ACCEPTED
03-14-00235-CR
5355105
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/20/2015 10:58:05 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00234-CR FILED IN
3rd COURT OF APPEALS
No. 03-14-00235-CR AUSTIN, TEXAS
5/20/2015 10:58:05 AM
In The Court Of Appeals for the Third District, Austin, Texas
JEFFREY D. KYLE
Clerk
Joe Derek Carr,
Appellant
vs.
The State Of Texas,
Appellee
Appeal from the 147th District Court of Travis County, Texas
Cause Numbers D-1-DC-11-100059 & D-1-DC-11-902003
State’s Brief
Rosemary Lehmberg
District Attorney
Travis County, Texas
Rosa Theofanis
Texas Bar No. 24037591
Assistant District Attorney
District Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Phone: 512.854.9400
Fax: 512.854.4206
Email: Rosa.Theofanis@traviscountytx.gov
AppellateTCDA@ traviscountytx.gov
Oral Argument Not Requested
Identity of Parties and Counsel
In accordance with Texas Rule of Appellate
Procedure 38.2(a)(1)(A), the State supplements
the Identity of Parties and Counsel set out in the
appellant’s brief as follows:
Appellate Ms. Rosemary Lehmberg
Prosecutors Travis County District Attorney
P.O. Box 1748
Austin, TX 78767
Rosa Theofanis
Assistant District Attorney
Travis County District Attorney
P.O. Box 1748
Austin, TX 78767
i
Table of Contents
Identity of Parties and Counsel .................................................................i
Index of Authorities................................................................................. iii
Statement of the Case ...............................................................................2
Statement Regarding Oral Argument ......................................................3
Statement of Facts ....................................................................................3
Summary of the Argument .....................................................................17
State’s Reply to the Point of Error One ..................................................21
The trial court did not abuse its discretion in allowing the State’s
witnesses to testify about the nature of the relationship between the
appellant and Veronica Navarro because the statements were
relevant evidence of the “previous relationship existing between the
accused and the deceased” and, as statements showing Navarro’s
state of mind, did not violate the rule against hearsay. Alternatively,
if it was error to permit the witnesses to testify about the
relationship, it was harmless error......................................................21
State’s Reply to the Point of Error Two ..................................................46
The evidence is sufficient to support the appellant’s murder conviction
as well as his conviction for tampering with evidence. .......................46
State’s Reply to the Point of Error Three ...............................................62
The trial court did not abuse its discretion in excluding evidence
concerning Chris Kashimba’s past contacts with law enforcement
because, as specific instances of conduct that were not prior
convictions, they were inadmissible as impeachment evidence.
Alternatively, any error in excluding the testimony was harmless....62
State’s Reply to the Point of Error Four .................................................72
The trial court did not abuse its discretion in allowing the admission
of a phone call from the appellant to his mother recorded while he was
in jail because it was properly authenticated by voice identification.
Alternatively, any error in admitting the testimony was harmless. . 72
i
State’s Reply to the Point of Error Five..................................................78
The trial court did not abuse its discretion in admitting State’s
Exhibit 318, the recorded phone call from the appellant to his mother
from jail, because, as a recorded call voluntarily made to a non-State
actor, the exhibit did not violate the appellant’s right against self-
incrimination. Even if State’s Exhibit 318 was admitted in error, it
was harmless. .......................................................................................78
State’s Reply to the Point of Error Six....................................................83
The trial court did not abuse its discretion in denying the appellant’s
motion for new trial because the newly-discovered evidence it was
based upon merely showed that the appellant and Navarro were
together prior to her death, did not contradict the evidence at trial,
and would not have brought about a different result at trial. ............83
Prayer ......................................................................................................87
Certificate of Compliance........................................................................88
Certificate of Service ...............................................................................88
ii
Index of Authorities
Cases
Angel v. State, 627 S.W.2d 424 (Tex. Crim. App. 1982).........................81
Autry v. State, 626 S.W.2d 758 (Tex. Crim. App. 1982).........................81
Bagheri v. State, 119 S.W.3d 755 (Tex.Crim.App. 2003) ................. 68, 71
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)................. 47, 61
Cardenas v. State, 115 S.W.3d 54 (Tex. App.—San Antonio 2003, no
pet.) .......................................................................................................31
Chapman v. State, 115 S.W.3d 1 (Tex. Crim. App. 2003) ......................80
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .....................60
Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) .........................42
Cordova v. State, 698 S.W.2d 107 (Tex. Crim. App. 1985).....................48
Delamora v. State, 128 S.W.3d 344 (Tex. App.—Austin 2004, pet. ref’d)
........................................................................................................ 85, 87
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) .................37
Dorsey v. State, 24 S.W.3d 921 (Tex. App.—Beaumont 2000, pet. ref’d35
Duncan v. State, 2013 Tex. App. LEXIS 3169, at *14 (Tex. App. —
Dallas Mar. 22, 2013, no pet.)(mem. opinion not designated for
publication)...........................................................................................75
Fain v. State, 986 S.W.2d 666 (Tex. App—Austin 1998, pet. ref'd) 29, 33,
35, 36
Ford v. State, 919 S.W.2d 107 (Tex. Crim. App. 1996)...........................25
Garcia v. State, 201 S.W.3d 695 (Tex. Crim. App. 2006) ................. 27, 28
Garcia v. State, 246 S.W.3d 121 (Tex. App—San Antonio 2007, pet.
ref'd)......................................................................................................31
Gonzalez v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006) 36, 37, 38, 39,
40
Graham v. State, 566 S.W.2d 941 (Tex. Crim. App. 1978).....................55
Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) .......... 49, 52, 58
Hacker v. State, 389 S.W.3d 8601 (Tex. Crim. App. 2013.......... 49, 51, 58
Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004) ....................24
Hankins v. State, 180 S.W.3d 177 (Tex. App.—Austin 2005, pet. ref’d)
........................................................................................................ 76, 81
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............ , 48, 49, 61
iii
Houston v. State, 185 S.W.3d 917 (Tex. App. .—Austin 2006, pet. ref'd.)
..............................................................................................................42
Jackson v. Virginia, 443 U.S. 307 (1979).................................... 47, 56, 61
Jessop v. State, 368 S.W.3d 653 (Tex. App.—Austin 2012, no pet.) ......37
Johnson v. State, 611 S.W.2d 649 (Tex. Crim. App. 1981).....................80
Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002) ...........................85
Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App. 1995), cert. denied,
519 U.S. 826 (1996) ..............................................................................36
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999)........................ 42, 46
Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998) ........................42
Losada v. State, 721 S.W.2d 305 (Tex. Crim. App. 1986).......................80
Martinez v. State, 17 S.W.3d 677 (Tex. Crim. App. 2000) ............. passim
Martinez v. State, 186 S.W.3d 59 (Tex. App.—Houston [1st Dist.] 2005,
pet. ref'd)...............................................................................................33
Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991)..........................44
Minnesota v. Murphy, 465 U.S. 420 (1984) ............................................80
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on
reh'g) ......................................................................................... 22, 72, 78
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................77
Norton v. State, 771 S.W.2d 160 (Tex. App. .—Texarkana 1989, pet.
ref'd)......................................................................................................34
Pena v. State, 864 S.W.2d 147 (Tex. App. .— Waco 1993, no pet.) ........34
Phillips v. State, 436 S.W.3d 333 (Tex. App.—Waco 2014, pet. granted)
........................................................................................................ 74, 75
Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001) ....... 21, 62, 72, 78
Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009) ...................25
Reynolds v. United States, 98 U.S. 145 (1879).......................................38
Russo v. State, 228 S.W.3d 779 (Tex. App.—Austin 2007, pet. ref'd) ....34
Salazar v. State, 127 S.W.3d 355 (Tex. App—Houston [14th Dist.] 2004,
pet ref'd)................................................................................................30
Salazar v. State, 38 S.W.3d 141 (Tex. Crim. App. 2001).................. 83, 87
Saldivar v. State, 980 S.W.2d 475 (Tex. App. —Houston [14th Dist.]
1998, pet. ref'd).....................................................................................34
Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989) ...............25
Schoff v. State, 2010 Tex. App. LEXIS 1350 (Tex. App.—Austin Feb. 23,
2010, no pet.) (mem. op., not designated for publication) ...................67
iv
Shafer v. State, 82 S.W.3d 553 (Tex. App.—San Antonio 2002, pet. ref'd)
..............................................................................................................85
Stobaugh v. State, 421 S.W.3d 787 (Tex. App. Fort Worth 2014)..........56
Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ......................48
Thrailkille v. State, 2002 Tex. App. LEXIS 8972 (Tex. App.—Beaumont
Dec. 18, 2002)( opinion not designated for publication) ......................35
Vann v. State, 853 S.W.2d 243 (Tex. App. —Corpus Christi 1993, pet.
ref'd)......................................................................................................36
Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003) .....................85
Statutes & Constitutions
TEX. CODE CRIM. PROC. art. 38.08 ...........................................................80
TEX. CODE CRIM. PROC. art. 38.36 ..................................................... 27, 31
TEX. CODE CRIM. PROC art. 38.49 ................................................ 38, 39, 41
TEX. PENAL CODE § 19.02.........................................................................61
TEX. PENAL CODE § 37.09.........................................................................61
TEX. R. APP. PROC. 33.1............................................................................24
TEX. R. APP. PROC. 38.1............................................................................24
TEX. R. APP. P. 44.2...................................................................... 42, 68, 76
TEX. R. EVID. 608 .....................................................................................63
TEX. R. EVID. 611 .....................................................................................63
TEX. R. EVID. 801 .....................................................................................32
TEX. R. EVID. 803 ............................................................................... 28, 33
TEX. R. EVID. 901 ................................................................... 73, 74, 75, 76
U.S. CONST. AMEND. V..............................................................................80
v
No. 03-14-00234-CR
No. 03-14-00235-CR
In the Court Of Appeals Third District
Austin, Texas
Joe Derek Carr,
Appellant
vs.
The State of Texas,
Appellee
Appeal from the 147th District Court
Travis County, Texas
Cause Numbers D-1-DC-11-100059 & D-1-DC-11-902003
State’s Brief
To the Honorable Court of Appeals:
The State of Texas, by and through the District Attorney
for Travis County, respectfully submits this brief in response to
that of the appellant.
1
Statement of the Case
The appellant, Joe Derek Carr, was indicted for murder
and tampering with physical evidence, a human corpse. (D-1-
DC-11-902003: CR 6)( D-1-DC-11-100059: CR 14.) The
appellant pled not guilty and was tried by a jury. (3 RR 16)
The jury found him guilty as charged. (8 RR 90) The appellant
elected to go to the court for punishment; the court assessed a
sentence of sixty years for murder and twenty years for
tampering with evidence. (9 RR 110.) The appellant filed a
motion for new trial, which was denied by the trial court. (10
RR 26.) The appellant filed notice of appeal (D-1-DC-11-
902003:CR 128)( D-1-DC-11-100059: CR 143) and the trial
court certified his right to appeal. (D-1-DC-11-902003:CR
104)( D-1-DC-11-100059: CR 119.)
2
Statement Regarding Oral Argument
Because the issues, facts, legal authorities, and
arguments pertinent to the instant appeal are adequately
addressed in the briefs submitted by the parties, the State
respectfully asserts that the Court’s decisional process would
not be significantly aided by oral arguments. Accordingly, the
State does not request oral argument.
Statement of Facts
On the morning of July 6, 2011, Jack Cudeyro was out on
Lake Travis with a colleague testing a new propeller on his boat
when he saw what he thought was a tarp or a tent in the water.
3 RR 173- 175. As the men got closer, it looked like something
was inside of it. 3 RR 176. Cudeyro touched the package and “it
felt like a shoulder.” 3 RR 177. He moved his arm down and felt
something that felt like a forearm muscle. 3 RR 177. Cudeyro
3
testified “At that moment, I knew something was in there that
didn't need to be in there.” 3 RR 177. The men took a small
pocket knife and made a small cut in the material, opened it with
their fingers and saw flesh. 3 RR 178.
Travis County Park Police responded to the scene. 3 RR
182-183. 3 RR 191. The body was found along the shoreline of
Pace Bend Park in an area of the park that was largely abandoned
and had overgrown roads. 3 RR 191. 3 RR 197. One officer
described that “looking at the tent, you could almost make out,
you know, it was a person lying facedown. You [could] see the
elbows kind of protruding up, her bottom sticking up in the air,
the legs bent back.” 3 RR 202. By the odor, it was apparent that
victim “had been out there awhile.” 3 RR 202. It was also obvious
that the body was either anchored or tied or stuck to something
that was under the water. 3 RR 202.
4
In fact, the body had been bound with a rope and there was a
rope around the victim’s neck that was attached to cinder blocks
and paint cans. 3 RR 235. The body was wrapped in a Coleman
tent. 3 RR 176. 3 RR 203. 3 RR 248. Inside, the victim was
wearing an oversized black high-waisted skirt with no underwear
and a medium-sized gray long-sleeved shirt. 3 RR 244. 3 RR 246-
247. Also inside the tent there was also a black trash bag. 3 RR
255. The victim was identified as Veronica Navarro. 4 RR 137.
Navarro, a 22 year old native of Laredo, was the second-
oldest in a family of six children. 3 RR 32-34. When she
graduated high school and “became independent,” Navarro moved
to Austin, a place she knew well from spending summers with her
aunt and cousin Anna Karen growing up. 3 RR 34. After moving,
when she was are 18 or 19 years old, Navarro began a romance
with Chris Kashimba, a childhood friend and an across-the-street
5
neighbor of her aunt. 3 RR 35. The relationship was on-and-off
and, according to Navarro’s sister, the two would frequently
disagree and argue about money because “sometimes he would
just not work and she was always working.” 3 RR 35. 3 RR 43.
During an “off” period with Kashimba, Navarro had begun
dating the appellant, an employee of the Pedernales Fire
Department. 3 RR 36. 4 RR 138-139. After this, Navarro had
resumed her relationship with Kashimba, but about a month prior
to her death, Navarro and Kashimba had broken things off again
and she had resumed a relationship with the appellant. 3 RR 36-
37. At the time of her death, the appellant was Navarro’s
boyfriend. 4 RR 138-139.
Navarro had moved in with the appellant to a house in a
very “rural,” “secluded” area in Spicewood, Texas approximately
three miles from Highway 71 West in Burnet County. 4 RR 272.
6
3 RR 38. 5 RR 23. Nonetheless, for the month following their
break-up, Navarro and Kashimba continued to communicate in
secret, and Kashimba anticipated that they would reunite. 3 RR
99. Although the appellant had bought Navarro a car, he also
acted jealous and Navarro “was upset” because the appellant
“would never let her do anything and would never let her go
anywhere.” 3 RR 51-52. 3 RR 56. Navarro confided to her cousin,
Anna Karen Perez, that the appellant “wasn't what she expected.”
3 RR 155.
On Friday, June 24th, 2011, Navarro’s cousins from Laredo
were going to be in town and made plans to go out to eat, but
Navarro wasn’t able to join them. 3 RR 158-159. Instead, she
went to a barbecue at a friend’s house with the appellant and his
young son, where Navarro seemed “unhappy” and where the
appellant, who was drinking, “was definitely not being very nice to
7
her,” to the point that his friend confronted him about the way he
was treating Navarro. 3 RR 60-65.
Navarro’s family also had plans to go out to dinner and
dancing on Saturday, June 25th, but Navarro said she could not
join them because the appellant “had to leave.” 3 RR 158.
The following day, Sunday, June 26th, 2011, Navarro also
failed to “swing by” and see her cousins before they departed for
Laredo on Sunday afternoon. 3 RR 161-162. That day, Navarro
exchanged about 30 phone calls text messages with Chris
Kashimba and roughly 6 phone calls or text messages with the
appellant.1 6 RR 68. 6 RR 70.
On Monday, June 27th, 2011, Navarro interviewed for a job
with Carousel Pediatrics as a medical assistant. 3 RR 70-72. At
1 Throughout this statement, the State assumes that Navarro is the user of
Navarro’s phone, Kashimba is the user of Kashimba’s phone and the appellant
is the user of the appellant’s phone.
8
her interview, Navarro said she was willing to work weekends and
was interested in work at the office’s “Springdale location,” in East
Austin. 3 RR 76. Kashimba saw Navarro following her job
interview. 3 RR 101. Navarro cried, said she loved Kashimba and
that she wanted to break up with the appellant. 3 RR 102. Upon
their parting, Kashimba anticipated that Navarro was going to go
home, break up with the defendant and reunite with him. 3 RR
102. After Navarro’s departure, Kashimba called her around 7 pm
“and she said that she was on her way and she was going to be
there and that everything was okay.” 3 RR 104-105.
Shortly after that, the appellant called Navarro three times
from his house.2 6 RR 42-43 At 8:11 Navarro made a call to the
appellant that showed her location as being near US Highway 71.
2The call was serviced from the cell tower nearest his home. Hereinafter,
calls serviced by the cell tower nearest to the appellant’s house will be treated
as calls originating “from” his home.
9
6 RR 43. 5 RR 130. The call lasted 1 minute, 32 seconds and was
the last time that Navarro answered her phone or made a call or
sent a text from her phone. 6 RR 43. 5 RR 127. 5 RR 124. 6 RR
27.
At 8:24 p.m., the appellant made a ten second call to
Navarro. 6 RR 43-44. Then, for the next two hours, the
appellant’s phone went silent. 6 RR 44. At 10:32 p.m. the
appellant made a call from his house to a Lowe’s store located in
Austin Texas. 6 RR 44-45. Fifteen minutes later, the appellant
called Spicewood General Store. 6 RR 45. At 11:41 p.m., the
appellant’s phone called the Pedernales Fire Department twice
within a minute, but with a duration of zero seconds. 6 RR 45-46.
That was the last call of the night originating from the appellant’s
cell phone. 6 RR 47.
10
The next morning, on Tuesday, June 28th, the appellant had
a shift at work at 9:00 a.m. 4 RR 25. On the job, the appellant
was normally very “upbeat,” talkative and cheery. 4 RR 67.
However, that morning, when the truck went out on call, the
appellant was acting out of character, providing none of the usual
assistance and participation that he would usually provide as
engineer on the fire truck. 4 RR 18-22. 4 RR 64- 66. Back at the
station, the appellant was “quiet” and “standoffish,” walking over
and curling up in a recliner with his hat over his head. 4 RR 22.
4 RR 66. Then, around 7 p.m., he asked to leave early because he
was not feeling well. 4 RR 22-23. 4 RR 26. In fact, the appellant
insisted upon leaving before reinforcements could arrive, causing
the firetruck to go out of service for about 45 minutes. 4 RR 23-24.
That day, Chris Kashimba made ten phone calls or text messages
phone to Veronica's phone but zero were received. 6 RR 68. The
11
appellant made no attempts to exchange phone calls or text
messages with Navarro. 6 RR 70.
On June 29th, 2011, between 1:15 a.m. to 2:30 a.m. in the
morning, the appellant’s cell phone data records were consistent
with someone driving down Highway 71, going out to Pace Bend
Park to the location where Navarro’s body was recovered, and
then going back. 6 RR 124. 6 RR 109-119.
On Thursday, June 30th, the appellant’s cell phone records
showed him departing his home in Spicewood and traveling south
all the way down into the Rio Grande Valley. 6 RR 52-54.
The appellant was scheduled to come to work on Friday, July
1st at 9:00 but did not show up. 4 RR 26-27. By that time, the
appellant’s cell activity was being serviced by a cell site located on
South Padre Island. 6 RR 54. By mid-morning, the appellant’s
morning cell activity was being serviced by a cell site located just
12
east of Brownsville, just a couple of miles from the border of
Mexico and Texas. 6 RR 54. Later, the appellant told his
lieutenant that he hadn’t come to work that day because “his
girlfriend and he had split up and he didn't want to leave the
house fearing that she was going to demolish -- or just tear up
stuff in the house.” 4 RR 32-33.
On Saturday, July 2nd, the appellant’s cell activity was
being serviced by cell sites located near Port Isabel and on South
Padre Island. 6 RR 55.
On Sunday, July 3rd of 2011, the appellant’s midmorning
cell activity was being serviced by cell sites located near
Harlingen. 6 RR 55. Then, the appellant’s cell activity indicated
that he was traveling northward, and by that afternoon, the
appellant’s cell activity was being serviced by cell sites located
near Spicewood, Texas, again. 6 RR 55-56. Throughout the rest of
13
that late afternoon into the evening hours, the appellant’s cell
activity indicated a lot of movement ranging from West Austin to
South Austin and further west near Bee Cave, as far as Johnson
City, where relatives of the appellant lived , to cell sites just south
of the defendant's house and near the fire department. 6 RR 56-
58.
On Monday, July 4th, at 9:00 am, the appellant was
scheduled to work again and came to work. 4 RR 31-32. The
appellant performed as normal at work that day: “eager, energetic,
get[ting] things done around the station.” 4 RR 34.
The appellant stayed on duty for the following shift on July
5th because he had “worked a trade” with another firefighter. 4
RR 35. That day, the appellant was playing a game on his phone
and “just kind of rambunctious about that all day.” 4 RR 99. The
14
appellant’s second shift ended at 9:00 a.m. on the morning of July
6th. 4 RR 36
After the appellant got off work on July 6th, he went to an
outdoor music event where he ran into an acquaintance, Sarah
Hansen, a convenience store clerk who worked near the fire
station. 7 RR 15-16. Hansen invited him to sit with her group for
the concert and ended up leaving the concert with him and going
to his house in Spicewood that night. 7 RR 16-19. Although the
appellant seemed “spacey” and “flighty,” she stayed the night and
the two had intercourse. 7 RR 19-24. On, Thursday, July 7th,
around 9 or 10 a.m., the appellant drove Hansen to a friend’s
house. 7 RR 25-26. The last time there was any cell site
information for the appellant’s phone was at 9:35 a.m., on July 7th
of 2011. 6 RR 62.
15
Stormy Davis, with the Pedernales Fire Department, was
notified about the identification of Navarro on Friday, July 8th, in
the afternoon or early evening. 4 RR 102-103. 4 RR 140-141. The
following morning, on Saturday, July 9th, a Canadian border
crossing employee called the fire station seeking to verify
employment information for the appellant. 4 RR 103-104. Davis
called the Travis County Sheriff's Office to let them know about
the call from border crossing. 4 RR 103-105.
The appellant had aroused the suspicions of Canada Border
Services Agency officer Prosper Kuwonu by trying to enter
Canada with the claim that he was making a trip for four weeks
without a credit card or a debit card, just $2000.00 cash. 7 RR 31-
45. Kuwonu returned the appellant to the U.S. side of the border
after being informed that that the appellant was a suspect in a
murder investigation. 7 RR 30-45. An arrest affidavit was made
16
for the appellant on the charge of tampering with evidence. 4 RR
219. 4 RR 221. 4 RR 227. The appellant was released to Pembina
County authorities and held in the Pembina County Jail for
approximately 11 days. 7 RR 59. 7 RR 67.
During the time he was detained, the appellant called his
mother seeking her assistance to be released from jail. State's
Exhibit 318. In that call, the appellant’s mother asked him “Joe
Derek, did you kill Veronica?,” “Tell me, did you hurt her, yes, or
no?” and “But, you didn’t do anything wrong?,” but the appellant
responded with evasions. Id.
Summary of the Argument
1. The court did not abuse its discretion in allowing the
State’s witnesses to testify regarding Veronica Navarro’s
characterization of her relationship with the appellant.
The statements the appellant complains of were relevant
as evidence of the “previous relationship existing between
the accused and the deceased” and did not violate the
rule against hearsay because they were statements
17
showing Navarro’s state of mind. Furthermore, the
appellant forfeited his right to object to their
admissibility through “forfeiture by wrongdoing.” Any
argument that the statements fell afoul of Texas Rules of
Evidence 403 or 404(b) was forfeited as well because it
wasn’t raised at trial. Regardless, even if the statements
were admitted in error, the error was harmless because
the same evidence was introduced without objection in
other forms and the evidence did not have a substantial
effect in determining the jury’s verdict.
2. The cumulative force of all the incriminating
circumstances were sufficient for a rational trier of fact to
find that the appellant intentionally or knowingly caused
the death of Veronica Navarro, and, knowing that an
investigation of Navarro’s death was pending, he altered,
destroyed, or concealed her corpse with intent to impair
its availability as evidence in the investigation. The
evidence at trial proved that the appellant had the
motive and opportunity to kill Navarro and that the
appellant had tried to conceal Navarro’s death. The
evidence included physical evidence found with Navarro’s
body, autopsy results concluding she died by homicide,
cell phone evidence tracing the appellant to the location
where her body was dumped and testimonial evidence
recounting the incriminating acts, words, and the conduct
of the appellant surrounding the crime, including his
attempt to escape to Canada after Navarro’s body was
18
discovered. The evidence was sufficient to support the
conviction on both charges.
3. The trial court did not abuse its discretion in excluding
evidence concerning Chris Kashimba’s past contacts with
law enforcement because, as specific instances of conduct
that were not prior convictions, they were inadmissible as
impeachment evidence. The appellant argues that
specific instances of conduct should nonetheless have
been admissible to disprove Kashimba’s testimony that
he and Navarro “never fought,” which he characterizes as
a misrepresentation. However, in context, Kashimba’s
statement that he and Navarro “never fought” meant
that they never physically fought. Thus, the specific
incidences the appellant sought to admit, containing no
physical violence, did not contradict Kashimba’s
testimony and were ultimately inadmissible.
Alternatively, even if the evidence should have been
allowed, its exclusion was harmless.
4. State’s Exhibit 318, a telephone call between the
appellant and his mother that was recorded while he was
being held at the Pembina County jail, was properly
authenticated. Since the voices on the recording were
identified by witnesses at trial, the phone call was
properly authenticated by voice identification and it was
not an abuse of discretion to admit it. Contrary to the
appellant’s claim, telephone calls do not have to be
authenticated “by the number assigned at the time." So
19
long as the evidence is sufficient to support a finding that
the matter in question is what its proponent claims,"[t]he
requirement of authentication or identification as a
condition precedent to admissibility” has been satisfied.
Texas Rule of Evidence 901 also does not require that
evidence be authenticated by more than one sufficient
means. Alternatively, if the court erred in permitting it
into evidence, the error was harmless.
5. The admission of State’s Exhibit 318 also did not violate
the appellant’s right against self-incrimination. The
content of State’s Exhibit 318 is not equivalent to a
prosecutor's comment on a defendant's failure to testify
at trial. Because the recorded exchange was voluntarily
made, out-of-court, and did not involve a State actor, the
Fifth Amendment rights the appellant claims were not
implicated and the court did not abuse its discretion in
admitting the evidence. Alternatively, if admission of the
exhibit was an error, it was harmless.
6. The trial court did not abuse its discretion in denying the
appellant’s motion for new trial. The newly-discovered
evidence that formed the basis of the motion was a
surveillance video that proved the appellant and Navarro
were shopping together on June 26, 2011, which was
consistent with the evidence at trial. Even though the
State’s theory was that their relationship was strained, it
was undisputed that the appellant and Navarro were
“together” on that date. Based on this, the appellant
20
failed to establish that the evidence would “probably
bring about a different result,” an essential requirement
for a new trial based on newly discovered evidence, and
thus the trial court did not commit an abuse of discretion
in overruling the motion for new trial.
State’s Reply to the Point of Error One
The trial court did not abuse its discretion in
allowing the State’s witnesses to testify about the
nature of the relationship between the appellant
and Veronica Navarro because the statements
were relevant evidence of the “previous
relationship existing between the accused and the
deceased” and, as statements showing Navarro’s
state of mind, did not violate the rule against
hearsay. Alternatively, if it was error to permit
the witnesses to testify about the relationship, it
was harmless error.
Standard of Review
A trial court's decision to admit or exclude evidence is
reviewed for abuse of discretion. Powell v. State, 63 S.W.3d
435, 438 (Tex. Crim. App. 2001). A trial court does not abuse
21
its discretion as long as its decision to admit or exclude
evidence is within the "zone of reasonable disagreement."
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1990) (op. on reh'g).
Argument and Authorities
The appellant argues that the trial court abused its
discretion in allowing hearsay testimony of the appellant’s
alleged bad character in violation of Texas Rules of Evidence
403, 404(b) and 802. But the statements the appellant
complains of were admissible as evidence of the relationship
between the appellant and Veronica Navarro and did not
violate the rule against hearsay because they were statements
showing Navarro’s state of mind. Furthermore, the appellant
forfeited his right to object to their admissibility through
22
“forfeiture by wrongdoing.” Any argument that the statements
fell afoul of Texas Rules of Evidence 403 or 404(b) was forfeited
as well because it wasn’t raised at trial. Regardless, even if the
statements were admitted in error, the error was harmless
because the same evidence was introduced without objection in
other forms and the evidence did not have a substantial effect
in determining the jury’s verdict.
Preservation of Error
The appellant complains of different portions of
testimony being admitted in violation of Texas Rules of
Evidence 403, 404(b) and 802 and states that error was
preserved by a running objection at trial. Appellant’s Brief,
Nos. 03-14-00234-CR & 03-14-00235-CR at 10, 11, citing 3 RR
50; 3 RR 93. To the extent that the appellant objected and
23
obtained running objections, the objections were to hearsay
only. See 3 RR 50. 3 RR 93. 3 RR 154. For this reason, any
complaint regarding admission of evidence in violation of
Texas Rules of Evidence 403 or 404(b) has been forfeited. TEX.
R. APP. PROC. 33.1(a)(2); Martinez v. State, 17 S.W.3d 677, 686
(Tex. Crim. App. 2000).
Additionally, because the appellant’s briefs make no
argument in support of his conclusory allegation of Rule 403
and 404(b) violations, the claims should be overruled. See TEX.
R. APP. PROC. 38.1. (The parties must present “clear and
concise argument for the contentions made, with appropriate
citations to authorities and the record.”); Hankins v. State, 132
S.W.3d 380, 385 (Tex. Crim. App. 2004) (“Because the
appellant does not provide any argument or authority in
support of this contention, it is inadequately briefed”).
24
Furthermore, even the hearsay objection was preserved
only if "the running objection constituted a timely objection,
stating the specific grounds for the ruling." Ford v. State, 919
S.W.2d 107, 113 (Tex. Crim. App. 1996) quoting Sattiewhite v.
State, 786 S.W.2d 271, 284-85 n. 4. (Tex. Crim. App. 1989). An
“advocate who lodges a running objection should take pains to
make sure it does not encompass too broad a reach of subject
matter over too broad a time […].” Sattiewhite v. State, 786
S.W.2d 271, 283, n. 4 (Tex. Crim. App. 1989). Because counsel
did not delineate the exact nature, grounds and extent of his
running objection, and did not object to statements on a case-
by-case basis, the trial judge was not given the opportunity to
rule on the statements that the appellant complains of on
appeal with any particularity. See Resendez v. State, 306
S.W.3d 308, 312-313 (Tex. Crim. App. 2009)(“ The parties, not
25
the judge, are responsible for the correct application of
evidentiary rules; in order to preserve a complaint for appeal,
the complaining party must have done everything necessary to
bring the relevant evidentiary rule and its precise and proper
application to the trial court's attention.”)
Admissibility under Rule 803(3)
The appellant argues that the trial court abused its
discretion in allowing into evidence multiple statements that
he claims violated the rule against hearsay. Appellant’s Brief,
Nos. 03-14-00234-CR & 03-14-00235-CR at 10-11. Taking each
instance of complained of testimony in turn, even assuming
proper preservation, the trial court did not abuse its discretion
in allowing the enumerated testimony to come into evidence
because it either was not hearsay or fell under the Rule 803(3)
26
hearsay exception because it indicated the victim’s state of
mind.
"In all prosecutions for murder, the state or the
defendant shall be permitted to offer testimony as to all
relevant facts and circumstances surrounding the killing and
the previous relationship existing between the accused and the
deceased, together with all relevant facts and circumstances
going to show the condition of the mind of the accused at the
time of the offense." TEX. CODE CRIM. PROC. art. 38.36(a). This
evidence includes evidence regarding the romantic relationship
between the victim and the accused, including whether their
relationship was strained or ending. Garcia v. State, 201
S.W.3d 695, 702-703 (Tex. Crim. App. 2006). “[I] n some
situations, prior acts of violence between the victim and the
accused may be offered to illustrate the nature of the
27
relationship.” Garcia v. State, 201 S.W.3d at 702-703.
Nonetheless, “these specific acts of violence must meet the
requirements of the Rules of Evidence in order to be
admissible.” Id. at 702.
Rule 803(3) of the Rules of Evidence excepts from the
hearsay rule "[a] statement of the declarant's then-existing
state of mind (such as motive, intent, or plan) or emotional,
sensory, or physical condition (such as 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. EVID. R. 803. A victim’s expression of
fear of the accused, as a statement of the declarant's then
existing state of mind, falls within the Rule 803(3) hearsay
exception. Martinez v. State, 17 S.W.3d 677, 689 (Tex. Crim.
28
App. 2000). Evidence regarding a victim’s intent to continue in
a relationship has also been ruled admissible under the Rule
803(3) hearsay exception as showing the victim’s state of mind.
Fain v. State, 986 S.W.2d 666, 680 (Tex. App—Austin 1998,
pet. ref'd).
First, the appellant asserts that the court abused its
discretion in allowing Manuela Navarro to testify that
Veronica Navarro “was upset because she said that [the
appellant] would never let her do anything and would never let
her go anywhere.” 3 RR 56. Navarro said this during a
conversation about why she could not get together with her
family who were in from Laredo for the weekend. 3 RR 55-56.
The statement was a hyperbolic one that was not intended to
be taken literally for the matter asserted, that she could
“never” go anywhere, but to be understood as a statement that
29
she felt controlled. As such, it was a statement of her emotion
and her mental feelings of being upset, stuck and frustrated at
the time she expressed them. Statements concerning the
declarant's then existing emotional condition or mental feeling
are admissible under Rule 803(3). Martinez v. State, 17
S.W.3d at 689 (Tex. Crim. App. 2000) (holding declarant's
statement she was afraid fit exception in 803(3)); Salazar v.
State, 127 S.W.3d 355 (Tex. App—Houston [14th Dist.] 2004,
pet ref'd)(holding victim’s feelings of sadness, fear,
embarrassment, nervousness, worry and anger were
admissible under exception in 803(3) because they concerned
the declarant's then existing emotional condition or mental
feeling). Navarro’s statement was properly admitted because
it both expressed her state of mind and showed the “previous
30
relationship existing between the accused and the deceased.”
TEX. CODE CRIM. PROC. art. 38.36(a).
Kashimba’s testimony that Navarro was “afraid” of the
defendant and that she “didn't like his attitude” (3 RR 93) also
fell squarely within the 803(3) exception as “a victim's
statement regarding her emotional response to a particular
person." Garcia v. State, 246 S.W.3d 121, 132 (Tex. App—San
Antonio 2007, pet. ref’d), citing Cardenas v. State, 115 S.W.3d
54, 63 (Tex. App.—San Antonio 2003, no pet.); and Martinez,
17 S.W.3d at 688.
Kashimba’s testimony that Navarro said the appellant
would “scream or throw things, throwed little fits, temper
tantrums,” and that he “drank a lot” and became more
aggressive” was likewise admissible. 3 RR 94-95. A statement
31
is hearsay only if offered in evidence “to prove the truth of the
matter asserted." TEX. R. EVID. 801(d). In this instance,
Kashimba’s testimony concerning the appellant’s fits and
behavior when drinking was offered to show Navarro's state of
fear within the relationship, her motivation in breaking up
with the appellant, and her intent in leaving the relationship
with the appellant; therefore, it was not hearsay offered for the
truth of the matter asserted. Kashimba’s statement that “I
would see bruises,” was also not hearsay, but his own
observation. 3 RR 94. However, even if the testimony had
been hearsay, it would fall under the exception for "[a]
statement of the declarant's then existing state of mind [or]
emotion" because Kashimba’s testimony ultimately concerned
Navarro’s state of mind about her relationship with the
appellant and her fear of him. TEX. R. EVID. 803(3).
32
The court also did not abuse its discretion in allowing
Kashimba to testify that Navarro said she planned to get a job
and break up with the appellant because these statements
expressed her future plans and intent. 3 RR 102. “Hearsay
statements relating to the declarant's existing state of mind--
such as mental feelings or intent--are generally admissible
when that conduct is relevant to some aspect of the case.”
Martinez v. State, 186 S.W.3d 59, 67 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d), (holding that testimony that indicated
complainant's intentions of leaving appellant were admissible
under Rule of Evidence 803(3), citing TEX. R. EVID. 803(3);
Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000).)
See also, Fain v. State, 986 S.W.2d 666, 680 (Tex. App.—
Austin 1998, pet. ref'd), (victim's statement to a third party
that she was frustrated in the relationship, but intended to
33
continue the relationship with the defendant admissible under
Rule 803(3)); Russo v. State, 228 S.W.3d 779, 809-810 (Tex.
App.—Austin 2007, pet. ref’d), citing Saldivar v. State, 980
S.W.2d 475, 495 (Tex. App. —Houston [14th Dist.] 1998, pet.
ref'd) (“finding under Rule 803(3) that the trial court did not
err in admitting into evidence the murder victim's prior
statement that she was going to fire defendant, an employee”);
Pena v. State, 864 S.W.2d 147, 149- 150 (Tex. App.--Waco
1993, no pet.) (“upholding admission under Rule 803(3) of
murder victim's statement that she wanted to leave defendant,
but felt economically trapped”); Norton v. State, 771 S.W.2d
160, 165-66 (Tex. App.--Texarkana 1989, pet. ref'd) (“finding no
abuse of discretion in admission of prior statement by murder
victim that he intended to go to defendant's shop”). The
testimony of Anna Karen Perez that Navarro said that her
34
relationship was not what she expected and that she had
concerns about moving in with the appellant (3 RR 155-156)
was admissible by the same principle: it expressed her existing
state of mind. Fain v. State, 986 S.W.at 679-680. See
Thrailkille v. State, 2002 Tex. App. LEXIS 8972 (Tex. App.—
Beaumont Dec. 18, 2002)( opinion not designated for
publication)(holding declarant’s statement to ex-boyfriend that
her relationship with the defendant was over was
admissible)(“Under Rule 803(3) of the Rules of Evidence,
statements of the intent of the declarant with regard to
relations have been held to be admissible as showing future
intent, and also admissible to demonstrate state of mind.”) and
citing Dorsey v. State, 24 S.W.3d 921, 928 (Tex. App.—
Beaumont 2000, pet. ref’d), (“testimony that victim not getting
along with husband/defendant, and victim had been seeking
35
divorce”); Vann v. State, 853 S.W.2d 243, 250 (Tex. App. —
Corpus Christi 1993, pet. ref'd)(“testimony that the victim
stated that he was not happy in his marriage and wanted to
find a way out was admissible as a statement of emotional
state and intent to act”).
“The admissibility of an out-of-court statement under an
exception to the general hearsay exclusion rule is within the
trial court's discretion.” Fain v. State, 986 S.W.2d at 680,
citing Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App.
1995), cert. denied, 519 U.S. 826 (1996). The trial court did not
abuse its discretion in admitting the evidence the appellant
now contests as admissible under Rule 803(3).
36
Forfeiture by Wrongdoing
“An evidentiary ruling, such as the one admitting […]
out-of-court statements, will be upheld on appeal if it is correct
on any theory of law that finds support in the record.”
Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).
Jessop v. State, 368 S.W.3d 653, 686 (Tex. App.—Austin 2012,
no pet.), citing De La Paz v. State, 279 S.W.3d 336, 344 (Tex.
Crim. App. 2009); (“[A] trial court's evidentiary ruling must be
upheld if it is correct under any theory of law that is
reasonably supported by the record, even if the trial judge gave
the wrong reason for the ruling.”) All of the hearsay
statements by Veronica Navarro that the appellant now
complains of were admissible because the appellant forfeited
his right to object to their admissibility through “forfeiture by
wrongdoing.”
37
“The doctrine of forfeiture by wrongdoing has been a part
of the common law since at least 1666.” Gonzalez v. State, 195
S.W.3d 114, 117 (Tex. Crim. App. 2006), citing Reynolds v.
United States, 98 U.S. 145, 158 (1879). "The doctrine is based
on the principle that 'any tampering with a witness should
once for all estop the tamperer from making any objection
based on the results of his own chicanery.'" Gonzalez v. State,
195 S.W.3d at 117. In 2013, "Forfeiture by Wrongdoing" was
codified in the Texas Code of Criminal Procedure as an
evidentiary exception. TEX. CODE CRIM. PROC. art 38.49.
Under that statute, “A party to a criminal case who wrongfully
procures the unavailability of a witness or prospective witness
(1) may not benefit from the wrongdoing by depriving the trier
of fact of relevant evidence and testimony; and (2) forfeits the
party's right to object to the admissibility of evidence or
38
statements based on the unavailability of the witness as
provided by this article through forfeiture by wrongdoing.”
TEX. CODE CRIM. PROC. art 38.49.
Texas Code of Criminal Procedure art 38.49 applies only
to an offense committed on or after the effective date of the act
that enacted it, September 1, 2013. TEX. CODE CRIM. PROC. art.
38.49. However, the doctrine existed before its codification
and, in Gonzalez v. State, the Texas Court of Criminal Appeals
applied the doctrine in the context of Confrontation Clause
objections. Gonzalez v. State, 195 S.W.3d 114, 119 (Tex. Crim.
App. 2006). The Court’s rationale and analysis in that case
suggest that the doctrine applied to hearsay objections as well.
See Gonzalez v. State, 195 S.W.3d at 119 (“While courts have
widely accepted the doctrine of forfeiture by wrongdoing to
39
reject both hearsay objections and confrontation claims, the
test for determining whether there is a forfeiture has varied.”)
In this case, the record supports a finding of forfeiture by
wrongdoing according to the law at the time the offense was
committed in that (1) the declarant was unavailable, (2) as a
result of the defendant's act of misconduct. Gonzalez v. State,
195 S.W.3d at 119. The doctrine of forfeiture by wrongdoing is
applicable “even though the act with which the accused is
charged is the same as the one by which he allegedly rendered
the witness unavailable.” Id. at 125. Furthermore, although,
in Gonzales, the Court of Criminal Appeals declined to reach
the question of whether forfeiture by wrongdoing requires that
the “accused specifically intends that the witness be made
unavailable when he engages in the wrongful conduct,” given
the current statute’s disavowal of a requirement that the
40
offering party show that “the actor’s sole intent was to
wrongfully cause the witness’s or prospective witness’s
unavailability,” that requirement should not be applied to the
appellant’s action in this case. See Id.; TEX. CODE CRIM. PROC.
art. 38.49(d). Because the appellant “wrongfully procured the
unavailability” of Navarro by killing her, he forfeited his right
to object to her out-of-court statements coming into evidence.
Based on both of the theories above, the trial court did
not abuse its discretion in allowing Navarro’s out-of-court
statements concerning her prior relationship with the
appellant into evidence.
Harmless Error
Assuming, arguendo, that the court erred in allowing the
jury to hear the testimony, a trial court’s failure to properly
41
enforce evidentiary rules is non-constitutional error and will be
disregarded unless it affected the appellant's substantial
rights. TEX. R. APP. P. 44.2(b). The court need not reverse if,
after examining the record as a whole, it has “fair assurance
that the error did not influence the jury's deliberations to
appellant's detriment or had but a slight effect." Ladd v.
State, 3 S.W.3d 547, 566 (Tex. Crim. App. 1999); see TEX. R.
APP. P. 44.2(b). Erroneously admitted evidence "will not result
in reversal when other such evidence was received without
objection, either before or after the complained-of ruling."
Coble v. State, 330 S.W.3d 253, 286 (Tex. Crim. App. 2010)
(citing Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.
1998)); Houston v. State, 185 S.W.3d 917, 924 (Tex. App.—
Austin 2006, pet. ref’d).
42
Here, in addition to Navarro’s statements objected-to as
hearsay, Navarro’s cousin said she saw that Navarro was
afraid. 3 RR 155. Chris Kashimba as testified that he “would
see bruises.” 3 RR 94. The appellant’s friend, Juan H. Darios,
testified that at the barbecue that they had together a few days
before Navarro’s death, the appellant “was definitely not being
very nice to her. He had been drinking quite a bit of beer. And
I just kind of objected to the way his behavior was towards her,
the way he talked to her.” 3 RR 62. Sarah Hansen, the
convenience store clerk who had sex with the appellant during
the time between Navarro’s death and the discovery of her
body testified that the appellant had a “six-pack of Lone Star
tall boys” with three remaining the day she ran into him at the
music festival and that he continued to drink and that “could
tell that he had alcohol in him” that night. 7 RR 17-18. There
43
was also additional evidence that Navarro planned to leave the
appellant including her willingness to work weekends in East
Austin which was incompatible living in Spicewood and taking
care of the appellant’s son. 3 RR 76. Because "substantially
the same evidence," that the appellant complains of:
demonstrating the appellant’s bad treatment of Navarro after
excessive drinking, and her fear of him and plans to leave the
relationship was admitted elsewhere without objection, any
potential error in admitting the evidence through hearsay was
harmless. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App.
1991).
Furthermore in light of the evidence as a whole, the
complained-of testimony likely had but a slight effect on the
jury. The jury convicted the appellant of murder and
tampering with evidence based on a web of powerful
44
interrelated testimonial and physical evidence including cell
phone evidence showing the victim was on her way to the
appellant’s house when she answered her last call, cell phone
evidence that the appellant never once attempted to contact
Navarro after her phone went silent, that the appellant’s cell
phone traveled to the abandoned and remote site where
Navarro’s body was found in the early morning hours, that the
victim was wrapped in a Coleman tent matching an empty bag
found in the appellant’s home and weighted with paint cans
containing the same kind of paint used in the appellant’s
home, that the appellant was behaving strangely the morning
after Navarro was likely killed, that the appellant fled to the
Canadian border and attempted to enter there after Navarro’s
body was discovered and that the appellant was evasive when
45
his own mother asked him point-blank if he had killed
Navarro.
Based on this overwhelming evidence, the court can have
fair assurance that the error either had no influence on the
jury's deliberations or had but slight effect. Ladd v. State, 3
S.W.3d at 566. The appellant’s point of error should be
overruled.
State’s Reply to the Point of Error Two
The evidence is sufficient to support the
appellant’s murder conviction as well as his
conviction for tampering with evidence.
Standard of Review
A court reviewing for sufficiency of evidence must
determine whether, viewing all the evidence in the light most
46
favorable to the verdict, any rational trier of fact could have
found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 319
(1979); Brooks v. State, 323 S.W.3d 893, 899, 912 (Tex. Crim.
App. 2010).
Argument and Authorities
The appellant argues that “[n]othing tied him to the tent,
rope, or paint cans found with Navarro’s body” (Appellant’s
Brief, No. 03-14-00234-CR at 16-17) and that “there is
absolutely no evidence that Appellant caused Navarro’s death”
(Appellant’s Brief, No. 03-14-00235-CR at 17). Because the
combined and cumulative force of all the incriminating
circumstances points to the appellant’s guilt of both offenses,
the evidence was sufficient to support both convictions.
47
"Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish
guilt." Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App.
Jan. 16, 2013), quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). “In reviewing the sufficiency of the
evidence, [the court] should look at ‘events occurring before,
during and after the commission of the offense and may rely on
actions of the defendant which show an understanding and
common design to do the prohibited act.’" Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007), quoting Cordova v. State,
698 S.W.2d 107, 111 (Tex. Crim. App. 1985). “Each fact need
not point directly and independently to the guilt of the
appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the
48
conviction.” Hooper v. State, 214 S.W.3d at 13 (internal
citations omitted).
Here, a myriad of circumstances all combined to
substantiate the appellant’s guilt. First, the appellant had a
motive to kill Navarro, his own sexual jealousy and fear of being
left. The appellant was involved in a love triangle with the
Navarro and Chris Kashimba. 3 RR 36-37. 3 RR 99. 6 RR 68. 6
RR 70. The appellant was jealous and controlling toward
Navarro. 3 RR 52- 56. 3 RR 155. 3 RR 60-65. 3 RR 158. Navarro
had plans to leave the appellant. 3 RR 102. 3 RR 70-76. The
appellant was treating Navarro badly just before her death. 3 RR
60-65. “Motive is a significant circumstance indicating guilt.”
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). See
also, Hacker v. State, 389 S.W.3d 860, 870-71 (Tex. Crim. App.
2013).
49
The evidence also showed that the appellant had the
opportunity both to kill Navarro and to dispose of her body. In
this case, the appellant lived in a “secluded” area in Spicewood,
Texas not far from where the victim’s body was found. 4 RR 272.
3 RR 38. 5 RR 23. Navarro’s last known communication was a
call to the appellant that showed her location as being near U.S.
Highway 71 and she told Kashimba she was on her way to the
appellant’s home when they parted. 6 RR 43. 5 RR 124-130. 3
RR 104-105. The appellant’s phone was silent for two hours
during the time that Navarro was most likely killed (between
8:24 to 10:30 on June 27). 6 RR 43- 47. The day following
Navarro’s likely death, complaining of illness, the appellant left
work around 7 pm, and between 1 am and 2:30 the following
morning, the appellant’s cell phone data records were consistent
with someone driving out to the abandoned location where her
50
body was left. 4 RR 22-23. 4 RR 26. 6 RR 124. 6 RR 109-119.
The appellant was familiar with the area the body was hidden by
virtue of his work as a firefighter with the Pedernales Fire
Department. 4 RR 50. Evidence of opportunity helps link a
defendant to wrongful conduct or is supportive of other evidence
of such conduct. Hacker v. State, 389 S.W.3d at 871.
In addition, the evidence showed that the appellant had
tried to conceal Navarro’s death. Navarro’s body was found
underwater, wrapped in a Coleman tent. 3 RR 173-177. 3 RR
248. Her body had been bound with a rope and there was a rope
around the victim’s neck that was attached to cinder blocks and
paint cans that anchored it under the water. 3 RR 202. 3 RR
228. .3 RR 235. There were sections of Navarro’s skin that were
“cut out” post-mortem.. 4 RR 184. Attempts to conceal
incriminating evidence are also circumstantial evidence of guilt.
51
Guevara v. State, 152 S.W.3d at 50. The appellant’s attempts to
hide Navarro’s body and identity are probative both that he
tampered with evidence and also that he killed Navarro.
The appellant seeks to minimize his connection to
Navarro’s body by citing the physical evidence in the record that
was inconclusive while ignoring inculpating evidence that did
connect him to the body. Appellant’s Brief, No. 03-14-00234-CR
at 15-16. For instance, although the appellant claims that
“nothing tied him” to the paint cans found with the victim, both
the paint cans found with the victim and the paint cans
recovered at his house were labeled as having been bought at a
Lowe’s in Hutto in July of 2010. 3 RR 236. 5 RR 175. The
appellant had lived in Hutto before he moved to the house in
Spicewood. 7 RR 73. Likewise, testing showed that the cans
found with the body contained the same kind of paint found in
52
the appellant’s home. 5 RR 185-188. Although testing did not
exclude other possible sources of paint, to the extent the paint
found in the appellant’s home could be scientifically compared to
the paint found with the victim, the match was as conclusive as
possible. 5 RR 188.
Other evidence found with Navarro’s body was connected to
the appellant as well. For instance, the appellant had been given
specialized training in rope work for his job. 4 RR 51. 4 RR 78-
80. The appellant’s home contained ropes with complex knots. 5
RR 45. See 18 RR 10 (State’s Exhibit 221.) There was a rope
around the victim that was attached by complex knots to cinder
blocks and paint. 3 RR 235. See 11 RR 70. (State’s Exhibit 33.)
Navarro’s body was found in an adult size medium t-shirt
that said “His Pain, Your Gain.” 5 RR 26. 3 RR 244. 3 RR 246-
247. Navarro wore a much smaller size. 5 RR 30. The
53
appellant’s home contained a number of size adult medium t-
shirts with slogans “related to religion, God, things like that.” 5
RR 49.
Navarro’s body was wrapped inside of a Coleman tent. 5
RR 41. In the second search of the appellant’s home, a
Coleman tent bag was found without a tent inside it. 5 RR 35-
41. A Coleman tent besides the one that was with the victim
was not found in the investigation. 5 RR 42. The Coleman
tent bag found at the appellant’s home had the same product
number on it as the Coleman tent the victim was found
wrapped in. 5 RR 43. 5 RR 63. At trial, Renee Luna testified
about numerous consistencies between a tent that the
appellant had used on a camping trip in November of 2010
(shown in a photo) and the tent that was recovered, wrapping
the victim. 5 RR 137-145. 5 RR 101-103. See 19 RR 13
54
(State's Exhibit 256.) In his opinion, the tent that was
recovered from the lake was purchased in the bag found in the
appellant’s home. 5 RR 145.
A black trash bag was found with the body. 3 RR 255.
Although there was no basis for determining whether the trash
bag found with the victim and the trash bags found in the
appellant’s home were ever at one time connected, the State’s
expert testified that the bags could possibly have come from
same batch of trash bags. 5 RR 148-154.
The jury was entitled “to draw reasonable inferences
from basic facts to ultimate facts." Jackson, 443 U.S. at 318-19.
Given all of the connections between Navarro’s body and the
appellant, a rational trier of fact could have found the
appellant was the one to conceal her body and weight it
55
underwater. Jackson v. Virginia, 443 U.S. at 319. The
appellant’s elaborate attempts to conceal incriminating
evidence were probative of his guilt for murder as well.
Graham v. State, 566 S.W.2d 941, 951 (Tex. Crim. App. 1978).
The appellant also argues that the State proved nothing
more than that the appellant had motive and opportunity to kill
Navarro. Appellant’s Brief, No. 03-14-00235-CR at 17. But,
unlike Stobaugh v. State, 421 S.W.3d 787, 865 (Tex. App. Fort
Worth 2014), cited by the appellant to say that juries cannot
convict on “mere speculation,” and where there was no body
recovered, not only was Navarro’s body (with its post-mortem cuts
and botched attempt at concealment) an incriminating part of the
evidence in this case, there was additional evidence that “wrongful
conduct ha[d] occurred.” Stobaugh v. State, 421 S.W.3d 787, 865
(Tex. App. Fort Worth 2014)
56
Navarro’s manner death was ruled a homicide. 4 RR 196. 4
RR 213-215. The medical examiner ruled that asphyxia was the
cause of Navarro’s death. 4 RR 189. Navarro was deprived of
oxygen by some involuntary manner and means and she died as a
result of that. 4 RR 191. Because Navarro’s head and face were
decomposing it was difficult to evaluate whether she might have
petechia which would have been a factor in assessing
strangulation. 4 RR 168. Similarly because of the condition of the
body, it wasn’t possible to assess the victim’s neck for injuries,
even though there was a “rope [] tied tight around the neck,
attached to two cinder blocks and two paint cans.” 4 RR 170-172.
The medical examiner testified that in some strangulations the
findings are “very subtle.” 4 RR 187. The lack of detail about how
the asphyxia in this case came about was due to the decomposition
of Navarro’s body and thus was not exculpatory. Furthermore,
57
although he was cross examined on the possibility of “sudden
arrhythmic death syndrome,” the appellant’s theory of the case,
the medical examiner did not change his findings according to that
possibility. 4 RR 215. Navarro was young and healthy at the time
of her death. 4 RR 215. Navarro’s manner and cause of death
were additional “evidence that wrongful conduct has occurred.”
Hacker v. State, 389 S.W.3d at 871.
“Intent may also be inferred from circumstantial evidence
such as acts, words, and the conduct of the appellant.” Guevara
v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). After the
time that Navarro was most likely killed (between 8:30 and
10:30 on June 27th), the appellant made calls to general and
home repair stores that might have materials such as those
found with Navarro’s body like ropes and paint cans. 6 RR 43-
47. The following day, the appellant was acting out-of-
58
character on the job and made zero attempts to contact
Navarro by phone. 4 RR 18- 67. 6 RR 70. The day after that,
the appellant headed for the border with Mexico, missing work
to do so. 6 RR 52-54. 4 RR 26-27. He then lied about why he
missed work, claiming that because “his girlfriend and he had
split up and he didn't want to leave the house fearing that she
was going to demolish -- or just tear up stuff in the house.” 4
RR 32-33. The trash can at the appellant’s house contained
pictures of Navarro, along with perfumes, lotions and other
female articles. 4 RR 283-284. Navarro was never reported
missing. 4 RR 137-138. The appellant responded
incriminatingly when his mother asked him if he had killed
the victim.3 State's Exhibit 318. Not only did the appellant
3In a recorded phone call to his mother, recorded after the appellant’s
detention after his attempted border crossing, the appellant’s mother
directly asks “Joe Derek, did you kill Veronica?” and the appellant responds
59
travel to the U.S. border with Mexico after Navarro’s killing,
he also tried to enter Canada following the discovery of
Navarro’s body. 7 RR 31-45. “[A]factfinder may draw an
inference of guilt from the circumstance of flight.” Clayton v.
State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007).
The State was required to prove that the appellant
intentionally or knowingly caused the death of Veronica Navarro,
and, knowing that an investigation of Navarro’s death was
with an uneasy laugh and says “Uh, Mom. Mom, I’m in the Pembina County
Jail. I guess they have a warrant out for my arrest.” State's Exhibit 318.
She confronts him again, saying “Tell me, did you hurt her, yes, or no?”
State's Exhibit 318. Again, the appellant does not respond to the question
but tells her the address where he is detained. Id. When she insists saying,
“I mean, did you?” the appellant changes the subject to his possible release.
Id. In the same phone call, the appellant’s mother admonishes him that he
cannot run if she obtains his release and tells him not to speak to anyone.
State's Exhibit 318. Later, when the appellant’s mother asks him “Did you
do anything wrong?,” the appellant responds “No, not today.” Id. She asks
“You did not hurt anybody” and he changes the subject, saying “Tell Dad
‘Happy Birthday.’” Id. Finally, when his mother states pleadingly, “But, you
didn’t do anything wrong?,” the appellant responds with a significant silence
until he asks “You still there?” Id.
60
pending, he altered, destroyed, or concealed her corpse with intent
to impair its availability as evidence in the investigation. TEX.
PENAL CODE § 19.02; TEX. PENAL CODE § 37.09. The cumulative
force of all the incriminating circumstances is sufficient to support
the conviction on both charges. Hooper v. State, 214 S.W.3d at 13.
A rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. at 319. Brooks v. State, 323 S.W.3d at 912. The appellant’s
Point of Error Two should be overruled.
61
State’s Reply to the Point of Error Three
The trial court did not abuse its discretion in
excluding evidence concerning Chris Kashimba’s
past contacts with law enforcement because, as
specific instances of conduct that were not prior
convictions, they were inadmissible as
impeachment evidence. Alternatively, any error
in excluding the testimony was harmless.
Standard of Review
As stated above, a trial court's decision to admit or
exclude evidence is reviewed for abuse of discretion. Powell v.
State, 63 S.W.3d at 438
Argument and Authorities
The appellant argues that the court abused its discretion
by failing to allow him to cross examine Chris Kashimba by
allowing him to ask about three incidents involving law
enforcement contact with Kashimba. But the trial court did
62
not abuse its discretion in excluding evidence concerning Chris
Kashimba’s past contacts with law enforcement because, as
specific instances of conduct that were not prior convictions,
they were inadmissible as impeachment evidence.
Rule of Evidence 611 provides that a “witness may be
cross-examined on any relevant matter, including credibility.”
TEX. R. EVID. 611. However, “Rule 608 limits the ability of a
party to introduce evidence regarding the character of a
witness.” Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim.
App. 2000) "’Specific instances of the conduct of a witness, for
the purpose of attacking or supporting the witness' credibility,
other than conviction of a crime as provided in Rule 609, may
not be inquired into on cross-examination of the witness nor
proved by extrinsic evidence.’" Martinez v. State, 17 S.W.3d at
688 quoting TEX. R. EVID. 608(b).
63
At trial, the appellant wished to impeach Kashimba
relying on three incidents taken from police reports: a domestic
disturbance from February 26, 2010, a second domestic
disturbance from October 24, 2008 and a theft reported on
September 22, 2008. 3 RR 119-121. The State responded that
there had been “no report of any physical violence” between the
two of them in the reports and that the incidents had not
ended in convictions. 3 RR 118-119. After hearing argument
from the parties, the court held “I am not going to allow you to
impeach him with these specific incidences of conduct that
haven't resulted in any convictions at all.” 3 RR 123. The
court went on to say “However, with respect to -- one thing I
will say is with respect to the breakup, because there has been
an issue with respect to this relationship, I will allow you to
question him about their relationship and whether it was going
64
on or whether there was breakups at any time or something of
that nature.” 3 RR 123.
Acknowledging the general rule that specific instances of
conduct are inadmissible to impeach a witnesses credibility,
the appellant argues that such evidence is nonetheless
admissible to “rebut affirmative representations made on
direct examination,” and that he should have been able to
rebut Kashimba’s representation on direct examination that he
and Navarro “never fought.” Appellant’s Brief, No. 03-14-
00234-CR at 20 and No. 03-14-00235-CR at 21. However,
because when Kashimba stated that he and Navarro “never
fought” he meant that they never physically fought, the
specific incidences the appellant sought to admit did not
contradict an affirmative misrepresentation.
65
Kashimba’s testimony about whether he and Navarro
“fought” came in the context of direct examination by the State
on the history of his relationship with Navarro:
Q. Okay. Now, Chris, I want to turn your
attention to May or June of 2011. Were you and
Veronica living together in that time period?
A. Well, if she wasn't living in Marble Falls, then
she was living with me.
Q. Okay. When you guys were together, did you
have a fight?
A. No, ma'am. It might have been a discussion. I
mean, we never fought. We never threw things or
blew things out of portion. We were civilized
people and talked like human beings.
Q. Okay. I'm sorry, that was the wrong word.
Did you-all break up before Veronica's death?
A. Yes, ma'am, we sure did. 3 RR 96.
In this exchange, Kashimba appears to misinterpret a
question from the State, an attempt to ask why he and
Navarro had separated, for a question about whether they had
ever had a physical confrontation. Given this context,
66
Kashimba’s denial of having “fought” was a denial of physical
violence toward Navarro, not that they had ever had
disagreements. Where there is no affirmative
misrepresentation, specific instances of conduct not resulting
in conviction do not constitute “rebuttal.” See Schoff v. State,
2010 Tex. App. LEXIS 1350, at *20 (Tex. App.—Austin Feb. 23,
2010, no pet.) (mem. op., not designated for publication). Thus,
unless the reports had contained evidence of any physical
violence between the Kashimba and Navarro they did not
rebut "affirmative misrepresentations" made on direct
examination. Furthermore, any potential ambiguity in the
meaning of “fought” in the context of the trial was corrected by
the latitude the court gave the appellant to ask the witness
about “breakups.”
67
Because the evidence appellant wished to offer did
constitute specific instances of conduct but were not prior
convictions under Rule 609, trial court properly excluded the
evidence.
Harmless Error
Assuming, arguendo, that the court abused its discretion
in excluding the evidence, the error would be regarded as non-
constitutional error. Accordingly, the error will be disregarded
if the reviewing court has fair assurance, after considering the
record as a whole, that the error did not affect the jury, or had
but slight effect. Bagheri v. State, 119 S.W.3d 755, 762-63
(Tex. Crim. App. 2003); see TEX. R. APP. P. 44.2(b).
To the extent that the police reports impeached
Kashimba’s statement that he and Navarro “never fought”
68
because it was evidence that they had disagreements or
“fights,” that evidence was available to the appellant in other
forms in the record, already. The evidence at trial was that
Navarro’s romance with Kashimba was on-again-off-again. 3
RR 35. Navarro’s older sister testified that Navarro and
Kashimba “would always argue.” 3 RR 43. Kashimba himself
described the relationship as “off and on.” 3 RR 95. In fact,
just following the testimony during which Kashimba said he
and Navarro never “fought,” Kashimba described a specific
incident in which he saw a picture of Navarro taken with the
appellant after “she went out clubbing” and that after seeing it
he told Navarro “I would like for you to get your things and
move out.” 3 RR 96-97. Even without the police reports, there
was evidence in the record to show that Kashimba and
Navarro had disagreements.
69
Furthermore, the appellant characterizes Kashimba’s
credibility as important to the case by saying that his
testimony was the only evidence that Navarro was planning on
leaving the appellant and thus established motive. But there
was evidence from other witnesses in the record establishing
motive. Navarro interviewed for a job that was inconsistent
with living out in Spicewood and taking care of the appellant’s
son just before she was killed. Also, Navarro’s cousins testified
about her troubled feelings within the relationship and the fact
she had alternately dated both Kashimba and the appellant.
Juan Darios testified about the evident unhappiness of the
couple just before Navarro’s death. Even if the jury
discounted Kashimba’s testimony, there was ample motive
evidence to rely upon from other sources. The error, if any, did
70
not affect the jury, or had but slight effect. Bagheri v. State,
119 S.W.3d at 762-63.
In conclusion, the appellant’s Point of Error Three should
be overruled. The trial court's decision to exclude evidence of
specific instances of conduct to impeach Kashimba’s credibility
was not erroneous, much less “a clear abuse of discretion.”
Alternatively, if the court erred in excluding the evidence, the
error was harmless.
71
State’s Reply to the Point of Error Four
The trial court did not abuse its discretion in
allowing the admission of a phone call from the
appellant to his mother recorded while he was in
jail because it was properly authenticated by
voice identification. Alternatively, any error in
admitting the testimony was harmless.
Standard of Review
As stated above, a trial court's decision to admit or
exclude evidence is reviewed for abuse of discretion. Powell v.
State, 63 S.W.3d at 438. A trial court’s ruling will be upheld so
long as its decision to admit or exclude evidence is within the
"zone of reasonable disagreement." Montgomery v. State, 810
S.W.2d at 391.
72
Argument and Authorities
State’s Exhibit 318 was admitted over the appellant’s
objections, including on authentication grounds. 7 RR 88. The
appellant now complains that the trial court should not have
admitted the phone call between the appellant and his mother
that was recorded while he was being held at the Pembina
County jail on the basis that it was improperly authenticated.
Specifically, the appellant argues that under Texas Rule of
Evidence 901, in addition to voice identification, telephone
calls must be authenticated “by the number assigned at the
time by the telephone company to a particular person or
business" and that “none of this evidence” was presented.
Appellant’s Brief, No. 03-14-00234-CR at 23 and No. 03-14-
00235-CR at 24, citing TEX. R. EVID. 901(b)(5)&(6). However,
since the phone call was properly authenticated by voice
73
identification, the trial court did not abuse its discretion in
admitting State's Exhibit No. 318.
Under Rule 901 of the Texas Rules of Evidence, the
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by “evidence sufficient to
support a finding that the matter in question is what its
proponent claims." TEX. R. EVID. 901(a). Subsection (b) of that
Rule offers a few examples of “evidence that satisfies the
requirement.” TEX. R. EVID. 901(b). However, “Rule 901(b)
makes it clear that the illustrations given therein are just that
and are not by way of limitation.” Phillips v. State, 436 S.W.3d
333, 339-340 (Tex. App.—Waco 2014, pet. granted),citing TEX.
R. EVID. 901(b). The Rule also does not require that evidence
be authenticated by more than one sufficient means. For
instance, a telephone conversation can be authenticated using
74
the number dialed. TEX. R. EVID. 901(b)(6). But, the
identification all of the voices on the recording is another
proper means of authentication of a phone call. TEX. R. EVID.
901(b)(5); Phillips v. State, 436 S.W.3d at 339-340. The Rule
does not require that phone calls be authenticated by proof of
number dialed, so long as the evidence is sufficient to support a
finding that the matter in question is what its proponent
claims.
In this case, Detective Leal identified the voices of both
the appellant and his mother. 7 RR 75. Chief Osvalt identified
the voice of the appellant’s cellmate in the background. 7 RR
68. This was sufficient authentication by voice identification
to support a finding that the call was what the State claimed.
TEX. R. EVID. 901(b)(5); See Duncan v. State, 2013 Tex. App.
LEXIS 3169, at *14 (Tex. App. —Dallas Mar. 22, 2013, no
75
pet.)(mem. opinion not designated for publication)(testimony of
employee of Sheriff's Department identifying audiotaped
recordings of jail phone conversations as well as the voices on
each exhibit was sufficient to support admission of the exhibits
under Rule 901.) The trial court did not abuse its discretion in
admitting State's Exhibit No. 318 over the appellant’s
authentication objection.
Harmless Error
Assuming, arguendo, that the court erred in allowing the
exhibit into evidence, any error was harmless. Error in the
admission of evidence is non-constitutional error subject to a
harm analysis under Texas Rule of Appellate Procedure
44.2(b). TEX. R. APP. P. 44.2(b); Hankins v. State, 180 S.W.3d
177, 182 (Tex. App.—Austin 2005, pet. ref’d).
76
As argued, supra, in State’s Reply to the Point of Error
One, the appellant was convicted of both murder and
tampering with evidence based on a vast array of interrelated
physical and testimonial evidence. Because the scope of the
evidence in this case was so broad and the effect of the
evidence cumulative, the appellant’s phone call to his mother
from jail, as a single part of the detailed whole, did not
determine the verdict. See Motilla v. State, 78 S.W.3d 352,
356-57 (Tex. Crim. App. 2002) (overwhelming evidence of guilt
is factor to consider in harm analysis.)
In conclusion, the appellant’s Point of Error Four should
be overruled. The appellant’s phone call to his mother from the
Pembina County Jail was properly authenticated and should
not have been excluded. Alternatively, if the court erred in
permitting it into evidence, the error was harmless.
77
State’s Reply to the Point of Error Five
The trial court did not abuse its discretion in
admitting State’s Exhibit 318, a recorded phone
call from the appellant to his mother from jail,
because the exhibit did not violate the appellant’s
right against self-incrimination. Even if State’s
Exhibit 318 was admitted in error, it was
harmless.
Standard of Review
As stated above, a trial court's decision to admit or
exclude evidence is reviewed for abuse of discretion. Powell v.
State, 63 S.W.3d at 438. A trial court’s ruling will be upheld so
long as its decision to admit or exclude evidence is within the
"zone of reasonable disagreement." Montgomery v. State, 810
S.W.2d at 391.
78
Argument and Authorities
The appellant argues that the appellant’s recorded phone
call to his mother from Pembina County Jail should not have
been admitted because the question “as to whether Appellant
killed Navarro clearly invaded his right to remain silent” and
“the answer was information only Appellant could supply.”
Appellant’s Brief, No. 03-14-00234-CR at 26 and No. 03-14-
00235-CR at 26. But, because this recorded exchange was
voluntarily made, out-of-court, and did not involve a State
actor, the Fifth Amendment rights the appellant claims
pertaining to the conduct of the prosecutor at trial were not
implicated. The admission of the phone call as an exhibit did
not violate the appellant’s right against self-incrimination.
79
No person shall be compelled in any criminal case to be a
witness against himself. U.S. CONST. AMEND. V. Furthermore,
“the failure of any defendant to so testify shall not […] be
alluded to or commented on by counsel in the cause.” TEX.
CODE CRIM. PROC. art. 38.08. However, the Fifth Amendment
does not “preclude a witness from testifying voluntarily in
matters which may incriminate him.” Chapman v. State, 115
S.W.3d 1, 6 (Tex. Crim. App. 2003),quoting Minnesota v.
Murphy, 465 U.S. 420, 427-428 (1984).
In his fifth point of error, the appellant erroneously
equates State’s Exhibit 318 with a prosecutor's comment on a
defendant's failure to testify at trial. Appellant’s Brief, No. 03-
14-00234-CR and No. 03-14-00235-CR, Point of Error Five,
citing Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App.
1981), Losada v. State, 721 S.W.2d 305, 313 (Tex. Crim. App.
80
1986), and Angel v. State, 627 S.W.2d 424, 425 (Tex. Crim.
App. 1982). The cases cited in support of this argument all
involved allegations that the State improperly commented on
appellant's failure to testify at trial. The conversation between
the appellant’s and his mother, including her question to him if
he had killed Navarro and his incriminating responses to that
question are not equivalent to a prosecutor’s comment on the
failure of the defendant to testify at trial. Therefore, the
prohibitions the appellant asserts simply do not apply. The
appellant’s conversation with his own mother was voluntary
and unprovoked by the State and was therefore admissible.
See Autry v. State, 626 S.W.2d 758, 765 (Tex. Crim. App.
1982)(Appellant's telephone call to his mother was shown to be
an act of free will and the admissions which were made were
81
within earshot of an officer were not the result of interrogation
and were admissible at trial.)
The appellant’s Fifth Amendment rights were not
violated and his fifth point of error should be overruled.
Harmless Error
Assuming, arguendo, that the court erred in admitting the
recording, any error was harmless. See Harmless Error
analysis in State’s Reply to Point of Error Four, above.
In conclusion, the appellant’s Point of Error Five should
be overruled. The phone conversation was admissible.
Alternatively, if the court erred, the error was harmless.
82
State’s Reply to the Point of Error Six
The trial court did not abuse its discretion in
denying the appellant’s motion for new trial
because the newly-discovered evidence it was
based upon merely showed that the appellant and
Navarro were together prior to her death, did not
contradict the evidence at trial, and would not
have brought about a different result at trial..
Standard of Review
“A trial court's ruling denying a defendant's motion for
new trial is reviewed under an abuse of discretion standard.”
Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).
Argument and Authorities
The appellant argues that he should have been granted a
new trial because surveillance videotapes from a Walmart
store showing the appellant and Navarro shopping together
were turned over after the trial and that this evidence refuted
83
the State’s theory that Navarro was afraid of the appellant and
planned to leave him. Appellant’s Brief, No. 03-14-00234-CR
at 27 and No. 03-14-00235-CR at 27. But, because the newly-
discovered evidence merely showed that the appellant and
Navarro were together prior to her death and thus did not
contradict the evidence at trial, the appellant failed to
establish all of the essential requirements for a new trial based
on newly discovered evidence and the trial court's denial of the
motion for new trial was warranted.
When material evidence favorable to the accused has
been discovered since trial “[a] defendant is entitled to have
his motion for new trial granted if (1) the newly discovered
evidence was unknown to him at the time of the trial; (2) his
failure to discover the new evidence was not due to the lack of
due diligence; (3) the new evidence is admissible and not
84
merely cumulative, corroborative, collateral, or impeaching;
and (4) the new evidence is probably true and will probably
bring about a different result.” Delamora v. State, 128 S.W.3d
344, 354 (Tex. App.—Austin 2004, pet. ref’d), citing Wallace v.
State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); Keeter v.
State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002). “A failure
by a defendant to establish any of the essential requirements
for a new trial based on newly discovered evidence warrants
the trial court's denial of the motion.” Delamora v. State, 128
S.W.3d at 354, citing Shafer v. State, 82 S.W.3d 553, 556 (Tex.
App.--San Antonio 2002, pet. ref'd).
In this case, it was undisputed that the videos were not
turned over until after the trial and that was this was due to
no failure of the appellant. 10 RR 22. The State however,
argued that the evidence would not have brought about a
85
different result at trial. 10 RR 22. After hearing argument,
the court held that while it was “”having presided over this
case probably two months ago or less,” it had “a very good
recollection of the case” and that “the cumulative and
overwhelming circumstantial evidence of the defendant's guilt
certainly would indicate to this Court that that photo would
have had no impact on the ultimate outcome of the case.” 10
RR 24-25.
As the State argued at the Motion for New Trial, the
surveillance evidence simply showed that the appellant and
Navarro were still together on June 26, 2011. 10 RR 23. That
was consistent with the evidence at trial showing the same. 6
RR 68. 6 RR 70. Given that the evidence at trial was
consistent with the newly-discovered evidence, not only the
appellant fail to establish that the evidence would “probably
86
bring about a different result,” but it the evidence was
cumulative as well and thus the trial court certainly did not
commit an abuse of discretion in overruling the motion for new
trial. Salazar v. State, 38 S.W.at 148; Delamora v. State, 128
S.W.3d at 354. The appellant’s sixth point of error should be
overruled.
Prayer
WHEREFORE, the State requests that the Court
overrule all of the appellant’s points of error and affirm the
judgment of the trial court.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
87
/s/ Rosa Theofanis
Rosa Theofanis
Texas Bar No. 24037591
Assistant District Attorney
District Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Phone: 512.854.9400
Fax: 512.854.9206
Email: Rosa.Theofanis@ traviscountytx.gov
AppellateTCDA@ traviscountytx.gov
Certificate of Compliance
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3),
effective December 1, 2012, the State certifies that the length
of this brief is 12,200 words. The State also certifies, pursuant
to Texas Rule of Appellate Procedure 9.4(e), a conventional
typeface 14-point was used to print this brief.
/s/ Rosa Theofanis
Rosa Theofanis
Assistant District Attorney
Certificate of Service
This is to certify that the above State’s brief has been served
on the appellant by U.S. mail, electronic mail, by facsimile, or
88
electronically through the electronic filing manager to his
attorney, Kristen Jernigan, 207 S. Austin Ave, Georgetown,
Texas, 78626, ; on this 20th day of
May, 2015.
/s/ Rosa Theofanis
Rosa Theofanis
Assistant District Attorney
89
Joe Derek Carr v. State
Combined Opinion