                                                                                    ACCEPTED
                                                                                01-15-00166-CR
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           12/3/2015 3:41:47 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK
                               No. 01-15-00166-CR

                          IN THE COURT OF APPEALS
                               FIRST DISTRICT                  FILED IN
                                                        1st COURT OF APPEALS
                              HOUSTON, TEXAS                HOUSTON, TEXAS
                                                        12/3/2015 3:41:47 PM
                                                        CHRISTOPHER A. PRINE
                                 NIARE LYTE,                    Clerk

                                   Appellant

                                      Vs.

                             THE STATE OF TEXAS,
                                   Appellee




                     REPLY BRIEF FOR THE APPELLANT



D. Craig Hughes
TBN: 10211025
7322 Southwest Freeway, Suite 1100
Houston, Texas 77074
Phone: (713) 535-0683
Fax: (713) 981-3805
Email: dcraighughes@msn.com

J. Kyle Verret
TBN: 24042932
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: (281)764-7071
Phone: (281)764-7071
Email: kyle@verretlaw.com
                                        FILED ON THIS DECEMBER 3, 2015
ATTORNEYS FOR APPELLANT                 ORAL ARGUMENT REQUESTED
                                No. 01-15-00166-CR

                         IN THE COURT OF APPEALS
                              FIRST DISTRICT
                             HOUSTON, TEXAS


                                  NIARE LYTE,
                                    Appellant

                                        Vs.

                             THE STATE OF TEXAS,
                                   Appellee


                     REPLY BRIEF FOR THE APPELLANT



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Niare Lyte, the Defendant in Cause No. 69744, in the 23rd Judicial District Court

of Brazoria County, Texas, respectfully submits this brief, and would respectfully

show the Court the following:




                                         2
                           TABLE OF CONTENTS

Parties to the Case………………………………………………………..…………4

List of Authorities………………………………………………………………….6

Appellant’s Reply to the Appellee’s Brief on Appellant’s Second Point of Error…7

Conclusion and Prayer……………….……………………………………………13

Certificate of Service……………………………………………………………...14

Certificate of Word Count…………………………………………………………14




                                       3
                          PARTIES TO THE CASE

APPELLANT:               NIARE LYTE
Attorneys for Appellant at Trial:

            Name:       Jimmy Phillips
            SBOT:       #15953000
            Address:    P.O. Box 29
                        Angleton, Texas 77516-0029
            Phone:      (979) 849-8511

            Name:       Shannon Tigner
            SBOT:       #00794740
            Address:    221 N. Velasco St.
                        Angleton, Texas 77515
            Phone:      (979) 848-0500

Attorneys for Appellant on Appeal:

            Name:       D. Craig Hughes
            SBOT:       #10211025
            Address:    7322 Southwest Freeway, Suite 1100
                        Houston, Texas 77074
            Phone:      (713) 535-0683
            Fax:        (713) 981-3805
            Email:      dcraighughes@msn.com

            Name:       J. Kyle Verret
            SBOT:       #24042932
            Address:    11200 Broadway, Suite 2743
                        Pearland, Texas 77584
            Phone:      (281) 764-7071
            Fax:        (281) 764-7071
            Email:      kyle@verretlaw.com




                                      4
APPELLEE:                  THE STATE OF TEXAS

Attorneys for the State at Trial:

             Name:         Kurt Sistrunk
             SBOT:         #18444950
             Name:         Clay Caldwell
             SBOT:         #24045599
             Address:      Brazoria County District Attorney’s Office
                           111 E. Locust Street, Suite 408A
                           Angleton, Texas 77515
             Phone:        (979) 864-1230

Attorneys for the State on Appeal:

             Name:         Jeri Yenne
             SBOT:         #04240950
             Name:         Trey Picard
             SBOT:         #24027742
             Address:      Brazoria County District Attorney’s Office
                           111 E. Locust Street
                           Angleton, Texas 77515
             Phone:        (979) 864-1230
             Email:        treyp@brazoria-county.com




                                          5
                              LIST OF AUTHORITIES

Constitutional Provisions

U.S. CONST. AMEND. V……………………….………………..…………...11,12

TEXAS CONST. ART. I, § 10……………………………………………………12

Statutes

Tex. Code Crim. Proc. Ann. Art. 1.15 (LexisAdvance current through 2013 3d
C.S)………………………………………………………………………………..10

Rules

Tex. R. App. Proc. 44.2(a).

Appellate Court Decisions

Angel v. State, 627 S.W.2d 424, 426 (Tex. Crim. App. 1982)……………………. 11

Birdsong v. State, 82 S.W.3d 538, 541 (Tex. App. Austin 2002, no pet.)………… 11

Bustamante v. State, 48 S.W. 3d 761, 765 (Tex. Crim. App. 2001)………….…….8

Carrasco v. State, 154 S.W.3d 127 (Tex. Crim. App. 2005)……………………...10

Gamboa v. State, 296 S.W.3d 574, 584 (Tex. Crim. App. 2009)………………... 11

Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)…………………………..11.

O'Conner v. State, 401 S.W.2d 237, 238 (Tex. Crim. App. 1966)………………...10

Tamez v. State, 11 S.W.3d 198, 202-203 (Tex. Crim. App. 2000)………………...10

United States v. Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010)………………….7,12




                                       6
                         Appellant’s First Point of Error

      Appellant’s original brief adequately address point of error one and provides

no further briefing on that point in response to Appellee’s brief.

                   Appellant’s Reply to the Appellee’s Brief on

                        Appellant’s Second Point of Error

      Appellee contends that it is not violative of a defendant’s constitutional

rights against self-incrimination when a prosecutor, in open court and in the

presence of the jury, requests a stipulation that the person on trial, and convicted of

the crime, has committed the crime.

      At issue in Appellant’s Second Point of Error is one statement by the

prosecutor: "Judge, We'll stipulate that all these people will come in and say she's

very motherly and a good person and never would have seen this coming if they'll

stipulate that she did it." (12 R.R. at 132). The test for whether a prosecutor’s

comment on the defendant’s silence is constitutionally impermissible is “(1)

whether the prosecutor's manifest intent was to comment on the defendant's silence

or (2) whether the character of the remark was such that the jury would naturally

and necessarily construe it as a comment on the defendant's silence.” United States

v. Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010). If there is “some other, equally

plausible explanation for the remark”, the reviewing court should find that the

prosecutor’s intent is not manifest. Id.



                                           7
      This Court should consider the comment from “the jury’s standpoint.”

Bustamante v. State, 48 S.W. 3d 761, 765 (Tex. Crim. App. 2001). In conducting

its analyses, this Court should analyze the context in which the statement was

made. Bustamante, 48 S.W.3d at 765.

      The prosecutor’s explanation of the comment, made both at trial and on

appeal, was that it was a request that witnesses “stipulate that they were aware of

the jury’s verdict that the jury found her guilty and that she, in fact, did it.” (12

R.R. at 137; Appellee’s Brief at 15). Viewing the comment in the context in which

it was made, from the standpoint of the jury, the prosecutor’s offered explanation

for the comment is not plausible.

      The prosecutor’s explanation that he was asking for the defense’s

punishment witnesses to “stipulate that they were aware of the jury’s verdict… and

that she, in fact, did it” does not comport with the context surrounding the

statement in the record. The prosecutor did not request that any specific defense

witness stipulate that Appellant murdered Jasmine Miller (hereinafter “Miller”).

The prosecutor made his request for a stipulation between the testimonies of two

witnesses. (12 R.R. at 132). At the time the request for a stipulation was made,

there was not a witness testifying to stipulate that the Appellant “did it.” (12 R.R.

at 132).

      The attorneys for the State did ask the defense’s witnesses on cross-



                                         8
examination whether they knew that the jury had convicted Appellant and whether

they accepted the verdict. (12 R.R. at 64, 83-84, 96, 125). The question of

whether the witnesses agreed with the verdict was answered in various ways from

“I don’t agree too much with it”, to “That’s the verdict. Sure.” (12 R.R. at 125, 96).

The prosecution asked witnesses if they believed Appellant committed murder. (12

R.R. at 127). But, the prosecutor never asked any witness to admit that Appellant

committed murder or to stipulate to that fact. It would not have made sense for the

State to ask the witnesses for such a stipulation because none of the punishment

witnesses had personal knowledge of the matter. Not one of the defense witnesses

testified to being present at the Saint Andrews Apartments to witness the

interaction between Appellant and Miller on the day of Miller’s death. Other than

Appellant’s father, none of the defense witnesses testified that Appellant made

inculpatory statements regarding the murder. Without personal knowledge, none

of the defense witnesses would be able to competently stipulate that Appellant

murdered Jasmine Miller. The prosecutor’s request for a stipulation could not have

been directed at the witnesses, as none of the witnesses have sufficient knowledge

of the alleged murder to stipulate that Appellant was guilty.

      The prosecutor’s choice of words is telling of what he meant when he

requested the stipulation of Appellant’s guilt. He offered a reciprocal stipulation:

the State would agree to the mitigating testimony being offered if “they” would



                                          9
stipulate to guilt. (12 R.R. at 132). The use of the word “stipulate” highlights the

direction of the prosecutor’s comment at the Appellant and her counsel, not to the

witnesses. The law allows for parties to enter into stipulations regarding evidence,

but makes no provision for a witness to stipulate to facts. A defendant in a criminal

case may enter into a variety of stipulations and courts should construe such

stipulations “reasonably and liberally with a view of effectuating the parties’

intentions.” O'Conner v. State, 401 S.W.2d 237, 238 (Tex. Crim. App. 1966). For

example, a criminal defendant may stipulate to evidence supporting a plea 1, to the

admission of jurisdictional priors 2, to facts or the admission of evidence at trial 3.

Nothing in the law provides for a non-party witness to stipulate to a fact. Parties

enter into stipulations, not witnesses.

         In their brief, Appellee failed to address the trial judge’s comment that he

believed the statement, and the prosecutor’s use of the word “they”, was directed at

the Appellant and her counsel. The trial judge stated “My interpretation of ‘they’

would be the Defense counsel and the Defendant.” (12 R.R. at 135-136). The trial

judge, being present in the courtroom, has a perspective that written words of the

record are unable to deliver. The trial judge was present to witness the tone of the

1
    Tex. Code Crim. Proc. Ann. Art. 1.15 (LexisAdvance current through 2013 3d C.S).
2
    Tamez v. State, 11 S.W.3d 198, 202-203 (Tex. Crim. App. 2000).
3
    Carrasco v. State, 154 S.W.3d 127 (Tex. Crim. App. 2005)



                                                10
statement in question. This Court should give defer to the factual determination of

the trial court, as the trial judge is better suited to determine how the statement was

delivered and what effect it could have had on the jury. See Gamboa v. State, 296

S.W.3d 574, 584 (Tex. Crim. App. 2009)(“An appellate court should defer to the

trial court's findings of facts regarding the credibility and demeanor of the

witnesses); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)(a reviewing

court should defer to trial court’s determination of witness credibility).

      The prosecutor’s statement in this matter is best analogized to the State

calling a criminal defendant to testify at trial, which is clearly a violation of the

Fifth Amendment. Birdsong v. State, 82 S.W.3d 538, 541 (Tex. App. Austin 2002,

no pet.)   While not as egregious as calling the defendant as a witness, the

prosecutor’s comment came close. It was a direct request for a stipulation of guilt,

a stipulation that can come only from the Appellant. See Angel v. State, 627

S.W.2d 424, 426 (Tex. Crim. App. 1982).

      The prosecutor’s comment was not a request for a factual stipulation

directed at witnesses. It was not a serious request for a stipulation from the

Appellant. It was a comment made to contrast the mitigating evidence being

presented by the defense against the absence of Appellant’s testimony. It pointed

to the absence of an admission of guilt, something only the Appellant could

provide. The prosecutor’s stated explanation, made after the Appellant’s objection,



                                          11
was not plausible. From a plain reading of the record, it is a request made in front

of the jury that the defendant in this criminal trial stipulate to her guilt. Supportive

of Appellant’s position that the statement was directed at Appellant was the trial

court’s statement that he believed “they” referred to Appellant and her counsel.

(12 R.R. at 135-136). The statement met both tests under Bohuchot.               It was

clearly “the prosecutor's manifest intent was to comment on the defendant's

silence” and “the character of the remark was such that the jury would naturally

and necessarily construe it as a comment on the defendant's silence.” Bohuchot,

625 F.3d at 901. The statement was clearly violative of the Fifth Amendment to

the United States Constitution and Article I, § 10 of the Texas Constitution.

II. The Error Was Not Harmless

      Appellee claims that the statement was harmless and that any possible harm

was cured by the trial court’s instruction.     There is no instruction that would

have removed the sting of the prosecution’s request for Appellant to admit to

committing the offense, made in front of the jury, and done to contrast Appellant’s

mitigating evidence against her silence.

      As the error is of a constitutional nature, reversal is required unless this

Court finds that it was harmless. Tex. R. App. Proc. 44.2(a). The prosecutor’s

statement was not harmless and not curable by an instruction.             Even if the

statement could have been cured by an instruction, the instruction given by the trial



                                           12
court in this case was insufficient to remedy the harm.

                          CONCLUSION AND PRAYER

      Appellant prays that this Court find that the trial court abused its discretion

by overruling her objections to the admission of evidence relating to Appellant’s

statements to the police that she had been accused of threating to kill Miller.

Appellant prays that this Court reverse and remand this cause for a new trial.

      In the alternative, Appellant prays that this Court find that the prosecutor’s

request for a stipulation that Appellant was guilty of the charged offense, made in

front of the jury during punishment, violated Appellant’s constitutional rights

against self-incrimination. Appellant prays that this Court find that Appellant was

harmed by the prosecutor’s request. Appellant prays that this Court reverse

Appellant’s sentence and remand this matter to the trial court for a new trial on

punishment.

Respectfully submitted,

/s/ D. Craig Hughes
D. Craig Hughes
SBOT: #10211025
7322 Southwest Freeway, Suite 1100
Houston, Texas 77074
Phone: (713) 535-0683
Fax: (713) 981-3805
Email: dcraighughes@msn.com


/s/ Joseph Kyle Verret
Joseph Kyle Verret

                                         13
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
SBOT: #240429432
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: (281)764-7071
Fax: (281)764-7071
Email: kyle@verretlaw.com


                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing Brief for Appellant

was served on the Counsel for the Appellee, Trey Picard, at the Criminal District

Attorney’s Office of Brazoria County, Texas, by service through electronic

filing on this 3rd day of December, 2015.

/s/Joseph Kyle Verret
Joseph Kyle Verret
SBOT: #2402932


                        CERTIFICATE OF WORD COUNT

     I do hereby certify that the total word count for this document is 1,617,

excluding those parts specifically excluded in Texas Rule of Appellate Procedure

9.4(i)(1), which is less than 7,500 words allowed per Texas Rule of Appellate

Procedure 9.4.

/s/Joseph Kyle Verret
Joseph Kyle Verret
SBOT: #24042932




                                        14
