Kaitlyn Lucretia Ritcherson v. State ( 2015 )

ACCEPTED
03-13-00804-CR
3822347
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/20/2015 10:43:03 AM
JEFFREY D. KYLE
CLERK
No. 03-13-0804 - CR
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE THIRD DISTRICT COURT OF APPEALS
1/20/2015 10:43:03 AM
AT AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
=============================================
KAITLYN RITCHERSON
Appellant
v.
THE STATE OF TEXAS,
Appellee
=============================================
Appeal from Convictions in Cause Numbers D-1-DC -302663
in the 331ST District Court of Travis County, Texas,
Hon. Robert Perkins, Visiting Judge Presiding
=============================================
BRIEF FOR APPELLANT
=============================================
Respectfully submitted,
Law Office of Alexander L. Calhoun
State Bar No.: 00787187
4301 W. William Cannon Dr., Ste. B-150, # 260
Austin, TX 78749
Tele: 512/ 420 - 8850
Fax: 512/ 233- 5946
Cell: 512/731-3159
Email: alcalhoun@earthlink.net
Oral Argument is Requested
STATEMENT OF ORAL ARGUMENT
Counsel believes oral argument would be beneficial to address or clarify the
issues raised in this case.
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TABLE OF CONTENTS
STATEMENT OF ORAL ARGUMENT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
CERTIFICATE OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUE PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
POINT OF ERROR NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
POINT OF ERROR NUMBER TWO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
POINT OF ERROR NUMBER THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
POINT OF ERROR NUMBER FOUR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR ii
CERTIFICATE OF PARTIES
Pursuant to Rule 38.1(a), Tex.R.App. Pro., Appellant presents the following
persons who are parties to, or have an interest in the final judgment in this cause,
so that the Court may determine whether its members are disqualified or should
recuse themselves:
Ms. Kaitlyn Ritcherson, TDCJ # 01905531 Texas Department of Criminal
Justice - Mountain View Unit
Mr. Alexander L. Calhoun, Appellate Atty 4301 W. William Cannon Dr.,
Ste. B-150, # 260, Austin, TX
78749
Mr. Charles F. Baird, Trial Attorney 2312 Western Trails Blvd.,
Austin, TX 78745
Ms. Amber Farrelly, Asst. Trial Atty 2312 Western Trails Blvd.,
Austin, TX 78745
Ms. Rosemary Lehmberg, Dist. Atty Blackwell-Thurman Criminal
Justice Complex, 509 W. 11th
St, Austin, TX 78701
Mr. Gary Cobb, & Blackwell-Thurman Criminal
Ms. Meg McGee, Asst. Dist. Attys Justice Complex, 509 W. 11th
St, Austin, TX 78701
Judge Robert Perkins, Visiting Judge 1104 Nueces, # 203, Austin
TX 78701
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INDEX OF AUTHORITIES
Cases:
Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1984). . . . . . . . . . . . . . . . . . . . 23
Apolinar v. State, 155 S.W.3d 184 (Tex.Cr.App. 2005).. . . . . . . . . . . . . 31, 49, 50
Arline v. State, 721 S.W.2d 348 (Tex.Cr.App. 1986). . . . . . . . . . . . . . . . . . . . . . . 23
Bagheri v. State, 119 S.W.3d 755 (Tex.Cr.App. 2003). . . . . . . . . . . . . . . . . . . . . 34
Banda v. State, 890 S.W.2d 42 (Tex. Cr.App. 1994). . . . . . . . . . . . . . . . . . . . . . . 17
Barley v. State, 01-12-01002-CR
(Tex.App.- Houston [1st Dist.] 10-29-2013) (not published). . . . . . . . . . . 35
Barshaw v. State, 342 S.W.3d 91 (Tex.Cr.App. 2011). . . . . . . . . . . . . . 34, 44, 52
Bell v. State, 693 S.W.2d 434 (Tex.Cr.App.1985).. . . . . . . . . . . . . . . . . . . . . . . . 17
Bignall v. State, 887 S.W.2d 21 (Tex.Cr.App. 1994). . . . . . . . . . . . . . . . . . . . 17, 20
Britain v. State, 412 S.W.3d 518 (Tex.Cr.App. 2013) . . . . . . . . . . . . . . . . . . . . . 17
Brown v. State, 296 S.W.3d 371 (Tex. App.- Beaumont 2009). . . . . . . . . . . . . . . 18
Bounderant v. State, 956 S.W.2d 762 (Tex.App. – Fort Worth 1997). . . . . . . . . . 50
Cavazos v. State, 382 S.W.3d 377 (Tex.Cr.App.2012). . . . . . . . . . . . 17, 18, 19, 22
Chavarriga v. State, 156 S.W.3d 642 (Tex.App. - Tyler 2004). . . . . . . . . . . . . . 18
Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Darby v. State, 145 S.W.3d 714 (Tex. App. -Fort Worth 2004). . . . . . . . . . . . . . 35
Edmondson v. State, 399 S.W.3d 607 (Tex.App. - Eastland 2013). . . . . . . . . . . . 31
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR iv
Englund v. State, 946 S.W.2d 64 (Tex.Cr.App. 1997). . . . . . . . . . . . . . . . . . . . . 42
Erazo v. State, 144 S.W.3d 487 (Tex. Cr. App. 2004). . . . . . . . . . . . . . . . . . . . . . 39
Flores v. State, 245 S.W.3d 432 (Tex.Cr.App. 2008).. . . . . . . . . . . . . . . . . . . . . . 17
Garcia v. State, 126 S.W.3d 921 (Tex.Cr. App. 2004).. . . . . . . . . . . . . . . 34, 44, 51
Glover v. State, 102 S.W.3d 754 (Tex.App. - Texarkana 2002). . . . . . . . . . . 50, 51
Hernandez v. State, 819 S.W.2d 806 (Tex.Cr.App. 1991). . . . . . . . . . . . . . . . . . . 35
Hughes v. State, 128 S.W.3d 247 (Tex.App. – Tyler 2003). . . . . . . . . . . . . . . . . 50
Hooper v. State, 214 S.W.3d 9 (Tex.Cr.App. 2007).. . . . . . . . . . . . . . . . . . . . . . . 20
Hughes v. State, 128 S.W.3d 247 (Tex.App. – Tyler 2003). . . . . . . . . . . . . . . . . 50
Hunt v. State, 904 S.W.2d 813 (Tex.App. - Fort Worth 1995). . . . . . . . . . . . . . . 31
Jessop v. State, 368 S.W.3d 653 (Tex.App.-Austin 2012). . . . . . . . . . . . . . . 38, 39
Jurek v. Couch-Jurek, 296 S.W.3d 864 (Tex.App. - El Paso 2009). . . . . . . . . . . 42
King v. State, 953 S.W.2d 266 (Tex.Cr.App. 1997). . . . . . . . . . . . . . . . . . . 33, 44
Lagunas v. State, 187 S.W.3d 503 (Tex.App. - Austin 2005). . . . . . . . . . . . . . . 50
Martinez v. State, 178 S.W.3d 806 (Tex. Cr. App. 2005).. . . . . . . . . . . . . . . . . . . 50
McCarty v. State, 257 S.W.3d 238 (Tex.Cr.App. 2008).. . . . . . . . . . . . . . . . 31, 32
McMahon v. State, 582 S.W.2d 786 (Tex.Cr.App. 1978).. . . . . . . . . . . . . . . . . . . 41
Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App. 1991).. . . . . . . . . . . . . . 28, 39
Montgomery v. State, 198 S.W.3d 67 (Tex.App. - Ft. Worth 2006).. . . . . . . . . . . 23
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR v
Moreno v. State, 22 S.W.3d 482 (Tex.Cr.App. 1999). . . . . . . . . . . . . . . . . . . . . . 28
Motilla v. State, 78 S.W.3d 352 (Tex.Cr.App. 2002). . . . . . . . . . . . . . . . . 34, 44, 51
Otting v. State, 8 S.W.3d 681 (Tex.App. - Austin 1999).. . . . . . . . . . . . . 23, 24, 25
Pawlak v. State, 420 S.W.3d 807 (Tex.Cr.App. 2013). . . . . . . . . . . . . . . . . . . . . . 38
People v. Allen, 158 Mich. App. 472, 404 N.W.2d 266 (1987). . . . . . . . . . . 41, 42
People v. Vanhoesen, 3 A.D.3d 787,
771 N.Y.S.2d 730 (N.Y. 3d Dept. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 41
People v. Watts, 165 P.3d 707 (Colo.App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . 41
Perez v. State, 113 S.W.3d 819 (Tex.App. - Austin 2003).. . . . . . . . . . . . . . . . . . 51
Reese v. State, 33 S.W.3d 238 (Tex.Cr.App. 2000). . . . . . . . . . . . . . . . . . . . . . . . 39
Salazar v. State, 38 S.W.3d 141 (Tex.Cr. App. 2001). . . . . . . . . . . . . . . . . . . . . . 50
Sandoval v. State, 409 S.W.3d 259 (Tex.App. - Austin 2013). . . . . . . . . . . . 28, 31
Sanders v. State, 422 S.W.3d 809 (Tex.App.-Ft. Worth 2014). . . . . . . . . . . . . . . 39
Saunders v. State, 913 S.W.2d 564 (Tex.Cr.App. 1995). . . . . . . . . . . . . . . . . . . . 23
Schroeder v. State, 123 S.W.3d 398 (Tex.Cr.App.2003). . . . . . . . . . . . . . . . . . . . 17
Soto v. State, 13-10-013-CR (Tex.App. - Corpus Christi 10-20-2011).. . . . . . . . 35
State v. Bauerly, 520 N.W.2d 760 (Minn.App. 1994). . . . . . . . . . . . . . . . . . . . . . 41
State v. Constantine, 588 A.2d 294 (Me. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . 41
Tollett v. City of Kemah, 285 F.3d 357 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . 28
Thomas v. State, 699 S.W.2d 845 (Tex.Cr.App. 1985). . . . . . . . . . . . . . . . . . . . . 18
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR vi
Turpin v. Kassulke, 26 F.3d 1392 (6th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . 30
United States v. Clymore, 245 F.3d 1195 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . 28
United States v. Treff, 924 F.2d 975 (10th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . 30
Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985).. . . . . . . . . . . . . . . . . . . . . . . . 30
Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2005). . . . . . . . 49
Zuliani v. State, 97 S.W.3d 589 (Tex. Cr. App. 2003). . . . . . . . . . . . . . . . 31, 32, 49
Statutes and Rules
Tex.Code Crim.Pro. Art. 37.09. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Tex.Code Crim.Pro. Art. 38.22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Tex. Penal Code § 19.02 (b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 16, 17
Tex. Penal Code § 19.02 (b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 16, 17
Tex.R.App.Pro. Rule 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 44
Tex.R.Evid. Rue 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 38, 44
Tex.R.Evid. Rule 613(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Tex.R.Evid Rule 801(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Tex.R.Evid. Rule 803(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 29, 49
Miscellaneous Authorities
Annot., Admissibility of Evidence Concerning Words
Spoken While Declarant Was Asleep or
Unconscious, 14 A.L.R. 4th 802 (1982 & Supp. 1989). . . . . . . . . . . . . . . . . . . . . 30
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR vii
Texas Rules of Evidence Handbook, 988 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . 42
6 Wigmore, Evidence in Trials at Common Law
§ 1747 (James H. Chadbourn rev. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . 50
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR viii
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:
COMES NOW, before the Court, Appellant, by and through his attorney of
record, and pursuant to Rule 38.1, Tex.R.App.Pro., files this brief on appeal, and
would show the Court as follows:
STATEMENT OF THE CASE
Appellant was charged by indictment with murder, in violation of Tex. Penal
Code § 19.02 (b)(1) & (2). [Clerk’s Record (“C.R.”): 20 - 21]. Her first trial ended
in a mistrial at the guilt-innocence phase afer the jury deadlocked. [19 Reporter’s
Record (“R.R.”): 5]. On re-trial, the jury convicted her of the offense as charged in
the indictment. [C.R.: 295, 306, 307 - 308]. Following the punishment phase, the
jury assessed a sentence of 25 years incarceration in the Texas Department of
Criminal Justice – Institutional Division. [C.R.: 305, 306, 307 - 308]. Appellant
filed a motion and amended motion for new trial, which the trial court denied
following several evidentiary hearings. [C.R.: 313 - 319, 347]. Appellant timely
filed a notice of appeal. [C.R.: 320, 355].
ISSUES PRESENTED
GROUND FOR RELIEF NUMBER ONE:
THE TRIAL COURT PREJUDICIALLY ERRED BY DENYING APPELLANT’S
SPECIAL REQUESTED INSTRUCTION ON THE LESSER-INCLUDED OFFENSE
OF MANSLAUGHTER.
GROUND FOR RELIEF NUMBER TWO:
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THE TRIAL COURT ERRED BY EXCLUDING A VIDEO RECORDING OF
APPELLANT’S EMOTIONAL OUTBURST UPON LEARNING THAT THE
DECEDENT WOULD DIE FROM HER INJURIES.
GROUND FOR RELIEF NUMBER THREE:
THE TRIAL COURT ERRED IN REFUSING APPELLANT TO ADMIT DEFENSE
EXHIBIT 132 AT THE PUNISHMENT PHASE OF TRIAL IN ORDER TO
DEMONSTRATE APPELLANT’S REMORSE.
GROUND FOR RELIEF NUMBER FOUR:
THE TRIAL COURT ERRED IN ADMITTING HEARSAY STATEMENTS BY
PATRICIA AND DONALD RITCHERSON UNDER THE EXCITED UTTERANCE
EXCEPTION WITHOUT A SUFFICIENT PREDICATE SHOWING THAT THE
WITNESS WAS UNABLE TO REFLECT UPON HIS STATEMENT AT THE
TIME IT WAS MADE
STATEMENT OF FACTS
The instant case arouse from a confrontation outside of Republic Live, a night
club in the downtown entertainment district of Austin, shortly after closing hours on
December 4, 2011. The decedent, Fatima Barrie, received a stab wound to the chest
and was transported to Brackenridge Hospital but ultimately died of her injuries on
December 21, 2011. [25 R.R.: 216]. Appellant received a self-inflicted stab
wound to her thigh and was taken by her friends to Seton South West Hospital where
she was located by the police, interrogated, and subsequently arrested.
The accounts of the confrontation between Appellant and the decedent, Fatima
Barrie, varied widely at trial.
Kelvin Jones went to a club, Republic Live along with some friends on
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 2
December 3 - 4, 2009. [22 R.R.: 11 - 14]. His fiancee, Jamie Hopkins, and her
classmate Fatima Barrie also went to Republic Live, but separately from him. [22
R.R.: 11, 14, 15]. A verbal argument between his friend, Ronald Pace, and another
individual, Chris Carson, occurred inside the club and continued outside after the
club closed and emptied outside onto the sidewalk. [22 R.R.:14, 16 - 24, 57, 59].
Jones overheard a girl make a provocative comment and he decided to get the girls
and leave before the situation escalated. [22 R.R.: 26, 68 - 69]. Jones picked up
Jamie Hopkins and turned her around so they could make their way from the
disputants. He did the same for Barrie who had been standing next to Hopkins. [22
R.R.: 26, 28, 29, 71 - 72]. Barrie had been swinging at a girl in a red dress when
Hopkins grabbed and moved her. [22 R.R. 92 - 93, 95, 114]. The three started
walking down the street, but after five or ten steps, Barrie collapsed to the sidewalk
and Jones noticed she was bleeding. [22 R.R.: 25 - 29, 30 - 31, 71 - 72]. Jones had
not seen when Barrie was stabbed. [22 R.R.: 18, 31]. Nor had he seen the girl who
Barrie had attacked holding a knife during the confrontation. [22 R.R.: 95].
Jaime Hopkins, Barrie’s friend testified that she and Barrie were leaving an
end-of-the-semester celebration at Republic Live in the early morning on December
4 when they encountered a group of individuals arguing outside the club. [21 R.R.:
164 - 176]. Two girls approached Hopkins and Barrie; Hopkins felt threatened and
started to walk away. [21 R.R.: 178 - 184]. As they walked away through the
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 3
crowd, someone pulled Hopkins’ hair. [21 R.R.: 186 - 189 (195)]. Her fiancee,
Kelvin Jones, who had attended the club with his own friends, appeared and moved
her to the side to avoid the crowd. [21 R.R.: 189 - 192]. As Jones moved her aside,
she observed Appellant behind her waiving a little knife in the air. [21 R.R.: 192 -
193, 219 - 220, 261]. Kelvin also picked up Barrie, moved her over, and the three
started walking away through the crowd. [21 R.R.: 194]. They walked a few steps
and Barrie stumbled and collapsed to the sidewalk. [21 R.R.: 196]. The
paramedics arrived and tended to Barrie, transporting her to the hospital. [21 R.R.:
197]. Hopkins did not see Barrie get stabbed. She insisted that neither she nor
Barrie had been aggressive toward the girls who had approached them. [21 R.R.:
204, 211, 230, 255, 262]. She did not see Barrie swing at or strike Appellant. [21
R.R.: 210, 231].
Oghenebrohien “Shermay” Uwahlogho, a photographer working that night
at Republic Live, testified that after the club had closed, she noticed two groups of
people outside arguing back and forth. [22 R.R.: 211, 216, 217 - 218]. At some
point during the argument, she observed Appellant in the crowd, with a knife raised,
but lower it after Ryan Moore restrained her and calmed her down. Appellant then
disappeared from her sight. [22 R.R.: 218 - 220, 229, 239, 263, 266 - 267]. She
then saw Appellant move around Moore and disappear from her sight [22 R.R.:
220, 259. She did not see a physical confrontation with Barrie nor did she witness
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 4
Appellant stab Barrie. [22 R.R.: 222, 242, 264]. While walking to her car, however,
she saw Barrie, bloodied, and lying on the sidewalk. [22 R.R.: 218 - 220, 242, 267].
Stefne Henderson testified in Appellant’s first trial, but was unavailable for
the re-trial; her previous testimony was read to the jury. [23 R.R.: 7 - 8].
Henderson and a friend had attended an end-of-semester party at Republic Live and
were waiting after the club closed to board a party bus parked outside in the street.
[23 R.R.: 14, 18]. She noticed that Appellant was among a group of other
individuals, including Chris Carson and Ryan Moore, who were arguing loudly
along with another group of individuals. [23 R.R.: 20 - 25, 73, 75, 80]. Appellant
started arguing with some women with the other group, moving from one woman to
argue with Barrie. [23 R.R.: 85, 86, 89 - 90]. The two moved closer toward each
other. [23 R.R.: 32]. Barrie stopped arguing, turned away, and started to walk off.
[23 R.R.: 44]. As
Barrie walked away, Appellant raised a knife into the air, and stabbed Barrie in the
chest by reaching around or over Barrie’s right shoulder. [23 R.R.: 47 - 48, 52, 94
- 95, 97 - 98, 100, 124 - 125, 135]. Barrie had not touched Appellant prior to being
stabbed. [23 R.R.: 101, 121]. Barrie walked a few steps and then fell to the
ground. [23 R.R.: 50, 101]. Henderson observed Ryan Moore grab Appellant’s
wrist and get her to drop the knife. Appellant then walked off through the crowd.
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 5
[23 R.R.: 50 - 51, 101 - 104]. Moore appeared to have injured his hand on the knife
because he ripped his shirt and wrapped his hand. [23 R.R.: 52, 54, 115].
Ashley York testified in the previous trial, but was “unavailable” for the re-
trial; her previous testimony was admitted in lieu of live testimony. York had
been a close a friend of Appellant. [23 R.R.: 146 - 147]. Ashley and several friends
had plans to go to Republic Live on the evening of December 3. [23 R.R.: 148].
Appellant had a date that evening and did not initially go to the club but was called
over later in the evening after one of the group became intoxicated and was ejected
from the club. [23 R.R.: 148 - 149, 152 - 153, 154]. Appellant waited outside the
club until it closed and met up with York outside. [23 R.R.: 156 - 157, 239]. York
observed that her friend Chris Carson was arguing with another group of people
outside. [23 R.R.: 159, 294]. Some girls with the other group, including Barrie,
joined the confrontation, and Appellant was drawn into the argument with Barrie.
[23 R.R.: 161 - 164, 167, 223, 278, 294, 295]. As the argument progressed, York
tried to restrain Appellant, but she pulled forward toward the other group of arguing
girls. [23 R.R.: 168, 175, 178, 179, 228]. York noticed that Appellant had a knife
in her hand. [23 R.R.: 176 - 177, 179, 191, 228, 303]. York began to walk away
and observed Barrie abruptly lunge toward Appellant and struck her in the head
with her cell phone. [23 R.R.: 164 - 166, 170, 184, 188 - 189, 224, 229, 240, 243,
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 6
251 - 252, 278, 282, 289]. York did not stay to watch the confrontation but walked
to Appellant’s car parked in a nearby lot. Appellant shortly caught up with her,
displaying a blood on her hand, and revealing that she had a stab wound on her
thigh. [23 R.R.: 192 - 194, 195 - 196, 199, 230, 282, 291]. She also had a knot
on her forehead from being struck. [23 R.R.: 283, 290]. York did not see
Appellant stab Barrie after Barrie struck her. [23 R.R.: 240].
Chris Carson, a friend of Ashley York’s fiancee, Ryan Moore, went to
Republic Live with Moore on December 3. [25 R.R. 227 - 229]. After closing,
Carson got into an argument outside the club with another club-goer, Ronald Pace,
with whom he had bad history. [25 R.R.: 233 - 240]. The confrontation grew
tense and Carson anticipated a fight breaking out. [25 R..R.: 237, 240]. While
arguing with Pace, Carson saw Barrie suddenly approach with her arm raised and
holding an object which appeared to be a high heeled shoe, but cross his path and
strike Appellant in the head. [25 R.R.: 241 - 242, 272 - 276]. After striking
Appellant, Barrie appeared to slip on the ground, but recover and very quickly Barrie
and Appellant “crash[ed] into each other.” [25 R.R.: 243 - 244, 278, 280]. Barrie
again had her arm raised, holding a high heeled shoe as she approached Appellant
a second time. [25 R.R.: 280]. Carson did not see Appellant with a knife as she
engaged Barrie – she was not waiving it over her head. [25 R.R.: 280]. After the
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two crashed into each other, the crowd surged around the two, blocking Carson’s
view of the events. [25 R.R.: 244 - 245, 281]. Carson and Ryan Moore left,
returning to Moore’s home. [25 R.R.: 246, 289]. Moore did not take a knife from
Appellant, nor had he been injured that evening. [25 R.R.: 247, 283, 286].
Britney Carson, Chris Carson’s younger sister also went to Republic Live on
December, separately from her brother. [26 R.R.: 299, 304, 306; 27 R.R.: 23]. She
left the club at closing time and saw Appellant and Ashley York standing outside in
the street. [26 R.R.: 308 - 309]. York was arguing with a group of girls while
Appellant stood by. [26 R.R.: 309 - 310; 27 R.R.: 31]. Suddenly, several girls
lunged toward York and Appellant. [26 R.R.: 311]. She saw Barrie, who was
among the group, struck Appellant in the forehead with her cell phone. [26 R.R.
311 - 312; 27 R.R.: 45 - 46, 49 - 51]. Barrie lost her balance after striking
Appellant, stumbled backward, and fell, but then regained her feet. [26 R.R.: 312 -
313; 27 R.R.: 53, 104]. After Barrie recovered her feet, Britney observed that
Appellant had a knife in her right hand and a frightened expression on her face. [26
R.R.: 314; 27 R.R.: 55, 56, 59, 103]. Barrie threatened Appellant, and group of
girls again moved toward Appellant and York. [26 R.R.: 314 - 315; 27 R.R.: 61 -
62, 63, 106]. Barrie still had her cell phone in her hand, raised as a weapon. [27
R.R.: 64]. After the crowd of people rushed together, Britney could no longer see
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Appellant. [25 R.R.: 315; 27 R.R.: 65 - 66, 108]. She left to go search for brother
in the crowd but was successful. [26 R.R.: 316; 27 R.R.: 68 - 69, 123]. As she
walked back along the sidewalk, she saw Barrie sitting on the curb, attended by her
friends. [26 R.R.: 317- 318; 27 R.R.: 70].
Ryan Moore, Ashley York’s fiancee, testified as a State’s rebuttal witness.
He, Chris Carson and another friend went to Republic Live on December 3 - 4. [27
R.R.: 137, 146 - 147]. Carson had an argument with someone inside the club
which continued outside after closing. [27 R.R.: 149 - 153, 157]. Barrie and her
friend were standing with the individual with whom Carson was arguing; York and
Appellant were standing around Carson and Moore. [27 R.R.: 153, 161]. Barrie
and her friend joined the argument and started to confront York and Appellant. [27
R.R.: 161, 212 - 213]. During the confrontation, Barrie suddenly removed her
shoes and lunged at Appellant, but her friend restrained her from completing the
attack. [27 R.R.: 164, 166, 168, 200, 218]. Barrie lunged a second time, this time
striking Appellant in the forehead with an object, either a shoe or a cell phone. [27
R.R.: 165, 170 - 171, 172, 173, 174 - 175, 201 - 202, 219, 245]. After being struck,
Appellant swung back at Barrie. [27 R.R.: 173, 176, 219]. Moore characterized
her response as reflexive or reactive to Barrie’s assault. [27 R.R.: 224]. Moore
grabbed Appellant after she swung at Barrie, discovering that she had been holding
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 9
a knife in her hand, and that Barrie had been stabbed. [27 R.R.: 176 - 177, 219,
221 - 222, 231, 233]. He forced the knife out of Appellant’s hand, and he kicked
it away after it dropped to the ground. [27 R.R.: 178, 180, 185, 222, 239].
Appellant appeared “shocked or confused” by what had just occurred, and then
walked off in Ashley York’s direction. [27 R.R.: 181 - 182, 222]. Moore was not
injured when disarming Appellant and did not remove his shirt or wrap his hand. [27
R.R.: 185, 223].
Austin police located Appellant in Seton Southwest Hospital later that
morning and questioned her. Appellant explained that she had been downtown
when a fight erupted. She felt a pinch in her leg and discovered that she had been
stabbed. [24 R.R.: 266 - 267, 268, 285; State’s Exhibit 40A]. She was transported
from the hospital to police headquarters downtown where she was interrogated by
a homicide detective. [24 R.R.: 278 - 279; 25 R.R.: 221, 223]. Appellant told
Nelson that she had been downtown near Republic Live when a fight broke out.
During that raucous she was stabbed in the leg by an unknown person [25 R.R.:
224 - 228]. Appellant admitted during her interrogation that she had participated in
a verbal altercation with another girl. [25 R.R.: 230 - 231, 242; State’s Exhibit 79].
During the altercation, the girl came at her and struck her. [25 R.R.: 239, 249 -
250]. She was also stabbed, and heard someone alert the crowd about someone
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having a knife. [25 R.R.: 239 - 240].
Barrie was transported to Brackenridge Hospital for her injuries. Dr. Charlie
Ross, a thoracic surgeon in the Brackenridge emergency room, attended to her,
treating her for penetrating wound to the chest consistent with a stab wound. [22
R.R.: 123, 125, 142]. Treated the decedent for a stabbing/penetrating wound to the
chest. [22 R.R.: 125]. The wound had pierced Barrie’s pulmonary artery, causing
the pericardial sack to fill with blood, depriving her hear to blood. [22 R.R.: 130,
148 - 149]. Dr. Ross performed an emergency thoractomy in anticipation of a
thoracic surgeon to repair the damage. [22 R.R.: 130]. Barrie’s medical records
reflected that she had experienced anoxic damage from the blood loss - a lack of
oxygen to her brain. [22 R.R.: 126, 135 - 136, 140]. She was declared brain dead
on December 21, 2011. [22 R.R. 141]
Dr. Ross agreed that stabbing a person in the chest with a sharp object was an
act which was clearly dangerous to human life. [22 R.R.: 142 - 143]. The object
used to inflict the injury was capable of causing death or serious bodily injury. [22
R.R.: 143].
Dr. Stephen Dewan, a cardiothoracic surgeon on call at Brackenridge Hospital
performed the reparative surgery to the injury to Barrie’s pulmonary artery. [22 R.R.:
157, 160 162, 168, 170]. Dr. Dewan estimated the depth of the injury was
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approximately 2 ½ inches deep. [22 R.R.: 173, 189]. It was a small entrance
wound, 2 ½ centimeters to a 0.5 centimeter laceration of the pulmonary artery. [22
R.R.: 174 - 175, 178]. The injury was consistent with having been caused by knife.
[22 R.R.: 175].
Questioned about the injury, Dr. Dewan admitted that the stab was not the
ideal manner for a person intending to stab another in the pulmonary artery. The
optimal position would have been for the recipient to be lying down, rather than
standing up. [22 R.R.: 187]. Dewan would want the recipient to be stationary rather
than moving. [22 R.R.: 187 - 188]. It would have been optimal to stab a person in
a lighted environment, not in the dark. [2 RR.: 189]. And, if the goal were to hit
the pulmonary artery with one stab, then it would be more probable if the recipient
of the stab were not wearing clothes. [22 R.R.: 190].
The forensic pathologist, Travis County Deputy Medical Examiner Vikie
Willoughby conducted the autopsy and concluded Barrie had died after receiving
“sharp force injury” – a stab wound to the chest. [24 R.R.: 208, 219]. The stab
wound was received to her proximal pulmonary artery which caused blood loss to
the brain. [24 R.R.: 209, 214, 225]. The injury went from less than 2 centimeters
down to 0.5 centimeters. [24 R.R.: 208, 231]. Dr. Willoughby could not
determine the size of the knife used to inflict the injury due to the elasticity of the
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human body. [24 R.R.: 230, 233]. She agreed that the act of stabbing a person in
the chest with a sharp object was “an act that’s clearly dangerous to human life.” [24
R.R.: 219, 220 - 221]. She could not conclude, however, whether the homicide was
intentional. [24 R.R.: 221].
The knife used to inflict the injury was not recovered and accounts of its size
also varied. [21 R.R.: 96]. One witness, Shermay Uwahlogho described the knife
as having a 4 inch blade. [22 R.R. 200, 202, 204]. Jamie Hopkins testified the
knife had a 2 ½ inch blade. [21 R.R.: 232]. Stefne Henderson described the knife
has “huge” and having a 6 inch blade [23 R.R.: 96, 125 - 126]. Britney Carson
characterized the knife as a “small knife”with about a 2 ½ inch blade. [27 R.R. 99,
106]. Ryan Moore characterized the knife has a “little knife,” possibly 4 ½ to 5
inches from handle to blade tip. [27 R.R.: 178 - 179, 228].
DNA testing reflected that the Barrie’s DNA was detected in samples
obtained from Appellant’s right shoe, pants, and jacket [25 R.R.: 151 - 152, 155, 160
- 161, 162 - 163, 184].
SUMMARY OF THE ARGUMENT
1. The trial court erred in denying Appellant’s requested instruction on the
lesser-included offense of manslaughter in the jury charge. As a matter of law,
manslaughter may be a lesser-included offense of murder under both Tex.Penal
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Code § 19.02(b)(1), intentional murder, and § 19.02(b)(2), commission of an act
clearly dangerous to human life. Under the specific facts of the present case, there
was at least a scintilla of evidence to support the jury’s conclusion that Appellant’s
having stabbed Fatima Barrie was a reckless acts, supporting the inclusion of the
lesser charge. The court’s omission of the requested instruction caused some harm
because the evidence both strongly supported a finding of manslaughter, and
Appellant specifically argued that the stabbing was a reckless act. The lack of an
instruction caused some harm to the defense.
2. The trial court erred in excluding from the guilt-innocence phase a
video of Appellant making exculpatory statements in a highly distraught state after
having been provoked into emotional distress by the news of Barrie’s impending
death. The court excluded the recording on the basis that the emotional outburst did
not constitute a “statement” because the officer who provoked the outburst left the
room. This definition of a statement was incorrect as a matter of law. Further, the
court erred in failing to find at the time of the video’s admission that it was
admissible as an excited utterance under Tex.R.Evid. 803(2). The omission of the
video had a substantial and injurious effect upon the verdict, both by excluding
highly probative exculpatory evidence of Appellant’s culpable mental state, a well
as depriving her of evidence which would have warranted a lesser-included charge
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of manslaughter.
3. The trial court also erred in preventing Appellant from playing the video
tape during the punishment phase of trial – although permitting a witness to describe
Appellant’s distraught state – under Tex.R.Evid. Rue 403. The video itself was the
“best evidence” of Appellant’s distress and could not be meaningfully or effectively
conveyed through a witnesses’ hearsay description of Appellant’s statements and
emotional state. The probative value of the evidence far outweighed any unfair
prejudicial effect which might have prompted the video’s exclusion as evidence.
The omission of the video had a substantial and injurious effect upon the punishment
verdict by excluding highly probative evidence of Appellants’ remorse, a factor
which the jury would have considered in assessing sentence.
4. The trial court erred in admitting under the excited utterance exception
of the Hearsay Rule statements by Appellant’s mother and brother relating to an
unadjudicated extraneous act in which Appellant attempted to stab her brother
during a family dispute. The record did not establish on its face that the declarants
met the threshold required to admit evidence as an excited utterance. The
admission of the hearsay statements had a substantial and injurious effect upon the
punishment verdict by introducing, for its substantive merit, an extraneous offense,
similar to the offense for which Appellant had been found guilty, and which reflected
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she was habitually assaultive.
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE:
THE TRIAL COURT PREJUDICIALLY ERRED BY DENYING APPELLANT’S
SPECIAL REQUESTED INSTRUCTION ON THE LESSER-INCLUDED OFFENSE
OF MANSLAUGHTER.
A. Facts on which claim relies
Appellant was charged with murder under two alternative theories,
intentionally and knowingly having caused death, under § 19.02(b)(1) and
committing an act clearly dangerous to human life under § 19.01(b)(2). [C.R. 20 -
21]. During the charge conference, Appellant submitted a special requested
instruction on the lesser-included offense of Manslaughter. [27 R.R.: 255 - 257].
The judge denied the instruction and the jury was authorized to either convict
Appellant of the offense of murder, or to acquit her outright. [C.R.: 286 - 296]. The
jury returned a verdict of guilty to murder, as alleged in the indictment [C.R.: 295].
B. Argument and Authorities
The trial court erred by denying Appellant’s special requested instruction for
an instruction on manslaughter. A defendant is entitled to a jury charge on a
lesser-included offense if two requirements are met: first, the defendant must
request an instruction on a lesser-included offense of the charged offense which
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constitutes a lesser-included offense under Tex.Code Crim.Pro. Art. 37.09, and
second, there must be "some evidence" that, if the defendant is guilty, he is guilty
only of the lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382
(Tex.Cr.App.2012); and, Flores v. State, 245 S.W.3d 432, 439 (Tex.Cr.App. 2008).
To be entitled to a lesser-included offense instruction there must be some affirmative
evidence which both raises the lesser-included, and rebuts or negates an element of
the greater offense. Cavazos, 382 S.W.3d at 385. Evidence to support the inclusion
of a lesser-included offense may come from any source and may be strong or weak,
impeached or contradicted. Bell v. State, 693 S.W.2d 434, 442 (Tex.Cr.App.1985).
"Anything more than a scintilla of evidence is sufficient to entitle a defendant to a
lesser charge." Bignall v. State, 887 S.W.2d 21, 23 (Tex.Cr.App. 1994). The court
does not consider the credibility of the evidence in support of a lesser-included
offense. Banda v. State, 890 S.W.2d 42, 60 (Tex. Cr.App. 1994).
I. Involuntary Manslaughter is a lesser-included offense of Murder under
§§ 19.02(b)(1) and (b)(2).
Like murder, manslaughter is a result-oriented offense. See Britain v. State,
412 S.W.3d 518, 520 (Tex.Cr.App. 2013) (citing Schroeder v. State, 123 S.W.3d
398, 400-01 (Tex.Cr.App.2003)). But in distinction to murder, which requires the
specific intent to cause death, involuntary manslaughter involves a culpable mental
state of recklessness about whether death may result from the defendant’s conduct:
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To prove manslaughter, the evidence must prove that the defendant
recklessly caused the death of an individual. A person acts recklessly
. . . when he is aware of but consciously disregards a substantial and
unjustifiable risk. . . . The risk must be of such a nature and degree that
its disregard constitutes a gross deviation from the standard of care that
an ordinary person would exercise under all the circumstances as
viewed from the actor's standpoint.
Britain, 412 S.W.3d at 520 (footnotes and internal quotations omitted).
The Court of Criminal Appeals, as well as lower courts have recognized that
manslaughter – recklessly causing the death of an individual is a lesser-included
offense of murder under Art. 37.09. Cavazos, 382 S.W.3d at 386 (manslaughter can
be a lesser-included offense to murder under § 19.02(b)(2) murder); Thomas v.
State, 699 S.W.2d 845, 852 (Tex.Cr.App. 1985); Brown v. State, 296 S.W.3d 371,
384 (Tex. App.- Beaumont 2009); andi, Chavarriga v. State, 156 S.W.3d 642,
648 (Tex.App. - Tyler 2004).
In Cavazos, the Court of Appeals specifically addressed manslaughter as a
lesser-included offense to murder under § 19.02(b)(2) – committing an act clearly
dangerous to human life. The Court explained that manslaughter could be a lesser-
included offense to § 19.02(b)(2) murder because the functional difference between
a murder and manslaughter lay in the difference of the culpable mental state, intent
versus recklessness, a difference which met the criteria for a lesser-included offense
under Art. 37.09(3):
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The differences here are the following: Murder as alleged in the
indictment included the intent to cause serious bodily injury and the
commission of an act clearly dangerous to human life (shooting with a
firearm) whereas manslaughter includes recklessness, which is a
conscious disregard of a substantial and unjustifiable risk regarding
circumstances or results surrounding the conduct. The commission of
an act clearly dangerous to human life, shooting with a firearm, is the
circumstance surrounding the conduct, which would be the same under
either murder or manslaughter. This leaves us with the only difference
being intent versus recklessness.
We disagree with the court of appeals's contention that the
murder charged in this case does not require a culpable mental state for
causing another's death. . . . Here, the indictment specified that
Appellant shot the victim with a deadly weapon, so it can be inferred
that he had the intent to cause the victim's death. Although the only
mens rea specified in Section 19.02(b)(2) is the intent to cause serious
bodily injury and the statute does not add a culpable mental state to the
conduct that caused the death, murder under Section 19.02(b)(2) is a
"result" crime. . . . . And, because the definition of recklessness is
disregarding a risk that circumstances exist or the result will occur, the
reckless mens rea for man-slaughter applies to either the nature of the
conduct or the result of the conduct.
We conclude that causing death while consciously disregarding
a risk that death will occur differs from intending to cause serious
bodily injury with a resulting death only in the respect that a less
culpable mental state establishes its commission. See TEX.CODE
CRIM. PROC. ANN. art. 37.09(3).
Id., at 384 (footnote and citations omitted).
Accordingly, manslaughter is a lesser-included offense of murder alleged
under both (b)(1) and (b)(2).
ii. There was sufficient evidence at trial to support the submission of the
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lesser-included instruction.
The evidence to support the submission of a lesser-included offense need only
be more than a scintilla. Bignall, 887 S.W.2d at 23. Further, in evaluating
evidence, as fact-finders, jurors are entitled to make reasonable inferences and
interpretations from what they have heard. Hooper v. State, 214 S.W.3d 9, 13, 14
(Tex.Cr.App. 2007).
There was sufficient evidence before the trial court to meet the factual basis
to submit a lesser-included offense instruction on manslaughter. The testimony
which reflected Appellant’s specific intent to kill was limited to Stefne Henderson,
who claimed that Appellant rushed Barrie from behind, reached over her right
shoulder, and stabbed her with a “huge” knife. [23 R.R.: 47 - 48, 52, 94 - 95, 96,
97 - 98, 100, 124 - 126, 135]. The autopsy refuted this account. Although
Appellant was taller than Barrie, 23 R.R.: 33, 49, 125, there was no appreciable
downward wound track. [24 R.R.: 211]. Moreover, the wound track went from left
to right, 24 R.R.: 210, rather than the right to left track that one would expect from
an attack over Barrie’s right shoulder and across her chest. The jurors could have
reasonably accepted the medical testimony over Henderson’s account to reject her
account of the stabbing.
Other medical testimony, that by Dr. Dewan, cast doubt upon whether the
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 20
injury, under the circumstances in which it was inflicted, was one which an
individual would have specifically intended to target and strike the heart. The
angle of attack was not optimal to reach the target, it was dark and the recipient of
the stab was moving, as well as clothed. [22 R.R.: 187 - 190]. Jurors could have
accepted the tenor of the questioning and responses to cast doubt on whether
Appellant had intended to target Barrie’s heart or inflict a fatal wound.
Further, while the medical experts agreed that the act of stabbing an
individual in the chest was one which was clearly dangerous to human life, 22 R.R.:
142 - 143, 175; 24 R.R.: 219, 220 - 221, none of them ventured to stated that the
act demonstrated the intent to kill. The pathologist specifically testified that she
could not conclude that homicide had been intentional. [24 R.R.: 221]. Jurors
could have concluded that while the act of stabbing an individual in the chest was
dangerous, it did not conclusively prove the intent to kill as opposed to reckless
behavior. Dr. Willoughby’s concession that she could not conclude the homicide
was “intentional” merely reinforced the open question of Appellant’s culpable
mental state.
Moreover, the varying accounts of the knife further militate toward the lesser-
included charge by refuting an implication that Appellant had the specific intent to
kill when she stabbed Barrie. While Henderson characterized the knife as having
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a six -inch blade, 23 R.R. 96, 1125 - 126, other witnesses, Britney Carson and
even Barrie’s friend, Jamie Hopkins estimated the blade to have been approximately
2 ½ inches. [21 R.R.: 232; 27 R.R.: 99, 106]. Jurors could have reasonably
concluded that an individual using a small pen knife, as opposed to a large carving
knife, would not necessarily have specifically intended to kill another person, as
opposed to merely intending to injure her.
Finally, yet most importantly, Ryan Moore’s testimony supported a
conclusion that Appellant lacked a specific intent when she struck Barrie in
response to the previous assault. He characterized Appellant’s response to Barrie
as “reflexive” or “reactive.” [27 R.R.: 224]. After striking Barrie, Appellant
appeared “shocked or confused” by what had happened. [27 R.R.: 181 - 182, 222].
Jurors giving credence to Moore could have concluded Appellant lacked a specific
intent, but in her striking out against Barrie with a knife in response to the assault,
had disregarded the dangerousness of her actions.
The evidence before the trial court amounted to more than a scintilla to
support the submission of the lesser-included charge of manslaughter. In light of
Cavazos, the jurors could have regarded the facts before them as reflective of
reckless disregard to the likelihood that death would result from striking Barrie with
a knife. The trial court erred in denying the requested instruction.
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 22
iii. The denial of a lesser-included instruction on manslaughter
resulted in “some harm” to the defenses and compels reversal.
The denial of a requested jury instruction is measured for “some harm.”
Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1984); Arline v. State, 721
S.W.2d 348, 351 (Tex.Cr.App. 1986); and, Otting v. State, 8 S.W.3d 681, 688
(Tex.App. - Austin 1999). The harm must be actual, rather than theoretical.
Arline, 721 S.W.2d at 351. But if the denial of the instruction had any prejudicial
impact upon the defense, then a conviction must be reversed. Arline, 721 S.W.2d
at 351; and, Otting, 8 S.W.3d at 688 (“Error properly preserved by an objection
will require reversal as long as the error is not harmless. . . . This has been
interpreted to mean any harm regardless of degree.”) (Internal quotations omitted).
If the absence of instructions on the lesser included offenses requested
and to which the defendant is entitled, leaves the jury with the sole
option either to convict the defendant of the charged offense or to
acquit him, a finding of harm is essentially automatic because the jury
was denied the opportunity to convict him of the lesser included
offenses. This is true because the jury, believing the accused to have
committed some crime but given the option only to convict him of the
greater offense, may choose to convict him of the greater offense,
rather than acquit altogether, even though it had a reasonable doubt he
really committed the greater offense.
Otting, 8 S.W.3d at 689 (citing Saunders v. State, 913 S.W.2d 564, 571
(Tex.Cr.App. 1995)). See also, Montgomery v. State, 198 S.W.3d 67, 94
(Tex.App. - Ft. Worth 2006) (citing Otting).
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Appellant was harmed by the trial court’s denial of the lesser-included charge
on manslaughter because it placed the jury into an untenable “either-or” position
in deliberating over muddled facts relating to a homicide. The evidence as a whole
reflected that Appellant caused Barrie’s death, but did not clearly and unequivocally
reflect it was murder under § 19.02. The length of the jury’s deliberation – 9 ½
hours, 28 R.R.: 124 – belies any conclusion that the evidence was overwhelming.
While the evidence reflected Appellant had caused Barrie’s death, it was
nevertheless equivocal as to her culpable mental state. The medical evidence did
not prove it to have been an intentional homicide – at most, the experts could
conclude that it had been a dangerous act to stab Barrie in the chest – and the
testimony by Henderson, the only direct witness to the stabbing, was largely offset
by the medical evidence. The jury was permitted only two options, however,
convict for murder or outright acquittal. Appellant acknowledged this limitation
to the jury – that if they believed Appellant had acted recklessly, and thus been
guilty only of manslaughter, they would have to acquit her. [28 R.R.: 78]. In the
absence of an option of manslaughter, Appellant’s attempt to emphasize in closing
argument that Appellant’s conduct had been only been reckless, 28 R.R.: 78 - 79,
was rendered ineffectual. The harm to Appellant was precisely that harm which
this Court recognized in Otting, that the jury, “believing [Appellant] to have
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committed some crime but given the option only to convict [her] of the greater
offense, [would] choose to convict [her] of the greater offense, rather than acquit
altogether, even though it had a reasonable doubt [she] really committed the greater
offense.” Otting, 8 S.W.3d at 689.
Accordingly, this Court should hold the trial court erred in denying Appellant
an instruction on the lesser-included offense of manslaughter, and that the denial of
this instruction caused actual harm to Appellant’s case. Her conviction should be
reversed and the case remanded to the trial court.
§§§
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GROUND FOR REVIEW NUMBER TWO:
THE TRIAL COURT ERRED BY EXCLUDING A VIDEO RECORDING OF
APPELLANT’S EMOTIONAL OUTBURST UPON LEARNING THAT THE
DECEDENT WOULD DIE FROM HER INJURIES.
A. Facts in Support of Claim
During the guilt-innocence phase of trial, the State presented testimony by the
lead Detective, Anthony Nelson about his interviews of Appellant following the
Barrie’s stabbing. Nelson first met with Appellant in the morning hours of
December 4 after she was brought to police headquarters from the hospital. [25
R.R.: 222 - 224]. Nelson’s interview of Appellant was recorded and the video was
both published to the jury and admitted into evidence as State’s Exhibit 79. [25
R.R.: 235 - 237, 244 - 245, 247, 248, 249, 250, 252, 254]. Nelson also discussed
Appellant’s statements to him about the events of the evening. [25 R.R.: 224 -
256].
Nelson again met with Appellant on December 6, after she voluntarily
appeared at the police station. [26 R.R.: 115]. During the interview, Nelson
informed Appellant that Barrie was expected to die from her injuries. In response
to this news, Appellant immediately lost her composure, “became emotional, [and]
cried.” [26 R.R.: 115, 116]. Nelson left the room, but later permitted
Appellant’s mother to visit her. [Def Ex. 132]. The hidden cameras remained
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 26
activated in the room, however, and Appellant’s conversation with her mother were
recorded. [26 R.R.: 131 - 132].
Appellant sought to introduce the recordings of Appellant’s reaction to news
that Barrie would die, but the trial court sustained the State’s hearsay objection.
[26 R.R.: 119 - 128]. In a hearing outside the jury’s presence, Nelson explained
that he met with Appellant on October 4 and started reading her the Miranda
warnings when she advised him that she had an attorney. [26 R.R.: 121 - 122].
He placed her under arrest and advised her that Barrie was going to die from her
injuries. [26 R.R.: 122]. Appellant started to cry and Nelson left the room. [26
R.R.: 123]. Outside the interview room, he encountered Appellant’s mother and
decided to let her speak with Appellant in the interview room. [26 R.R.: 123].
Her returned after Appellants’ mother knocked on the door and stated Appellant had
wanted to speak with Barrie’s mother. [26 R.R.: 123 - 124]. He did not resume
questioning Appellant. [26 R.R. 124].
The court concluded Appellant’s statements on the video were not excited
utterances because they were not actually made to Detective Nelson:
there’s not any statement actually made to this witness other than her
crying. . . .
...
. . . the rule basically says a statement relating to a startling event or
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 27
condition. . . . no statements that I know of were actually made to this
witness other than seeing her start crying. So I’m going to sustain the
State’s objection.
[26 R.R.: 125].
The recording, Defense Exhibit 132 was admitted into the record in a bill of
exception. [26 R.R.: 120, 127 - 128].
B. Argument and Authorities
The trial court erred in excluding Defense Exhibit 132 on the basis that
Appellant’s excited utterances had not been to Detective Nelson.
A court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Cr.App. 1991); and,
Sandoval v. State, 409 S.W.3d 259, 297 (Tex.App. - Austin 2013). A court’s
exercise of discretion will be sustained if it falls within the zone of reasonable
disagreement. Sandoval, 409 S.W.3d at 297. A court necessarily abuses its
discretion, however, if it bases its decision upon a misunderstanding of the law, or
a misapprehension of the facts. Moreno v. State, 22 S.W.3d 482, 489 (Tex.Cr.App.
1999). Compare, Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir. 2002)
(“An abuse of discretion occurs where the ‘ruling is based on an erroneous view of
the law or on a clearly erroneous assessment of the evidence’.”); and, United States
v. Clymore, 245 F.3d 1195, 1198 (10th Cir. 2001) (“the district court abused its
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 28
discretion in relying on a mistake of fact on which to base [its ruling].”).
The trial court excluded Defense Exhibit 132 on the ground that her
comments had not been directed toward Detective Nelson: “no statements that I
know of were actually made to this witness other than seeing her start crying. So
I’m going to explain the State’s objection.” [26 R.R.: 125]. The court did not
take issue with the contention that Appellant was emotionally distraught upon
learning Barrie would die, and so Appellant takes the position that it is not
necessary the brief the issue of whether Nelson’s comments statements were
sufficient to place Appellant “the stress of excitement caused by the event. . . ”
Tex.R.Evid. Rule 803(2). This predicate showing, that Appellant was under the
stress of Nelson’s statements regarding Barrie’s condition and her own arrest
appears to have been accepted by the court.
I. The trial court conflated the issue of Appellant’s statement under the
Rules of Evidence with whether they were a statement for the
purposes of a custodial interrogation.
The trial court’s ruling is based on its misunderstanding of what constitutes
a “statement” under the Rules of Evidence and conflating that with the concept of
a “statement” for procedural admissibility rules under the Constitution and Code of
Criminal Procedure. The hearsay rule defines a “statement” as any oral or written
verbal expression, or non verbal conduct which substitutes for a verbal expression.
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Tex.R.Evid 801(a). This definition differs from the “testimonial statement” or
interrogation-related statements. See generally, Crawford v. Washington, 541 U.S.
36, 51 - 52 (2004) (discussing testimonial statements); Miranda v. Arizona, 384
U.S. 436 (1966) (addressing custodial statements); and, Tex.Code Crim.Pro. Art.
38.22. These concepts of a statement for hearsay purposes, and a “statement” for
procedural purposes are distinct. “Statement” in the context of Miranda and
custodial interrogations connotes a two-way exchange of information for law
enforcement purposes. There is a speaker and there is a listener. A “statement”
under the Rules of Evidence contains no such definitional limitation that it me made
to any particular individual, or even to another individual. There is no requirement
under the Hearsay Rule that a “statement” must result from a question. Private
diary entries constitute “statements” under the hearsay rule. See Turpin v.
Kassulke, 26 F.3d 1392, 1401 (6th Cir. 1994); United States v. Treff, 924 F.2d
975, 983 (10th Cir. 1991); and, Walker v. Lockhart, 763 F.2d 942, 951 (8th Cir.
1985). Assertions made by a person in her sleep and overheard by others may
constitute “statements,” although their admissibility is dubious See Annot.,
Admissibility of Evidence Concerning Words Spoken While Declarant Was Asleep
or Unconscious, 14 A.L.R. 4th 802, 804 (1982 & Supp. 1989). Appellant’s own
soliloquy plainly met the definition of a “statement” under the Hearsay Rule
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regardless of whether it was directed to Detective Nelson, to another person, or
merely expressing her thoughts aloud.
ii. Appellant’s comments in the interrogation room were made while still
under the stress of learning that her conduct would result in Barrie’s
death.
Nelson testified that after confronting Appellant that Barrie was expected to
die and that Appellant would be arrested, Appellant started to cry and he left the
room. [26 R.R.: 115 - 116, 122 - 123]. Defense Exhibit 132, the video itself,
reflects Nelson downplayed the extent of Appellant’s emotional response in the
interrogation room: she is plainly overwrought, audibly wailing, and
hyperventilating. [Def Ex. 132]. Even after her mother entered the interrogation
room, Appellant was visibly distraught while discussing the incident.
A hearsay statement under the excited utterance exception need not
immediately follow from the incident but may arise at a later time if a sufficient
triggering event prompts an overwhelming emotional response. McCarty v. State,
257 S.W.3d 238, 240 (Tex.Cr.App. 2008); Apolinar v. State, 155 S.W.3d 184
(Tex.Cr.App. 2005); and, Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Cr. App.
2003). “The startling event need not be the original offense but can be a subsequent
event, so long as it is itself startling or shocking.” Sandoval, 409 S.W.3d at 285;
Edmondson v. State, 399 S.W.3d 607, 614 (Tex.App. - Eastland 2013); and, Hunt
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v. State, 904 S.W.2d 813, 815 (Tex.App. - Fort Worth 1995). The declarant’s
emotional state need not be continual as long as the triggering incident is sufficient
to produce a sufficient emotional state to precluding the declarant’s ability to reflect
upon her statements. McCarty, 257 S.W.3d at 240. See also, Zuliani, 97
S.W.3d at 595 - 596. The controlling inquiry under is whether the declarant is
capable of conscious reflection despite her emotional state or whether she is
sufficiently dominated by her emotional reaction to the triggering incident as to
preclude conscious reflection upon her statements. Zuliani, 97 S.W.3d at 596.
Appellant’s statements occurred within minutes of Nelson arrested her and
advised her that Barrie would die from her injuries. Her demeanor on video reflects
the extent to which she was influenced by Nelson’s statement. Even after
Appellants’ mother entered the interrogation room to comfort her, the video still
reflects Appellant was still dominated by her arrest and the news of Barrie’s
impending death. All of Appellant’s exculpatory statements occur within
approximately one half hour of learning of the death.
Notably, the court reversed its’ ruling at the conclusion of the punishment
phase of trial, acknowledging that Appellant’s statements in the interrogation room
had been excited utterances:
I do think that we should have her testify as to initial statements that
the daughter made to her there. I do think they are excited utterances
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as to her finding out that [Barrie’s] going to die, that the victim is
going to die. I do think that they are excited utterances. And the
ones that she – the statements that she makes to her mom, I think are
admissible on that subject.
[29 R.R.: 199].
This later ruling, through clearly supported by the facts, came several days
late and more than a dollar short; by the time it recognized the admissibility of
Appellant’s statement as an excited utterance, its relevance to the guilt phase had
passed. For this reason, the trial court erred in initially excluding Appellant’s
statements upon learning of Barrie’s impending death. To the extent that the trial
court excluded the evidence under the belief that Appellant’s assertions did not
constitute a “statement,” it rested upon an incorrect evaluation of the law. And to
the extent that the court believed the statement did not constitute an exited
utterance, its explanation on the record plainly demonstrates it was incorrect.
iii. The exclusion of the video had a substantial and injurious effect on
Appellant’s case by depriving her of directly relevant evidence of her
lack of specific intent to kill, or cause serious bodily injury to Barrie.
The erroneous exclusion of evidence is reviewed for whether the error had
a substantial and injurious effect upon the jury’s verdict. King v. State, 953
S.W.2d 266, 271 (Tex.Cr.App. 1997); and, Tex.R.App.Pro. Rule 44.2(b). This
review is not the equivalent to a mere inquiry into the sufficiency of the evidence.
While the strength of the evidence is a consideration of whether the error had a
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 33
substantial and injurious effect on verdict, the strength of the evidence as a whole
is not determinative. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Cr.App. 2003).
Unless the court has a fair assurance that the error did not have a substantial and
injurious effect upon the verdict, it must reverse the verdict. Garcia v. State, 126
S.W.3d 921, 927 (Tex.Cr. App. 2004); and, Motilla v. State, 78 S.W.3d 352, 355
(Tex.Cr.App. 2002). If the court has a doubt about whether the error might have
influenced the verdict, then it must presume that the error had an effect. See,
Barshaw v. State, 342 S.W.3d 91, 94 (Tex.Cr.App. 2011).
The exclusion of the video was highly damaging to Appellants defense
because it deprived her of potentially probative exculpatory evidence, in essence,
an anti-confession. The video of Appellant’s emotional reaction upon learning of
Barrie’s impending death was relevant because it contained express exculpatory
statements probative toward her intentions toward Barrie on the night of the
confrontation. At several points, a distraught Appellant exclaimed that she had
“not meant to do it,” or have “meant” to have caused Barrie’s death. [Def Ex. 132
(counter at 42:00, 46:54, and 54:54)]. These statements were relevant and
probative toward her culpable mental state; had the jury believed by the jury, it
could have concluded that he had lacked the requisite culpable mental state to
commit murder. Her general distress from learning of Barrie’s impending death,
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 34
expressed through her remorse could have been interpreted by the jury to negate the
culpable mental state to kill or cause injuries that resulted in Barrie’s death.1 See
and compare, Darby v. State, 145 S.W.3d 714, 721 (Tex. App. -Fort Worth 2004)
(citing Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Cr.App. 1991) (holding that
lack of remorse is evidence from which jury can infer intent). See also, Barley v.
State, 01-12-01002-CR, slip op. at 13 (Tex.App.- Houston [1st Dist.] 10-29-2013)
(not published) (“A jury may consider a defendant's attitude during his police
interview . . . when assessing guilt. Further, an intention to commit murder
reasonably can be inferred when a defendant is hostile and shows no empathy or
remorse during his police interview.”); and, Soto v. State, 13-10-013-CR, slip op.
at 18 (Tex.App. - Corpus Christi 10-20-2011) (not published). This testimony
carried a strong probative value to the issue of Appellant’s culpable mental state
on the night of the incident. Moreover, the credibility of her statements could only
be enhanced by the fact that her statements were made without anyone being
present, underscoring the truth of her statements.
Further, the exclusion of the evidence also deprived Appellant of a clear
factual basis to support the submission of a lesser-included offense of manslaughter.
1
An individual who had intended to cause death or serious bodily injury would arguably not
have expressed remorse upon learning that the complainant was likely to die from the assault. Why
would she if she had intended to cause the very injuries she had just learned had occurred ? By contrast,
the remorse reaction entails the defendant had not intended, nor anticipated that the injury would have
occurred in light of her conduct.
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It is reasonably likely that had the evidence been admitted, it would have prompted
the trial court to submit the requested instruction (or, in the alternative, to
strengthen Appellant’s point of error on appeal) to the jury, permitting Appellant to
present a reasonable option to the jury.
The trial court’s exclusion of Defense Exhibit 132 had a definite and
substantial prejudicial effect upon the defense and compels reversal of Appellant’s
conviction.
§§§
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GROUND FOR REVIEW NUMBER THREE:
THE TRIAL COURT ERRED IN REFUSING APPELLANT TO ADMIT
DEFENSE EXHIBIT 132 AT THE PUNISHMENT PHASE OF TRIAL IN ORDER
TO DEMONSTRATE APPELLANT’S REMORSE.
A. Facts in support of claim
Patricia Ritcherson, Appellant’s mother testified during the defense’s
punishment case-in-chief as one of two witnesses. [29 R.R.: 161 - 192, 201 -
206]. Ritcherson stated that her daughter voluntarily went to the police station on
December 6 and was arrested. [29 R.R. 175]. Ritcherson went down to the station
and was permitted to meet with Appellant. [29 R.R.: 181]. Appellant was “visibly
upset” and was crying about wanting to see her [deceased] father. [29 R.R.: 176].
In a bench conference, Appellant advised the court that she wanted to show Defense
Exhibit 132 as evidence of her remorse. [29 R.R.: 178 - 179]. After considering the
issue the court concluded that Appellant’s statements to her mother were excited
utterances, and permitted the defense to call Ritcherson to relate her daughter’s
statements to her. [29 R.R.: 200 - 201].
Appellant requested to “offer the video itself as best evidence of what
actually occurred there between Ms. Ritcherson and her daughter, Kaitlyn.” [29
R.R.: 201]. The court denied the request “on Rule 403" grounds. [29 R.R.: 201].2
2
While the court did not specify its precise basis for excluding the video, its comments during
the bench conference reflect the court wanted to conclude the trial by 5:00 o’clock: “Also, it’s 20 till
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 37
Ritcherson subsequently testified that she was permitted to meet with her
daughter after she had been arrested. [29 R.R.: 202]. Appellant was crying and said
that she wanted to “meet her father.” Appellant’s father was deceased and
Ritcherson interpreted her daughter’s statements to mean that she wanted to die.
[29 R.R.: 202]. Appellant also told her that she had been frightened the evening
of the incident with Barrie and that she had not intended to harm Barrie. [29 R.R.:
203, 204].
B. Argument and Authorities
The trial court erred by denying Appellant’s request to publish Defense
Exhibit 132 and limiting the evidence of Appellant’s remorse to a hearsay recital
through her mother, Patricia Ritcherson. The court abused its discretion under
Rule 403 by excluding the video, which constituted the best, most probative
evidence of Appellant’s remorse, in favor of the second-hand recitation of
Appellant’s statements.
I. The Trial Court’s exclusion of the evidence under Texas Rule of
Evidence Rule 403 was unreasonable because it thwarted the policy
of admitting relevant and probative evidence while lacking any
overwhelming justification set out by the Rule.
The Rules of Evidence carry the presumption that relevant evidence will be
admissible. Pawlak v. State, 420 S.W.3d 807, 809 (Tex.Cr.App. 2013); and, Jessop
5:00 and we need to wrap this thing up.” [29 R.R.: 200 - 201].
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 38
v. State, 368 S.W.3d 653, 684 (Tex.App.-Austin 2012). Under Rule 403, relevant
evidence should be excluded only if the probative value is substantially outweighed
by the danger of unfair prejudice or other listed considerations.3 Montgomery, 810
S.W.2d at 387. “Unfair prejudice' refers to a tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.” Jessop,
368 S.W.3d at 684 (internal quotations omitted). Trial courts should favor the
admission of in close cases. Sanders v. State, 422 S.W.3d 809, 815 (Tex.App.-Ft.
Worth 2014). “It is only when there exists a clear disparity between the degree of
prejudice produced by the offered evidence and its probative value that Rule 403
is applicable.” Jessop, 368 S.W.3d at 684.
In reviewing whether to admit evidence under Rule 403 the court should
consider, (1) the probative value of the evidence; (2) the potential to impress the
jury in some irrational, yet indelible, way; (3) the time needed to develop the
evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144
S.W.3d 487, 489 (Tex. Cr. App. 2004); Reese v. State, 33 S.W.3d 238, 240-41
(Tex.Cr.App. 2000).
In the present case, the evidence was highly probative to show Appellant’s
3
These considerations are: evidence which confuses the issues, evidence which misleads the
jury, evidence which causes undue delay in the course of trial, or evidence which is needlessly
cumulative to other evidence which has been presented. Tex.R.Evid. Rule 403.
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 39
remorse over having caused Barrie’s death. As direct evidence of her reaction, it
was direct evidence of her reaction and the sincerity of her beliefs. The evidence
did not post a threat of influencing the jury in an irrational manner. The time
necessary to present the evidence was minimal in context of the entire trial. The
portion of the video which depicted Appellant was approximately 40 minutes; of
this, approximately 20 - 30 minutes constituted reflected her emotional outbursts.
Finally, Appellant had a high need for the video since the quality of her remorse
could not be meaningfully or as probatively presented through another source.
While Appellant’s mother could relate that her daughter had been emotional and
made statements of remorse, her dry testimony could not fully convey Appellant’s
statements in their full probative value.
In light of the foregoing, the factors in favor of publishing the portion of the
video, Defense Exhibit 132 to the jury instead of limiting the defense evidence to
Patricia Ritcherson’s recitation of her daughter’s statements substantially outweighs
the Rule 403's listed considerations:
a. The video would not have unfairly prejudiced the State;
There was nothing in the video which would have unfairly prejudiced the
State since the video merely captured Appellant’s emotional reaction on hidden
cameras in the police interrogation room after Detective Nelson advised her of
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 40
Barrie’s anticipated death. The State in effect created the very evidence by
prompting Appellant’s emotional reaction and then recording that reaction. It
could even be argued that Detective Nelson’s decision to permit Patricia Ritcherson
to visit her daughter was premised on his gambit that Appellant might make an
inculpatory admission to her mother. Regardless of the reasoning for the State’s
recording Appellant’s reaction, “unfair” prejudice in the context of Rule 403 refers
only to the tendency of evidence to promote a decision on an improper basis.
Jessop, 368 S.W.3d at 684. Insofar as the video objectively recorded Appellant’s
remorse for her actions, it was not improper.
b. The video would not have confused the issues;
The video would not have confused the issues for punishment because
whether a defendant is remorseful for her conduct is an important consideration in
assessing punishment. See McMahon v. State, 582 S.W.2d 786, 791 (Tex.Cr.App.
1978); People v. Watts, 165 P.3d 707, 713 (Colo.App. 2006); People v.
Vanhoesen, 3 A.D.3d 787, 771 N.Y.S.2d 730 (N.Y. 3d Dept. 2004); State v.
Bauerly, 520 N.W.2d 760, 762 (Minn.App. 1994); State v. Constantine, 588 A.2d
294, 296 (Me. 1991); and, People v. Allen, 158 Mich. App. 472, 478, 404 N.W.2d
266 (1987).
c. The video would not have mislead the jury;
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The video was offered as probative evidence of Appellant’s remorse. In
response to the court’s limitation of the evidence to Ritcherson’s account of her
daughter’s reaction, Appellant plainly objected that the video itself was the “best
evidence” available to prove the issue. [29 R.R.: 201]. The “best evidence” rule
is premised on the basis of “produc[ing] the best obtainable evidence” for the jury’s
consideration. Jurek v. Couch-Jurek, 296 S.W.3d 864, 871 (Tex.App. - El Paso
2009). “[T]he exact words are "of more than average importance particularly in
the case . . . where a slight variation of words may mean a great difference . . ..”
Englund v. State, 946 S.W.2d 64, 67 (Tex.Cr.App. 1997). “[I]f a party chooses to
establish the content of a conversation by offering a recording, the best-evidence
doctrine applies and Rule 1002 requires the introduction of the original recording
. . .” Texas Rules of Evidence Handbook, 988 (2011). Publishing the video itself
would have permitted the jury to evaluate Appellant’s emotional reaction, rather
then rely upon a limited and filtered recitation of that reaction by her mother.
Rather than mislead the jury, depriving them of the video interfered with their role
in evaluating “the sincerity of defendant's remorse” an issue “relevant to
sentencing.” Allen, 158 Mich. App. at 478. Ritcherson’s testimony, rather than the
video carried a capacity to mislead the jury because her recitation lacked the direct
and immediate quality to making credibility determinations. The jurors would
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have been no more mislead by actually viewing Appellant’s emotional response
than they were when viewing her responses during the December 4 interrogation.
d. The video would not have caused undue delay in the course of
trial;
The court’s comments during the bench conference, that it wanted to
conclude the trial around 5 p.m. suggests that this was the primary factor underlying
the court’s decision to limit the presentation of evidence. [29 R.R.: 200 - 201].
Concededly, the court has a valid interest in managing its docket. But that
consideration is not paramount, and must be evaluated in the context, not in
absolutes.
Appellant was convicted of a first degree felony. She was facing a sentencing
range of 5 years to life imprisonment. Trial on the merits had lasted nine days.
The State presented twenty-nine witnesses; Appellant presented four. The
punishment phase lasted one day. The State presented four witnesses; Appellant
presented two. The time in which Appellant appeared on video was approximately
40 minutes but the time period in which Appellant made the relevant excited
outburst was between 20 - 30 minutes. By limiting Appellant’s presentation of
probative evidence, the court injected a significant inequity of time between the
State and defense’s punishment phase presentations. The State presented four
witnesses throughout the day to prove a single uncharted extraneous offense
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involving Appellant and her brother. Appellant, by contrast, presented only two
witnesses, her mother, and her pastor, the latter whose testimony was relatively
brief. The court’s limitation of Appellant’s punishment evidence in order to hasten
the end of trial does not appear to arise from Appellant having taken an inordinate
amount of time in presenting his punishment case. The court’s desire to complete
the trial by 5 p.m. by truncating the defense’s presentation of 30 minutes worth of
video was unreasonable under the equities involved in the case.
e. The video was not needlessly cumulative with other evidence
which had been presented.
Publishing the video to the jury would not have been needlessly cumulative
with other evidence of Appellant’s remorse for the simple reason that the video was
the only evidence relating to Appellant’s remorse for having caused Barrie’s death.
The factors prompting exclusion under Rule 403 do not substantially
outweigh the probative evidence demonstrating Appellant’s remorse over the
offense.
ii. The exclusion of the video and limitation of remorse evidence
prejudiced Appellant’s punishment phase presentation and very likely
affected the jury’s verdict.
The erroneous exclusion of evidence is reviewed for whether the error had
a substantial and injurious effect upon the jury’s verdict. King, 953 S.W.2d at
271; and Rule 44.2(b). Unless the court has a fair assurance that the error had
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 44
either no influence, or only a minor effect on the verdict, then it must reverse the
verdict. Garcia, 126 S.W.3d at 927; and, Motilla, 78 S.W.3d at 355. If the court
is unsure whether the error might have influenced the verdict, then it must presume
that the error had an prejudicial effect. See, Barshaw, 342 S.W.3d at 94.
The court’s exclusion of the video in favor of Patricia Ritcherson’s testimony
had substantial effect on the jury by depriving the defense of the most probative
evidence demonstrating her remorse. The full probative effect of the video is
reflected in the well-worn saying “a picture is worth a thousand words.” As
noted previously, the video constituted the best evidence because it most accurately
depicted Appellant’s emotional state. The actual depiction possessed a quality that
could not be matched by the mere description of her reaction; it is akin to the
distinction between seeing a moving painting, say, for example, Géricault’s The
Raft of the Medusa, and reading a description of a painting. Both convey
information – but they are not the same. Unlike directly viewing the video, jurors
might reasonably have been skeptical of Ritcherson’s testimony of her daughter’s
reaction. Jurors having viewed the video would not likely have harbored these
doubts.
Moreover, in the context of evaluating harm, it is noteworthy that during
closing argument at punishment, the prosecutor mocked Appellant’s emotional
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state throughout trial, contending that her tears in the courtroom had been motivated
by self-pity, rather than remorse. [29 R.R.: 238]. The argument exploited the lack
of directly probative evidence of remorse from the trial court’s exclusion of the
video. The court’s exclusion of the evidence was not harmless, and warrants
Appellant’s case be remanded for a new sentencing trial.
§§§
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 46
GROUND FOR REVIEW NUMBER FOUR:
THE TRIAL COURT ERRED IN ADMITTING HEARSAY STATEMENTS BY
PATRICIA AND DONALD RITCHERSON UNDER THE EXCITED UTTERANCE
EXCEPTION WITHOUT A SUFFICIENT PREDICATE SHOWING THAT THE
WITNESS WAS UNABLE TO REFLECT UPON HIS STATEMENT AT THE
TIME IT WAS MADE.4
A. Facts in support of claim
At the punishment phase of trial, the State sought to admit testimony of an
unadjudicated extraneous offense in which Appellant had attempted to stab her
brother, Donald Ritcherson during a family argument.
Officer Jared Jensen testified that he responded to a family disturbance call
on May 15, 2009 where he encountered and spoke with Appellant, her mother, and
her brother, Donald. [29 R.R.: 60 - 63]. Over objection, Officer Jensen testified
that Donald had informed him that he joined a family argument between Appellant
and her mother.5 During the argument, Appellant “went to the kitchen and
retrieved a steak knife and attempted to stab him with it.” [29 R.R.: 63, 65, 66].
Their mother intervened to keep Donald and Appellant separated and Donald
managed to disarm Appellant. [29 R.R.: 66]. Patricia’s account was “basically ..
4
Appellant brings the claim relating to statements by both Patricia and her son Donald in one
claim because in the context of the evidence, the statements are intertwined and largely inseparable.
Should the court conclude that the issues are multiplicitous, then Appellant would request the
opportunity to re-brief the issue into two separate claims.
5
Appellant preserved error by timely objecting to the testimony and receiving a running
objection. [29 R.R.: 64].
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. the same thing.” [29 R.R.: 64, 66].
Appellant told Jensen that while she was arguing with her brother, he struck
her in the face and pulled her hair, prompting her to get a knife and swing it at him
in order to protect herself. [29 R.R.: 68, 71]. She displayed a mark by her eye,
and Jensen noticed that her hair was “a little messed up.” [29 R.R.: 67, 72 - 73].
Donald denied striking his sister, and contended the argument became
physical after Appellant attempted to stab him. [29 R.R.: 68, 73]. Patricia
Ritcherson advised Jensen that her son had not struck Appellant during their fight
and that Appellant’s injury had likely resulted from Patricia’s efforts to keep her
children separated. [29 R.R.: 68].
Patricia Ritcherson testified that there was family disturbance in the early
morning hours on May 15 which escalated to pushing and shoving. [29 R.R.: 44 -
45, 51]. At some point the argument moved into the kitchen [29 R.R.: 52] While
in the kitchen, Appellant picked up a knife, but Ritcherson did not remember
Appellant swinging it. [29 R.R.: 46 – 47, 52]. Patricia managed to get between
her children. [29 R.R.: 46].
Donald testified that he got involved into an argument between his mother
and Appellant. [29 R.R.: 82]. The argument moved into the kitchen and at some
point Appellant picked up a knife. [29 R.R.: 83]. Their mother got between them
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and Donald took the knife from his sister. [29 R.R.: 83]. Donald could not recall
Appellant actually swinging the knife and he disarmed her after grabbing her hair.
[29 R.R.: 88 - 89, 90 - 91].
B. Argument and Authorities
The trial court erred in admitting Donald Ritcherson’s hearsay statements
through Officer Jensen because the evidence before the court did not establish that
Ritcherson was sufficiently overwhelmed by his confrontation with Appellant to
have been incapable of reflection.
i. The record lacked any factual basis to establish the predicate that
Patricia and Donald Ritcherson were incapable of conscious reflection
when relating the details of the confrontation with Appellant.
Although statements “relating to a startling event . . . made while the
declarant was under the stress or excitement caused by the event” are admissible
under Rule 803(2), the statement must be made under circumstances in which the
declarant has not had inadequate opportunity to consciously reflect upon the matter.
Apolinar, 155 S.W.2d at 188 - 189; and, Zuliani, 97 S.W.3d at 596 (Tex.Cr.App.
2003). To be an excited utterance, the “event speaks through the individual” rather
than the individual simply relates the event. Id., at 595. It is precisely the lack of
opportunity to reflect prior to relating an event which is what renders the statements
sufficiently reliable to be admissible as a hearsay exception. Volkswagen of
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America, Inc. v. Ramirez, 159 S.W.3d 897, 908 (Tex. 2005) (citing 6 Wigmore,
Evidence in Trials at Common Law § 1747, at 195 (James H. Chadbourn rev.
1976)); Glover v. State, 102 S.W.3d 754, 763 (Tex.App. - Texarkana 2002);
Bounderant v. State, 956 S.W.2d 762, 765 (Tex.App. – Fort Worth 1997). The
court’s focus then, as a predicate to admitting testimony under the exception, must
rest on whether the declarant’s emotional state is so overwhelmed by the incident
that he is unable to have reflected in a meaningful manner upon his statement.
Apolinar, 155 S.W.2d at 186. It is insufficient merely that declarant is in an
“emotional” state, as opposed to a calm one. Martinez v. State, 178 S.W.3d 806,
814 - 815 (Tex. Cr. App. 2005); and, Hughes v. State, 128 S.W.3d 247, 252
(Tex.App. – Tyler 2003). “A statement that is simply a narrative of past acts or
events is distinct from an excited utterance and does not qualify under Rule 803(2)
regardless of how soon after the event it is made. . . . [The declarant] may have
been upset, but that does not make [his] statements excited utterances.” Glover v.
State, 102 S.W.3d 754, 765 (Tex.App. - Texarkana 2002). The declarant must be
sufficiently distraught by the incident to be incapable of reflection. Salazar v.
State, 38 S.W.3d 141, 154 (Tex.Cr. App. 2001); and, Lagunas v. State, 187 S.W.3d
503, 512 (Tex.App. - Austin 2005). The burden of establishing that a witness’s
emotional state meets the criteria of an excited utterance rests with the proponent
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of the evidence. Perez v. State, 113 S.W.3d 819, 827 n. 4 (Tex.App. - Austin
2003).
The State did nothing to establish the predicate to admitting Donald
Ritcherson’s statements. Officer Jarred Jensen simply answered “yes” to the
formulaic question whether Patricia and Donald “appeared to be under the
influence of a recent startling event which was later described to you?” [29 R.R.:
63]. This was inadequate to make the predicate showing under Rue 803(2). The
cases law behind Rule 803(2) requires more than this “magic words” or incantation
approach. Jarred’s testimony, neither at the time of the courts ruling, or thereafter
reflected that either Patricia or Donald were dominated by the previous argument,
or rendered unable to reflect upon the incident before relating the details of their
confrontation with Appellant. It was insufficient merely to contend that Patricia and
Donald were under some influence of the confrontation. Glover, 102 S.W.3d at
765.
ii. The erroneous introduction of testimony that Appellant had attempted
to stab her brother had a likely substantial and injurious effect on the
jury’s verdict.
The court must reverse the verdict unless it has a fair assurance from its
review of the record that the error had either no influence, or only a minor effect on
the verdict. Garcia, 126 S.W.3d at 927; and, Motilla, 78 S.W.3d at 355. If the
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court is unsure whether the error might have influenced the verdict, then it must
presume that the error had an prejudicial effect. See, Barshaw, 342 S.W.3d at 94.
The 2009 incident in which Appellant allegedly tried to stab her brother
likely had a highly prejudicial effect. Not only was it a crime of violence, but it
mirrored the charged offense. This significance was not lost on the State; the both
emphasized the incident during closing argument. [29 R.R.: 214 - 215, 220, 234 -
235]. Obviously, the probative thrust of the evidence lay in demonstrating that
Appellant readily resorted to violence and that Barrie’s killing had not been
idiosyncratic.
While excluding as hearsay what Officer’s Jensen’s learned from Patricia and
Donald might not have completely prevented the jury from hearing the evidence –
their statements might have been admissible as prior inconsistent statements,
Tex.R.Evid. Rule 613(a), this testimony would have been subject to an instruction
limiting its probative value to mere impeachment. See Rule 105(a). Neither
Patricia nor Donald claimed at trial that Appellant had swung the knife, much less
attempted to stab her brother, and so the limited testimony about the knife would
merely have contributed to a muddled and unclear incident. By contrast, in the
present case, the evidence was admitted for its full probative value. The jury could
consider the hearsay statements as direct evidence that Appellant had attempted to
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stab her brother and disregard their lackluster testimony. Given the importance that
the prosecution placed on the incident, there is little chance that the jury remained
uninfluenced by the testimony. For this reason, the Court should reverse
Appellant’s sentence and remand the case for a new sentencing trial.
§§§
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
this Honorable Court reverse Appellant’s convictions, remand the case for re-trial,
and to grant any other such relief to which Appellant may be entitled.
Respectfully submitted,
Law Office of Alexander L. Calhoun
4301 W. William Cannon Dr., B-150, # 260
Austin, TX 78749
Tele: 512/ 420- 8850
Fax: 512/ 233-5946
Cell: 512/731-3159
Email: alcalhoun@earthlink.net
BY:__/s/_Alexander L. Calhoun ____
Alexander L. Calhoun
State Bar No.: 00787187
Attorney for Appellant,
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Appellant’s Brief has
been served upon the Travis County District Attorney's Office, Blackwell-Thurman
Justice Complex, Austin, TX 78767 on January 18 2015 by email to opposing
counsel at the following email address: scott.talliaferro@co.travis.tx.us /
scott.talliaferro@traviscountytx.gov.
/s/ Alexander L. Calhoun
Alexander L. Calhoun
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing document was created in 14 point type,
Times New Roman font, and consists of 12464 words.
/s/ Alexander L. Calhoun
Alexander L. Calhoun
K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 54