Joe Derek Carr v. State

ACCEPTED
03-14-00234-CR
4202531
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/18/2015 5:18:57 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00234-CR

In the FILED IN
3rd COURT OF APPEALS
COURT OF APPEALS AUSTIN, TEXAS
For the 2/18/2015 5:18:57 PM
THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
at Austin Clerk
______________________________________

On Appeal from the 147th Judicial District Court of
Travis County, Texas
Cause Number D-1-DC-11-100059
______________________________________

JOE DEREK CARR, Appellant
v.
THE STATE OF TEXAS, Appellee
_____________________________________

APPELLANT’S BRIEF
_____________________________________

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

ORAL ARGUMENT REQUESTED
 IDENTIFICATION OF PARTIES

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

Appellant:

Joe Derek Carr

Counsel for Appellant:

John Carsey (at trial)
1100 Guadalupe
Austin, Texas 78701

Kristen Jernigan (on appeal)
207 S. Austin Ave.
Georgetown, Texas 78626

Counsel for Appellee, The State of Texas:

Rosemary Lehmberg
Travis County District Attorney

Amy Meredith
J.D. Castro
Assistant District Attorneys
509 W. 11th Street
Austin, Texas 78701

Trial Court Judge:

The Honorable Clifford Brown

ii
 TABLE OF CONTENTS

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

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

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

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

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

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1. The trial court abused its discretion in allowing hearsay testimony
regarding Appellant’s alleged bad character and specific instances of
that alleged conduct.

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

3. The trial court abused its discretion in excluding admissible and
proper impeachment evidence.

4. The trial court abused its discretion in allowing the admission of a
recorded phone call which was not properly authenticated.

5. The content of a recorded phone call between Appellant and his
mother, which was improperly admitted at trial, violated Appellant’s
right against self-incrimination.

iii
 6. The trial court abused its discretion in denying Appellant’s Motion for
New Trial.

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

iv
 INDEX OF AUTHORITIES

CASES
Angel v. State, 627 S.W.2d 426 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . .25, 26

Barber v. State, 989 S.W.2d 822 (Tex. App.--Fort Worth 1999) . . . . . . . . . . . . . .12

Brady v. Maryland, 373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 9, 27

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . .14, 17

Buhl v. State, 960 S.W.2d 927 (Tex. App.--Waco 1998) . . . . . . . . . . . . . . . . . . . .12

Garcia v. State, 201 S.W.3d 695, 702 (Tex. Crim. App. 2006),
cert. denied, 127 S. Ct. 1289 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . .17

Henderson v. State, 906 S.W.2d 589 (Tex. App.--El Paso 1995) . . . . . . . . . . . . . 12

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . 16

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

Johnson v. State, 611 S.W.2d 649 (Tex. Crim. App. 1981) . . . . . . . . . . . . . . .25, 26

Jones v. State, 711 S.W.2d 35 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . .26, 27

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . .13, 14, 22, 25

Kotteakos v. United States, 328 U.S. 750 (1946) . . . . . . . . . . . . . . . . . . . .13, 22, 25

Lagrone v. State, 942 S.W.2d 613 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . .20

Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . .26

Losada v. State, 721 S.W.2d 305 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . .25, 26

v
Malloy v. Hogan, 378 U.S. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Megan Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) . . . . . . . . . . . .16

Montgomery v. State, 810 S.W.2d 372
(Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . 10, 13, 17, 21, 22, 24

Richard Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010) . . . . . . . . . . . 16

Richardson v. State, 860 S.W.2d 214 (Tex. App.--Fort Worth 1993) . . . . . . . . . . 12

Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Fort Worth, 2014) . . . . . . . .16, 17

Werner v. State, 711 S.W.2d 639 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . 12

STATUTES AND RULES
TEX. CODE CRIM. PRO. Art. 38.08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

TEX. CONST. Art. I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

TEX. PENAL CODE § 37.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. R. APP. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 21, 25

TEX. R. EVID. 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20, 21

TEX. R. EVID. 608 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

TEX. R. EVID. 611(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

TEX. R. EVID. 802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

TEX. R. EVID. 803(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 13

TEX. R. EVID. 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23, 24

U.S. CONST. AMEND. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

vi
 STATEMENT REGARDING ORAL ARGUMENT

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

argument in this case.

vii
 No. 03-14-00234-CR

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

On Appeal from the 147th Judicial District Court of
Travis County, Texas
Cause Number D-1-DC-11-100059
______________________________________

JOE DEREK CARR, Appellant
v.
THE STATE OF TEXAS, Appellee
_____________________________________

APPELLANT’S BRIEF
_____________________________________

STATEMENT OF THE CASE

On February 11, 2015, a jury found Appellant guilty of the offense of

tampering with evidence as alleged in the indictment. (CR: 118). The Court

assessed punishment of twenty years in prison. (CR: 120). Appellant filed a

Motion for New Trial on March 12, 2014. (CR: 131). The Motion was denied

by the trial court on April 10, 2014. (RR10: 24). Appellant timely filed Notice

of Appeal the same date, on April 10, 2014. (CR: 143). This appeal results.

1
 STATEMENT OF FACTS

At trial, Chris Kashimba testified that he was the victim, Veronica Navarro’s

ex-boyfriend. (RR3: 88-90, 92, 96). On June 25, 2014, Navarro spent the night

at Kashmiba’s house and left the next morning. (RR3: 107). Kashimba told the

jury that on June 27, 2011, he saw Navarro again after she had attended a job

interview. (RR3: 101). According to Kashimba, during their meeting, Navarro

indicated that she wanted to break up with her boyfriend, Appellant, and return to

her relationship with Kashimba. (RR3: 102, 112). Kashimba did not hear from

Navarro again and so he assumed she had reconciled with Appellant. (RR3: 115).

Jeff Allbritton, a Travis County park police officer, told the jury that on July

6, 2011, he responded to a call of a possible deceased person at Lake Travis.

(RR3: 192). Allbritton was directed to an area on the lake and observed a body

wrapped in a tent. (RR3: 202). It appeared the body was anchored to

something, but he and other law enforcement officers removed it. (RR3: 205-06).

Renee Luna, a Travis County Sheriff’s Department Crime Scene Specialist,

stated that when Navarro’s body was pulled from the water, she observed that tied

to the tent wrapping her body was a cinder block and paint cans. (RR3: 233).

One of the paint cans had a sticker which indicated it was Olympia brand paint and

was purchased from a Lowe’s store in Hutto in July of 2010. (RR3: 236). On

2
cross-examination, Luna admitted that she collected seventeen pieces of evidence

at the crime scene, but did not test any of them. (RR3: 254). She agreed further

that she did not know whether any of those items contained DNA because they

were not tested. (RR3: 254). Luna was later re-called and stated that she and

other law enforcement officers searched Appellant’s home and found an empty tent

bag. (RR5: 41-43). Luna indicated that the tent bag and the tent found wrapped

around Navarro’s body had the same product number. (RR5: 43). On

cross-examination, Luna admitted that any tent of the same make and model would

have the same labeling. (RR5: 145).

Sylvia Leal, a detective with the Travis County Sheriff’s Office, testified

that she participated in examining the crime scene, removing Navarro’s body, and

attending Navarro’s autopsy. (RR4: 135-41). At the time of the autopsy, Leal

did not know Navarro’s identity, but when she later learned Navarro was the

deceased, she notified her family. (RR4: 138). When she spoke with the family,

she learned Navarro had been dating Appellant, a Pedernales firefighter. (RR4:

140). Leal attempted to locate Appellant but was not able to, so she contacted the

United States Marshall’s Office. (RR4: 141). Leal was later re-called and stated

that she executed a search warrant on Appellant’s home, but did not follow usual

procedure because she learned Appellant was being held at the Canadian border.

3
(RR4: 223-24).

Dr. Satish Chundru, a deputy medical examiner at the Travis County

Medical Examiner’s Office, testified that he performed the autopsy on Navarro’s

body. (RR4: 158). The State offered Exhibits 54-59 and 61-63 which were

photographs of Navarro’s dead body. (RR4: 159). Chundru explained that he

could not determine the time of death. (RR4: 166). He estimated that Navarro’s

body had been in the water for a few days, but could not say exactly how long.

(RR4: 166). Chundru stated that there were no obvious signs of injury on

Navarro’s body and that he only came to the conclusion that Navarro died from a

lack of oxygen to the brain because there were no other indications to conclude

otherwise. (RR4: 187). Chundru could not determine how oxygen was

deprived. (RR4: 190-91). On cross-examination, Chundru acknowledged that if

someone was being deprived of oxygen, there would be signs of a struggle and

DNA underneath the victim’s fingernails. (RR4: 194). Chundru admitted that

his determination of Navarro’s cause of death was because of how the body was

found, not based on his examination. (RR4: 204). Chundru admitted further

that it is possible for an adult to succumb to Sudden Arrythmic Death Syndrome.

(RR4: 209-10). In fact, nearly 2,500 people in the United States die of the

syndrome every year. (RR4: 210-11). Chundru concluded his testimony by

4
agreeing that he had no physical evidence to support his finding of asphyxia as the

cause of Navarro’s death. (RR4: 216).

Heather Dragna, a forensic scientist in the DNA section at the Texas

Department of Public Saftey, testified that several items collected in this case were

tested but were negative for any probative evidence. (RR5: 91-94, 98). A glove

was tested and was positive for blood, but Navarro was excluded as a contributor

to the blood. (RR5: 96). The only other “positive” results for blood were from

Navarro’s SANE exam which showed she was the only contributor to the samples.

(RR5: 98). As for all of the other items tested, Dragna again confirmed that

“everything else was negative.” (RR5: 98).

Kenneth Crawford, a trash bag examiner with the Texas Department of

Public Safety, testified that there was no evidence that a trash bag collected from

inside the tent containing Navarro’s body and a trash bag found at Appellant’s

home were previously connected. (RR5: 153). Crawford could not say which

company manufactured either trash bag and could not associate one with the other.

(RR5: 155). On cross-examination, Crawford acknowledged that the two bags

could have come from separate boxes “anywhere in the world.” (RR5: 156).

Melissa Valadez, a trace evidence specialist with the Texas Department of

Public Safety, testified that she examined a sheet collected from Appellant’s house

5
and tape lifts from Appellant’s car but did not find any fibers consistent with fibers

from the rope or tent found with Navarro’s body. (RR5: 165-67). Valadez also

compared the fibers from the tent bag found at Appellant’s home with the tent

wrapped around Navarro’s body and determined that the fibers were inconsistent.

(RR5: 167). Valadez determined that the tent found with Navarro’s body did not

come from the tent bag found at Appellant’s house. (RR5: 167). Valadez ran

tests on a piece of drywall to compare the paint on it with the paint in the cans

found with Navarro’s body. (RR5: 187). While Valadez found the paint to be

similar, and that it could have come from Appellant’s home, she noted that it could

have also come from “any other source with similar characteristics.” (RR5: 187).

During Appellant’s case-in-chief, he recalled Detective Leal who stated that

it was her theory that in the days and weeks leading up to Navarro’s disappearance,

she was scared of Appellant and was planning on leaving him. (RR8: 26-27).

Leal was then shown several facebook posts from Navarro. (RR8: 28). One

post was dated June 19, 2011, in which Navarro posted about what a loving father

Appellant was and how much she loved him. (RR8: 28). Another post from the

same date indicated that Navarro hated to see Appellant leave for work. (RR8:

28). Also on the same date, Navarro updated her current city to Spicewood,

Texas, where she had just moved with Appellant. (RR8: 29). On June 22, 2011,

6
Navarro posted that she had just put Appellant’s son down for a nap so she had

time to plant her mini azaleas, which she loved. (RR8: 30). On June 26, 2011,

Navarro posted that Appellant was her fiancé. (RR8: 31).

At the hearing on Appellant’s Motion for New Trial, it was undisputed that

an investigating officer committed a Brady1 violation by failing to turn over

surveillance videotapes from a Walmart store which showed Appellant and

Navarro shopping together the day before she disappeared. (RR10: 10-18).

These tapes, admitted as Exhibits 339, 339(b), 339(c), and 341 refuted the theory

presented by the State that Navarro was frightened by Appellant and was planning

to leave him. (RR10: 18). Despite the arguments made by counsel that these

tapes would have affected the outcome of Appellant’s trial, the Court denied

Appellant’s Motion for New Trial. (RR10: 26).

1
Brady v. Maryland, 373 U.S. 83 (1963).

7
 ISSUES PRESENTED

1. The trial court abused its discretion in allowing hearsay testimony
regarding Appellant’s alleged bad character and specific instances of that
alleged conduct.

2. The evidence is insufficient to show Appellant committed the offense of
tampering with evidence.

3. The trial court abused its discretion in excluding admissible and proper
impeachment evidence.

4. The trial court abused its discretion in allowing the admission of a
recorded phone call which was not properly authenticated.

5. The content of a recorded phone call between Appellant and his mother,
which was improperly admitted at trial, violated Appellant’s right against
self-incrimination.

6. The trial court abused its discretion in denying Appellant’s Motion for
New Trial.

SUMMARY OF THE ARGUMENT

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

abused its discretion in allowing hearsay testimony regarding Appellant’s alleged

bad character and specific instances of that alleged conduct which only served to

inflame the jury. Appellant’s second point of error should be sustained because

the evidence is insufficient to show Appellant committed the offense of tampering

with evidence where the State failed to connect Appellant to an attempt to conceal

Navarro’s body. Appellant’s third point of error should be sustained because the

8
trial court abused its discretion in excluding admissible and proper impeachment

evidence which would have shown a crucial witness for the State, Kashimba, was

untruthful. Appellant’s fourth point of error should be sustained because the trial

court abused its discretion in allowing the admission of a recorded phone call

which was not properly authenticated. Appellant’s fifth point of error should be

sustained because the content of a recorded phone call between Appellant and his

mother, which was improperly admitted at trial, violated Appellant’s right against

self-incrimination. Appellant’s sixth point of error should be sustained because

the trial court abused its discretion in denying Appellant’s Motion for New Trial

where it was shown competent and material evidence was withheld from Appellant

in violation of Brady v. Maryland, 373 U.S. 83 (1963).

9
 ARGUMENT & AUTHORITIES

I. The trial court abused its discretion in allowing hearsay
testimony regarding Appellant’s alleged bad character and
specific instances of that alleged conduct.2

The trial court abused its discretion in allowing hearsay testimony of

Appellant’s alleged bad character in violation of Texas Rules of Evidence 403,

404(b), and 802. A trial court’s decision to admit or exclude evidence is

reviewed under an abuse of discretion standard. Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990). The test for abuse of discretion is not

whether, in the opinion of the reviewing court, the facts present an appropriate case

for the trial court’s action; but rather, whether the court acted without reference to

any guiding rules or principles. Id.

At trial, Manuela Navarro, Navarro’s cousin, told the jury that Navarro told

her Appellant “would never let her do anything and would never let her go

anywhere.” (RR3: 56).3 Chris Kashimba, Navarro’s ex-boyfriend, stated that

Navarro told him that she was afraid of Appellant and “didn’t like his attitude.”

2
This cause was tried simultaneously with Cause Number D-1-DC-11-902003, in which
Appellant was charged with murder. Therefore, all points of error presented in that cause,
which is docketed at the Third Court of Appeals in Cause Number 03-14-00235-CR, are
incorporated in the present case as well.
3
Appellant preserved error by objecting and receiving a running objection to this testimony.
(RR3: 50).

10
(RR3: 93).4 Kashimba also stated that Navarro told him that Appellant would

“scream or throw things, throwed little fits, temper tantrums.” (RR3: 94). In

addition, Kashimba was allowed to testify that Navarro told him Appellant gave

her bruises, “drank a lot,” and became “more aggressive.” (RR3: 94-95).

Kashimba told the jury that Navarro told him that she planned to get a job and

break up with Appellant. (RR3: 102). When the prosecutor asked AnnaKaren

Perez, Navarro’s cousin, whether Navarro had expressed any concerns about her

relationship with Appellant, Appellant objected and the Court interjected, outside

the presence of the jury:

THE COURT: To this point I’ve allowed you to have some latitude with

the hearsay going to her state of mind and so forth, but

it’s not just a blanket allowance to just have a rambling

hearsay. I mean, you have to be very specific with your

questions as they relate to her state of mind and the

relationship. All right? (RR3: 154-55).

Perez was then allowed to testify, over Appellant’s objection, that Navarro

said her relationship with Appellant was not what she expected and that she had

concerns about moving in with Appellant. (RR3: 156).
4
Appellant preserved error by objecting and receiving a running objection to this testimony.
(RR3: 93).

11
 Appellant anticipates that the State will argue, as it did at trial, that the

above, complained-of testimony is evidence regarding the relationship between

Appellant and Navarro and is admissible pursuant to Texas Code of Criminal

Procedure Article 38.36. Even if this is true, the Rules of Evidence still apply and

the evidence must fall under an exception to the hearsay rule. Garcia v. State,

201 S.W.3d 695, 702 (Tex. Crim. App. 2006), cert. denied, 127 S. Ct. 1289 (2007).

Article 38.36 does not extend the rules of evidence to admit otherwise inadmissible

testimony. See Barber v. State, 989 S.W.2d 822, 834 (Tex. App.--Fort Worth

1999), citing Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986);

Henderson v. State, 906 S.W.2d 589, 597 (Tex. App.--El Paso 1995); Richardson

v. State, 860 S.W.2d 214, 216 (Tex. App.--Fort Worth 1993); Buhl v. State, 960

S.W.2d 927, 932 (Tex. App.--Waco 1998).

Texas Rule of Evidence 802 instructs, “Hearsay is not admissible except as

provided by statute or these rules or by other rules prescribed pursuant to statutory

authority. Inadmissible hearsay admitted without objection shall not be denied

probative value merely because it is hearsay.” TEX. R. EVID. 802.

At trial, the State argued that all of the testimony above fell under Rule of

Evidence 803(3) as an exception to the hearsay rule. Texas Rule of Evidence

803(3) states, “A statement of the declarant’s then existing state of mind, emotion,

12
sensation, or physical condition (such as intent, plan, motive, design, mental

feeling, pain, or bodily health), but not including a statement of memory or belief

to prove the fact remembered or believed unless it relates to the execution,

revocation, identification, or terms of declarant’s will.” TEX. R. EVID. 803(3).

However, the testimony elicited at trial as described above did not reflect

Navarro’s then existing mental condition, but rather, reflected bad acts on

Appellant’s part such as drinking in excess, becoming aggressive, and throwing

temper tantrums. It also reflected Appellant’s alleged attempts to control Navarro

by telling her what to do and where she could go. Again, these are not reflections

of Navarro’s then existing mental condition, but rather, attempts by the State to

paint Appellant as an unlikeable and threatening person. As such, the trial court

erred in allowing this testimony into evidence. See Montgomery, 810 S.W.2d at

391.

Appellant was harmed by the admission of this evidence because his

substantial rights, including his right to a fair trial, were affected by the trial court’s

ruling. TEX. R. APP. 44.2(b). “A substantial right is affected when the error had

a substantial and injurious effect or influence in determining the jury’s verdict.”

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997), citing Kotteakos v.

United States, 328 U.S. 750, 776 (1946). This “evidence,” which was admitted in

13
violation of Texas Rule of Evidence 802, only served to inflame the jury and bias

the jurors against Appellant. In a case in which the manner of Navarro’s death

was never proven, or that Appellant committed an act which caused Navarro’s

death, as discussed below, this evidence surely influenced the jury’s verdict. See

King v. State, 953 S.W.2d at 271. Accordingly, Appellant’s first point of error

should be sustained.

II. The evidence is insufficient to show Appellant committed the
offense of tampering with evidence.

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

is insufficient to show Appellant committed the offense of tampering with

evidence. The Court of Criminal Appeals has held that the legal sufficiency

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

that a reviewing court should apply when determining the sufficiency of the

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

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

evidence in the light most favorable to the verdict and determines whether any

rational trier of fact could have found the essential elements of the offense beyond

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

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

to show that Appellant knowing that an investigation was pending and in progress,

14
to wit: the investigation of the death of Veronica Navarro, intentionally or

knowingly altered, destroyed and concealed the human corpse of Veronica

Navarro, with intent to impair its availability as evidence in the investigation.

(CR: 14). TEX. PENAL CODE § 37.09. However, in this case, Dragna, testified

that several items collected in this case were tested but were negative for any

probative evidence. (RR5: 91-94, 98). A glove was tested and was positive for

blood, but Navarro was excluded as a contributor to the blood. (RR5: 96). The

only other “positive” results for blood were from Navarro’s SANE exam which

showed she was the only contributor to the samples. (RR5: 98). As for all of

the other items tested, Dragna again confirmed that “everything else was negative.”

(RR5: 98).

Crawford testified that there was no evidence that a trash bag collected from

inside the tent containing Navarro’s body and a trash bag found at Appellant’s

home were previously connected. (RR5: 153). Valadez testified that she

examined a sheet collected from Appellant’s house and tape lifts from Appellant’s

car but did not find any fibers consistent with fibers from the rope or tent found

with Navarro’s body. (RR5: 165-67). Valadez also compared the fibers from

the tent bag found at Appellant’s home with the tent wrapped around Navarro’s

body and determined that the fibers were inconsistent. (RR5: 167). Valadez

15
determined that the tent found with Navarro’s body did not come from the tent bag

found at Appellant’s house. (RR5: 167). Valadez ran tests on a piece of drywall

to compare the paint on it with the paint in the cans found with Navarro’s body.

(RR5: 187). While Valadez found the paint to be similar, and that it could have

come from Appellant’s home, she noted that it could have also come from “any

other source with similar characteristics.” (RR5: 187).

It is well-settled that circumstantial evidence alone can be sufficient to

establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

“And while juries are permitted to draw multiple reasonable inferences, as long as

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

permitted to come to conclusions based on mere speculation or factually

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

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

763, 771 (Tex. Crim. App. 2013). “If the evidence presented at trial raises ‘only a

suspicion of guilt, even a strong one, then that evidence is insufficient [to

convict].’” Id., citing Richard Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim.

App. 2010).

In the present case, there is absolutely no evidence that Appellant tampered

with evidence. Nothing tied him to the tent, rope, or paint cans found with

16
Navarro’s body. This was established by the State’s own witnesses. Therefore,

no rational trier of fact could have found Appellant guilty based on the evidence

presented in this case. See Jackson, 443 U.S. at 320; Brooks, 323 S.W.3d at 896.

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

III. The trial court abused its discretion in excluding admissible
and proper impeachment evidence.

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

erred in excluding evidence which would have properly impeached Kashimba’s

credibility. Specifically, the trial court erred in excluding evidence that Kashimba

and Navarro fought often, in direct contrast to his affirmative representation on

direct examination. A trial court’s decision to admit or exclude evidence is

reviewed under an abuse of discretion standard. Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990). The test for abuse of discretion is not

whether, in the opinion of the reviewing court, the facts present an appropriate case

for the trial court’s action; but rather, whether the court acted without reference to

any guiding rules or principles. Id.

On direct examination, Kashimba testified as follows:

THE PROSECUTOR: Okay. When you guys were together, did you

have a fight?

KASHIMBA: No, ma’am. It might have been a discussion. I

17
 mean, we never fought. We never threw things or

blew things out of portion. We were civilized

people and talked like human beings. (RR3: 96).

Outside the presence of the jury, and prior to commencing

cross-examination, Defense Counsel informed the Court that he wished to impeach

Kashimba, who previously testified that he and Navarro never fought, with three

incidents in which law enforcement was called as a result of domestic disturbances

between Kashimba and Navarro. Specifically, Counsel referenced the following:

DEFENSE COUNSEL: Your Honor, there are three Travis County

Sheriff’s Office case reports. One is dated

February 26th, 2010, in which two officers

responded to a report that there was a male chasing

a female down the street. That ended up to be

Chris Kashimba chasing Veronica Navarro down

the street. The investigation revealed that

Navarro had told Kashimba that she was breaking

off the relationship and that he became extremely

upset and chased her down the street. She got

away. There was no physical violence, but there

18
was this incident. There is another Travis County

report dated October 24th of 2008 in which a

deputy was dispatched to a family disturbance on

Kings Court. It ended up that it was again

Kashimba and Navarro, and he was told by

Navarro that she was living with Kashimba’s

family and that the two of them had gotten into an

argument and the police were called. And then

on September 22nd, 2008, there was a sheriff's

department report concerning a theft of a laptop

from Hyde Park Baptist Church. A deputy reports

that the employees were identified as Navarro and

Kashimba and then the deputy was present when

they were fired. This report says that it was learned

that Navarro and Kashimba had stolen a laptop

from the church after a report had been filed with

the Austin Police Department. And those three

items, based on his testimony, I believe I should be

able to inquire about. (RR3: 120-21).

19
The trial court denied Counsel’s request. (RR3: 123).

Texas Rule of Evidence 607 allows for the impeachment of a witness.

TEX. R. EVID. 607. It instructs: “The credibility of a witness may be attacked by

any party, including the party calling the witness.” TEX. R. EVID. 607.

Likewise, Texas Rule of Evidence 611(b) provides: “a witness may be

cross-examined on any matter relevant to any issue in the case, including

credibility.” TEX. R. EVID. 611(b). Texas Rule of Evidence 608 governs the

admissibility of impeachment evidence and forbids the use of specific instances of

conduct to impeach a witness’s credibility except to “expose bias or interest, rebut

affirmative representations made on direct examination, or to demonstrate a lack of

capacity.” TEX. R. EVID. 608; Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim.

App. 1997).

The evidence of the fights between Kashimba and Navarro, which were

serious enough for law enforcement to be called, was admissible to impeach

Kashimba’s credibility, and specifically, his affirmative representations made on

direct examination that he and Navarro “never fought.” TEX. R. EVID. 608;

Lagrone, 942 S.W.2d at 613. As such, the trial court abused its discretion in

excluding this evidence. Montgomery, 810 S.W.2d at 391.

20
 Appellant was harmed by the exclusion of this evidence because his

substantial rights, including his right to a fair trial, were affected by the trial court’s

ruling. TEX. R. APP. 44.2(b). “A substantial right is affected when the error had

a substantial and injurious effect or influence in determining the jury’s verdict.”

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997), citing Kotteakos v.

United States, 328 U.S. 750, 776 (1946). The only “evidence” presented at trial

was Kashimba’s testimony that Navarro was planning on leaving Appellant, thus

establishing a motive for killing her. Had the jury been made aware that

Kashimba was not, in fact, truthful, that fact would most certainly have affected

the jury’s verdict. See King v. State, 953 S.W.2d at 271. Accordingly,

Appellant’s third point of error should be sustained.

IV. The trial court abused its discretion in allowing the admission
of a recorded phone call which was not properly
authenticated.

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

allowed the admission of a recorded phone call without proper authentication. A

trial court’s decision to admit or exclude evidence is reviewed under an abuse of

discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990). The test for abuse of discretion is not whether, in the opinion of the

reviewing court, the facts present an appropriate case for the trial court’s action;

21
but rather, whether the court acted without reference to any guiding rules or

principles. Id.

During the testimony of Chief Osvold, of the Pembina County Jail where

Appellant was held until Travis County authorities transported him to Texas, the

State offered a recorded phone call between Appellant and his mother. Appellant

challenged the authentication of that phone call and established the following:

DEFENSE COUNSEL: Chief Osvold, did you personally have anything to

do with this phone call at the time it was made?

OSVOLD: I had nothing to do with any of the phone calls at

the time they were made.

DEFENSE COUNSEL: So you did not -- at the time it was made, you did

not check to see if the system was operating

properly at the time, correct?

OSVOLD: No, correct.

DEFENSE COUNSEL: And you didn’t push the button that records the

call, correct?

OSVOLD: Correct.

DEFENSE COUNSEL: In fact, you didn’t even know the call was being

made when it was made, correct?

22
 OSVOLD: Correct. (RR7: 82-84).

Appellant objected that the tape was not properly authenticated under Rule

of Evidence 901, that the contents of the tape were not relevant, and that the

admission of the tape violated Appellant’s right against self-incrimination. (RR7:

76-77, 85-86). The trial court overruled Appellant’s objections. (RR7: 77-78,

87). On the tape, Appellant’s mother asks Appellant whether or not he killed

Navarro and he remains silent. (RR7: 77).

Texas Rule of Evidence 901 requires authentication that a voice, whether

heard firsthand or through mechanical or electronic transmission or recording,

through opinion testimony, is the voice of the alleged speaker. TEX. R. EVID.

901(b)(5). Further, Rule 901 telephone conversations must be authenticated 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.

TEX. R. EVID. 901(b)(6).

None of this evidence which was required to show authenticity, was

presented and therefore, authentication was not established. See TEX. R. EVID.

23
901. Therefore, the trial court abused its discretion in allowing the recorded

phone call into evidence. Montgomery, 810 S.W.2d at 391.

Appellant was harmed by the admission of this evidence because his

substantial rights, including his right to a fair trial, were affected by the trial court’s

ruling. TEX. R. APP. 44.2(b). “A substantial right is affected when the error had

a substantial and injurious effect or influence in determining the jury’s verdict.”

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997), citing Kotteakos v.

United States, 328 U.S. 750, 776 (1946). During the recorded phone call,

Appellant’s mother asked Appellant if he killed Navarro and Appellant remained

silent. This was clearly inflammatory in two ways. First, it insinuates that

Appellant’s mother believed he was capable of murder. Second, it implies that

Appellant’s silence reflects his guilt. In a case such as this one, where there was

no evidence that Appellant committed an act which caused Navarro’s death, the

recorded phone call most certainly had an effect on the jury’s verdict. See King v.

State, 953 S.W.2d at 271. For the foregoing reasons, Appellant’s fourth point of

error should be sustained.

24
 V. The content of a recorded phone call between Appellant and
his mother, which was improperly admitted at trial, violated
Appellant’s right against self-incrimination.

Appellant’s fifth point of error should be sustained because the contents of

the recorded phone call between Appellant and his mother, in which Appellant’s

mother asks Appellant if he killed Navarro, violated his right to remain silent.

The Fifth Amendment provides that “no person … shall be compelled in any

criminal case to be a witness against himself.” U.S. CONST. AMEND. V. This

right was made applicable to the states by the Due Process Clause of the

Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1 (1964). Texas

Constitution article I, § 10, provides that “in all criminal prosecutions the accused

shall … not be compelled to give evidence against himself.” TEX. CONST. Art. I,

§ 10. Texas Code of Criminal Procedure Article 38.08 provides, “…the failure of

any defendant to so testify shall not be taken as a circumstance against him, nor

shall the same be alluded to or commented on by counsel in the cause.” TEX.

CODE CRIM. PRO. Art. 38.08. If the complained-of remark called the jury’s

attention to the absence of evidence that only the testimony from the appellant

could supply, the conviction must be reversed. See Losada v. State, 721 S.W.2d

305, 313 (Tex. Crim. App. 1986); Angel v. State, 627 S.W.2d 424, 426 (Tex. Crim.

App. 1982); Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981).

25
 In this case, the question from Appellant’s mother as to whether Appellant

killed Navarro clearly invaded his right to remain silent. Additionally, the answer

to Appellant’s mother’s question was information only Appellant could supply,

and therefore, should never have been put before the jury. See Losada, 721

S.W.2d at 313; Angel, 627 S.W.2d at 426; Johnson, 611 S.W.2d at 650.

Accordingly, Appellant’s fifth point of error should be sustained and his conviction

reversed. See Id.

VI. The trial court abused its discretion in denying Appellant’s
Motion for New Trial.

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

abused its discretion in denying Appellant’s Motion for New Trial. A trial court’s

ruling on a Motion for New Trial is reviewed under an abuse of discretion

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

To be entitled to a new trial, appellant must show there is, in fact, new

evidence, both competent and material to the case, the existence of which was

unknown to appellant at the time of trial. See Jones v. State, 711 S.W.2d 35, 38

(Tex. Crim. App. 1986). Second, appellant must show his failure to discover such

evidence before trial, or to utilize the evidence, once discovered, at the time of

trial, was not a result of any lack of diligence on his part. Id.

26
 At the hearing on Appellant’s Motion for New Trial, it was undisputed that

an investigating officer committed a Brady5 violation by failing to turn over

surveillance videotapes from a Walmart store which showed Appellant and

Navarro shopping together the day before she disappeared. (RR10: 10-18).

These tapes, admitted as Exhibits 339, 339(b), 339(c), and 341 refuted the theory

presented by the State that Navarro was frightened by Appellant and was planning

to leave him. (RR10: 18). Despite the arguments made by counsel that these

tapes would have affected the outcome of Appellant’s trial, the Court denied

Appellant’s Motion for New Trial. (RR10: 26).

Here, Appellant is able to show new evidence, in the form of surveillance

videotapes which contradict the State’s theory of their case, which is both

competent and material to the case, the existence of which was unknown to

appellant at the time of trial. See Jones, 711 S.W.2d 35, 38 (Tex. Crim. App.

1986). He is also able to show that his failure to discover this evidence before

trial was not a result of any lack of diligence on his part because it is undisputed

that a Brady violation occurred which deprived Appellant of this evidence. Id.

Because Appellant has met the standard for receiving a new trial, the trial court

abused its discretion in denying Appellant’s Motion for New Trial. Id.

5
Brady v. Maryland, 373 U.S. 83 (1963).

27
Therefore, Appellant’s sixth point of error should be sustained.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

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

Respectfully submitted,

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

CERTIFICATE OF SERVICE

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

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

Attorney’s Office, P.O. Box 1748, Austin, Texas 7867, on February 19, 2015.

________”/s/” Kristen Jernigan__________
Kristen Jernigan

28
 CERTIFICATE OF WORD COUNT

The undersigned hereby certifies that the foregoing document consists of

5,812 words in compliance with Texas Rule of Appellate Procedure 9.4.

________”/s/” Kristen Jernigan__________
Kristen Jernigan

29