                                                                                   ACCEPTED
                                                                               03-14-00637-CR
                                                                                       5006955
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                          4/23/2015 1:53:06 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                             No. 03-14-00637-CR

                                  In the                    FILED IN
                                                     3rd COURT OF APPEALS
                          COURT OF APPEALS               AUSTIN, TEXAS
                                 For the             4/23/2015 1:53:06 PM
                 THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
                                at Austin                    Clerk
                 ______________________________________

              On Appeal from the 403rd Judicial District Court of
                           Travis County, Texas
                    Cause Number D-1-DC-12-302227
               ______________________________________

                  CHRISTOPHER ROBERTS, Appellant
                                   v.
                    THE STATE OF TEXAS, Appellee
                 _____________________________________

                         APPELLANT’S BRIEF
                 _____________________________________



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




                        ORAL ARGUMENT REQUESTED
                       IDENTIFICATION OF PARTIES

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

Appellant:

Christopher Roberts

Counsel for Appellant:

William J. Browning (at trial)                    Guillermo Gonzalez (at trial)
811 Nueces                                        700 Lavaca St., Suite 405
Austin, Texas 78701                               Austin, Texas 78701

Matthew Dorsen (at trial)                         Kristen Jernigan (on appeal)
700 Lavaca Street                                 207 S. Austin Ave.
Austin, Texas 78701                               Georgetown, Texas 78626

Counsel for Appellee, The State of Texas:

Rosemary Lehmberg
Travis County District Attorney

Maria Deford
Anna Lee McNelis
Joe Frederick
Assistant District Attorneys
509 W. 11th Street
Austin, Texas 78701

Trial Court Judge:

The Honorable Brenda Kennedy



                                        ii
                                     TABLE OF CONTENTS

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

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

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . vii

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

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

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

ARGUMENT & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

        1.       The trial court abused its discretion in denying Appellant’s
                 requested jury instruction on the lesser-included offense of
                 manslaughter.

        2.       The trial court abused its discretion in allowing a detective to
                 give his opinion that Appellant committed the offense of
                 murder without any personal knowledge of that alleged fact.

        3.       The evidence is insufficient to support Appellant’s conviction.

        4.       The prosecutor unfairly argued outside the bounds of the proper
                 areas of argument during closing statements.

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32


                                                      iii
                                INDEX OF AUTHORITIES

CASES

Aguilar v. State, 682 S.W.2d 556 (Tex. Crim. App. 1985) . . . . . . . . . . . . . . . . . . . 9

Arnold v. State, 853 S.W.2d 543 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . .18, 21

Bell v. State, 724 S.W.2d 780 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . . . . 24

Cannon v. State, 668 S.W.2d 401 (Tex. Crim. App. 1984) . . . . . . . . . . . . . . . . . . 24

Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . .17

Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . .10, 16

Boyde v. State, 513 S.W.2d 588 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . . . . . . 18

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . .22, 23

Cardenas v. State, 30 S.W.3d 384 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . .9

Dobbins v. State, 228 S.W.3d 761 (Tex. App.—Houston [14th Dist.] 2007) . 10, 16

Fairow v. State, 943 S.W.2d 895 (Tex. Crim. App. 1997) . . . . . . . . . .17, 18, 21, 23

Felder v. State, 848 S.W.2d 85 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . 23, 31

Flores v. State, 245 S.W.3d 432 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . 9

Forest v. State, 989 S.W.2d 365 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . 10, 16

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . 22

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 23

Jackson v. State, 160 S.W.3d 568 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . 8


                                                 iv
Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . .19

Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . 19

King v. State, 953 S.W.2d 271 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . .21, 30, 31

Kotteakos v. United States, 328 U.S. 750 (1946) . . . . . . . . . . . . . . . . . . . . . . .21, 30

Lum v. State, 903 S.W.2d 365 (Tex. App. -- Texarkana 1995) . . . . . . . . . . . . . . . 18

Makeig v. State, 802 S.W.2d 59 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . 8

McMillan v. State, 754 S.W.2d 422 (Tex. App. -- Eastland 1988) . . . . . . . . . . . . 17

Megan Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) . . . . . . . . . . . . 22

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . 19

Nejnaoui v. State, 44 S.W.3d 111 (Tex. App.—Houston [14th Dist.] 2001) . .19, 20

Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993) . . . . . . . . . . . . .7, 9, 16

Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981) . . . . . . . . . . . . . . 7, 9, 16

Saunders v. State, 840 S.W.2d 390 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . 10

Spaulding v. State, 505 S.W.2d 919 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . . . 18

State v. Kurtz, 152 S.W.3d 72 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . 8

Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Fort Worth, 2014) . . . . . . . . . . .22

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000),
            cert. denied, 532 U.S. 944 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24




                                                  v
STATUTES AND RULES
TEX. CODE CRIM. PRO. Art. 37.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

TEX. PENAL CODE § 6.03(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. PENAL CODE § 19.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. PENAL CODE § 19.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. APP. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

TEX. R. EVID. 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 18

TEX. R. EVID. 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 20




                                                          vi
              STATEMENT REGARDING ORAL ARGUMENT

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

argument in this case.




                                       vii
                                  No. 03-14-00637-CR

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

                 On Appeal from the 403rd Judicial District Court of
                              Travis County, Texas
                       Cause Number D-1-DC-12-302227
                  ______________________________________

                     CHRISTOPHER ROBERTS, Appellant
                                      v.
                       THE STATE OF TEXAS, Appellee
                    _____________________________________

                            APPELLANT’S BRIEF
                    _____________________________________


                            STATEMENT OF THE CASE

       On January 22, 2013, Appellant was indicted for the felony offense of

murder.    (CR: 16).     On September 26, 2014, a jury found Appellant guilty of the

offense of murder as alleged in the indictment.              (CR: 242, 258).       The jury

assessed Appellant’s punishment at fifty years in prison.                 (CR: 246, 258).

Appellant timely filed Notice of Appeal on September 29, 2014.1                  (CR: 253).

This appeal results.
1
   Once the undersigned was appointed, the undersigned filed Notice of Appeal on October 3,
2014 as well. (CR: 255).

                                              1
                              STATEMENT OF FACTS

      At trial, Kevin Garvey of the Austin Police Department told the jury that on

November 15, 2012, he was dispatched to a call regarding a possible deceased

person.   (RR8: 24-25).       When Garvey arrived at the location, a home shared by

Appellant and his roommates, Garvey encountered roommate Michael Orf.

(RR8: 27).       Once inside, Garvey found a deceased person inside and identified

her as Kirstin Anderson.           (RR8: 28).   While Garvey and other officers

investigated, Appellant was transported to the Police Department to be

interviewed.      (RR8: 32-33).     Appellant returned later and waited outside in

Garvey’s patrol car while Garvey and the other officers on scene completed their

investigation.     (RR8: 32-33).    On cross-examination, Garvey acknowledged that

EMS had responded earlier to Appellant’s home, but Orf told them they were not

needed and he did not understand why they were there.      (RR8: 37-38).

      Jack Perkins with the Austin Police Department related that on November

14, 2012, he responded to a call at the home Appellant shared with Orf and other

roommates.       (RR8: 45).    One of the roommates, Nora Holland, called 911 and

indicated that she might commit suicide.        (RR8: 45-46).   Ultimately, Holland

was transported to the hospital.     (RR8: 45-46).   The next day, Perkins responded

to the call at Appellant’s home and during the investigation of Anderson’s death,


                                           2
transported Appellant to the Police Department to be interviewed.        (RR8: 52).

On cross-examination, Perkins stated that on November 14, 2012, Holland was in

distress and Appellant was attempting to care for her.   (RR8: 53-54).

        Jason Hallmark of the Austin Police Department explained that on

November 15, 2012, he responded to a 911 call of a person not breathing.      (RR8:

58).    When he arrived, Hallmark encountered Appellant who was in a bedroom

with Garvey and Anderson and was trying to determine what had happened to

Anderson.     (RR8: 58-59).   Hallmark directed Appellant out to the living room

and Appellant looked as if “he was like in shock.”   (RR8: 60).

        Derek Israel, a detective with the Austin Police Department, stated that he

arrived at Appellant’s home on November 15, 2012, to determine the manner of

Anderson’s death.      (RR8: 79-80).    Israel told the jury that he found some

bruising on Anderson’s body as well as a fingernail mark.     (RR8: 90-91).   Israel

expressed an opinion that Anderson may have been choked or strangled.         (RR8:

108).    Israel was shown photographs which, in his opinion, reflected a small

injury to Appellant’s hand and some stains on a portion of his shirt.         (RR8:

119-21).    On cross-examination, Israel agreed that the police are called to every

non-hospice related death and that simply because they respond to a death scene, it

does not mean a murder has necessarily occurred.          (RR8: 126).    Israel also


                                         3
agreed that he could not conclude Anderson’s or Appellant’s apparent injuries

were caused by a struggle.    (RR8: 130).    Israel stated further that the “injuries”

on Appellant’s hand were “small, a millimeter, two millimeters” and that he had

“no idea” how they came about.     (RR8: 132).

      Leisha Wood with the Travis County Medical Examiner’s Office expressed

her opinion that Anderson died at least twelve hours before police responded to her

home on November 15, 2012, and that her death could have occurred as early as

the night of November 14, 2012.       (RR8: 177). Wood expressed further that

Anderson’s cause of death was strangulation.         (RR8: 183).     The toxicology

examination of Anderson showed she had marijuana metabolites in her blood and a

blood alcohol content of .36.       (RR8: 188).      On cross-examination, Wood

admitted that if a person was put in a choke hold for thirty seconds they would

appear to be sleeping but could die later.       (RR8: 192).   Additionally, a high

blood alcohol content, like that found in the toxicology examination of Anderson,

could impact that chance of survival negatively.     (RR8: 192).     Wood was also

forced to acknowledge that Anderson’s death was caused by lack of blood to the

brain, not an obstructed airway.   (RR8: 194).

      Claire McKenna, a DNA technician with the Austin Police Department,

stated that she tested fingernail swabs from both Appellant and Anderson, a neck


                                         4
swab from Anderson, and a stain on Appellant’s shirt.           (RR9: 25).     The

fingernail swab from Appellant’s right hand indicated only his own DNA, and not

that of Anderson.   (RR9: 27).   The swab taken from Anderson’s right fingernail

indicated a mixture of DNA samples which could have included several different

contributors, but Appellant and Anderson could not be excluded as contributors.

(RR9: 28).   However, McKenna testified that Appellant’s DNA could be under

Anderson’s fingernail because they lived together.    (RR9: 29).    The fingernail

swab from Anderson’s left hand also indicated a mixture of potentially many DNA

profiles, but Appellant and Anderson could not be excluded as contributors.

(RR9: 30).   McKenna was careful to point out that regarding all of her tests, she

could not testify Appellant’s DNA appeared on any of the samples; but rather,

could only express her opinion as to the possibility his DNA profile could be

excluded or included.   (RR9: 32).     McKenna then stated that Anderson could

not be excluded as a contributor to the DNA found on Appellant’s shirt but could

not say that the DNA found came from the stain on Appellant’s shirt.    (RR9: 47).

In fact, McKenna only did a presumptive test for blood and not a confirmatory test.

(RR9: 47).    Finally, McKenna indicated that Appellant was excluded as a

contributor to the DNA found on Anderson’s neck.                (RR9: 36).     On

cross-examination, McKenna admitted that she did not conduct further testing on


                                        5
the swabs from Anderson’s fingernails that indicated multiple contributors to

determine who those contributors were.     (RR9: 58-59).

       William White with the Austin Police Department told the jury that on

November 15, 2012, he responded to the scene of Anderson’s death.        (RR9: 72).

As part of his investigation he interviewed Appellant at the Police Department.

(RR9: 80).    The jury was then shown a video recording of that interview.    (RR9:

80).   During the interview, Appellant related that he left for work on the morning

of November 15, 2012, and Anderson was snoring in the bed next to him.       (RR11:

18).   When he returned home at 5:00 p.m., he found her not moving so he

grabbed a cell phone, called 911, and did CPR until the paramedics arrived.

(RR11: 19).       Appellant indicated that the night before, he had had to restrain

Anderson with a form of a choke hold to calm her down.              (RR11: 28, 30).

Appellant explained that Anderson had been drinking heavily and often became

out of control.   (RR11: 29-30).    White stated that he spoke with Appellant again

in Garvey’s patrol car outside Appellant’s home.            (RR9: 89).   White then

interviewed Appellant again while he was in custody at the Del Valle Correctional

Complex shortly after he was arrested.        (RR9: 109).   Based on that interview,

White was allowed to testify, over Appellant’s objection that it was his opinion

that Anderson’s death was a “straightforward murder.”          (RR9: 111).   At the


                                          6
close of White’s testimony, both sides rested and closed.   (RR9: 125).

                             ISSUES PRESENTED

      1.    The trial court abused its discretion in denying Appellant’s
            requested jury instruction on the lesser-included offense of
            manslaughter.

      2.    The trial court abused its discretion in allowing a detective to
            give his opinion that Appellant committed the offense of
            murder without any personal knowledge of that alleged fact.

      3.    The evidence is insufficient to support Appellant’s conviction.

      4.    The prosecutor unfairly exceeded the bounds of the proper
            areas of argument during closing statements.

                      SUMMARY OF THE ARGUMENT

      Appellant’s first point of error should be sustained because the trial court

abused its discretion in denying Appellant’s requested jury instruction on the

lesser-included offense of manslaughter where Appellant met the required

two-prong test set forth in Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim.

App. 1993); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981).

Appellant’s second point of error should be sustained because the trial court

abused its discretion in allowing a detective to give his opinion that Appellant

committed the offense of murder without any personal knowledge of that alleged

fact and the detective’s opinion supplanted that of the jury’s.   Appellant’s third

point of error should be sustained because the evidence is insufficient to support

                                         7
Appellant’s conviction for murder when the State failed to prove the requisite

mental state for that offense.       Appellant’s fourth point of error should be

sustained because the prosecutor unfairly exceeded the bounds of the proper areas

of jury argument by infusing facts not testified to at trial during closing statements

which resulted in a violation of Appellant’s substantial rights, including the right to

a fair trial.

                          ARGUMENT & AUTHORITIES

       I.       The trial court abused its discretion in denying Appellant’s
                requested jury instruction on the lesser-included offense of
                manslaughter.

       Appellant’s first point of error should be sustained because the trial court

abused its discretion in denying Appellant’s request for a jury instruction on the

lesser-included offense of manslaughter.        A trial court’s decision regarding the

submission of a lesser-included offense is reviewed for an abuse of discretion.

Jackson v. State, 160 S.W.3d 568, 575 (Tex. Crim. App. 2005). A trial court

abuses its discretion when its decision is arbitrary, unreasonable, or without

reference to guiding rules or principles.   Makeig v. State, 802 S.W.2d 59, 62 (Tex.

Crim. App. 1990).      A trial court also abuses its discretion when it fails to analyze

the law correctly and apply it to the facts of the case.   State v. Kurtz, 152 S.W.3d

72, 81 (Tex. Crim. App. 2004).


                                            8
       A two-prong test is applied to determine whether a defendant is entitled to

an instruction on a lesser-included offense.    Rousseau v. State, 855 S.W.2d 666,

672 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim.

App. 1981).      First, the lesser-included offense must be included within the proof

necessary to establish the charged offense.    See TEX. CODE CRIM. PRO. Art. 37.09;

Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008).            Second, some

evidence must exist in the record that would permit a jury to rationally find that if

the defendant is guilty, he is guilty of only the lesser-included offense.   Aguilar v.

State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).

       Manslaughter is a lesser-included offense of murder.     Cardenas v. State, 30

S.W.3d 384, 392 (Tex. Crim. App. 2000). Thus, the first prong of the required

test is satisfied.

       As for the second prong, a person commits manslaughter if he recklessly

causes the death of an individual. TEX. PENAL CODE § 19.04. A person acts

recklessly if he engages in conduct and is aware of but consciously disregards a

substantial and unjustifiable risk associated with that conduct. TEX. PENAL CODE

§ 6.03(c).

       Anything more than a scintilla of evidence is sufficient to entitle a defendant

to a charge on the lesser-included offense.     Dobbins v. State, 228 S.W.3d 761,


                                           9
768 (Tex. App.—Houston [14th Dist.] 2007).         A trial court is not permitted to

consider the weight or credibility of the evidence, or whether it conflicts with other

evidence.      Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992).

Regardless of its strength or weakness, if the evidence establishes the

lesser-included offense as a “valid, rational alternative to the charged offense,”

then the charge must be given.    Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim.

App. 1999); Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).

      In this case, at the close of testimony, Appellant objected to the jury charge

and requested an instruction on the lesser-included offense of manslaughter.

(RR9: 127-34).      Counsel argued that an interview between Detective White and

Appellant raised the issue of whether Appellant’s conduct was reckless or

intentional.    (RR9: 130-34).   Specifically, counsel argued that if guilty, there

was evidence that Appellant may have recklessly caused Anderson’s death.

(RR9: 133).

      The record reflects that during Appellant’s first interview with White, he

explained that on the night of November 14, 2012, he had had to restrain Anderson

with a form of a choke hold to calm her down.          (RR11: 28, 30).     Appellant

informed White that Anderson had been drinking heavily and often became out of

control.       (RR11: 29-30).    In response to Appellant’s comments, White


                                         10
repeatedly theorized that Appellant’s acts were reckless, rather than intentional or

knowing.   During Appellant’s first interview, the following exchange occurred

between White and Appellant:

      DET. WHITE:        Well... again that’s not saying that you meant to harm

                         her.

      APPELLANT:         Right.

      DET. WHITE:        You know? This could have been something totally

                         accidental, alright? You mentioned she does like to be

                         strangled... during... and she gets off on that sort of thing.

                         It doesn’t take much to actually render a person

                         unconscious when they’re in a choke hold.

      DET. WHITE:        Yeah, especially if they’re been drinking and it doesn’t

                         take much to knock them out normally. Nor does it take

                         much after they’re knocked out to actually cause enough

                         damage from them to even be awake for a little bit, but

                         then subsequently die or even to do it long enough where

                         they actually die. We’ve seen cases where somebody gets

                         strangled for long enough that they pass out and they

                         don’t ever come to and they’ll stay breathing for you


                                         11
                   know sometimes minutes, sometimes hours and days

                   before they... the lack of oxygen and amount of damage

                   caused because of the strangulation eventually causes

                   their brain to shut down. So...

(RR11: 41).

       In Appellant’s second statement, White again contemplated the issue

of intent.

DET. WHITE:        Yeah, you know, and there’s a big difference between

                   someone that goes out and intentionally wants to kill

                   somebody and somebody who gets involved in a

                   situation and just gets a little beyond their control. And

                   they don’t necessarily intend that outcome but sometimes

                   things get out of control and, you know, mistakes

                   happen.    I’ve certainly made my fair share in my life

                   and...

(RR11: 49).

In the third statement, White again raised the issue:

DET. WHITE:        OK. Well as far as, uhh... Why it’s 1st degree murder,

                   uhh... There’s two reasons they wanna charge you with


                                   12
                        1st degree murder, uhh... It’s called, what’s called

                        intentionally causing someone’s death and knowingly

                        causing someone’s death.     Like I talked to you before,

                        whether or not you intended to kill her, I can see that

                        you probably did not.

(RR11: 56) (emphasis added).

     White continued:

     DET. WHITE:        Whatever the case may is, or if you’re just trying to calm

                        her down. Whatever the case is, people can sometimes let

                        things go a little farther than they meant to. That’s what I

                        was saying, you know, it’s possible that you hit it harder

                        than you normally do, and that’s what ultimately caused

                        this. That’s... that’s understandable. That’s... that’s

                        something that I think anybody can see happening.

     APPELLANT:         But you, but you charged me with 1st degree murder

                        which is intentional.

     DET. WHITE:        It’s intentional or knowingly.     Intentional means, and

                        it’s complicated, its legal means. Intentional is like what

                        you... were... what you’re thinking in your mind. You’re


                                       13
              right.   Intentional means I’m gonna go kill that person, I

              want them dead. OK?

APPELLANT:    [not audible]

DET. WHITE:   Knowingly means something different. Knowing can

              mean, OK, I take a gun out and I’m gonna try to scare

              you. So, I’m gonna shoot it right at you, but then I end up

              shooting you. Well, I should have known that by doing

              this act, shooting a gun at somebody is clearly dangerous

              and can cause them, cause death to them.

APPELLANT:    That’s the issue I’m having problems with... [not

              audible]... I don’t know. I don’t know. I thought that was

              way less harmful than a choke... my arm... her arm. You

              know?     (RR11: 59).

DET.WHITE:    Yeah, and don’t. I don’t believe, I believe you’re not a

              cold blooded murderer and I talked to you about that at

              our first interview, was I don’t think you're a serial killer.

              I don’t think your goal that night was to go out and

              murder your girlfriend or anything like that.      I think it

              was a situation that got, that went beyond what you


                              14
                         meant it to.

(RR11: 60) (emphasis added).

      DET. WHITE:        Mmm. Well again, like what we talked about, there’s

                         a...There’s    a    difference   between   going   out   and

                         intentionally killing someone and then just, in the heat of

                         the moment, things going too far. Uhh... Now, what you

                         what you were saying as far as, you know, I can see it

                         being manslaughter versus murder. That is something

                         you can discuss, you know, that’s something you can talk

                         to the prosecutors about, with your attorney about.

(RR11: 63).

      Appellant indicated to White that he put Anderson in a choke hold to restrain

her after she had become out of control after drinking heavily.        The medical

examiner testified that if a person was put in a choke hold for thirty seconds they

would appear to be sleeping but could die later and that a high blood alcohol

content, like the .36 level found in the toxicology examination of Anderson, could

impact that chance of survival negatively. Therefore, the act of putting someone

in a choke hold could be considered a reckless act.




                                            15
      Further, the State’s own witness repeatedly raised the issue of whether if

Appellant was guilty, he could be guilty only of the lesser-included offense of

manslaughter.    White even went so far as to say, “I can see it being manslaughter

versus murder” and “Like I talked to you before, whether or not you intended to

kill her, I can see that you probably did not.”   The video and audio recordings of

Appellant’s statements were played before the jury and admitted into evidence in

Appellant’s trial and are more than a scintilla of evidence that if Appellant was

guilty, he was guilty only of the offense of manslaughter.        See Dobbins, 228

S.W.3d at 768.         Thus, the issue of whether Appellant acted recklessly was

undoubtedly raised at trial as a “valid, rational alternative to the charged offense.”

See Forest, 989 S.W.2d at 367; Bignall, 887 S.W.2d at 23.          As such, the trial

court was required to instruct the jury on the lesser-included offense of

manslaughter.    Id.

      Appellant has met the requirements of the two-prong test as set forth in

Rousseau and Royster, for showing he was entitled to a jury instruction on the

lesser-included offense of manslaughter.      Rousseau, 855 S.W.2d at 672; Royster,

622 S.W.2d at 444; Dobbins, 228 S.W.3d at 768.         Therefore, the trial court was

required to give Appellant’s requested instruction and abused its discretion in

failing to do so.       Forest, 989 S.W.2d at 367; Bignall, 887 S.W.2d at 23.


                                         16
Accordingly, Appellant’s first point of error should be sustained.

      II.    The trial court abused its discretion in permitting the lead
             detective in this case to give his opinion that Appellant
             committed murder when he had no personal knowledge upon
             which to base his opinion.

      The trial court abused its discretion in allowing the lead detective in this

case, who was not present when Anderson died, to give an opinion that Appellant

intentionally caused her death.    The trial court’s ruling allowing this opinion

testimony, over Appellant’s objection, was an abuse of discretion because the

detective had no personal knowledge upon which to base his opinion and because

the investigator’s opinion supplanted the jury’s determination of guilt or

innocence.

      Texas Rule of Evidence 701 states that a lay witness’s testimony in the form

of opinions or inferences is limited to those opinions or inferences which are (a)

rationally based on the perception of the witness and (b) helpful to a clear

understanding of the witness’s testimony or the determination of a fact in issue.

TEX. R. EVID. 701.   The initial requirement that an opinion be rationally based on

the perceptions of the witness is composed of two parts.       Fairow v. State, 943

S.W.2d 895, 899-900 (Tex. Crim. App. 1997).       “First, the witness must establish

personal knowledge of the events from which his opinion is drawn and, second, the

opinion drawn must be rationally based on that knowledge.”           Id.   Accordingly,

                                         17
the proponent of lay-opinion testimony must establish that the witness has personal

knowledge of the events upon which his opinion is based.      Id.   If the proponent

of the opinion cannot establish personal knowledge on the part of the testifying

witness, the trial court should exclude the testimony. Id.; see also Bigby v. State,

892 S.W.2d 864, 889 (Tex. Crim. App. 1994); McMillan v. State, 754 S.W.2d 422,

425 (Tex. App. -- Eastland 1988) (holding that a lay-witness opinion based on

hearsay was inadmissible).    It is impossible for a witness to possess personal

knowledge of what someone else is thinking because that individual is the only one

who knows for certain the mental state with which he or she is acting.      Fairow,

943 S.W.2d at 899-900; see also Arnold v. State, 853 S.W.2d 543, 547 (Tex. Crim.

App. 1993).   “Therefore, if the trial court determines that a proffered lay-witness

opinion is an attempt to communicate the actual subjective mental state of the

actor, the court should exclude the opinion because it could never be based on

personal knowledge.”    Fairow, 943 S.W.2d at 900.      Moreover, if the witness’s

lack of personal knowledge yields testimony that amounts to an opinion of guilt or

innocence, the opinion should be excluded.    Fairow, 943 S.W.2d at 900; see also

Boyde v. State, 513 S.W.2d 588 (Tex. Crim. App. 1974); Spaulding v. State, 505

S.W.2d 919 (Tex. Crim. App. 1974).




                                        18
      The second requirement for admissibility under rule 701 is that the opinion

be helpful to the trier of fact to either understand the witness’s testimony or to

determine a fact in issue. TEX. R. CRIM. EVID. 701.    A lay witness’s opinion as to

a mental state is properly excluded when the witness has not been qualified as an

expert or shown to know the legal definition of said mental state. Fairow v. State,

943 S.W.2d at 900; see also Lum v. State, 903 S.W.2d 365, 370 (Tex. App. --

Texarkana 1995).

      To be admissible, expert testimony must “assist” the trier of fact and be both

reliable and relevant to help the jury in reaching accurate results. TEX. R. EVID.

702; Jordan v. State, 928 S.W.2d 550, 553- 54 (Tex. Crim. App. 1996); Kelly v.

State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992).      An expert’s testimony must

aid, but not supplant the jury’s decision.    Nejnaoui v. State, 44 S.W.3d 111, 117

(Tex. App.—Houston [14th Dist.] 2001).            The trial court’s ruling on the

admissibility of opinion testimony is reviewed under an abuse of discretion

standard.   Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990).

      Detective White interviewed Appellant while he was in custody at the Del

Valle Correctional Complex shortly after he was arrested.      (RR9: 109).    Based

on that interview, White was allowed to testify, over Appellant’s objection that it

was his opinion that Anderson’s death was a “straightforward murder.”         (RR9:


                                         19
111).    This line of opinion testimony continued with the following:

        THE PROSECUTOR:          So based on what you had at the time, why did you

                                 charge the defendant with murder?

        DET. WHITE:              The law says that murder is intentionally or

                                 knowingly.       Based   on   the    totality     of     the

                                 circumstances, the evidence we had at the time, the

                                 investigation,    what   forensics    we    did        have,

                                 including the medical examination, and ultimately

                                 the defendant’s own statements, I felt that his

                                 conduct was not only knowing but intentionally

                                 done.

(RR9: 114).

        White was not qualified as an expert and therefore, his testimony was that of

a lay witness.    TEX. R. EVID. 701.     White was not present when Anderson died

and therefore, his opinion that Appellant committed the offense of murder was not

based on his personal knowledge or rational perception of any event.             Fairow,

943 S.W.2d at 899-900.       Further, White could never have possessed personal

knowledge of Appellant’s mental state, which White testified was knowing and

intentional.   Fairow, 943 S.W.2d at 899-900; Arnold, 853 S.W.2d at 547.                Since


                                           20
White’s opinion was an attempt to communicate Appellant’s actual subjective

mental state, namely that he intentionally and knowingly killed Anderson, it should

have been excluded, especially since that opinion was an ultimate opinion of guilt

or innocence.     Fairow, 943 S.W.2d at 900.

       Further, White’s opinion was not helpful to the jury because it did not assist

the jury in determining an issue of fact and instead, supplanted the jury’s ultimate

decision of whether Appellant was innocent or guilty.                  TEX. R. EVID. 702;

Nejnaoui, 44 S.W.3d at 117.

       Appellant was harmed by the trial court’s erroneous ruling allowing the

admission of White’s opinion because Appellant’s substantial rights, including his

right to a fair trial, were affected.     TEX. R. APP. 44.2(b).      “A substantial right is

affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997), citing Kotteakos v. United States, 328 U.S. 750, 776 (1946).             Clearly,

the admission of White’s opinion that Appellant acted intentionally and knowingly,

and therefore, murdered Anderson affected the jury’s verdict.                 This was the

State’s only evidence that Appellant acted intentionally and knowingly, 2 and


2
   Appellant anticipates that the State will argue Appellant confessed to intentionally causing
Anderson’s death based on statements Appellant made during his third interview with White.
See (RR11: 64, 68). However, the record reflects that Appellant’s statements regarding what
could have happened on the night Anderson died were speculation and “for the sake of this

                                              21
therefore, necessarily affected the outcome of Appellant’s trial.     See King, 953

S.W.2d at 271.

       The trial court abused its discretion in allowing opinion testimony where

White had no personal knowledge to give that opinion and Appellant was harmed

by that admission.     See Montgomery, 810 S.W.2d at 379; King, 953 S.W.2d at

271.   That being the case, Appellant’s second point of error should be sustained.

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

       The Court of Criminal Appeals has held that the legal sufficiency standard

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

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

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

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

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

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

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

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

to show that Appellant intentionally or knowingly caused Anderson’s death. TEX.

PENAL CODE § 19.02.       It is well-settled that circumstantial evidence alone can be


interrogation.” (RR11: 64).

                                          22
sufficient to establish guilt.    Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007).    “And while juries are permitted to draw multiple reasonable inferences, as

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

permitted to come to conclusions based on mere speculation or factually

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

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

771 (Tex. Crim. App. 2013).

       The only “evidence” that Appellant caused Anderson’s death intentionally or

knowingly came from Detective White who gave his opinion, unsupported by any

personal knowledge, that Appellant acted intentionally or knowingly. 3                   As

discussed above, this “evidence” should have been excluded at trial and should not

be considered on appeal.         See Fairow, 943 S.W.2d at 900.         Without Detective

White’s testimony, the State failed to show Appellant intentionally or knowingly

caused Anderson’s death, and any speculation to that effect is not supported by the

record.   In fact, the record evidence shows that when Appellant returned home

from work on November 15, 2012, he called 911 and performed CPR on Anderson

until EMS arrived.

3
  Again, Appellant anticipates that the State will argue Appellant confessed to intentionally
causing Anderson’s death based on statements Appellant made during his third interview with
White. See (RR11: 64, 68). However, the record reflects that Appellant’s statements
regarding what could have happened on the night Anderson died were speculation and “for the
sake of this interrogation.” (RR11: 64).

                                             23
       In the absence of any evidence to show Appellant’s mental state, or that he

acted intentionally or knowingly, no rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at

320; Brooks, 323 S.W.3d at 896.             Accordingly, Appellant’s third point of error

should be sustained.

       IV.     The prosecutor unfairly exceeded the proper areas of jury
               argument during closing statements which resulted in a
               substantial violation of Appellant’s rights, including the right
               to a fair trial.

       Appellant’s fourth point of error should be sustained because the prosecutor

exceeded the proper areas of jury argument, over Appellant’s objection, during closing

arguments.     The prosecutor’s argument harmed Appellant and resulted in a violation of

his substantial rights, including his right to a fair trial.

       It is well-settled that there are four proper areas of jury argument: (1)

summation of the evidence, (2) reasonable deductions drawn from the evidence,

(3) answer to opposing counsel’s argument, and (4) plea for law enforcement.

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532

U.S. 944 (2001).       “An argument which exceeds these bounds is error…” and is

subject to reversal if the argument is extreme or manifestly improper, violative of a

mandatory statute “or injects new facts, harmful to the accused, into the trial.”

Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992), citing Bell v. State,


                                                24
724 S.W.2d 780 (Tex. Crim. App. 1986); Cannon v. State, 668 S.W.2d 401 (Tex.

Crim. App. 1984).

      During closing arguments at the guilt or innocence phase of trial, the

following occurred before the jury:

      THE PROSECUTOR:           Ladies and gentlemen, I want you to come with me

                                to that -- to Kirstin’s home, to that address at Little

                                John where she lived. I want you to come with me

                                to that night of November 14th and I want us to

                                walk into her bedroom and see what is going on

                                there. And I want you to see as the defendant

                                strikes her and as she decides on that night she has

                                had enough, she’s going to kick him out --

      TRIAL COUNSEL:            Your Honor, she is arguing facts that have not

                                been entered into evidence.

      THE PROSECUTOR:           Your Honor, it is a deduction from the evidence

                                based on the defendant’s statements.

      THE COURT:                Objection overruled.

      THE PROSECUTOR:           So she decides -- she has decided she’s had

                                enough, she's not going take it anymore, she is


                                         25
                                going to call the police. That’s what caused all of

                                this to happen, she was finally going to take some

                                action.

      TRIAL COUNSEL:            Your Honor, I renew my objection. This is not a

                                deduction from the evidence. This is pure

                                hypothetical being offered by the State, not based

                                on any evidence that’s been admitted.

      THE COURT:                Objection overruled.

(RR10: 23-24).     The prosecutor continued her argument, which injected new

facts, harmful to Appellant, as follows:

      THE PROSECUTOR:           I want you to indulge me for a few seconds. I’m

                                going to start this stopwatch that I have here and

                                when I start it I want all of us to hold our breath,

                                and when I stop it, for as long as you can or until I

                                say stop because I want to show you how long this

                                takes to kill someone, why it is intentional.

      TRIAL COUNSEL:            Your Honor, I object to this as well. This is outside

                                the scope of the evidence that was presented.

      THE COURT:                Objection overruled.


                                           26
THE PROSECUTOR:   If we could start.      If we could stop. That’s only

                  14 seconds. Kirstin is still not dead. He’s

                  continuing to choke her to unconsciousness. She is

                  still not dead and we’re at 30 seconds. Imagine

                  how long it took. Think about that damage to her

                  cartilage, he fractured it, the pressure that is

                  required. 40 seconds, we’re still not there. She’s

                  still not dead.   Can you imagine the fear? Can

                  you imagine what she’s feeling? She can’t breathe.

                  That gentleman who was on the jury told us when

                  his wife has those attacks, when she can't breathe

                  --

TRIAL COUNSEL:    Your Honor, I object that that is not evidence that

                  was offered in trial.

THE PROSECUTOR:   -- the moment has to pass before she can breathe.

THE COURT:        Again, the ladies and gentlemen of the jury will

                  recall the evidence as they heard it.

THE PROSECUTOR:   Those of you that are nurses, that work -- that are

                  on the jury that work with patients that have


                           27
                              problems with their airway --

     TRIAL COUNSEL:           That’s improper jury argument, Your Honor.

     THE PROSECUTOR:          -- use your experience.

     TRIAL COUNSEL:           I object, Your Honor. She cannot appeal directly to

                              the individual jurors in that manner. I object that

                              that is improper jury argument.

     THE PROSECUTOR:          Use your personal experience. Think about that.

     TRIAL COUNSEL:           Your Honor, could I get a ruling on my objection?

     THE COURT:               I’m reading what she said. The objection regarding

                              the nurses is sustained. The jury will disregard that

                              remark.

     TRIAL COUNSEL:           Your Honor, I ask for them to strike that and I

                              move for a mistrial.

     THE COURT:               Motion denied.

     THE PROSECUTOR:          Think about that. All this time about the airway

                              that we’ve been talking and Kirstin is still not

                              dead. We’re only at a minute and 54 seconds.

(RR10: 26-27).   The prosecutor continued:

     THE PROSECUTOR:          No one would choose the death that Kirstin


                                        28
                 suffered, beaten. Even Dr. Wood told you about

                 those injuries on the top of her head where she saw

                 internal hemorrhaging. She talked about how the

                 muscles in her neck, there was hemorrhaging along

                 the muscles along with that fractured thyroid

                 cartilage, the injuries underneath the temple that

                 was   hemorrhaging     underneath.   This   is   an

                 intentional act and all of this happened because

                 Kirstin was going to call the police, because she

                 was going to free herself from this man. And think

                 about it, even in the first scenario when I asked

                 you to indulge me, think about it. After only a few

                 seconds when we start breathing again, it’s a good

                 feeling, but imagine the panic when you can’t

                 control it, you can’t what is causing the pressure

                 off your neck, you are fighting for your life.

                 Imagine those final moments of Kirstin’s life, what

                 that must have been like.

TRIAL COUNSEL:   Your Honor, I object to -- the medical examiner


                         29
                                  testified that those are not the causes of her injuries

                                  -- that that was not the cause of her death. It was

                                  not the tracheal injuries.

      THE COURT:                  The ladies and gentlemen will recall the evidence

                                  as they heard it.

(RR10: 32-33).

      There was never any testimony that Anderson was going to call the police or

what her mental state was prior to her death.    Further, as counsel correctly pointed

out, tracheal injuries did not cause Anderson’s death, as proffered by the

prosecutor.     Finally, there was no evidence as to how long Anderson was

deprived of air, in stark contrast to the prosecutor’s assertion, complete with a

stopwatch.      The prosecutor’s arguments were outside the bounds of proper jury

argument and undoubtedly injected new facts, harmful to Appellant, into the trial.

See Felder, 848 S.W.2d at 94-95.

      Appellant was harmed by these arguments because his substantial rights,

including his right to a fair trial, were affected by the trial court’s ruling. TEX. R.

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

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

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


                                           30
U.S. 750, 776 (1946).     Clearly, when the prosecutor stood before the jury and

attempted to fill in the gaps of the State’s case by interjecting nothing more than

speculation, the jury’s verdict was affected which necessarily impacted the

outcome of Appellant’s trial.   See King, 953 S.W.2d at 271.

      The prosecutor’s arguments exceeded the proper bounds of jury argument

which resulted in a violation of Appellant’s substantive rights. See Felder, 848

S.W.2d at 94-95; King, 953 S.W.2d at 271. Therefore, Appellant’s fourth point of

error should be sustained.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

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

                                              Respectfully submitted,


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




                                         31
                        CERTIFICATE OF SERVICE

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

foregoing Appellant’s Brief has been mailed to the Travis County District

Attorney’s Office, P.O. Box 1748, Austin, Texas 78767, on April 23, 2015.


                                     ________”/s/” Kristen Jernigan__________
                                     Kristen Jernigan



                     CERTIFICATE OF WORD COUNT

      The undersigned hereby certifies that the foregoing document consists of

5,865 words in compliance with Texas Rule of Appellate Procedure 9.4.



                                     ________”/s/” Kristen Jernigan__________
                                     Kristen Jernigan




                                       32
