ACCEPTED
14-14-00421-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
2/22/2015 3:49:51 PM
CHRISTOPHER PRINE
CLERK
NO. 14-14-00421-CR
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS 2/23/2015 10:32:00 AM
FOR THE FOURTEENTH SUPREME JUDICIALCHRISTOPHER
DISTRICT A. PRINE
OF TEXAS AT HOUSTON Clerk
______________________________
REBECCA VICTORIA HUMARAN
APPELLANT
VS.
THE STATE OF TEXAS
APPELLEE
______________________________
APPELLANT’S BRIEF
ORAL ARGUMENT REQUESTED
Crespin Michael Linton
440 Louisiana, Suite 900
Houston, Texas 77002
Texas Bar No. 12392850
(713) 236-1319
(713) 236-1242 (Fax)
LIST OF PARTIES
The Appellant is Rebecca Victoria Humaran.
The Appellant’s trial counsel is Juan Guerra & Leira Moreno Gracia.
The Appellant’s appellate counsel is Crespin Michael Linton.
The Trial Judge is The Honorable Patrick Sebesta.
The appellate attorney representing the State is David Bosserman,
Assistant District Attorney, Brazoria County, Texas.
i
TABLE OF CONTENTS
List of Parties i
Table of Contents ii
Table of Citations vi
Preliminary Statement 1
Statement of Facts 1
Pretrial Hearing – August 20, 2013 1
A. Defense’s Witness 1
1. Phillip Steven Roberts 1
Trial Phase 2
A. State’s Witnesses 2
1. Brent Waisner 2
2. Samantha Scoggin 3
3. Ray Rubio 4
ii
4. Summer Warren 6
5. David Hallimore 7
6. David Beaver 9
7. Matt West 12
8. Jack Gentry 13
9. Peter Marsh 15
10. Shane Windsor 15
11. Mike Thomas 16
12. Amy Smuts 17
13. Jennifer Moreno 18
14. Juan Rojas 19
15. Chris Kincheloe 20
16. Stephen Pustilnik 22
17. Steven Roberts 24
18. Varon Snelgrove 24
19. Crockett Robinson 26
20. Stephanie Robinson 28
B. Defense’s Witnesses 29
1. Brent Waisner 29
2. Samantha Scoggin 30
iii
3. Ray Rubio 31
4. Jerome Griffin 31
5. Jack Gentry 31
6. Chris Kincheloe 32
7. Karen Humaran 32
C. Jury’s Verdict 33
Punishment Phase 33
A. State’s Witnesses 33
1. Chris Kincheloe 33
2. Steve Roberts 34
3. Ben Devine 35
4. Heather Bailey 35
5. Michael McCann 36
6. Christine Coronado 37
B. Defense’s Witnesses 38
1. Cheri Schultz 38
C. Jury’s Sentence 39
iv
Points of Error 40
Point of Error Number One 42
Argument and Authorities on
Point of Error Number One 42
Point of Error Number Two 48
Argument and Authorities on
Point of Error Number Two 48
Point of Error Number Three 51
Argument and Authorities on
Point of Error Number Three 51
Point of Error Number Four 55
Argument and Authorities on
Point of Error Number Four 55
Point of Error Number Five 59
Argument and Authorities on
Point of Error Number Five 59
Point of Error Number Six 61
v
Argument and Authorities on
Point of Error Number Six 61
Point of Error Number Seven 64
Argument and Authorities on
Point of Error Number Seven 64
Point of Error Number Eight 67
Argument and Authorities on
Point of Error Number Eight 67
Conclusion 72
Certificate of Compliance 72
Certificate of Service 72
vi
TABLE OF CITATIONS
CASES
Balentine v. State, 71 S.W.3d 763
(Tex. Crim. App 2002)……………….……………… 51
Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010)…………..………………… 42
Davis v. State, 329 S.W.3d 798
(Tex. Crim. App. 2010)…………..………………… 42
Fuentes v. State, 991 S.W.2d 267, 275
(Tex. Crim. App 1999)……………….……………… 57
Gomez v. State, 380 S.W.3d 830, 834
(Tex. Crim. App. 2013)……………….……………… 62
Granger v. State, 3 S.W.3d 36, 38
(Tex. Crim. App. 1999)……………….……………… 61
Hayden v. State, 296 S.W.3d 549
(Tex. Crim. App. 2009)……………….……………… 65
vii
Illinois v. Gates, 462 U.S. 213, 236-37
103 S.Ct. 2317, 2331, 76L.Ed.2d 334 (1983)…… 52
Jones v. State, 833 S.W.2d 118, 123
(Tex. Crim. App. 1992)……………….……………… 53
Jones v. State, 944 S.W.2d 642, 647
(Tex. Crim. App. 1996)……………….……………… 43
Matson v. State, 819 S.W.2d 839, 846
(Tex. Crim. App. 1991)…………………………………… 42
McCarty v. State, 257 S.W.3d 238, 239
(Tex. Crim. App. 2008)…………………………………… 64
Ngo v. State, 175 S.W.3d 738, 743
(Tex. Crim. App. 2005)…………………………………… 61
Porter v. State, 634 S.W.2d 846, 849
(Tex. Crim. App. 1982)…………………………………… 48
Ransom v. State, 920 S.W.2d 288, 302
(Tex. Crim. App. 1994)…………………………………… 48
Rayford v. State, 125 S.W.3d 521, 528
viii
(Tex. Crim. App. 2003)…………………………………… 52, 68
Renteria v. State, 206 S.W.3d 689
(Tex. Crim. App. 2006)…………………………………… 59
Romero v. State, 800 S.W.2d 539, 543
(Tex. Crim. App. 1990)…………………………………… 51, 68
Serrano v. Jordan, 123 S.W.3d 57, 60
(Tex. App. – Austin 2003, pet. ref’d)…………………… 53
State v. Dixon, 206 S.W.3d 587, 590
(Tex. Crim. App. 2006)…………………………………… 68
State v. Jordan, 342 S.W.3d 565, 568
(Tex. Crim. App. 2011)…………………………………… 53
State v. Stone, 137 S.W.3d 167, 174
(Tex. App. - Houston [1st Dist.] 2004, pet. ref’d)……… 52
Vela v. State, 209 S.W.3d 128
(Tex. Crim. App. 2006)……………………….…………. 69
Wicker v. State, 667 S.W.2d 137
(Tex. Crim. App. 1984)……………………….…………. 43
ix
Wyatt v. State, 23 S.W.3d 18, 27
(Tex. Crim. App. 2000)……………………….…………. 69
Willingham v. State, 897 S.W.2d 351, 359
(Tex. Crim. App. 1995)……………………….…………. 65
STATUTES
Tex. Code Crim. Proc., Art.18.01 (West 2014)……………….. 52
Tex. Pen. Code §7.02 (West 2014)…………………………….. 48
Tex. Pen. Code §8.05 (West 2014)…………………………….. 62
Tex. Pen. Code §9.22 (West 2014)…………………………….. 62
Tex. Pen. Code §19.02 (West 2014)…………………………….. 43
Tex. Rules of Evid., Rule 401 (West 2014)…………………….. 65
Tex. Rules of Evid., Rule 402 (West 2014)…………………….. 65
Tex. Rules of Evid., Rule 702 (West 2014)…………………….. 68
x
PRELIMINARY STATEMENT
On August 1, 2012, Appellant Rebecca Victoria Humaran was
arrested for the murder of Clinton Sutton, Sr. On May 20, 2014, a jury
found Humaran guilty of Murder. On May 23, 2014, a jury assessed a
sentence of 50 years in the Texas Department of Criminal Justice.
Appellant Humaran perfected her appeal on May 23, 2014. (TR. Vol. 3 at
165)
STATEMENT OF FACTS
PRETRIAL HEARING – AUGUST 20, 2013
On August 20, 2013, the trial court conducted a pretrial hearing on
Appellant’s Motion To Suppress Search Warrants for Defendant’s DNA
and for her Cell Phone.
A. Defense’s Witness
1. Phillip Steven Roberts
Brazoria County Sheriff’s Department Investigator Phillip Steven
Roberts testified he prepared the affidavits for the search warrants for
Appellant’s DNA and for her cell phone. (R.R. Supp. at 6-7) Roberts
explained that he spoke to witnesses and reviewed police officers’ reports
to prepare the 2 search warrants. (R.R. Supp. 1 at 9) He stated that he
1
prepared the search warrant for Appellant’s DNA after collecting the
evidence on July 31, 2012. (R.R. Supp. at 9-10) Roberts testified that he
spoke with Captain Kincheloe and other officers who stated that Appellant
had handled a firearm. (R.R. Supp. at 12-15) He admitted that he did not
have specific knowledge that Appellant handled a MAK-90 firearm. (R.R.
Supp. at 16) Roberts testified that he prepared an affidavit on August 10,
2012, for the search warrant for Appellant’s cell phone. (R.R. Supp. at
18-19) He admitted that he did not have any knowledge on whether or
not the cell phone contained evidence for this case. (R.R. Supp at 20)
The trial court denied Appellant’s Motion To Suppress the 2 search
warrants. (R.R. Vol. Supp. at 27)
TRIAL PHASE
A. State’s Witnesses
1. Brent Waisner
Brent Waisner testified that he lives with Samantha Scoggin who is
divorced from the deceased, Clinton Anthony Sutton, Sr. “Tony,” and
who is the mother of Clinton Sutton, Jr. (R.R. Vol. 3 at 45) Waisner
acknowledged that he is currently on probation for the felony of Theft.
(R.R. Vol. 3 at 44) He stated that on July 31, 2012, after he had drunk
2
three 16 ounce beers, he and Scoggin drove to Tony’s farm in Jones
Creek, Texas, to visit her son and ex-husband. (R.R. Vol. 3 at 46)
Waisner testified that they arrived at 8:00 a.m. and saw Sutton, Jr., and
Appellant standing on a concrete slab attached to the building while
black smoke billowed from a nearby fire on the property. (R.R. Vol. 3 at
54) He explained that Sutton, Jr., and Appellant looked annoyed at their
arrival and then saw Appellant wash blood from the concrete slab with a
water hose after Sutton, Jr., whispered into Appellant’s ear. (R.R. Vol. 3
at 58) Waisner testified that he remained in the car after Scoggin exited
the car and followed her son into the building. (R.R. Vol. 3 at 62) He
stated that Sutton ordered them to return in 45 minutes.
Waisner testified that when he and Scoggin returned that Sutton,
Jr., ordered his mother to get back in the car and leave. (R.R. Vol. 3 at
72) He stated that a nude Appellant exited the building and threatened
to call the police if they refused to leave the property. (R.R. Vol. 3 at 73)
He explained that he and Scoggin did not call the police because they
had been drinking and driving. (R.R. Vol. 3 at 79)
2. Samantha Scoggin
Samantha Scoggin testified that Sutton, Jr., began living with Tony
in May of 2012, after he was discharged from the Marine Corps with less
3
than an honorable discharge. (R.R. Vol. 3 at 88) Scoggin stated that
Appellant moved in with Sutton, Jr., and Tony in May of 2012. (R.R. Vol.
3 at 90) She explained that Tony made guitars and collected guns.
(R.R. Vol. 3 at 91) She admitted that she went to prison in 2008 for
Intoxication Manslaughter. (R.R. Vol.3 at 94) Scoggin further conceded
that she and Waisner drank a few beers on the drive to Tony’s property.
(R.R. Vol. 3 at 93) She testified that she saw her son and Appellant
standing on a 20 foot by 20 foot concrete slab which is connected to a
building which acts as Tony’s workshop and residence. (R.R. Vol. 3 at
96-97) Scoggin stated that she saw Appellant washing the slab with a
water hose. (R.R. Vol. 3 at 98) She testified that her son asked them to
leave for 45 minutes. (R.R. Vol. 3 at 103-104) Scoggin stated that
when they returned that an angry, aggressive, and nude Appellant
ordered them to leave. (R.R. Vol. 3 at 108-109) Scoggin noted that she
has seen Appellant shooting guns on Tony’s property. (R.R. Vol. 3 at
112)
3. Ray Rubio
Ray Rubio testified that he and Tony met 35 years ago in Junior
High School and have played together in a band. (R.R. Vol. 3 at 119-
120) He explained that he helped Tony construct a building on the 26-
4
acre property 13 or 14 years ago. (R.R. Vol. 3 at 124) Rubio explained
that he visited Tony on the Sunday before his death to help him fill holes
in his road located on the property, but Tony was unable to perform
much work because of his swollen knee caused by Muscular Sclerosis.
(R.R. Vol. 3 at 126) He testified that at about 12:30 p.m. on July 31,
2012, he tried to visit Tony, saw burned grass, walked into the building,
and noticed a wet floor. (R.R. Vol. 3 at 128-131) He stated that
Appellant told him that they were burning trash and that Tony went for a
walk. (R.R. Vol. 3 at 136) Rubio testified that he did not believe her
story because he knew that Tony could barely walk. (R.R. Vol. 3 at 136)
He testified that Appellant said that the floor was wet from washing dog
poop. (R.R. Vol. 3 at 137) Rubio acknowledged that he and Appellant
were alone for about 30 minutes and she never asked for help or
informed him that Sutton, Jr., had killed his father. (R.R. Vol. 3 at 138)
Rubio testified that as he was talking with Sutton, Jr., while they
were sitting on buckets, a plate came flying out of the building and broke
in the middle of the driveway. (R.R. Vol. 3 at 143-160) He described
that Sutton, Jr., ran inside the shop where Sutton, Jr., choked Appellant.
(R. R. Vol. 3 at 161) Rubio stated that after Sutton, Jr., released his grip
upon his request, Appellant said “Why don’t you tell him you shot your
5
dad.” (R.R. Vol. 3 at 161) He testified that Sutton, Jr., ran after
Appellant into the interior of the shop and emerged later with a bloody
forehead. (R.R. Vol. 3 at 162) Rubio stated that he exited the property
around 2:30 p.m. after Sutton, Jr., asked him to leave. (R.R. Vol. 3 at
163) Rubio testified that he had heard Sutton, Jr., and Appellant
discussing the value of Tony’s property a couple of weeks before the
murder. (R.R. Vol. 3 at 175) He denied that he was intoxicated on July
31, 2012, although he had drunk a couple of beers at Tony’s property.
(R.R. Vol. 3 at 176)
4. Summer Warren
Summer Warren testified that on July 31, 2012, she was working
as a dispatcher for the Brazoria County Sheriff’s Department. (R.R. Vol.
3 at 180-181) Warren testified that she handled a smoke complaint and
a 9-1-1 call on July 31, 2012, at Tony’s property. (R.R. Vol. 3 at 183-
186) She explained that the 9-1-1 caller made the call at 4:00 p.m. on
July 31, 2012, and stated that Sutton, Jr., had killed his father with a .40
caliber pistol and that she had shot the father with an AK-47. (R.R. Vol.
3 at 188) The caller said Sutton, Jr., shot the father when the father was
unconscious. (R.R. Vol. 3 at 189)
6
On cross-examination, Warren admitted that in her previous
testimony she never testified that the caller said she shot Tony with an
AK-47. (R.R. Vol. 3 at 196) Warren stated she dispatched Deputy
Beaver for the smoke complaint, and he arrived at 10:53 a.m. (R.R. Vol.
3 at 202) She stated that the 9-1-1 caller was hysterical and crying.
(R.R. Vol. 3 at 207) Warren testified that she sent an ambulance
because the caller said she was naked, had been knocked unconscious,
and had suffered an epileptic attack. (R.R. Vol. 3 at 208) She testified
that the caller said that her boyfriend shot his father and would not allow
her to leave the property. (R.R. Vol. 3 at 212) Warren stated that the
caller claimed that she had been raped and that Ray Rubio had seen
Sutton, Jr., choking her. (R.R. Vol. 3 at 215-216) She testified that the
caller described how Sutton, Jr., burned his father’s body after shooting
him with a pistol. (R.R. Vol. 3 at 215)
On redirect examination, Warren explained the discrepancy of her
conflicting testimony by stating that she had the flu during the first trial
and that she listened to the 9-1-1 call prior to the second trial with
headphones. (R.R. Vol. 3 at 219)
5. David Hallimore
7
Sergeant David Hallimore testified that he is a forensic audio/video
expert with the Houston Police Department. (R.R. Vol. 3 at 224)
Hallimore testified that the 9-1-1 call was brought to him for clarification.
(R.R. Vol. 3 at 227-230) He stated that he enhanced the 9-1-1 call to
make the recording of the call more clear. (R.R. Vol. 3 at 224)
Hallimore testified that the enhanced recording was as accurate as the
original recording. (R.R. Vol. 3 at 232) The trial court admitted this
enhanced recording over defense counsel’s objection. (R.R. Vol. 3 at
252) Hallimore noted that the caller stated “He just killed his dad, and
he’s burning in the backyard.” (R.R. Vol. 4 at 8) He testified that with
the use of good quality headphone that he could hear the caller state
“He shot him in the head and I shot him in the shoulder with an AK-47.”
(R.R. Vol. 4 at 12-13) Hallimore also listened to the caller claim “He’s
trying to put my fingerprints on the gun.” (R.R. Vol. 4 at 20)
On cross-examination, Hallimore admitted that he did not know the
identity of the 9-1-1 caller. (R.R. Vol. 4 at 25) He conceded that the
State had asked him to review the segment about the caller’s claim that
she shot the deceased with an AK-47. (R.R. Vol. 4 at 31) Hallimore
admitted that the caller stated that her ex-boyfriend choked her, shot his
father, and burned him in a barrel. (R.R. Vol. 4 at 32-33) He testified
8
that the caller stated that her ex-boyfriend is a former Marine and will not
allow her to leave the property. (R.R. Vol. 4 at 38-43) Hallimore stated
that the caller mentioned that her ex-boyfriend knocked her unconscious
and threw her on the floor. (R.R. Vol. 4 at 49)
6. David Beaver
Brazoria County Sheriff’s Deputy David Beaver testified that he
was dispatched to Tony’s property on July 31, 2012, at 10:39 a.m. to
investigate a smoke complaint. (R.R. Vol. 4 at 78-82) Beaver stated
that he did not see any smoke when he arrived although he did see a
burn pile. (R.R. Vol. 4 at 84) Beaver stated that Appellant told him that
they were burning some old documents and even invited him to look at
the burn pile. (R.R. Vol. 4 at 94) Beaver testified that he left at 10:59
a.m. after not finding anything suspicious. (R.R. Vol. 4 at 97)
Deputy Beaver testified that he received another dispatch for a
disturbance at the same property at 4:06 p.m. on the same day. (R.R.
Vol. 4 at 98) He explained that the priority of the call got more extreme
the closer he got to the property. (R.R. Vol. 4 at 99-100) Beaver stated
that he placed a naked and hysterical Appellant in his squad car after he
arrived. (R.R. Vol. 4 at 101-103) He testified that he did not handcuff
her, but he treated her as a victim because he saw scratches on her
9
neck and heard her state that Sutton, Jr., had killed his father. (R.R.
Vol. 4 at 104-106) Beaver stated that Appellant claimed that Sutton, Jr.,
shot Tony in the chest after they had gotten into an argument about
Sutton’s Jr.’s possible rape of Appellant. (R.R. Vol. 4 at 107) He
testified that Appellant told him that she placed her shirt on Tony’s
wound. (R.R. Vol. 4 at 108) Beaver stated that Appellant told him that
Sutton, Jr., then shot his father in the head. (R.R. Vol. 4 at 109)
Deputy Beaver testified that he then saw Sutton, Jr., emerge from
the building with a pink T-shirt which contained a .44 Magnum pistol.
(R.R. Vol. 4 at 119) Beaver testified that Appellant pointed to a barrel on
the north side of the property where Tony was burning, but he stated
that the barrel was empty. (R.R. Vol. 4 at 127) He stated that he
bagged Appellant’s hands because of the shooting. (R.R. Vol. 4 at 129)
Deputy Beaver testified that his squad car made a recording of his
conversation with Appellant. (R.R. Vol. 9 at 11-13) Beaver stated that
Appellant said Tony is burning in a green barrel in the backyard. (R.R.
Vol. 9 at 15-21) He testified that Appellant claimed that Sutton, Jr., shot
his father with an AK-47 and then tried to kill her. (R.R. Vol. 9 at 17-22)
Appellant claimed that Sutton, Jr., threw her phone when she tried to
make a 9-1-1 call. (R.R. Vol. 9 at 29) He testified that Appellant
10
claimed that Sutton, Jr., killed his father because Sutton, Jr., wanted to
sell the property. (R.R. Vol. 9 at 40) Beaver noted that he did not see
any blood on Appellant even though she said that Tony’s skull exploded
from the gunshot. (R.R. Vol. 9 at 45-46) Beaver testified that Appellant
rejected EMS’ request to take her to a hospital and obtain a rape kit.
(R.R. Vol. 9 at 52-53) He testified that Appellant never said that Sutton,
Jr., forced her to participate in this killing or its clean up. (R.R. Vol. 9 at
59)
On cross-examination, Beaver admitted that the shop floor
appeared to be dry on his first visit to the property. (R.R. Vol. 4 at 149)
He conceded that he only spent 5 minutes on the property during the
first visit. (R.R. Vol. 4 at 151-152) Beaver admitted that he did not
examine the burn pile even though Appellant made the offer. (R.R. Vol.
4 at 159) Beaver stated that the second response to the property was
because of a 9-1-1 call. (R.R. Vol. 4 at 176) He admitted that Appellant
told him that Sutton, Jr., assaulted her. (R.R. Vol. 4 at 174) He testified
that he and Deputy Knapp looked for the barrel with Tony’s remains, but
they never found the body. (R.R. Vol. 4 at 181-191) Beaver admitted
that Appellant was crying and screaming hysterically in this squad car.
(R.R. Vol. 4 at 186)
11
Beaver admitted that he just found the police car video during trial.
(R.R. Vol. 9 at 60) He admitted that Appellant claimed Sutton, Jr., shot
at her and choked her to the point of unconsciousness. (R.R. Vol. 9 at
87) Beaver admitted that Appellant actually reported the crime by
calling 9-1-1. (R.R. Vol. 9 at 91) He conceded that the video showed
that she was hysterical even when no one else was in the squad car
with her. (R.R. Vol. 9 at 114) Beaver testified that Appellant stated that
Sutton, Jr., killed his father a couple of hours ago and that she wished
he had killed her too. (R.R. Vol. 9 at 122-126) In the video, Appellant
claimed that Sutton, Jr., was mad at her for being pregnant and wanting
to leave him. (R.R. Vol. 9 at 138-148) Appellant claimed that Sutton,
Jr., killed his father so he could sell the property. (R.R. Vol. 9 at 158)
She described how Tony was alive and screaming after Sutton, Jr., shot
him in the shoulder the first time. (R.R. Vol. 9 at 159-163)
7. Matt West
Brazoria County Sheriff’s Investigator Matt West testified that he
and Deputies Smith and Beavers responded to Tony’s property in
response to the 9-1-1 call. (R.R. Vol. 4 at 220-223) West stated that he
saw a nude and hysterical Appellant who was yelling that she had been
raped. (R.R. Vol. 4 at 225) West stated that he secured the building
12
which contained so many guns that it resembled a miniature armory.
(R.R. Vol. 4 at 233-234) West testified that he bagged Sutton, Jr.’s
hands. (R.R. Vol. 4 at 238)
On cross-examination, West acknowledged that Appellant was
crying. (R.R. Vol. 4 at 240) West explained that he terminated the
search of the property when Sheriff Wagner wanted a search warrant
before reentering. (R.R. Vol. 4 at 247)
8. Jack Gentry
Brazoria County Sheriff’s Investigator Jack Gentry testified that he
arrived at Tony’s property at 5:43 p.m. on July 31, 2012, to investigate a
report of a missing person. (R.R. Vol. 5 at 18-22) Gentry stated that he
collected possible gunshot residue from the hands of both Sutton, Jr.,
and Appellant. (R.R. Vol. 5 at 23-26) Gentry stated that he found 2
shovels next to the building and 2 sets of rubber gloves in the bed of a
pickup truck. (R.R. Vol. 5 at 48-51) He testified that he photographed a
burn site which contained aerosol cans, a wooden handle, and bone
fragments. (R.R. Vol. 5 at 71) Gentry testified that he found a red 55
gallon drum laid on its side which contained charred human remains.
(R.R. Vol. 5 at 80) He stated that he also found a 4 foot by 8 foot area
of disturbed ground with a shovel, pickax, and a hoe. (R.R. Vol. 5 at 82)
13
Gentry testified that the drum contained only part of a human body with
bones sticking out from a mass of flesh. (R.R. Vol. 5 at 84-85)
Gentry testified that he found blood and shell casings and
cartridges on the shop floor. (R.R. Vol. 5 at 99) He stated that he
swabbed the area for possible DNA testing. (R.R. Vol. 5 at 110-114)
Over objection of defense counsel, Gentry testified that he collected a
white stool which appeared to have a hole caused by a bullet. (R. R.
Vol. 5 at 194-204) He stated that he found a metal fragment embedded
in the stool. (R.R. Vol. 5 at 206) Gentry described the hole as being 7-8
millimeters wide and 25 millimeters in height. (R.R. Vol. 5 at 207) He
testified that he photographed human teeth which he found at the burn
site. (R.R. Vol. 5 at 212) He testified that he collected hair that he found
on one of the shovels. (R.R. Vol. 6 at 15) Gentry testified that he
collected cuttings from Sutton, Jr.’s and Appellant’s clothing for possible
DNA testing. (R.R. Vol. 6 at 20-28) He stated that he collected 3
weapons for testing: a MAK-90, a .44 Magnum revolver, and a Beretta
85F .380 semiautomatic handgun. (R.R. Vol. 6 at 48) Gentry testified
that he found the hair on the blade of the shovel. (R.R. Vol. 6 at 87) He
stated that he did not recover any prints from the 3 weapons. (R.R. Vol.
6 at 101)
14
On cross-examination, Gentry admitted that the photographs of
Sutton, Jr., showed that he was dirty and bloody and his hands had dirt
under the nails and red blisters on his palms. (R.R. Vol. 7 at 18-19)
Gentry admitted that he did not find any human remains in the
rectangular shape area of disturbed ground. (R.R. Vol. 7 at 43) He
conceded that he did not know the origin of the hole found in the foot
stool. (R.R. Vol. 7 at 53) He believed that tires had been placed on top
of the red barrel which contained the charred human remains in order to
conceal the barrel. (R.R. Vol. 7 at 72-73) He conceded he did not find
any blood on the pink T-shirt. (R.R. Vol. 7 at 74)
9. Peter Marsh
Peter Marsh testified that he is a forensic dentist who can
determine the identity of a person through dental records. (R.R. Vol. 6
at 53) He stated that he compared Tony’s dental records to those of the
teeth found at the burn site. (R.R. Vol. 6 at 60-62) Marsh concluded
that the teeth found at the burn site were Tony’s teeth within a
reasonable medical certainty. (R.R. Vol. 6 at 62)
10. Shane Windsor
Shane Windsor testified that he is a forensic scientist with the
Texas Department of Public Safety who specializes in firearms and tool
15
mark analysis. (R.R. Vol. 6 at 67) He testified that he tested the 3
firearms collected to see if any of them fired the 2 cartridge cases found
at the scene. (R.R. Vol. 6 at 71) Windsor stated that the 2 cartridge
cases were .44 caliber so they could not have been fired by the MAK-90
or the Beretta. (R.R. Vol. 6 at 75) He testified that he was unable to
determine if the .44 caliber bullet was fired by the .44 Magnum found at
the scene because it was deformed from striking a hard surface. (R.R.
Vol. 6 at 79-80) On cross-examination, Windsor admitted that the .44
caliber bullet could have been fired from the .44 Magnum revolver.
(R.R. Vol. 6 at 86)
11. Mike Thomas
Brazoria County Sheriff’s Department Officer Mike Thomas
testified that he took a buccal swab from the mouths of Sutton, Jr., and
Appellant for DNA testing purposes. (R.R. Vol. 7 at 80-86) Thomas
testified that he performed a forensic examination of the cell phone
seized by Investigator Roberts. (R.R. Vol. 9 at 200) He noted that the
phone was not broken or damaged. (R.R. Vol. 9 at 202) Thomas
testified that he retrieved the metadata from the phone so that he could
find the time and date of any photographs taken. (R.R. Vol. 9 at 206)
He noted that several of the photographs were taken on June, 14, 2012,
16
and showed Tony’s property including a green barrel. (R.R. Vol. 10 at
10-14) Thomas stated that some of the pictures showed Appellant
shooting an assault rifle, including an AK-47 taken on June 3, 2012.
(R.R. Vol. 10 at 16-23) He testified that he downloaded a video taken
on June 3, 2012, which showed Appellant. (R.R. Vol. 10 at 37)
Thomas testified that he assisted Deputy Gentry in investigating
this murder by testing the property for the presence of blood. (R.R. Vol.
10 at 57-58) Thomas testified that the phone also contained several
photographs of Sutton, Jr., firing guns. (R.R. Vol. 10 at 76-78)
On cross-examination, Thomas admitted that he did not know to
whom the cell phone was registered. (R.R. Vol. 10 at 82) He also
conceded that he did not know who took the photographs or the videos.
(R.R. Vol. 10 at 83) Thomas admitted that the cell phone was in a
protective case which could have kept the phone from being damaged.
(R.R. Vol. 10 at 112)
On redirect examination, Thomas testified that the cell phone was
an iPhone 4s from which he downloaded about 1220 pictures and which
75 percent were “selfies” of Appellant. (R.R. Vol. 10 at 116-118)
12. Amy Smuts
17
Amy Smuts testified that she is a forensic analyst for the University
of North Texas Science Center for Human Identification. (R.R. Vol. 7 at
94) Smuts stated that she reviewed 10 items sent to her by the Brazoria
County Sheriff’s Department. (R.R. Vol. 7 at 103) Smuts stated that the
DNA of the hair found on the shovel matched Tony’s DNA. (R.R. Vol. 7
at 125) She testified that the DNA of the blue jean cutting showed a
DNA profile of at least 3 individuals in which Tony and his son were
contributors. (R.R. Vol. 7 at 136) Smuts testified that she also
performed a paternity test which revealed that there was a 99.91 percent
chance that Tony was the father of Sutton, Jr. (R.R. Vol. 7 at 138)
13. Jennifer Moreno
Jennifer Moreno testified that she is a forensic DNA analyst for the
Texas Department of Public Safety Crime Laboratory in Houston, Texas,
who analyzes degraded DNA samples. (R.R. Vol. 7 at 149-151)
Moreno explained that heat, sunlight, and water can degrade DNA to
make DNA identification more difficult. (R.R. Vol. 7 at 154) She testified
that she found the DNA of Sutton, Jr., and Appellant on the MAK-90
weapon. (R.R. Vol. 7 at 162-163) On cross-examination, she admitted
18
that her testing does not determine when the person’s DNA was left on
the item. (R.R. Vol. 7 at 167)
14. Juan Rojas
Juan Rojas testified that he is a traced evidence examiner for the
Texas Department of Public Safety who analyzes gunshot residue.
(R.R. Vol. 7 at 171) Rojas explained that a shooter will receive gunshot
residue from the gases expelled from the back of a gun that has been
fired. (R.R. Vol. 7 at 174) He further explained that gunshot residue
consists of three substances: antimony, barium, and lead. (R.R. Vol. 7
at 180) Rojas testified a characteristic particle contains all 3
substances while an indicative particle only contains 2 of the
substances. (R.R. Vol. 7 at 180) He testified that Sutton, Jr.’s hand had
1 characteristic and 5 indicative particles. (R.R. Vol. 7 at 179) Rojas
testified that Appellant’s hands only contained 1 indicative particle.
(R.R. Vol. 7 at 184) He explained that he must find 6 particles before he
can conclude that a person fired a gun. (R.R. Vol. 7 at 182) Rojas
concluded that he did not know whether or not Appellant fired a gun.
(R.R. Vol. 7 at 198)
On cross-examination, Rojas admitted Sutton, Jr., fired a gun, but
he did not know if Appellant did. (R.R. Vol. 7 at 199) Rojas admitted
19
that he normally only collected gunshot residue within 4 hours of the
gunshot. (R.R. Vol. 7 at 215) He explained that Appellant’s gunshot
residue was found on her left hand, while Sutton, Jr.’s gunshot residue
was found on his right hand. (R.R. Vol. 7 at 218-221)
15. Chris Kincheloe
Brazoria County Sheriff’s Department Captain Chris Kincheloe
testified that he arrived at Tony’s property at around 4:15 p.m. on July
31, 2012. (R.R. Vol. 8 at 7-14) Kincheloe described Sutton, Jr., to have
a giddy excitement when he spoke to him in the squad car. (R.R. Vol. 8
at 17) He testified that he spoke with Appellant while she was being
treated in an ambulance for bruises and scratches to her neck. (R.R.
Vol. 8 at 19-20) Kincheloe stated that he read Appellant her Miranda
warnings before speaking to her. (R.R. Vol. 8 at 22)
Kincheloe testified that Appellant informed him that Sutton, Jr.,
shot and killed Tony after Tony became upset over Sutton, Jr. and
Appellant loudly arguing in the middle of the night. (R.R. Vol. 8 at 44-45)
She stated that Sutton, Jr., assaulted her. (R.R. Vol. 8 at 45) Kincheloe
testified that Appellant told him Sutton, Jr., shot his father once in the
back and then shot him in the head before burning his father’s body.
(R.R. Vol. 8 at 46-49) He stated that Appellant led him to a burn site
20
where she believed Sutton, Jr. had burned Tony’s body, but he did not
find the body. (R.R. Vol. 8 at 52-54)
Kincheloe testified that Appellant agreed to accompany him to the
police station without handcuffs in order for him to take her statement.
(R.R. Vol. 8 at 56) He stated that the argument between Sutton, Jr., and
his father escalated to the point that Sutton, Jr., shot his father in the
chest with a .44 Magnum revolver. (R.R. Vol. 8 at 60) Kincheloe
testified that Appellant claimed that as she rushed to Tony’s side to help
him by placing her shirt on his wound that Sutton, Jr., then shot his
father in the head with the .44 Magnum revolver. (R.R. Vol. 8 at 61) He
noted that he did not see any blood or brain matter on Appellant even
though a .44 Magnum revolver is a powerful handgun. (R.R. Vol. 8 at
63) He stated that Appellant told him that Sutton, Jr., shot his father in
the morning. (R.R. Vol. 8 at 75) Kincheloe testified that he typed as she
spoke, and she signed the statement. (R.R. Vol. 8 at 80)
Kincheloe testified that Appellant had scratches on her neck and
stomach. (R.R. Vol. 8 at 87-90) He stated that her statement described
that their fight began when she informed him she was breaking up with
him. (R.R. Vol. 8 at 99-100) Kincheloe testified that Appellant claimed
in her statement that Sutton, Jr., shot his father after the deputy
21
responded to the smoke complaint. (R.R. Vol. 8 at 103-106) She
described how Sutton, Jr., took her phone and then put a gun to his
father’s head and shot him while she held her shirt on his wound. (R.R.
Vol. 8 at 111-112) Appellant claimed that she asked Rubio to take her
away because Sutton, Jr., had killed his father. (R.R. Vol. 8 at 116)
Kincheloe testified that Appellant stated that Sutton, Jr., then choked her
to the point of unconsciousness. (R.R. Vol. 8 at 117) Appellant claimed
in her statement that she ran naked outside and called 9-1-1 after she
awakened. (R.R. Vol. 8 at 120) Kincheloe testified that Appellant was
not crying or hysterical when she gave her statement. (R.R. Vol. 8 at
126) He stated that he did not arrest Appellant that evening and even
instructed Deputy Snelgrove to escort her to a friend’s home in Freeport.
(R.R. Vol. 8 at 129-131) Kincheloe testified that she rejected his request
to provide her medical treatment for her rape. (R.R. Vol. 8 at 132) He
admitted that Appellant never told her that Sutton, Jr., forced her to
participate in this killing and subsequent cleaning. (R.R. Vol. 8 at 139)
Kincheloe concluded that there was more to Appellant’s story than she
told him. (R.R. Vol. 8 at 135)
16. Stephen Pustilnik
22
Galveston County Chief Medical Examiner Dr. Stephen Pustilnik
testified that he performed the autopsy on the deceased. (R.R. Vol. 8 at
141) Pustilnik testified that Tony’s charred remains were located in a
barrel and weighed 52 pounds. (R.R. Vol. 8 at 146) He stated that the
hemorrhaging that he found in the brain meant that Tony was alive when
he was shot in the head. (R.R. Vol. 8 at 152) He testified that he could
not see a gunshot wound in a burned body unless it goes through a
bone. (R.R. Vol. 8 at 156). Pustilnik concluded that the cause of death
was possible multiple gunshot wounds. (R.R. Vol. 8 at 157) He
explained that he believed that there was a second gunshot wound
because of a metal fragment on Tony’s clavicle bone that he saw on the
X-Ray. (R.R. Vol. 8 at 164) Pustilnik testified that the metal fragment
was consistent with a gunshot wound. (R.R. Vol. 8 at 166)
Pustilnik testified that it would have taken at least 30 minutes and
up to 2 hours at a temperature of 1500 to 2000 degree to burn Tony’s
body to this extent. (R.R. Vol. 8 at 173-174) Pustilnik also noted that
the hole in the foot stool is more consistent with a 7.69 by .39 millimeter
bullet than from a .44 Magnum bullet. (R.R. Vol. 8 at 197)
On cross-examination, Pustilnik admitted that he performed the
autopsy on August 1, 2012, but reexamined Tony’s X-rays on May 29,
23
2013, at the request of the Brazoria County District Attorney’s Office.
(R.R. Vol. 8 at 203-207) He conceded that he amended his autopsy
report to include the metal fragment on the collarbone although the
fragment was less than a millimeter in size. (R.R. Vol. 8 at 208)
Pustilnik testified that while he was 99.98 percent certain of one gunshot
wound, but he was only 25 to 30 percent certain of second gunshot
wound. (R.R. Vol. 8 at 217) He stated that Tony could have lived for 15
minutes to an hour from the shot to the shoulder area depending on
whether or not the bullet tore through the lungs or a major artery near
the clavicle. (R.R. Vol. 8 at 218) He stated that Tony was definitely
alive and probably capable of speaking when the second shot was fired.
(R.R. Vol. 8 at 226)
17. Steve Roberts
Brazoria County Sheriff’s Department Investigator Steve Roberts
testified that he seized a cell phone based on a search warrant and gave
it to Lieutenant Parmiter. (R.R. Vol. 9 at 188-191)
18. Varon Snelgrove
Brazoria County Sheriff’s Lieutenant Varon Snelgrove testified that
he was present when Kincheloe spoke with Appellant at the crime scene
and at the police station. (R.R. Vol. 10 at 120-128) Snelgrove stated
24
that Appellant was naked and not handcuffed when she told them that
Sutton, Jr., killed his father and made her watch. (R.R. Vol. 10 at 130)
Snelgrove stated that Appellant was not under arrest when he and
Kincheloe took her to the police station for her statement. (R.R. Vol. 10
at 134) He testified that after the interview he was going to take her to
the Women’s Shelter in Angleton, but Appellant insisted on returning to
Tony’s property to retrieve her phone. (R.R. Vol. 10 at 136) Snelgrove
stated that on the ride to the property, Appellant stated that she thought
she would sell the property for $500,000.00. (R.R. Vol. 10 at 139-140)
He testified that she also requested a .50 caliber rifle and a Beretta
handgun from Tony’s place. (R.R. Vol. 10 at 141) Snelgrove stated that
Appellant said that she was the half owner of the property. (R.R. Vol. 10
at 143) He testified that after retrieving the cell phone and making some
calls, Appellant requested that he take her to a friend’s home in
Freeport. (R.R. Vol. 10 at 144) Snelgrove described how Appellant
became hysterical when she spoke with her mother on the cell phone,
but then became calm once the call ended. (R.R. Vol. 10 at 145-146)
On cross-examination, Snelgrove conceded that he was not aware
that Appellant was 2 months pregnant at the time. (R.R. Vol. 10 at 159)
Snelgrove admitted that being a witness to a murder would be a
25
traumatic experience. (R.R. Vol. 10 at 162) Snelgrove stated that he
believed that Appellant was faking being emotional in Deputy Beaver’s
car video because he never saw Appellant shed a tear. (R.R. Vol. 10 at
174) He admitted that Sutton, Jr., had been recently arrested on July 4,
2012, for assaulting a peace officer. (R.R. Vol. 10 at 178) Snelgrove
admitted that he heard Appellant tell her mother that Sutton, Jr., shot his
father and made her watch. (R.R. Vol. 10 at 179) Snelgrove agreed
that victims of domestic violence often do not pursue charges, but noted
that they often invent abuse charges too. (R.R. Vol. 10 at 189)
19. Crockett Robinson
Crockett Robinson testified that he lives in Freeport, Texas, and
has known Sutton, Jr., since they were 5 or 6 years old. (R.R. Vol. 10 at
191-192) Robinson stated that Sutton, Jr., left the Marine Corps in April
of 2012 and met Appellant at the beginning of July of 2012. (R.R. Vol.
10 at 194) He testified that on July 31, 2012, Appellant called and asked
him if she could come to his house because Sutton, Jr., had killed his
father. (R.R. Vol. 10 at 195) Robinson described Appellant as crying
hysterically as she told him, his mother, and his mother’s boyfriend how
Sutton, Jr., shot and killed his father after an argument over a bathroom
light being left on. (R.R. Vol. 10 at 197) He testified that Appellant said
26
that Sutton, Jr., shot his father in the back from an upstairs balcony then
came downstairs and shot him in the head with a pistol as he said “Fuck
you dad.” (R.R. Vol. 10 at 198) Robinson stated that Appellant
informed them that Sutton, Jr., forced her to watch him kill his father.
(R.R. Vol. 10 at 199) Robinson testified that Appellant claimed that
Sutton, Jr., choked her then burned his father’s body. (R.R. Vol. 10 at
200) She claimed that Sutton, Jr., then choked her so hard that she
became unconscious. (R.R. Vol. 10 at 201) He testified that Appellant
claimed that after she awakened she ran outside nude and called the
police as the dogs ran outside with her. (R.R. Vol. 10 at 201) He found
it hard to believe that Sutton, Jr., would kill his father over a light switch.
(R.R. Vol. 10 at 204)
On cross-examination, Robinson admitted that Sutton, Jr., served
in the Marine Corps for about 5 years. (R.R. Vol. 10 at 208) He
described the relationship between Sutton, Jr., and Tony as cordial.
(R.R. Vol. 10 at 212) Robinson stated that Tony was a gun collector.
(R.R. Vol. 10 at 213) He admitted that Appellant told him that Tony was
still alive after the first gunshot. (R.R. Vol. 10 at 218) Robinson also
admitted that Appellant claimed that she tried to call for help but Sutton,
Jr., stopped her. (R.R. Vol. 10 at 219)
27
20. Stephanie Robinson
Stephanie Robinson testified that she has lived in Freeport, Texas,
for 48 years. (R.R. Vol. 10 at 226) She testified that Sutton, Jr., had
previously introduced Appellant as his girlfriend. (R.R. Vol. 10 at 229)
Stephanie said Appellant was crying as she told them that Sutton, Jr.,
had killed his father. (R.R. Vol. 10 at 232) She testified that Appellant
said that Sutton, Jr., shot his father in the shoulder with an AK-47 and
then she put her shirt on Tony to stop the bleeding. (R.R. Vol. 11 at 9-
12) Stephanie stated that Appellant claimed that Tony’s head exploded
in her lap, but Stephanie stated she did not see any blood on Appellant.
(R.R. Vol. 11 at 14-16) She claimed that Appellant told her that Sutton,
Jr., forced Appellant to wrap Tony’s head in wrapping paper and then
forced Appellant to watch him burn Tony’s body. (R.R. Vol. 11 at 18)
Stephanie testified that Appellant claimed that Sutton, Jr., killed his
father at 1:00 p.m. in the afternoon. (R.R. Vol. 11 at 22) Stephanie
testified that Appellant claimed that the police said that her child would
inherit Tony’s property. (R.R. Vol. 11 at 24) Stephanie testified that
Appellant asked her and her boyfriend to drive her to Scoggin’s home in
Surfside, Texas. (R.R. Vol. 11 at 28-29)
28
On cross-examination, Stephanie admitted that Appellant told her
that Sutton, Jr., shot his father first with an AK-47 and then with a pistol.
(R.R. Vol. 11 at 52) Stephanie conceded that Appellant told her that
Sutton, Jr., choked her several times and that Appellant tried to save
Tony. (R.R. Vol. 11 at 54-58) She admitted that she did not believe
Appellant and wanted her out of the house so she agreed to take her to
Scoggin’s house. (R.R. Vol. 11 at 68) Stephanie testified that Appellant
never mentioned that Sutton, Jr., had raped her. (R.R. Vol. 11 at 70)
She admitted that Sutton, Jr., had anger management issues before
entering the Marine Corps. (R.R. Vol. 11 at 77)
The State rested. (R.R. Vol. 6 at 43)
B. Defense’s Witnesses
1. Brent Waisner
Waisner admitted that he has been convicted of felony Theft.
(R.R. Vol. 11 at 120) He conceded that Sutton, Jr., was discharged in
early 2012 from the Marine Corps for drug abuse. (R.R. Vol. 11 at 122)
Waisner admitted to drinking 3 beers before driving to Tony’s property,
but he denied that he was intoxicated. (R.R. Vol. 11 at 128) Waisner
stated that he saw Appellant begin washing blood from the concrete slab
29
after Sutton, Jr., whispered into her ear. (R.R. Vol. 11 at 132) He
explained that he stayed in the car and Appellant stood on the concrete
slab for about 20 minutes while Scoggin walked inside the building to
find Sutton, Jr. (R.R. Vol. 11 at 138) He stated that Sutton, Jr., yelled at
him to get off of the property, but admitted that he never mentioned in
his previous testimony that Appellant had screamed at them to leave.
(R.R. Vol. 11 at 148) Waisner admitted that even after learning of
Tony’s death that he and Scoggin did not make a statement to the police
because they did not want to get Sutton, Jr., in trouble. (R.R. Vol. 11 at
152-153)
On redirect examination, Waisner testified that he did not see
Sutton, Jr., force Appellant to do anything. (R.R. Vol. 11 at 163) He
admitted he did not want to get involved because of his past criminal
history and because he had been drinking. (R.R. Vol. 11 at 165)
Waisner agreed that Appellant never asked him for help. (R.R. Vol. 11
at 166)
2. Samantha Scoggin
Samantha Scoggin testified that she met Appellant about a couple
of months before Tony’s death and that Tony seemed to like
30
Appellant. (R.R. Vol. 11 at 179) Scoggin stated that she saw smoke
both times she entered Tony’s property on July 31, 2012. (R.R. Vol. 11
at 181-185) She claimed that she made a smoke complaint to the police
after she left the property the second time. (R.R. Vol. 11 at 191)
3. Ray Rubio
Rubio stated that he saw smoke coming from a red barrel which
was laid on its side and located on the northeast side of the building.
(R.R. Vol. 11 at 208-209) Both Sutton, Jr., and Appellant told him that
Tony had gone for a walk. (R.R. Vol. 11 at 215-218) He stated that after
Sutton, Jr., tried to choke Appellant that Appellant said that Sutton, Jr.,
had shot and killed his father. (R.R. Vol. 11 at 223) Rubio testified he
left the property at about 2:30 p.m. after Sutton, Jr., told him to leave.
(R.R. Vol. 11 at 227-230)
4. Jerome Griffin
Brazoria County Sheriff’s Department Investigator Jerome Griffin
testified that he interviewed Ray Rubio who provided him a voluntary
statement. (R.R. Vol. 11 at 242-243)
5. Jack Gentry
31
Brazoria County Sheriff’s Department Investigator Jack Gentry
testified that the photographs of 2 blood test kits were for the testing of
blood and were not pregnancy test kits. (R.R. Vol. 11 at 256)
6. Chris Kincheloe
Captain Chris Kincheloe testified that Waisner eventually stopped
cooperating with the murder investigation. (R.R. Vol. 12 at 8) He stated
that he arrested Appellant at Scoggin’s house on August 1, 2012, for an
open arrest warrant from Montgomery County, Texas, for the
misdemeanor charge of Possession of Marijuana. (R.R. Vol. 12 at 9)
He admitted that Deputy West’s car video showed Sutton, Jr., laughing
and smiling on July 31, 2012. (R.R. Vol. 12 at 14-16) Kincheloe
admitted to making some mistakes on the statement he typed for
Appellant to sign. (R.R. Vol. 12 at 35) He believed that the evidence
found was not consistent with Appellant’s statement. (R.R. Vol. 12 at
39)
7. Karen Humaran
Karen Stinnett Humaran testified that Appellant was one of her
three daughters. (R.R. Vol. 12 at 44) She stated that when Appellant
was 19 years old she moved out of their Kingwood home and moved in
32
with Sutton, Jr. (R.R. Vol. 12 at 9) Karen Humaran testified that
Appellant called her crying and hysterical both in the afternoon and in
the evening of July 31, 2012. (R.R. Vol. 12 at 50) She stated that
Appellant later gave birth to a son named James Gabriel. (R.R. Vol. 12
at 51)
The Defense rested. (R.R. Vol. 12 at 65)
The trial court denied Appellant’s motion to remove a juror whom
the Appellant claimed had been sleeping during trial. (R.R. Vol. 12 at
75)
The trial court denied Appellant’s request for an instruction in the
jury charge for necessity and duress. (R.R. Vol. 12 at 88)
C. Jury’s Verdict
The jury found Appellant guilty of Murder. (R.R. Vol. 13 at 135)
PUNISHMENT PHASE
A. State’s Witness
1. Chris Kincheloe
33
Captain Chris Kincheloe testified that a search of Tony’s property
revealed 3 or 4 flat screen televisions, a Dale Earnhardt commemorative
jacket, many bottles of liquor, numerous DVDs, and a box with a
derringer pistol engraved with the name of Ben Devine. (R.R. Vol. 14 at
26-34) Kincheloe stated that Appellant informed him that Sutton, Jr.,
had burglarized some homes in Surfside while she acted as a lookout.
(R.R. Vol. 14 at 28 & 36) He testified that the house she showed him
belonged to Benjamin Devine and looked as if it had been ransacked.
(R.R. Vol. 14 at 40) Kincheloe stated that a woman’s driver’s license
and jewelry found on Sutton, Jr., belonged to Wassberg who lived down
the street from Devine. (R.R. Vol. 14 at 42) On cross-examination,
Kincheloe admitted that Appellant helped him in the burglary
investigation. (R.R. Vol. 14 at 43-45)
2. Steve Roberts
Investigator Steve Roberts testified that the derringer, Dale
Earnhardt jacket, bottles of liquor, and televisions had been burglarized
from Devine’s Surfside home. (R.R. Vol. 14 at 48-56) Roberts stated
that some electronic and the bottles of liquor had been burglarized from
Wassberg’s home. (R.R. Vol. 14 at 58-63) On cross-examination,
34
Roberts testified that Appellant was charged with Burglary and
Tampering with Evidence, but admitted that she was helpful in the
burglary investigation. (R.R. Vol. 14 at 65)
3. Ben Devine
Ben Devine testified that he lives in Cypress, Texas, and owns a
beach house in Surfside. (R.R. Vol. 14 at 69) Devine stated that his
beach house had been ransacked and the windows had been broken.
(R.R. Vol. 14 at 72) He testified that the Dale Earnhardt jacket, stereos,
televisions, DVDs, and more than 80 bottles of liquor had been stolen.
(R.R. Vol. 14 at 73-75)
4. Heather Bailey
Heather Bailey testified that Appellant and Sutton, Jr., used
cocaine almost every day. (R.R. Vol. 14 at 84) Bailey stated that she
suggested that Appellant have sex with her dentist friend named Michael
McCann after Appellant told her that Appellant needed to make some
money without Sutton, Jr.’s knowledge. (R.R. Vol. 14 at 85-86) She
stated that she took Appellant to McCann’s home for sex, but McCann
later emerged naked from his bedroom and complained that his money
clip was missing. (R.R. Vol. 14 at 89) Bailey testified that Appellant
returned the money clip with the money to McCann. (R.R. Vol. 14 at 89)
35
She stated that she visited Appellant at Tony’s residence and saw at
least 10 televisions and 50 to 60 bottles of liquor. (R.R. Vol. 14 at 92)
Bailey described Appellant’s cell phone conversation while they waited
outside of McCann’s house in which Appellant demanded to trade
pistols for drugs or she threatened to shoot the caller’s house. (R.R.
Vol. 14 at 96)
On cross-examination, Bailey admitted that she only heard
Appellant and Sutton, Jr., discuss using cocaine, she never saw them
use cocaine. (R.R. Vol. 14 at 99) Bailey explained that McCann gave
her the prostitution fee, and she split the fee with Appellant. (R.R. Vol.
14 at 108)
5. Michael McCann
Michael McCann testified that he was a dentist in Brazoria, Texas,
who used Bailey to obtain girls for sex. (R.R. Vol. 14 at 111) McCann
stated that Appellant stole his money clip when Bailey brought Appellant
to his home for sex. (R.R. Vol. 14 at 113-114) He believed that she
probably stole his Beretta pistol too, but he did not realize it was missing
until several months later. (R.R. Vol. 14 at 115)
On cross-examination, McCann stated that he was a 64 year old
single man with two children. (R.R. Vol. 14 at 117) He testified that this
36
is the only time he used Bailey to bring him a girl, and he denied that he
paid Bailey any money. (R.R. Vol. 14 at 119) He testified that Bailey
used to live with him, but he only had sex with her once. (R.R. Vol. 14 at
120-122)
6. Christina Coronado
Christina Coronado testified that she is an Investigator with the
Domestic Violence Unit of the Harris County Precinct 4 Constable’s
Office. (R.R. Vol. 14 at 128) Coronado stated that she interviewed
Appellant who claimed that a man choked her on January 27, 2012.
(R.R. Vol. 14 at 131-133) She testified that she interviewed Appellant
again on February 1, 2012, and Appellant claimed that she had made a
false report about the choking and the red marks came from rough sex.
(R.R. Vol. 14 at 140-141)
On cross-examination, Coronado admitted that the assault case
for which Appellant was a victim was dismissed because Appellant had
been indicted for Murder and not because of her recantation. (R.R. Vol.
14 at 155) Coronado admitted that Appellant did not want her abuser to
go to jail. (R.R. Vol. 14 at 174) Coronado testified that Appellant
became emotional in the second interview when she realized that she
could be charged with a crime. (R.R. Vol. 14 at 176)
37
The State rested. (R.R. Vol. 14 at 195)
The trial court sustained State’s objection to Appellant’s request to
introduce evidence of Sutton’s Jr.’s suicide at his prison cell. (R.R. Vol.
15 at 23-24)
B. Defense’s Witness
1. Cheri Schultz
Cheri Schultz testified that she is a Mitigation Specialist who used
to work for the Harris County Probation Department. (R.R. Vol. 15 at
29) Schultz stated that she interviewed Appellant, her parents, her
sisters, and even met her son James Gabriel. (R.R. Vol. 15 at 31-36)
She explained that Appellant was bullied when she was young so she
had self-esteem problems and chose to date the wrong men. (R.R. Vol.
15 at 37-39) Schultz recommended a minimum prison sentence of less
than 20 years so that Appellant could return home and raise her son.
(R.R. Vol. 15 at 44-45)
On cross-examination, she conceded that she did not interview
any of the State’s witnesses to this murder. (R.R. Vol. 15 at 48) Schultz
admitted that Appellant was raised by a good family which afforded her
many chances in life. (R.R. Vol. 15 at 51) She stated that she focused
on the client and not on the crime. (R.R. Vol. 15 at 59)
38
The trial court denied Appellant’s Motion For Mistrial based on the
prosecution’s comment on Appellant failure to testify. (R.R. Vol. 15 at
68-69)
The Defense rested. (R.R. Vol. 15 at 70)
The trial court denied Appellant’s request for the issue of Sudden
Passion. (R.R. Vol. 15 at 72)
C. Jury’s Sentence
The jury assessed a sentence of 50 years in the Texas
Department of Criminal Justice. (R.R. Vol. 15 at 109)
39
POINTS OF ERROR
POINT OF ERROR ONE:
The evidence was insufficient to support Appellant’s conviction for
Murder.
POINT OF ERROR TWO:
The evidence is insufficient to prove that Appellant acted as a party
to Murder.
POINT OF ERROR THREE:
The trial court erred by denying Appellant’s Motion to Suppress
DNA evidence derived from Appellant’s cell phone.
POINT OF ERROR FOUR:
The trial court erred by denying Appellant’s Motion For a Mistrial
concerning the prosecutor’s comment on Appellant’s failure to testify.
POINT OF ERROR FIVE:
The trial court erred by denying Appellant’s Motion for Continuance.
POINT OF ERROR SIX:
The trial court erred by denying Appellant’s Requested changes to
the jury charge in the Guilt-Innocence Phase of the Trial.
40
POINT OF ERROR SEVEN:
The trial court erred by excluding evidence of Clinton Anthony
Sutton, Jr.’s suicide.
POINT OF ERROR EIGHT:
The trial court erred by admitting expert testimony of Hallimore
about contents of the enhanced 9-1-1 call.
41
POINT OF ERROR NO. 1
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT’S
CONVICTION FOR MURDER
Appellant contends that the State has not proven its case beyond a
reasonable doubt because the State has failed to show beyond a
reasonable doubt that Humaran killed Clinton Anthony Sutton, Sr.
The test for reviewing the insufficiency of the evidence where a
defendant has been found guilty is for the reviewing court to determine
whether, after viewing the relevant evidence in the light most favorable to
the verdict, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Brooks v. State, 323
S.W.3d 893 (Tex. Crim. App. 2010) Thus, the issue on appeal is not
whether the appellate court believes the State’s evidence or instead
believes the appellant’s evidence outweighs the State’s evidence.
Wicker v. State, 667 S.W. 2d 137, 143 (Tex. Crim. App. 1984) The verdict
may not be overturned unless it is irrational or unsupported by proof
beyond a reasonable doubt. Matson v. State, 819 S.W. 2d 839, 846
42
(Tex. Crim. App. 1991) The jury, as the sole judge of the facts, is entitled
to resolve any conflicts in the evidence, to evaluate the credibility of
witnesses, and to determine the weight to be given any particular
evidence. Jones v. State, 944 S.W. 2d 642, 647 (Tex. Crim. App. 1996)
Section 19.02 (a) of the Texas Penal Code provides that a person
commits the offense of Murder if he intentionally or knowingly causes the
death of an individual. (West 2014)
The only evidence which shows that Appellant caused the death of
Clinton Sutton, Sr., was the barely audible statement of Appellant on her
9-1-1 call that she shot Tony with an AK-47 and Sutton, Jr., shot him
with a .44 caliber pistol.
Appellant contends that the evidence that she did not cause
Tony’s death overwhelmingly outweighs the evidence which shows that
she did and is listed as follows:
1) Appellant’s statements on Beaver’s videotape.
2) No evidence that Appellant fired a weapon.
3) Kincheloe’s testimony.
4) Snelgrove’s testimony.
5) Crockett Robinson’s testimony.
43
6) Stephanie Robinson’s testimony.
7) Appellant is only guilty of Aggravated Assault
1. Appellant’s statement to Deputy Beaver that Sutton, Jr., killed
his father.
Deputy Beaver testified that Appellant told him that Sutton, Jr.,
shot his father once in the chest and a second time in the head. (R.R.
Vol. 4 at 107-109) Beaver admitted that Appellant claimed that Sutton,
Jr., shot Tony with an AK-47 and then tried to kill her. (R.R. Vol. 9 at 17-
22)
2. No evidence that Appellant fired a weapon.
Rojas testified that he could find only one of the necessary 6
required gunshot residue particles on Appellant in order for him to
determine if she fired a weapon. (R.R. Vol. 7 at 182-184) Therefore, he
concluded that he did not know if Appellant fired a gun on July 31, 2012.
(R.R. Vol. 7 at 198)
3. Kincheloe’s testimony that Appellant claimed Sutton, Jr.,
killed Tony.
44
Kincheloe testified that Appellant informed him that Sutton, Jr.,
shot and killed Tony after Tony became upset over Sutton, Jr., and
Appellant loudly arguing in the middle of the night. (R.R. Vol. 8 at 44-45)
4. Snelgrove’s testimony that Appellant claimed that Sutton, Jr.,
killed Tony.
Snelgrove testified that Appellant told him that Sutton, Jr., killed
his father and made her watch. (R.R. Vol. 10 at 130)
5. Crockett Robinson’s testimony.
Crockett Robinson testified that Sutton, Jr., killed his father after
an argument over a bathroom light being left on. (R.R. Vol. 10 at 197)
6. Stephanie Robinson’s testimony.
Stephanie Robinson testified that Sutton, Jr., shot his father in the
shoulder with an AK-47 and then shot him again in the head. (R.R. Vol.
11 at 14)
7. Aggravated Assault.
Pustilnik testified that Tony could have lived for an hour after the
first shot to his shoulder. (R.R. Vol. 8 at 219) He admitted that Tony
was alive and capable of speaking when he was shot in the head. (R.R.
Vol. 8 at 226)
45
Appellant’s statements to multiple officers and the Robinson family
describe Appellant as an unwilling bystander to a son’s murder of his
father. The physical evidence of the gunshot residue supports
Appellant’s claims that she did not shoot Tony. Warren and Hallimore’s
testimony that a virtually inaudible portion of Appellant’s 9-1-1 call was
an admission by Appellant that she initially shot Tony with an AK-47
before Sutton, Jr., shot Tony again with a pistol lacks credibility when
compared with her statements to multiple officers that are consistent in
their conclusion that Sutton, Jr., killed his father with shots his to
shoulder and head. Therefore, Appellant contends that the State
provided insufficient proof that Appellant killed Tony based on the
inaudible segment of a 9-1-1 call.
Even if the jury believed that Appellant shot Tony first in the
shoulder with an AK-47, Pustilnik’s testimony showed that Tony was
alive and capable of speaking before his son killed him with a shot to the
head. Pustilnik admitted that Tony could have survived the first shot if
he had received medical treatment; however, the second shot ended
that possibility. Therefore, the evidence showed that Appellant is only
guilt of the second degree felony of Aggravated Assault and not Murder.
46
Even when viewing the evidence in the light most favorable to the
jury’s verdict, a rational trier of fact would not have found the essential
elements of Murder beyond a reasonable doubt. Therefore, the
evidence is legally insufficient to sustain Appellant’s conviction for
Murder.
47
POINT OF ERROR NO. 2
THE EVIDENCE IS INSUFFICIENT TO PROVE THAT APPELLANT
ACTED AS A PARTY TO MURDER
The Appellant contends that the evidence is insufficient to prove
that she acted as a party to the murder of Clinton Sutton, Sr.
“A person is criminally responsible for an offense committed by the
conduct of another if acting with intent to promote or assist the
commission of the offense; he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.” Texas Pen.
Code §7.02(a)(2) (West 2014) In reviewing the evidence regarding a
defendant’s culpability under the law of parties, the courts may look to
events occurring before, during, and after the commission of the offense,
and may rely upon actions of the defendant which show an
understanding and common design to do the prohibited act. Ransom v.
State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) “Mere presence at
the scene of the offense does not establish guilt as a party to the
offense.” Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. 1982)
48
While Appellant testified that she was present at Tony’s property,
she denied participating in Tony’s shooting and claimed that Sutton, Jr.,
shot his father twice and killed him. (R.R. Vol. 4 at 101-109) Captain
Kincheloe, Lieutenant Snelgrove, Deputy Beaver, Deputy West, Deputy
Thomas, Crockett Robinson, and Stephanie Robinson all testified that
Appellant appeared scared and emotional when she informed them that
Sutton, Jr., shot and killed his father. In fact, Kincheloe testified that
Appellant voluntarily met with him and described how Sutton, Jr., choked
her repeatedly to the point of unconsciousness, raped her, took her
phone from her, and described how she finally had to call 9-1-1 to report
Sutton, Jr.,’s crime. (R.R. Vol. 8 at 87-129) Kincheloe even noted that
Appellant had asked Rubio to take her away because Sutton, Jr., had
killed his father. (R.R. Vol. 8 at 118) In addition, to Appellant’s
statements that Sutton, Jr., killed his father, Rojas’ testimony supports
Appellant’s contention because the gunshot residue was found on
Sutton, Jr. and not on Appellant. (R.R. Vol. 7 at 198)
The testimony of the State’s witnesses showed that Appellant did
not solicit, encourage, direct, aid, or attempt to aid Sutton, Jr., commit
Tony’s murder. In fact, the testimony supports Appellant’s contention
that Sutton, Jr., was a disgraced ex-Marine with anger problems who
49
killed his father, forced Appellant to cover up the evidence of the killing,
and then choked and raped her when she refused to participate any
further. Moreover, the fact that Appellant called 9-1-1 to alert the
authorities to crime further supports Appellant’s claim that she was not a
party to the murder. If she had acted in concert with Sutton, Jr., she
would have helped him thoroughly conceal all of the evidence of the
crime instead of inviting the authorities to a recent crime scene.
Therefore, the State has failed to prove that Appellant was a party to the
murder of Clinton Sutton, Sr.
50
POINT OF ERROR NO. 3
THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
TO SUPPRESS DNA EVIDENCE AND EVIDENCE DERIVED FROM
DEFENDANT’S CELL PHONE
Appellant Humaran filed written pretrial Motions to Suppress in
which she argued that the warrant authorizing the seizure of her DNA
evidence and evidence seized from her cell phone should have been
suppressed. (TR. Vol. 1 at 1232-1238) The trial court denied Appellant’s
Motions To Suppress the cocaine and the money. (R.R. Supp. at 27)
The appellate court reviews a trial court’s ruling on a motion to
suppress evidence for an abuse of discretion. Balentine v. State, 71
S.W.3d 763 (Tex. Crim. App. 2002) At a suppression hearing, the trial
court is the sole and exclusive trier of fact and judge of credibility of the
witnesses, as well as the weight to be given their testimony. Romero v.
State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) In reviewing a trial
court’s ruling on the motion to suppress, the appellate court gives almost
total deference to a trial court’s determination of historical facts, and
reviews de novo the court’s application of the law. Rayford v. State,
51
125 S.W.3d 521, 528 (Tex. Crim. App. 2003) Appellate review of an
affidavit in support of a search warrant, however, is not de novo.
Rather, great deference is given to the magistrate’s determination
of probable cause. Illinois v. Gates, 462 U.S. 213, 236-37, 103 S.Ct.
2317, 2331, 76 L.Ed. 2d 334 (1983)
The test for determination of probable cause is whether the
magistrate had a substantial basis for concluding that a search would
uncover evidence of wrongdoing. State v. Stone, 137 S.W. 3d 167, 174
(Tex. App. – Houston [1st Dist.] 2004, pet. ref’d) The affidavit which
supports the search warrant must contain the following facts to justify
issuance of a search warrant: (1) a specific offense has been
committed, (2) specifically described property or items to be searched
for and seized constitute evidence of the offense, (3) the property or
items constituting such evidence is located at the particular place to be
searched. Tex. Code Crim. Proc. Art. 18.01(c) (West 2014) “Whether
the facts mentioned in the affidavit are adequate to establish probable
cause depends on the totality of the circumstances. Stone, at 175.
“Probable cause exists if, under the totality of the circumstances set
forth in the affidavit before the magistrate, there is a “fair probability” that
52
contraband or evidence will be found in a particular place at the time the
warrant is issued. State v. Jordan, 342 S.W.3d 565, 568 (Tex. Crim.
App. 2011) Courts decide whether probable cause existed to issue a
warrant based on the “four corners” of the affidavit in support of the
warrant. Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992)
“A mere conclusory statement gives the magistrate virtually no basis at
all for making a judgment regarding probable cause.” Serrano v. State,
123 S.W.3d 57, 60 (Tex. App. – Austin 2003, pet. ref’d)
At the suppression hearing, the trial court admitted 2 Affidavits
executed by Investigator Roberts in support of his search of Appellant’s
DNA and her cell phone. (R.R. Supp. at 5) Roberts testified that both
affidavits set out the same facts although they were prepared on
different dates. (R.R. Supp. at 22) Appellant contends that a review of
both Affidavits for Search Warrant do not provide sufficient facts that
give a fair probability that evidence would be found from Appellant’s
DNA or from her cell phone concerning the investigation of Tony’s
murder. Virtually every sentence in the affidavits concerned the criminal
activity of Sutton, Jr. such as his shooting of his father or the assault of
Appellant.
53
In fact, the affidavits never mentioned that Appellant participated in
the murder and only mentioned that Sutton, Jr., shot his father.
Appellant contends that Roberts’ statements are mere conclusory
statements concerning Appellant which do not rise to the level of
probable cause for the issuance of a warrant. Humaran asserts that the
affidavits fail the second provision of Article 18.01(c) of the Texas Code
of Criminal Procedure because Roberts failed to explain how her DNA
constituted evidence of the murder. Based on this, the totality of the
circumstances showed that the affidavits lacked probable cause for the
issuance of a search warrant. Therefore, the trial erred in denying
Appellant’s Motions to Suppress.
54
POINT OF ERROR NO. 4
TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION FOR A
MISTRIAL CONCERNING PROSECUTOR’S COMMENT ON
APPELLANT’S FAILURE TO TESTIFY
Appellant contends that during the State’s cross-examination of
the Defense’s sole punishment witness, the prosecutor’s line of
questioning was a comment on the Appellant’s failure to testify. The
State’s cross-examination is set out as follows:
Q: And is it your testimony that this person deserves the
minimum, somewhere around the minimum?
A: Yes.
Q: All right. And is it your testimony that she was not capable of
committing this crime without Clinton Sutton, Jr.?
A: Yes.
Q: That’s your testimony to the jury?
A: Yes.
Q: And what’s that based on?
A: Well, part of it is the offense report and she - - she cared
about his father.
Q: According to her?
A: Yes.
Q: What, if anything, did she tell you about, I guess, wanting to
sell Tony’s property, the victim’s property?
A: I know that’s an allegation. She - - we did not discuss that. I
saw--.
Q: You didn’t discuss that?
A: I saw that in the offense report.
Q: But you didn’t think that was pertinent to you-all’s
discussion?
A: No.
Q: Why?
55
A: Because, again, I’m focusing on her and I didn’t go into the
facts of the case.
Q: Well, I mean, fair - - wouldn’t it be fair to say that the jury has
got to – they’ve got to assess punishment and the facts of this case kind
of matter? Wouldn’t that - -
A: They’ve heard all of the facts of the case. They’ve heard all
of the testimony.
Q: As so, it seems like your conversations with the defendant
focus on everything but the crime.
MR. GUERRA: Your Honor, that’s argumentative, Your
Honor; and it’s badgering the witness.
THE COURT: Rephrase it, please.
Q: Would it be fair to say that your involvement in this case and
your conversations with her pretty much involve everything but the
crime?
MR. GUERRA: That’s been asked and answered over and
over.
THE COURT: Sustained.
Q: Are you asking this jury to overlook the crime?
A: No. They’ve heard the testimony of the crime. What I am
saying is that my purpose is to try to explain to the jury a little bit about
her and I interviewed her about her background. They’ve—they’ve heard
more—well, they’ve heard the testimony. I haven’t.
Q: Right. Fair to say, I mean, they are in a better position to
assess it than you are certainly?
A: No.
Q: They’re not?
A: Well, obviously, they are. They’re the jury. But I’m just
saying I am here to give them a better picture of her, not to go into the
details of the offense.
Q: And that better picture is based on your three interviews only
with her?
A: And her family.
Q: And her family. And when you say give the jury a better
picture of her, what is – what’s – what’s the picture we’re talking about?
A: Just-- I can—read her growing up, a summary that her mom
helped me with you want me to do that.
Q: Well, we can’t do that because it’s—it’s not admissible in
evidence. But fair to say that that’s pretty one-sided?
A: Well, of course.
56
Q: Yeah.
MR. CLAYTON: I’ll pass the witness.
(R.R. Vol. 15 at 64-67)
The trial court denied Appellant’s motion for a mistrial. (R.R. Vol.
15 at 69)
“To violate appellant’s constitutional and statutory rights, the
objectionable comment, viewed from the jury’s perspective, must be
manifestly intended to be or of such a character that the jury would
necessarily and naturally take it as a comment on the accused failure to
testify.” Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999)
“Calling attention to the absence of evidence which only the defendant
could produce will result in a reversal only if the remark can only be
construed to refer to appellant’s failure to testify and not the defense’s
failure to produce evidence.” Fuentes, at 275.
Appellant contends that the prosecutor commented on Appellant’s
failure to testify by repeatedly asking Schultz her reasons for not
discussing Tony’s killing with Appellant. Schultz clearly testified that she
limited her interviews with Appellant to focus on the positive aspects of
her life for the purpose of sentencing before a jury. Despite Schultz’s
57
repeated assertions that she did not discuss the facts of Tony’s killing
with Appellant, the prosecutor continued to focus his questions on
Schultz’s failure to obtain Appellant’s version of Tony’s killing. This
continued focus on an absence of Appellant’s version of the killing was a
comment on Appellant’s failure to testify. The prosecutor’s comments
were so inflammatory that the prejudicial effect could not have been
erased from the jury’s mind. Therefore, the trial court erred in denying
Appellant’s request for a mistrial.
58
POINT OF ERROR NO. 5
THE TRIAL COURT ERRED BY DENYING
APPELLANT’S MOTION FOR CONTINUANCE
On May 6, 2014, the day after a jury had been chosen, Appellant
made an oral Motion for Continuance before the trial court because of
the death by suicide of Sutton, Jr. (RR. Vol. 3 at 6) Appellant claimed
that she needed additional time to investigate the suicide of Sutton, Jr.,
to determine if he left a suicide not in which he accepted responsibility
for the death of his father. (R.R. Vol. 3 at 6) Appellant claimed that the
denial of a continuance would violate her Sixth Amendments right to
effective representation under the United States Constitution. (R.R. Vol.
3 at 6) The trial court denied Appellant’s motion for continuance. (R.R.
Vol. 3 at 13) Appellant filed a sworn written motion for continuance on
May 7, 2014. (TR. Vol. 3 at 128)
“The granting or denying of a motion for continuance is within the
sound discretion of the trial court. A defendant must show specific
prejudice to his defense to establish that the trial court abused its
discretion in refusing to grant a continuance.” Renteria v. State, 206
S.W.3d 689 (Tex. Crim. App. 2006)
59
Appellant contends that her defense would be prejudiced by a
denial of the continuance because she would not have time to fully
investigate Sutton, Jr.’s death and any of his personal writings he may
have left behind in his prison cell. Appellant asserts that Sutton, Jr.,
may have written a suicide note in which he accepted full responsibility
for the death of his father. Moreover, any of his personal writings may
provide additional evidence with which to confront and cross-examine
the numerous State witnesses called for trial. Denying the continuance
violated Appellant’s right to an effective representation. Based on this
prejudice, Appellant contends that the trial court abused its discretion in
denying her motion for continuance.
60
POINT OF ERROR NO. 6
THE TRIAL COURT ERRED IN DENYING APPELLANT’S
REQUESTED CHANGES TO THE JURY CHARGE IN THE GUILT-
INNONCENCE PHASE OF THE TRIAL
At the close of evidence, Appellant requested instructions for the
issues of Necessity and Duress to be included in the jury charge. (R.R.
Vol. 12 at 88) The trial court denied Appellant’s request. (R.R. Vol. 12 at
88)
“In analyzing a jury-charge issue, we first determine if error
occurred and, if so, we conduct a harm analysis. A jury-charge error
requires reversal when, after proper objection, the appellant suffers
“some harm” to his rights. Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005) An accused has the right to an instruction on any
defensive issue raised by the evidence, whether the evidence is weak or
strong, unimpeached or contradicted, and regardless of what the trial
court may think about the credibility of the defense. Granger v. State, 3
S.W.3d 36, 38 (Tex. Crim. App. 1999)
The defense of duress applies when a defendant is engaged in the
proscribed conduct because he was compelled to do so by threat of
61
imminent death or serious bodily injury to himself. Tex. Pen. Code,
Section 8.05(a) (West 2014) The defense of necessity requires a
showing that (1) the actor reasonably believes the conduct is
immediately necessary to avoid imminent harm, (2) the desirability and
urgency of avoiding the harm clearly outweighs, according to ordinary
standards of reasonableness, the harm sought to be prevented by the
law proscribing the conduct, and (3) a legislative purpose to exclude the
justification claimed for the conduct does not otherwise plainly appear.
Tex. Pen. Code, Section 9.22 (West 2014)
The affirmative defenses of duress and necessity are a justification
defense because the defense does not negate any element of the
offense, but only excuses what would be otherwise criminal conduct.
Gomez v. State, 380 S.W.3d 830, 834 (Tex. Crim. App. 2013) Duress
and necessity require that Appellant first admit to all the elements of the
underlying offense and then claim that his commission of the offense
was justified because of other facts. Gomez, at 834.
While Appellant may not have admitted to shooting Tony to
Captain Kincheloe , Deputy West, or Deputy Beaver, the State claimed
she made the admission in her 9-1-1 call Appellant contends this
62
admission combined with the fact that shooting a person in the shoulder
with an AK-47 is an act clearly dangerous to human life, provided more
than enough proof to include Duress and Necessity instructions in the
jury charge. The testimony of Captain Kincheloe, Deputy Thomas,
Deputy Beaver, and the Robinsons provided ample evidence that
Sutton, Jr., had assaulted and possibly raped Appellant and forced her
to participate in his father’s murder and its subsequent cover up. Based
on this evidence, it was for the jury to decide whether or not to believe
her testimony fell under the affirmative defenses of duress or necessity.
Therefore, the trial court erred in denying Appellant’s requested
instructions of duress and necessity to the jury charge.
63
POINT OF ERROR NO. 7
THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF
CLINTON ANTHONY SUTTON, JR.’s SUICIDE
Appellant attempted to introduce evidence of Sutton, Jr.’s suicide
on May 5, 2014, to show his culpable mental state of mind as the principal
party in his father’s death and to aid the jury in assessing an appropriate
punishment. (R.R. Vol. 15 at 23) The trial court sustained the
prosecutor’s objection that court’s ruling would be misleading to the jury
and was not relevant to this proceeding. (R.R. Vol. 15 at 23-24) Appellant
contends that Sutton, Jr.’s suicide on the first day of Appellant’s trial was
relevant to the issue of Appellant’s punishment.
An appellate court reviews a trial court’s decision to admit or
exclude evidence over objection under an abuse of discretion standard
and will not reverse that decision absent a clear abuse of discretion.
McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008) The trial
court abuses its discretion when the decision lies outside of the zone of
reasonable disagreement. Id., at 239. Relevant evidence means
evidence having any tendency to make the existence of any fact that is of
64
consequence to the determination of the action more probable or less
probable than it would be without the evidence. Tex. Rules Of Evid. 401
(West 2014) “All relevant evidence is admissible, except as otherwise
provided by Constitution, by statute, by these rules, or by other rules
prescribed pursuant to statutory authority.” Tex. Rules Of Evid. 402
(West 2014)
Article 37.07, Section 3(a)(1) of the Texas Code of Criminal
Procedure provides that “evidence may be offered by the state or
defendant as to any matter the court deems relevant to sentencing…”
(West 2014) Appellant contends that Sutton, Jr.’s suicide is relevant as
mitigating evidence for the jury to consider. Evidence is relevant to
assessing punishment if it helps the fact finder decide what sentence is
appropriate for a particular defendant given the facts of the case. Hayden
v. State, 296 S.W.3d 549 (Tex. Crim. App. 2009) Evidence of mitigating
circumstances such as evidence that a juror might regard as reducing a
defendant’s moral blameworthiness may be considered by the jury when
deliberating punishment. Willingham v. State, 897 S.W.2d 351, 359
(Tex. Crim. App. 1995)
65
Appellant contends that the trial court abused its discretion by
excluding evidence of Sutton, Jr.’s suicide because evidence of his death
on Appellant’s first day of trial would have shown Sutton, Jr.’s culpable
mental state by his final act of taking responsibility for the killing of his
father. Appellant argues that evidence of his suicide would not have
misled the jury by forcing the jury to speculate on the true motive behind
Sutton, Jr.’s suicide.
In fact, Appellant contends that evidence of Sutton, Jr.’s suicide is
relevant to mitigate her punishment because his suicide on the eve of trial
of the mother of his son, James Gabriel, demonstrated that Sutton, Jr.,
played a greater role than Appellant in his father’s killing. Thus, Sutton,
Jr.’s remorse over his greater role in Tony’s death prompted his suicide,
on the eve of Appellant’s trial, as a message to the world of his greater
responsibility.
Appellant argues that it was no accident that Sutton, Jr., took his
own life on the eve of Appellant’s trial. Excluding this dying declaration
from the jury was an abuse of discretion. Therefore, the trial court abused
its discretion by excluding evidence of Sutton, Jr.’s suicide.
66
POINT OF ERROR NO. 8
THE TRIAL COURT ERRED BY ADMITTING EXPERT TESTIMONY
OF HALLIMORE ABOUT CONTENTS OF THE ENHANCED 9-1-1
CALL
During the examination of Sergeant Hallimore, the trial court held a
hearing outside the presence of the jury on Appellant’s request to
disqualify Hallimore as an expert witness who would testify about the
contents of an enhanced version of the 9-1-1 call previously admitted into
evidence. (R.R. Vol. 3 at 232)
Hallimore testified that he has enhanced audiotapes to clarify poor
recordings for 18 years. (R.R. Vol. 3 at 238) He explained that he uses
software called “Sony Sound Forge Pro” and “Sound Soap” to enhance
9-1-1 recordings. (R.R. Vol. 3 at 240) Hallimore testified that he has used
this software for over 10 years, but he has not received any formal training
on its operation. (R.R. Vol. 3 at 241) On cross-examination, Hallimore
admitted that he purchased both software packages at a local retail store
and taught himself how to use the programs. (R.R. Vol. 3 at 244-247) He
admitted that he did not know if Sony had any formal training program for
the operation of the software. (R.R. Vol. 3 at 250)
67
Appellant objected to Hallimore’s testimony because his formal
training on the enhancement software did not meet the requirements of
Rule 702 of the Texas Rules of Evidence to be considered expert
testimony. (R.R. Vol. 3 at 252) The trial court overruled Appellant’s
objection. (R.R. Vol. 3 at 252)
The appellate court reviews a trial court’s ruling on a motion to
suppress evidence for an abuse of discretion. State v. Dixon, 206
S.W.3d 587, 590 (Tex. Crim. App. 2006) At a suppression hearing, the
trial court is the sole and exclusive trier of fact and judge of credibility of
the witnesses, as well as the weight to be given their testimony.
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) In
reviewing a trial court’s ruling on the motion to suppress, the appellate
court gives almost total deference to a trial court’s determination of
historical facts, and reviews de novo the court’s application of the law.
Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003)
Admission of expert testimony is governed by Texas Rule of
Evidence 702. This rule of evidence provides the following:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
68
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.
Tex. Rule Of Evid. 702 (West 2011)
Before admitting expert testimony under Rule 702, the trial court must
be satisfied that 3 conditions are met: 1) the witness qualifies as an
expert by reason of his knowledge, skill, experience, training, or
education, 2) the subject matter of the testimony is an appropriate one
for expert testimony, and 3) admitting the expert testimony will actually
assist the fact finder in deciding the case. Davis v. State, 329 S.W.3d
798, 813 (Tex. Crim. App. 2010). These conditions are commonly
referred to as 1) qualification, 2) reliability, and 3) relevance. Vela v.
State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006) Absent a clear
abuse of discretion, a trial court’s decision to admit or exclude expert
testimony will not be disturbed. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.
Crim. App. 2000)
QUALIFICATIONS
Qualification is a two-step inquiry: 1) whether the witness has a
sufficient background in a particular field and 2) whether that background
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goes to the matter on which the witness is to give an opinion. Davis, at
813. Appellant contends that Hallimore lacked the qualifications to testify
about the enhancement of the 9-1-1 recording even though he testified
that he has enhanced recordings for 18 years because of his lack of
formal training on the software. Hallimore admitted that he not has
received any training on the operation of the enhancement software from
Sony. (R.R. Vol. 3 at 250) Appellant asserts that using software
purchased from a retail store like “Best Buy” and following its directions
does not qualify Hallimore to testify as an expert. His opinion about the
contents of the enhanced recordings would be no better than anyone
else’s opinion who used the store bought software. Hallimore’s testimony
would provide a level unquestioned knowledge to the jury which was not
deserved. The jury was best served to listen to the tape themselves
without the opinion of a witness whose lack of formal training did not merit
an expert qualification. Therefore, Hallimore’s opinion was nothing more
than guesswork which does not rise to the level of expert testimony set
out in Rule 702.
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RELIABIILITY & RELEVANCE
Appellant contends that Hallimore’s testimony as an expert was not
reliable because he had not obtained any more knowledge than an
ordinary citizen who would use this store bought software in order to give
an opinion as to a statement made on an enhanced recording. Since his
opinion about the content of the enhanced recording is no better than a
lay person, Hallimore’s opinion is also not relevant. Therefore, Appellant
contends that Hallimore’s testimony about the contents of the enhanced
recording are unreliable and irrelevant. Therefore, the trial court erred by
allowing Hallimore to testify as an expert witness on the contents of the
recording of the enhanced 9-1-1 call.
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CONCLUSION
For the reasons stated, Appellant Humaran prays the Court to
reverse and acquit or in the alternative to reverse and remand this cause
for a new trial.
Respectfully submitted,
_/s/ Crespin Michael Linton_
Crespin Michael Linton
440 Louisiana, Suite 900
Houston, Texas 77002
Texas Bar No. 12392850
(713) 236-1319
(713) 236-1242 (Fax)
CERTIFICATE OF COMPLIANCE
I hereby certify that Appellant’s Brief, as calculated under Texas
Appellate Rule of Appellate Procedure 9.4, contains 14,872 words as
determined by the Word program used to prepare this document.
_/s/ Crespin Michael Linton
Crespin Michael Linton
CERTIFICATE OF SERVICE
I do hereby certify that on this the 23th day of February, 2015, a true
and correct copy of the foregoing Appellant’s Brief was served by E-
service in compliance with Local Rule 4 of the Court of Appeals or was
served in compliance with Article 9.5 of the Rules of Appellate Procedure
delivered to the Assistant District Attorney of Brazoria County, Texas, 111
East Locust Street, 4th Floor Angleton, Texas 77515 at davidb@brazoria-
county.com.
__/s/_Crespin Michael Linton__
Crespin Michael Linton
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Rebecca Victoria Humaran v. State
Combined Opinion