                                                                    ACCEPTED
                                                               14-14-00421-CR
                                                 FOURTEENTH COURT OF APPEALS
                                                             HOUSTON, TEXAS
                                                          2/22/2015 3:49:51 PM
                                                           CHRISTOPHER PRINE
                                                                        CLERK



                 NO. 14-14-00421-CR
                                           FILED IN
                                     14th COURT OF APPEALS
                                        HOUSTON, TEXAS
            IN THE COURT OF APPEALS 2/23/2015 10:32:00 AM
FOR THE   FOURTEENTH SUPREME JUDICIALCHRISTOPHER
                                      DISTRICT A. PRINE
              OF TEXAS AT HOUSTON            Clerk




          ______________________________


           REBECCA VICTORIA HUMARAN
                                  APPELLANT

                        VS.


               THE STATE OF TEXAS
                                       APPELLEE

          ______________________________



                APPELLANT’S BRIEF

           ORAL ARGUMENT REQUESTED




                                  Crespin Michael Linton
                                  440 Louisiana, Suite 900
                                  Houston, Texas 77002
                                  Texas Bar No. 12392850
                                  (713) 236-1319
                                  (713) 236-1242 (Fax)
                          LIST OF PARTIES


The Appellant is Rebecca Victoria Humaran.


The Appellant’s trial counsel is Juan Guerra & Leira Moreno Gracia.


The Appellant’s appellate counsel is Crespin Michael Linton.


The Trial Judge is The Honorable Patrick Sebesta.


The appellate attorney representing the State is David Bosserman,
Assistant District Attorney, Brazoria County, Texas.




                                   i
                         TABLE OF CONTENTS



List of Parties                               i


Table of Contents                            ii


Table of Citations                           vi


Preliminary Statement                        1


Statement of Facts                           1


Pretrial Hearing – August 20, 2013           1


A. Defense’s Witness                         1

      1. Phillip Steven Roberts              1



Trial Phase                                  2


A. State’s Witnesses                         2

      1. Brent Waisner                       2

      2. Samantha Scoggin                    3

      3. Ray Rubio                           4



                                     ii
     4. Summer Warren               6

     5. David Hallimore             7

     6. David Beaver                 9

     7. Matt West                   12

     8. Jack Gentry                 13

     9. Peter Marsh                 15

     10. Shane Windsor              15

     11. Mike Thomas                16

     12. Amy Smuts                  17

     13. Jennifer Moreno            18

     14. Juan Rojas                 19

     15. Chris Kincheloe            20

     16. Stephen Pustilnik          22

     17. Steven Roberts             24

     18. Varon Snelgrove            24

     19. Crockett Robinson          26

     20. Stephanie Robinson         28


B. Defense’s Witnesses              29

     1. Brent Waisner               29

     2. Samantha Scoggin            30

                              iii
      3. Ray Rubio                 31

      4. Jerome Griffin            31

      5. Jack Gentry               31

      6. Chris Kincheloe           32

      7. Karen Humaran             32


C. Jury’s Verdict                  33

Punishment Phase                   33

A. State’s Witnesses               33

      1. Chris Kincheloe           33

      2. Steve Roberts             34

      3. Ben Devine                35

      4. Heather Bailey            35

      5. Michael McCann            36

      6. Christine Coronado        37


B. Defense’s Witnesses             38

      1. Cheri Schultz             38



C. Jury’s Sentence                 39




                              iv
Points of Error                       40


Point of Error Number One             42


Argument and Authorities on
    Point of Error Number One         42


Point of Error Number Two             48


Argument and Authorities on
    Point of Error Number Two         48


Point of Error Number Three           51


Argument and Authorities on
    Point of Error Number Three       51


Point of Error Number Four            55


Argument and Authorities on
    Point of Error Number Four        55


Point of Error Number Five            59


Argument and Authorities on
    Point of Error Number Five        59


Point of Error Number Six             61



                                  v
Argument and Authorities on
    Point of Error Number Six          61


Point of Error Number Seven            64


Argument and Authorities on
    Point of Error Number Seven        64


Point of Error Number Eight            67


Argument and Authorities on
    Point of Error Number Eight        67


Conclusion                             72


Certificate of Compliance              72


Certificate of Service                 72




                                  vi
                 TABLE OF CITATIONS
                       CASES



Balentine v. State, 71 S.W.3d 763
     (Tex. Crim. App 2002)……………….………………     51



Brooks v. State, 323 S.W.3d 893
     (Tex. Crim. App. 2010)…………..…………………    42



Davis v. State, 329 S.W.3d 798
      (Tex. Crim. App. 2010)…………..…………………   42



Fuentes v. State, 991 S.W.2d 267, 275
     (Tex. Crim. App 1999)……………….………………     57



Gomez v. State, 380 S.W.3d 830, 834
    (Tex. Crim. App. 2013)……………….………………     62



Granger v. State, 3 S.W.3d 36, 38
     (Tex. Crim. App. 1999)……………….………………    61



Hayden v. State, 296 S.W.3d 549
     (Tex. Crim. App. 2009)……………….………………    65



                         vii
Illinois v. Gates, 462 U.S. 213, 236-37
       103 S.Ct. 2317, 2331, 76L.Ed.2d 334 (1983)……   52



Jones v. State, 833 S.W.2d 118, 123
     (Tex. Crim. App. 1992)……………….………………              53


Jones v. State, 944 S.W.2d 642, 647
     (Tex. Crim. App. 1996)……………….………………              43



Matson v. State, 819 S.W.2d 839, 846
     (Tex. Crim. App. 1991)……………………………………             42



McCarty v. State, 257 S.W.3d 238, 239
    (Tex. Crim. App. 2008)……………………………………              64



Ngo v. State, 175 S.W.3d 738, 743
     (Tex. Crim. App. 2005)……………………………………             61



Porter v. State, 634 S.W.2d 846, 849
      (Tex. Crim. App. 1982)……………………………………            48



Ransom v. State, 920 S.W.2d 288, 302
     (Tex. Crim. App. 1994)……………………………………             48



Rayford v. State, 125 S.W.3d 521, 528

                                viii
      (Tex. Crim. App. 2003)……………………………………                    52, 68



Renteria v. State, 206 S.W.3d 689
     (Tex. Crim. App. 2006)……………………………………                     59



Romero v. State, 800 S.W.2d 539, 543
    (Tex. Crim. App. 1990)……………………………………                      51, 68



Serrano v. Jordan, 123 S.W.3d 57, 60
     (Tex. App. – Austin 2003, pet. ref’d)……………………            53



State v. Dixon, 206 S.W.3d 587, 590
      (Tex. Crim. App. 2006)……………………………………                    68



State v. Jordan, 342 S.W.3d 565, 568
      (Tex. Crim. App. 2011)……………………………………                    53



State v. Stone, 137 S.W.3d 167, 174
      (Tex. App. - Houston [1st Dist.] 2004, pet. ref’d)………   52



Vela v. State, 209 S.W.3d 128
      (Tex. Crim. App. 2006)……………………….………….                   69


Wicker v. State, 667 S.W.2d 137
     (Tex. Crim. App. 1984)……………………….………….                    43

                                  ix
Wyatt v. State, 23 S.W.3d 18, 27
     (Tex. Crim. App. 2000)……………………….………….             69


Willingham v. State, 897 S.W.2d 351, 359
      (Tex. Crim. App. 1995)……………………….………….            65


                         STATUTES

Tex. Code Crim. Proc., Art.18.01 (West 2014)………………..   52


Tex. Pen. Code §7.02 (West 2014)……………………………..          48


Tex. Pen. Code §8.05 (West 2014)……………………………..          62


Tex. Pen. Code §9.22 (West 2014)……………………………..          62


Tex. Pen. Code §19.02 (West 2014)…………………………….. 43


Tex. Rules of Evid., Rule 401 (West 2014)……………………..    65


Tex. Rules of Evid., Rule 402 (West 2014)……………………..    65


Tex. Rules of Evid., Rule 702 (West 2014)……………………..    68




                              x
                      PRELIMINARY STATEMENT


       On August 1, 2012, Appellant Rebecca Victoria Humaran was

arrested for the murder of Clinton Sutton, Sr. On May 20, 2014, a jury

found Humaran guilty of Murder. On May 23, 2014, a jury assessed a

sentence of 50 years in the Texas Department of Criminal Justice.

Appellant Humaran perfected her appeal on May 23, 2014. (TR. Vol. 3 at

165)

                          STATEMENT OF FACTS


            PRETRIAL HEARING – AUGUST 20, 2013

       On August 20, 2013, the trial court conducted a pretrial hearing on

Appellant’s Motion To Suppress Search Warrants for Defendant’s DNA

and for her Cell Phone.



A.     Defense’s Witness
       1.   Phillip Steven Roberts
       Brazoria County Sheriff’s Department Investigator Phillip Steven

Roberts testified he prepared the affidavits for the search warrants for

Appellant’s DNA and for her cell phone. (R.R. Supp. at 6-7) Roberts

explained that he spoke to witnesses and reviewed police officers’ reports

to prepare the 2 search warrants. (R.R. Supp. 1 at 9) He stated that he

                                     1
prepared the search warrant for Appellant’s DNA after collecting the

evidence on July 31, 2012. (R.R. Supp. at 9-10) Roberts testified that he

spoke with Captain Kincheloe and other officers who stated that Appellant

had handled a firearm. (R.R. Supp. at 12-15) He admitted that he did not

have specific knowledge that Appellant handled a MAK-90 firearm. (R.R.

Supp. at 16) Roberts testified that he prepared an affidavit on August 10,

2012, for the search warrant for Appellant’s cell phone. (R.R. Supp. at

18-19) He admitted that he did not have any knowledge on whether or

not the cell phone contained evidence for this case. (R.R. Supp at 20)

     The trial court denied Appellant’s Motion To Suppress the 2 search

warrants. (R.R. Vol. Supp. at 27)



                       TRIAL PHASE

A.   State’s Witnesses


     1.    Brent Waisner
     Brent Waisner testified that he lives with Samantha Scoggin who is

divorced from the deceased, Clinton Anthony Sutton, Sr. “Tony,” and

who is the mother of Clinton Sutton, Jr. (R.R. Vol. 3 at 45) Waisner

acknowledged that he is currently on probation for the felony of Theft.

(R.R. Vol. 3 at 44) He stated that on July 31, 2012, after he had drunk


                                    2
three 16 ounce beers, he and Scoggin drove to Tony’s farm in Jones

Creek, Texas, to visit her son and ex-husband. (R.R. Vol. 3 at 46)

Waisner testified that they arrived at 8:00 a.m. and saw Sutton, Jr., and

Appellant standing on a concrete slab attached to the building while

black smoke billowed from a nearby fire on the property. (R.R. Vol. 3 at

54) He explained that Sutton, Jr., and Appellant looked annoyed at their

arrival and then saw Appellant wash blood from the concrete slab with a

water hose after Sutton, Jr., whispered into Appellant’s ear. (R.R. Vol. 3

at 58) Waisner testified that he remained in the car after Scoggin exited

the car and followed her son into the building. (R.R. Vol. 3 at 62) He

stated that Sutton ordered them to return in 45 minutes.

      Waisner testified that when he and Scoggin returned that Sutton,

Jr., ordered his mother to get back in the car and leave. (R.R. Vol. 3 at

72) He stated that a nude Appellant exited the building and threatened

to call the police if they refused to leave the property. (R.R. Vol. 3 at 73)

He explained that he and Scoggin did not call the police because they

had been drinking and driving. (R.R. Vol. 3 at 79)

       2.   Samantha Scoggin

      Samantha Scoggin testified that Sutton, Jr., began living with Tony

in May of 2012, after he was discharged from the Marine Corps with less



                                      3
than an honorable discharge. (R.R. Vol. 3 at 88) Scoggin stated that

Appellant moved in with Sutton, Jr., and Tony in May of 2012. (R.R. Vol.

3 at 90) She explained that Tony made guitars and collected guns.

(R.R. Vol. 3 at 91) She admitted that she went to prison in 2008 for

Intoxication Manslaughter. (R.R. Vol.3 at 94) Scoggin further conceded

that she and Waisner drank a few beers on the drive to Tony’s property.

(R.R. Vol. 3 at 93) She testified that she saw her son and Appellant

standing on a 20 foot by 20 foot concrete slab which is connected to a

building which acts as Tony’s workshop and residence. (R.R. Vol. 3 at

96-97) Scoggin stated that she saw Appellant washing the slab with a

water hose. (R.R. Vol. 3 at 98) She testified that her son asked them to

leave for 45 minutes. (R.R. Vol. 3 at 103-104) Scoggin stated that

when they returned that an angry, aggressive, and nude Appellant

ordered them to leave. (R.R. Vol. 3 at 108-109) Scoggin noted that she

has seen Appellant shooting guns on Tony’s property. (R.R. Vol. 3 at

112)

       3.   Ray Rubio

       Ray Rubio testified that he and Tony met 35 years ago in Junior

High School and have played together in a band. (R.R. Vol. 3 at 119-

120) He explained that he helped Tony construct a building on the 26-



                                    4
acre property 13 or 14 years ago. (R.R. Vol. 3 at 124) Rubio explained

that he visited Tony on the Sunday before his death to help him fill holes

in his road located on the property, but Tony was unable to perform

much work because of his swollen knee caused by Muscular Sclerosis.

(R.R. Vol. 3 at 126) He testified that at about 12:30 p.m. on July 31,

2012, he tried to visit Tony, saw burned grass, walked into the building,

and noticed a wet floor. (R.R. Vol. 3 at 128-131) He stated that

Appellant told him that they were burning trash and that Tony went for a

walk. (R.R. Vol. 3 at 136) Rubio testified that he did not believe her

story because he knew that Tony could barely walk. (R.R. Vol. 3 at 136)

He testified that Appellant said that the floor was wet from washing dog

poop. (R.R. Vol. 3 at 137) Rubio acknowledged that he and Appellant

were alone for about 30 minutes and she never asked for help or

informed him that Sutton, Jr., had killed his father. (R.R. Vol. 3 at 138)

      Rubio testified that as he was talking with Sutton, Jr., while they

were sitting on buckets, a plate came flying out of the building and broke

in the middle of the driveway. (R.R. Vol. 3 at 143-160) He described

that Sutton, Jr., ran inside the shop where Sutton, Jr., choked Appellant.

(R. R. Vol. 3 at 161) Rubio stated that after Sutton, Jr., released his grip

upon his request, Appellant said “Why don’t you tell him you shot your



                                     5
dad.” (R.R. Vol. 3 at 161) He testified that Sutton, Jr., ran after

Appellant into the interior of the shop and emerged later with a bloody

forehead. (R.R. Vol. 3 at 162) Rubio stated that he exited the property

around 2:30 p.m. after Sutton, Jr., asked him to leave. (R.R. Vol. 3 at

163) Rubio testified that he had heard Sutton, Jr., and Appellant

discussing the value of Tony’s property a couple of weeks before the

murder. (R.R. Vol. 3 at 175) He denied that he was intoxicated on July

31, 2012, although he had drunk a couple of beers at Tony’s property.

(R.R. Vol. 3 at 176)



      4.    Summer Warren

      Summer Warren testified that on July 31, 2012, she was working

as a dispatcher for the Brazoria County Sheriff’s Department. (R.R. Vol.

3 at 180-181) Warren testified that she handled a smoke complaint and

a 9-1-1 call on July 31, 2012, at Tony’s property. (R.R. Vol. 3 at 183-

186) She explained that the 9-1-1 caller made the call at 4:00 p.m. on

July 31, 2012, and stated that Sutton, Jr., had killed his father with a .40

caliber pistol and that she had shot the father with an AK-47. (R.R. Vol.

3 at 188) The caller said Sutton, Jr., shot the father when the father was

unconscious. (R.R. Vol. 3 at 189)



                                     6
      On cross-examination, Warren admitted that in her previous

testimony she never testified that the caller said she shot Tony with an

AK-47. (R.R. Vol. 3 at 196) Warren stated she dispatched Deputy

Beaver for the smoke complaint, and he arrived at 10:53 a.m. (R.R. Vol.

3 at 202) She stated that the 9-1-1 caller was hysterical and crying.

(R.R. Vol. 3 at 207) Warren testified that she sent an ambulance

because the caller said she was naked, had been knocked unconscious,

and had suffered an epileptic attack. (R.R. Vol. 3 at 208) She testified

that the caller said that her boyfriend shot his father and would not allow

her to leave the property. (R.R. Vol. 3 at 212) Warren stated that the

caller claimed that she had been raped and that Ray Rubio had seen

Sutton, Jr., choking her. (R.R. Vol. 3 at 215-216) She testified that the

caller described how Sutton, Jr., burned his father’s body after shooting

him with a pistol. (R.R. Vol. 3 at 215)

      On redirect examination, Warren explained the discrepancy of her

conflicting testimony by stating that she had the flu during the first trial

and that she listened to the 9-1-1 call prior to the second trial with

headphones. (R.R. Vol. 3 at 219)

      5.    David Hallimore




                                       7
      Sergeant David Hallimore testified that he is a forensic audio/video

expert with the Houston Police Department. (R.R. Vol. 3 at 224)

Hallimore testified that the 9-1-1 call was brought to him for clarification.

(R.R. Vol. 3 at 227-230) He stated that he enhanced the 9-1-1 call to

make the recording of the call more clear. (R.R. Vol. 3 at 224)

Hallimore testified that the enhanced recording was as accurate as the

original recording. (R.R. Vol. 3 at 232) The trial court admitted this

enhanced recording over defense counsel’s objection. (R.R. Vol. 3 at

252) Hallimore noted that the caller stated “He just killed his dad, and

he’s burning in the backyard.” (R.R. Vol. 4 at 8) He testified that with

the use of good quality headphone that he could hear the caller state

“He shot him in the head and I shot him in the shoulder with an AK-47.”

(R.R. Vol. 4 at 12-13) Hallimore also listened to the caller claim “He’s

trying to put my fingerprints on the gun.” (R.R. Vol. 4 at 20)

      On cross-examination, Hallimore admitted that he did not know the

identity of the 9-1-1 caller. (R.R. Vol. 4 at 25) He conceded that the

State had asked him to review the segment about the caller’s claim that

she shot the deceased with an AK-47. (R.R. Vol. 4 at 31) Hallimore

admitted that the caller stated that her ex-boyfriend choked her, shot his

father, and burned him in a barrel. (R.R. Vol. 4 at 32-33) He testified



                                      8
that the caller stated that her ex-boyfriend is a former Marine and will not

allow her to leave the property. (R.R. Vol. 4 at 38-43) Hallimore stated

that the caller mentioned that her ex-boyfriend knocked her unconscious

and threw her on the floor. (R.R. Vol. 4 at 49)

      6.    David Beaver

      Brazoria County Sheriff’s Deputy David Beaver testified that he

was dispatched to Tony’s property on July 31, 2012, at 10:39 a.m. to

investigate a smoke complaint. (R.R. Vol. 4 at 78-82) Beaver stated

that he did not see any smoke when he arrived although he did see a

burn pile. (R.R. Vol. 4 at 84) Beaver stated that Appellant told him that

they were burning some old documents and even invited him to look at

the burn pile. (R.R. Vol. 4 at 94) Beaver testified that he left at 10:59

a.m. after not finding anything suspicious. (R.R. Vol. 4 at 97)

      Deputy Beaver testified that he received another dispatch for a

disturbance at the same property at 4:06 p.m. on the same day. (R.R.

Vol. 4 at 98) He explained that the priority of the call got more extreme

the closer he got to the property. (R.R. Vol. 4 at 99-100) Beaver stated

that he placed a naked and hysterical Appellant in his squad car after he

arrived. (R.R. Vol. 4 at 101-103) He testified that he did not handcuff

her, but he treated her as a victim because he saw scratches on her



                                     9
neck and heard her state that Sutton, Jr., had killed his father. (R.R.

Vol. 4 at 104-106) Beaver stated that Appellant claimed that Sutton, Jr.,

shot Tony in the chest after they had gotten into an argument about

Sutton’s Jr.’s possible rape of Appellant. (R.R. Vol. 4 at 107) He

testified that Appellant told him that she placed her shirt on Tony’s

wound. (R.R. Vol. 4 at 108) Beaver stated that Appellant told him that

Sutton, Jr., then shot his father in the head. (R.R. Vol. 4 at 109)

      Deputy Beaver testified that he then saw Sutton, Jr., emerge from

the building with a pink T-shirt which contained a .44 Magnum pistol.

(R.R. Vol. 4 at 119) Beaver testified that Appellant pointed to a barrel on

the north side of the property where Tony was burning, but he stated

that the barrel was empty. (R.R. Vol. 4 at 127) He stated that he

bagged Appellant’s hands because of the shooting. (R.R. Vol. 4 at 129)

      Deputy Beaver testified that his squad car made a recording of his

conversation with Appellant. (R.R. Vol. 9 at 11-13) Beaver stated that

Appellant said Tony is burning in a green barrel in the backyard. (R.R.

Vol. 9 at 15-21) He testified that Appellant claimed that Sutton, Jr., shot

his father with an AK-47 and then tried to kill her. (R.R. Vol. 9 at 17-22)

Appellant claimed that Sutton, Jr., threw her phone when she tried to

make a 9-1-1 call. (R.R. Vol. 9 at 29) He testified that Appellant



                                     10
claimed that Sutton, Jr., killed his father because Sutton, Jr., wanted to

sell the property. (R.R. Vol. 9 at 40) Beaver noted that he did not see

any blood on Appellant even though she said that Tony’s skull exploded

from the gunshot. (R.R. Vol. 9 at 45-46) Beaver testified that Appellant

rejected EMS’ request to take her to a hospital and obtain a rape kit.

(R.R. Vol. 9 at 52-53) He testified that Appellant never said that Sutton,

Jr., forced her to participate in this killing or its clean up. (R.R. Vol. 9 at

59)

      On cross-examination, Beaver admitted that the shop floor

appeared to be dry on his first visit to the property. (R.R. Vol. 4 at 149)

He conceded that he only spent 5 minutes on the property during the

first visit. (R.R. Vol. 4 at 151-152) Beaver admitted that he did not

examine the burn pile even though Appellant made the offer. (R.R. Vol.

4 at 159) Beaver stated that the second response to the property was

because of a 9-1-1 call. (R.R. Vol. 4 at 176) He admitted that Appellant

told him that Sutton, Jr., assaulted her. (R.R. Vol. 4 at 174) He testified

that he and Deputy Knapp looked for the barrel with Tony’s remains, but

they never found the body. (R.R. Vol. 4 at 181-191) Beaver admitted

that Appellant was crying and screaming hysterically in this squad car.

(R.R. Vol. 4 at 186)



                                       11
      Beaver admitted that he just found the police car video during trial.

(R.R. Vol. 9 at 60) He admitted that Appellant claimed Sutton, Jr., shot

at her and choked her to the point of unconsciousness. (R.R. Vol. 9 at

87) Beaver admitted that Appellant actually reported the crime by

calling 9-1-1. (R.R. Vol. 9 at 91) He conceded that the video showed

that she was hysterical even when no one else was in the squad car

with her. (R.R. Vol. 9 at 114) Beaver testified that Appellant stated that

Sutton, Jr., killed his father a couple of hours ago and that she wished

he had killed her too. (R.R. Vol. 9 at 122-126) In the video, Appellant

claimed that Sutton, Jr., was mad at her for being pregnant and wanting

to leave him. (R.R. Vol. 9 at 138-148) Appellant claimed that Sutton,

Jr., killed his father so he could sell the property. (R.R. Vol. 9 at 158)

She described how Tony was alive and screaming after Sutton, Jr., shot

him in the shoulder the first time. (R.R. Vol. 9 at 159-163)

      7.    Matt West

      Brazoria County Sheriff’s Investigator Matt West testified that he

and Deputies Smith and Beavers responded to Tony’s property in

response to the 9-1-1 call. (R.R. Vol. 4 at 220-223) West stated that he

saw a nude and hysterical Appellant who was yelling that she had been

raped. (R.R. Vol. 4 at 225) West stated that he secured the building



                                     12
which contained so many guns that it resembled a miniature armory.

(R.R. Vol. 4 at 233-234) West testified that he bagged Sutton, Jr.’s

hands. (R.R. Vol. 4 at 238)

     On cross-examination, West acknowledged that Appellant was

crying. (R.R. Vol. 4 at 240) West explained that he terminated the

search of the property when Sheriff Wagner wanted a search warrant

before reentering. (R.R. Vol. 4 at 247)

     8.    Jack Gentry

     Brazoria County Sheriff’s Investigator Jack Gentry testified that he

arrived at Tony’s property at 5:43 p.m. on July 31, 2012, to investigate a

report of a missing person. (R.R. Vol. 5 at 18-22) Gentry stated that he

collected possible gunshot residue from the hands of both Sutton, Jr.,

and Appellant. (R.R. Vol. 5 at 23-26) Gentry stated that he found 2

shovels next to the building and 2 sets of rubber gloves in the bed of a

pickup truck. (R.R. Vol. 5 at 48-51) He testified that he photographed a

burn site which contained aerosol cans, a wooden handle, and bone

fragments. (R.R. Vol. 5 at 71) Gentry testified that he found a red 55

gallon drum laid on its side which contained charred human remains.

(R.R. Vol. 5 at 80) He stated that he also found a 4 foot by 8 foot area

of disturbed ground with a shovel, pickax, and a hoe. (R.R. Vol. 5 at 82)



                                    13
Gentry testified that the drum contained only part of a human body with

bones sticking out from a mass of flesh. (R.R. Vol. 5 at 84-85)

      Gentry testified that he found blood and shell casings and

cartridges on the shop floor. (R.R. Vol. 5 at 99) He stated that he

swabbed the area for possible DNA testing. (R.R. Vol. 5 at 110-114)

Over objection of defense counsel, Gentry testified that he collected a

white stool which appeared to have a hole caused by a bullet. (R. R.

Vol. 5 at 194-204) He stated that he found a metal fragment embedded

in the stool. (R.R. Vol. 5 at 206) Gentry described the hole as being 7-8

millimeters wide and 25 millimeters in height. (R.R. Vol. 5 at 207) He

testified that he photographed human teeth which he found at the burn

site. (R.R. Vol. 5 at 212) He testified that he collected hair that he found

on one of the shovels. (R.R. Vol. 6 at 15) Gentry testified that he

collected cuttings from Sutton, Jr.’s and Appellant’s clothing for possible

DNA testing. (R.R. Vol. 6 at 20-28) He stated that he collected 3

weapons for testing: a MAK-90, a .44 Magnum revolver, and a Beretta

85F .380 semiautomatic handgun. (R.R. Vol. 6 at 48) Gentry testified

that he found the hair on the blade of the shovel. (R.R. Vol. 6 at 87) He

stated that he did not recover any prints from the 3 weapons. (R.R. Vol.

6 at 101)



                                    14
      On cross-examination, Gentry admitted that the photographs of

Sutton, Jr., showed that he was dirty and bloody and his hands had dirt

under the nails and red blisters on his palms. (R.R. Vol. 7 at 18-19)

Gentry admitted that he did not find any human remains in the

rectangular shape area of disturbed ground. (R.R. Vol. 7 at 43) He

conceded that he did not know the origin of the hole found in the foot

stool. (R.R. Vol. 7 at 53) He believed that tires had been placed on top

of the red barrel which contained the charred human remains in order to

conceal the barrel. (R.R. Vol. 7 at 72-73) He conceded he did not find

any blood on the pink T-shirt. (R.R. Vol. 7 at 74)

      9.    Peter Marsh

      Peter Marsh testified that he is a forensic dentist who can

determine the identity of a person through dental records. (R.R. Vol. 6

at 53) He stated that he compared Tony’s dental records to those of the

teeth found at the burn site. (R.R. Vol. 6 at 60-62) Marsh concluded

that the teeth found at the burn site were Tony’s teeth within a

reasonable medical certainty. (R.R. Vol. 6 at 62)

      10.   Shane Windsor

      Shane Windsor testified that he is a forensic scientist with the

Texas Department of Public Safety who specializes in firearms and tool



                                    15
mark analysis. (R.R. Vol. 6 at 67) He testified that he tested the 3

firearms collected to see if any of them fired the 2 cartridge cases found

at the scene. (R.R. Vol. 6 at 71) Windsor stated that the 2 cartridge

cases were .44 caliber so they could not have been fired by the MAK-90

or the Beretta. (R.R. Vol. 6 at 75) He testified that he was unable to

determine if the .44 caliber bullet was fired by the .44 Magnum found at

the scene because it was deformed from striking a hard surface. (R.R.

Vol. 6 at 79-80) On cross-examination, Windsor admitted that the .44

caliber bullet could have been fired from the .44 Magnum revolver.

(R.R. Vol. 6 at 86)

      11.   Mike Thomas

      Brazoria County Sheriff’s Department Officer Mike Thomas

testified that he took a buccal swab from the mouths of Sutton, Jr., and

Appellant for DNA testing purposes. (R.R. Vol. 7 at 80-86) Thomas

testified that he performed a forensic examination of the cell phone

seized by Investigator Roberts. (R.R. Vol. 9 at 200) He noted that the

phone was not broken or damaged. (R.R. Vol. 9 at 202) Thomas

testified that he retrieved the metadata from the phone so that he could

find the time and date of any photographs taken. (R.R. Vol. 9 at 206)

He noted that several of the photographs were taken on June, 14, 2012,



                                    16
and showed Tony’s property including a green barrel. (R.R. Vol. 10 at

10-14) Thomas stated that some of the pictures showed Appellant

shooting an assault rifle, including an AK-47 taken on June 3, 2012.

(R.R. Vol. 10 at 16-23) He testified that he downloaded a video taken

on June 3, 2012, which showed Appellant. (R.R. Vol. 10 at 37)

     Thomas testified that he assisted Deputy Gentry in investigating

this murder by testing the property for the presence of blood. (R.R. Vol.

10 at 57-58) Thomas testified that the phone also contained several

photographs of Sutton, Jr., firing guns. (R.R. Vol. 10 at 76-78)

     On cross-examination, Thomas admitted that he did not know to

whom the cell phone was registered. (R.R. Vol. 10 at 82) He also

conceded that he did not know who took the photographs or the videos.

(R.R. Vol. 10 at 83) Thomas admitted that the cell phone was in a

protective case which could have kept the phone from being damaged.

(R.R. Vol. 10 at 112)

     On redirect examination, Thomas testified that the cell phone was

an iPhone 4s from which he downloaded about 1220 pictures and which

75 percent were “selfies” of Appellant. (R.R. Vol. 10 at 116-118)



      12. Amy Smuts



                                    17
     Amy Smuts testified that she is a forensic analyst for the University

of North Texas Science Center for Human Identification. (R.R. Vol. 7 at

94) Smuts stated that she reviewed 10 items sent to her by the Brazoria

County Sheriff’s Department. (R.R. Vol. 7 at 103) Smuts stated that the

DNA of the hair found on the shovel matched Tony’s DNA. (R.R. Vol. 7

at 125) She testified that the DNA of the blue jean cutting showed a

DNA profile of at least 3 individuals in which Tony and his son were

contributors. (R.R. Vol. 7 at 136) Smuts testified that she also

performed a paternity test which revealed that there was a 99.91 percent

chance that Tony was the father of Sutton, Jr. (R.R. Vol. 7 at 138)




     13.   Jennifer Moreno

     Jennifer Moreno testified that she is a forensic DNA analyst for the

Texas Department of Public Safety Crime Laboratory in Houston, Texas,

who analyzes degraded DNA samples. (R.R. Vol. 7 at 149-151)

Moreno explained that heat, sunlight, and water can degrade DNA to

make DNA identification more difficult. (R.R. Vol. 7 at 154) She testified

that she found the DNA of Sutton, Jr., and Appellant on the MAK-90

weapon. (R.R. Vol. 7 at 162-163) On cross-examination, she admitted



                                    18
that her testing does not determine when the person’s DNA was left on

the item. (R.R. Vol. 7 at 167)

      14.   Juan Rojas

      Juan Rojas testified that he is a traced evidence examiner for the

Texas Department of Public Safety who analyzes gunshot residue.

(R.R. Vol. 7 at 171) Rojas explained that a shooter will receive gunshot

residue from the gases expelled from the back of a gun that has been

fired. (R.R. Vol. 7 at 174) He further explained that gunshot residue

consists of three substances: antimony, barium, and lead. (R.R. Vol. 7

at 180) Rojas testified a characteristic particle contains all 3

substances while an indicative particle only contains 2 of the

substances. (R.R. Vol. 7 at 180) He testified that Sutton, Jr.’s hand had

1 characteristic and 5 indicative particles. (R.R. Vol. 7 at 179) Rojas

testified that Appellant’s hands only contained 1 indicative particle.

(R.R. Vol. 7 at 184) He explained that he must find 6 particles before he

can conclude that a person fired a gun. (R.R. Vol. 7 at 182) Rojas

concluded that he did not know whether or not Appellant fired a gun.

(R.R. Vol. 7 at 198)

      On cross-examination, Rojas admitted Sutton, Jr., fired a gun, but

he did not know if Appellant did. (R.R. Vol. 7 at 199) Rojas admitted



                                     19
that he normally only collected gunshot residue within 4 hours of the

gunshot. (R.R. Vol. 7 at 215) He explained that Appellant’s gunshot

residue was found on her left hand, while Sutton, Jr.’s gunshot residue

was found on his right hand. (R.R. Vol. 7 at 218-221)

      15.   Chris Kincheloe

      Brazoria County Sheriff’s Department Captain Chris Kincheloe

testified that he arrived at Tony’s property at around 4:15 p.m. on July

31, 2012. (R.R. Vol. 8 at 7-14) Kincheloe described Sutton, Jr., to have

a giddy excitement when he spoke to him in the squad car. (R.R. Vol. 8

at 17) He testified that he spoke with Appellant while she was being

treated in an ambulance for bruises and scratches to her neck. (R.R.

Vol. 8 at 19-20) Kincheloe stated that he read Appellant her Miranda

warnings before speaking to her. (R.R. Vol. 8 at 22)

      Kincheloe testified that Appellant informed him that Sutton, Jr.,

shot and killed Tony after Tony became upset over Sutton, Jr. and

Appellant loudly arguing in the middle of the night. (R.R. Vol. 8 at 44-45)

She stated that Sutton, Jr., assaulted her. (R.R. Vol. 8 at 45) Kincheloe

testified that Appellant told him Sutton, Jr., shot his father once in the

back and then shot him in the head before burning his father’s body.

(R.R. Vol. 8 at 46-49) He stated that Appellant led him to a burn site



                                     20
where she believed Sutton, Jr. had burned Tony’s body, but he did not

find the body. (R.R. Vol. 8 at 52-54)

      Kincheloe testified that Appellant agreed to accompany him to the

police station without handcuffs in order for him to take her statement.

(R.R. Vol. 8 at 56) He stated that the argument between Sutton, Jr., and

his father escalated to the point that Sutton, Jr., shot his father in the

chest with a .44 Magnum revolver. (R.R. Vol. 8 at 60) Kincheloe

testified that Appellant claimed that as she rushed to Tony’s side to help

him by placing her shirt on his wound that Sutton, Jr., then shot his

father in the head with the .44 Magnum revolver. (R.R. Vol. 8 at 61) He

noted that he did not see any blood or brain matter on Appellant even

though a .44 Magnum revolver is a powerful handgun. (R.R. Vol. 8 at

63) He stated that Appellant told him that Sutton, Jr., shot his father in

the morning. (R.R. Vol. 8 at 75) Kincheloe testified that he typed as she

spoke, and she signed the statement. (R.R. Vol. 8 at 80)

      Kincheloe testified that Appellant had scratches on her neck and

stomach. (R.R. Vol. 8 at 87-90) He stated that her statement described

that their fight began when she informed him she was breaking up with

him. (R.R. Vol. 8 at 99-100) Kincheloe testified that Appellant claimed

in her statement that Sutton, Jr., shot his father after the deputy



                                      21
responded to the smoke complaint. (R.R. Vol. 8 at 103-106) She

described how Sutton, Jr., took her phone and then put a gun to his

father’s head and shot him while she held her shirt on his wound. (R.R.

Vol. 8 at 111-112) Appellant claimed that she asked Rubio to take her

away because Sutton, Jr., had killed his father. (R.R. Vol. 8 at 116)

Kincheloe testified that Appellant stated that Sutton, Jr., then choked her

to the point of unconsciousness. (R.R. Vol. 8 at 117) Appellant claimed

in her statement that she ran naked outside and called 9-1-1 after she

awakened. (R.R. Vol. 8 at 120) Kincheloe testified that Appellant was

not crying or hysterical when she gave her statement. (R.R. Vol. 8 at

126) He stated that he did not arrest Appellant that evening and even

instructed Deputy Snelgrove to escort her to a friend’s home in Freeport.

(R.R. Vol. 8 at 129-131) Kincheloe testified that she rejected his request

to provide her medical treatment for her rape. (R.R. Vol. 8 at 132) He

admitted that Appellant never told her that Sutton, Jr., forced her to

participate in this killing and subsequent cleaning. (R.R. Vol. 8 at 139)

Kincheloe concluded that there was more to Appellant’s story than she

told him. (R.R. Vol. 8 at 135)

      16.   Stephen Pustilnik




                                    22
      Galveston County Chief Medical Examiner Dr. Stephen Pustilnik

testified that he performed the autopsy on the deceased. (R.R. Vol. 8 at

141) Pustilnik testified that Tony’s charred remains were located in a

barrel and weighed 52 pounds. (R.R. Vol. 8 at 146) He stated that the

hemorrhaging that he found in the brain meant that Tony was alive when

he was shot in the head. (R.R. Vol. 8 at 152) He testified that he could

not see a gunshot wound in a burned body unless it goes through a

bone. (R.R. Vol. 8 at 156). Pustilnik concluded that the cause of death

was possible multiple gunshot wounds. (R.R. Vol. 8 at 157) He

explained that he believed that there was a second gunshot wound

because of a metal fragment on Tony’s clavicle bone that he saw on the

X-Ray. (R.R. Vol. 8 at 164) Pustilnik testified that the metal fragment

was consistent with a gunshot wound. (R.R. Vol. 8 at 166)

      Pustilnik testified that it would have taken at least 30 minutes and

up to 2 hours at a temperature of 1500 to 2000 degree to burn Tony’s

body to this extent. (R.R. Vol. 8 at 173-174) Pustilnik also noted that

the hole in the foot stool is more consistent with a 7.69 by .39 millimeter

bullet than from a .44 Magnum bullet. (R.R. Vol. 8 at 197)

      On cross-examination, Pustilnik admitted that he performed the

autopsy on August 1, 2012, but reexamined Tony’s X-rays on May 29,



                                     23
2013, at the request of the Brazoria County District Attorney’s Office.

(R.R. Vol. 8 at 203-207) He conceded that he amended his autopsy

report to include the metal fragment on the collarbone although the

fragment was less than a millimeter in size. (R.R. Vol. 8 at 208)

Pustilnik testified that while he was 99.98 percent certain of one gunshot

wound, but he was only 25 to 30 percent certain of second gunshot

wound. (R.R. Vol. 8 at 217) He stated that Tony could have lived for 15

minutes to an hour from the shot to the shoulder area depending on

whether or not the bullet tore through the lungs or a major artery near

the clavicle. (R.R. Vol. 8 at 218) He stated that Tony was definitely

alive and probably capable of speaking when the second shot was fired.

(R.R. Vol. 8 at 226)

      17.   Steve Roberts

      Brazoria County Sheriff’s Department Investigator Steve Roberts

testified that he seized a cell phone based on a search warrant and gave

it to Lieutenant Parmiter. (R.R. Vol. 9 at 188-191)

      18.   Varon Snelgrove

      Brazoria County Sheriff’s Lieutenant Varon Snelgrove testified that

he was present when Kincheloe spoke with Appellant at the crime scene

and at the police station. (R.R. Vol. 10 at 120-128) Snelgrove stated



                                    24
that Appellant was naked and not handcuffed when she told them that

Sutton, Jr., killed his father and made her watch. (R.R. Vol. 10 at 130)

Snelgrove stated that Appellant was not under arrest when he and

Kincheloe took her to the police station for her statement. (R.R. Vol. 10

at 134) He testified that after the interview he was going to take her to

the Women’s Shelter in Angleton, but Appellant insisted on returning to

Tony’s property to retrieve her phone. (R.R. Vol. 10 at 136) Snelgrove

stated that on the ride to the property, Appellant stated that she thought

she would sell the property for $500,000.00. (R.R. Vol. 10 at 139-140)

He testified that she also requested a .50 caliber rifle and a Beretta

handgun from Tony’s place. (R.R. Vol. 10 at 141) Snelgrove stated that

Appellant said that she was the half owner of the property. (R.R. Vol. 10

at 143) He testified that after retrieving the cell phone and making some

calls, Appellant requested that he take her to a friend’s home in

Freeport. (R.R. Vol. 10 at 144) Snelgrove described how Appellant

became hysterical when she spoke with her mother on the cell phone,

but then became calm once the call ended. (R.R. Vol. 10 at 145-146)

      On cross-examination, Snelgrove conceded that he was not aware

that Appellant was 2 months pregnant at the time. (R.R. Vol. 10 at 159)

Snelgrove admitted that being a witness to a murder would be a



                                    25
traumatic experience. (R.R. Vol. 10 at 162) Snelgrove stated that he

believed that Appellant was faking being emotional in Deputy Beaver’s

car video because he never saw Appellant shed a tear. (R.R. Vol. 10 at

174) He admitted that Sutton, Jr., had been recently arrested on July 4,

2012, for assaulting a peace officer. (R.R. Vol. 10 at 178) Snelgrove

admitted that he heard Appellant tell her mother that Sutton, Jr., shot his

father and made her watch. (R.R. Vol. 10 at 179) Snelgrove agreed

that victims of domestic violence often do not pursue charges, but noted

that they often invent abuse charges too. (R.R. Vol. 10 at 189)

      19.   Crockett Robinson

      Crockett Robinson testified that he lives in Freeport, Texas, and

has known Sutton, Jr., since they were 5 or 6 years old. (R.R. Vol. 10 at

191-192) Robinson stated that Sutton, Jr., left the Marine Corps in April

of 2012 and met Appellant at the beginning of July of 2012. (R.R. Vol.

10 at 194) He testified that on July 31, 2012, Appellant called and asked

him if she could come to his house because Sutton, Jr., had killed his

father. (R.R. Vol. 10 at 195) Robinson described Appellant as crying

hysterically as she told him, his mother, and his mother’s boyfriend how

Sutton, Jr., shot and killed his father after an argument over a bathroom

light being left on. (R.R. Vol. 10 at 197) He testified that Appellant said



                                     26
that Sutton, Jr., shot his father in the back from an upstairs balcony then

came downstairs and shot him in the head with a pistol as he said “Fuck

you dad.” (R.R. Vol. 10 at 198) Robinson stated that Appellant

informed them that Sutton, Jr., forced her to watch him kill his father.

(R.R. Vol. 10 at 199) Robinson testified that Appellant claimed that

Sutton, Jr., choked her then burned his father’s body. (R.R. Vol. 10 at

200) She claimed that Sutton, Jr., then choked her so hard that she

became unconscious. (R.R. Vol. 10 at 201) He testified that Appellant

claimed that after she awakened she ran outside nude and called the

police as the dogs ran outside with her. (R.R. Vol. 10 at 201) He found

it hard to believe that Sutton, Jr., would kill his father over a light switch.

(R.R. Vol. 10 at 204)

      On cross-examination, Robinson admitted that Sutton, Jr., served

in the Marine Corps for about 5 years. (R.R. Vol. 10 at 208) He

described the relationship between Sutton, Jr., and Tony as cordial.

(R.R. Vol. 10 at 212) Robinson stated that Tony was a gun collector.

(R.R. Vol. 10 at 213) He admitted that Appellant told him that Tony was

still alive after the first gunshot. (R.R. Vol. 10 at 218) Robinson also

admitted that Appellant claimed that she tried to call for help but Sutton,

Jr., stopped her. (R.R. Vol. 10 at 219)



                                      27
      20.   Stephanie Robinson

      Stephanie Robinson testified that she has lived in Freeport, Texas,

for 48 years. (R.R. Vol. 10 at 226) She testified that Sutton, Jr., had

previously introduced Appellant as his girlfriend. (R.R. Vol. 10 at 229)

Stephanie said Appellant was crying as she told them that Sutton, Jr.,

had killed his father. (R.R. Vol. 10 at 232) She testified that Appellant

said that Sutton, Jr., shot his father in the shoulder with an AK-47 and

then she put her shirt on Tony to stop the bleeding. (R.R. Vol. 11 at 9-

12) Stephanie stated that Appellant claimed that Tony’s head exploded

in her lap, but Stephanie stated she did not see any blood on Appellant.

(R.R. Vol. 11 at 14-16) She claimed that Appellant told her that Sutton,

Jr., forced Appellant to wrap Tony’s head in wrapping paper and then

forced Appellant to watch him burn Tony’s body. (R.R. Vol. 11 at 18)

Stephanie testified that Appellant claimed that Sutton, Jr., killed his

father at 1:00 p.m. in the afternoon. (R.R. Vol. 11 at 22) Stephanie

testified that Appellant claimed that the police said that her child would

inherit Tony’s property. (R.R. Vol. 11 at 24) Stephanie testified that

Appellant asked her and her boyfriend to drive her to Scoggin’s home in

Surfside, Texas. (R.R. Vol. 11 at 28-29)



                                     28
      On cross-examination, Stephanie admitted that Appellant told her

that Sutton, Jr., shot his father first with an AK-47 and then with a pistol.

(R.R. Vol. 11 at 52) Stephanie conceded that Appellant told her that

Sutton, Jr., choked her several times and that Appellant tried to save

Tony. (R.R. Vol. 11 at 54-58) She admitted that she did not believe

Appellant and wanted her out of the house so she agreed to take her to

Scoggin’s house. (R.R. Vol. 11 at 68) Stephanie testified that Appellant

never mentioned that Sutton, Jr., had raped her. (R.R. Vol. 11 at 70)

She admitted that Sutton, Jr., had anger management issues before

entering the Marine Corps. (R.R. Vol. 11 at 77)

The State rested. (R.R. Vol. 6 at 43)



B.    Defense’s Witnesses

      1.    Brent Waisner

      Waisner admitted that he has been convicted of felony Theft.

(R.R. Vol. 11 at 120) He conceded that Sutton, Jr., was discharged in

early 2012 from the Marine Corps for drug abuse. (R.R. Vol. 11 at 122)

Waisner admitted to drinking 3 beers before driving to Tony’s property,

but he denied that he was intoxicated. (R.R. Vol. 11 at 128) Waisner

stated that he saw Appellant begin washing blood from the concrete slab



                                     29
after Sutton, Jr., whispered into her ear. (R.R. Vol. 11 at 132) He

explained that he stayed in the car and Appellant stood on the concrete

slab for about 20 minutes while Scoggin walked inside the building to

find Sutton, Jr. (R.R. Vol. 11 at 138) He stated that Sutton, Jr., yelled at

him to get off of the property, but admitted that he never mentioned in

his previous testimony that Appellant had screamed at them to leave.

(R.R. Vol. 11 at 148) Waisner admitted that even after learning of

Tony’s death that he and Scoggin did not make a statement to the police

because they did not want to get Sutton, Jr., in trouble. (R.R. Vol. 11 at

152-153)

      On redirect examination, Waisner testified that he did not see

Sutton, Jr., force Appellant to do anything. (R.R. Vol. 11 at 163) He

admitted he did not want to get involved because of his past criminal

history and because he had been drinking. (R.R. Vol. 11 at 165)

Waisner agreed that Appellant never asked him for help. (R.R. Vol. 11

at 166)

      2.    Samantha Scoggin

      Samantha Scoggin testified that she met Appellant about a couple

of months before Tony’s death and that Tony seemed to like




                                     30
Appellant. (R.R. Vol. 11 at 179) Scoggin stated that she saw smoke

both times she entered Tony’s property on July 31, 2012. (R.R. Vol. 11

at 181-185) She claimed that she made a smoke complaint to the police

after she left the property the second time. (R.R. Vol. 11 at 191)

      3.    Ray Rubio

      Rubio stated that he saw smoke coming from a red barrel which

was laid on its side and located on the northeast side of the building.

(R.R. Vol. 11 at 208-209) Both Sutton, Jr., and Appellant told him that

Tony had gone for a walk. (R.R. Vol. 11 at 215-218) He stated that after

Sutton, Jr., tried to choke Appellant that Appellant said that Sutton, Jr.,

had shot and killed his father. (R.R. Vol. 11 at 223) Rubio testified he

left the property at about 2:30 p.m. after Sutton, Jr., told him to leave.

(R.R. Vol. 11 at 227-230)

4.    Jerome Griffin

      Brazoria County Sheriff’s Department Investigator Jerome Griffin

testified that he interviewed Ray Rubio who provided him a voluntary

statement. (R.R. Vol. 11 at 242-243)

5.    Jack Gentry




                                     31
      Brazoria County Sheriff’s Department Investigator Jack Gentry

testified that the photographs of 2 blood test kits were for the testing of

blood and were not pregnancy test kits. (R.R. Vol. 11 at 256)

6.    Chris Kincheloe

      Captain Chris Kincheloe testified that Waisner eventually stopped

cooperating with the murder investigation. (R.R. Vol. 12 at 8) He stated

that he arrested Appellant at Scoggin’s house on August 1, 2012, for an

open arrest warrant from Montgomery County, Texas, for the

misdemeanor charge of Possession of Marijuana. (R.R. Vol. 12 at 9)

He admitted that Deputy West’s car video showed Sutton, Jr., laughing

and smiling on July 31, 2012. (R.R. Vol. 12 at 14-16) Kincheloe

admitted to making some mistakes on the statement he typed for

Appellant to sign. (R.R. Vol. 12 at 35) He believed that the evidence

found was not consistent with Appellant’s statement. (R.R. Vol. 12 at

39)



7.    Karen Humaran

      Karen Stinnett Humaran testified that Appellant was one of her

three daughters. (R.R. Vol. 12 at 44) She stated that when Appellant

was 19 years old she moved out of their Kingwood home and moved in



                                     32
with Sutton, Jr. (R.R. Vol. 12 at 9) Karen Humaran testified that

Appellant called her crying and hysterical both in the afternoon and in

the evening of July 31, 2012. (R.R. Vol. 12 at 50) She stated that

Appellant later gave birth to a son named James Gabriel. (R.R. Vol. 12

at 51)

         The Defense rested. (R.R. Vol. 12 at 65)



         The trial court denied Appellant’s motion to remove a juror whom

the Appellant claimed had been sleeping during trial. (R.R. Vol. 12 at

75)



         The trial court denied Appellant’s request for an instruction in the

jury charge for necessity and duress. (R.R. Vol. 12 at 88)



C.       Jury’s Verdict

         The jury found Appellant guilty of Murder. (R.R. Vol. 13 at 135)

                            PUNISHMENT PHASE

A.       State’s Witness

         1.    Chris Kincheloe




                                       33
     Captain Chris Kincheloe testified that a search of Tony’s property

revealed 3 or 4 flat screen televisions, a Dale Earnhardt commemorative

jacket, many bottles of liquor, numerous DVDs, and a box with a

derringer pistol engraved with the name of Ben Devine. (R.R. Vol. 14 at

26-34) Kincheloe stated that Appellant informed him that Sutton, Jr.,

had burglarized some homes in Surfside while she acted as a lookout.

(R.R. Vol. 14 at 28 & 36) He testified that the house she showed him

belonged to Benjamin Devine and looked as if it had been ransacked.

(R.R. Vol. 14 at 40) Kincheloe stated that a woman’s driver’s license

and jewelry found on Sutton, Jr., belonged to Wassberg who lived down

the street from Devine. (R.R. Vol. 14 at 42) On cross-examination,

Kincheloe admitted that Appellant helped him in the burglary

investigation. (R.R. Vol. 14 at 43-45)



     2.    Steve Roberts

     Investigator Steve Roberts testified that the derringer, Dale

Earnhardt jacket, bottles of liquor, and televisions had been burglarized

from Devine’s Surfside home. (R.R. Vol. 14 at 48-56) Roberts stated

that some electronic and the bottles of liquor had been burglarized from

Wassberg’s home. (R.R. Vol. 14 at 58-63) On cross-examination,



                                    34
Roberts testified that Appellant was charged with Burglary and

Tampering with Evidence, but admitted that she was helpful in the

burglary investigation. (R.R. Vol. 14 at 65)

      3.    Ben Devine

      Ben Devine testified that he lives in Cypress, Texas, and owns a

beach house in Surfside. (R.R. Vol. 14 at 69) Devine stated that his

beach house had been ransacked and the windows had been broken.

(R.R. Vol. 14 at 72) He testified that the Dale Earnhardt jacket, stereos,

televisions, DVDs, and more than 80 bottles of liquor had been stolen.

(R.R. Vol. 14 at 73-75)

      4.    Heather Bailey

      Heather Bailey testified that Appellant and Sutton, Jr., used

cocaine almost every day. (R.R. Vol. 14 at 84) Bailey stated that she

suggested that Appellant have sex with her dentist friend named Michael

McCann after Appellant told her that Appellant needed to make some

money without Sutton, Jr.’s knowledge. (R.R. Vol. 14 at 85-86) She

stated that she took Appellant to McCann’s home for sex, but McCann

later emerged naked from his bedroom and complained that his money

clip was missing. (R.R. Vol. 14 at 89) Bailey testified that Appellant

returned the money clip with the money to McCann. (R.R. Vol. 14 at 89)



                                    35
She stated that she visited Appellant at Tony’s residence and saw at

least 10 televisions and 50 to 60 bottles of liquor. (R.R. Vol. 14 at 92)

Bailey described Appellant’s cell phone conversation while they waited

outside of McCann’s house in which Appellant demanded to trade

pistols for drugs or she threatened to shoot the caller’s house. (R.R.

Vol. 14 at 96)

      On cross-examination, Bailey admitted that she only heard

Appellant and Sutton, Jr., discuss using cocaine, she never saw them

use cocaine. (R.R. Vol. 14 at 99) Bailey explained that McCann gave

her the prostitution fee, and she split the fee with Appellant. (R.R. Vol.

14 at 108)

      5.     Michael McCann

      Michael McCann testified that he was a dentist in Brazoria, Texas,

who used Bailey to obtain girls for sex. (R.R. Vol. 14 at 111) McCann

stated that Appellant stole his money clip when Bailey brought Appellant

to his home for sex. (R.R. Vol. 14 at 113-114) He believed that she

probably stole his Beretta pistol too, but he did not realize it was missing

until several months later. (R.R. Vol. 14 at 115)

      On cross-examination, McCann stated that he was a 64 year old

single man with two children. (R.R. Vol. 14 at 117) He testified that this



                                     36
is the only time he used Bailey to bring him a girl, and he denied that he

paid Bailey any money. (R.R. Vol. 14 at 119) He testified that Bailey

used to live with him, but he only had sex with her once. (R.R. Vol. 14 at

120-122)

      6.    Christina Coronado

      Christina Coronado testified that she is an Investigator with the

Domestic Violence Unit of the Harris County Precinct 4 Constable’s

Office. (R.R. Vol. 14 at 128) Coronado stated that she interviewed

Appellant who claimed that a man choked her on January 27, 2012.

(R.R. Vol. 14 at 131-133) She testified that she interviewed Appellant

again on February 1, 2012, and Appellant claimed that she had made a

false report about the choking and the red marks came from rough sex.

(R.R. Vol. 14 at 140-141)

      On cross-examination, Coronado admitted that the assault case

for which Appellant was a victim was dismissed because Appellant had

been indicted for Murder and not because of her recantation. (R.R. Vol.

14 at 155) Coronado admitted that Appellant did not want her abuser to

go to jail. (R.R. Vol. 14 at 174) Coronado testified that Appellant

became emotional in the second interview when she realized that she

could be charged with a crime. (R.R. Vol. 14 at 176)



                                    37
       The State rested. (R.R. Vol. 14 at 195)

      The trial court sustained State’s objection to Appellant’s request to

introduce evidence of Sutton’s Jr.’s suicide at his prison cell. (R.R. Vol.

15 at 23-24)

B.    Defense’s Witness

      1.    Cheri Schultz

      Cheri Schultz testified that she is a Mitigation Specialist who used

to work for the Harris County Probation Department. (R.R. Vol. 15 at

29) Schultz stated that she interviewed Appellant, her parents, her

sisters, and even met her son James Gabriel. (R.R. Vol. 15 at 31-36)

She explained that Appellant was bullied when she was young so she

had self-esteem problems and chose to date the wrong men. (R.R. Vol.

15 at 37-39) Schultz recommended a minimum prison sentence of less

than 20 years so that Appellant could return home and raise her son.

(R.R. Vol. 15 at 44-45)

      On cross-examination, she conceded that she did not interview

any of the State’s witnesses to this murder. (R.R. Vol. 15 at 48) Schultz

admitted that Appellant was raised by a good family which afforded her

many chances in life. (R.R. Vol. 15 at 51) She stated that she focused

on the client and not on the crime. (R.R. Vol. 15 at 59)



                                     38
     The trial court denied Appellant’s Motion For Mistrial based on the

prosecution’s comment on Appellant failure to testify. (R.R. Vol. 15 at

68-69)

     The Defense rested. (R.R. Vol. 15 at 70)

     The trial court denied Appellant’s request for the issue of Sudden

Passion. (R.R. Vol. 15 at 72)

C.   Jury’s Sentence

     The jury assessed a sentence of 50 years in the Texas

Department of Criminal Justice. (R.R. Vol. 15 at 109)




                                   39
                       POINTS OF ERROR


POINT OF ERROR ONE:

     The evidence was insufficient to support Appellant’s conviction for
Murder.


POINT OF ERROR TWO:

     The evidence is insufficient to prove that Appellant acted as a party
to Murder.


POINT OF ERROR THREE:

    The trial court erred by denying Appellant’s Motion to Suppress
DNA evidence derived from Appellant’s cell phone.


POINT OF ERROR FOUR:

     The trial court erred by denying Appellant’s Motion For a Mistrial
concerning the prosecutor’s comment on Appellant’s failure to testify.


POINT OF ERROR FIVE:

     The trial court erred by denying Appellant’s Motion for Continuance.


POINT OF ERROR SIX:

      The trial court erred by denying Appellant’s Requested changes to
the jury charge in the Guilt-Innocence Phase of the Trial.




                                   40
POINT OF ERROR SEVEN:

     The trial court erred by excluding evidence of Clinton Anthony
Sutton, Jr.’s suicide.


POINT OF ERROR EIGHT:

     The trial court erred by admitting expert testimony of Hallimore
about contents of the enhanced 9-1-1 call.




                                 41
                        POINT OF ERROR NO. 1



 THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT’S
               CONVICTION FOR MURDER




     Appellant contends that the State has not proven its case beyond a

reasonable doubt because the State has failed to show beyond a

reasonable doubt that Humaran killed Clinton Anthony Sutton, Sr.



     The test for reviewing the insufficiency of the evidence where a

defendant has been found guilty is for the reviewing court to determine

whether, after viewing the relevant evidence in the light most favorable to

the verdict, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893 (Tex. Crim. App. 2010) Thus, the issue on appeal is not

whether the appellate court believes the State’s evidence or instead

believes the appellant’s evidence outweighs the State’s evidence.

Wicker v. State, 667 S.W. 2d 137, 143 (Tex. Crim. App. 1984) The verdict

may not be overturned unless it is irrational or unsupported by proof

beyond a reasonable doubt. Matson v. State, 819 S.W. 2d 839, 846



                                    42
(Tex. Crim. App. 1991) The jury, as the sole judge of the facts, is entitled

to resolve any conflicts in the evidence, to evaluate the credibility of

witnesses, and to determine the weight to be given any particular

evidence. Jones v. State, 944 S.W. 2d 642, 647 (Tex. Crim. App. 1996)

Section 19.02 (a) of the Texas Penal Code provides that a person

commits the offense of Murder if he intentionally or knowingly causes the

death of an individual. (West 2014)



        The only evidence which shows that Appellant caused the death of

Clinton Sutton, Sr., was the barely audible statement of Appellant on her

9-1-1 call that she shot Tony with an AK-47 and Sutton, Jr., shot him

with a .44 caliber pistol.

        Appellant contends that the evidence that she did not cause

Tony’s death overwhelmingly outweighs the evidence which shows that

she did and is listed as follows:

   1)     Appellant’s statements on Beaver’s videotape.

   2)     No evidence that Appellant fired a weapon.

   3)     Kincheloe’s testimony.

   4)     Snelgrove’s testimony.

   5)     Crockett Robinson’s testimony.



                                     43
     6)      Stephanie Robinson’s testimony.

     7)      Appellant is only guilty of Aggravated Assault



1.        Appellant’s statement to Deputy Beaver that Sutton, Jr., killed

his father.

          Deputy Beaver testified that Appellant told him that Sutton, Jr.,

shot his father once in the chest and a second time in the head. (R.R.

Vol. 4 at 107-109) Beaver admitted that Appellant claimed that Sutton,

Jr., shot Tony with an AK-47 and then tried to kill her. (R.R. Vol. 9 at 17-

22)

2.        No evidence that Appellant fired a weapon.

          Rojas testified that he could find only one of the necessary 6

required gunshot residue particles on Appellant in order for him to

determine if she fired a weapon. (R.R. Vol. 7 at 182-184) Therefore, he

concluded that he did not know if Appellant fired a gun on July 31, 2012.

(R.R. Vol. 7 at 198)

3.        Kincheloe’s testimony that Appellant claimed Sutton, Jr.,

killed Tony.




                                        44
      Kincheloe testified that Appellant informed him that Sutton, Jr.,

shot and killed Tony after Tony became upset over Sutton, Jr., and

Appellant loudly arguing in the middle of the night. (R.R. Vol. 8 at 44-45)



4.    Snelgrove’s testimony that Appellant claimed that Sutton, Jr.,

killed Tony.

      Snelgrove testified that Appellant told him that Sutton, Jr., killed

his father and made her watch. (R.R. Vol. 10 at 130)

5.    Crockett Robinson’s testimony.

      Crockett Robinson testified that Sutton, Jr., killed his father after

an argument over a bathroom light being left on. (R.R. Vol. 10 at 197)

6.    Stephanie Robinson’s testimony.

      Stephanie Robinson testified that Sutton, Jr., shot his father in the

shoulder with an AK-47 and then shot him again in the head. (R.R. Vol.

11 at 14)

7.    Aggravated Assault.

      Pustilnik testified that Tony could have lived for an hour after the

first shot to his shoulder. (R.R. Vol. 8 at 219) He admitted that Tony

was alive and capable of speaking when he was shot in the head. (R.R.

Vol. 8 at 226)



                                     45
      Appellant’s statements to multiple officers and the Robinson family

describe Appellant as an unwilling bystander to a son’s murder of his

father. The physical evidence of the gunshot residue supports

Appellant’s claims that she did not shoot Tony. Warren and Hallimore’s

testimony that a virtually inaudible portion of Appellant’s 9-1-1 call was

an admission by Appellant that she initially shot Tony with an AK-47

before Sutton, Jr., shot Tony again with a pistol lacks credibility when

compared with her statements to multiple officers that are consistent in

their conclusion that Sutton, Jr., killed his father with shots his to

shoulder and head. Therefore, Appellant contends that the State

provided insufficient proof that Appellant killed Tony based on the

inaudible segment of a 9-1-1 call.

      Even if the jury believed that Appellant shot Tony first in the

shoulder with an AK-47, Pustilnik’s testimony showed that Tony was

alive and capable of speaking before his son killed him with a shot to the

head. Pustilnik admitted that Tony could have survived the first shot if

he had received medical treatment; however, the second shot ended

that possibility. Therefore, the evidence showed that Appellant is only

guilt of the second degree felony of Aggravated Assault and not Murder.




                                      46
      Even when viewing the evidence in the light most favorable to the

jury’s verdict, a rational trier of fact would not have found the essential

elements of Murder beyond a reasonable doubt. Therefore, the

evidence is legally insufficient to sustain Appellant’s conviction for

Murder.




                                     47
                        POINT OF ERROR NO. 2



  THE EVIDENCE IS INSUFFICIENT TO PROVE THAT APPELLANT
              ACTED AS A PARTY TO MURDER


      The Appellant contends that the evidence is insufficient to prove

that she acted as a party to the murder of Clinton Sutton, Sr.



      “A person is criminally responsible for an offense committed by the

conduct of another if acting with intent to promote or assist the

commission of the offense; he solicits, encourages, directs, aids, or

attempts to aid the other person to commit the offense.” Texas Pen.

Code §7.02(a)(2) (West 2014) In reviewing the evidence regarding a

defendant’s culpability under the law of parties, the courts may look to

events occurring before, during, and after the commission of the offense,

and may rely upon actions of the defendant which show an

understanding and common design to do the prohibited act. Ransom v.

State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) “Mere presence at

the scene of the offense does not establish guilt as a party to the

offense.” Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. 1982)




                                    48
      While Appellant testified that she was present at Tony’s property,

she denied participating in Tony’s shooting and claimed that Sutton, Jr.,

shot his father twice and killed him. (R.R. Vol. 4 at 101-109) Captain

Kincheloe, Lieutenant Snelgrove, Deputy Beaver, Deputy West, Deputy

Thomas, Crockett Robinson, and Stephanie Robinson all testified that

Appellant appeared scared and emotional when she informed them that

Sutton, Jr., shot and killed his father. In fact, Kincheloe testified that

Appellant voluntarily met with him and described how Sutton, Jr., choked

her repeatedly to the point of unconsciousness, raped her, took her

phone from her, and described how she finally had to call 9-1-1 to report

Sutton, Jr.,’s crime. (R.R. Vol. 8 at 87-129) Kincheloe even noted that

Appellant had asked Rubio to take her away because Sutton, Jr., had

killed his father. (R.R. Vol. 8 at 118) In addition, to Appellant’s

statements that Sutton, Jr., killed his father, Rojas’ testimony supports

Appellant’s contention because the gunshot residue was found on

Sutton, Jr. and not on Appellant. (R.R. Vol. 7 at 198)

      The testimony of the State’s witnesses showed that Appellant did

not solicit, encourage, direct, aid, or attempt to aid Sutton, Jr., commit

Tony’s murder. In fact, the testimony supports Appellant’s contention

that Sutton, Jr., was a disgraced ex-Marine with anger problems who



                                      49
killed his father, forced Appellant to cover up the evidence of the killing,

and then choked and raped her when she refused to participate any

further. Moreover, the fact that Appellant called 9-1-1 to alert the

authorities to crime further supports Appellant’s claim that she was not a

party to the murder. If she had acted in concert with Sutton, Jr., she

would have helped him thoroughly conceal all of the evidence of the

crime instead of inviting the authorities to a recent crime scene.

Therefore, the State has failed to prove that Appellant was a party to the

murder of Clinton Sutton, Sr.




                                     50
                         POINT OF ERROR NO. 3



 THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
 TO SUPPRESS DNA EVIDENCE AND EVIDENCE DERIVED FROM
               DEFENDANT’S CELL PHONE



      Appellant Humaran filed written pretrial Motions to Suppress in

which she argued that the warrant authorizing the seizure of her DNA

evidence and evidence seized from her cell phone should have been

suppressed. (TR. Vol. 1 at 1232-1238) The trial court denied Appellant’s

Motions To Suppress the cocaine and the money. (R.R. Supp. at 27)



      The appellate court reviews a trial court’s ruling on a motion to

suppress evidence for an abuse of discretion. Balentine v. State, 71

S.W.3d 763 (Tex. Crim. App. 2002) At a suppression hearing, the trial

court is the sole and exclusive trier of fact and judge of credibility of the

witnesses, as well as the weight to be given their testimony. Romero v.

State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) In reviewing a trial

court’s ruling on the motion to suppress, the appellate court gives almost

total deference to a trial court’s determination of historical facts, and

reviews de novo the court’s application of the law. Rayford v. State,


                                      51
125 S.W.3d 521, 528 (Tex. Crim. App. 2003) Appellate review of an

affidavit in support of a search warrant, however, is not de novo.

       Rather, great deference is given to the magistrate’s determination

of probable cause. Illinois v. Gates, 462 U.S. 213, 236-37, 103 S.Ct.

2317, 2331, 76 L.Ed. 2d 334 (1983)



      The test for determination of probable cause is whether the

magistrate had a substantial basis for concluding that a search would

uncover evidence of wrongdoing. State v. Stone, 137 S.W. 3d 167, 174

(Tex. App. – Houston [1st Dist.] 2004, pet. ref’d) The affidavit which

supports the search warrant must contain the following facts to justify

issuance of a search warrant: (1) a specific offense has been

committed, (2) specifically described property or items to be searched

for and seized constitute evidence of the offense, (3) the property or

items constituting such evidence is located at the particular place to be

searched. Tex. Code Crim. Proc. Art. 18.01(c) (West 2014) “Whether

the facts mentioned in the affidavit are adequate to establish probable

cause depends on the totality of the circumstances. Stone, at 175.

“Probable cause exists if, under the totality of the circumstances set

forth in the affidavit before the magistrate, there is a “fair probability” that



                                       52
contraband or evidence will be found in a particular place at the time the

warrant is issued. State v. Jordan, 342 S.W.3d 565, 568 (Tex. Crim.

App. 2011) Courts decide whether probable cause existed to issue a

warrant based on the “four corners” of the affidavit in support of the

warrant. Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992)

“A mere conclusory statement gives the magistrate virtually no basis at

all for making a judgment regarding probable cause.” Serrano v. State,

123 S.W.3d 57, 60 (Tex. App. – Austin 2003, pet. ref’d)



      At the suppression hearing, the trial court admitted 2 Affidavits

executed by Investigator Roberts in support of his search of Appellant’s

DNA and her cell phone. (R.R. Supp. at 5) Roberts testified that both

affidavits set out the same facts although they were prepared on

different dates. (R.R. Supp. at 22) Appellant contends that a review of

both Affidavits for Search Warrant do not provide sufficient facts that

give a fair probability that evidence would be found from Appellant’s

DNA or from her cell phone concerning the investigation of Tony’s

murder. Virtually every sentence in the affidavits concerned the criminal

activity of Sutton, Jr. such as his shooting of his father or the assault of

Appellant.



                                     53
      In fact, the affidavits never mentioned that Appellant participated in

the murder and only mentioned that Sutton, Jr., shot his father.

Appellant contends that Roberts’ statements are mere conclusory

statements concerning Appellant which do not rise to the level of

probable cause for the issuance of a warrant. Humaran asserts that the

affidavits fail the second provision of Article 18.01(c) of the Texas Code

of Criminal Procedure because Roberts failed to explain how her DNA

constituted evidence of the murder. Based on this, the totality of the

circumstances showed that the affidavits lacked probable cause for the

issuance of a search warrant. Therefore, the trial erred in denying

Appellant’s Motions to Suppress.




                                    54
                        POINT OF ERROR NO. 4


TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION FOR A
    MISTRIAL CONCERNING PROSECUTOR’S COMMENT ON
             APPELLANT’S FAILURE TO TESTIFY



      Appellant contends that during the State’s cross-examination of

the Defense’s sole punishment witness, the prosecutor’s line of

questioning was a comment on the Appellant’s failure to testify. The

State’s cross-examination is set out as follows:

      Q:    And is it your testimony that this person deserves the
minimum, somewhere around the minimum?
      A:    Yes.
      Q:    All right. And is it your testimony that she was not capable of
committing this crime without Clinton Sutton, Jr.?
      A:    Yes.
      Q:    That’s your testimony to the jury?
      A:    Yes.
      Q:    And what’s that based on?
      A:    Well, part of it is the offense report and she - - she cared
about his father.
      Q:    According to her?
      A:    Yes.
      Q:    What, if anything, did she tell you about, I guess, wanting to
sell Tony’s property, the victim’s property?
      A:    I know that’s an allegation. She - - we did not discuss that. I
saw--.
      Q:    You didn’t discuss that?
      A:    I saw that in the offense report.
      Q:    But you didn’t think that was pertinent to you-all’s
discussion?
      A:    No.
      Q:    Why?


                                    55
      A:     Because, again, I’m focusing on her and I didn’t go into the
facts of the case.
      Q:     Well, I mean, fair - - wouldn’t it be fair to say that the jury has
got to – they’ve got to assess punishment and the facts of this case kind
of matter? Wouldn’t that - -
      A:     They’ve heard all of the facts of the case. They’ve heard all
of the testimony.
      Q:     As so, it seems like your conversations with the defendant
focus on everything but the crime.
             MR. GUERRA: Your Honor, that’s argumentative, Your
Honor; and it’s badgering the witness.
             THE COURT:         Rephrase it, please.
       Q: Would it be fair to say that your involvement in this case and
your conversations with her pretty much involve everything but the
crime?
             MR. GUERRA: That’s been asked and answered over and
over.
             THE COURT:         Sustained.
      Q:     Are you asking this jury to overlook the crime?
      A:     No. They’ve heard the testimony of the crime. What I am
saying is that my purpose is to try to explain to the jury a little bit about
her and I interviewed her about her background. They’ve—they’ve heard
more—well, they’ve heard the testimony. I haven’t.
      Q:     Right. Fair to say, I mean, they are in a better position to
assess it than you are certainly?
      A:     No.
      Q:     They’re not?
      A:     Well, obviously, they are. They’re the jury. But I’m just
saying I am here to give them a better picture of her, not to go into the
details of the offense.
      Q:     And that better picture is based on your three interviews only
with her?
      A:     And her family.
      Q:     And her family. And when you say give the jury a better
picture of her, what is – what’s – what’s the picture we’re talking about?
      A:     Just-- I can—read her growing up, a summary that her mom
helped me with you want me to do that.
      Q:     Well, we can’t do that because it’s—it’s not admissible in
evidence. But fair to say that that’s pretty one-sided?
      A:     Well, of course.

                                      56
      Q:    Yeah.
            MR. CLAYTON: I’ll pass the witness.

      (R.R. Vol. 15 at 64-67)


      The trial court denied Appellant’s motion for a mistrial. (R.R. Vol.

15 at 69)

      “To violate appellant’s constitutional and statutory rights, the

objectionable comment, viewed from the jury’s perspective, must be

manifestly intended to be or of such a character that the jury would

necessarily and naturally take it as a comment on the accused failure to

testify.” Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999)

“Calling attention to the absence of evidence which only the defendant

could produce will result in a reversal only if the remark can only be

construed to refer to appellant’s failure to testify and not the defense’s

failure to produce evidence.” Fuentes, at 275.



      Appellant contends that the prosecutor commented on Appellant’s

failure to testify by repeatedly asking Schultz her reasons for not

discussing Tony’s killing with Appellant. Schultz clearly testified that she

limited her interviews with Appellant to focus on the positive aspects of

her life for the purpose of sentencing before a jury. Despite Schultz’s



                                     57
repeated assertions that she did not discuss the facts of Tony’s killing

with Appellant, the prosecutor continued to focus his questions on

Schultz’s failure to obtain Appellant’s version of Tony’s killing. This

continued focus on an absence of Appellant’s version of the killing was a

comment on Appellant’s failure to testify. The prosecutor’s comments

were so inflammatory that the prejudicial effect could not have been

erased from the jury’s mind. Therefore, the trial court erred in denying

Appellant’s request for a mistrial.




                                      58
                        POINT OF ERROR NO. 5


              THE TRIAL COURT ERRED BY DENYING
             APPELLANT’S MOTION FOR CONTINUANCE



      On May 6, 2014, the day after a jury had been chosen, Appellant

made an oral Motion for Continuance before the trial court because of

the death by suicide of Sutton, Jr. (RR. Vol. 3 at 6) Appellant claimed

that she needed additional time to investigate the suicide of Sutton, Jr.,

to determine if he left a suicide not in which he accepted responsibility

for the death of his father. (R.R. Vol. 3 at 6) Appellant claimed that the

denial of a continuance would violate her Sixth Amendments right to

effective representation under the United States Constitution. (R.R. Vol.

3 at 6)   The trial court denied Appellant’s motion for continuance. (R.R.

Vol. 3 at 13) Appellant filed a sworn written motion for continuance on

May 7, 2014. (TR. Vol. 3 at 128)

      “The granting or denying of a motion for continuance is within the

sound discretion of the trial court. A defendant must show specific

prejudice to his defense to establish that the trial court abused its

discretion in refusing to grant a continuance.” Renteria v. State, 206

S.W.3d 689 (Tex. Crim. App. 2006)



                                     59
      Appellant contends that her defense would be prejudiced by a

denial of the continuance because she would not have time to fully

investigate Sutton, Jr.’s death and any of his personal writings he may

have left behind in his prison cell. Appellant asserts that Sutton, Jr.,

may have written a suicide note in which he accepted full responsibility

for the death of his father. Moreover, any of his personal writings may

provide additional evidence with which to confront and cross-examine

the numerous State witnesses called for trial. Denying the continuance

violated Appellant’s right to an effective representation. Based on this

prejudice, Appellant contends that the trial court abused its discretion in

denying her motion for continuance.




                                     60
                        POINT OF ERROR NO. 6



     THE TRIAL COURT ERRED IN DENYING APPELLANT’S
  REQUESTED CHANGES TO THE JURY CHARGE IN THE GUILT-
             INNONCENCE PHASE OF THE TRIAL




      At the close of evidence, Appellant requested instructions for the

issues of Necessity and Duress to be included in the jury charge. (R.R.

Vol. 12 at 88) The trial court denied Appellant’s request. (R.R. Vol. 12 at

88)

      “In analyzing a jury-charge issue, we first determine if error

occurred and, if so, we conduct a harm analysis. A jury-charge error

requires reversal when, after proper objection, the appellant suffers

“some harm” to his rights. Ngo v. State, 175 S.W.3d 738, 743 (Tex.

Crim. App. 2005) An accused has the right to an instruction on any

defensive issue raised by the evidence, whether the evidence is weak or

strong, unimpeached or contradicted, and regardless of what the trial

court may think about the credibility of the defense. Granger v. State, 3

S.W.3d 36, 38 (Tex. Crim. App. 1999)

      The defense of duress applies when a defendant is engaged in the

proscribed conduct because he was compelled to do so by threat of


                                     61
imminent death or serious bodily injury to himself. Tex. Pen. Code,

Section 8.05(a) (West 2014) The defense of necessity requires a

showing that (1) the actor reasonably believes the conduct is

immediately necessary to avoid imminent harm, (2) the desirability and

urgency of avoiding the harm clearly outweighs, according to ordinary

standards of reasonableness, the harm sought to be prevented by the

law proscribing the conduct, and (3) a legislative purpose to exclude the

justification claimed for the conduct does not otherwise plainly appear.

Tex. Pen. Code, Section 9.22 (West 2014)



      The affirmative defenses of duress and necessity are a justification

defense because the defense does not negate any element of the

offense, but only excuses what would be otherwise criminal conduct.

Gomez v. State, 380 S.W.3d 830, 834 (Tex. Crim. App. 2013) Duress

and necessity require that Appellant first admit to all the elements of the

underlying offense and then claim that his commission of the offense

was justified because of other facts. Gomez, at 834.

      While Appellant may not have admitted to shooting Tony to

Captain Kincheloe , Deputy West, or Deputy Beaver, the State claimed

she made the admission in her 9-1-1 call Appellant contends this



                                    62
admission combined with the fact that shooting a person in the shoulder

with an AK-47 is an act clearly dangerous to human life, provided more

than enough proof to include Duress and Necessity instructions in the

jury charge. The testimony of Captain Kincheloe, Deputy Thomas,

Deputy Beaver, and the Robinsons provided ample evidence that

Sutton, Jr., had assaulted and possibly raped Appellant and forced her

to participate in his father’s murder and its subsequent cover up. Based

on this evidence, it was for the jury to decide whether or not to believe

her testimony fell under the affirmative defenses of duress or necessity.

Therefore, the trial court erred in denying Appellant’s requested

instructions of duress and necessity to the jury charge.




                                    63
                        POINT OF ERROR NO. 7



     THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF
          CLINTON ANTHONY SUTTON, JR.’s SUICIDE



      Appellant attempted to introduce evidence of Sutton, Jr.’s suicide

on May 5, 2014, to show his culpable mental state of mind as the principal

party in his father’s death and to aid the jury in assessing an appropriate

punishment.     (R.R. Vol. 15 at 23)       The trial court sustained the

prosecutor’s objection that court’s ruling would be misleading to the jury

and was not relevant to this proceeding. (R.R. Vol. 15 at 23-24) Appellant

contends that Sutton, Jr.’s suicide on the first day of Appellant’s trial was

relevant to the issue of Appellant’s punishment.



      An appellate court reviews a trial court’s decision to admit or

exclude evidence over objection under an abuse of discretion standard

and will not reverse that decision absent a clear abuse of discretion.

McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008) The trial

court abuses its discretion when the decision lies outside of the zone of

reasonable disagreement.       Id., at 239.    Relevant evidence means

evidence having any tendency to make the existence of any fact that is of

                                     64
consequence to the determination of the action more probable or less

probable than it would be without the evidence. Tex. Rules Of Evid. 401

(West 2014) “All relevant evidence is admissible, except as otherwise

provided by Constitution, by statute, by these rules, or by other rules

prescribed pursuant to statutory authority.” Tex. Rules Of Evid. 402

(West 2014)



     Article 37.07, Section 3(a)(1) of the Texas Code of Criminal

Procedure provides that “evidence may be offered by the state or

defendant as to any matter the court deems relevant to sentencing…”

(West 2014) Appellant contends that Sutton, Jr.’s suicide is relevant as

mitigating evidence for the jury to consider.    Evidence is relevant to

assessing punishment if it helps the fact finder decide what sentence is

appropriate for a particular defendant given the facts of the case. Hayden

v. State, 296 S.W.3d 549 (Tex. Crim. App. 2009) Evidence of mitigating

circumstances such as evidence that a juror might regard as reducing a

defendant’s moral blameworthiness may be considered by the jury when

deliberating punishment. Willingham v. State, 897 S.W.2d 351, 359

(Tex. Crim. App. 1995)




                                   65
      Appellant contends that the trial court abused its discretion by

excluding evidence of Sutton, Jr.’s suicide because evidence of his death

on Appellant’s first day of trial would have shown Sutton, Jr.’s culpable

mental state by his final act of taking responsibility for the killing of his

father. Appellant argues that evidence of his suicide would not have

misled the jury by forcing the jury to speculate on the true motive behind

Sutton, Jr.’s suicide.

      In fact, Appellant contends that evidence of Sutton, Jr.’s suicide is

relevant to mitigate her punishment because his suicide on the eve of trial

of the mother of his son, James Gabriel, demonstrated that Sutton, Jr.,

played a greater role than Appellant in his father’s killing. Thus, Sutton,

Jr.’s remorse over his greater role in Tony’s death prompted his suicide,

on the eve of Appellant’s trial, as a message to the world of his greater

responsibility.

      Appellant argues that it was no accident that Sutton, Jr., took his

own life on the eve of Appellant’s trial. Excluding this dying declaration

from the jury was an abuse of discretion. Therefore, the trial court abused

its discretion by excluding evidence of Sutton, Jr.’s suicide.




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                        POINT OF ERROR NO. 8


 THE TRIAL COURT ERRED BY ADMITTING EXPERT TESTIMONY
  OF HALLIMORE ABOUT CONTENTS OF THE ENHANCED 9-1-1
                        CALL



      During the examination of Sergeant Hallimore, the trial court held a

hearing outside the presence of the jury on Appellant’s request to

disqualify Hallimore as an expert witness who would testify about the

contents of an enhanced version of the 9-1-1 call previously admitted into

evidence. (R.R. Vol. 3 at 232)

      Hallimore testified that he has enhanced audiotapes to clarify poor

recordings for 18 years. (R.R. Vol. 3 at 238) He explained that he uses

software called “Sony Sound Forge Pro” and “Sound Soap” to enhance

9-1-1 recordings. (R.R. Vol. 3 at 240) Hallimore testified that he has used

this software for over 10 years, but he has not received any formal training

on its operation. (R.R. Vol. 3 at 241) On cross-examination, Hallimore

admitted that he purchased both software packages at a local retail store

and taught himself how to use the programs. (R.R. Vol. 3 at 244-247) He

admitted that he did not know if Sony had any formal training program for

the operation of the software. (R.R. Vol. 3 at 250)




                                    67
      Appellant objected to Hallimore’s testimony because his formal

training on the enhancement software did not meet the requirements of

Rule 702 of the Texas Rules of Evidence to be considered expert

testimony.   (R.R. Vol. 3 at 252) The trial court overruled Appellant’s

objection. (R.R. Vol. 3 at 252)



      The appellate court reviews a trial court’s ruling on a motion to

suppress evidence for an abuse of discretion. State v. Dixon, 206

S.W.3d 587, 590 (Tex. Crim. App. 2006) At a suppression hearing, the

trial court is the sole and exclusive trier of fact and judge of credibility of

the witnesses, as well as the weight to be given their testimony.

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) In

reviewing a trial court’s ruling on the motion to suppress, the appellate

court gives almost total deference to a trial court’s determination of

historical facts, and reviews de novo the court’s application of the law.

Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003)



      Admission of expert testimony is governed by Texas Rule of
Evidence 702. This rule of evidence provides the following:

             If scientific, technical, or other specialized knowledge will
             assist the trier of fact to understand the evidence or to


                                       68
            determine a fact in issue, a witness qualified as an expert by
            knowledge, skill, experience, training, or education may testify
            thereto in the form of an opinion or otherwise.

Tex. Rule Of Evid. 702 (West 2011)


Before admitting expert testimony under Rule 702, the trial court must

be satisfied that 3 conditions are met: 1) the witness qualifies as an

expert by reason of his knowledge, skill, experience, training, or

education, 2) the subject matter of the testimony is an appropriate one

for expert testimony, and 3) admitting the expert testimony will actually

assist the fact finder in deciding the case. Davis v. State, 329 S.W.3d

798, 813 (Tex. Crim. App. 2010). These conditions are commonly

referred to as 1) qualification, 2) reliability, and 3) relevance. Vela v.

State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006) Absent a clear

abuse of discretion, a trial court’s decision to admit or exclude expert

testimony will not be disturbed. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.

Crim. App. 2000)



                         QUALIFICATIONS

      Qualification is a two-step inquiry: 1) whether the witness has a

sufficient background in a particular field and 2) whether that background



                                      69
goes to the matter on which the witness is to give an opinion. Davis, at

813. Appellant contends that Hallimore lacked the qualifications to testify

about the enhancement of the 9-1-1 recording even though he testified

that he has enhanced recordings for 18 years because of his lack of

formal training on the software.     Hallimore admitted that he not has

received any training on the operation of the enhancement software from

Sony.   (R.R. Vol. 3 at 250)      Appellant asserts that using software

purchased from a retail store like “Best Buy” and following its directions

does not qualify Hallimore to testify as an expert. His opinion about the

contents of the enhanced recordings would be no better than anyone

else’s opinion who used the store bought software. Hallimore’s testimony

would provide a level unquestioned knowledge to the jury which was not

deserved. The jury was best served to listen to the tape themselves

without the opinion of a witness whose lack of formal training did not merit

an expert qualification. Therefore, Hallimore’s opinion was nothing more

than guesswork which does not rise to the level of expert testimony set

out in Rule 702.




                                    70
                  RELIABIILITY & RELEVANCE

      Appellant contends that Hallimore’s testimony as an expert was not

reliable because he had not obtained any more knowledge than an

ordinary citizen who would use this store bought software in order to give

an opinion as to a statement made on an enhanced recording. Since his

opinion about the content of the enhanced recording is no better than a

lay person, Hallimore’s opinion is also not relevant. Therefore, Appellant

contends that Hallimore’s testimony about the contents of the enhanced

recording are unreliable and irrelevant. Therefore, the trial court erred by

allowing Hallimore to testify as an expert witness on the contents of the

recording of the enhanced 9-1-1 call.




                                    71
                              CONCLUSION

      For the reasons stated, Appellant Humaran prays the Court to
reverse and acquit or in the alternative to reverse and remand this cause
for a new trial.
                                           Respectfully submitted,

                                           _/s/ Crespin Michael Linton_
                                           Crespin Michael Linton
                                           440 Louisiana, Suite 900
                                           Houston, Texas 77002
                                           Texas Bar No. 12392850
                                           (713) 236-1319
                                           (713) 236-1242 (Fax)

                    CERTIFICATE OF COMPLIANCE

     I hereby certify that Appellant’s Brief, as calculated under Texas
Appellate Rule of Appellate Procedure 9.4, contains 14,872 words as
determined by the Word program used to prepare this document.

                                           _/s/ Crespin Michael Linton
                                           Crespin Michael Linton

                      CERTIFICATE OF SERVICE

      I do hereby certify that on this the 23th day of February, 2015, a true
and correct copy of the foregoing Appellant’s Brief was served by E-
service in compliance with Local Rule 4 of the Court of Appeals or was
served in compliance with Article 9.5 of the Rules of Appellate Procedure
delivered to the Assistant District Attorney of Brazoria County, Texas, 111
East Locust Street, 4th Floor Angleton, Texas 77515 at davidb@brazoria-
county.com.

                                           __/s/_Crespin Michael Linton__
                                           Crespin Michael Linton




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