                                                                                          ACCEPTED
                                                                                      03-15-00420-CR
                                                                                            12911938
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
October 4, 2016                                                                 9/26/2016 10:27:57 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                               NO. 03-15-00420-CR

                                                                    RECEIVED IN
                                                              3rd COURT OF APPEALS
                             IN THE COURT OF APPEALS               AUSTIN, TEXAS
                                                              9/26/2016 10:27:57 PM
                                    FOR THE                       JEFFREY D. KYLE
                                                                       Clerk

                    THIRD SUPREME JUDICIAL DISTRICT

                               AT AUSTIN, TEXAS


                          KARRA TRICHELE ALLEN,
                                 Appellant

                                        vs.

                             THE STATE OF TEXAS,
                                   Appellee


                    Appeal from the 33rd Judicial District Court
                                 Cause No. 42765
                              Burnet County, Texas
                  The Honorable J. Allan Garrett, Judge Presiding


                              APPELLANT'S BRIEF


                                              Gary E. Prust
                                              State Bar No. 24056166
                                              1607 Nueces Street
                                              Austin, Texas 78701
                                              (512) 469-0092
                                              Fax: (512) 469-9102
                                              gary@prustlaw.com

                                              ATTORNEY FOR APPELLANT
                          IDENTITY OF THE PARTIES

APPELLANT:
Karra Trichele Allen
Mountain View Unit
2305 Ransom Rd.
Gatesville, TX 76528

TRIAL COUNSEL FOR APPELLANT:
Eddie Shell              Bobbi Shell
SBN 18191650             SBN 24083499
Kirby Crow
SBN 24094606
6000 N. Hwy 281
Marble Falls, TX 78654

APPELLATE COUNSEL FOR APPELLANT:
Gary E. Prust
SBN 24056166
Law Office of Gary E. Prust
1607 Nueces St.
Austin, TX 78701

TRIAL COUNSEL FOR APPELLEE:
Wiley “Sonny” McAfee, Jr.           Peter Keim
SBN 13318020                        SBN 15532500
  rd       th
33 and 424 Judicial District Attorney’s Office
PO Box 725
Llano, TX 78643

APPELLATE COUNSEL FOR APPELLEE:
Gary W. Bunyard
SBN 03353500
33rd and 424th Judicial District Attorney’s Office
PO Box 725
Llano, TX 78643




                                          ii
                                          TABLE OF CONTENTS

Identity of the Parties ................................................................................................ ii

Table of Contents ..................................................................................................... iii

Table of Authorities................................................................................................... v

Statement of the Case................................................................................................ 1

Statement Regarding Oral Argument ........................................................................ 1

Issues Presented ........................................................................................................ 2

      I.    Appellant suffered egregious harm because the jury instructions
omitted the presumption of reasonableness that the use of deadly force was
immediately necessary.
       II.    Appellant suffered egregious harm because jury instruction on the law
of self-defense omitted a significant portion of the law on use of deadly force in
self-defense.
      III. Appellant suffered egregious harm because the jury instructions
included extra-statutory language regarding self-defense in response to verbal
provocation not permitted by the penal code.
       IV. The cumulative effect of the numerous errors in the jury instructions
has resulted in a constitutional due process violation because Appellant was denied
the right to have a legal defense accurately presented to the jury.


Statement of the Facts ............................................................................................... 3

Summary of the Argument ...................................................................................... 40

Argument	 ............................................................................................................... 42

         Argument on Issues I, II, III ......................................................................... 42



                                                            iii
         Argument on Issue IV ................................................................................... 68

Prayer ...................................................................................................................... 72

Certificate of Service .............................................................................................. 73

Certificate of Compliance ....................................................................................... 73

Appendix ................................................................................................................. 74




                                                              iv
                                 TABLE OF AUTHORITIES


CASES
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994) .............................. 47

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) ................ 43, 45, 65

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) ..................... 66

Cole v. Arkansas, 333 U.S. 196, 201 (1948) ........................................................... 65

Cosia v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) ................................. 43

Dugar v. State, 464 S.W.3d 811, 816
     (Tex.App.—Houston [14th Dist] 2015, pet. ref’d) ................................. 46, 48

Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) ............................. 66

McIntosh v. State, 297 S.W.3d 536, 542-43
     (Tex.App.—Houston [1st Dist.] 2009, pet. ref’d) ........................................ 45

Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005) ................................... 42

Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) .................................. 46

Villareal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) .... 42, 48, 52, 58, 59

Walters v. State, 247 S.W.3d 204, 212
      (Tex. Crim. App. 2007) (reh’g denied) ................................................... 46, 62

STATUTES
TEX. CODE CRIM. PROC. art. 36.14 (West 2013) ................................... 45, 47, 48, 65

TEX. CODE CRIM. PROC. art. 36.19 (West 2013) ..................................................... 45

TEX. PEN. CODE § 2.05(b)(2) (West 2013) .............................................................. 45

TEX. PEN. CODE § 2.95(b)(1) (West 2013) .............................................................. 44

TEX. PEN. CODE § 9.31(West 2013) ...................................................... 49, 50, 61, 66


                                                   v
TEX. PEN. CODE § 9.31(a) (West 2013) ............................................................. 43, 51

TEX. PEN. CODE § 9.31(b)(1) (West 2013) .............................................................. 62

TEX. PEN. CODE § 9.32 (West 2013). ................................................................ 49, 50

TEX. PEN. CODE § 9.32(a) (West 2013) ............................................................. 44, 50

TEX. PEN. CODE § 9.32(a)(2) (West 2013) ........................................................ 50, 66

TEX. PEN. CODE § 9.32(a)(3) (West 2013) .............................................................. 44

TEX. PEN. CODE § 9.32(b) (West 2013)................................................. 44, 48, 51, 67

TEX. PEN. CODE § 9.32(b)(1)(B) (West 2013)......................................................... 51

TEX. PEN. CODE § 9.32(b)(2) (West 2013) .................................................. 44, 51, 62

RULES
TEX. R. APP. P. 44.2(a) ............................................................................................. 67

CONSTITUTIONAL PROVISIONS
TEX. CONST. art. I § 19 ............................................................................................ 65

UNITED STATES CONST. Amend. V .......................................................................... 65




                                                          vi
                            STATEMENT OF THE CASE

   Nature of the case:          This is an appeal from a criminal conviction for

                                murder.

   Course of the proceedings: The offense was alleged to have occurred on or

                                about July 1, 2013. CR 5. An indictment was

                                returned May 6, 2014. CR 4. A legnthy jury trial

                                on guilt/innocence began May 18, 2015 See I RR

                                passim. The same jury also heard the punishment

                                case and returned a verdict of life in prison. CR 97.

   Trial court’s disposition:   The trial court imposed sentence in compliance

                                with the verdict of the jury. CR 99-100.




                STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument and believes the Court will be aided by

oral argument of counsel.
                              ISSUES PRESENTED


I.     Appellant suffered egregious harm because the jury instructions

omitted the presumption of reasonableness that the use of deadly force was

immediately necessary.

II.    Appellant suffered egregious harm because jury instructions on the law

of self-defense omitted a significant portion of the law on use of deadly force in

self-defense.

III.   Appellant suffered egregious harm because the jury instructions

included extra-statutory language regarding self-defense in response to verbal

provocation not permitted by the penal code.

IV.    The cumulative effect of the numerous errors in the jury instructions

has resulted in a constitutional due process violation because Appellant was

denied the right to have a legal defense accurately presented to the jury.




                                        2
                             STATEMENT OF FACTS

      Victims of spousal abuse can have a hard time leaving, even under horrible

circumstances. XII RR 113. Perpetrators of abuse often don’t like others to know

about it and want to maintain control over the victim. XII RR 113-14. Someone

who is a victim can love the person that is the abuser. XII RR 114.

      Brian Allen contacted Robert Henley, a licensed professional counselor in

2013, to work on his serious problems with anger management, domestic violence,

, aggression and hostility, and alcohol abuse. XIV RR 242-43; XV RR 98. Henley

met with Brian three times and met with Trichele Allen, his spouse, two times. XIV

RR 243; XV RR 104. When Brian visited with Henley and was very direct, made

negative statement about himself and was unhappy about his outbursts. XV RR

100. Brian went so far as to say that he treated his wife “like shit”. XV RR 100. He

talked about past domestic violence, anger, alcohol abuse and said he wanted help

to fix those problems. XV RR 100.

      Brian went on to tell Henley that Trichele treated him well and that she is

every man’s dream. XV RR 102. Brian, however, also complained Trichele spent a

lot of money, was lazy, and did not have a job. XV RR 109. He noted that he was

“effed in the head for the way [he] treat[s] her.” XV RR 102. Brian loved Trichele,

felt he should divorce her, but said he did not want her to leave. XV RR 102-03.



                                         3
He claimed responsibility for the domestic violence in the home. XV 126. He even

noted that he is twice her size and mainly causes the fighting. XV RR 126. Trichele

contacted Henley to try to start services again after Brian lapsed for a little while.

XV RR 105.

      When Trichele met with Henley, she related that she had anger problems

within the relationship, too. XV RR 107. The history she gave was consistent with

the history provided by Brian. XV RR 111. She also met with Henley after the

shooting to discuss it. XV RR 116. Trichele said there was drinking, Brian came

home stressed and angry, and he made some comments to her. XV RR 117. After

that there was some conflict in the bedroom, then a struggle for a gun, and some

shots were fired, but the gun was not loaded. XV RR 117. Brian then reloaded the

gun, handed it back to her, and another struggle ensued, and Trichele then fired.

XV RR 117.

      Noel Busch-Armerendiz (Dr. Busch or Busch) is the director of the Institute

on Domestive Violence and Sexual Assault at the University of Texas at Austin.

XIV RR 270. Specifically, she works in the field of interpersonal violence. XIV

RR 271. She described interpersonal violence as not being about physical violence

or one specific instance. XIV RR 273. Rather, it is about the strategies used to

control an intimate partner. XIV RR 273. She was able to ultimately conclude that

people with a history like that of the Allens’ and in a situation similar to that of

                                          4
Trichele will react with lethal force to defend themselves. XIV RR 274-75. The

accumulation of the long history of violence like the Allen’s can lead to the belief

in the need for lethal force. XV RR 11. The belief that you are going to die is found

in intimate partner homicides. XIV RR 279. Due to that belief, people will defend

themselves. XIV RR 279. Indeed, the shooting was in self-defense. XV RR 11.

      Abusers will utilize strategies to gain control in relationships. XV RR 31.

Physical violence often is not present at the beginning of a relationship; rather it is

verbal abuse, financial control, and manipulation used. XV RR 31. Abused people

in relationships don’t always permanently leave. XV RR 33. They continuously

leave, such as going to hide or getting in the car and leaving immediately. XV RR

33.

      Dr. Bush review various items of discovery in Trichele’s case, including an

interview with her. XV RR 39. She also read over Mr. Henley’s notes of what

Brian Allen said and spoke with him for clarification on those notes. XV RR 44.

She concluded the Allens loved each other, but Trichele left many times without

ever leaving for good. XV RR 39. Dr. Bush also felt Trichele became estranged

from her family and isolated form her support system, also common in abuse

situations. XV RR 40. By the time the couple began counseling, intervention was

difficult because of the cumulative effect of the partner violence over time. XV RR

52.

                                          5
      The accumulation of the relationship history forms the frame of mind of the

people involved at the event in question. XV RR 52. The summation of fear and

intimidation all adds to the reaction. XV RR 52. In addition, the prior instances of

abuse and the escalating intensity of those events also factor in, as well as the use

of weapons in the violence. XV RR 53. Reaching out to police without any results

also factor in. XV RR 55. Especially in a situation where an abused person reaches

out multiple times and it doesn’t work. XV RR 55.

      After reviewing all necessary information, Bush ultimately concluded that

Brian was an abusive husband to Trichele over many years. XV RR 85. The abuse

had been escalating for years before the event and had been escalating that day. XV

RR 85-86. Trichele was in fear of her life the day of the shooting. XV RR 86. The

use of deadly force in defense of her life was necessary from her standpoint

because of the cumulative effect of the violence over time and the escalation of

violence over time at the hands of Brian. XV RR 86. Indeed, Dr. Busch concluded

thet when a reasonable belief is defined as that held by an ordinary and prudent

person in the same circumstances as the actor, Trichele had a reasonable belief that

her life was in danger. XV RR 90-91.

      Trichele Allen moved to Austin, Texas around 2001. XIV RR 104. One night

she met Brian Allen when she went out one night and brought him to the house the

next day. XIV RR 16. The two eventually moved in and lived together, off and on

                                         6
for several years. VIII RR 81-83; see also VIII RR 144. They also argued and

fought frequently. VIII RR 84-85. It wasn’t long after they dated that Ms.

Stapleton, Trichele’s mother, started to become concerned about the relationship.

XIV RR 19. She went to their house one day and found the door from the garage to

the house was kicked in, and Brian was loading things into his truck. XIV RR 19.

Trichele was holding her face and it was red on one side. XIV RR 20. Ms.

Stapleton gave advice to Trichele that she should not stay with a man who would

hit her. XIV RR 22. Ms Stapleton in later years would witness other indications of

abuse: a black eye covered with makeup; XIV RR 31-32; a large amount of hair

pulled out from the side of her head XIV RR 34.

      Trichele’s sister, Chantaye Patton, was also around at the start of Brian and

Trichele’s relationship. XIV RR 107. The first instance of violence Patton saw

came when she was visiting their home, and the children were upstairs. XIV RR

110. Trichele was working the AA program and hadn’t been drinking, but Brian

was. XIV RR 110. The two began arguing which then began to escalate. XIV RR

110. Brian then struck Trichele with the back of his hand. XIV RR 110. He struck

her hard enough to make her start to fall out of her chair. XIV RR 111. Brian

picked her back up and put her back in the chair. XIV RR 111. At that time, as far

as Patton knew, this was out of character for Brian. XIV RR 113. From then on,

she had no respect for him. XIV RR 113.


                                          7
      Over the years, Kevin Allen, Brian’s brother, saw Trichele criticize Brian

often, usually after she had been drinking. VIII RR 85-87. However, Brian drank a

lot as well. VIII RR 99. Kevin was also aware of an incident in Robinson, Texas

which lead to Brian Allen being charged with assault family violence. VIII RR

100-01. He was under the impression Appellant caused the incident by grabbing

the steering wheel and that Appellant slapped herself to cause injuries. VIII RR

102. Kevin also noted that in order to gain federal contracts, Brian transferred 51

percent ownership of the company to his wife. VIII RR 91-92.

      Back in 2002, Austin Police Corporal Andrew Kos went to the house on

Tiffany Lane to respond to a 911 hang up call. XVI 26. Kos met Trichele who said

she was mad at Brian because he was flirting with another woman at a club they

went to and got into an argument about it on the way home. XVI RR 28. Trichele

admitted to pouring a drink into Brian’s lap during the argument. XVI RR 29.

Brian then grabbed Trichele’s hair, and he slammed her head into the vehicle’s

console. XVI RR 29. She then started hitting, kicking, and scratching him. XVI 29.

      Kos did not see any redness on Trichele to show she had been assaulted.

XVI RR 30. He did, however, notice minor scratches and injuries on Brian. XVI

RR 31; 35. Brian denied striking Trichele but also said they couple needed

counseling. XVI RR 36. Kos arrested Trichele for assaulting Brian. XVI 32.

      Terry Hancock was a witness to an incident on the side of interstate 35 in


                                        8
2004, near Robinson, Texas. X RR 40. He was driving down the highway and saw

an eight or nine-year-old child who appeared distraught and said his father was

beating up on his mother. X RR 51. He then saw a male drag a lady out of a car

and violently strike her twice. X RR 51-52. Hancock then called 911, filled out a

statement for the police, and saw the man (later identified as Brian Allen) arrested.

X RR 53.

      Brian came into Hunter Allen’s life when he was in the first grade. XII 171.

He came into Jacob Allen’s when Jacob was six years old. XIII RR 155. Hunter

and Jacob are Trichele’s son, and they eventually moved from Austin into a trailer

in Burnet County. XII RR 173. Because of the fighting and arguing, Trichele

moved away from Brian into an apartment for a few months. XII RR 174. Later,

Hunter and his mother moved around some with and without Brian for several

years. XII RR 178-79. Even with the on-again and off-again relationship, Brian

treated Hunter and Jacob as though they were his own sons. XII RR 183; XIII RR

155. Hunter described the physical fighting as Trichele slapping Brian at times, and

Brian only restraining Trichele as best he could. XII RR 184. He thought it wasn’t

likely that Trichele was being abused behind closed doors, but he added that he

“wasn’t behind closed doors”. XII RR 199.

      There was no time in Jacob Allen’s life when Trichele was not getting hit or

beaten by Brian. XIII RR 177. Jacob, however, noted that his parents fought, at


                                         9
least verbally, every other day since he could remember. XIII RR 162. They fought

physically at least one time every week. XIII RR 162. Both parties would start the

fights. XIII RR 162. Brian would usually grab her head and had slammed it into

the ground on several occasion. XIII RR 162-63. Most times, Brian would hold

Trichele down and she would be hitting him trying to get away. XIII RR 162-63.

Trichele would react by trying to escape: She would take her dogs and go to a

hotel; she would hide the guest room above the carport; she would hide in the

tanning bed; she would hide in the attic from Brian; she would hide in the media

room and push the sofa against the door. XIII RR 210-11. Brian would push the

door to the media room trying to get in. XIII RR 214. Sometimes, Jacob feared his

mother would not survive the assaults. XIII RR 164.

      Jacob specifically recalled an event at his uncle Kevin’s house with a brutal

assault. XIII RR 166. He walked out to see Brian on top of Trichele holding her

head down onto the concrete and repeatedly slamming it down. XIII RR 166.

Kevin was able to get Brian off of Trichele and inside the house. XIII RR 166. The

two were separated all night. XIII RR 166.

      Jacob also recalled the 2004 assault in Robinson, Texas. XIII RR 157. He

remembers Brian and Trichele arguing before leaving his uncle Kevin’s house. XIII

RR 157-58. While driving, Brian reached over and grabbed Trichele’s head,

slammed it into the dashboard and held it there. XIII RR 158. Trichele then


                                        10
reached for the steering wheel and pulled as hard as she could, causing the truck to

veer off the side of the road. XIII RR 158. When the truck came to a stop, Brian

got out, ran to the passenger side and began to drag Trichele out of the truck by her

hair. XIII RR 158-59. Trichele screamed for her boys to get help. XIII RR 159.

      Hunter, gave a different version of the same fight. XII RR 192. He said

Trichele started slapping Brian and he was only trying to restrain her from hitting

him while he was driving. XII RR 192. According to Hunter, Trichele went so far

as to turn around and kick Brian in the face, which Brian fought off. XII RR 192.

       In 2005, Trichele Allen went to the home of Michelle Walters,

unexpectedly. XII RR 18. Brian had spent the night with Walters. XII RR 17-18.

Brian went outside and began loudly arguing and fighting with Trichele. XII RR

20. Trichele was hitting Brian and “trying to get by him”. XII RR 20. Trichele then

entered the apartment and confronted Walters who ran and hid in the bathroom

then called the police. XII RR 22, 23. Walters felt Trichele was upset and trying to

get at her. XII RR 22.

      Tracy Lawrence was with the Austin Police Department when she went out

to that disturbance. XVI RR 44. There Lawrence met Trichele who appeared

panicked, was breathing heavily, and said she had been arguing with her ex-

boyfriend. XVI RR 45-46. They lived in the same apartment complex, and she was

walking her dog when she saw his pickup truck and an encounter ensued. XVI RR


                                         11
46. She also related that a week before the two had been in a fight where he tried to

kill her and that he had been arrested, and supposedly a protective order issued.

XVI RR 46. However, Brian was on probation in McLennan County for a family

violence charge and protective orders are commonly included as a condition of

probation. XVI RR 56-58. Lawrence searched through dispatch and could not find

any protective order by either party. XVI RR 47.

      Trichele left during Lawrence’s investigation. XVI RR 47-48. Officers had

Brian call her and she refused to return to the area because she was afraid of going

to jail. XVI RR 50.

      After everything calmed down and the police left, Trichele came back the

next night to speak with Walters. XII RR 24-25. The two visited for two or three

hours and Trichele explained that if Walters pressed charges, she would lose her

son. XII RR 25. Trichele also explained that she wanted to marry Brian, but

Walters believed Trichele and Brian to be broken up at the time. XII RR 26. After

that evening, the two did not communicate much. XII RR 28.

      Later on Hunter was in the eighth grade, snuck out of the house, was caught,

and returned home by police. XV RR 142. His mother became furious at him,

began hitting him on the chest, reached down to pull his testicles away from his

body, and slapped his chest some more. XV RR 44. The assault continued for two

minutes until Trichele left the room. XV RR 144. He also told of an incident when


                                         12
he was made to stay in a dog kennel as punishment for not cleaning it out. XV RR

144-45.

      In December 2006, a City of Bertram police officer took Trichele Burnet

County Sheriff’s Office. XIV RR 199, 212. She had been crying, appeared

distressed, had a red face, and her upper lip was swollen. XIV RR 200. She met

with Deputy Richard Bennet who took a report and written statement. XIV RR

200. She said Brian was repeatedly punching her in the nose and mouth, and she

had to run out of the house through the back door, get into her car, went to

Bertram, and then to the sheriff’s office in Burnet. XIV RR 205, 203. She further

described that Brian was cursing at her, called her lazy, grabbed her by the hair,

drug her off the bed two times. XIV RR 211. Unsurprisingly, she complained of

pain in her nose, lips, teeth, and jaw. XIV RR 212. Despite all this, Trichele said

she wasn’t sure that she wanted to proceed with a prosecution. XIV RR 201.

      Gary Holland worked for Brian and Trichele and would go to their house

about three or four times a week for social purposes. XIV RR 68. He saw the good

and the bad moments between Brian and Trichele over the years. XIV RR 68. The

first assault he recalled was everyone was sitting out by the pool and Brian coming

out of the house. XIV RR 68. Brian started throwing rocks at Trichele who was

floating on a raft in the pool. XIV RR 68. He then jumped in, threw her off the raft,

and held her underwater. XIV RR 68. Holland managed to pull Brian off her. XIV


                                         13
RR 68. When he did, Brian got mad and tried to keep Holland off the property.

XIV RR 68.

      Another time, Holland was at their property when he witnessed more

violence. XIV RR 69-70. As the evening was winding down, Brian went to get

another drink, and Trichele went to her room and locked the door. XIV RR 71. By

this point the two had already been arguing, and Brian was mad. XIV RR 71.

      Brian came up where Holland was and asked about Trichele. XIV RR 71.

When he learned Trichele went to her room, he went down, and opened the door.

XIV RR 71. By the time Holland got there, Brian grabbed Trichele by the hair with

both his hands and was dragging and throwing her around the room. XIV RR 71.

Holland managed to get Brian to stop. XIV RR 71.

      Holland saw another time when Trichele was missing chunks of hair. XIV

RR 73. He saw several other times which caused him to believe abuse was

ongoing. XIV RR 77; 84-85. He saw busted lips, black eyes, and head lumps on

Trichele. XIV RR 77. There was another instance when Brian pulled Trichele out

of her hummer, threw her on the ground, and began kicking her. XIV RR 81. When

police arrived, Holland convinced them to not arrest Brian and to separate the pair.

XIV RR 82. Holland saw drawings made by Trichele depicting how abuse occured

which she kept in a safe in her room. XIV RR 77-79. After the shooting, Holland

opened the safe at the request of Kevin Allen who grabbed them, then burned them


                                        14
in a barbeque pit next to Rick Allen’s (the father of the Allen boys) house. XIV RR

80.1 Holland was told it was done so there would be no written proof of the abuse.

XIV RR 80. Ultimately, Holland concluded the abuse was becoming worse over

time. XIV RR 81.

       After the backhand incident early in the Allens’ relationship, Ms. Patton saw

at least five other times when she had seen Trichele with a black eye. XIV RR 116.

She also once had a cauliflowered ear. XIV RR 116. Patton later moved to north

Texas and at one point had Brian and Trichele over for dinner. XIV RR 117. After

dinner, Patton heard arguing, came around the corner, and saw Brian holding

Trichele in a chokehold. XIV RR 117. Trichele’s face was extremely red. XIV RR

118.

       At the Stapleton home in 2009, Ms. Stapleton was home while her husband

had gone for cancer treatment. XIV RR 27. Trichele and Brian came in the house,

Brian screaming at her calling her an “‘effin’ bitch’” and also exclaiming, “We’re

not going to the party. I’m not going out. I’m not going out with your [effing]

parents.” XIV RR 27. He then shoved Trichele against a corner of the wall. XIV

RR 27. The wall-corner cracked and she screamed out. XIV RR 28. Stapleton then

came near the room they were in just to where they could not see her. XIV RR 27.

She then walked in and asked what was happening. XIV RR 29. Brian saw her and

1
 Kevin Allen, on redirect, categorically denied breaking into the safe with Gary Holland. XV
RR 130.

                                              15
said they were joking around. XIV RR 29. Later, Ms. Stapleton gave the same

advice she gave before: You shouldn’t be with a man who is hitting you. XIV RR

29.

       Tish Sawl knew Brian and Trichele, not personally, but from living in the

same small town. XIII RR 231-32. In 2008 or 2009 Tish was at a restaurant called

the Smoke House and when she saw Brian backhand Trichele across the face. XIII

RR 234. The strike was so hard, it knocked her to the floor. XIII RR 235. He then

grabbed her on each side of her head by the hair, lifted her off the ground and

slammed her back into the chair while shouting at her. XIII RR 235. Trichele was

screaming at Brian to stop. XIII RR 236. Two other men near the bar, came

shouting Brian’s name. XIII RR 236. He then stopped shouting at her and called

her vulgar names. XIII RR 235-36. Trichele was able to get up and leave. XIII RR

236.

       Another time, on a weekend, the Trichele’s side of the family went to Burnet

County for a child’s birthday party. XIV RR 120-21. In the evening, the guests

were in the detached guest house, and Brian and Trichele were in the main house.

XIV RR 123. Ms. Patton came inside the main house and heard shouting. XIV RR

123. She ran to look in the main area where she saw Brian grabbing Trichele by the

back of her head, grabbing her by the back of her hair, pulling he to the floor, and

kicking her after she was down. XIV RR 123.


                                        16
       Kristen Davis, a deputy with the Burnet County Sheriff’s Office, was

dispatched to an assault on May 27, 2009. XIV RR 178, 180. She arrived and

found Trichele who appeared upset, had red marks around her neck, and had been

crying. XIV RR 181. Trichele reported she had been strangled, and the marks were

consistent with the story she relayed to Davis. XIV RR 182-83. Trichele, however,

refused to provide a statement. XIV RR 182. Davis encouraged her to press

charges despite Trichele’s refusal. XIV RR 194. Davis later learned Trichele filed a

letter of nonprosecution, asking that charges not be pursued against Brian. XIV RR

183.

       Mike Cochran, in March of 2011, was the primary deputy at a scene at the

Allen residence. XIV RR 217-18. When he approached the house, he saw a green

vehicle leaving and found Trichele and Jo Lee Marshall in it. XIV RR 219. He had

them go back toward the house, where he found Brian detained by another officer.

XIV RR 221. He took statements from all involved, including Rick Allen the

former chief deputy with the Burnet County Sheriff. XIV RR 221-22. Marshall and

Trichele tended to agree on one side, and Brian and Rick tended to agree on the

other side. XIV RR 224. Trichele’s statement said she wanted to leave, but Brian

wouldn’t let her. XIV RR 225. Her goal seemed to be able to just leave, and she did

not want to file any charges XIV RR 226.

       In early 2013, the couple went to north Texas where Trichele’s father was


                                        17
battling cancer. XIV RR 126. One evening, Trichele and Brian came back to the

house drunk and bickering with one another. XIV RR 127. Patton told them not to

fight in her house with her children upstairs. XIV RR 128. They went outside, and

Patton heard more shouting. XIV RR 128. Trichele was red in the face and

shouting for Brian to stop hitting her. XIV RR 128. But Brian was not hitting her.

XIV RR 128-29. Patton told Brian to leave but offered to allow Trichele to stay.

XIV RR 129. Trichele chose to leave with Brian. XIV RR 129. Patton saw no other

assault but did see other bruises and evidence of family violence. XIV RR 130.

      Also in early 2013, Brian came home from the bar where he had been

drinking and met Hunter who had been drinking at the house. XII RR 193. They

got into an argument and Hunter confronted Brian about being a grown man. XII

RR 193. Brian then “put [him] in [his] place.” XII RR 193. Brian also confronted

Hunter and Trichele about using synthetic marijuana. XII RR 194. According to

Hunter and trial, Gary Holland grabbed Hunter while Trichele kicked him in the

groin until Hunter was able to break free. XII RR 194. Trichele called the police.

XII RR 193.

      However, at the time of the incident, Hunter told the police that Gary

Holland stepped in a separated Briand and Hunter. He said that Holland had not

assaulted him at all. XII RR 205.

      At this incident, Hunter completed a witness statement saying he had been


                                        18
abused his entire life. XII RR 195. At trial, Hunter claimed he was intoxicated

when he completed the form, and he had never been abused by Brian. XII RR 196.

      Jacob recounted that Hunter was intoxicated the night of this fight and saw

Brian hit Hunter in the face with an open hand. XIII RR 169. Hunter then tried to

respond in kind. XIII RR 169-70. Gary Holland got involved and tried to stop the

two from hitting each other. XIII RR 170. Brian already had Hunter on the ground

and was striking him in the groin. XIII RR 170.

      Naomi Allen, Brian Allen’s sister-in-law, had seen Trichele Allen drunk

many times. X RR 9-10. She would start as funny buy progress into an irritating

and ugly demeanor. X RR 10. Trichele would poke fun at Brian and say

embarrassing things. X RR 10-11. She had never heard Brian say nasty things to

Trichele. X RR 22. If some abuse had occurred, Naomi felt she was close enough

that she would have known about it. X RR 22. Naomi Allen, however, had never

seen Brian physically attack Trichele after she would make such comments. X RR

12. She had never seem Trichele attack Brian, either. X RR 12. Trichele had never

confided in Naomi that Brian beat her, though Naomi felt Trichele confided other

personal matters to her. X RR 15-16. Naomi and her husband went to the Allen

house after the incident and believed the gun used to kill Brian was missing. X RR

19. They found a weapon in a chest of drawers and Kevin took the weapon. X RR

21.


                                        19
      Naomi, however, had never seen texts messages from Brian to Trichele

where he called her various vulgar names. XXI RR 44, see also Def. Exh. 10. This

was proffered by defense counsel but kept out of evidence before the jury. Counsel

for defendant stated part of his theme in the case was underlying abuse by Brian

that his family did not know about. X RR 25, et seq. When asked to cross-examine

the witness concerning her testimony that she never heard Brian call Trichele

names or assault her, the trial court sustained the state’s objection. X RR 29-30.

Naomi was also unaware that Brian served two years of probation for family

violence on Trichele. X RR 48.

      At the end of June 2013, Danny Hoofnel and his wife were to meet Trichele

and Brian at a restaurant San Antonio for a weekend getaway. VIII RR 146-47.

When they arrived and looked for the Allens, Hoofnel was told they left the

restaurant. VIII RR 149. Trichele sent texts to Hoofnel’s wife which left him with

the impression that she was jealous that Brian would pay attention to someone

other than her. Somewhere around 7 p.m., Hoofnel learned Trichele was arrested

after the police went to their hotel room. VIII RR 152-53.

      Hoofnel also noted Trichele “could be a nice girl. She could be a sweet girl.

She could be fun even if she’s drinking a little bit, but she never drank just a little

bit. She never did just a little bit of anything.” VIII RR 166. At the same time,

Hoofnel noted Brian was 6 foot 4 inches tall, over 200 pounds, and was an


                                          20
intimidating man. VIII RR 168. Brian also drank too much and would dabble in

drugs some. VIII RR 168. Hoofnel wrote to the district attorney’s office, “I rarely

saw a man who being such a large man, it can be scary when he was mad.” VIII

RR 168.

      There was another side to Brian that Hoofnel did not know. Hoofnel never

heard the decedent belittle Appellant. VIII RR 169. He never heard Brian call her a

“dumb ass” or call her a “jelly feeling fat ass”. VIII RR 169. Hoofnel knew Brian

was on probation for a family violence charge, but he heard the Brian’s version of

the events and gathered that it was Trichele’s fault. VIII RR 170.

      Raquel Hoofnel, Danny Hoofnel’s wife, had a conversation over text

message with Appellant the day Brian Allen died. VIII RR 188-89. At 8:07 p.m.,

Appellant wrote to Ms. Hoofnel, “Brian’s still, still being a mean dick to me. I

doubt we make it throughthe long haul. I’m nasty sick of his mean mouth.” VIII

RR 191. Appellant also told her about a friend of Brian’s who came to the house,

and she referenced that the friend’s penis. VIII RR 191-92. Ms. Hoofnel recounted

various times where Appelllant would belittle Mr. Allen for having a small penis

only when she had been drinking. VIII RR 194. Regarding Appellant’s arrest in

San Antonio, she told Ms. Hoofnel Brian had her claim ownership of the

contraband because it did not belong to him. VIII RR 201.

      On that topic, George Morales, an officer with the San Antonio police


                                         21
department, responded to the Allen’s hotel room after they received several

complaints of loud noises and arguing, including what sounded like somebody

being thrown around. VIII RR 204. While in the hallway, Morales could smell

marijuana, and when Brian opened the door, the smell became stronger. VIII RR

206-07. There were no signs of a disturbance of fight. VIII RR 207-08. While

looking around, Morales saw marijuana in plain view on the desk. VIII RR 208.

When she came out, Trichele said the marijuana belonged to her, and Brian did

nothing that prompted her to say so. VIII RR 209. Morales saw no signs of

violence or obvious trauma and there had only been arguing in the room. VIII RR

211. Throughout, Trichele was cooperative with the police. VIII RR 222. There

was no indication she was intoxicated. VIII RR 223.

      A neighbor of the Allen household, Michael McLemore, recounted that on

the evening of the shooting, he talked with Trichele who had a male friend with her

just before dark, said she went to San Antonio for Brian’s birthday, and they had a

good time. IX RR 226-27. They talked for about 30 or 45 minutes and Trichele

drank a total of three beers over that time. IX RR 228-29. The two left and went to

another residence located on the Allen property occupied by someone named

“Shorty”. IX RR 231. About 10 minutes later, Brian went over to Shorty’s. IX RR

231. Sometime after that, McLemore saw red lights come down the county road

toward the Allen household. IX RR 232. He estimated about an hour passed from


                                        22
the time he saw Brian go toward Shorty’s. IX RR 235.

      Jo Lee Marshall was best friends with Trichele. X RR 76. Their sons were

very close friends. X RR 79. By day of her testimony in court, her entire belief of

how violent Brian was changed. X RR 135. On July 1, 2013, she and Trichele were

communicating through text messages. X RR 85, et seq. She was going to the

Allen house that afternoon and started the communication by saying she wanted to

buy some marijuana. X RR 85. Trichele said hers was taken in San Antonio, she

was arrested, and she took the blame so Brian could get her out of jail. X RR 86.

Marshall got to the Allen house sometime after 2:30, got in the pool with her

grandson, and chatted with Trichele. X RR 95. Neither had anything alcoholic to

drink. X RR 95. Brian came home around 4 or 5 pm and did not appear angry but

Marshall knew he was irritated because of Trichele’s arrest over the weekend. X

RR 96-97.

      After opening a beer, Brian said to Marshall, “Perhaps we need to quit

drinking; perhaps alcohol is the problem.” X RR 99. Trichele was present and

asked, “Are we going to quit drinking or is it just me?” X RR 100. They exchanged

some tense words, and then Trichele stormed off to her room. X RR 103. Arguing

around Marshall was common, but Trichele and Brian kept their tone down after

she expressed concern about her grandson. X RR 104. After Trichele went to her

room, Marshall talked with Brian who expressed frustration and appeared upset


                                        23
about his relationship. X RR 106-07.

      Marshall then went to talk with Trichele in her bedroom before leaving. X

RR 107. She told Trichele she could stay at her house if she needed to. X RR 108.

She offered it to help calm down any fighting. X RR 109. And though she never

saw any physical assaults, she saw a lot of arguing. X RR 109. Marshall knew

Trichele to both hate and love Brian. X RR 109.

      She was told of a time Trichele stabbed Brian with a wine glass. X RR 113.

She came over to the house and saw Brian cut several times over his body. X RR

113. She performed some first aid and against her advice, Brian did not go get

stitches. X RR 114. Trichele told Marshall that Brian came at her so she stabbed

him. X RR 116.

      Marshall saw another incident of violence between the two in 2011. X RR

123. She was at the Allen house with her daughter when they tried to leave with

Trichele, but Brian did not want her to drive while intoxicated. X RR 124. Trichele

was shifting the car into drive and reverse and back again, moving it back and forth

while Brian was in front of it. X RR 124-25. He was trying to avoid the car but still

prevent her from driving. X RR 124-25.

      She later wrote a statement in which she said, “.. [W]hen Brian was violent,

drunk, and angry, someone was going to get hit by Brian.” X RR 126-27. She also

said in her statement that Brian was a boy who hit girls. X RR 128. At the time of


                                         24
her testimony, however, she changed her belief. X RR 128. This was despite her

having to tell him that boys don’t hit girls about three or four times. X RR 128.

Marshall had to go to Brian and tell him “You’ve got to quit hitting Trichele.” X

RR 139. When Marshall confronted Brian about hitting Trichele, he never denied

it. X RR 145-46. She told the police that early in their relationship, Brian hit

Trichele often. X RR 139. Marshall went on to tell Brian that when he attacks her

she is fighting a “Sasquatch” because he is such a big man. X RR 147. She told

him, “You’re fighting a Sasquatch that just might kill her this time.” X RR 147.

She though it possible when Brian said he would kill Trichele and put her in a slab

where no one would find her. X RR 152-53.

      As to the wine glass, Marshall believed the two were fighting when Brian

shoved her which broke the wine glass. X RR 141. The glass was in her hand when

he came at her again. X RR 141-42. When she and Trichele’s children got to the

house, Trichele was up hiding in the attic. X RR 143. The boys then snuck Trichele

out, and they stayed with Marshall that night. X RR 143-44.

      Jessica Marshall, Jo Lee’s daughter, was closer to Trichele than Brian. X RR

167-68. Trichele told her several times about physical abuse by Brian. X RR 168.

Trichele’s son, Hunter, also sought refuge at the Marshall house at times. X RR

168. Jessica hid in the floorboard of the vehicle Trichele was in trying to leave the

house back in 2011. X RR 169. Brian came out and was trying to prevent her from


                                         25
leaving in the car. X RR 169. Trichele shifted into drive and reverse several times

and at some point stopped working. X RR 170-71.

      Kelli Lorenz became friends with the Allens, and Lorenz was paid to clean

their house occasionally. XI RR 131. She cleaned their house the Saturday before

Brian died. XI RR 131. While doing so, she placed the long weapon in the bathtub.

XI RR 131. She also placed the drum with rounds in it next to the weapon. XI RR

132. On that Saturday, the gun safe was closed, and she had no access to it. XI RR

133. Lorenz saw the Allens almost everyday. XI RR 133. She knew Trichele to

work for Metalworkz going proposals and going to jobs with Brian. XI RR 167-68.

      Lorenz saw Brian pull Trichele’s hair once and saw other makings on

Trichele’s body. XI RR 135. Six months after the Allens moved into their house,

she saw Brian shake Trichele back and forth violently by her hair. XI RR 157. The

two appeared irritated with each other that day. XI RR 158. They had been

drinking and his mood would change. XI RR 159-60. Lorenz saw that Trichele

would have bumps on her head and clumps of hair missing at times. XI RR 162.

She knew Trichele to keep a safe with money and notebook of drawings after the

two would fight. XI RR 136. The drawings depicted illustrations of fights between

the two. XI RR 170. She also witnessed a time when Brian struck Hunter because

the two were arguing and Brian was drunk. XI RR 136.

      Lorenz and Trichele communicated the day of the shooting through text


                                        26
messaging. XI RR 145, et seq. Trichele told her she wished they would get a

divorce and just move on. XI RR 149. Trichele joked for Gary Holland to dig a

hole for Brian. XI RR 150. She then joked that she could saw Brian up instead. XI

RR 150. She then texted that she would need concrete, that she would build a pig

pen over it so, “he can get shit on for the rest of eternity just like he shits on me.”

XI RR 150. She then said she would cover him in molasses and feed him to hogs

and laugh all the way to the bank. XI RR 150. Lorenz did not take the contents of

the texts as being serious. XI RR 165-66.

      Trichele and Brian also texted with each other on July 1. XII RR 85. All-in-

all, the conversation read in the text messages appeared more congenial than

Trichele otherwise indicated. XII RR 86-89. However, the tone turned angry as the

conversation continued. XII RR 90-91, 96-97, 100-01. Brian, however, became

nice again once Trichele referenced getting a divorce attorney. XII RR 108-09.

      Troy Crumley is a welder and worked from Brian for about three months in

the past. X RR 173. He kept a drag racing boat at the Allen’s house because

Trichele was going to help paint it. X RR 176. He went to get in on July 1. X RR

179. Ronnie Sethman was there, as was Brian. X RR 179. Crumley was under the

impression Brian did not want Sethmen there. X RR 179. Before he left, he saw

Trichele walk out of the horse barn followed by Sethmen a few moments later. X

RR 180. He last saw Brian around 8 pm, and he did not seem intoxicated. X RR


                                          27
184.

       Ronnie Sethman knew Brian for about eight years, and helped him with

some steel buildings. X RR 189; 188. He went to the Allen’s house on July 1, 2013

a little after 7 p.m. for a social visit. X RR 190-91. He met with Brian for about 20

or 30 minutes when Brian said he needed to go do some work. X RR 198-99.

Sethmen then went to visit with Trichele at the horse barn. X RR 200-01. They

then left the area of the barn, went to feed fish in the pond, then went on to another

residence on the property, inhabited by Brian’s father. X RR 202-08. About 9 pm,

they ran into Brian who asked Sethmen to tell Trichele he was going to buy some

marijuana. X RR 212-13. Sethman and Trichele rode the ATV for a while then

went into the house. X RR 215-17. By then time they got to the house, Brian’s

truck was back. X RR 217. In the entryway of the house, Sethman and Trichele

became physically intimate. X RR 221. They went to her bedroom and continued.

X RR 222.

       After leaving the bedroom, they got back on the ATV and rode around in the

pasture, eventually having sex on the ATV. X RR 224. Sethman then went back to

his pickup after chatting some more when Brian came up to his window and

reminded him about a 4th of July party. X RR 227-28. Brian did not appear drunk

when Sethman last saw him. X RR 233.

       Robert Espinoza also lived on the Allen property in an RV he moved there.


                                         28
X RR 235. Brian told Espinoza he was going to divorce Trichele and just give her

half the company. X RR 239. That conversation was right around 10 pm. X RR

240.

       Justin Hargus went to the Allen’s house with his girlfriend Dawn Flores that

night to deliver a quarter ounce of marijuana. X RR 247; XI RR 9-10. When they

arrived, they saw the lights were off in the house, and Brian’s truck was not parked

where he usually parked it. XI RR 15-16. Hargus called Brian twice but did not get

an answer. X RR 256. He then went into the house and was calling out but there

was no answer. X RR 260-61. He went in and found Brian lying on his side and

saw blood. X RR 264. He ran out and told his girlfriend to call the police because

Brian was dead. X RR 265. When she called, the 911 said that someone had

already called. X RR 268.

       Hargus walked back up to the house and ran into Trichele. X RR 269. Her

first words were, “I killed him.” X RR 269. He stayed there until 5:30 a.m. X RR

273.

       Burnet County 911received an emergency call on July 1, 2013 around 10:30

pm. VIII RR 33-34. The caller stated a man was shot in the lung. VII RR 44. The

caller asked for help 14 or 15 times. VIII RR 45. She also said “I knew this could

happen with him beating my ass.” VIII RR 46. She also said “I hate you so much,

Brian. You’re dying on me. You’re so fucking mean.” VIII RR 54. Trichele


                                        29
appeared to try to give CPR to the deceased. VIII RR 55-59.

      Alan Whited with Burnet County EMS drove out to the house. XI RR 190.

When EMS arrived, they did not move the body away from the scene because they

have been trained not to do so. XI RR 196. Hargus, however, told authorities he

believed EMTs move Brian’s body to a stretcher then back onto the floor. X RR

278. Hargus heard officers telling EMTs that they should not have moved the body.

X RR 282-83.

      EMTs performed various techniques trying to resuscitate Brian. XI RR 196-

97. Whited saw Brian lying on his right side and in the doorway. XI RR 200. His

upper half in the bedroom and lower in the bathroom. XI RR 200. He saw one shell

casing 10 to 12 inches from Brian’s head. XI RR 201. He noticed several other

shell casings and bullets on the bathroom floor by his feet. XI RR 209. Whited

heard Trichele say that Brian was egging her on and at some point she got the gun.

XI RR 205-06. She then said she shot to one side, then another when Brian turned

around and told her she wasn’t woman enough to do it. XI RR 206. After he

turned, she shot him again. XI RR 206, 224. He didn’t notice any smell of alcohol

coming from Trichele. XI RR 226.

      Travis Havmann also responded with Whited. XI RR 228, et seq. He didn’t

remember exactly how Trichele said the shooting happened. XI RR 232. He did,

however, remember her saying Brian standing in front of her saying that she was


                                       30
not women enough to shoot him. XI RR 233. She then shot over his left shoulder

one time. XI RR 233. Brian replied again she wasn’t women enough to shoot. XI

RR 233. Havmann then recounted Trichele saying she did not remember what

happened after that. XI RR 233.

      Steve Koenning arrived on scene, encountered Trichele and asked her where

the gun was. XI RR 44. She appeared very upset, said she didn’t know, and just

threw it somewhere. XI RR 44. She was crying, shouting, and was difficult to

understand. XI RR 44-45. She had blood on her hands, shit, shorts, and her face.

XI RR 49, 83-84. She tried to do something with the body, but no one asked her

what. XI RR 84. No guns were found around Brain’s body. XI RR 45. When he

asked what happened, Trichele responded that Brian was trying to help her so she

took the gun and shot him. XI RR 47. She also said, “He came at me and I fought

him. I didn’t know what to do.” XI RR 50. She asked whether he was dead. XI RR

50.

      Trichele further demonstrated confusion when she then told Koenning that

Brian was worked up, was with “us”, and then went to go find a gun. XI RR 61-62.

She continued, to say nobody was threatening anybody and then Brian asked if she

wanted to shoot him and put a gun in her hand. XI RR 62; XI RR 72. She then said

she shot several times and hit him with the third. XI RR 62. She later said she hit

him with the fourth shot. XI RR 64. At some point later she said she shot ten times.


                                        31
XI RR 69. But she also said it happened outside. XI RR 69. Trichele also showed

confusion by describing three different locations where the shooting occurred. XI

RR 67.

      She later claimed Brian told her to shoot him. XI RR 71. She went on to say

Brian said “Oh, you missed. Shoot me again.” XI RR 71. In this version she

replied, “Leave me the eff alone.” XI RR 72. To which he replied, “Missed me,

missed me. You can’t hit this big target?” XI RR 72. She shot again. XI RR 72.

Brian then fell down. XI RR 72.

      During the conversation, she said the two were going to a counseling and

she said “I didn’t want to shoot him. I never meant to kill him.” XI RR 86-87.

Trichele told Koenning that Brian choked her, threw her in the bathroom, and

locked the door when they were in San Antonio. XI RR 75. He threatened her if

she did not take responsibility for the marijuana possession. XI RR 75. She also

rambled that Brian was mean to her, had put her in the hospital, and beaten her to a

bloody pulp. XI RR 91.

      Toward the end of their conversation, Trichele’s demeanor became erratic,

going from crying, to calm, and to angry. XI RR 76. She continued to make

statements that Brian was mean, she was going to divorce, and that she hated him.

XI RR 76.

      In another contradiction, she said Brian brought the gun, she got it away


                                        32
from him, and then she shot him on the porch three times. XI RR 77-78. “I got the

gun. He was still coming at me, and I didn’t want to shoot him. It’s homicide when

….” XI RR 78. She later said she threw the gun in the yard, but she may have

thrown it in the bathtub. XI RR 95.

      Trichele recounted impossible events: that the shooting happened on the

porch. XI RR 85. She also said they had gone to dinner with several people,

waiting all night for Gary Holland. XI RR 88-89. She said Gary Holland was a

witness to everything Brian does. XI RR 89.

      She also said Brian was in Leander, and he just never got back. XI RR 90.

She went on to say she doesn’t remember whether she was inside. XI RR 93. When

asked, she said the shooting was not inside the house. XI RR 93. Further confusion

was shown when she talked about being at the rodeo with friends and that Brian

took his work truck, probably went to Copperas Cove or to stay with his mother in

Waco. XI RR 93-94. She asked Koenning if he was an officer. XI RR 96. She

followed up by asking if he had any marijuana and if he had any movies to watch.

XI RR 96.

      Robert Clark was on patrol that night and went to the house. XI RR 107. He

found a semiautomatic pistol with a magazine still in the gun and the hammer

cocked. XI RR 116-17. There was a bullet in the chamber. XI RR 117. He also

found several other guns scattered about the scene. XI RR 126. One gun was found


                                       33
in the bathtub, with a drum unloaded and pen put in it. XI RR 127. But he did not

clear it nor know who did. XI RR 127. He also found five pipes on a nightstand

and a kit with narcotic paraphernalia in it. XI RR 123-24. Along with those items

was an electronic cigarette. XI RR 124.

      Trichele was interviewed by Kathy Sievers, an investigator with the Burnet

County Sheriff, where she gave a rambling account of the events leading up to the

shooting and the shooting itself. See State’s Exh. 283, 284; XII RR 42, et seq.

Trichele was consistent about Brian being mean when he would drink whiskey, and

she repeated that several times in her interview. XII RR 60. She also repeated that

he would be violent and call her many vulgar names. XII RR 61. She expressed

more confusion about being on the porch when everything happened. XII RR 62.

She also referred to Brian being in Leander with some girls while she was being

interviewed. XII RR 62, 64. Trichele also said Brian drove her to the police station.

XII RR 64. Throughout the interview, Sievers had to work to keep Trichele on

topic. XII RR 63.

      Trichele was consistent, however, that Brian was violent, he was coming at

her and she shot twice to the sides of him. XII RR 67. When he wouldn’t stop, she

shot again. XII RR 75.

      Sievers also noted that there was blood spattered on the mirror in the

bathroom and a bullet below the mirror. XI RR 84. She concluded Trichele was


                                          34
firing from the bathroom toward the bedroom. XI RR 84.

      The autopsy of Brian Allen’s body was performed by Dr. Satish Chundru of

the Travis County Medical Examiner’s Office. Brian Allen was 6 foot 3 inches in

height and weighed 280 pounds. IX RR 32. He found no soot or stippling from a

firearm, which indicates the shot would have been fired from at least about 24

inches away. IX RR 35. He also recovered one complete bullet, though deformed,

in addition to a fragment of another bullet. IX RR 35. One gunshot wound was

located on the midback toward the left side, and that bullet entered, went through

the vertebral column then through the heart. IX RR 36. It continued through his

heart, struck the sternum and ceased moving. IX RR 36. Because the wound

severed his spine, the shot would have dropped Brian Allen and been fatal by itself.

IX RR 36-37. There was a second wound described as “fairly superficial” which

went into the left side of Brian’s back, only going through underlying fat in the

back, and exiting the back. IX RR 37. After that, it went into his arm and left

through the shoulder. IX RR 37. The general trajectory of the bullets were each left

to right, back to front and upwards. IX RR 38. Ultimately, Dr. Chundru concluded

Brian died of homicide caused by gunshot wounds. IX RR 39. However, he could

not conclude which gunshot occurred first. IX RR 70. Nor could he determine how

rapidly the two shots happened. IX RR 71. Dr. Chundru estimated it would take

mere seconds to minutes for Brian to die, given the injury. IX RR 61.


                                        35
      As part of the autopsy, Dr. Chundru looks for defensive wounds which could

indicate a struggle in which the person sought to defend himself. IX RR 42-43.

With Brian’s body, Dr. Chundru found small abrasions that could have been caused

by anything, even falling down in addition to other more recent wounds that were

not likely caused by striking something. IX RR 43. Brian was also found with

superficial cuts or abrasions in some pattern on the back of his neck. IX RR 51.

However, the absence of wounds on his hands does not mean there was no violence

committed by the decedent, such as pulling hair. IX RR 69. A blood sample was

also taken from Brian and tested; it showed a .16 blood alcohol concentration. IX

RR 58-59. In addition, he had marijuana in his system. IX RR 65.

      The results of forensic testing of Trichele’s blood showed an alcohol

concentration of 0.79 grams per 100 milliliters and also of 0.045 milligrams of

alprazolam per liter of blood which it within therapeutic levels. IX RR 78.

      Ronald Crumley, a firearms section supervisor with the Department of

Public Safety Crime Lab in Austin, assisted in the collection of evidence. IX RR

103; IX RR 104-05. Several .45 caliber cartridges were found, two in the bedroom

next to the bathroom, one in the closet next to the bathroom, and several in the

bathroom itself. IX RR 126-39. An H&K brand pistol was found to the right side of

the bathtub, along with a magazine for the pistol. IX RR 132. Brian’s favorite

pistol was the .45 which he kept in his bedside table. XIII RR 174. A total of 43


                                         36
unfired .380 cartridges were also found in the bathroom on the floor and in a duffel

bag in the bathroom, but they do not fit the recovered H&K pistol. IX RR 133; IX

RR 161-62. No .380 cartridges were fired. IX RR 134. A gun cabinet inside the

closet was open and one gun was found partially in the safe. IX RR 145-46. There

were many guns inside the safe. IX RR 146. That gun appeared to be a kind of

assault rifle called an AR-15. IX RR 188. Other guns were found behind the closet

door and one on some clothing in the closet laying down. IX RR 187.

       Six .45 caliber cartridges were recovered and all seven tested as being fired

from the recovered H&K pistol. IX RR 166. The seventh bullet was unable to be

found until much later. IX RR 166-67. Testing showed the seventh bullet as having

been fired from the same pistol. IX RR 167.

       Crumley also tested for gunshot residue on Brian’s clothing and determined

the shots fired would have been from more than 2 feet away. IX RR 182. Brian’s

body was found in the entryway between the bathroom and bedroom. IX RR 191-

92. And his body was mere feet from the shotgun located in the bathtub. IX RR

193.

       Troy Wilson of the Texas Rangers, scanned the room with an electronic

device, produced a three dimensional model of the scene, and also reviewed

photographs taken the night of the shooting. XIII RR 13, et seq. Based on the

information recovered, he opined the majority of the shots fired were from within


                                         37
the bathroom. XIII RR 54. Seven shots were fired, but only five bullet holes were

found in the house. XIII RR 69. Of those bullet holes, trajectories could only be

determined for two. XIII RR 69. There was also a possibility one of the shots could

have come from the bedroom. XIII RR 84. However, in order to determine the

position of Brian at the time of the shooting Wilson would need more information

that what was available. XIII RR 62. Wilson could determine the shooting started

in the direction of the closet, where several other firearms were to be found, across

the bathroom, and then to the door threshold into the bedroom where Brian was

found. XIII RR 62-63.

      Wilson also testified that going through a sleep cycle after a shooting helps

improve the memory of the shooter so they can better explain and provide a

statement. XIII RR 75.

      Another Ranger, Richard Henderson, reached the same conclusion about the

shooting. XIII RR 127. He believed Brian was probably in the closet, then ran

through the bathroom and into the bedroom and was shot before leaving the

bathroom. XIII RR 127. Henderson couldn’t determine if the shots were fired by

more than one person or when they were fired. XIII RR 133. It was also elicited

that it would be more likely for a person to grab their own gun if he planned on

shooting someone rather than grabbing someone else’s gun. XIII RR 141.

      Brian owned about 10 guns, some in his office in the house, as well as other


                                         38
places. VIII RR 106-07. Kevin Allen went to the house after the shooting, found a

weapon with a loaded magazine and brought it to authorities because they did not

believe police had retrieved the murder. Weapon. X RR 67-68; see also X RR 19.

      The jury returned a verdict of guilty and then rejected the sudden passion

issue, choosing to sentence Appellant to life in prison. CR 88, 97-98. The trial

court imposed the sentence. CR 99-100 This appeal follows.




                                       39
                       SUMMARY OF THE ARGUMENT

      This case is about self-defense and whether it was immediately necessary.

Much of the evidence focused on that issue, and both parties focused much of their

arguments on it. The error in this case mandates reversal for four reasons. First, the

instructions are incorrect in their statement on the law of self-defense. They wholly

omit the statutory scheme on the law on self-defense. As to the law of deadly force,

the jury instructions wholly omit the second element, which is a mandatory

provision. Second, the instructions include a charge on self-defense in response to

verbal provocation. This extra language is nowhere to the found in the penal code.

Next, the instructions fail to include the law on the presumption of reasonableness,

which applies to the facts of this case. Finally, the cumulative effect of these errors

in the jury instructions have resulted in a constitutional due process violation.

      The matter should be reversed for a new trial because of the erroneous

instructions resulted in egregious harm to Appellant. An analysis of the four

Almanza factors will be examined and demonstrate the actual, egregious harm

suffered. As to the final issue, the matter should be reversed because the due

process deprivation is an error of constitutional magnitude and cannot be said the

error did not contribute to the conviction, beyond a reasonable doubt.

      The three issues raise concerning individual jury instruction error will be

addressed in this brief in the first section because they are closely related. The


                                          40
cumulative due process matter will be briefed in a second, separate argument.




                                        41
                         Argument on Issues I, II, and III

                                      Issues.

      I.     Appellant suffered egregious harm because the jury instructions

omitted the presumption of reasonableness that the use of deadly force was

immediately necessary.

      II.    Appellant suffered egregious harm because jury instructions on

the law of self-defense omitted a significant portion of the law on use of deadly

force in self-defense.

      III.   Appellant suffered egregious harm because the jury instructions

included extra-statutory language regarding self-defense in response to verbal

provocation not permitted by the penal code.

                               Standard of Review

      When reviewing charge error, the reviewing court will consider two

questions: (1) whether error existed in the charge and (2) whether sufficient harm

resulted from the error so as to compel reversal. Ngo v. State, 175 S.W.3d 738, 744

(Tex. Crim. App. 2005). Charge error is egregiously harmful if it affects the very

basis of the case, deprives the defendant of a valuable right, or vitally affects a

defensive theory. Villareal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). A

reviewing court will not reverse a conviction unless the defendant has suffered



                                        42
actual and not theoretical harm. Cosia v. State, 353 S.W.3d 766, 777 (Tex. Crim.

App. 2011). In conducting this review, the actual degree of harm must be assayed

in light of (1) the entre jury charges, (2) the state of the evidence, including the

contested matters and the strength of the probative evidence, (3) the argument of

counsel, and (4) any other relevant information shown in the record of the trial as a

whole. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

                                  Law Applicable

      The Texas Penal Code provides that use of force in self-defense is a

justification to criminal conduct if the defendant reasonably believes it is

immediately necessary to protect herself against another’s use or attempted use of

unlawful force. TEX. PEN. CODE § 9.31(a) (West 2013).

      The use of force is presumed reasonable if the defendant (1) knew or had

reason to believe the person against whom the force was used was committing or

attempting to commit aggravated kidnapping, murder, sexual assault, aggravated

sexual assault, robbery, or aggravated robbery, (2) did not provoke the person

against whom the force was used, and (3) was not otherwise engaged in criminal

activity. TEX. PEN. CODE § 9.31(a) (West 2013).

      The same applies to use of deadly force in self-defense: A person can use

deadly force against another (1) if she would be justified in using force against the

other under [the self-defense provision above]; and (2) when and to the degree she


                                         43
reasonably believes the deadly force is immediately necessary (A) to protect

herself against another’s use or attempted use of unlawful deadly force, or (B) to

prevent the other’s imminent commission of aggravated kidnapping, murder,

sexual assault, aggravated sexual assault, robbery, or aggravated robbery. TEX.

PEN. CODE § 9.32(a) (West 2013).

      Similarly, a person’s use of deadly force is presumed reasonable if she knew

or had reason to believe that the person she used deadly force against was

committing or attempting to commit aggravated kidnapping, murder, sexual

assault, aggravated sexual assault, robbery, or aggravated robbery. TEX. PEN. CODE

§ 9.32(b) (West 2013). The presumption also requires that the actor not have

provoked the other and that the actor was not otherwise engaged in criminal

activity. TEX. PEN. CODE § 9.32(b)(2) and (3) (West 2013).

      When a penal code provision establishes a presumption in favor of the

defendant the court must charge the existence of the presumed fact to the jury if

there is sufficient evidence of those facts, unless the court concludes the evidence,

as a whole, precludes a finding beyond a reasonable doubt of the presumed fact.

TEX. PEN. CODE § 2.95(b)(1) (West 2013). The charge to the jury of the presumed

fact must include language which states “(A) the presumption applies unless the

state proved beyond a reasonable doubt that the facts giving rise to the presumption

do not exist; (B) if the state fails to prove beyond a reasonable doubt that the facts


                                         44
giving rise to the presumption do not exist, the jury must find that the presumed

fact exists; (C) even though the jury may find that the presumed fact does not exist,

the state must provide beyond a reasonable doubt each of the elements of the

offense charged; and (D) if the jury has a reasonable doubt as to whether the

presumed fact exists, the presumption applies and the jury must consider the

presumed fact to exist.” TEX. PEN. CODE § 2.05(b)(2) (West 2013).

      Unobjected to error in the court’s instructions to the jury mandates reversal

when the error is so egregious and created such harm that the accused is deprived

of the right to a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171-72

(Tex. Crim. App. 1985); TEX. CODE CRIM. PROC. art. 36.19 (West 2013). Errors

which result in egregious harm include those that affect the very basis of the case,

take a valuable right from the accused, vitally affect a defense theory, or make the

case the case for conviction or punishment clearly and significantly more

persuasive. Almanza, 686 S.W.2d at 171-72; McIntosh v. State, 297 S.W.3d 536,

542-43 (Tex.App.—Houston [1st Dist.] 2009, pet. ref’d).

      Article 36.14 requires the trial judge to deliver a written charge “distinctly

setting forth the law applicable to the case” to the jury. TEX. CODE CRIM. PROC. art.

36.14 (West 2013).

      The trial judge has an obligation to instruct the jury on the law applicable to

the case, even when the defense counsel does not voice an objection to inclusions


                                         45
or exclusions in the jury instructions. Vega v. State, 394 S.W.3d 514, 519 (Tex.

Crim. App. 2013). A defendant turned appellant cannot complain on appeal about

the trial court’s failure to include a defense instruction that he did not preserve at

the charge conference. Id. However, when a trial charges on a incorrectly on a

defensive issue, whether on request or sua sponte, the error is subject to review

under Almanza. Id.

      The trial court must give a requested instruction on every defensive issue

raised by the evidence. Dugar v. State, 464 S.W.3d 811, 816 (Tex.App.—Houston

[14th Dist] 2015, pet. ref’d). If some evidence on each element of a defense is

raised, if believed by the jury, would support a rational inference of the element is

true, a defensive issue is raised. Id.

      Neither the defense, nor the State are entitled to a special jury instruction

relating to a statutory offense or defense if the instruction (1) is not grounded in the

Penal Code, (2) is covered by the general charge to the jury, and (3) focuses the

jury’s attention on a specific type of evidence that may support an element of an

offense or a defense. Walters v. State, 247 S.W.3d 204, 212 (Tex. Crim. App. 2007)

(reh’g denied). Under those circumstances, the non-statutory instruction would

constitute a prohibited comment on the weight of the evidence. Id.

      The code of criminal procedure also requires the trial court, in the charge,

not to express “any opinion as to the weight of the evidence”. TEX. CODE CRIM.


                                          46
PROC. art 36.14 (West 2013).

      An incomplete or erroneous jury charge jeopardizes the accused’s

fundamental right to a jury trial because the jury is not properly guided in its fact-

finding function by the jury charge. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.

Crim. App. 1994).

                            Analysis of Issues I and II

      The issues raised in this brief concerning the charge were not objected to at

the trial court. Accordingly, this brief will show the error resulted in egregious

harm. Indeed, error in the charge is egregiously harmful because the omitted self-

defense instructions affected the very basis of the case, deprived the defendant of

the valuable right to the defensive issue, and vitally affected the sole defensive

issue in the case.

      Issues I and II focus on the omission of jury instructions. Issue I explores

whether the omission of the presumption of reasonableness is egregiously harmful.

Issue II asks the same question about the omission of large portions of the statutory

language on self-defense and deadly force, respectively. This argument first begins

with inquiring whether there was error in the charge then goes on to an analysis of

the four Almanza factors listed above as applied to Issues I and II.

A.    Is there Error?

      The matter of self-defense was raised by the evidence, unquestionably. Dr.


                                          47
Busch raised it by way of testimony along with various other fact witnesses who

testified that the decedent kept coming at Appellant after she fired shots at him.

The question of whether shooting was done in self-defense is an issue for the jury.

       Indeed, the matter was charged, albeit incompletely. Because the matter was

raised by the evidence, Appellant was entitled to have the jury instructed on the

law concerning self-defense. See TEX. CODE CRIM. PROC. art. 36.14 (West 2013);

Dugar v. State, 464 S.W.3d at 816.

B.     Almanza Factors

1.     The Entirety of the Jury Charge

       The jury charge at issue include only brief instructions on self-defense and

on deadly force. See CR 84-86. Additionally, it included no provision regarding the

presumption of reasonableness in use of deadly force provisions of the penal code.

TEX. PEN. CODE § 9.32(b) (West 2013). The complete omission of the presumption

weighs in favor of finding egregious harm. See Villareal v. State, 453 S.W.3d at

433.

       The abstract portion of the jury charge only included three sentences on self-

defense. The first stated that a person is justified in using deadly force is she

reasonably believed the deadly force was immediately necessary to protect the

person against the other’s use or attempted use of unlawful deadly force. The

second sentence read, “Self-defense does not cover conduct in response to deadly


                                         48
force in response to verbal provocation alone.” CR 84. It added a sentence which is

not authorized by the penal code provisions on self-defense. See TEX. PEN. CODE §

9.31 and 9.32 (West 2013).

      The application paragraph correctly states the necessary elements for

the offense and went on to charge on self-defense. It reads,

            “To decide the issue of self-defense, you must determine
      whether the state has proved, beyond a reasonable doubt, one of the
      following:

             “1. The defendant did not believe her use of deadly force
      was immediately necessary to protect herself against Brian Allen’s use
      or attempted use of unlawful deadly force; or

             “2.   The defendant’s belief was not reasonable.

            “You must all agree that the state has proved, beyond a
      reasonable doubt, either element 1 or 2 listed above. You need not
      agree on which of these elements the state has proved.…

            “In determining the issue of self-defense it is your duty to
      consider all relevant facts and circumstances surrounding the alleged
      offense and the previous relationship, if any, existing between Karra
      Trichele Allen and Brian Allen, the words, including acts and conduct
      of the said Brian Allen together with all relevant facts and
      circumstances going to show the condition of the mind of Karra
      Trichele Allen at the time of the alleged offense.”

CR 85-86.

      The charge then includes a second application paragraph which correctly

lists the elements for the offense and is followed with “… BUT if you further find

from the evidence, or have a reasonable doubt thereof, as viewed from the


                                         49
Defendant’s standpoint alone, that the Defendant reasonably believed that deadly

force when and to the degree used, if it was, was immediately necessary to protect

herself against the use or attempted use of unlawful deadly force, either real or

apparent, by the said Brian Allen, you will acquit the Defendant of the offense of

MURDER and say by your verdict ‘Not Guilty’.” CR 86.

      The self-defense abstract instructions are woefully incomplete. They do not

instruct the jury on the law of self-defense under Penal Code § 9.31. More

troubling is that the instructions incorrectly state the law on use of deadly force.

See TEX. PEN. CODE § 9.32(a) (West 2013). The charge shortcuts § 9.31 by going

directly into to § 9.32. However, it omits subsection (a)(2) which has mandatory

language. Subsection (a)(2) reads,

     “.. when and to the degree the actor reasonably believes the deadly force is
immediately necessary:

     (A) To protect the actor against the other’s use or attempted use of
unlawful deadly force; or

      (B) To prevent the other’s imminent commission of aggravated
kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or
aggravated robbery.”

TEX. PEN. CODE § 9.32(a)(2) (West 2013).

      In no part of the jury charge is this language included. Arguably, subsection

(A) is included in the shortened instruction under the self-defense charge.

However, the deadly force statute is written with reference to the self-defense


                                        50
statute first, which includes the use or attempted use of unlawful language. See

TEX. PEN. CODE § 9.31(a) (West 2013). Similar language is repeated in the deadly

force statute with the inclusion of the word “deadly” in place of “unlawful”. See

TEX. PEN. CODE § 9.32(a)(2) (West 2013). The plain language of the statutes

demonstrate the legislature must have intended all language be included. Its

exclusion cannot be permissible.

      But the charge does not ask the jury to decide whether, in light of the

circumstances of the case, Appellant was entitled to the presumption of

reasonableness as to her belief the use of deadly force was immediately necessary.

TEX. PEN. CODE § 9.32(b) (West 2013). The instruction, had it been included,

would have required the jury to apply the presumption unless the State proved,

beyond a reasonable doubt, Appellant knew or had reason to believe Brian Allen

(1) was committing or attempting to commit aggravated kidnapping, murder,

sexual assault, aggravated sexual assault, robbery, or aggravated robbery, or (2)

Appellant provoked Brian Allen. See TEX. PEN. CODE § 9.32(b)(1)(B) and (b)(2)

(West 2013). The complete instruction shows the State bears the burden of proving

the presumption does not apply. Only if the State so proves, beyond a reasonable

doubt, could the jury then disregard the presumption.

      The entirety of the jury instructions are inadequate to properly charge on

self-defense. First because they are incomplete. Large portions of the written


                                        51
statutes are omitted. Secondly, the presumption was properly raised by the

evidence and omitted from the charge, though the matter was raised by the

evidence. This factor weighs heavily for Appellant. The charge runs the risk of

misleading the jury in the proper application of self-defense. It also deprives

Appellant of the presumption of reasonableness allowed in Texas law.

      Following the analytic framework of the Texas Court of Criminal Appeals in

Villareal, supra, this brief will next argue the state of the evidence adduced at trial

supports the presumption, and therefore, the omission of the charge deprived

appellant of a fair and impartial trial. Note, however, the facts of this case are

distinguishable from this in Villareal.

2.    State of the Evidence

      The evidence at trial focused in large part on the history between Appellant

and the decedent. Parts were contested whether the decedent was an “abuser”, per

se. However, some evidence was not contested that the decedent had, in fact,

previously assaulted Appellant. That lengthy history of abuse led to ultimate

conclusion by the defense expert on interpersonal violence that the decedent was

an abuser and Appellant was in fear of her life. The omission of the proper

instructions on self-defense and the presumption of reasonableness is, accordingly,

egregiously harmful.

      a.     Witness testimony throughout the lengthy trial showed numerous


                                          52
instances where Appellant suffered abuse at the hands of the decedent. Broadly

speaking, evidence from separate witnesses all showed, the decedent would assault

Appellant different ways: He would pull Appellant by the hair, would strike her

across the face (at least one time to make her begin to fall out of a chair), would

throw rocks her car, would hold her head underwater. The decedent’s own words to

Robert Henley showed he treated Appellant poorly, had explosive fits of violence

and anger, and knew he needed to change his ways.

      b.     Appellant’s words the night of the shooting are inconsistent, at best.

But she was clearly in a state of shock. She had been suffering abuse, had a blood

alcohol near the legal limit at the time it was drawn, and had just shot her partner

of over a decade. The only consistent statements she made was that the shot one

direction, then shot another direct, but decedent kept coming at her, so she shot him

again. The State, at trial, seemed to take her statements as made with scientific

precision, rather than what they are: The ramblings of a woman who was under the

trauma and shock of having shot her husband.

      c.     Dr. Busch-Armerendiz examined the offense reports, consulted with

Henley, interviewed Appellant, and ultimately rendered an opinion directly on

point with the presumption omitted in the charge: Appellant suffered escalating

violence for years. Appellant believed she was about to be killed. Her shooting of

the decedent was necessary and reasonable from her standpoint because the


                                         53
accumulation of his attacks over time. The evidence included her conclusion that

any ordinary and prudent person in the same circumstances would have believed

his or her life was in danger. Indeed, Appellant believed she was about to be

murdered.

      d.     The evidence of the witness testimony of the history of violence, Dr.

Busch’s opinion based on information she received, and Appellant’s only

consistent statement all lead to one conclusion: The statutory presumption of

reasonableness is applicable to this case. Indeed, the jury received direct evidence

in the form of testimony that a reasonable person would have believed he or she

was to be imminently killed.

      The instruction should have been included because it was raised by the

evidence. The omission of the instruction on the presumption of reasonableness

deprived Appellant of a fair trial. Additionally, the state of the evidence clearly

demonstrates self-defense was the central theory of the defense. This factor weighs

heavily in favor of a finding of egregious harm.

3.    Argument of Counsel

      Close examination of the arguments of counsel shows that use of deadly

force in self-defense was the defensive theory in the case. Additionally,

examination of the argument of State’s counsel reveals much of their case was to

negate the self-defense justification, as is its burden.


                                           54
      In argument, the prosecutor commented that all the relevant facts and

circumstances showing the condition of Appellant’s mind can be considered. XVII

RR 9. Moreover, he rhetorically asked, “.. [D]id she reasonably believe that she

had to defend herself against Brian Allen by shooting him?” XVII RR 10. He also

argued the defendant had to reasonably believe the “deadly force was immediately

necessary, not in an hour, not in two hours, not the next day, but right then

immediately necessary to protect her against the other’s use or attempted use of

unlawful deadly force.” XVII RR 10. He followed up by noting, “.. [I]f Brian Allen

was attacking her with deadly force unjustly, it would be unlawful and she could

use deadly force to protect herself.” XVII RR 10. The state argued more than

verbal provocation along was necessary to justify the act. XVII RR 11.

      The state argued at length about reasonable belief:

           “.. [A] reasonable belief means a belief that is ordinary….
      What’s an ordinary prudent person? … What’s the reasonable thing to
      do?

            “A belief that’s held by an ordinary, prudent person would have
      held in the same circumstances as the defendant. Now, this does not
      mean necessarily what would Karra Trichele Allen believe, okay? Or
      what would an angry person believe, or what a woman who hates her
      husband necessarily believe?

            “.. [Y]ou take all the circumstances that the defense is trying to
      show you, you gather that up, and then you kind of have to step out of
      Karra Trichele’s shoes and step into the shoes of an ordinary and
      reasonable person and go, given those facts and circumstances, if you
      believe them – let’s not forget that, you have to believe them – would
      an ordinary, prudent person in those circumstances have held those

                                        55
      beliefs?” XVII RR 11-12.

      The state continued about the reasonable belief, again commenting:

      “The State has to prove beyond a reasonable doubt that Karra
      Trichelle Allen – either Karra Trichele Allen did not believe her use of
      deadly force immediately necessary to protect herself against Brian
      Allen’s use or attempted use of unlawful deadly force, meaning we
      have to prove – we, again, can’t go into the defendant’s mind – but of
      all the surrounding circumstances that you’ve heard or that you
      believe, you can infer whether or not she reasonably believed that the
      force was immediately necessary.

      “Or the State can prove that her use of deadly force was not
      reasonable. She didn’t mean to shoot Brian Allen. Didn’t need to do
      it.” XVII RR 13.

      “And the fundamental case here is and it just boils down to this:
      Given what you believe about the relationship between Brian Allen
      and Karra Trichele Allen, and what you believe happened that night
      the that house, in that bathroom, did Karra Trichele Allen really have
      to kill him? Really? Did she have to shoot him in the back twice? I
      submit the answer is no.” XVII RR 14.

      Defense argument focused on categories of witnesses. But went on to state

“.. 99 percent of this trial was not about the – whatever it was, two minute or 20

minutes that happened in the bedroom. 99 percent of this trial by the State and by

the defense, by the State and by the defense, [sic] was about the relationship

between Brian and Trichele and the violence that existed.” XVII RR 21. Defense

counsel also highlighted portions of the charge about the mindset of Appellant: “’In

determining the issue of self-defense, it is your duty … to consider all relevant

facts and circumstances surrounding the alleged offense in the previous


                                        56
relationship existing between Karra Trichele and Brian Allen…. The words,

including acts and conduct of the said Brian Allen, together with all relevant facts

and circumstances going to show … that show the condition of the mind of Karra

Trichele Allen at the time of the alleged offense.’” XVII RR 27. He further read

from the charge:

      “’If you find from the evidence, or if you have a reasonable doubt as
      to whether self-defense applies as viewed from Karra Trichele Allen’s
      Standpoint alone that the defendant reasonably believed that deadly
      force when and to the degree used was immediately necessary to
      protect herself against the use or attempted use of unlawful deadly
      force, either real or apparent, by the said Brian Allen, then you will
      acquit her and say by your verdict not guilty.’” XVII RR 27.

      Appellant argued that Dr. Busch concluded Brian Allen was an abuser. XVII

RR 35. Relying on Dr. Busch’s testimony he said that Appellant was in fear of her

life. XVII RR 35-36. Counsel later argued, “Brian is whipping up on her during

this incident. That’s the most logical conclusion. Ask yourself, has the State proven

it to me, what happened in that short period of time, that she intentionally and

knowingly killed him? Has the State proven to you beyond a reasonable doubt,

beyond a reasonable doubt that self-defense does not apply?” XVII RR 38.

      In its rebuttal, the State argued that Appellant was angry, not in fear. And

that is what murder is about. XVII RR 41-42. The State further said Appellant

made no claims of a physical attack during the incident. “The closest thing she said

to a physical attack was, ‘He was coming at me. Coming at me.’ But, you know,


                                         57
when you listen to that tape and you listen to every statement she made, she never

says, ‘He was coming at me to hit me. He was coming at me with something in his

hand. He said something that scared me.’” XVII RR 50.

      The State suggested that Dr. Busch stated “a reasonable person would not

have a fear of imminent use of unlawful deadly force if the actor had a gun in their

hand and the victim was running away from the actor and not towards any

weapons.” XVII RR 51. Toward the end, the State said, “We have proved there was

no reasonable belief and no use of unlawful deadly force by Brian Allen.” XVII

RR 66.

      Arguments of counsel demonstrate, again, this case was largely about self-

defense. Each party also commented on Busch’s testimony. Her testimony was

central to self-defense and to Appellant’s belief she was about to be murdered.

With this argument as a backdrop, to provide incomplete instructions on self-

defense and to omit a presumption allowed by law is in error and demonstrate this

factor weighs heavily in favor of Appellant.

4.    Entirety of the Record

      The Villareal case, supra, in part reasoned that the jury there rejected sudden

passion so it was unlikely they would have considered the presumption of

reasonableness. In anticipation the State will make a similar argument, Appellant

would show this court that this case is distinguishable from the reasoning in


                                         58
Villareal.

       The State argued the sudden passion was only about what happened

immediately at the time of the shooting. Defense counsel argued the jury could

consider the history of the relationship between the two.2 The State read part of the

charge at argument and highlighted that sudden passion is “passion directly caused

by and arising out of provocation by the individual killed, or another acting with

the person killed, which passion arises at the time of the offense and is not solely

the result of former provocation.” XVIII RR 24. The State also argued,

       “Remember at the guilt/innocence phase of the trial, there was this
       question of the history between them and what was operating on the
       defendant’s mind at the time that she shot Brian Allen. That is not a
       consideration here. If there is sudden passion in this case, it has to
       have arisen then at the moment that she shot Brian Allen, not anything
       that happened two years ago or five years ago of the day before, but
       right then.”

XVIII RR 24-25 (emphasis added).

       The prosecution went on to state, “..[S]he had to have acted under [the

sudden passion] immediately, under the immediate influence. It has to have

happened right then in order for y’all to consider this question of sudden passion.”

XVIII RR 25. Again they argued in rebuttal, “Was it provoked by the victim at the

time of the offense?” XVIII RR 30.

2
  On guilt/innocence, a specific instruction is included telling the jury they may consider all
circumstances surrounding the incident along with all facts and circumstances showing the
condition of the mind of Appellant at the time of the shooting. CR 84. No such charge was
provided to the jury on punishment.

                                              59
      It is improper to infer, under the facts this case, that because the jury rejected

sudden passion at punishment they would have rejected the presumption of

reasonableness at guilt/innocence. As properly argued by the State, the sudden

passion question focuses on the time of the incident. Conversely, the defense

theory on use of deadly force focused on the history of escalating violence between

Appellant and the decedent causing the state of mind of any reasonable person in

Appellant’s position at the time of the shooting.

      The rest of the record, taken as whole, clearly demonstrates the defense at

issue was solely that of deadly force used in self-defense. Each part of the defense

went to that issue; there was no alternative. The fact witnesses called by Appellant

talked about the history of violence and how it didn’t stop. Ultimately, the expert

provided the direct opinion relied on by the defense. Appellant was deprived of the

right to fair trial. This factor, again, weighs in favor of Appellant.

                            Conclusion on Issues I and II

      The omission of the presumption of reasonableness, in light of the four

Almanza factors, resulted in egregious harm to Appellant. The charge excluded any

reference to the presumption when Appellant was entitled to it. Indeed, it left out

crucial parts of the law on self-defense. The state of the evidence showed Appellant

was subjected to violence by the decedent for many years. The arguments of

counsel focused in large part on self-defense and particularly on “reasonableness”.


                                           60
Finally, merely because the jury rejected sudden passion give no rise to an

inference they would have rejected sudden passion, under the defense theory in this

case. The entirety of the record, taken as a whole, shows this case was about self-

defense.

      Accordingly, this matter should be reversed and remanded to the trial court

for a new trial because the erroneous omission of the law on the presumption of

reasonableness was left out of the instructions to the jury.

      Similarly, the instructions in the abstract concerning self-defense and deadly

force caused egregious harm. There is no language of self-defense per § 9.31. The

deadly force defense incorporated self-defense, and arguably, the charge here

makes a short cut and includes the self-defense language in the definition of deadly

force. That as it may be, over half the law on deadly force is omitted from the

charge. Because the central defensive issue in this case was about the use of deadly

force in self-defense, the exclusion of a significant portion of the law on that

justification caused egregious harm to Appellant. Accordingly, this matter should

be reversed and remanded for a new trial with proper jury instructions on the issue

of self-defense and on the issue of deadly force.

                                Analysis of Issue III

      As to the third issue, the second paragraph in the jury charge on self-defense

reads, “Self-defense does not cover conduct in response to verbal provocation


                                          61
alone. The defendant must have reasonably believed the other person had done

more than verbally provoke the defendant.” CR 84. Under the Texas Penal Code,

the law on provocation in this context is, “The use of force against another is not

justified in response to verbal provocation alone.” TEX. PEN. CODE § 9.31(b)(1)

(West 2013). The only other language on provocation is in the reasonableness

presumption, which, as noted above, is wholly omitted from these jury instructions.

See TEX. PEN. CODE § 9.32(b)(2) (West 2013).

      The non-statutory instruction constitutes a prohibited comment on the

weight of the evidence. See Walters v. State, 247 S.W.3d 204, 212 (Tex. Crim. App.

2007). As stated by Walters court, neither party is entitled to any special instruction

relating to an offense or defense not grounded in the Penal Code, covered by the

general charge to the jury, and which focuses the jury’s attention on a specific type

of evidence that may support an elements of an offense or a defense. Id.

      As shown, the extra sentence that the defendant must have believed

something more than provocation was done is language not included in the penal

code related to self-defense. This extra-statutory language clearly focuses the jury’s

attention on a specific type of evidence relating to the central defensive theory of

the case. Additionally, this extra language is error in the charge and mandates

review under Almanza. At the risk of being overly brief, because this brief has

detailed Almanza review for the preceding two issues above, this analysis will be


                                          62
shorter.

1.    The Entirety of the Charge

      The charge at issue includes only an incomplete set of instructions on self-

defense. The language of provocation is included, in additional to the extra-

statutory language. The application paragraph also includes a self-defense

instruction. Because self-defense is included in the charge, albeit incompletely, it is

a known and important issue in the case. To incorrectly instruct the jury on the law

is a grievous error. This charge error weighs in favor of Appellant.

2.    State of the Evidence

      Much of the evidence through witness testimony discussed whether

Appellant or the decedent would start fights. It discussed who would provoke

disagreements. By including the impermissible language, the jury’s attention was

focused on a specific type of evidence, that of provocation. Because of this

impermissible commentary on the evidence, this factor also weighs heavily in

Appellant’s favor.

3.    Argument of Counsel

      Again, both defense and state counsel argued at length about what

reasonable people would do in similar circumstances. And in particular, the State

directly spoke with the jury concerning the instruction. XVII RR 10-11. The State

also linked the provocation to what Appellant must have reasonably believed. XVII


                                          63
RR 11. This factor will also weigh in favor of Appellant.

4.       Entirety of the Record

         In anticipation of the State’s argument, Appellant reiterates this factor from

earlier in this brief. The sudden passion and self-defense issues are separate matters

for the jury’s consideration. Sudden passion looks at that instant time of the

shooting, alone. Self-defense, however, reviews this relationship of over ten years.

Additionally, the entirety of the record indicates the State intended to show

Appellant was responsible for starting many fights between the two. The defense

did not contest that Appellant would start some of those fights. This evidence of

provocation is repeated throughout the record. This factor weighs in Appellant’s

favor.

                                  Conclusion on Issue III

         The extra language, not included anywhere in the penal code, served to

focus the jury’s attention on a specific type of evidence. Because that type of

evidence was the central theory of the defense, was otherwise included in the jury

charge, was relied on by counsel in argument, and rendered the trial fundamentally

unfair, the error in the charge is egregious under Almanza review. Accordingly, like

issues I and II, this matter requires this case be reversed and remanded for a new

trial.




                                            64
                               Argument on Issue IV

                                        Issue

IV.   The cumulative effect of the numerous errors in the jury instructions

has resulted in a constitutional due process violation because Appellant was

denied the right to have a legal defense accurately presented to the jury.

                                  Law Applicable

      “No citizen of this State shall be deprived of life, liberty, property, privileges

or immunities, or in any manner disenfranchised except by the due course of the

law of the land.” TEX. CONST. art. I § 19.

      No person shall be “deprived of life, liberty, or property, without due process

of law…”. UNITED STATES CONST. Amend. V.

      Art. 36.14 requires the court charge the jury on the law applicable to the

case. TEX. CODE CRIM. PROC. art 36.14 (West 2013).

      The very basis of due process is the have notice of a specific charge, a

chance to be heard in a trial of the issues raised by that charge. Cole v. Arkansas,

333 U.S. 196, 201 (1948).

      “A fundamental error is a very basis, an underlying material error that affects

the founding of a conviction’s validity. It may well be a violation of fundamental

fairness, a violation of due process of law, a violation of the due course of law of

the land.” Almanza v. State, 686 S.W.2d 157, 176 (Tex. Crim. App. 1984) (Onion,


                                          65
J. concurring in part and dissenting in part) (internal cite omitted).

      Even if no individual error is a constitutional deprivation, a number of errors

may be found harmful in their cumulative effect. Chamberlain v. State, 998 S.W.2d

230, 238 (Tex. Crim. App. 1999).

      The existence of multiple errors can warrant reversal when they operate in

concert to undermine the fundamental fairness of the proceeding. Estrada v. State,

313 S.W.3d 274, 311 (Tex. Crim. App. 2010).

                                       Analysis

      In addition to the issues cited above regarding specific instances of charge

error, in cumulation, the jury instructions’ failure to accurately set out the law on

self-defense have rendered the trial of Appellant fundamentally unfair. Without so

conceding, if any of the individual errors in the jury instructions are found not to

be egregiously harmful, the cumulative effect of the errors rises to the level of a

constitutional breach.

      The fundamental right to have defensive issues presented to the jury in the

instructions is so flawed in this case, the error has undermined the basic fairness of

the trial. First, the entirety of the statutory scheme law is not set out. (Omission of

§ 9.31, Texas Penal Code.) Secondly, only half of the deadly force defense is

provided in the abstract. (Omission of § 9.31(a)(2), Texas Penal Code.) Next, the

legal presumption afforded by the penal code, and applicable to this case, is also


                                           66
left out of the jury instructions. (Omission of § 9.31(b), Texas Penal Code.) Finally,

the jury instructions include extra-statutory language not allowed by law.

(Inclusion of extra language regarding provocation in self-defense context.)

      This case is about self-defense. The jury instructions erroneously instructed

on that issue through the numerous individual errors. Even if each individual error

is found not to be egregiously harmful, the cumulative effect of the improper

omission or inclusion of jury instructions runs afoul of due process.

      Accordingly, the record here shows constitutional error. The constitutional

deprivation of the right to have the jury properly charged with the statutory

defenses has contributed to the conviction in this case. Indeed, the defensive theme

in the case was about the very law incorrectly given to the jury. It can, under no

circumstances, be said that beyond a reasonable doubt, the error did not contribute

to the conviction. TEX. R. APP. P. 44.2(a). This Honorable Court should reverse this

conviction and remand for a new trial.




                                         67
                                   PRAYER

      Appellant respectfully prays that this Honorable Court find Appellant was

egregiously harmed by the individual errors in the jury instructions and that the

matter be reversed and remanded. In the alternative, Appellant prays this

Honorable Court find the cumulative effect of the error in the jury instructions

resulted in a constitutional due process violation and the matter be reversed and

remanded. Appellant prays for any other relief to which she may be entitled in

equity or at law.

                                            Respectfully submitted,




                                            Gary E. Prust
                                            State Bar No. 24056166
                                            1607 Nueces St.
                                            Austin, Texas 78701
                                            (512)469-0092
                                            Fax (512)469-9102
                                            gary@prustlaw.com
                                            Attorney for Karra Trichele Allen




                                       68
                           CERTIFICATE OF SERVICE

       In compliance with TEX. R. APP. PROC. 9.5(b)(1), (d), and (e) the
undersigned attorney certifies that a true and correct copy of the foregoing Brief
was served at or before the time of its filing upon Mr. Gary Bunyard through
electronic via the electronic filing manager through efile.txcourts.gov on the 26th
day of September, 2016.




                                              Gary E. Prust


                        CERTIFICATE OF COMPLIANCE

       I hereby certify Appellant’s Brief contains 16,413 words, excluding those
parts so allowed in TEX. R. APP. PROC. 9.4(i)(1) and is not in compliance with TEX.
R. APP. PROC. 9.4(2)(B). In so certifying, I rely upon the word count function of the
computer program used in preparation of this document. In conjunction with the
filing of this brief, Appellant has filed a motion to exceed word count.




                                              Gary E. Prust




                                         69
                                               Appendix

Appendix A
Extracted Pages from jury instructions on self-defense .......................................... A

Appendix B
Extracted Pages from Dr. Busch's testimony ................................................................ B




                                                    70
Appendix A        I. the defendant, in Burnet County, Texas, on or about the 1" day of July, 2013,
                        caused the death of Brian Allen by shooting him with a firearm; and
                  2. the defendant did this either intentionally or knowingly.
              The state has the burden of proving each of the elements above beyond a reasonable


                                                  The Verdict
              The law requires that you render a verdict of either "guilty" or "not guilty." The verdict
       of "not guilty" simply means that the state's evidence does not prove the defendant guilty
       beyond a reasonable doubt.
              You may return a verdict only if all twelve of you agree on this verdict.
              When you reach a verdict, the foreperson should notify the court.
                                                    Defenses
              Voluntary mtox!Catwn IS not a defense to a cnmmal offense.
              The tenn "intoxication" means a disturbance of mental or physical capacity resulting
       from the introduction of any substance into the body.
              If you all agree the state has proved, beyond a reasonable doubt, each of the two elements
       listed above, you must next consider whether the defendant's use of force was made in self-
       defense.
                                                  Self-Defense
              A person's use of deadly fmee against anothei that would     othen>~ise   constitute the clime
       of MURDER is not a criminal offense if the person reasonably believed deadly force was
       immediately necessary to protect the person against the other's use or attempted use of unlawful


              Self-defense does not cover conduct in response to verbal provocation alone. The
       defendant must have reasonably believed the other person had done more than verbally provoke
       the defendant.
                        The Relationship between Karra Tricbele A-llen and Brian A-llen
              You may consider all relevant facts and circumstances surrounding the death of Brian
       Allen, and the previous relationship existing between Karra Trichele Allen and Brian Allen,
       together with all relevant fqcts and circumstances going to show the condition of the mind gf
       Karra Tnchele Allen at the time of the offense alleged in the indictment.




                                                          -
                                                                                                               84
                                          Burden of Proof
        The defendant is not l'@qaired to prove self defense. Rather, the state must prove, beyond
 a reasonable doubt, that self-defense does not apply to the defendant's conduct.
                                             Definitions
         "Reasonable belief'' means a belief that aH erdinary aHd prudent pet son would have held
 in the same circumstances as the defendant.
        "Deadly force" means force that is intended or known by the person using it to cause
death or serious bodily injury or force that in the manner of its use or intended use is capable of
causing death or serious bodily injury
        "Unlawful" means criminal or tortious or both and includes what would be criminal or
tortious but for a defense not amounting to justification or privilege.
                                       The Indicted Offense
        Now bearmg m mmd the foregomg mstructions, if you believe beyond a reasonable
doubt, that the Defendant, KARRA TRICHELE ALLEN, on or about the 1'1 day of July, 2013, in
the County of Burnet and State of Texas, as charged in the indictment, did then and there
mtentwnally or knowmgly cause the death of an individual, namely, Brian Allen, by shooting
him with a firearm, you will find the Defendant guilty of the offense of MURDER and so say by
your verdict, but if you do not so believe or if you have a reasonable doubt thereof, you will
acquit the Defendant of the offense of MURDER and say by your verdict "not guilty".
       If you have found that the state has proved the offense beyond a reasonable doubt, you
must next decide whether the state has proved that the defendant's conduct was not justified by
self-defense.
       'fo decide tire issue of self-defense, you must determine wnetll.er Hie state lias proved,
beyond a reasonable doubt, one of the following:
                1.    The defendant did not believe her use of deadly force was immediately
                      necessary to protect herself against Brian Allen's use or attempted use
                      of unlawful deadly force; or
                2.    The defendant's belief was not reasonable.
       You must all agree that the state has proved, beyond a reasonable doubt, either element I
or 2 listed abm1e ¥ouneed not agree on v:hish of these elements the state has pHH ed.
       If you find that the state has failed to prove, beyond a reasonable doubt, either element I
or 2listed above, you must find the defendant "not guilty."


                                               ,r;:




                                                                                                      85
         If you all agree the state has proved, beyond a reasonable doubt, each of the elements of
 the offense of MURDER, and you all agree the state has prthed, beyond a Ieasonable doubt,
 either element I or 2 listed above, you must find the defendant "guilty."
        In determining the issue of self-defense it is your duty to consider all relevant facts and
circwnstances SlllTOl!Ilding the alleged offense and the previous Ielationship, if any, existing
between Karra Trichele Allen and Brian Allen, the words, including acts and conduct of the said
Brian Allen together with all relevant facts and circumstances going to show the condition of the
mind of Karra Trichele Allen at the time of the alleged offense.
        Now, therefore. bearing in mind the foregoing definitions and instructions, if you believe
from the evidence beyond a reasonable doubt that the Defendant, Karra Trichele Allen, in the
County of Burnet and the State of Texas, on or about the I st day of July, 2013, as alleged in the
indictment, did then and there intentionally or knowingly cause the death of an individual,
namely, Bnan Allen, by shootmg him With a firearm, BUT you further find from the evidence, or
have a reasonable doubt thereof, as viewed from the Defendant's standpoint alone, that the
Defendant reasonably believed that deadly force when and to the degree used, if it was, was
Immediately necessary to protect herself against the use or attempted use of unlawful deadly
force, either real or apparent, by the said Brian Allen, you will acquit the Defendant of the
offense of MURDER and say by your verdict "Not Guilty".
                         RULES THAT CONTROL DELIBERATIONS
        You must follow these mles while you are deliberating and until you reach a verdict.
After the closing arguments by the attorneys, you will go into the jury room.
        Your first task will be to pick your foreperson. The foreperson should conduct the
delibeJations in an mdeily way. Each juror has one vote, includmg the foreperson. I he
foreperson must supervise the voting, vote with other members on the verdict, and sign the
verdict sheet.
       While deliberating and until excused by the trial court, all jurors must follow these rules:
                 I    You must not discuss this case with any eourt offieer, or the attorneys,    01

                      anyone not on the jury.
                 2.   You must not discuss this case unless all of you are present in the jury
                      room. If anyone leaves the room, then you must stop yom discussions
                      about the case until all of you are present again.
                 3.   You must communicate with the judge only in writing, signed by the
                      foreperson and given to the judge through the officer assigned to you.




                                                                                                       86
                                                              85
     Appendix B
1        A     Yes.

2        Q     And what was your opinion?

3        A     I would say that he was an abusive husband to

4    Trichele over many years.

5        Q     All right.    Does -- some of the documents that you

6    were provided, does he even say out of his own mouth he's an

7    abuser?

8        A     Yes, he does.

9        Q     And he told that to his counselor?

10       A     Yes, he did.

11       Q     And that was -- what year was that; do you recall?

12       A     That was just prior to his death.

13       Q     So he's telling a counselor just prior to his death

14   that "I'm an abuser"?

15             MR. MCAFEE:    Objection to leading.    We haven't

16   objected for a while but objection.

17             THE COURT:    All right.   Sustained.

18       Q     (By Mr. Shell) Is that accurate?

19       A     Yes.

20       Q     Did you have an opinion, based upon everything that

21   you've reviewed -- and I'll focus your attention on the texts

22   the day of the incident where they both told each other

23   basically we're getting a divorce, this is it, I'm done --

24   whether or not this violence that you observed was escalating?

25       A     It was both escalating that day and in the years and


                      STEPHANIE A. LARSEN, CSR, RPR
                                                                86

1    months preceding Brian's death, Mr. Allen's death.

2        Q       Based upon everything that you reviewed and your

3    studies, including the papers that you've written and the

4    research you've done at the institute on domestic violence,

5    were you able to come to a likely probability as to whether or

6    not Trichele feared for her life on this particular day?

7        A       Yes.

8        Q       And what was your opinion?

9                MR. MCAFEE:    Objection.   That's an ultimate fact for

10   the jury.

11               MR. SHELL:    That's not a proper objection.   A witness

12   can state the ultimate fact from a jury.      Want to research?   I

13   can show you cases on that.

14               THE COURT:    I'll overrule the objection.

15       Q       (By Mr. Shell) Did you have an opinion?

16       A       Yes.

17       Q       And what was your opinion about that?

18       A       In reviewing all those documents and from other

19   collaterals, my opinion was -- although I was not there that

20   night -- that it led to force, a defense of her life, because

21   of the accumulated violence over time and the escalating

22   violence over time by Brian to Trichele.

23               MR. SHELL:    I'll pass the witness.

24

25


                        STEPHANIE A. LARSEN, CSR, RPR
