                                                                                   ACCEPTED
                                                                               03-14-00402-CR
                                                                                       5216340
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                           5/8/2015 3:25:49 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                             No. 03-14-00402-CR

                                  In the                    FILED IN
                                                     3rd COURT OF APPEALS
                          COURT OF APPEALS               AUSTIN, TEXAS
                                 For the             5/8/2015 3:25:49 PM
                 THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
                                at Austin                    Clerk
                 ______________________________________

               On Appeal from the 26th Judicial District Court of
                         Williamson County, Texas
                        Cause Number 13-0481-K26
                ______________________________________

                    REX ALLEN NISBETT, Appellant
                                   v.
                    THE STATE OF TEXAS, Appellee
                 _____________________________________

                         APPELLANT’S BRIEF
                 _____________________________________



Counsel for Appellant                      KRISTEN JERNIGAN
Rex Allen Nisbett                          ATTORNEY AT LAW
                                           STATE BAR NUMBER 90001898
                                           207 S. AUSTIN AVE.
                                           GEORGETOWN, TEXAS 78626
                                           (512) 904-0123
                                           (512) 931-3650 (FAX)
                                           Kristen@txcrimapp.com




                        ORAL ARGUMENT REQUESTED
                      IDENTIFICATION OF PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the
names of all interested parties is provided below so the members of this Honorable
Court may at once determine whether they are disqualified to serve or should
recuse themselves from participating in the decision of this case.

Appellant:

Rex Allen Nisbett

Counsel for Appellant:

Keith Lauerman (at trial)                         Robert McCabe (at trial)
107 N. Lampasas                                   207 S. Austin Ave.
Round Rock, Texas 78664                           Georgetown, Texas 78626

Kristen Jernigan (on appeal)
207 S. Austin Ave.
Georgetown, Texas 78626

Counsel for Appellee, The State of Texas:

Jana Duty (at trial)
Williamson County District Attorney
Mark Brunner (at trial)
John Prezas (on appeal)
Assistant District Attorneys
405 Martin Luther King
Georgetown, Texas 78626

Trial Court Judge:

The Honorable Billy Ray Stubblefield




                                        ii
                                     TABLE OF CONTENTS

IDENTIFICATION OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . .vi

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

ARGUMENT & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

        1.       The evidence is insufficient to show Appellant committed the
                 offense of murder.

        2.       The prosecutor violated Appellant's right to remain silent
                 during jury argument.

        3.       The prosecutor violated Appellant's right to remain silent
                 during questioning of the lead detective in this case.

        4.       The State violated Article 39.14 of the Texas Code of Criminal
                 Procedure by failing to give proper notice of an expert witness.

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27




                                                      iii
                                  INDEX OF AUTHORITIES

CASES

Angel v. State, 627 S.W.2d 424 (Tex. Crim. App. 1982) . . . . . . . . . . . . . .20, 21, 22

Bell v. State, 724 S.W.2d 780 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . . . . 19

Brooks v. State, 323 S.W.3d 893, 896 (Tex. Crim. App. 2010) . . . . . . . . . . . .14, 18

Cannon v. State, 668 S.W.2d 401 (Tex. Crim. App. 1984) . . . . . . . . . . . . . . . 19, 20

Felder v. State, 848 S.W.2d 85 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . 19

Garrett v. State, 632 S.W.2d 350 (Tex.Crim.App. 1982) . . . . . . . . . . . . . 20, 22, 23

Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . .15

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . 14

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 18

Johnson v. State, 611 S.W.2d 649 (Tex. Crim. App. 1981) . . . . . . . . . . . .20, 21, 22

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . .25

Kotteakos v. United States, 328 U.S. 750 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . .25

Losada v. State, 721 S.W.2d 305 (Tex. Crim. App. 1986) . . . . . . . . . . . . .20, 21, 22

Malloy v. Hogan, 378 U.S. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Megan Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) . . . . . . . . . 14, 17

Nickens v. State, 604 S.W.2d 101 (Tex.Crim.App. 1980) . . . . . . . . . . . . . 20, 22, 23

Owen v. State, 656 S.W.2d 458 (Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . . . .20


                                                    iv
Richard Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010) . . . . . . . . 14, 15

Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Fort Worth, 2014) . . . . . . . .14, 17

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000),
                   cert. denied, 532 U.S. 944 (2001) . . . . . . . . . . . . . . . . . . . . . . 19


STATUTES AND RULES
TEX. CODE CRIM. PRO. Art. 38.08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20, 22, 23

TEX. CODE CRIM. PRO. Art. 39.14(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

TEX. CONST. Art. I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20, 21, 22, 23

TEX. PENAL CODE § 19.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. R. APP. P. 21.8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

TEX. R. APP. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. R. APP. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

U.S.CONST. AMEND. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20, 21, 22, 23




                                                           v
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 39.1, Appellant requests oral

argument in this case.




                                       vi
                                No. 03-14-00402-CR

                                   In the
                           COURT OF APPEALS
                                  For the
                  THIRD SUPREME JUDICIAL DISTRICT
                                 at Austin
                  ______________________________________

                On Appeal from the 26th Judicial District Court of
                          Williamson County, Texas
                         Cause Number 13-0481-K26
                 ______________________________________

                     REX ALLEN NISBETT, Appellant
                                    v.
                     THE STATE OF TEXAS, Appellee
                  _____________________________________

                          APPELLANT’S BRIEF
                  _____________________________________


                         STATEMENT OF THE CASE

       On March 21, 2013, Appellant was indicted for the felony offense of

murder, alleged to have been committed on or about December 14, 1991.        (CR:

10).   On June 11, 2014, a jury found Appellant guilty of the offense of murder as

alleged in the indictment.      (CR: 194, 258).   The jury assessed Appellant’s

punishment at forty-two years in prison.      (CR: 194).   Appellant timely filed

Notice of Appeal on June 16, 2014.      (CR: 253).   On July 10, 2014, Appellant

filed a Motion for New Trial.   (SCR: 3).   The motion was overruled by operation

                                        1
of law seventy-five days later.   See TEX. R. APP. P. 21.8.   This appeal results.

                            STATEMENT OF FACTS

       Carol Johnson testified that she is the mother of Vicki Lynn Nisbett, the

alleged victim in this case, and that Vicki was married to Appellant at the time she

disappeared in 1991.    (RR8: 39-40).    Vicki and Appellant were going through a

divorce.   (RR8: 40).   Johnson stated that she had not seen or heard from Vicki

since December of 1991 and that she would not have left her children behind.

(RR8: 46-47).

       Julie Tower, Vicki’s co-worker, testified that she knew Vicki for

approximately a year before she went “missing.”      (RR8: 65).    On December 14,

1991, the two had plans to attend their company’s Christmas party.        (RR8: 65).

Tower called Vicki at 2:30 p.m. and according to Tower, Vicki sounded upset

because she and Appellant had been arguing.          (RR8: 65-66).      Tower heard

Appellant and Vicki arguing and Vicki told Tower that Appellant had choked her.

(RR8: 66).   Tower called again at 5:30 p.m. and Appellant answered the phone.

(RR8: 67).   Tower told the jury that Appellant stated that Vicki had already left to

go to the party or to go to her apartment.        (RR8: 67).     Tower called thirty

minutes later and Appellant stated Vicki had gone straight to the party.       (RR8:

67).   The next day, Appellant called Tower and asked where Vicki was.         (RR8:


                                          2
68).

       Wayne Castleberry told the jury that he met Vicki in 1991 at a nightclub and

the two exchanged phone numbers.      (RR8: 74-76).      When he called her the next

day, Appellant answered the phone.     (RR8: 76).     Castleberry spoke with Vicki

the next day and they had lunch the following Monday.        (RR8: 77).   They kept

in contact and on December 14, 1991, Castleberry spoke to Vicki on the phone

once in the morning and once between 5:00 p.m. and 6:00 p.m.              (RR8: 79).

During the second phone call, a man picked up another phone and told Vicki to get

off of the phone, which she did.    (RR8: 80).    Vicki was supposed to call him

after the Christmas party but he never heard from her.    (RR8: 80-81).

       David Proctor testified that on December 16, 1991, he was a patrol deputy

with the Williamson County Sheriff’s Office and was dispatched to a missing

persons call.   (RR8: 87-88).   Proctor spoke with Appellant who indicated Vicki

was to have attended a Christmas party on December 14, 1991, while he watched

their children, and she was to have returned the next day but never did.      (RR8:

89).   Appellant was “very forthcoming” in answering Proctor’s questions and

allowed Proctor to look around the apartment.    (RR8: 96).     Appellant stated that

he and Vicki had been in an argument and that she had initiated a physical

altercation so he pushed her away.     (RR8: 97).     Appellant reported to Proctor


                                         3
that Vicki left the apartment shortly after and was depressed.       (RR8: 97).     On

cross-examination, Proctor admitted that when Appellant allowed Proctor to search

the apartment, Proctor never saw any blood or blood spatter. (RR8: 98-99).

      Jerry Fryer, Jr., stated that in December of 1991 he was a pastor at Trinity

Christian Center.     (RR8: 103).    Fryer told the jury that he counseled Appellant

and Vicki and that two days before she went missing, he met with Vicki who was

crying and fearful.    (RR8: 110).

      Richard Elliott of the Williamson County Sheriff’s Office related that on

December 16, 1991, Appellant and a co-worker phoned the Sheriff’s Office to

report Vicki missing.       (RR8: 115).        Appellant voluntarily appeared at the

Sheriff’s Office and gave a statement in which he related that he was living with

Vicki even though they were getting a divorce.            (RR8: 120-21).   Appellant

acknowledged that he and Vicki had an argument on December 14, 1991, that he

had pushed her away after she approached him, and that she left for a Christmas

party that evening.    (RR8: 121-22).     Appellant thought that Vicki may have run

off with another man since she had done that before.             (RR8: 122).      After

Appellant moved out of the apartment he shared with Vicki, Elliott had the

Department of Public Safety Crime Lab search for evidence inside the apartment.

(RR8: 138-39).      Pieces of carpet and sheetrock were collected.   (RR8: 146).     In


                                           4
February of 1992, Vicki’s car was located in an HEB parking lot.           (RR8: 149).

On cross-examination, Elliott admitted that “Vicki’s car” actually belonged to both

Appellant and Vicki and that the evidence collected from Vicki’s car had been lost

over the years so it could not be tested for DNA.             (RR8: 166-68).     Elliott

admitted further that he did not seek a search warrant for Castleberry’s car or home

and did not conduct surveillance on anyone other than Appellant.        (RR8: 169-70).

Elliott acknowledged that he did not pull phone records for anyone other than

Appellant.     (RR8: 170).     Elliott agreed that he never found a murder weapon, no

body has ever been found, and that there are no eyewitnesses to any alleged crime.

(RR8: 173-74).

         Kelly Misfeldt told the jury that in December of 1991 he lived in the Lake

Creek Parkway Apartments where Appellant and Vicki also lived.               (RR9: 6).

On December 29, 1991, Misfeldt saw Vicki outside of their apartments.            (RR9:

8-9).    Misfeldt remembered that Vicki was wearing a black jacket and black

pants.    (RR9: 11).    Misfeldt saw Vicki’s face and later, commented to Appellant

that he saw that Vicki was back.       (RR9: 12).    Misfeldt learned that no one was

aware that Vicki had returned so Appellant called the authorities to report what

Misfeldt saw.     (RR9: 12).     Misfeldt gave a statement to the authorities the next

day.     (RR9: 12).    In his statement, Misfeldt stated he was “99 percent sure that it


                                            5
was her.”     (RR9: 17).     On cross-examination, Misfeldt clarified that he knew

Vicki from meeting her several times before and was only thirty-five feet away

from her when he saw her on December 29, 1991.          (RR9: 18).    Misfeldt related

that an officer from the Sheriff’s Office met with him later and tried to get him to

change his statement.      (RR9: 19-20).

      Morris Smith told the jury that in December of 1991, he lived in the same

apartment complex as Vicki and Appellant.         (RR9: 26-28).      Smith was asked

about a time when Appellant borrowed his car, but could not remember so had to

have his memory refreshed with his statement from January 9, 1992.             (RR9:

29-32).   Even after reading his statement, Smith did not recall when Appellant

borrowed the car.   (RR9: 32).     According to his statement, the car was damaged

when Appellant returned it but Smith did not remember that fact when he testified.

(RR9: 35).    Smith state further that he did not “know a specific date… or when it

was” that Appellant borrowed his car.      (RR9: 37).   On cross-examination, Smith

admitted that his statement did not reflect that his car was damaged when

Appellant returned it.       (RR9: 42-43).     Smith acknowledged that detectives

searched his car a few days after Appellant borrowed it and found nothing

suspicious.   (RR9: 43).




                                           6
      Lana Faye Reed, Smith’s sister, told the jury that in December of 1991, she

lived with her brother at the apartment complex where Vicki and Appellant lived.

(RR9: 51-52).    Reed stated that on December 14, 1991, Smith babysat Vicki and

Appellant’s children for an hour to an hour and a half while Appellant borrowed

Smith’s car.    (RR9: 52-56).

      Robert James, a co-worker of Appellant’s, stated to the jury that on one

occasion he had a conversation with Appellant in which Appellant said that he had

caught his wife cheating and thought about killing her, but that was not the

Christian thing to do.   (RR9: 70).    On cross-examination, James admitted that no

one else was present when Appellant allegedly made this statement and that he did

not remember where they were when the statement was made.                 (RR9: 72).

James admitted further that he thought other people might feel the same way if

they caught their wife cheating.      (RR9: 72).   James acknowledged that this was

the only conversation he had with Appellant about his relationship with his wife.

(RR9: 74-75).

      Mark Johnson, Vicki’s brother, told the jury that in getting to know

Appellant, they went to Appellant’s brother’s property.      (RR9: 84).   According

to Johnson, there were large holes dug on the property and Appellant said that you

could bury a body on that property and no one would ever find it.         (RR9: 85).


                                           7
Johnson also told the jury that Appellant said he would kill Vicki before he let her

divorce him and take their children.       (RR9: 85).   On cross-examination, Johnson

acknowledged that he never told Vicki what Appellant allegedly said because he

did not take it seriously.    (RR9: 94).     Johnson also acknowledged that he never

included the fact that there were holes on Appellant’s brother’s property in his

statement to law enforcement.      (RR9: 96-97).

         Devane Clark testified that in 1992 he was employed with the DPS Crime

Lab and went to Appellant and Vicki’s apartment to collect evidence.          (RR10:

8-10).    Clark collected two samples of sheetrock from the home which appeared

to be stained and did a presumptive test for blood, which was positive.       (RR10:

16).     Clark also sprayed portions of carpet with luminal.     (RR10: 22-23).   He

tested a portion of the carpet and pad and the results showed a stain on both was

presumptive for blood.       (RR10: 25-26).      Clark also examined Vicki’s car, but

did not find any indication of blood in the car.               (RR10: 43-44).     On

cross-examination, Clark admitted that luminal is only a presumptive test and that

it reacts with other organic substances and minerals.       (RR10: 53-54).   Luminal

does not indicate how any blood got on a specific surface and does not measure the

volume of blood either.      (RR10: 54).    Clark acknowledged that luminal also does

not indicate the origin of the presumptive blood or how long it has been there.


                                             8
(RR10: 54).    Clark acknowledged further that he did not know whether Vicki was

alive or not, or if she died, how she died or who may have killed her.       (RR10: 81).

      Oscar Kizzee testified that in 1992, he worked for DPS and examined a

piece of sheetrock for latent fingerprints.       (RR10: 123).     Kizzee stated that the

sheetrock appeared to have Appellant’s palm print on it.         (RR10: 135-36).

      Detective Robert Kee testified that he was assigned to investigate this case

in 2011 and through his review of the case, learned that Appellant had been

interviewed a number of times, but never confessed to doing anything to Vicki.

(RR11: 35).    Investigators even attempted to have civilians try to get Appellant to

confess, but he did not.    (RR11: 34-35).

      Megan Clement, a forensic scientist, told the jury that she tested a sample of

carpet and compared blood found on the carpet to the DNA profiles of Vicki’s

mother and father and determined that the blood could not be excluded as

originating from the biological child of Vicki’s parents.      (RR11: 49-50).

      Heidi Prather told the jury that she is employed at the Missing Persons

Clearing House.    (RR11: 52).     Prather told the jury that her organization is still

actively looking for Vicki.    (RR11: 66).       Prather stated that she does not know if

Vicki is dead or alive.    (RR11: 68).




                                             9
      Jane Burgett, a forensic scientist with DPS, told the jury that she examined a

piece of sheetrock that was collected in 1992 and found a mixture which indicated

more than one DNA profile.       (RR11: 127).   Burgett could not exclude Appellant

as a contributor to the mixture.    (RR11: 137).    Burgett then tested a sample of

carpet that Clark had indicated a presumptive result for blood, but Burgett found

neither a stain nor any blood on the sample.         (RR11: 139).    She examined

another portion of the carpet and found a partial DNA profile of an unknown

female.     (RR11: 140).    Burgett also tested a piece of carpet padding and though

she found stains, none of them were blood.                   (RR11: 142).        On

cross-examination, Burgett agreed that she could not say how any DNA was left on

an item of evidence or whether the contributor was dead or alive when the DNA

was left.    (RR11: 143).    Burgett also agreed that a mixture of DNA profiles

could occur when DNA is left from two different people at two different times.

(RR11: 144).     In fact, DNA can come from several different sources including

blood, semen, sweat, epithelial cells, saliva, mucous, and hair.      (RR11: 145).

Burgett stated that she expected to find mixtures of DNA where two people live

together.    (RR11: 145-46).    Burgett stated that Appellant could not be excluded

as a contributor to the sheetrock sample which contained a handprint, but that

statistically, she could not say that Appellant was the contributor of the DNA


                                          10
profile found on that sample beyond a reasonable degree of scientific certainty.

(RR11: 149-50).    Burgett acknowledged that as for the carpet sample, State’s

Exhibit 80, she tested several stains but none indicated the presence of blood.

(RR11: 153-55).    Portions of the carpet sample had previously been cut out and

Burgett examined those, which were admitted as State’s Exhibit 85.      (RR11: 154).

One of the stains contained human DNA, but was very difficult to see.         (RR11:

157-58).   Burgett clarified that the mixture of DNA profiles found on that stain

was from two females.    (RR11: 166).    The other stain contained blood, but “was

hard to see.”   (RR11: 160).    Burgett stated that neither stain contained enough

blood to indicate a person had died.   (RR11: 160).     Burgett could not testify that

a crime occurred in this case or that Appellant committed an intentional act.

(RR11: 170).

      Dr. Arthur Eisenberg, a professor at University of North Texas, told the jury

that he examined the carpet and padding collected from Vicki and Appellant’s

apartment and determined that Appellant was not a contributor to the DNA found

on the carpet or the padding.    (RR12: 15-16).       Eisenberg determined that the

probability that Vicki was the contributor to the DNA on the carpet and the

padding was over ninety-nine percent.        (RR12: 17).     On cross-examination,

Eisenberg admitted he could not say that the contributor of the DNA on the carpet


                                        11
and padding was deceased.       (RR12: 20).     Likewise, he could not say that

Appellant committed any crime based on his findings.     (RR12: 20).

                             ISSUES PRESENTED

      1.     The evidence is insufficient to show Appellant committed the
             offense of murder.

      2.     The State violated Appellant’s right to remain silent during jury
             argument.

      3.     The State violated Appellant’s right to remain silent during
             questioning of the lead detective in this case.

      4.     The State violated Article 39.14 of the Texas Code of Criminal
             Procedure by failing to give proper notice of an expert witness.

                      SUMMARY OF THE ARGUMENT

      Appellant’s first point of error should be sustained because the evidence is

insufficient to support the jury’s finding of guilt where there is no evidence that

Appellant committed an intentional act or an act clearly dangerous to human life

which caused a death.     Appellant’s second point of error should be sustained

because the prosecutor improperly argued to the jury that Appellant would not

reveal the location of Vicki’s body in violation of his right to remain silent

pursuant to the Fifth Amendment to the United States Constitution, the Texas

Constitution, the Texas Code of Criminal Procedure, and well-established

precedent.   Appellant’s third point of error should be sustained because the


                                         12
prosecutor violated Appellant’s right to remain silent by asking the lead detective

in this case whether Appellant ever asserted his innocence in violation of

Appellant’s right to remain silent pursuant to the Fifth Amendment to the United

States Constitution, the Texas Constitution, the Texas Code of Criminal Procedure,

and well-established precedent.     Appellant’s fourth point of error should be

sustained because the State violated Article 39.14(b) of the Texas Code of

Criminal Procedure by failing to give proper notice of its intent to call an expert

witness.

                        ARGUMENT & AUTHORITIES

      I.     The evidence is insufficient to show Appellant committed the
             offense of murder.

      The evidence is insufficient to show Appellant committed the offense of

murder where the State failed to prove any of the elements of the offense.       The

Court of Criminal Appeals has held that the legal sufficiency standard set out in

Jackson v. Virginia, 443 U.S. 307, 320 (1979), is the only standard that a

reviewing court should apply when determining the sufficiency of the evidence.

Brooks v. State, 323 S.W.3d 893, 896 (Tex. Crim. App. 2010).       When reviewing

the legal sufficiency of the evidence, an appellate court views the evidence in the

light most favorable to the verdict and determines whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

                                         13
Jackson, 443 U.S. at 320; Brooks, 323 S.W.3d at 896.

      In order to prove its case beyond a reasonable doubt, the State was required

to show that Appellant intentionally or knowingly caused Vicki’s death or

committed an act clearly dangerous to human life which caused her death. TEX.

PENAL CODE § 19.02.

      It is well-settled that circumstantial evidence alone can be sufficient to

establish guilt.   Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

“And while juries are permitted to draw multiple reasonable inferences, as long as

each inference is supported by the evidence presented at trial, juries are not

permitted to come to conclusions based on mere speculation or factually

unsupported inferences or presumptions.” Stobaugh v. State, 421 S.W.3d 787, 862

(Tex. App.—Fort Worth, 2014), citing Megan Winfrey v. State, 393 S.W.3d 763,

771 (Tex. Crim. App. 2013).   “If the evidence presented at trial raises ‘only a

suspicion of guilt, even a strong one, then that evidence is insufficient [to

convict].’” Id., citing Richard Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim.

App. 2010).

      In Stobaugh, the Second Court of Appeals found the evidence insufficient to

support the defendant’s conviction for murder where the State failed to prove a

specific act which caused the victim’s death.   Id. at 864-65.   Further, the Court


                                        14
held that motive and opportunity alone are not enough to support a murder

conviction.   Id. at 865.

      Such is the case here.   The State failed to prove any of the elements of the

offense and only proffered speculation as to motive and opportunity.      And while

it is true that evidence of motive and opportunity helps link a defendant to

wrongful conduct or is supportive of other evidence of such conduct, without

evidence that wrongful conduct has occurred, there is nothing for motive and

opportunity evidence to link the defendant to.    Hacker v. State, 389 S.W.3d 860,

871 (Tex. Crim. App. 2013).

      The State’s own witnesses agreed that there is no evidence that Appellant

committed an intentional act or an act clearly dangerous to human life or even that

a death occurred.   For example, Elliott, the lead detective in this case, agreed that

he never found a murder weapon, no body has ever been found, and that there are

no eyewitnesses to any alleged crime.          (RR8: 173-74).    Smith, Appellant’s

neighbor, testified that detectives searched his car a few days after Appellant

allegedly borrowed it and found nothing suspicious.      (RR9: 43). Clark testified

that he did not know whether Vicki was alive or not, or if she died, how she died or

who may have killed her.    (RR10: 81).




                                          15
        Detective Robert Kee testified that he was assigned to investigate this case

in 2011 and through his review of the case, learned that Appellant had been

interviewed a number of times, but never confessed to doing anything to Vicki.

(RR11: 35).     Investigators even attempted to have civilians try to get Appellant to

confess, but he did not.   (RR11: 34-35).

        Heidi Prather of the Missing Persons Clearing House told the jury that her

organization is still actively looking for Vicki and that she does not know if Vicki

is dead or alive.    (RR11: 66-68).     In addition, Fryer and Tower both declared

Vicki “missing.”    (RR8: 65), (RR8: 110).

        DNA analyst Burgett stated that the amount of blood found in Appellant’s

apartment was “very hard to see” and that there was not enough blood to indicate a

person had died.     (RR11: 160).     Further, Burgett could not testify that a crime

occurred in this case or that Appellant committed an intentional act.    (RR11: 160,

170).    The other DNA expert, Dr. Eisenberg, also stated he could not say that

Appellant committed any crime based on his findings.      (RR12: 20).

        On the other hand, the record reflects that Appellant cooperated with the

investigation into Vicki’s disappearance and there is evidence she is not, in fact,

deceased.     Proctor testified that Appellant was “very forthcoming” in answering

his questions and allowed Proctor to look around the apartment.           (RR8: 96).


                                          16
When Proctor searched Appellant’s apartment, with Appellant’s consent, Proctor

never saw any blood or blood spatter.           (RR8: 98-99).   In addition, Misfeldt

testified that on December 29, 1991, he saw Vicki outside of her apartment.

(RR9: 8-9).     Misfeldt specifically remembered that Vicki was wearing a black

jacket and black pants.       (RR9: 11).    Misfeldt was unequivocal that he saw

Vicki’s face and was “99 percent sure that it was her.”      (RR9: 17).   Despite that

fact, and the fact that Misfeldt has maintained his assertion that he saw Vicki for

over twenty years, an officer from the Sheriff’s Office met with him and tried to

get him to change his statement.    (RR9: 19-20).

         Clearly, the jury had questions about whether the State had proven its case.

They deliberated for more than two days and had several questions.           First, the

jury sent out a question which read, “definition of reasonable inference” and

“definition/clarification on intentionally and knowingly.”      (CR: 183).   The jury

sent another note which read, “We are split 7-5 and haven’t changed decisions

since 2.    Some of us are getting tired and reasoning skills are not so great.    Do

we keep deliberating or take a break to sleep?        What about possibility of hung

jury?”     (CR: 187).   On the day they finally reached a verdict, June 11, 2014, the

jury sent a note that said “Can we convict on a lesser charge than murder or is it

the only option at this time?”   (CR: 195).     The same day, the jury sent a note that


                                           17
said, “We have come to an impass, we are still dead-locked at 7-5 and no new info

or evidence is changing anyone’s minds.        What do we do?”    (CR: 205).     They

received an “Allen Charge” on June 11, 2014 at 4:00 p.m.       (CR: 206).     The jury

then found Appellant guilty of murder only a few hours later, presumably because

they took the Court’s supplemental charge as a directive to do so.   (CR: 194).

         The State’s case was nothing more than pure conjecture and speculation.

Not one witness testified that Vicki died or what her cause of death, if any, was.

As discussed above, “while juries are permitted to draw multiple reasonable

inferences, as long as each inference is supported by the evidence presented at trial,

juries are not permitted to come to conclusions based on mere speculation or

factually unsupported inferences or presumptions.” Stobaugh, 421 S.W.3d at 862;

Winfrey, 393 S.W.3d at 771.     That is clearly what happened in this case.

         In the absence of any evidence to show Appellant’s mental state, that he

acted intentionally or knowingly, that a death in fact occurred, or that Appellant

committed an act clearly dangerous to human life, no rational trier of fact could

have found the essential elements of the offense of murder beyond a reasonable

doubt.     Jackson, 443 U.S. at 320; Brooks, 323 S.W.3d at 896.         Accordingly,

Appellant’s first point of error should be sustained.




                                          18
      II.    The prosecutor violated Appellant’s right to remain silent
             during jury argument.

      The prosecutor improperly argued to the jury that Appellant would not

reveal the location of Vicki’s body in violation of his right to remain silent

pursuant to the Fifth Amendment to the United States Constitution, the Texas

Constitution, the Texas Code of Criminal Procedure, and well-established

precedent.   During closing argument at the punishment phase of trial, the

prosecutor argued the following:

      THE PROSECUTOR: One of the things that I do want you to take
      into consideration is the one thing that the Johnson family wants out
      of this, and the only thing they’ve ever wanted. And it’s not blood,
      and it’s not vengeance. It’s that they want Vicki back. They want to
      give her a Christian burial. And they want her remains, and they want
      to be able to have a memorial service and funeral that they’ve never
      had for her. That’s the one thing they’ve asked for. They didn’t come
      here for vengeance and out for blood and out for him to deal with a
      life sentence. That’s never been what’s in their hearts. What was
      in their hearts was they just want Vicki back, and he refuses to do that.
      So I hope you'll remember that –

(RR15: 57-58).

      Appellant objected and preserved his objection as follows:

      DEFENSE COUNSEL: I object, Your Honor. She’s commenting on
                       his right to silence, right not to testify.

      THE COURT:                Sustained.

      DEFENSE COUNSEL: Ask the jury to disregard, Your Honor.


                                         19
      THE COURT:                 The jury will disregard.

      DEFENSE COUNSEL: Ask for a mistrial.

      THE COURT:                 Denied.

(RR15: 58).    See TEX. R. APP. P. 33.1.

      There are four proper areas of jury argument: (1) summation of the evidence,

(2) reasonable deductions drawn from the evidence, (3) answer to opposing

counsel’s argument, and (4) plea for law enforcement. Wesbrook v. State, 29

S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001).        An

argument which exceeds these bounds is error. Id.           That error is subject to

reversal if, in light of the record as a whole, “the argument is extreme or manifestly

improper, violative of a mandatory statute or injects new facts, harmful to the

accused, into the trial.”   Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App.

1992), citing Bell v. State, 724 S.W.2d 780 (Tex. Crim. App. 1986); Cannon v.

State, 668 S.W.2d 401 (Tex. Crim. App. 1984).

      A prosecutor’s comment on a defendant’s failure to testify offends both the

Texas State and Federal Constitutions. U.S.CONST. AMEND. V; TEX. CONST. Art. I,

§ 10; see also Garrett v. State, 632 S.W.2d 350, 351 (Tex.Crim.App. 1982);

Nickens v. State, 604 S.W.2d 101, 104 (Tex.Crim.App. 1980).       A comment on the

Defendant’s failure to testify also violates statutory law. TEX. CODE CRIM. PRO.


                                           20
Art. 38.08. (“…the failure of any defendant to so testify shall not be taken as a

circumstance against him, nor shall the same be alluded to or commented on by

counsel in the cause.”).    If the complained-of remark called the jury’s attention to

the absence of evidence that only the testimony from the appellant could supply,

the conviction must be reversed. See Losada v. State, 721 S.W.2d 305, 313 (Tex.

Crim. App. 1986); Angel v. State, 627 S.W.2d 424, 426 (Tex. Crim. App. 1982);

Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981).           As a general

rule, the adverse effect of an improper remark on the defendant’s failure to testify

during jury argument cannot be cured by an instruction to the jury.          Owen v.

State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983).

          In the present case, the prosecutor argued that Appellant would not reveal

the location of Vicki’s body.     This manifestly improper argument clearly violated

Appellant’s Fifth Amendment, State Constitution, and statutory right to remain

silent.     U.S.CONST. AMEND. V; TEX. CONST. Art. I, § 10; TEX. CODE CRIM. PRO.

Art. 38.08.      The prosecutor’s statement only served to inflame the jury at the

expense of Appellant’s rights.      Further, according to the prosecutor herself, the

information sought was information only Defendant could have testified to.         As

such, Appellant is entitled to a reversal and his second point of error should be

sustained.     See Losada, 721 S.W.2d at 313; Angel, 627 S.W.2d at 426; Johnson,


                                          21
611 S.W.2d at 650.

        III.   The prosecutor violated Appellant’s right to remain silent
               during questioning of the lead detective.

        The prosecutor violated Appellant’s right to remain silent by asking the lead

detective in this case whether Appellant ever asserted his innocence in violation of

Appellant’s right to remain silent pursuant to the Fifth Amendment to the United

States Constitution, the Texas Constitution, the Texas Code of Criminal Procedure,

and well-established precedent.     The prosecutor asked Elliott “In the 22 and a half

years that you have worked with or dealt with Rex Nisbett, has he ever said to you

‘Chief, I did not kill my wife?’”   (RR8: 161).

        The Fifth Amendment provides that “no person … shall be compelled in any

criminal case to be a witness against himself.”      U.S. CONST. AMEND. V.       This

right was made applicable to the states by the Due Process Clause of the

Fourteenth Amendment.          Malloy v. Hogan, 378 U.S. 1 (1964).              Texas

Constitution article I, § 10, provides that “in all criminal prosecutions the accused

shall … not be compelled to give evidence against himself.”       TEX. CONST. Art. I,

§ 10.

        A prosecutor’s comment on a defendant’s failure to testify or give evidence

against himself offends both the Texas State and Federal Constitutions.

U.S.CONST. AMEND. V; TEX. CONST. Art. I, § 10; see also Garrett v. State, 632

                                          22
S.W.2d 350, 351 (Tex.Crim.App. 1982); Nickens v. State, 604 S.W.2d 101, 104

(Tex.Crim.App. 1980).      A comment on the Defendant’s failure to testify also

violates statutory law.   Texas Code of Criminal Procedure Article 38.08 provides,

“…the failure of any defendant to so testify shall not be taken as a circumstance

against him, nor shall the same be alluded to or commented on by counsel in the

cause.”   TEX. CODE CRIM. PRO. Art. 38.08.     If the complained-of remark called

the jury’s attention to the absence of evidence that only the testimony from the

appellant could supply, the conviction must be reversed. See Losada v. State, 721

S.W.2d 305, 313 (Tex. Crim. App. 1986); Angel v. State, 627 S.W.2d 424, 426

(Tex. Crim. App. 1982); Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App.

1981).    As a general rule, the adverse effect of an improper remark on the

defendant’s failure to testify cannot be cured by an instruction to the jury.   See

Owen v. State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983).

      In the present case, the prosecutor’s manifestly improper question clearly

violated Defendant’s Fifth Amendment, State Constitution, and statutory right to

remain silent.   U.S.CONST. AMEND. V; TEX. CONST. Art. I, § 10; TEX. CODE CRIM.

PRO. Art. 38.08.   The prosecutor’s question, in which he asked whether Appellant

had asserted his innocence, was a win-at-all costs question aimed at proving a case

in which the State had no actual evidence, but rather only speculation and


                                         23
conjecture.   It is a tenet of our jurisprudence that an accused is not required to

show his innocence, but that it is the burden of the State to prove him guilty.      To

reverse that burden, as the prosecutor did in this case, is unconstitutional.      Under

these circumstances, Appellant is entitled to a reversal.     U.S.CONST. AMEND. V;

TEX. CONST. Art. I, § 10; see also Garrett, 632 S.W.2d at 351; Nickens, 604

S.W.2d at 104.        Accordingly, Appellant’s third point of error should be

sustained.

      IV.     The State violated Texas Code of Criminal Procedure Article
              39.14 by failing to give proper notice of an expert wintess.

      The State violated Texas Code of Criminal Procedure Article 39.14(b) by

failing to give notice of a State’s expert witness.   Article 39.14(b) provides:

      On motion of a party and on notice to the other parties, the court in
      which an action is pending may order one or more of the other parties
      to disclose to the party making the motion the name and address of
      each person the other party may use at trial to present evidence under
      Rules 702, 703, and 705, Texas Rules of Evidence. The court shall
      specify in the order the time and manner in which the other party must
      make the disclosure to the moving party, but in specifying the time in
      which the other party shall make disclosure the court shall require the
      other party to make the disclosure not later than the 20th day before
      the date the trial begins.

TEX. CODE CRIM. PRO. Art. 39.14(b).

      On July 17, 2013, Appellant filed a request for notice of State’s expert

witnesses.    (CR: 48).   The State subsequently filed five such notices.       In three


                                           24
of those notices, the State listed Megan Clement and listed “Tarrant County ME”

as her place of employment, but did not provide her address.           (RR10: 168-69,

176-77); (CR: 97, 106, 113, 117).

      However, at trial, Clement testified that she is a forensic scientist employed

at Cellmark Forensics.    Clement, a DNA analyst, was part of the chain of custody

for the carpet samples taken from Appellant’s apartment as well as the blood vials

containing Appellant’s blood, and the blood of Vicki’s parents, which was used for

comparison.    (RR10: 154-55).      Clement was allowed to testify, over Appellant’s

objection, even though the State did not properly notice her as an expert in

violation of Texas Code of Criminal Procedure Article 39.14(b).        (RR10: 176-77).

      Appellant was harmed by Clement’s unnoticed testimony because he was

not informed that instead of testifying as a medical doctor presumably about a

cause of death as a medical examiner, Clement was actually a chain of custody

witness that could affect the admissibility of all of the DNA evidence in this case.

Appellant’s substantial rights, including his right to a fair trial, were affected by the

trial court’s ruling allowing her testimony despite the fact that the State undeniably

violated Article 39.14(b) of the Texas Code of Criminal Procedure.         TEX. R. APP.

44.2(b).   “A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict.” King v. State, 953


                                           25
S.W.2d 266, 271 (Tex. Crim. App. 1997), citing Kotteakos v. United States, 328

U.S. 750, 776 (1946).     Clearly, the admission of DNA evidence, and the only

piece of “evidence” the State relied upon to argue a struggle occurred in

Appellant’s apartment, affected the jury’s verdict.          The jury spent days

deliberating Appellant’s guilt and only returned a verdict after receiving a

supplemental charge from the Court.     Because Clement was allowed to testify, the

State was permitted to argue that there was blood evidence in the apartment and

that argument necessarily impacted the outcome of Appellant’s trial.     See King,

953 S.W.2d at 271.     For the foregoing reasons, Appellant’s fourth point of error

should be sustained.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that this Court reverse the judgment and sentence in this case.

                                              Respectfully submitted,


                                              _____”/s/” Kristen Jernigan_______
                                              KRISTEN JERNIGAN
                                              State Bar Number 90001898
                                              207 S. Austin Ave.
                                              Georgetown, Texas 78626
                                              (512) 904-0123
                                              (512) 931-3650 (fax)
                                              Kristen@txcrimapp.com


                                         26
                        CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the

foregoing Appellant’s Brief has been hand-delivered to John C. Prezas, Appellate

Attorney for the Williamson County District Attorney’s Office, 405 Martin Luther

King, Georgetown, Texas 78626, on May 8, 2015.


                                    ________”/s/” Kristen Jernigan__________
                                    Kristen Jernigan




                    CERTIFICATE OF WORD COUNT

      The undersigned hereby certifies that the foregoing document consists of

7,695 words in compliance with Texas Rule of Appellate Procedure 9.4.



                                    ________”/s/” Kristen Jernigan__________
                                    Kristen Jernigan




                                      27
