                                                                             ACCEPTED
                                                                         12-15-00137-CR
                                                            TWELFTH COURT OF APPEALS
                                                                          TYLER, TEXAS
                                                                    9/30/2015 5:38:41 PM
                                                                               Pam Estes
                                                                                  CLERK

       No. 12-15-00137-CR

                  In the                            FILED IN
          Court of Appeals                   12th COURT OF APPEALS
                 For the                          TYLER, TEXAS
                                             9/30/2015 5:38:41 PM
     Twelfth District of Texas
                At Tyler                            PAM ESTES
                                                      Clerk

       ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

          No. CR13-00337
   In the 294TH Judicial District Court
       Of Van Zandt County, Texas

       ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

 MICHAEL VINCENT MOORE,
                Appellant

                   V.

    THE STATE OF TEXAS
                Appellee

       ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

DEFENDANT’S APPELLANT BRIEF

       ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

                                    JOHN A. SCOTT
                                    State Bar No. 24034672
                                    107 E. Tyler St.
                                    Athens, Texas 75751
                                    (903) 675-8005
                                    Fax: 903-675-8006

                                    Counsel for Appellant
                                              TABLE OF CONTENTS

                                                                                                                         Page

Index of Authorities ...................................................................................................3

Statement Regarding Oral Argument.........................................................................5

Identification of Parties ..............................................................................................5

Statement of the Case.................................................................................................6

Issues Presented .........................................................................................................6

Statement of Facts ......................................................................................................7

Summary of the Argument.........................................................................................26

Issue Number 1 ..........................................................................................................27

           The evidence is legally insufficient to support Appellant’s conviction for the
           offense of capital murder.


Argument for Issue Number 1 ...................................................................................28

Issue Number 2 ..........................................................................................................47

           Because the State’s capital murder case was a circumstantial evidence case, and
           because Appellant had no motive to murder Alicia, the evidence presented supports
           an inference other than the guilt of Appellant and the jury’s finding of guilt was not a
           rational finding


Argument for Issue Number 2 ...................................................................................47

Issue Number 3 ..........................................................................................................50

           The aggregate effect of erroneous rulings by the trial court in allowing the jury to
           hear objectionable and inadmissible evidence irreparably harmed Appellant and
           Appellant should be granted a new trial.




                                                                 2
Argument for Issue Number 3 ..................................................................................50

Conclusion and Prayer ...............................................................................................55

Certificate of Service .................................................................................................55

Certificate of Compliance……………………………………………………………56

Appendix…………………………………………… ……………………………… 57

                                          INDEX OF AUTHORITIES


CASES:                                                                                                                Page

Brandley v. State, 691 S.W.2d 699,
       (Tex.Cr.App.1985)……………………………………………………48, 49

Brooks v. State, 323 S.W.3d 893,
       (Tex. Crim. App. 2010) (plurality opinion) ...............................................27

Carlsen v. State, 654 S.W.2d 444,
       (Tex.Cr.App.1983)……………………………………………………48, 51

Coble v. State, 330 S.W.3d 253,
       (Tex.Cr.App.2010)………………………………………………………51

Cover v. State, 913 S.W.2d 611,
     (Tex. App.—Tyler 1995, pet. ref’d) ............................................................46

Denby v. State, 654 S.W.2d 457,
     (Tex.Cr.App.1983)……………………………………………………….47, 48

Flores v. State, 551 S.W.2d 364,
      (Tex.Cr.App.1977)………………………………………………………. 48

Garcia v. State, 495 S.W.2d 257,
     (Tex.Cr.App.1973)……………………………………………………….. 47

Jackson v. Virginia, 443 U.S. 307,
       61 L. Ed.2d 560, 99 S. Ct. 2781 (1979) ...........................................27,47,48

Johnson v. State, 967 S.W.2d 410
      (Tex. Crim. App. 1998)..............................................................................27

Llamas v. State, 12 S.E.3d 469,
      (Tex. Crim.App.2000)................................................................................53


                                                               3
Lockhart v. Nelson, 488 U.S. 33,
      102 L. Ed. 2d 265, 109 S. Ct. 285 (1988) ..................................................27

Montgomery v. State, 820 S.W.2d 372, 378-79
     (Tex.Crim.App.1990)..................................................................................52

Motilla v. State, 78 S.W.3d 353, 355,
       (Tex.Crim.App.2002).................................................................................53

Muniz v. State, 851 S.W.2d 238
       (Tex. Crim. App. 1993)..............................................................................27

Skelton v. State, 795 S.W.2d 162,
       (Tex.Cr.App.1989) ...............................................................................47, 48

Stahl v. State, 749 S.W.2d 826,
        (Tex.Crim.App.1988)...........................................................................50, 54

Williams v. State, 840 S.W.2d 449,
       (Tyler App.1991) .......................................................................................53


RULES:

TEX. PEN. CODE § 19.03…………..……………………………………………..28

TEX. PEN. CODE § 22.01…………………………………………………………44

TEX. PEN. CODE § 22.021………………………………………………………..44

TEX. RULES. EVID. 402…………………………………………………………….51

TEX. RULES. EVID. 403…………………………………………………………51, 53

TEX. RULES. EVID. 901…………………………………………………………….53




                                                            4
                  STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to TEX. R. APP. RULE 39, the Appellant waives oral argument.


                        IDENTIFICATION OF THE PARTIES

       Pursuant to TEX. R. APP. P. 38.2(a), a complete list of the names of all interested

parties is provided below so that 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 the case.

       Counsel for the State:

               Chris Martin—District Attorney of Van Zandt County and Attorney for
               State at Trial
               Richard Schmidt—Assistant District Attorney at Trial
       Appellant or Criminal Defendant:

               Michael Vincent Moore

               Appellant is incarcerated

       Counsel for Appellant:

               John A. Scott –Counsel at trial / Counsel on appeal
               107 E. Tyler Street, Athens, Texas 75751


       Trial Judge:

               Hon. Teresa Drum ⎯ 294TH Judicial District Court Judge

               County Courthouse 121 E. Dallas St., Suite 301, Canton, Texas 75103




                                             5
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:



                             STATEMENT OF THE CASE

        On July 30, 2013, in Cause No. CR13-00337, Michael Vincent Moore

(hereinafter “Appellant”) was indicted for the offense of capital murder, alleged to have

occurred on or about November 6, 2012. (C.R. 9)

        The case was tried before a jury and Appellant pled not guilty to the offense. On

the court’s charge, the jury returned a verdict of guilty to capital murder, and the Court

assessed a punishment of Life in the Institutional Division of the Texas Department of

Criminal Justice without parole. (C.R. 8, 205, 219). Appellant filed a Motion for New

Trial and Motion in Arrest of Judgment. (C.R. p. 230). Appellant’s motion was denied

pursuant to T.R.A.P 21.8 when the Court did not timely rule on the motion within 75

days.


                                  ISSUES PRESENTED

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

        Capital Murder. Based upon the evidence presented to the jury, no rational trier of

        fact could have found the essential elements of the crime beyond a reasonable

        doubt—specifically, that Appellant intentionally and knowingly caused the death of

        Alicia Moore by strangulation and that the Appellant was then and there in the course

        of committing or attempting to commit the offense of aggravated sexual assault of

        Alicia Moore. There was no evidence that Appellant strangled and murdered Alicia

        Moore. At the very most, the State proved that Appellant committed the offense of



                                              6
       sexual assault. Therefore, the case should be remanded to the trial court for a new

       trial.


   2. Because the State’s capital murder case was a circumstantial evidence case, and

       because Appellant had no motive to murder Alicia, the evidence presented supports

       an inference other than the guilt of Appellant and the jury’s finding of guilt was not a

       rational finding.

   3. The aggregate effect of erroneous rulings by the trial court in allowing the jury to

       hear objectionable and inadmissible evidence irreparably harmed Appellant and

       Appellant should be granted a new trial.




                               STATEMENT OF FACTS

       Jessica Byrd testified. Jessica is the aunt of Alicia Moore, the victim in this case.

(16 R.R. 30-31) Deborah Moore is Jessica’s mother. (16 R.R. 30). Jessica is married to

Kenneth Byrd. (16 R.R. 30). In November of 2012, Jessica, Kenneth, Aretha, Deborah,

Alicia, and a great uncle, Michael Wofford, were all living in the same home in

Greenville located at 1900 Gibbons Street. (16 R.R. 31-32). Appellant, Michael Moore,

is Jessica’s uncle. (16 R.R. 34). Alicia was 16 at this time (16 R.R. 38). Jessica last saw

Alicia Thursday night at the residence. (16 R.R. 42). Jessica and Kenneth were moving

into a new home in Greenville and they had left to spend the night at their new residence

that night. (16 R.R. 30-42).

       On November 2, 2012, Jessica got home from work at 7 p.m. and Alicia was not



                                              7
home yet and did not get off the school bus at 7:00. (16 R.R. 42). Alicia did not have a

cell phone at this time and she communicated with her iPad. (16 R.R. 44). Deborah and

Aretha went to the Greenville Police Department to file a missing person’s report. (16

R.R. 50). Jessica called Appellant and let him know and he seemed concerned his

response was “just like everybody else, just keep them updated of what’s going on.” (16

R.R. 54, 104). On November 6, 2012 many family members were at the house and they

had a big prayer on the porch and Appellant was there. (16 R.R. 69). Jessica is not sure

when Appellant arrived, it could have been 5:00 or 6:00 p.m. or it could have been before

that. (16 R.R. 69). She got a text from Appellant saying he was on his way to the home

but she does not have that phone anymore. (16 R.R. 69). Appellant’s demeanor was just

like everyone else that was there. (16 R.R. 70). Michael Wofford’s demeanor was hard

to read because he is an alcoholic. (16 R.R. 70).

       On Wednesday morning, November 6, the family learned that Alicia’s body had

been found. (16 R.R. 70). The Byrd’s new home was less than a 5 minute drive from the

Gibbons home. (16 R.R. 79).

       That Summer—approximately 4 months before her disappearance—Alicia was

having sex with an 50 year old man named Terry Ramsire. (16 R.R. 80). Ramsire is

related to Kenneth Byrd. (16 R.R. 95). Terry Ramsire was charged with sexually

assaulting Alicia, who was 16. (16 R.R. 82-83). Alicia was also viewing pornography at

the home and the family had to block the pay-per-view channel because of a high bill. (16

R.R. 84). She may have been viewing pornography on Jessica’s computer, and the police

took this computer during the investigation. (16 R.R. 84-85). While at home, Alicia was

usually on her iPad, on which she had access to Facebook and other social media sites,




                                            8
and an “app” that allowed her to text with the iPad. (16 R.R. 86). The family did not

monitor her conversations. (16 R.R. 86).

       On the Friday that Alicia disappeared, Deborah, Aretha, Kenneth, and Jessica

were all at work. (16 R.R. 87). Only Mike Wofford was home all day. (16 R.R. 87). He

is an alcoholic who drinks during the day and does not work. (16 R.R. 87-88). At the

time of trail, Mike Wofford was living in Dallas—he moved out of the Gibbons home not

longer after Alicia’s death. (16 R.R. 107). From actions prior to trial, Jessica said Mike

was being evasive about coming to the trial and she suspected Mike knew more about

“what happened that day.” (16 R.R. 109, 114). Jessica watched a video of Alicia getting

of her school bus that day and the time was 3:30 p.m. (16 R.R. 89).

       Jessica testified that on Thursday night, the following people were at the home:

Jessica, Kenneth, Deborah, Aretha, Michael Wofford, and Alicia. (16 R.R. 91). On

Monday November 5th, Jessica went to the Greenville Police Department and suggested

that the police interview Tobias Whetstone as a possible suspect or lead. (16 R.R. 92-

94).

       Appellant Michael Moore lived in Grand Prairie. (16 R.R. 95). Appellant moved

to Grand Prairie to take care of Paul Moore, his father. (16 R.R. 96). Paul was in an

assisted living facility and Appellant got him out of it and they moved into a home

together. (16 R.R. 96). Paul was almost always at the house in Grand Prairie and rarely

accompanied Appellant on the trips to Greenville. (16 R.R. 105). Appellant is gay and

the family knew this. (16 R.R. 102). Appellant drove to Greenville to visit the family

every other weekend. (16 R.R. 97). He would spend time with the family and help out

around the house. (16 R.R. 97). Alicia would be there and she never saw anything




                                             9
unusual between Appellant and Alicia. (16 R.R. 97).

       On Tuesday November 6, Appellant sent Jessica a text that he was coming to

Greenville to be with the family, but she does not remember the time the text was sent.

(16 R.R. 98). Although Jessica showed this to the police, they never bothered to collect

this evidence or photograph it. (16 R.R. 102). Sending a text before he made the drive

was his habit. (16 R.R. 97-98). Jessica knows for sure that Appellant was in Greenville

at the home when the police chief came to ask for dental records but she is not sure what

time he got there. (18 R.R. 21). That night, when Appellant was driving home, his

vehicle had mechanical issues and he came back and borrowed Aretha’s vehicle. (16

R.R. 98). Kenneth had to go to where Appellant was on I-30 and follow him back to

Greenville because of the mechanical issue. (16 R.R. 99). Appellant’s truck was old and

a small two-door, bluish/purple color. (16 R.R. 99).

       Jessica testified that Appellant and Alicia were close. (16 R.R. 114). Appellant

would visit the family in Greenville just about every other weekend. (18 R.R. 22).

Appellant was teaching her how to bake cupcakes. (16 R.R. 114). Alicia once drove

with Appellant to Grand Prairie so that she could spend the night with a relative named

Sheila. (16 R.R. 112-113). Jessica never observed anything inappropriate with the

relationship between Appellant and Alicia. (16 R.R. 112, 115). Alicia never indicated

that Appellant had been inappropriate with her. (16 R.R. 115).

       On recall by the State, State Exhibit No. 72 was introduced through Jessica—a

letter written by Appellant where he says the DNA evidence linking him to Alicia was

planted. (18 R.R. 19). Jessica and the family did not have any friends or relatives in the

Wills point area and she is not aware of Appellant having any either. (18 R.R. 20).




                                            10
Jessica has never seen the trunk that Alicia’s body was found in the home at 1900

Gibbons nor had she seen it at Appellant’s home nor any wicker furniture similar to the

trunk. (18 R.R. 24).

       Aretha Moore, Alicia’s mother, testified on behalf of the State. (16 R.R. 135,

137). Alicia was a junior in high school and she road the bus to school at around 6 or

6:30 a.m. and got out of school after 3:00 p.m. (16 R.R. 139). She and Alicia had moved

in the home at 1900 Gibbons in Greenville in May of 2012. (16 R.R. 139). Mike

Wofford also lived in the house and he did not work and was constantly at the house. (16

R.R. 141). Everyone else living in the house had a job in November of 2012. (16 R.R.

142). Every other adult in the home worked for Wofford would be the only one at home

when Alicia got off the bus at 3:30 p.m. (16 R.R. 175). Aretha knows that Alicia got off

the bus at 3:30 the day she disappeared because the school bus had a video showing her

getting off then. (16 R.R. 175). Aretha believes that Wofford was trying to evade

coming to the trial to testify. (16 R.R. 176).

       Aretha testified that Appellant was considered Alicia’s uncle and he and Alicia

had a good relationship. Appellant “spent time being an uncle…buy things, hang out

together, cook,” with Alicia. (16 R.R. 142).

       On Friday, November 12, the day that Alicia disappeared, her mother Deborah

spent the night with Jessica and Kenneth in their new house so only Aretha, Mike

Wofford, and Alicia were in the home that morning. (16 R.R. 147-149). Aretha and

Deborah ran errands that day and they got to the house after 5:00 p.m. (16 R.R. 151).

Alicia was not home at that time. (16 R.R. 151). Only Mike Wofford was home. (16

R.R. 151-152). When Alicia was not there, she assumed she was at the ACE




                                             11
(afterschool) program. (16 R.R. 152). The family started looking for Alicia when she

was not home by 7: 30 or 8:00 p.m. (16 R.R. 152, 173).

       Ramsire, the man who Alicia was having sex with that Summer, was arrested,

prosecuted, and sent to prison. (16 R.R. 161). Alicia had a school-owned iPad that she

communicated and texted with. (16 R.R. 155). Aretha did not monitor the conversations

that Alicia had on it, she left that to Jessica. (16 R.R. 164).

       Aretha drove a Chevrolet Cobalt. (16 R.R. 170). Jessica and Kenneth also had

vehicles. (16 R.R. 170).

        The State called Michael Wofford to testify. (16 R.R. 178). Mike is 62 and

lived in South Dallas at the time of trial. (16 R.R. 178-179). He is a great-uncle to

Aretha and Jessica and Deborah is his niece. (16 R.R. 179). He was living in the home

at 1900 Gibbons in November of 2012 and had spent the Summer there. (16 R.R. 181).

When Alicia went to the school bus that Friday morning, that was the last time he saw

her. (16 R.R. 194). Mike was home all day—he “just stayed at the house.” (16 R.R.

194). Aretha came to the house that day for lunch for approximately 25 minutes, but then

Mike was home alone for the rest of the day until Aretha and Deborah came home around

5:00 p.m. (16 R.R. 213). Mike never left the house that day and he stayed home when

everyone else was out looking for Alicia. (16 R.R. 215).

       Mike stated that Alicia normally got home around 3:30 and that he would be

alone with Alicia until Deborah got home around 20 to 25 minutes later. (16 R.R. 215-

216). However, this day Deborah didn’t get home until 5:00 p.m. (16 R.R. 216).

       Mike recalled Appellant having mechanical issues with his truck on November 6.

(16 R.R. 221). After Appellant “left the house, his truck ran hot. He called the house and




                                              12
me and Kenneth Byrd went and followed him back to the Gibbons house….” (16 R.R.

221). There was an issue with the radiator and Kenneth and Mike helped Appellant work

on it. (16 R.R. 221).

       On Wednesday when the police arrived and said they had found Alicia, Mike and

others, including Appellant, were sitting on the porch at some time between noon and

3:00 p.m. (16 R.R. 226-227). When the State asked to clarify if he was there, the

following exchange took place:

               “Q: And you were there at the house all day that day?
               A: Yes. All of us were there that day. Didn’t nobody go anywhere.
               Q: If it’s been represented that you were off walking around somewhere,
               is that not …true?
               A: Oh, if I was waking, I went to the - - to the store around the corner…..
               Q: Okay. So it’s possible that you did leave the house during these days- -
               A: It could - - it could have - - yeah. If I did, I didn’t have to walk. There
               was so many cars that one of them could have took me, you know….”
               (16 R.R. 228).
Mike said that Appellant was there and had driven to the Gibbons home early that

morning : “he was there that morning. He came early that morning.” (16 R.R. 228).

Mike said that Appellant had a good relationship with Alicia. (16 R.R. 228). Appellant

would take her to the store and buy cake mixes because he was teaching her how to bake.

(16 R.R. 229). They would just be gone long enough to go to the store and back. (16

R.R. 229). He never noticed anything unusual about Alicia when they would return from

the store. (16 R.R. 229).

       Deborah Moore, mother of Aretha and Jessica, was called to testify by the State.

(16 R.R. 231-232). Appellant is her brother. (16 R.R. 232). In 2012 She lived at 1900

Gibbons in Greenville, Texas. (16 R.R. 234). Every adult living in the house worked


                                             13
except for Mike Wofford. (16 R.R. 236). During the day, after everyone went to work

and Alicia went to school, Mike would be the only one at the house. (16 R.R. 236).

Jessica and Kenneth had lived with her for a couple of months because they were “in

between moving.” (16 R.R. 237). Alicia would hardly speak to Mike because she was

very shy and stayed to herself. (16 R.R. 238). Mike and Alicia never did things together.

(16 R.R. 238).

       Deborah testified that Appellant and Alicia had a “very good relationship.” (16

R.R. 240). “[H]e’s just been there ever since she’s a little girl…they didn’t see each

other much because we were here in Texas. He was in California…but when Alicia was

little, her and her mother would take trips to California to visit.” (16 R.R. 240).

Appellant moved to Texas to take care of their father, Paul Moore, who lived in Grand

Prairie, Texas with Appellant. (16 R.R. 240-241). According to Deborah, Appellant

would come to Greenville and “just sit around and talk and he will do work around my

house or he’ll go visit my cousin.” (16 R.R. 241). He also spent time with Alicia

teaching her to bake, and one or two times they went to the store together. (16 R.R. 241-

242). The two seemed fond of each other and there was nothing that gave her any

concern of anything inappropriate going on. (16 R.R. 242).

       On the morning of November 2, 2012, Deborah was not at home as she normally

would be because she spent the night at Jessica’s new house because “they was expecting

cable put in.” (16 R.R. 242). So on the night of November 1st, going into the 2nd, Jessica,

Kenneth, and Deborah stayed at the new home. (16 R.R. 243). Deborah testified as

follows:

                 “Q: Do you know who was staying at your home on the 2nd, that morning?
                 A: It would have been her [Alicia] and Uncle Michael [Mike Wofford].


                                             14
               Q: Okay. And was Aretha also staying there?
               A: Yes - - ….but she probably - - I think she had left for work.”
               (16 R.R. 245).
Deborah was suspicious about Mike Wofford being involved with Alicia’s disappearance

because “he would have been the last one that saw her when she got home from school.”

(16 R.R. 254). Deborah questioned Mike about this and he said Alicia never made it to

the house that day, but even after this she was still suspicious of Mike. (16 R.R. 254). If

Alicia did arrive home that day, she would have been alone with Mike for about 45

minutes. (16 R.R. 254, 263). She did not understand why Mike “couldn’t clarify that she

hadn’t come home…because the school bus stop is just a short distance from my house,

and he said he never did see her.” (16 R.R. 256).

       Aretha had a Chevy Cobalt and she kept the keys at the house when she went to

sleep. (16 R.R. 264). Deborah would go to bed early and Aretha would go to be around

midnight. (16 R.R. 265).

       Deborah was not aware of any plans Alicia had for that Friday when she

disappeared and she did not have permission to go anywhere. (16 R.R. 247). Deborah

does not recall what weekend Appellant was at the home after Alicia went missing, but

his behavior seemed no different than usual. (16 R.R. 252). One time Alicia rode with

Appellant to Grand Prairie to see a cousin Sheila that lived there. (16 R.R. 253).

       Deborah and Jessica went to the Greenville Police Department about Alicia’s

disappearance and Deborah asked the police to look into Tobias Whetstone because she

believed him to be a suspect based upon some information that was given to her. (16

R.R. 265-266). The police never came and removed items from her house for testing or

analysis. (16 R.R. 267). The police did not collect any DNA swabs for testing from the



                                            15
home or from Aretha’s vehicle. (16 R.R. 267). A computer was taken from the house

but the police never informed her if anything was found on it. (16 R.R. 269).

          The police showed Deborah a photo of the black whicker trunk that Alicia’s body

was found in and she testified she did not recognize the trunk and that it did not come

from her home. (16 R.R. 261). She never saw Appellant with the trunk either. (16 R.R.

261). Deborah has been to Appellant’s home in Grand Prairie and she did not see the

trunk there. (16 R.R. 262). She never saw Appellant spray painting any objects around

her home at the time of Alicia’s disappearance. (16 R.R. 262).

          Texas Ranger Michael Adcock testified on behalf of the State. (17 R.R. 7). He

was told that a Texas Department of Transportation (hereinafter “TXDOT”) workers had

discovered a “wicker-style trunk, and inside that trunk was the nude body of a young

black female and it appeared that she had been strangled.” (17 R.R. 21-23). The body

was found approximately 3 miles north of Wills Point on FM 47 near the guardrails close

to a small bridge on the side of the road. (17 R.R. 21). The trunk had a “two-piece hasp

on it. One of the [TXDOT] worker removed a…key ring that was holding the hasp

together closed….The other worker used a stick and opened the lid of the trunk and

discovered the female’s body inside.” (17 R.R. 23).

          Ranger Adcock testified that the body had ligature marks around her neck and

throat area and bruises and abrasions. (17 R.R. 30, 33). Ranger Adcock took steps to

preserve as much evidence as he could. (17 R.R. 31-32). The body was in a stage of rigor

mortis and appeared to be in the “first stage of coming out of rigor mortis….” (17 R.R.

32-34).

          When the body was removed from the trunk, the words “nigger whore” were




                                             16
spray painted in the bottom of the trunk in black. (17 R.R. 35-36). That spray paint color

appeared consistent with the color of the outside of the trunk. (17 R.R. 36). On the lid of

the trunk a backwards swastika spray-painted. (17 R.R. 37). The Ranger thought this

could indicate a hate crime but the swastika being backwards caused him to doubt that.

(17 R.R. 102). The Ranger believes that the trunk had recently been painted with two

different kinds of spray paint—a flat black and a glossy black. (17 R.R. 101). Some

overspray was detected on the silver hasp. (17 R.R. 101). The trunk was not an ordinary

household item and had some pretty distinctive features—including the latch and the gold

paisley design in the interior. (17 R.R. 104). Neither Deborah, Jessica or Aretha

recognized the trunk. (17 R.R. 105). No evidence was found during the investigation

that the trunk had been purchased by the family members, Appellant, nor anyone else.

(17 R.R. 107). The trunk was sent to the Lab for analysis and no fingerprints were

located. (17 R.R. 109).

       An autopsy was ordered and the body was sent to the Southwestern Institute of

Forensic Science (hereinafter “SWIFS”) in Dallas. (17 R.R. 42). Ranger Adcock

observed trauma to both the anus and the vagina. (17 R.R. 43). The M.E. advised that

the death would be ruled “a homicide, homicidal violence due to strangulation.” (17 R.R.

43).

       The Ranger believed that Alicia was using several apps on the iPad to

communicate, including TextNow, MocoSpace, Facebook, and others. (17 R.R. 49).

Tobias Whetstone was reported to be Alicia’s boyfriend, so he was contacted and

specimen of his DNA was obtained. (17 R.R. 52) Terry Ramsire, who was in jail for

sexually assaulting Alicia, was interviewed as part of the investigation. (17 R.R. 53,




                                            17
172). Ramsire was being prosecuted for this and Alicia was the key witness. (17 R.R.

171). Ramsire was related to Kenneth Byrd. (17 R.R. 172). “We had an individual that

contacted Channel 8 news out of Dallas and advised that he had killed Alicia and that he

was paid $5,000 by…the mother of Alicia to kill her. We attempted to set up a meet with

him….He didn’t show up…. (17 R.R. 54). The Ranger ruled this out because of “the

way that he worded the e-mail” and there was “no motive for her mother to pay $5,000 to

have her killed….” (17 R.R. 54). It was also reported that two individuals “kidnapped

Alicia, took her to a house there in Greenville, sexually assaulted her, knocked her teeth

out and strangled her and then dumped her body,” but this lead was ruled out as well. (17

R.R. 55). These men were Omes and Adrian Gray. (17 R.R. 172). Information obtained

through Alicia’s social media sites indicated that “she might have gone to Paris”, Texas.

(17 R.R. 55).

       Two and a half month later, Ranger Adcock got what he believed to be a break in

the case when the DPS Lab reported to have a DNA match to Appellant. (17 R.R. 56-59).

       Appellant’s Phone Records

       The Ranger subpoenaed Appellant’s phone records and the Court allowed the

Ranger to testify about them over objection from Appellant. (17 R.R. 81; S.E. No. 27).

The Ranger testified that these records do not necessarily incriminate Appellant, they

merely indicate periods of phone inactivity. (17 R.R. 83). The phone records do not

contain text messages because the records indicate that if the records are not requested

within 60 days of the texts the messages will be overwritten or lost. (17 R.R. 174). The

records showed no indication that Appellant was calling Alicia. (17 R.R. 175-176). The

ranger did a cell phone tower investigation to see what cell towers Appellant’s phone was




                                            18
pinging off of during this time. (17 R.R. 176). Appellant’s phone never pinged off of

any location in Van Zandt Count. (17 R.R. 176). There is nothing in Appellant’s phone

records to indicate he was ever in Wills Point during the time of Alicia’s disappearance.

(18 R.R. 159). If Appellant had used his phone in Van Zandt County, there are cell

phone towers there that it would have pinged off of. (17 R.R. 176). Furthermore, on

November 2, 2012, the date that Alicia disappeared, Appellant’s phone never pinged off

any towers in the Greenville area. (17 R.R. 177). Appellant’s phone only pinged off

towered in the Grand Prairie and Irving area that day. (17 R.R. 177). The Ranger

believes that Appellant picked up Alicia on November 2 and had her in his custody until

her body was found on November 6. (17 R.R. 177). The phone records show that

Appellant was using his phone on November 2, 3, 4, 5 and 6th. (17 R.R. 159, 178).

Appellant made approximately 8 calls on the 3rd and there were several incoming calls

made to his phone that day too. (17 R.R. 179). On the 4th Appellant made approximately

10 outgoing calls and had about 5 incoming calls to his phone. (17 R.R. 179). On

November 5th Appellant made approximately 11 calls and had 2 incoming calls. (17 R.R.

179). On November 6th, the phone pinged off the Greenville cell tower at 12:36, but

never on any Van Zandt county tower. (18 R.R. 159).

       The drive from Grand Prairie where Appellant lived to Greenville takes

approximately an hour and fifteen minutes. (17 R.R. 136). Interstate 30 takes you from

Grand Prairie to Greenville. (17 R.R. 136). At no point does I-30 pass through Wills

Point, near where the body was found. (17 R.R. 137).

       Search of Appellant’s Home

       A search warrant was run on Appellant’s home at 417 Oakview Street in Grand




                                            19
Prairie and his truck. (17 R.R. 119-131). The Ranger was looking for blood in the form

of splattered droplets, smears and pools that could have been evidence of a bleeding

injury or some type of violent trauma—none was found. (17 R.R. 125). He was looking

for any type of bludgeons, clubs or any type of weapon that could have been used in

Alicia’s death. (17 R.R. 125). Two crowbars were collected and submitted to the lab but

no link was made to Alicia. (17 R.R. 126). The Ranger was looking for items that could

have caused the ligature marks on Alicia’s body, including ties, bindings, ligatures, and

ropes. (17 R.R. 127). Some twine and scissors were found and sent to the lab for

analysis and no link was made to Alicia. (17 R.R. 127-128). The Ranger was also

looking for computers, disks, DVDs and a Gateway tower computer was seized. (17 R.R.

129). The Ranger was looking for evidence of communications between Alicia and

Appellant and the computer was sent off for analysis and the Ranger was not aware of

anything was located. (17 R.R. 129). During the search warrant execution, the Ranger

was looking for clothing and items, including the iPad and orange backpack she had

when exiting the bus, that belonged to Alicia—none were found. (17 R.R. 129-131, 138).

The Ranger was looking for shavers, clippers, scissors, knives, rags, washcloths or towels

capable of shaving and cleaning the body postmortem. (17 R.R. 139). Scissors and nail

clippers were collected but the lab found no link to Alicia. (17 R.R. 139). The Ranger’s

was looking for semi-gloss or flat black spray paint that could have been used to paint the

recently painted black whicker trunk. (17 R.R. 140). Four cans of spray paint were

seized as evidence; however, the lab determined that these were not used to paint the

whicker trunk. (17 R.R. 141). The Ranger was looking for signs of paint or overspray

that could have cause some markings or transfer on any surfaces indicating that the




                                            20
wicker trunk was actually at or sprayed at the residence or in Appellant’s vehicle. (17

R.R. 141). Nothing was located that linked Alicia’s death to Appellant. (17 R.R. 141-

142). Black markings in the bed or Appellant’s truck were ruled out by the lab. (17 R.R.

142). Appellant’s vehicle was small blue Nissan truck. (17 R.R. 143). During the search

of the home, the Ranger was looking for a similar metal hasp like the one attached to the

trunk or packing or receipts showing that Appellant may have purchased this item—none

was found. (17 R.R. 144). The Ranger searched for any kind of paper trail linking

Appellant to this crime—none was found—no receipts, credit card information, etc. (17

R.R. 144). It is possible that the trunk could have been part of a wicker furniture set, but

no similar items were located during the search. (17 R.R. 145-146). Because the crime

was of a sexual nature, the Ranger was also looking for bedding, pillowcases, cushions,

and bedding, and several of these items were collected and sent to the lab for analysis;

however, no DNA nor blood or any other evidence was found to link these items to

Alicia. (17 R.R. 146-148). No blood evidence was found belonging to Alicia or linking

Appellant to Alicia’s death. (17 R.R. 149). No personal hygiene items—toothbrush,

hairbrush, makeup, etc.—were found in Appellant’s home. (17 R.R. 149).

       The Ranger believes that at some point Appellant transported Alicia in his truck

to Wills Point where her body was found. (17 R.R. 150). Only one vehicle was located at

Appellant’s house during the search and the Ranger found nothing in his investigation to

lead him to believe Appellant had access to another vehicle. (17 R.R. 150). The interior

of the truck was searched but nothing was found linking Appellant to Alicia. (17 R.R.

151). The police may have checked videos from businesses in Wills Point to see if the

Appellant could be seen in any of them but nothing showing Appellant was located. (17




                                             21
R.R. 154).

       The Ranger is not aware of any extensive search like the one that was conducted

on Appellant’s home being conducted on the home at 1900 Gibbons. (17 R.R. 157). The

Ranger has no knowledge of anyone searching the Gibbons home for any spray paint,

weapons, ligatures, blood or DNA evidence, silver metal hasps, receipts to the trunk or

hasp, bedding and sheets. (17 R.R. 157-158). Alicia’s bed was not searched to see if

there were signs of any sexual activity in it. (17 R.R. 189).

       Ranger Adcock testified that the Greenville Police interviewed a boy named

Tobias Whetstone who was reported to be dating Alicia and who was initially a suspect.

(17 R.R. 160) He was arrested during the investigation on an unrelated charge and he

made the statement that the “only reason he was being arrested is because that skanky ass

bitch is dead.” (17 R.R. 160).

       Additional suspects were Omes Gray and Adrian Gray. (17 R.R. 163). These are

the men whom were reported to have “kidnapped Alicia, took her to a house there in

Greenville, sexually assaulted her, knocked her teeth out and strangled her and then

dumped her body,” but this lead was ruled out as well. (17 R.R. 55, 172-173). Multiple

people had given information to Greenville PD that Omes and Adrian Gray were

involved with Alicia’s death. (17 R.R. 163). These men were linked to a white Lincoln

that was located in Greenville that was at a residence in close proximity to where Alicia

lived. (17 R.R. 164-166). The white Lincoln was also of importance because “we

received information from somebody over here in Van Zandt County that they observed a

white Lincoln in the area of where the whicker trunk was found.” (17 R.R. 165). The

witness also stated that the white Lincoln had pop-up headlights. (17 R.R. 166). The




                                             22
Lincoln in Greenville that was searched had this type of headlights. (17 R.R. 166). There

was enough probable cause for a search warrant to be issued for this Lincoln. (17 R.R.

164). Items were removed during the search and the FBI handled them but the Ranger is

aware of no findings being issued. (17 R.R. 165). The Ranger was told that they did not

find anything but he did not verify this for himself. (17 R.R. 167).

       The Ranger testified that a man named Dee Williams contacted WFAA news in

Dallas through their Facebook account and claimed to have killed Alicia. (17 R.R. 167).

Dee Williams’ Facebook page had a photograph of himself on the page. (17 R.R. 168).

The Ranger is not aware of any attempts by law enforcement to get records from

Facebook about the identity of Dee Williams or to trace the IP address of the computer

that Dee Williams was using in order to ascertain his identity. (17 R.R. 169, 188).

       A forensic examination of the 2 computers taken from 1900 Gibbons showed no

link to Appellant. (17 R.R. 170). The police had no eyewitnesses claiming to have seen

Appellant with Alicia during the time of her disappearance. (17 R.R. 191). There were

no leads coming in regarding Appellant. (17 R.R. 191).

       L.P. Phillips, a reporter with CBS radio, KRLD, who interviewed Appellant in

jail, testified on behalf of the State. (18 R.R. 28). In the interview, Appellant denied

committing the offense charged. (S.E. No. 76). Appellant told Phillips that Appellant

never left his home on November 2 because his truck was broken down that Friday. (S.E.

No. 76).

       Amber Moss, a forensic scientist who works at the DPS Lab in Garland, testified

on behalf of the State. (18 R.R. 70). She received and tested a sexual assault kit

(hereinafter “SANE kit”) taken from the body of Alicia by SWIFS and a testing of the




                                             23
vaginal swabs showed that the “DNA profile from the sperm fraction was consistent with

a mixture from the victim and the suspect [Appellant].” (18 R.R. 78-96). She did not

receive nor test samples from Omes and Adrian Gray for testing. (18 R.R. 109). For the

anal swabs, “no DNA foreign to the victim was detected….” (18 R.R. 99). Moss

testified that “the debris swabs from…around the nipples from the victim we obtained a

partial DNA profile from that sample that was consistent with the mixture from the

victim and a second contributor, but due to that second contributor being so minor, we’re

not able to make any comparisons to that second contributor.” (18 R.R. 101).

Contamination of the tested samples is possible, and “for it to…have been contaminated,

it would have had to been prior to us receiving it at the laboratory, so—because it was

properly sealed when we received it at the laboratory. And in this instance, spermatozoa

were observed on the sample, so it would have had to have been contaminated with

semen from that individual. (18 R.R. 104).

               The SWIFS sexual assault kit also contained fingernail clippings from

Alicia. (18 R.R. 110-111). There was no DNA foreign to Alicia on her fingernails. (18

R.R. 112). Appellant’s blue Nissan truck was taken to the laboratory and placed in a

vehicle bay and examined. (18 R.R. 114). There was no semen or blood found during

the search of the vehicle. (18 R.R. 114). Furthermore, all items submitted for testing

from Appellant’s home were negative for the presence of Alicia’s DNA (18 R.R. 115-

117).

        Appellant called Shenae Stephenson to the witness stand. (18 R.R. 125).

Shenae lives in Greenville, Texas. (18 R.R. 125). On the afternoon of November 2,

2012, she was driving her car on Lee street getting ready to turn on Walnut. (18 R.R.




                                             24
126). She was behind a school bus and the bus stopped. (18 R.R. 128). On the opposite

side of the bus she notice a 4-door black truck with dark tint on the back windows and a

bed cover coming from the opposite direction. (18 R.R. 128-129). Ranger Adcock

testified that Appellant’s pickup was a blue Nissan 2 door, does not have tint on the back

window, and does not have a black bed covering. (18 R.R. 156). The bus let off a girl

and as soon as she got off she observed the black truck make a quick turn and begin to

follow the girl, really slow, and it looked suspicious, so “what I did, I drove around and

made another quick turn, but I didn’t see her.” (18 R.R. 128-132). Before she lost sight

of the girl, she got a good look at the girl and the driver. (18 R.R. 129, 131). The driver

of the truck was a Hispanic male with black hair that was parted on the side. (18 R.R.

132). When asked if she saw Appellant, in the truck, she said “I didn’t see a black man; I

seen a Hispanic person.” (18 R.R. 133). The truck was a 2010 or 2012 GMC truck, a

newer model. (18 R.R. 134). She does not know if the girl got in the truck. (18 R.R.

130-134). Later, Shenae was watching the news and saw the girl’s picture on the

news—she was certain it was the same girl she had seen get off the bus. (18 R.R. 135-

136). On November 7, 2012, she went to the police station to report that she had seen the

girl and Hispanic male that was following her. (18 R.R. 135). She never heard back

from the police and never shown any photo-lineup or asked to identify any vehicles.(18

R.R. 136).




                                             25
                             SUMMARY OF THE ARGUMENT


Issue Number 1

        The evidence was legally insufficient to support Appellant’s conviction for Capital

Murder. Based upon the evidence presented to the jury, no rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt—specifically, that

Appellant intentionally and knowingly caused the death of Alicia Moore by strangulation and

that the Appellant was then and there in the course of committing or attempting to commit

the offense of aggravated sexual assault of Alicia Moore. There was no evidence that

Appellant strangled and murdered Alicia Moore. At the very most, the State proved that

Appellant committed the offense of sexual assault. Therefore, the case should be remanded to

the trial court for a new trial.


Issue Number 2

        Because the State’s capital murder case was a circumstantial evidence case, and

because Appellant had no motive to murder Alicia, the evidence presented supports an

inference other than the guilt of Appellant and the jury’s finding of guilt was not a rational

finding.



Issue Number 3

        The aggregate effect of erroneous rulings by the trial court in allowing the jury to

hear objectionable and inadmissible evidence irreparably harmed Appellant and Appellant

should be granted a new trial.




                                               26
                                    ISSUE NUMBER 1

        The evidence was legally insufficient to support Appellant’s conviction for Capital

Murder. Based upon the evidence presented to the jury, no rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt—specifically, that

Appellant intentionally and knowingly caused the death of Alicia Moore by strangulation and

that the Appellant was then and there in the course of committing or attempting to commit

the offense of aggravated sexual assault of Alicia Moore. There was no evidence that

Appellant strangled and murdered Alicia Moore. At the very most, the State proved that

Appellant committed the offense of sexual assault. Therefore, the case should be remanded to

the trial court for a new trial.



                                     Legal Sufficiency

        The Texas Court of Appeals has determined that only one standard should be used

to evaluate the sufficiency of the evidence in a criminal case: legal sufficiency. Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality opinion). The standard of

review for legal sufficiency is limited to determining whether, after viewing the evidence

in the light most favorable to the verdict, a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 318-19, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). In reviewing the sufficiency of the

evidence, we consider all of the evidence, whether or not properly admitted. Lockhart v.

Nelson, 488 U.S. 33, 41-42, 102 L. Ed. 2d 265, 109 S. Ct. 285 (1988); see also Johnson

v. State, 967 S.W.2d 410, 411-12 (Tex. Crim. App. 1998). The Court of Appeals does

not engage in a second evaluation of the evidence, but only ensures that the jury reached

a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).


                                             27
                                       ARGUMENT

       To prove the offense of capital murder as alleged in this case, the State needed to

prove beyond a reasonable doubt that Appellant intentionally and knowingly caused the

death of Alicia Moore by strangulation and that the Appellant was then and there in the

course of committing or attempting to commit the offense of aggravated sexual assault of

Alicia Moore. (C.R. 9) (also see TEX. PEN. CODE § 19.03). In viewing the evidence in a

light most favorable to the verdict, there is insufficient evidence to support the jury’s

guilty verdict and a rational trier of fact could not have made such a finding based upon

the evidence heard at trial. The State failed to prove a sufficient link to Appellant and the

murder of Alicia. At most, the State proved the that Appellant committed the offense of

sexual assault (as opposed to aggravated sexual assault), based upon the DNA evidence

introduced at trial, and even that is dubious based upon the potential for contamination

that the evidence was exposed to, as will be discussed later.

       The primary reason the evidence was legally insufficient to support the jury’s

verdict was the complete lack of evidence presented at trial. There was no eyewitness

who claimed to see Appellant with Alicia during the time of her disappearance and the

police did not have a single call come in alleging Appellant was a suspect. (17 R.R. 191).

The State’s theory of the case is that Appellant picked Alicia up when she got off the bus

on November 2, 2012, and held her in his custody, violently murdered her, and dumped

her body off on the side of the road just north of Wills Point in Van Zandt County;

however, the State presented no evidence to support this. (17 R.R. 150). No evidence in

the trial ever placed Appellant in Wills Point or even Van Zandt county for that matter—

no phone records, cell tower evidence, no surveillance footage, or receipts, etc.


                                             28
Furthermore, Appellant denies his involvement in Alicia’s death, as he did in the

interview with CBS new reporter LP. Phillips. (18 R.R. 60, S.E. No. 76). Appellant told

Phillips that Appellant never even left his home on November 2 because his truck was

broken down that Friday. (S.E. No. 76). As will be discussed later, Appellant’s phone

records and cell tower evidence supports Appellant’s claim.

       The Lack of Evidence Found During the Search of Appellant’s Home and Vehicle

       If Appellant had abducted Alicia, held her against her will, and violently

murdered her, there would have been some evidence of this in his home and truck. A

search warrant was run on Appellant’s home. (17 R.R. 119-131). No blood or DNA

belonging to Alicia was located in the extensive search. (17 R.R. 125). The body had

ligature marks around her neck and throat area and numerous bruises and abrasions. (17

R.R. 30, 33). In a violent assault and murder such as this, one would expect to find blood

in the form of splattered droplets, smears and/or pools that would evidence a bleeding

injury or some type of violent trauma—none was found. (17 R.R. 125, 149). No

weapons were found that had Alicia’s DNA or blood on them. (17 R.R. 125-126). Alicia

was strangled based upon the M.E.’s testimony and the ligature marks on her body and

the Ranger searched for items that could have caused the ligature wounds on Alicia’s

body, including ties, bindings, ligatures, and ropes; however, nothing was found that

could be linked to Alicia. (17 R.R. 127-128). No evidence was found in the search of

Appellant’s seized computer and cell phone that he was communicating with Alicia. (17

R.R. 129). Furthermore, nothing was found in the computers that were taken from

Alicia’s home showing the two were communicating. (17 R.R. 170). Considering the

distance between where Appellant lived and Greenville, it would have been highly




                                           29
unlikely that they could arrange a meeting like this without the aid of technology;

however, the record was void of any text messages, phone calls, or computer

communication between the two. None of Alicia’s clothing or personal items, such as

her iPad, orange backpack, or hygiene items such as toothbrush, make-up or combs were

found. (17 R.R. 129-131, 138, 149). The trunk she was found in had recently been

painted with two different kinds of spray paint—a flat black and a glossy black—so the

Ranger was looking for semi-gloss or flat black spray paint that could have been used.

(17 R.R. 101, 140). Four cans of spray paint were seized as evidence and tested and the

lab determined that these were not used to paint the whicker trunk. (17 R.R. 141;

Defendant’s Ex. No. 2). Additionally, there were no signs of painting or overspray to

indicate that the trunk was spray painted at the residence or in Appellant’s vehicle. (17

R.R. 141). No metal hasp matching the one attached to the trunk or packaging or receipts

showing that Appellant may have purchased the hasp was found. (17 R.R. 144).

Considering the distance between Appellant’s home, Wills Point, and Greenville, there

should have been some kind of transaction history where Appellant purchased gas or

other items used in commission of the crime; however, no paper trail of any kind was

found to link Appellant to this crime—no receipts, credit card information, etc. (17 R.R.

144). The trunk did not match any other piece of furniture located during the search, and

the State failed to produce any evidence linking Appellant to the trunk that Alicia’s body

was found in. (17 R.R. 145-146). Multiple family members were questioned at trial and

not one testified that they had seen Appellant with the trunk or had seen the trunk at his

home. Because the crime was of a sexual nature, the Ranger was also looking for

bedding, pillowcases and cushions, and several of these items were collected and sent to




                                             30
the lab for analysis; however, no DNA nor blood or any other evidence was found to link

these items to Alicia. (17 R.R. 146-148). Appellant’s blue Nissan truck was taken to the

laboratory and placed in a vehicle bay and examined. (18 R.R. 114). There was no

semen or blood found during the search of the vehicle. (18 R.R. 114). There was no

evidence presented that Appellant had sex with Alicia in the home or in truck. Despite an

extensive search of Appellant’s home, nothing was located that linked Alicia’s death to

Appellant. (17 R.R. 141-142).

       Cell Phone and Cell Tower Evidence

       Very often, the State obtains cell phone information and cell tower records that

prove a suspect was in an incriminating location or was communicating with the victim

prior to their death. The jury heard no such evidence in this case. The State introduced

Appellant’s MetroPCS cell phone records but the Ranger even testified that this evidence

was not incriminatory but merely indicated periods of phone inactivity on the dates she

went missing and the date that she was found. (17 R.R. 81-83; S.E. No. 27). The phone

records in no way link Appellant to the murder of Alicia; however, they do provide

further evidence that Appellant did not commit this crime—evidence that was wrongfully

ignored by the jury. The records showed no indication that Appellant was calling Alicia.

(17 R.R. 175-176). The records suggest that Appellant was never in Van Zandt county

where the body was found because the phone never pinged off of any tower located in

Van Zandt County, much less the tower closest to Wills Point. (17 R.R. 159, 176). If

Appellant had used his phone in Van Zandt County, there are cell phone towers there that

it would have pinged off of. (17 R.R. 176). Furthermore, on November 2, 2012, the date

that Alicia disappeared, Appellant’s phone never pinged off any towers in the Greenville




                                           31
area. (17 R.R. 177). If Appellant was not even in Greenville on the day Alicia

disappeared, as the phone records suggest, then it would have been impossible for him to

pick her up when she got off the bus. Appellant’s phone only pinged off towered in the

Grand Prairie and Irving area the day she disappeared, which supports his statement that

he never left Grand Prairie and had nothing to do with this crime. (17 R.R. 177; S.E. No.

27). This discredits the Ranger’s theory that Appellant picked up Alicia on November 2

and had her in his custody until her body was found on November 6. (17 R.R. 177). The

theory is further discredited because on November 6th, the phone pinged off the

Greenville cell tower at 12:36, but never on any Van Zandt county tower. (18 R.R. 159).

This supports Appellant’s argument that it was not him that dropped Alicia’s body off in

Van Zandt County. This evidence casts more than reasonable doubt upon the State’s

allegations but the jury chose to wrongfully ignore this evidence as shown by their

verdict. Additionally, the phone records showed Appellant actively used his phone by

making and receiving calls during the time between Alicia’s disappearance and her

discovery on November 6. (17 R.R. 159-179). The phone records show that Appellant

was using his phone on November 2, 3, 4, 5 and 6th. (17 R.R. 159, 178). On the 3rd

Appellant made 8 outgoing calls and had several incoming calls; on the 4th he made 10

outgoing calls and had 5 incoming; on November 5th he made 11 outgoing calls and had 2

incoming. (17 R.R. 178-179). This active phone usage is not consistent with a person

that has abducted someone, is secreting them, and brutally assaulting and raping them,

and then disposing of their body. This phone usage reflects normal, everyday activity on

the part of Appellant and provided reasonable doubt that made the evdidence legally

insufficient and should have prevented the jury from returning a verdict of guilty to




                                            32
capital murder.

       The Loving Relationship between Alicia and Appellant

       Appellant loved Alicia and wanted to help her, which is totally inconsistent with

the actions of the person that committed this horrible crime. Appellant is a loving man

who even moved from California to Texas in order to get his father out of an assisted

living facility and care for him. (16 R.R. 96). Appellant was not exhibiting any strange

behavior during the time of Alicia’s disappearance, which you would expect to see from

someone who had done this kind of crime. When Appellant arrived to comfort the family

during the time of Alicia’s disappearance, Jessica testified his demeanor was just like

everyone else that was there. (16 R.R. 70). Jessica stated that Appellant and Alicia were

close and she never saw anything inappropriate between Appellant and Alicia. (16 R.R.

97, 114). Jessica testified that Alicia once drove with Appellant to Grand Prairie so she

could visit another relative and Alicia never reported that Appellant was inappropriate.

(16 R.R. 112-113, 115). Deborah confirmed this as well. (16 R.R. 252-253). Aretha,

Alicia’s mother Aretha testified that Appellant was considered Alicia’s uncle and he and

Alicia had a good relationship. (16 R.R. 142). Mike Wofford also testified that

Appellant and Alicia had a good relationship and that when they would go to the store to

shop he never noticed anything unusual about Alicia when they returned. (16 R.R. 229).

Deborah testified that the two had a “very good relationship,” and that they seemed fond

of each other and there was nothing that gave her any concern of anything inappropriate

going on. (16 R.R. 240, 242). There was no testimony from any of the family members

to show that Appellant was capable of such a cruel act, and this evidence should have

provided further reasonable doubt to the jury. The only evidence the jury heard regarding




                                            33
the relationship between Appellant and Alicia was that it was caring and loving one, and

not in anyway inappropriate. If Appellant truly had committed capital murder, surely one

of the family members would have seen some kind of warning sign, even if only in

hindsight. But there was nothing at trial—the only suspicions regarding any family

member was towards Mike Wofford, as will be discussed later. Furthermore, the jury

turned a blind eye to the fact that Appellant is gay and that the entire family was aware of

this. (16 R.R. 102). This horrible act was not the act of a gay man, but rather this was a

killer that was attracted to women.

       Appellant’s Lack of Ties to Location where Alicia’s Body was Found

       Appellant had no link to Wills Point and no friends or relatives living there, so he

would have been completely unfamiliar with the area and would have no reason to go

there. (18 R.R. 20). It is hard to imagine that anyone would pick an unfamiliar setting

such as this to dispose of a body, because of the risk of getting lost and getting caught.

Furthermore, Appellant was having mechanical issues with his truck during this time, and

it can be reasonably assumed that the truck was in no condition to make the kind of drive

that would have been required to abduct Alicia from Greenville, return home with her to

Grand Prairie, then drive all the way to Wills Point, and then back to Greenville.

Appellant’s statement to L.P. Phillips was that his truck was broken down on November

2 and he never left the house. (S.E. 27). Mike Wofford confirmed that Appellant was

having mechanical issues with the truck on November 6. (16 R.R. 221). He testified that

after Appellant “left the house, his truck ran hot. He called the house and me and

Kenneth Byrd went and followed him back to the Gibbons house….” (16 R.R. 221).

There was an issue with the radiator and Kenneth and Mike helped Appellant work on it.




                                             34
(16 R.R. 221). And finally, the State searched for video footage that might show

Appellant in the Wills Point area, but found nothing. (17 R.R. 154).

       Suspect Mike Wofford

       The jury failed to consider the most obvious suspect for Alicia’s murder, Mike

Wofford (hereinafter “Mike”), and the evidence submitted to them on him alone should

have been enough reasonable doubt for a rational jury to have acquitted Appellant—and

for this reason the evidence was legally insufficient for capital murder. Whereas the

evidence showed that Appellant was close with Alicia and wanted to help her self-esteem

by teaching her to bake, the evidence was that Mike and Alicia had no relationship,

despite them living in the same house. Deborah and Jessica testified that Mike and Alicia

never did things together or spent time with each other. (16 R.R. 110, 238). Jessica

testified that Mike’s demeanor was hard to read because he is an alcoholic who drinks

during the day. (16 R.R. 70, 87-88). It was well established that on the day of Alicia’s

disappearance, Mike was the only adult in the house not working and that he would have

been home all day. (16 R.R. 87, 141, 194). Mike was the only one home when Alicia

got off the bus at 3:30 p.m. (16 R.R. 175). The family members did not trust Mike, even

at the time of trial. Jessica testified that she suspected Mike knew more about “what

happened that day.” (16 R.R. 109, 114). It was apparent that Mike had something to

hide because Aretha testified that she believed Mike was trying to evade coming to trial

to testify. (16 R.R. 176). Mike’s behavior seemed strange as well during the time of

Alicia’s disappearance. Mike himself stated that while the other family members in the

home were out looking for her, he just stayed at home. (16 R.R. 215). Additionally,

Mike was caught in a lie about his whereabouts on November 6th, the day that Alicia’s




                                            35
body was found:

               “Q: And you were there at the house all day that day?
               A: Yes. All of us were there that day. Didn’t nobody go anywhere.
               Q: If it’s been represented that you were off walking around somewhere,
               is that not …true?
               A: Oh, if I was walking, I went to the - - to the store around the corner…..
               Q: Okay. So it’s possible that you did leave the house during these days- -
               A: It could - - it could have - - yeah. If I did, I didn’t have to walk. There
               was so many cars that one of them could have took me, you know….”
               (16 R.R. 228).
Mike further acknowledge that typically, when Alicia got off the bus at 3:30, he would be

alone with her for at least 20 to 25 minutes until Deborah got home at her usual time. (16

R.R. 215-216). It was established at trial that on the day Alicia disappeared, Deborah

didn’t get home until 5:00 p.m., giving Mike approximately 45 minutes alone with Alicia.

(16 R.R. 216). Another unusual occurrence that may have emboldened Mike was that

Kenneth and Jessica had just moved out of the 1900 Gibbons home and into a new place

the night before Alicia’s disappearance. (16 R.R. 78-79, 16 R.R. 242). As a result of

this, Deborah spent the night with Jessica at her new place the night of November 1,

2012. (16 R.R. 242-243). Less people in the house along with additional time before

anyone came home that afternoon provided Mike with the perfect opportunity to abduct

and murder Alicia. Even Deborah was suspicious of Mike’s involvement because “he

would have been the last one that saw her when she got home from school.” (16 R.R.

254). Deborah even questioned Mike about this and he said Alicia never made it to the

house that day, but even after this she was still suspicious of Mike. (16 R.R. 254).

Deborah confirmed that if Alicia did arrive home that day, she would have been alone

with Mike for about 45 minutes. (16 R.R. 254 ,263). She did not understand why Mike


                                             36
“couldn’t clarify that [Alicia] hadn’t come home…because the school bus stop is just a

short distance from my house, and he said he never did see her.” (16 R.R. 256). At trial

the State argued that Mike could not have disposed of Alicia’s body because he did not

have a car. However, it was established that Aretha had a Chevy Cobalt and she kept the

car and the keys at the house when she went to sleep. (16 R.R. 264). Deborah would go

to bed early and Aretha would go to be around midnight. (16 R.R. 265). Mike could

have easily abducted Alicia when she got off the bus, secreted her body somewhere

nearby, murdered her, and then, once Aretha and Deborah were asleep, taken the keys to

the Chevy Cobalt and disposed of Alicia’s body. It is clear from the evidence that Mike

not only knew more about Alicia’s disappearance, but that he had the best opportunity to

have committed this crime. For the jury to find Appellant guilty after hearing this

evidence regarding Mike is unfathomable, and is the sign of an irrational jury and

therefore the evidence in this case was legally insufficient for Appellant to be guilty of

capital murder.

       Additional Suspects

       Just as the police and the jury failed to consider Mike Wofford, they failed to

consider other suspects in Alicia’s death as well. Once the DNA match came back on

Appellant, the police wrongfully narrowed their search to Appellant as their only suspect.

(17 R.R. 56-59). The police and jury failed to consider the possibility that Appellant was

set up or that he was only guilty of having consensual sex with Alicia, and that it was

another suspect that actually killed her. Appellant has denied all wrongdoing in this case

and has expressed his concern to the family that he was framed. (18 R.R. 19; S.E. No.

72). There was no evidence at trial that the police investigated this claim. Other than




                                             37
Mike Wofford, there were other suspects that appeared much more culpable than

Appellant. Take Omes Gray and Adrian Gray for example. These are the men whom

were reported to have “kidnapped Alicia, took her to a house there in Greenville,

sexually assaulted her, knocked her teeth out and strangled her and then dumped her

body.” (17 R.R. 55, 172-173). Shockingly, the lab testing the SANE kit in this case

never even received samples from these men to make comparisons with. (18 R.R. 109).

Multiple people had given information to Greenville PD that Omes and Adrian were

involved with Alicia’s death. (17 R.R. 163). These men were linked to a white Lincoln

that was located in Greenville at a residence in proximity to where Alicia lived. (17 R.R.

164-166). The white Lincoln was also of importance because, as the Ranger testified, “we

received information from somebody over here in Van Zandt County that they observed a

white Lincoln in the area of where the whicker trunk was found.” (17 R.R. 165). The

witness also stated that the white Lincoln had pop-up headlights. (17 R.R. 166). The

Lincoln in Greenville that was searched had these kind of headlights. (17 R.R. 166). This

was no mere coincidence. There was enough probable cause for a search warrant to be

issued for this Lincoln. (17 R.R. 164). Items were removed during the search and the

FBI handled them but the Ranger stated he is aware of no findings being issued. (17 R.R.

165). The Ranger later said he was told that they did not find anything but he did not

verify this for himself. (17 R.R. 167). When the Ranger is the lead investigator handling

all the information and leads coming in on this case, should not it have been him to

decide whether the evidence taken from the Lincoln was of importance? However, the

police somehow ruled this lead out. (17 R.R. 55). This is one of the strongest leads the

police received of Alicia’s abduction and death, and for this to have been completely




                                            38
ignored by law enforcement and the jury is unforgivable. This alone should be

considered grounds for reversal for legal insufficiency of the evidence.

       Another lead that was ignored was a confession to Alicia’s murder. The Ranger

testified that a man named Dee Williams contacted WFAA news in Dallas through their

Facebook account and said he killed Alicia. (17 R.R. 167). He confessed that he

committed the murder because he had been paid $5,000 by the mother of Alicia. (17

R.R. 54). The police went so far as to try and set up a meet with him but when that failed

they decided that the confession was unreliable because of “the way that he worded the e-

mail” and because there was “no motive for her mother to pay $5,000 to have her

killed….” (17 R.R. 54). There was no motive for Appellant either but that did not stop

the police from narrowing their investigation in on him and completely ignoring this

confession. Dee Williams’ Facebook page had a photograph of himself on the page. (17

R.R. 168). The Ranger is not aware of any attempts by law enforcement to get records

from Facebook about the identity of Dee Williams or to trace the IP address of the

computer that Dee Williams was using in order to ascertain his identity. (17 R.R. 169,

188). In this day and age, the technology is available to track down computer users and

those who communicate through websites such as Facebook. Particularly in a case such

as this, where the police’s only evidence against Appellant was DNA evidence that

proved at most that he had consensual sex with Alicia, more should have been done to

track down Dee Williams and hold him responsible for Alicia’s abduction and death.

With this evidence hanging out there, no rational jury could have found all the elements

of capital murder in this case, and thus the evidence was legally insufficient.

       Of all the suspects in Alicia’s murder, none had more motive to have her killed




                                             39
than Terry Ramsire. Ramsire was in his 50s when he had a sexual relationship with 16-

year-old Alicia just months before her death. (16 R.R. 80-83). He was charged with

sexually assaulting her and was arrested and in jail at the time of her death. (16 R.R. 81-

83, 161; 17 R.R. 53, 172). Obviously, Alicia was the key witness in his prosecution. (17

R.R. 171). Ramsire had all the motive in the world to have Alicia killed, but he was in

jail, which is probably the key reason that he was ruled out as a suspect. But what the

State failed to fully investigate is that he had a family member who up until the very day

before Alicia’s disappearance, lived in the same house as Alicia—Kenneth Byrd.

Ramsire and Kenneth Byrd were related. (17 R.R. 172). It is not out of the realm of

possibility that Ramsire could have had his relative Kenneth murder Alicia so that she

would not be able to be a witness against Ramsire. And the timing was uncanny too,

because it just happened to be the day after Kenneth moved out. The motive and

opportunity here are undeniable—yet this too was ignored by the jury.

       Another suspect was Tobias Whetstone. The Ranger reported that he was

interviewed during the investigation because he was supposed to be dating Alicia. (17

R.R. 160). Even Jessica and Deborah told police from the beginning that he should be a

suspect. (16 R.R. 92-94, 265-266). Deborah testified that she believed him to be a

suspect based upon information that was given to her. (16 R.R. 265-266). He was

arrested during the investigation on an unrelated charge and he made the statement to

police that the “only reason he was being arrested is because that skanky ass bitch is

dead.” (17 R.R. 160). How could anyone other than the actual killer be so cold? These

words alone were enough to give a rational jury reasonable doubt about whether or not

Appellant committed capital murder.




                                            40
       There was evidence of a hate crime that was not properly investigated. On the

inside of the trunk, the words “nigger whore” were spray painted in the bottom of the

trunk in black. (17 R.R. 35-36). Additionally, on the inside of the lid of the trunk a

backwards swastika was spray-painted. (17 R.R. 37). The spray paint that made these

markings was not the spray paint found during the search of Appellant’s home.

(Defendant’s Exhibit No. 2). The Ranger thought this could indicate a hate crime but the

swastika being backwards caused him to doubt that. (17 R.R. 102). However, it is

common knowledge that people that commit this level of hate crime are generally very

ignorant people. It would not surprise anyone if the kind of uneducated racist who would

commit this kind of crime would be capable of inverting the swastika. This aspect of the

case should have been explored further to seek out additional suspects.

       Realistically, there were probably countless predators that could have been

suspects in this case. Alicia was engaging in very dangerous and high-risk behavior. In

addition to sleeping with a 50 year old man, Alicia spent much of her time

communicating on social sites. The Ranger believed that Alicia was using several apps

on the iPad to communicate, including TextNow, MocoSpace, Facebook, and others. (17

R.R. 49). Alicia was addicted to sex, as is evidenced by the family’s testimony that she

was watching so much pornography at the house that the pay-per-view channel had to be

blocked due to a high bill. (16 R.R. 84). She also may have been viewing pornography

on Jessica’s computer. (16 R.R. 84-85). No one in the family was monitoring the

conversations Alicia was having online and through text messages. (16 R.R. 86). The

investigation that police did into Alicia’s online accounts led them to believe that “she

might have gone to Paris,” Texas, presumably to meet up with a man she met online;




                                             41
however, this was insufficiently explored by law enforcement. (17 R.R. 55). The Ranger

acknowledged that it is common for perpetrators to meet young women on online sites

such as Facebook. (17 R.R. 152). It is also common for them to try to get personal

information form victims on these sites such as where they live and go to school (17

R.R. 152). Sometimes older men will pretend to be much younger or even a different sex

in order to prey upon girls online. (17 R.R. 153). Alicia’s frequent use of these sites

created an atmosphere where Alicia exposed herself the exactly the kind of harm that

occurred. There was no evidence presented that Appellant was on these kinds of sites or

communicating with Alicia on through these sites.

       The State’s evidence also suffered from a lackluster investigation. Besides not

looking into all the leads and suspects that have been previously mentioned, law

enforcement failed to adequately investigate key areas of the case, thereby giving the jury

inadequate evidence to base a guilty verdict for capital murder on. Where the trunk had

come from was not fully explored. The mechanical issues Appellant was having with his

vehicle, thereby making it highly unlikely that he was able to drive to from Grand Prairie

to Greenville, then to Grand Prairie, then to Wills Point, and then to Greenville again,

were not fully investigated. The State offered no testimony on this. This was an old

Nisan truck that overheated on November 6, 2012, causing Appellant to have to borrow

Aretha’s car that night. It was in no condition to make the kind of drive that would have

been required to carry out the State’s theory of the case. (16 R.R. 98-99). It was shown at

trial that Appellant did not have access to any other vehicles during the time of Alicia’s

disappearance, thereby making it impossible to carry out this act. Appellant certainly had

no access to a white Lincoln that was observed at the scene where the body was found.




                                             42
(17 R.R. 165). Furthermore, the State failed to do a thorough search of the most obvious

place to look—the very home Alicia was living in. The Ranger is not aware of any

extensive search like the one that was conducted on Appellant’s home being conducted

on the home at 1900 Gibbons. (17 R.R. 157). The Ranger, who was the lead investigator

on the case, had no knowledge of anyone searching the Gibbons home for any spray

paint, weapons, ligatures, blood or DNA evidence, silver metal hasps, receipts to the

trunk or hasp, bedding and sheets. (17 R.R. 157-158). He further stated that Alicia’s bed

was not searched to see if there were signs of any sexual activity in it. (17 R.R. 189).

This level of investigation was unacceptable, and the jury could not have rationally found

Appellant guilty of capital murder without having had these items analyzed and these

questions answered.

       Lesser Offense of Sexual Assault and Possible Contamination of DNA Evidence

       At best, the State’s evidence proved that Appellant had consensual sex with

Alicia. That is why the jury was submitted a lesser included offense of sexual assault as

follows: “….[Appellant] did intentionally or knowingly cause the penetration of the anus

or sexual organ of [Alicia], a child, by any means, then you will find the Defendant guilty

of the lesser offense sexual assault.” (C.R. 202). At worst, the jury should have found

Appellant not guilty of capital murder and guilty of sexual assault. Under no reasonable

interpretation of the evidence in this case did the State prove all the elements of capital

murder beyond a reasonable doubt—namely, that Appellant did intentionally cause the

death of Alicia by strangulation with an object unknown to the grand jury, and the

Appellant was then and there in the course of committing or attempting to commit the

offense of aggravated sexual assault of Alicia. Supporting this argument, aside from the




                                             43
lack of eyewitness, the lack of any communication between Appellant and Alicia to

arrange this meeting, and any evidence of Alicia’s DNA at his home or in his vehicle, is

the lack of evidence that Alicia defended herself against Appellant. The lab found no

DNA from Appellant under the nails of Alicia. (18 R.R. 112). It would be reasonable to

assume that if Appellant had taken Alicia and he had attacked her in this manner, that she

would have defended herself and that would lead to the potential of his DNA being under

her nails. However this is not the case. Possibly the most damning evidence that Alicia

was murdered is the black whicker trunk her body was found in. Whoever placed her

body in that trunk is undoubtedly the killer. There jury heard no evidence that connected

Appellant to that trunk—no fingerprints, no DNA, no paper trail linking Appellant to it,

no evidence from police or family members that they had even seen Appellant with that

trunk in his home or anywhere else. (17 R.R. 109; 18 R.R. 70-117). It is possible that

the person that actually killed Alicia did not leave his DNA. (17 R.R. 192).

       If Appellant merely had consensual sex with Alicia, as a reasonable interpretation

of the evidence supports, this would not be Aggravated Sexual Assault, it would merely

be sexual assault (compare Texas Penal Code §22.011, Sexual Assault, to Texas Penal

Code §22.021, Aggravated Sexual Assault), because Alicia was 16, and not younger than

14. However, even the evidence supporting a sexual assault conviction is dubious

because of the very real risk of contamination of the DNA evidence. Amber Moss, a

forensic scientist, received and tested a sexual assault kit taken from the body of Alicia

by SWIFS and a testing of the vaginal swabs showed that the “DNA profile from the

sperm fraction was consistent with a mixture from the victim and the suspect

[Appellant].” (18 R.R. 78-96). She testified that all other males that were tested were




                                             44
excluded as contributors. (18 R.R. 96, 102). However, it is important to note that she did

not receive nor test samples from Omes and Adrian Gray. (18 R.R. 109). As previously

discussed, the police had credible information that these men were responsible for

Alicia’s murder—so credible that the police got a search warrant for the white Lincoln

like the one spotted at location where her body was found. What should have also been

alarming to the jury was that Moss testified that “the debris swabs from…around the

nipples from the victim we obtained a partial DNA profile from that sample that was

consistent with the mixture from the victim and a second contributor, but due to that

second contributor being so minor, we’re not able to make any comparisons to that

second contributor.” (18 R.R. 101). This leads to the possibility that the State had a

DNA profile from the actual killer but was unable to identify that person because of the

state of that sample. Another concern that the jury should have taken more seriously is

the risk that the sample received in the lab were compromised prior to their arrival. Moss

confirmed that contamination of the tested samples is possible, and “for it to…have been

contaminated, it would have had to been prior to us receiving it at the laboratory, so—

because it was properly sealed when we received it at the laboratory.” (18 R.R. 104).

We know that at least one TXDOT employee had access to the body before the arrival of

the police and before the scene was secured. (17 R.R. 23). We also know that the first

officer on the scene handled the body without gloves. (17 R.R. 111). Lana Goddard,

who was in charge of the Van Zandt County Sheriff’s Office property room and who

handled the SANE kit (S.E. No. 74) prior to its submission to the lab, admitted that she

could not tell the jury what anybody else did with the evidence while it was not in her

custody. (18 R.R. 50-51). So if this key item of evidence was tampered with in anyway,




                                            45
the jury was not given this information. Kristy Holt, who received possession of the

SANE kit, took the kit to the Van Zandt County Sheriff’s office for storage, rather than

delivering it directly to the lab, and thereby increasing the risk of additional exposure

contamination and / or tampering. (18 R.R. 33). By allowing this key item of evidence

to be kept out of her sight before being delivered to the lab, increased the likelihood that

it was tampered with. As such, this evidence was not trustworthy, and the jury should not

have given it the weight they did. For all intents and purposes, the jury used this item of

evidence alone to convict the Appellant of capital murder. There is no way that a rational

jury could have made that kind of leap with that little evidence. The evidence was legally

insufficient.

        With all these other viable suspects, the sheer lack of any link between Appellant

and the abduction, strangling, and murder of Alicia, and the incredibly risky behavior

Alicia was engaging in, there is no rational reason how this jury could have not found this

evidence to be reasonable doubt and acquitted Appellant of capital murder. The jury

simply did not have the evidence is needed to find the elements of capital murder. As

such, the evidence was legally insufficient for the jury to convict Appellant of capital

murder and Appellant should be rewarded a new trial in this matter.

        Appellant asserted legal insufficiency in his Motion for New Trial and Motion in

Arrest of Judgment. (2 C.R. 72). Appellant’s motion was denied pursuant to T.R.A.P

21.8 when the Court did not timely rule on the motion within 75 days.

        Upon the argument and authorities stated, and upon a review of all the evidence,

Appellant believes that the evidence in this case was legally insufficient, and requests the

case be remanded to the trial court for a new trial.




                                             46
                                       ISSUE NUMBER 2

        Because the State’s capital murder case was a circumstantial evidence case, and

because Appellant had no motive to murder Alicia, the evidence presented supports an

inference other than the guilt of Appellant and the jury’s finding of guilt was not a rational

finding.

                                   Argument and Analysis

        Appellant acknowledges that it is not necessary to show motive in order to sustain

a conviction for murder. Garcia v. State, 495 S.W.2d 257 (Tex.Cr.App.1973). However,

that is not to say that, in circumstantial evidence cases, the presence or absence of motive

on the part of the accused is a fact that may not be considered by the jury. It should be

considered by the jury. Williams v. State, 840 S.W.2d 449, 460 (Tyler App.1991) (pet.

denied). Indeed, the proof of motive in a circumstantial evidence case may supply the

cement that binds the other facts and circumstances together so that those circumstances

exclude to a “moral certainty” any “reasonable hypothesis” except the guilt of the
                                   8




accused. Id. On the other hand, when motive is not shown and the circumstantial

evidence raises a reasonable hypothesis exculpating the accused, the other facts and

circumstances may or may not be sufficiently strong, in the absence of proof of motive,

to exclude to a moral certainty that reasonable hypothesis. Utilizing the foregoing

analysis in the application of the standard of review prescribed in Jackson v. Virginia,

443 U.W. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the reviewing court must

determine whether “the evidence supports an inference other than the guilt of the

[accused]....” If it does, the “finding of guilt beyond a reasonable doubt is not a rational

finding.” Id. citing Denby v. State, 654 S.W.2d 457, 464 (Tex.Cr.App.1983) (quoted with

approval in Skelton v. State, 795 S.W.2d 162, 167 (TexCr.App.1989). It is also clear that


                                               47
“if the conclusion [of guilt] is warranted by the combined and cumulative force of all the

incriminating circumstances,” the conviction should be upheld, and such a determination

is to be made on a case-by-case basis. Id. at 461 citing Flores v. State, 551S.W.2d 364,

367 (Tex.Cr.App.1977).

       In Carlsen v. State, 654 S.W.2d 444, 448-449 (Tex.Cr.App.1983) (Opinion on

State’s Motion for Rehearing), the court wrote that although the evidence in

circumstantial evidence cases is not to be tested by an “ultimate” standard different from

the standard of review applicable to direct evidence cases, the “exclusion of outstanding

reasonable hypotheses” analysis is to be applied to determine the sufficiency of the

evidence in circumstantial evidence cases, thereby calling forth the Jackson v. Virginia

standard of review. Id. citing 654 S.W.3d at 449. This analysis requires “a process of

elimination” of the guilt of those other than the accused in order to “effectively conclude

[that] the evidence rationally establishe[s] [the accused’s] guilt beyond a reasonable

doubt.” Id. citing 654 S.W.3d at 449; Carlsen and its progeny, e.g., Skelton v. State, 795

S.W.2d 162, 167 (Tex.Cr.App.1989), Brandley v. State, 691 S.W.2d 699, 703-704

(Tex.Cr.App.1985), and Denby v. State, 654 S.W.2d 457, 464 (Tex.Cr.App.1983), teach

that, in applying this “utilitarian” analysis, the evidence is reviewed in the light most

favorable to the verdict. Id. A corollary to the above analysis, as previously mentioned,

is that “if the evidence supports an inference other than the guilt of the [accused], a

finding of guilt beyond a reasonable doubt is not a rational finding.” Id. citing Skelton v.

State, 795 S.W.2d at 167 (quoting Denby v. State, 654 S.W.2d at 464); Brandley, 691

S.W.2d at 703-704; see also Carlsen v. State, 654 S.W.2d at 449.

       Although the State had direct evidence of Appellant’s DNA, which arguably




                                            48
could have supported a jury verdict on the lesser offense of sexual assault, the evidence

the State presented as to the elements of capital murder was entirely circumstantial. As

previously discussed, the state had no eyewitness who had seen Appellant and Alicia

together, nothing to link Appellant to Alicia’s abduction, no witness or documents linking

Appellant to the black whicker trunk her body was found in, no link of Appellant to the

crime scene, and no evidence—blood, DNA, or otherwise—of Alicia ever being in

Appellant’s home or vehicle during the time of her disappearance. Furthermore, the State

presented no evidence whatsoever of any motive Appellant had to kill Alicia—in fact, the

evidence was entirely to the contrary, that Appellant was a gay man, who cared for his

family, and cared for Alicia. (16 R.R. 96-97, 102, 112-115, 142, 229, 252-253). The

State acknowledged it had no motive for this crime in the District Attorney’s closing

argument: “Do I have to prove motive? I do not have to prove motive….Would I like to

prove motive? You bet your bottom dollar I would. Why wouldn’t I want to do that?

Because I want to give you the tools to make your job easier. How many times have you

set out to do something and realized I don’t have the right tools to do this. It makes the

job a little bit harder.” (18 R.R. 84-85) Then the prosecutor goes on to argue the DNA

evidence again, but makes no assertion that the State has given any indication of a motive

in the case. (18 R.R. 85).

       Appellant argued the lack of motive in his closing argument. (18 R.R. 65-67).

Appellant also argued that others, Terry Ramsire and Mike Wofford, did have motive to

murder Alicia. The evidence proved that men other than Appellant appeared much more

culpable than Appellant, and those men include Terry Ramsire, Kenneth Byrd, Mike

Wofford, Omes Gray, Adrian Gray, and Dee Williams. (see the “Additional Suspect”




                                           49
portion of Appellant’s Issue No. 1). Insufficient evidence was provided by the State to

rule these suspects out as the murderer of Alicia. The evidence clearly supports an

inference other than the guilt of Appellant, and other men cannot be eliminated as the

killer of Alicia. The circumstantial evidence the State submitted is insufficient to exclude

to a moral certainty the State’s hypothesis that Appellant committed capital murder. In

fact, the evidence suggested a reasonable hypothesis that someone other than Appellant

murdered Alicia. Therefore, no rational juror could have found the elements of the

offense of capital murder beyond a reasonable doubt. Jackson v. Virginia. Based upon

the foregoing, the case should be reversed and the case should be remanded to the trial

court for a new trial.



                                    ISSUE NUMBER 3

        Issue Number 3: The aggregate effect of erroneous rulings by the trial court in

allowing the jury to hear objectionable and inadmissible evidence irreparably harmed

Appellant and Appellant should be granted a new trial.

                                  Argument and Analysis

        It is Appellant’s position that the trial court committed multiple errors over the

course of the trial in allowing evidence to be introduced by the State over the objection of

Appellant. While each of these errors was harmful to Appellant in its own right, when

viewed cumulatively, they unquestionable affected his substantial rights. It is established

that errors may be harmful in their cumulative effect even if harmless when separately

considered. Stahl v. State, 749 S.W.2d 826 (Tex.Crim.App.1988).

        Appellant objected to the admission of Appellant’s phone records, State’s Exhibit

27. (18 R.R. 62-67). Appellant argued the records contained hearsay, and that even


                                             50
though the State had filed a business record affidavit with the documents prior to trial, the

documents still contained inadmissible hearsay and that Ranger Adcock should not be

allowed to testify about information contained in the records. The Court improperly

admitted this evidence over objection from Appellant and allowed the Ranger to testify to

the records. This harmed Appellant’s substantial rights in that it allowed the State to

argue that Appellant’s lack of call activity was somehow an indication of his guilt, and

thereby harming Appellant. (19 R.R. 87-88). Furthermore, after the admission of the

evidence, the State asked the Ranger: “Is that [the phone records] evidence at all for you

in your investigation? A: No, sir.” (17 R.R. 83). At that point Appellant moved for a

mistrial based upon the State’s request for the admission of irrelevant evidence, and the

Court erroneously overruled the motion for mistrial. (17 R.R. 84) Under Texas Rules of

Evidence Rule 402, “Evidence which is not relevant is inadmissible.” A Court’s denial

of a motion for mistrial is reviewed under an abuse of discretion standard, and her ruling

must be upheld if it was in the zone of reasonable disagreement. Coble v. State, 330

S.W.3d 253, 292 (Tex.Crim.App. 2010). Allowing this evidence in the first place and

then denying the mistrial was an abuse of discretion. The effect of the Court allowing

the case to continue with irrelevant evidence being introduced by the State harmed

Appellant in that he had to devote valuable trial time to cross-examining the Ranger

regarding the phone records and arguing to the jury about the records. Additionally, this

ruling harmfully affected the substantial rights of Appellant and affected the outcome of

the trial.

         Another error was the admission of a recorded statement that Appellant gave to

CBS radio reporter L.P. Phillips (S.E. No. 76). Appellant objected under T.R.E. 403 to a




                                             51
false statement made by Appellant during the interview in which he stated that the police

found hair evidence during the search of his truck. (S.E. No. 76; 18 R.R. 54-58). T.R.E.

403 provides that even relevant evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence.” It was established through the testimony of the Ranger that no

evidence was found during the search of Appellant’s truck. (17 R.R. 141, 151; 18 R.R.

114). Appellant objected to the admission of this evidence at the time it was offered. (18

R.R. 66). By allowing the jury to hear Appellant say something that was inconsistent

with the evidence, when he clearly was mistaken, resulted in misleading the jury and

creating confusion about the State of the evidence. It also cast Appellant in a negative

light in front of the jury and probably led to speculation from the jury that evidence had

been found that they were not being told about. Hearing Appellant admit that evidence

was found in his truck created a very real danger of unfair prejudice that outweighed any

possible probative value that this portion of Appellant’s statement had. Appellant argued

that because this was a misunderstanding and untrue, that this statement had no probative

value. Appellate Courts review a trial court's ruling on the admissibility of evidence

under an abuse of discretion standard to determine whether the decision was outside the

zone of reasonable disagreement. Montgomery v. State, 820 S.W.2d 372, 378-79

(Tex.Crim.App.1990). If the Court determines that error was committed, a harm analysis

must then be conducted. The Court of Criminal Appeals has instructed courts of appeals

that, when conducting a harm analysis under Texas Rule of Appellate Procedure 44.2(b),

“an appellate court need only determine whether or not the error affected a substantial




                                            52
right of the defendant. To make this determination, appellate courts must decide whether

the error had a substantial or injurious effect on the jury verdict.” Llamas v. State, 12

S.E.3d 469, 471 n. 2 (Tex. Crim.App.2000). Substantial rights are not affected by the

erroneous admission of evidence if, after examining the record as a whole, we have a fair

assurance that the error did not influence the jury, or had but a slight effect. Motilla v.

State, 78 S.W.3d 353, 355 (Tex.Crim.App.2002). Appellant’s position is that allowing

this wrongful assertion from Appellant was harmful and did have a substantial or

injurious effect on the jury verdict. The jury could have easily believed that based upon

this statement there was evidence linking Alicia to Appellant’s vehicle during the time of

her disappearance, and this would be all the belief they need to turn a very weak State’s

case into a guilty verdict.

        An additional error committed by the Court during the trial was the admission of

State’s Exhibit 28, a WFAA Channel 8 news report in which Appellant was interviewed.

The Court initially kept this evidence out on authentication grounds. (17 R.R. 67). Then,

when Ranger Adcock was on the stand, the State again attempted to introduce the

recording through him as the sponsoring witness. (17 R.R. 67). Appellant objected on the

grounds that (1) the Ranger did not create the recording and could not properly be the

sponsoring witness for it, (2) The Ranger had no way of knowing if this the was full and

accurate copy of the original recording made by the news station—and if introduced

Appellant should be entitled to the full recording; and (3) under T.R.E. 901, the State

could not properly meet the requirements of authentication of this exhibit through this

witness. (17 R.R. 69). Appellant also made other objections, including an objection

under T.R.E. 403 in that the prejudice that this exhibit would cause Appellant would




                                              53
substantially outweigh any probative value. (17 R.R. 79). A Voir Dire examination of

the Ranger was then held. (17 R.R. 72-79). Among other things, the Ranger admitted

that he could not testify that this was an accurate and authentic recording of the original

footage. (17 R.R. 77). The Court wrongfully overruled Appellant’s objections and

admitted the exhibit. (17 R.R. 78-79). The admission of this evidence harmed Appellant

because it allowed the State to argue that Defendant was cold in the interview and this

was a sign of guilt. The District Attorney made the following argument in his closing

argument based upon this exhibit:

               “[Appellant’s] statement to the news media, ‘I’m over it,’ he says this in
               February. ‘I’m over it.’ …Did you hear any other family members say
               that they’re over it, it’s time to move on?....It could be consistent with
               guilt. It could be that he’s over it because he’s been grieving a lot longer
               than they have because he killed her.”
               (19 R.R. 91).
As a result, Appellant had to spend valuable time in his cross-examination and in his

closing argument responding to this, and thus detracting from more important matters.

(19 R.R. 71). The erroneous introduction of this evidence was harmful, and error had a

substantial effect on the jury verdict.

       Although each of these errors harm Appellant and substantially affected the jury

verdict and thus should result in a new trial being granted on their own merit, the

cumulative effect of these errors was overwhelming prejudicial to Appellant. Stahl v.

State. The errors led the jury to find Appellant guilty for capital murder when the

elements had not been proven beyond a reasonable doubt. For this reason, Appellant

should be given a new trial in this matter.




                                              54
                             CONCLUSION AND PRAYER

       WHEREFORE, Appellant prays the judgment of conviction be reversed and the

case remanded back to the trial court for a new trial and for such other and further relief

to which Appellant may be justly entitled.



                                                              Respectfully Submitted,



                                                                /s/ John A. Scott
                                                              JOHN A. SCOTT
                                                              State Bar No. 24034672
                                                              107 E. Tyler St.
                                                              Athens, Texas 75751
                                                              (903) 675-8005
                                                              Fax: 903-675-8006

                                                              Counsel for Appellant


                             CERTIFICATE OF SERVICE

       This is to certify that a copy of the foregoing instrument has been delivered by

email to Appellee’s attorney of record:

       Mr. Chris Martin
       Van Zandt County District Attorney
       400 South Buffalo
       Canton, Texas 75103


                                                       /s/ John A. Scott
                                                      JOHN A. SCOTT
                                                      107 E. Tyler St.
                                                      Athens, Texas 75751
                                                      (903) 675-8005 (phone)
                                                      (903) 675-8006 (fax)
                                                      TBC No. 24034672

Date: September 30, 2015



                                             55
                          CERTIFICATE OF COMPLIANCE

       Relying on the word count function in the word processing software used to

produce this document, I certify that the number of words in this reply (excluding any

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of service,

certification, certificate of compliance, and appendix) is 14,840 (The limit is 15,000).

               Signed this the 30th day of September, 2015


                                              /s/ John A. Scott
                                              John A. Scott
                                              ATTORNEY FOR APPELLANT




                                             56
APPENDIX




   57
TEX PE. CODE ANN. § 19.03 : Texas Statutes - Section 19.03: CAPITAL
MURDER

(a) A person commits an offense if the person commits murder as defined under Section
19.02(b)(1) and:
(1) the person murders a peace officer or fireman who is acting in the lawful discharge of
an official duty and who the person knows is a peace officer or fireman;
(2) the person intentionally commits the murder in the course of committing or
attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson,
obstruction or retaliation, or terroristic threat under Section 22.07(a)(1), (3), (4), (5), or
(6);
(3) the person commits the murder for remuneration or the promise of remuneration or
employs another to commit the murder for remuneration or the promise of remuneration;
(4) the person commits the murder while escaping or attempting to escape from a penal
institution;
(5) the person, while incarcerated in a penal institution, murders another:
(A) who is employed in the operation of the penal institution; or
(B) with the intent to establish, maintain, or participate in a combination or in the profits
of a combination;
(6) the person:
(A) while incarcerated for an offense under this section or Section 19.02, murders
another; or
(B) while serving a sentence of life imprisonment or a term of 99 years for an offense
under Section 20.04, 22.021, or 29.03, murders another;
(7) the person murders more than one person:
(A) during the same criminal transaction; or
(B) during different criminal transactions but the murders are committed pursuant to the
same scheme or course of conduct;
(8) the person murders an individual under six years of age; or
(9) the person murders another person in retaliation for or on account of the service or
status of the other person as a judge or justice of the supreme court, the court of criminal
appeals, a court of appeals, a district court, a criminal district court, a constitutional
county court, a statutory county court, a justice court, or a municipal court.
(b) An offense under this section is a capital felony.
(c) If the jury or, when authorized by law, the judge does not find beyond a reasonable
doubt that the defendant is guilty of an offense under this section, he may be convicted of
murder or of any other lesser included offense.

Added by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, Sec. 1, eff. Jan. 1, 1974.
Amended by Acts 1983, 68th Leg., p. 5317, ch. 977, Sec. 6, eff. Sept. 1, 1983; Acts 1985,
69th Leg., ch. 44, Sec. 1, eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 652, Sec. 13, eff.
Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 715, Sec. 1, eff. Sept. 1, 1993; Acts 1993, 73rd
Leg., ch. 887, Sec. 1, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.
Sept. 1, 1994; Acts 2003, 78th Leg., ch. 388, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch.



                                             58
TEX PE. CODE ANN. § 22.011. SEXUAL ASSAULT. (a) A person commits an
offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means,
without that person's consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the
actor, without that person's consent; or
(C) causes the sexual organ of another person, without that person's consent, to contact
or penetrate the mouth, anus, or sexual organ of another person, including the actor; or
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual
organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another
person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person,
including the actor.
(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical
force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force
or violence against the other person, and the other person believes that the actor has the
present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is
unconscious or physically unable to resist;
(4) the actor knows that as a result of mental disease or defect the other person is at the
time of the sexual assault incapable either of appraising the nature of the act or of
resisting it;
(5) the other person has not consented and the actor knows the other person is unaware
that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person's power to appraise or control
the other person's conduct by administering any substance without the other person's
knowledge;
(7) the actor compels the other person to submit or participate by threatening to use force
or violence against any person, and the other person believes that the actor has the ability
to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or participate;
(9) the actor is a mental health services provider or a health care services provider who
causes the other person, who is a patient or former patient of the actor, to submit or
participate by exploiting the other person's emotional dependency on the actor;
(10) the actor is a clergyman who causes the other person to submit or participate by
exploiting the other person's emotional dependency on the clergyman in the clergyman's
professional character as spiritual adviser; or
(11) the actor is an employee of a facility where the other person is a resident, unless the



                                            59
employee and resident are formally or informally married to each other under Chapter 2,
Family Code.
(c) In this section:
(1) "Child" means a person younger than 17 years of age.
(2) "Spouse" means a person who is legally married to another.
(3) "Health care services provider" means:
(A) a physician licensed under Subtitle B, Title 3, Occupations Code;
(B) a chiropractor licensed under Chapter 201, Occupations Code;
(C) a physical therapist licensed under Chapter 453, Occupations Code;
(D) a physician assistant licensed under Chapter 204, Occupations Code; or
(E) a registered nurse, a vocational nurse, or an advanced practice nurse licensed under
Chapter 301, Occupations Code.
(4) "Mental health services provider" means an individual, licensed or unlicensed, who
performs or purports to perform mental health services, including a:
(A) licensed social worker as defined by Section 505.002, Occupations Code;
(B) chemical dependency counselor as defined by Section 504.001, Occupations Code;
(C) licensed professional counselor as defined by Section 503.002, Occupations Code;
(D) licensed marriage and family therapist as defined by Section 502.002, Occupations
Code;
(E) member of the clergy;
(F) psychologist offering psychological services as defined by Section 501.003,
Occupations Code; or
(G) special officer for mental health assignment certified under Section 1701.404,
Occupations Code.
(5) "Employee of a facility" means a person who is an employee of a facility defined by
Section 250.001, Health and Safety Code, or any other person who provides services for
a facility for compensation, including a contract laborer.
(d) It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of
medical care for the child and did not include any contact between the anus or sexual
organ of the child and the mouth, anus, or sexual organ of the actor or a third party.
(e) It is an affirmative defense to prosecution under Subsection (a)(2):
(1) that the actor was the spouse of the child at the time of the offense; or
(2) that:
(A) the actor was not more than three years older than the victim and at the time of the
offense:
(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as
a sex offender; or
(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a
reportable conviction or adjudication for an offense under this section; and
(B) the victim:
(i) was a child of 14 years of age or older; and
(ii) was not a person whom the actor was prohibited from marrying or purporting to
marry or with whom the actor was prohibited from living under the appearance of being
married under Section 25.01.
(f) An offense under this section is a felony of the second degree, except that an offense
under this section is a felony of the first degree if the victim was a person whom the actor



                                            60
was prohibited from marrying or purporting to marry or with whom the actor was
prohibited from living under the appearance of being married under Section 25.01.
Added by Acts 1983, 68th Leg., p. 5312, ch. 977, Sec. 3, eff. Sept. 1, 1983. Amended by
Acts 1985, 69th Leg., ch. 557, Sec. 1, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 1029,
Sec. 1, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 662, Sec. 1, eff. Sept. 1, 1991; Acts
1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 273,
Sec. 1, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 6, eff. Sept. 1, 1995; Acts
1997, 75th Leg., ch. 1031, Sec. 1, 2, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1286,
Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1102, Sec. 3, eff. Sept. 1, 1999; Acts
1999, 76th Leg., ch. 1415, Sec. 24, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420,
Sec. 14.829, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 155, Sec. 1, 2, eff. Sept. 1,
2003; Acts 2003, 78th Leg., ch. 528, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch.
553, Sec. 2.017, eff. Feb. 1, 2004.
Amended by:
Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 4.02, eff. September 1, 2005.
Acts 2009, 81st Leg., R.S., Ch. 260 (H.B. 549), Sec. 3, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 260 (H.B. 549), Sec. 4, eff. September 1, 2009.




                                            61
TEX PE. CODE ANN. § 22.021. AGGRAVATED SEXUAL ASSAULT. (a) A
person commits an offense:
(1) if the person:
(A) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of another person by any means,
without that person's consent;
(ii) causes the penetration of the mouth of another person by the sexual organ of the
actor, without that person's consent; or
(iii) causes the sexual organ of another person, without that person's consent, to contact
or penetrate the mouth, anus, or sexual organ of another person, including the actor; or
(B) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual
organ of another person, including the actor;
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another
person, including the actor; or
(v) causes the mouth of a child to contact the anus or sexual organ of another person,
including the actor; and
(2) if:
(A) the person:
(i) causes serious bodily injury or attempts to cause the death of the victim or another
person in the course of the same criminal episode;
(ii) by acts or words places the victim in fear that any person will become the victim of
an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily injury,
or kidnapping will be imminently inflicted on any person;
(iii) by acts or words occurring in the presence of the victim threatens to cause any
person to become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or
to cause the death, serious bodily injury, or kidnapping of any person;
(iv) uses or exhibits a deadly weapon in the course of the same criminal episode;
(v) acts in concert with another who engages in conduct described by Subdivision (1)
directed toward the same victim and occurring during the course of the same criminal
episode; or
(vi) administers or provides flunitrazepam, otherwise known as rohypnol, gamma
hydroxybutyrate, or ketamine to the victim of the offense with the intent of facilitating
the commission of the offense;
(B) the victim is younger than 14 years of age; or
(C) the victim is an elderly individual or a disabled individual.
(b) In this section:
(1) "Child" has the meaning assigned by Section 22.011(c).
(2) "Elderly individual" and "disabled individual" have the meanings assigned by
Section 22.04(c).
(c) An aggravated sexual assault under this section is without the consent of the other
person if the aggravated sexual assault occurs under the same circumstances listed in
Section 22.011(b).
(d) The defense provided by Section 22.011(d) applies to this section.



                                             62
(e) An offense under this section is a felony of the first degree.
(f) The minimum term of imprisonment for an offense under this section is increased to
25 years if:
(1) the victim of the offense is younger than six years of age at the time the offense is
committed; or
(2) the victim of the offense is younger than 14 years of age at the time the offense is
committed and the actor commits the offense in a manner described by Subsection
(a)(2)(A).
Added by Acts 1983, 68th Leg., p. 5312, ch. 977, Sec. 3, eff. Sept. 1, 1983. Amended by
Acts 1987, 70th Leg., ch. 573, Sec. 1, eff. Sept. 1, 1987; Acts 1987, 70th Leg., 2nd C.S.,
ch. 16, Sec. 1, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,
1994; Acts 1995, 74th Leg., ch. 318, Sec. 7, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch.
1286, Sec. 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 417, Sec. 1, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 459, Sec. 5, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 528,
Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 896, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 1.18, eff. September 1, 2007.
Acts 2011, 82nd Leg., R.S., Ch. 1 (S.B. 24), Sec. 6.05, eff. September 1, 2011.




                                            63
TEXAS RULES OF EVIDENCE, Rule 402 RELEVANT EVIDENCE
GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE

  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.
Evidence which is not relevant is inadmissible.


TEXAS RULES OF EVIDENCE, Rule 403 EXCLUSION OF RELEVANT
EVIDENCE ON SPECIAL GROUNDS

  Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, or needless presentation of cumulative
evidence.


TEXAS RULES OF EVIDENCE, Rule                          901    REQUIREMENT           OF
AUTHENTICATION OR IDENTIFICATION

  (a) General Provision. --The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.

  (b) Illustrations. --By way of illustration only, and not by way of limitation, the
following are examples of authentication or identification conforming with the
requirements of this rule:

    (1) Testimony of witness with knowledge. --Testimony that a matter is what it is
claimed to be.

   (2) Nonexpert opinion on handwriting. --Nonexpert opinion as to the genuineness of
handwriting, based upon familiarity not acquired for purposes of the litigation.

   (3) Comparison by trier or expert witness. --Comparison by the trier of fact or by
expert witness with specimens which have been found by the court to be genuine.

    (4)   Distinctive characteristics and the like. --Appearance, contents, substance,
internal patterns, or other distinctive characteristics, taken in conjunction with



                                          64
circumstances.

    (5) Voice identification. --Identification of a voice, whether heard firsthand or
through mechanical or electronic transmission or recording, by opinion based upon
hearing the voice at anytime under circumstances connecting it with the alleged speaker.

    (6) Telephone conversations. --Telephone conversations, by evidence that a call was
made to the number assigned at the time by the telephone company to a particular person
or business, if:

     (A) in the case of a person, circumstances, including self-identification, show the
person answering to be the one called; or

     (B) in the case of a business, the call was made to a place of business and the
conversation related to business reasonably transacted over the telephone.

    (7) Public records or reports. --Evidence that a writing authorized by law to be
recorded or filed and in fact recorded or filed in a public office, or a purported public
record, report, statement, or data compilation, in any form, is from the public office
where items of this nature are kept.

    (8) Ancient documents or data compilation. --Evidence that a document or data
compilation, in any form, (A) is in such condition as to create no suspicion concerning its
authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in
existence twenty years or more at the time it is offered.

    (9) Process or system. --Evidence describing a process or system used to produce a
result and showing that the process or system produces an accurate result.

    (10)     Methods provided by statute or rule. --Any method of authentication or
identification provided by statute or by other rule prescribed pursuant to statutory
authority.




                                             65
