,

698 S.W.2d 107, 111 (Tex. Crim. App. 1985). “Each fact need

not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the

incriminating circumstances is sufficient to support the




                              48
conviction.” Hooper v. State, 214 S.W.3d at 13 (internal

citations omitted).

     Here, a myriad of circumstances all combined to

substantiate the appellant’s guilt. First, the appellant had a

motive to kill Navarro, his own sexual jealousy and fear of being

left. The appellant was involved in a love triangle with the

Navarro and Chris Kashimba. 3 RR 36-37. 3 RR 99.        6 RR 68. 6

RR 70. The appellant was jealous and controlling toward

Navarro. 3 RR 52- 56. 3 RR 155. 3 RR 60-65. 3 RR 158. Navarro

had plans to leave the appellant. 3 RR 102. 3 RR 70-76. The

appellant was treating Navarro badly just before her death. 3 RR

60-65. “Motive is a significant circumstance indicating guilt.”

Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). See

also, Hacker v. State, 389 S.W.3d 860, 870-71 (Tex. Crim. App.

2013).




                              49
      The evidence also showed that the appellant had the

opportunity both to kill Navarro and to dispose of her body. In

this case, the appellant lived in a “secluded” area in Spicewood,

Texas not far from where the victim’s body was found. 4 RR 272.

3 RR 38. 5 RR 23. Navarro’s last known communication was a

call to the appellant that showed her location as being near U.S.

Highway 71 and she told Kashimba she was on her way to the

appellant’s home when they parted. 6 RR 43. 5 RR 124-130. 3

RR 104-105. The appellant’s phone was silent for two hours

during the time that Navarro was most likely killed (between

8:24 to 10:30 on June 27). 6 RR 43- 47. The day following

Navarro’s likely death, complaining of illness, the appellant left

work around 7 pm, and between 1 am and 2:30 the following

morning, the appellant’s cell phone data records were consistent

with someone driving out to the abandoned location where her




                              50
body was left. 4 RR 22-23. 4 RR 26. 6 RR 124. 6 RR 109-119.

The appellant was familiar with the area the body was hidden by

virtue of his work as a firefighter with the Pedernales Fire

Department. 4 RR 50. Evidence of opportunity helps link a

defendant to wrongful conduct or is supportive of other evidence

of such conduct. Hacker v. State, 389 S.W.3d at 871.

     In addition, the evidence showed that the appellant had

tried to conceal Navarro’s death. Navarro’s body was found

underwater, wrapped in a Coleman tent. 3 RR 173-177. 3 RR

248. Her body had been bound with a rope and there was a rope

around the victim’s neck that was attached to cinder blocks and

paint cans that anchored it under the water. 3 RR 202. 3 RR

228. .3 RR 235. There were sections of Navarro’s skin that were

“cut out” post-mortem.. 4 RR 184. Attempts to conceal

incriminating evidence are also circumstantial evidence of guilt.




                              51
Guevara v. State, 152 S.W.3d at 50. The appellant’s attempts to

hide Navarro’s body and identity are probative both that he

tampered with evidence and also that he killed Navarro.

     The appellant seeks to minimize his connection to

Navarro’s body by citing the physical evidence in the record that

was inconclusive while ignoring inculpating evidence that did

connect him to the body. Appellant’s Brief, No. 03-14-00234-CR

at 15-16. For instance, although the appellant claims that

“nothing tied him” to the paint cans found with the victim, both

the paint cans found with the victim and the paint cans

recovered at his house were labeled as having been bought at a

Lowe’s in Hutto in July of 2010. 3 RR 236.   5 RR 175. The

appellant had lived in Hutto before he moved to the house in

Spicewood. 7 RR 73. Likewise, testing showed that the cans

found with the body contained the same kind of paint found in




                             52
the appellant’s home. 5 RR 185-188. Although testing did not

exclude other possible sources of paint, to the extent the paint

found in the appellant’s home could be scientifically compared to

the paint found with the victim, the match was as conclusive as

possible. 5 RR 188.

     Other evidence found with Navarro’s body was connected to

the appellant as well. For instance, the appellant had been given

specialized training in rope work for his job. 4 RR 51. 4 RR 78-

80. The appellant’s home contained ropes with complex knots. 5

RR 45. See 18 RR 10 (State’s Exhibit 221.) There was a rope

around the victim that was attached by complex knots to cinder

blocks and paint. 3 RR 235. See 11 RR 70. (State’s Exhibit 33.)

     Navarro’s body was found in an adult size medium t-shirt

that said “His Pain, Your Gain.” 5 RR 26. 3 RR 244. 3 RR 246-

247. Navarro wore a much smaller size. 5 RR 30. The




                              53
appellant’s home contained a number of size adult medium t-

shirts with slogans “related to religion, God, things like that.” 5

RR 49.

     Navarro’s body was wrapped inside of a Coleman tent. 5

RR 41. In the second search of the appellant’s home, a

Coleman tent bag was found without a tent inside it. 5 RR 35-

41. A Coleman tent besides the one that was with the victim

was not found in the investigation. 5 RR 42. The Coleman

tent bag found at the appellant’s home had the same product

number on it as the Coleman tent the victim was found

wrapped in. 5 RR 43. 5 RR 63. At trial, Renee Luna testified

about numerous consistencies between a tent that the

appellant had used on a camping trip in November of 2010

(shown in a photo) and the tent that was recovered, wrapping

the victim. 5 RR 137-145. 5 RR 101-103. See 19 RR 13




                               54
(State's Exhibit 256.) In his opinion, the tent that was

recovered from the lake was purchased in the bag found in the

appellant’s home. 5 RR 145.

     A black trash bag was found with the body. 3 RR 255.

Although there was no basis for determining whether the trash

bag found with the victim and the trash bags found in the

appellant’s home were ever at one time connected, the State’s

expert testified that the bags could possibly have come from

same batch of trash bags. 5 RR 148-154.

     The jury was entitled “to draw reasonable inferences

from basic facts to ultimate facts." Jackson, 443 U.S. at 318-19.

Given all of the connections between Navarro’s body and the

appellant, a rational trier of fact could have found the

appellant was the one to conceal her body and weight it




                              55
underwater. Jackson v. Virginia, 443 U.S. at 319. The

appellant’s elaborate attempts to conceal incriminating

evidence were probative of his guilt for murder as well.

Graham v. State, 566 S.W.2d 941, 951 (Tex. Crim. App. 1978).

     The appellant also argues that the State proved nothing

more than that the appellant had motive and opportunity to kill

Navarro. Appellant’s Brief, No. 03-14-00235-CR at 17. But,

unlike Stobaugh v. State, 421 S.W.3d 787, 865 (Tex. App. Fort

Worth 2014), cited by the appellant to say that juries cannot

convict on “mere speculation,” and where there was no body

recovered, not only was Navarro’s body (with its post-mortem cuts

and botched attempt at concealment) an incriminating part of the

evidence in this case, there was additional evidence that “wrongful

conduct ha[d] occurred.” Stobaugh v. State, 421 S.W.3d 787, 865

(Tex. App. Fort Worth 2014)




                              56
     Navarro’s manner death was ruled a homicide. 4 RR 196. 4

RR 213-215. The medical examiner ruled that asphyxia was the

cause of Navarro’s death. 4 RR 189. Navarro was deprived of

oxygen by some involuntary manner and means and she died as a

result of that. 4 RR 191. Because Navarro’s head and face were

decomposing it was difficult to evaluate whether she might have

petechia which would have been a factor in assessing

strangulation. 4 RR 168. Similarly because of the condition of the

body, it wasn’t possible to assess the victim’s neck for injuries,

even though there was a “rope [] tied tight around the neck,

attached to two cinder blocks and two paint cans.” 4 RR 170-172.

The medical examiner testified that in some strangulations the

findings are “very subtle.” 4 RR 187. The lack of detail about how

the asphyxia in this case came about was due to the decomposition

of Navarro’s body and thus was not exculpatory. Furthermore,




                               57
although he was cross examined on the possibility of “sudden

arrhythmic death syndrome,” the appellant’s theory of the case,

the medical examiner did not change his findings according to that

possibility. 4 RR 215. Navarro was young and healthy at the time

of her death. 4 RR 215. Navarro’s manner and cause of death

were additional “evidence that wrongful conduct has occurred.”

Hacker v. State, 389 S.W.3d at 871.

     “Intent may also be inferred from circumstantial evidence

such as acts, words, and the conduct of the appellant.” Guevara

v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). After the

time that Navarro was most likely killed (between 8:30 and

10:30 on June 27th), the appellant made calls to general and

home repair stores that might have materials such as those

found with Navarro’s body like ropes and paint cans. 6 RR 43-

47. The following day, the appellant was acting out-of-




                             58
character on the job and made zero attempts to contact

Navarro by phone. 4 RR 18- 67. 6 RR 70. The day after that,

the appellant headed for the border with Mexico, missing work

to do so. 6 RR 52-54. 4 RR 26-27. He then lied about why he

missed work, claiming that because “his girlfriend and he had

split up and he didn't want to leave the house fearing that she

was going to demolish -- or just tear up stuff in the house.” 4

RR 32-33. The trash can at the appellant’s house contained

pictures of Navarro, along with perfumes, lotions and other

female articles. 4 RR 283-284. Navarro was never reported

missing. 4 RR 137-138. The appellant responded

incriminatingly when his mother asked him if he had killed

the victim.3 State's Exhibit 318. Not only did the appellant


3In a recorded phone call to his mother, recorded after the appellant’s
detention after his attempted border crossing, the appellant’s mother
directly asks “Joe Derek, did you kill Veronica?” and the appellant responds




                                  59
travel to the U.S. border with Mexico after Navarro’s killing,

he also tried to enter Canada following the discovery of

Navarro’s body. 7 RR 31-45. “[A]factfinder may draw an

inference of guilt from the circumstance of flight.” Clayton v.

State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007).

       The State was required to prove that the appellant

intentionally or knowingly caused the death of Veronica Navarro,

and, knowing that an investigation of Navarro’s death was



with an uneasy laugh and says “Uh, Mom. Mom, I’m in the Pembina County
Jail. I guess they have a warrant out for my arrest.” State's Exhibit 318.
She confronts him again, saying “Tell me, did you hurt her, yes, or no?”
State's Exhibit 318. Again, the appellant does not respond to the question
but tells her the address where he is detained. Id. When she insists saying,
“I mean, did you?” the appellant changes the subject to his possible release.
Id. In the same phone call, the appellant’s mother admonishes him that he
cannot run if she obtains his release and tells him not to speak to anyone.
State's Exhibit 318. Later, when the appellant’s mother asks him “Did you
do anything wrong?,” the appellant responds “No, not today.” Id. She asks
“You did not hurt anybody” and he changes the subject, saying “Tell Dad
‘Happy Birthday.’” Id. Finally, when his mother states pleadingly, “But, you
didn’t do anything wrong?,” the appellant responds with a significant silence
until he asks “You still there?” Id.




                                  60
pending, he altered, destroyed, or concealed her corpse with intent

to impair its availability as evidence in the investigation. TEX.

PENAL CODE § 19.02; TEX. PENAL CODE § 37.09. The cumulative

force of all the incriminating circumstances is sufficient to support

the conviction on both charges. Hooper v. State, 214 S.W.3d at 13.

A rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. at 319. Brooks v. State, 323 S.W.3d at 912. The appellant’s

Point of Error Two should be overruled.




                              61
          State’s Reply to the Point of Error Three

     The trial court did not abuse its discretion in
     excluding evidence concerning Chris Kashimba’s
     past contacts with law enforcement because, as
     specific instances of conduct that were not prior
     convictions, they were inadmissible as
     impeachment evidence. Alternatively, any error
     in excluding the testimony was harmless.



Standard of Review

     As stated above, a trial court's decision to admit or

exclude evidence is reviewed for abuse of discretion. Powell v.

State, 63 S.W.3d at 438

Argument and Authorities

     The appellant argues that the court abused its discretion

by failing to allow him to cross examine Chris Kashimba by

allowing him to ask about three incidents involving law

enforcement contact with Kashimba. But the trial court did




                              62
not abuse its discretion in excluding evidence concerning Chris

Kashimba’s past contacts with law enforcement because, as

specific instances of conduct that were not prior convictions,

they were inadmissible as impeachment evidence.

     Rule of Evidence 611 provides that a “witness may be

cross-examined on any relevant matter, including credibility.”

TEX. R. EVID. 611. However, “Rule 608 limits the ability of a

party to introduce evidence regarding the character of a

witness.” Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim.

App. 2000) "’Specific instances of the conduct of a witness, for

the purpose of attacking or supporting the witness' credibility,

other than conviction of a crime as provided in Rule 609, may

not be inquired into on cross-examination of the witness nor

proved by extrinsic evidence.’" Martinez v. State, 17 S.W.3d at

688 quoting TEX. R. EVID. 608(b).




                              63
     At trial, the appellant wished to impeach Kashimba

relying on three incidents taken from police reports: a domestic

disturbance from February 26, 2010, a second domestic

disturbance from October 24, 2008 and a theft reported on

September 22, 2008. 3 RR 119-121. The State responded that

there had been “no report of any physical violence” between the

two of them in the reports and that the incidents had not

ended in convictions. 3 RR 118-119. After hearing argument

from the parties, the court held “I am not going to allow you to

impeach him with these specific incidences of conduct that

haven't resulted in any convictions at all.” 3 RR 123. The

court went on to say “However, with respect to -- one thing I

will say is with respect to the breakup, because there has been

an issue with respect to this relationship, I will allow you to

question him about their relationship and whether it was going




                               64
on or whether there was breakups at any time or something of

that nature.” 3 RR 123.

     Acknowledging the general rule that specific instances of

conduct are inadmissible to impeach a witnesses credibility,

the appellant argues that such evidence is nonetheless

admissible to “rebut affirmative representations made on

direct examination,” and that he should have been able to

rebut Kashimba’s representation on direct examination that he

and Navarro “never fought.” Appellant’s Brief, No. 03-14-

00234-CR at 20 and No. 03-14-00235-CR at 21. However,

because when Kashimba stated that he and Navarro “never

fought” he meant that they never physically fought, the

specific incidences the appellant sought to admit did not

contradict an affirmative misrepresentation.




                              65
     Kashimba’s testimony about whether he and Navarro

“fought” came in the context of direct examination by the State

on the history of his relationship with Navarro:

     Q. Okay. Now, Chris, I want to turn your
     attention to May or June of 2011. Were you and
     Veronica living together in that time period?
     A. Well, if she wasn't living in Marble Falls, then
     she was living with me.
     Q. Okay. When you guys were together, did you
     have a fight?
     A. No, ma'am. It might have been a discussion. I
     mean, we never fought. We never threw things or
     blew things out of portion. We were civilized
     people and talked like human beings.
     Q. Okay. I'm sorry, that was the wrong word.
     Did you-all break up before Veronica's death?
     A. Yes, ma'am, we sure did. 3 RR 96.

     In this exchange, Kashimba appears to misinterpret a

question from the State, an attempt to ask why he and

Navarro had separated, for a question about whether they had

ever had a physical confrontation. Given this context,




                              66
Kashimba’s denial of having “fought” was a denial of physical

violence toward Navarro, not that they had ever had

disagreements. Where there is no affirmative

misrepresentation, specific instances of conduct not resulting

in conviction do not constitute “rebuttal.” See Schoff v. State,

2010 Tex. App. LEXIS 1350, at *20 (Tex. App.—Austin Feb. 23,

2010, no pet.) (mem. op., not designated for publication). Thus,

unless the reports had contained evidence of any physical

violence between the Kashimba and Navarro they did not

rebut "affirmative misrepresentations" made on direct

examination. Furthermore, any potential ambiguity in the

meaning of “fought” in the context of the trial was corrected by

the latitude the court gave the appellant to ask the witness

about “breakups.”




                              67
     Because the evidence appellant wished to offer did

constitute specific instances of conduct but were not prior

convictions under Rule 609, trial court properly excluded the

evidence.

Harmless Error

     Assuming, arguendo, that the court abused its discretion

in excluding the evidence, the error would be regarded as non-

constitutional error. Accordingly, the error will be disregarded

if the reviewing court has fair assurance, after considering the

record as a whole, that the error did not affect the jury, or had

but slight effect. Bagheri v. State, 119 S.W.3d 755, 762-63

(Tex. Crim. App. 2003); see TEX. R. APP. P. 44.2(b).

     To the extent that the police reports impeached

Kashimba’s statement that he and Navarro “never fought”




                               68
because it was evidence that they had disagreements or

“fights,” that evidence was available to the appellant in other

forms in the record, already. The evidence at trial was that

Navarro’s romance with Kashimba was on-again-off-again. 3

RR 35. Navarro’s older sister testified that Navarro and

Kashimba “would always argue.” 3 RR 43. Kashimba himself

described the relationship as “off and on.” 3 RR 95. In fact,

just following the testimony during which Kashimba said he

and Navarro never “fought,” Kashimba described a specific

incident in which he saw a picture of Navarro taken with the

appellant after “she went out clubbing” and that after seeing it

he told Navarro “I would like for you to get your things and

move out.” 3 RR 96-97. Even without the police reports, there

was evidence in the record to show that Kashimba and

Navarro had disagreements.




                              69
     Furthermore, the appellant characterizes Kashimba’s

credibility as important to the case by saying that his

testimony was the only evidence that Navarro was planning on

leaving the appellant and thus established motive. But there

was evidence from other witnesses in the record establishing

motive. Navarro interviewed for a job that was inconsistent

with living out in Spicewood and taking care of the appellant’s

son just before she was killed. Also, Navarro’s cousins testified

about her troubled feelings within the relationship and the fact

she had alternately dated both Kashimba and the appellant.

Juan Darios testified about the evident unhappiness of the

couple just before Navarro’s death. Even if the jury

discounted Kashimba’s testimony, there was ample motive

evidence to rely upon from other sources. The error, if any, did




                              70
not affect the jury, or had but slight effect. Bagheri v. State,

119 S.W.3d at 762-63.

     In conclusion, the appellant’s Point of Error Three should

be overruled. The trial court's decision to exclude evidence of

specific instances of conduct to impeach Kashimba’s credibility

was not erroneous, much less “a clear abuse of discretion.”

Alternatively, if the court erred in excluding the evidence, the

error was harmless.




                               71
     State’s Reply to the Point of Error Four

     The trial court did not abuse its discretion in
     allowing the admission of a phone call from the
     appellant to his mother recorded while he was in
     jail because it was properly authenticated by
     voice identification. Alternatively, any error in
     admitting the testimony was harmless.



Standard of Review

     As stated above, a trial court's decision to admit or

exclude evidence is reviewed for abuse of discretion. Powell v.

State, 63 S.W.3d at 438. A trial court’s ruling will be upheld so

long as its decision to admit or exclude evidence is within the

"zone of reasonable disagreement." Montgomery v. State, 810

S.W.2d at 391.




                              72
Argument and Authorities

     State’s Exhibit 318 was admitted over the appellant’s

objections, including on authentication grounds. 7 RR 88. The

appellant now complains that the trial court should not have

admitted the phone call between the appellant and his mother

that was recorded while he was being held at the Pembina

County jail on the basis that it was improperly authenticated.

Specifically, the appellant argues that under Texas Rule of

Evidence 901, in addition to voice identification, telephone

calls must be authenticated “by the number assigned at the

time by the telephone company to a particular person or

business" and that “none of this evidence” was presented.

Appellant’s Brief, No. 03-14-00234-CR at 23 and No. 03-14-

00235-CR at 24, citing TEX. R. EVID. 901(b)(5)&(6). However,

since the phone call was properly authenticated by voice




                              73
identification, the trial court did not abuse its discretion in

admitting State's Exhibit No. 318.

     Under Rule 901 of the Texas Rules of Evidence, the

requirement of authentication or identification as a condition

precedent to admissibility is satisfied by “evidence sufficient to

support a finding that the matter in question is what its

proponent claims." TEX. R. EVID. 901(a). Subsection (b) of that

Rule offers a few examples of “evidence that satisfies the

requirement.” TEX. R. EVID. 901(b). However, “Rule 901(b)

makes it clear that the illustrations given therein are just that

and are not by way of limitation.” Phillips v. State, 436 S.W.3d

333, 339-340 (Tex. App.—Waco 2014, pet. granted),citing TEX.

R. EVID. 901(b). The Rule also does not require that evidence

be authenticated by more than one sufficient means.       For

instance, a telephone conversation can be authenticated using




                               74
the number dialed. TEX. R. EVID. 901(b)(6). But, the

identification all of the voices on the recording is another

proper means of authentication of a phone call. TEX. R. EVID.

901(b)(5); Phillips v. State, 436 S.W.3d at 339-340. The Rule

does not require that phone calls be authenticated by proof of

number dialed, so long as the evidence is sufficient to support a

finding that the matter in question is what its proponent

claims.

     In this case, Detective Leal identified the voices of both

the appellant and his mother. 7 RR 75. Chief Osvalt identified

the voice of the appellant’s cellmate in the background. 7 RR

68. This was sufficient authentication by voice identification

to support a finding that the call was what the State claimed.

TEX. R. EVID. 901(b)(5); See Duncan v. State, 2013 Tex. App.

LEXIS 3169, at *14 (Tex. App. —Dallas Mar. 22, 2013, no




                               75
pet.)(mem. opinion not designated for publication)(testimony of

employee of Sheriff's Department identifying audiotaped

recordings of jail phone conversations as well as the voices on

each exhibit was sufficient to support admission of the exhibits

under Rule 901.) The trial court did not abuse its discretion in

admitting State's Exhibit No. 318 over the appellant’s

authentication objection.

Harmless Error

  Assuming, arguendo, that the court erred in allowing the

exhibit into evidence, any error was harmless.   Error in the

admission of evidence is non-constitutional error subject to a

harm analysis under Texas Rule of Appellate Procedure

44.2(b). TEX. R. APP. P. 44.2(b); Hankins v. State, 180 S.W.3d

177, 182 (Tex. App.—Austin 2005, pet. ref’d).




                              76
     As argued, supra, in State’s Reply to the Point of Error

One, the appellant was convicted of both murder and

tampering with evidence based on a vast array of interrelated

physical and testimonial evidence. Because the scope of the

evidence in this case was so broad and the effect of the

evidence cumulative, the appellant’s phone call to his mother

from jail, as a single part of the detailed whole, did not

determine the verdict. See Motilla v. State, 78 S.W.3d 352,

356-57 (Tex. Crim. App. 2002) (overwhelming evidence of guilt

is factor to consider in harm analysis.)

     In conclusion, the appellant’s Point of Error Four should

be overruled. The appellant’s phone call to his mother from the

Pembina County Jail was properly authenticated and should

not have been excluded. Alternatively, if the court erred in

permitting it into evidence, the error was harmless.




                               77
           State’s Reply to the Point of Error Five

     The trial court did not abuse its discretion in
     admitting State’s Exhibit 318, a recorded phone
     call from the appellant to his mother from jail,
     because the exhibit did not violate the appellant’s
     right against self-incrimination. Even if State’s
     Exhibit 318 was admitted in error, it was
     harmless.



Standard of Review

     As stated above, a trial court's decision to admit or

exclude evidence is reviewed for abuse of discretion. Powell v.

State, 63 S.W.3d at 438. A trial court’s ruling will be upheld so

long as its decision to admit or exclude evidence is within the

"zone of reasonable disagreement." Montgomery v. State, 810

S.W.2d at 391.




                              78
Argument and Authorities

     The appellant argues that the appellant’s recorded phone

call to his mother from Pembina County Jail should not have

been admitted because the question “as to whether Appellant

killed Navarro clearly invaded his right to remain silent” and

“the answer was information only Appellant could supply.”

Appellant’s Brief, No. 03-14-00234-CR at 26 and No. 03-14-

00235-CR at 26. But, because this recorded exchange was

voluntarily made, out-of-court, and did not involve a State

actor, the Fifth Amendment rights the appellant claims

pertaining to the conduct of the prosecutor at trial were not

implicated. The admission of the phone call as an exhibit did

not violate the appellant’s right against self-incrimination.




                              79
     No person shall be compelled in any criminal case to be a

witness against himself. U.S. CONST. AMEND. V. Furthermore,

“the failure of any defendant to so testify shall not […] be

alluded to or commented on by counsel in the cause.” TEX.

CODE CRIM. PROC. art. 38.08. However, the Fifth Amendment

does not “preclude a witness from testifying voluntarily in

matters which may incriminate him.” Chapman v. State, 115

S.W.3d 1, 6 (Tex. Crim. App. 2003),quoting Minnesota v.

Murphy, 465 U.S. 420, 427-428 (1984).

      In his fifth point of error, the appellant erroneously

equates State’s Exhibit 318 with a prosecutor's comment on a

defendant's failure to testify at trial. Appellant’s Brief, No. 03-

14-00234-CR and No. 03-14-00235-CR, Point of Error Five,

citing Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App.

1981), Losada v. State, 721 S.W.2d 305, 313 (Tex. Crim. App.




                               80
1986), and Angel v. State, 627 S.W.2d 424, 425 (Tex. Crim.

App. 1982). The cases cited in support of this argument all

involved allegations that the State improperly commented on

appellant's failure to testify at trial. The conversation between

the appellant’s and his mother, including her question to him if

he had killed Navarro and his incriminating responses to that

question are not equivalent to a prosecutor’s comment on the

failure of the defendant to testify at trial. Therefore, the

prohibitions the appellant asserts simply do not apply. The

appellant’s conversation with his own mother was voluntary

and unprovoked by the State and was therefore admissible.

See Autry v. State, 626 S.W.2d 758, 765 (Tex. Crim. App.

1982)(Appellant's telephone call to his mother was shown to be

an act of free will and the admissions which were made were




                               81
within earshot of an officer were not the result of interrogation

and were admissible at trial.)

     The appellant’s Fifth Amendment rights were not

violated and his fifth point of error should be overruled.

Harmless Error

  Assuming, arguendo, that the court erred in admitting the

recording, any error was harmless.    See Harmless Error

analysis in State’s Reply to Point of Error Four, above.

      In conclusion, the appellant’s Point of Error Five should

be overruled. The phone conversation was admissible.

Alternatively, if the court erred, the error was harmless.




                                 82
           State’s Reply to the Point of Error Six

     The trial court did not abuse its discretion in
     denying the appellant’s motion for new trial
     because the newly-discovered evidence it was
     based upon merely showed that the appellant and
     Navarro were together prior to her death, did not
     contradict the evidence at trial, and would not
     have brought about a different result at trial..

Standard of Review

     “A trial court's ruling denying a defendant's motion for

new trial is reviewed under an abuse of discretion standard.”

Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).

Argument and Authorities

     The appellant argues that he should have been granted a

new trial because surveillance videotapes from a Walmart

store showing the appellant and Navarro shopping together

were turned over after the trial and that this evidence refuted




                              83
the State’s theory that Navarro was afraid of the appellant and

planned to leave him. Appellant’s Brief, No. 03-14-00234-CR

at 27 and No. 03-14-00235-CR at 27. But, because the newly-

discovered evidence merely showed that the appellant and

Navarro were together prior to her death and thus did not

contradict the evidence at trial, the appellant failed to

establish all of the essential requirements for a new trial based

on newly discovered evidence and the trial court's denial of the

motion for new trial was warranted.

     When material evidence favorable to the accused has

been discovered since trial “[a] defendant is entitled to have

his motion for new trial granted if (1) the newly discovered

evidence was unknown to him at the time of the trial; (2) his

failure to discover the new evidence was not due to the lack of

due diligence; (3) the new evidence is admissible and not




                               84
merely cumulative, corroborative, collateral, or impeaching;

and (4) the new evidence is probably true and will probably

bring about a different result.” Delamora v. State, 128 S.W.3d

344, 354 (Tex. App.—Austin 2004, pet. ref’d), citing Wallace v.

State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); Keeter v.

State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002). “A failure

by a defendant to establish any of the essential requirements

for a new trial based on newly discovered evidence warrants

the trial court's denial of the motion.” Delamora v. State, 128

S.W.3d at 354, citing Shafer v. State, 82 S.W.3d 553, 556 (Tex.

App.--San Antonio 2002, pet. ref'd).

     In this case, it was undisputed that the videos were not

turned over until after the trial and that was this was due to

no failure of the appellant. 10 RR 22. The State however,

argued that the evidence would not have brought about a




                              85
different result at trial. 10 RR 22. After hearing argument,

the court held that while it was “”having presided over this

case probably two months ago or less,” it had “a very good

recollection of the case” and that “the cumulative and

overwhelming circumstantial evidence of the defendant's guilt

certainly would indicate to this Court that that photo would

have had no impact on the ultimate outcome of the case.” 10

RR 24-25.

     As the State argued at the Motion for New Trial, the

surveillance evidence simply showed that the appellant and

Navarro were still together on June 26, 2011. 10 RR 23. That

was consistent with the evidence at trial showing the same. 6

RR 68. 6 RR 70. Given that the evidence at trial was

consistent with the newly-discovered evidence, not only the

appellant fail to establish that the evidence would “probably




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bring about a different result,” but it the evidence was

cumulative as well and thus the trial court certainly did not

commit an abuse of discretion in overruling the motion for new

trial. Salazar v. State, 38 S.W.at 148; Delamora v. State, 128

S.W.3d at 354. The appellant’s sixth point of error should be

overruled.


                               Prayer

     WHEREFORE, the State requests that the Court

overrule all of the appellant’s points of error and affirm the

judgment of the trial court.



                       Respectfully submitted,


                       Rosemary Lehmberg
                       District Attorney
                       Travis County




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                       /s/ Rosa Theofanis
                       Rosa Theofanis
                       Texas Bar No. 24037591
                       Assistant District Attorney
                       District Attorney’s Office
                       P.O. Box 1748
                       Austin, Texas 78767
                       Phone: 512.854.9400
                       Fax: 512.854.9206
                       Email: Rosa.Theofanis@ traviscountytx.gov
                             AppellateTCDA@ traviscountytx.gov


                  Certificate of Compliance

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3),
effective December 1, 2012, the State certifies that the length
of this brief is 12,200 words. The State also certifies, pursuant
to Texas Rule of Appellate Procedure 9.4(e), a conventional
typeface 14-point was used to print this brief.

                                    /s/ Rosa Theofanis
                                    Rosa Theofanis
                                    Assistant District Attorney


                     Certificate of Service

 This is to certify that the above State’s brief has been served
on the appellant by U.S. mail, electronic mail, by facsimile, or




                               88
electronically through the electronic filing manager to his
attorney, Kristen Jernigan, 207 S. Austin Ave, Georgetown,
Texas, 78626, <Kristen@txcrimapp.com>; on this 20th day of
May, 2015.

                                 /s/ Rosa Theofanis
                                 Rosa Theofanis
                                 Assistant District Attorney




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