IN THE COURT OF APPEALS FOR THE ELEVENTH DISTRICT OF TEXAS EASTLAND, TEXAS EDDIE RAY ROUTH § Appellant, § § vs. § NO. 11-15-00036-CR § THE STATE OF TEXAS, § Appellee. § APPEALED FROM CAUSE NUMBER CR14024 IN THE 266 TH JUDICIAL DISTRICT COURT OF ERATH COUNTY, TEXAS; THE HONORABLE JASON CASHON, JUDGE PRESIDING. §§§ APPELLANT’S BRIEF §§§ J. WARREN ST. JOHN State Bar No. 18986300 2020 Burnett Plaza 801 Cherry Street, Unit No. 5 Fort Worth, Texas 76102-6810 Telephone: (817) 336-1436 Fax:(817) 336-1429 E-mail: [email protected]Appellant’s Counsel Oral Argument Is Requested. ACCEPTED 11-15-00036-CR ELEVENTH COURT OF APPEALS EASTLAND, TEXAS 12/11/2015 9:02:38 AM SHERRY WILLIAMSON CLERK FILED IN 11th COURT OF APPEALS EASTLAND, TEXAS 12/11/15 9:02:38 AM SHERRY WILLIAMSON Clerk
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IN THE COURT OF APPEALS FOR THE ELEVENTH DISTRICT OF TEXAS
EASTLAND, TEXAS
EDDIE RAY ROUTH §Appellant, §
§vs. § NO. 11-15-00036-CR
§THE STATE OF TEXAS, §
Appellee. §
APPEALED FROM CAUSE NUMBER CR14024 IN THE 266TH JUDICIAL DISTRICT
COURT OF ERATH COUNTY, TEXAS; THE HONORABLE JASON CASHON, JUDGE
PRESIDING.
§§§
APPELLANT’S BRIEF
§§§
J. WARREN ST. JOHNState Bar No. 189863002020 Burnett Plaza801 Cherry Street, Unit No. 5Fort Worth, Texas 76102-6810Telephone: (817) 336-1436Fax:(817) 336-1429E-mail: [email protected]
Appellant’s Counsel
Oral Argument Is Requested.
ACCEPTED11-15-00036-CR
ELEVENTH COURT OF APPEALSEASTLAND, TEXAS
12/11/2015 9:02:38 AMSHERRY WILLIAMSON
CLERK
FILED IN11th COURT OF APPEALS EASTLAND, TEXAS 12/11/15 9:02:38 AM SHERRY WILLIAMSON Clerk
IN THE COURT OF APPEALS FOR THE ELEVENTH DISTRICT OF TEXAS
EASTLAND, TEXAS
EDDIE RAY ROUTH, §Appellant, §
§vs. § NO. 11-15-00036-CR
§THE STATE OF TEXAS, §
Appellee. §
APPEALED FROM CAUSE NUMBER CR14024 IN THE 266TH JUDICIAL DISTRICT
COURT OF ERATH COUNTY, TEXAS; THE HONORABLE JASON CASHON, JUDGE
PRESIDING.
§§§
APPELLANT’S BRIEF
§§§
J. WARREN ST. JOHNState Bar No. 189863002020 Burnett Plaza801 Cherry Street, Unit No. 5Fort Worth, Texas 76102-6810Telephone: (817) 336-1436Fax:(817) 336-1429E-mail: [email protected]
Appellant’s Counsel
Oral Argument Is Requested.
LIST OF INTERESTED PARTIES
Pursuant to Rule 38.1, TEX. R. APP. P., the following is a complete listing of all
parties to the trial court’s final judgment and their counsel in the trial court;
1. The Honorable Jason Cashon, 266th Judicial District Court of Erath County, Texas,
112 W. College Street, Stephenville, Texas 76401.
2. Honorable Alan Nash, District Attorney for Erath County, Texas, and Honorable
Jane Starnes, Assistant Attorney General.
3. Appellant, EDDIE RAY ROUTH, presently serving his prison sentence, who can be
served through his attorney of record, J. Warren St. John.
4. Honorable J. Warren St. John, 2020 Burnett Plaza, 801 Cherry Street, Unit No. 5,
Fort Worth, Texas 76102, Appellant’s counsel in the trial court.
5. Honorable Tim Moore, 115 West 2nd Street, Suite 202, Fort Worth, Texas 76102,
Appellant’s counsel in the trial court.
6. Honorable Shay Isham, 505 N. Graham Street, Stephenville, Texas 76401,
THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S MOTION TOSUPPRESS STATEMENTS TAKEN BY TEXAS RANGER DANNY BRILEY INVIOLATION OF TEX. CODE CRIM. P. ART. 38.22 V.A.T.S. (RR Vol. XX, pp. 167-174)
IT WAS ABUSE OF DISCRETION FOR THE TRIAL COURT TO OVERRULEAPPELLANT’S MOTION FOR MISTRIAL WHEN THE PROSECUTOR PARADEDA VIAL IN FRONT OF THE JURY THAT WAS NOT ADMITTED INTO EVIDENCE. (RR Vol. XXI, pp. 10-16)
7 disorganized behavior or these negative symptoms of --huh--
8 restricted affect or avolition, avolition means a low desire to
9 do things --huh-- just kind of the -- the social withdrawal that
10 we frequently see in schizophrenia. Huh-- So I -- While Ms.
11 Weed had reported that he was hearing and seeing things the --
12 the night before and that he had done that before --huh-- he
13 didn't tell me of any hallucinations, I didn't use that report
14 to make the diagnosis of schizophrenia, but to make the
15 diagnosis I relied on the delusions, the really disorganized
16 speech and thinking --huh-- and the --huh-- the negative
17 symptoms or the -- the flattened affect as well, so that's what
18 led to the -- the diagnosis, and I don't think it just started
19 even that week of the offense, but I think it probably started
20 back in July of 2011, when he first had the symptoms of the --
21 the tapeworm and, you know, we talked about the -- the doctors
22 at the VA being against him and the people there being against
23 him, and, you know, symptoms that -- that began, you know,
24 probably around that time, just that they weren't -- they
25 weren't there as prominently for eighteen or -- or twenty
28
1 months, but that's probably when he -- around the first time he
2 had symptoms of the illness.
3 Q. You talk in your report about --huh-- malingering
4 mental illness.
5 A. Yes.
6 Q. Huh-- Explain why you feel that --huh-- that you do
7 not think that Eddie was faking or malingering mental illness.
8 A. Well, I spoke about that some -- a little bit before,
9 about how the --huh-- type of symptoms that -- that he described
10 weren't what we normally see in an individual whom -- who
11 malingers, his --huh-- his symptoms -- his presentation was very
12 consistent with what's normally seen in schizophrenia, and it --
13 it wasn't this kind of dramatic, flowery stuff that you see in
14 movies or cartoons, but also I did -- did the testing -- the
15 M-FAST, that I talked about earlier, that was not supportive of
16 a diagnosis of malingering, you know --huh-- I think the -- one
17 of the strongest pieces of evidence that he had of mental
18 illness was not in my interview or my evaluation, but the text
19 that Mr. Kyle sent at the time that --huh-- Mr. Routh was in his
20 vehicle --huh--
21 Q. Tell -- Tell me why you think that's important.
22 A. Well, he was always -- he was -- he's the one who saw
23 him the closest to this --huh-- event --huh-- of anybody, and
29
24 Mr. Kyle was used to seeing people who were a little bit strange
25 or people with post-traumatic stress disorder, people who were
1 disturbed by the war, but he text, this guy is straight up --
2 this dude is straight up nuts, and, you know, Mr. Littlefield's
3 concerned enough that he says, you know, watch my 6, he -- he
4 knows that there's -- there's something wrong with the fellow
5 sitting behind him, and it's not just PTSD, so I think that
6 that's, you know, pretty strong support for the idea that there
7 was something really wrong with Eddie Ray Routh on the day of
8 the offense, and that something wrong was a mental disease.
9 Q. And -- And as part of forming your opinion, did -- did
10 his interview with Ranger Briley play a significant part?
11 A. It did.
12 Q. Huh-- Why?
13 A. Because it was very supportive of the idea that
14 --huh-- you know, one, he'd felt paranoid about these
15 individuals, that he thought that he had to kill them or he
16 would be killed, and then he had a mental illness at the time,
17 his --huh-- the things that he said -- the -- the marked thought
18 disorganization, the lack of emotional response, the --huh--
19 just -- you know, numerous bizarre statements about --huh-- his
20 thinking at the time --huh-- I -- I -- I killed him today, it
30
21 wasn't a want to, it was a need to, I had to get out of there
22 --huh-- statements that -- he described them as imaginary
23 headhunters, trying to run everybody down --huh-- he drew a
24 contrast between himself and Mr. Kyle and Mr. Littlefield by
25 saying, I'm not trying to hunt everybody down for what they done
1 wrong, and --huh-- when Mr. -- Ranger Briley asked him what was
2 going on, he said, I can't just leave my soul up there, it's not
3 what it's about, I've got people eating at my soul, so it was
4 supportive both of mental illness and of this idea that he was
5 in danger and he had to kill them before -- before they killed
6 him. Even the -- Excuse me. (Pause) The very first statement
7 he made to Ranger Briley is, I'm try -- I'm trying to find out
8 more about the world that I've been living in, too, I never knew
9 I was in this deep, what -- when I'm looking at those computer
10 screens, when I was in Iraq, I never thought I was, I never
11 thought it was -- I was, I mean, you can look at it, doesn't
12 make sense to you at the time, when you realize that's happening
13 you know --huh-- you're looking like it's astonishing, you know,
14 he's trying to figure out the world, he's saying the stuff
15 that's really bizarre, Briley is obviously trying to get him to,
16 you know, just talk about the offense, and he asked him these
17 questions, he goes through a Miranda warning, and then
31
18 immediately Mr. Routh responds, I never knew that counsel was --
19 maybe you know, counseling between men and women, needed to be
20 more heavy in the world than it did, but when you're all
21 surrounded by --huh-- by all -- by all fronts, where it begins
22 you just can't start in one place, you know, and then
23 immediately thereafter Ranger Briley tries to get him to say
24 again, you know, tell me what happened, and he responds with
25 well, you know, I keep talking to Chris, you know, I keep
1 talking to Chrises in the world, it seems like every time I talk
2 to another man named Chris I get sent to another man named
3 Chris, I think about talking to the wolf, the one in the sky, I
4 think about fighting through the war, you know, the ones in the
5 sky are the ones that fly, you know what I mean, the pigs in the
6 world they can truly say they're pigs, I've been smelling it
7 this whole time, I'm just tired of everything -- I'm sorry, I'm
8 tired of everybody's fucking bullshit, I can smell bullshit and
9 pigshit, you know, I can tell the difference between two
10 different kinds of pigshit -- two different kinds of pigs
11 shitting, I don't know how you can smell your shit, I'm not
12 saying nobody's shit stinking, but shit stinking, you know what
13 I mean.
14 Q. So, that's kind of the -- the continuation of several
32
15 days of this pig --
16 A. Yeah, it's -- it's totally nonresponsive to what
17 Ranger Briley was asking him, but it's clearly evident that he
18 was having a mental illness, that he's having a lot of
19 difficulty organizing his thinking, and that it pulls in a lot
20 of stuff that he, you know, was telling me about pig hybrids,
21 and -- and pigshit, and -- and other people's shit, and a lot of
22 stinking stuff, but Ranger Briley doesn't know what that means,
23 I mean, Ranger Briley's got a job to do, he's got -- his job is
24 to try to, you know, find out what happened and to see if he can
25 get a confession, it's not to find out does this guy have a -- a
1 mental illness that might have prevented him from knowing what
2 he did was wrong --huh-- he does ask him, you know, he knew --
3 you knew what you did was wrong, didn't you, and at some point
4 Mr. Routh says, yes, I -- I did, which is what many defendants
5 are going to say to the officers asking them questions, but the
6 clear evidence of mental illness in the very initial responses
7 in that interview I think are, you know, indicative of his state
8 of mind at the time, are supportive of a mental illness, and are
9 also supportive of the idea that he believed that he did what he
10 had to do.
11 Q. And, in fact, through what you've reviewed --huh-- he
33
12 not only told Ranger Briley that it was either him or them
13 --huh-- he also told his sister that, too, didn't he?
14 A. Yes, he did.
15 Q. That he had to get them before they got him. And I
16 guess my point is is --huh-- through your interview with him and
17 -- and other collateral matters --huh-- that was -- that was his
18 major fear, was that they were going to kill him?
19 A. He thought he was going to die if he didn't take care
20 of business and kill them first.
21 Q. And that would also not only show evidence of some
22 delusional thinking but, in his mind, that what he did was not
23 wrong?
24 A. Correct, if -- if you are going to be killed, then you
25 have the right to defend yourself, he defended himself --huh--
1 Q. In his mind?
2 A. In his mind, right. I'm not saying that's -- that's
3 logical, but it was logical in his sense, you know, he -- he
4 believed he was going to die, none of us would have thought that
5 was the case, we thought that here's, you know, a decorated war
6 veteran and his friend taking out a guy who's been in the army,
7 to try to, you know, relate to him and give him some -- you
8 know, engage him in an activity, isn't -- isn't what they're
34
9 doing, you know, really helpful thing, but in his mind he
10 thought he was going to die unless he had to -- unless he took
11 care of business.
12 Q. Now, there's mentioned in the records of marijuana
13 smoking --huh-- a habit of marijuana smoking, and so they --
14 there's -- what we discussed earlier is a substance-induced
15 psychosis, correct?
16 A. Yes.
17 Q. Huh-- And you don't -- What -- What is your opinion
18 about -- at the time this offense was committed --huh-- whether
19 or not his psychosis was substance-induced?
20 A. It's my opinion that his psychosis was not
21 substance-induced.
(RR Vol. XXIII, pp. 115-122)
5 Q. (BY MR. MOORE) Just to make sure, Doctor, is it your
6 opinion, that on February 2nd, 2013, when Eddie shot Mr. Kyle
7 and Mr. Littlefield, that at the time of that conduct charged,
8 that he as a result of a severe mental disease or defect, did
9 not know that his conduct was wrong?
10 A. Yes.
11 Q. Thank you.
(RR Vol. XXIII, p. 222)
Dr. Dunn is clear in his diagnosis of Mr. Routh that he was legally insane when he
35
shot both Mr. Kyle and Mr. Littlefield.
Dr. Price, a State’s Expert, came up with some far fetched idea that indicated that
Mr. Routh’s behavior was based on smoking wet marijuana. Texas Department of Public
Safety’s chemist stated the marijuana smoked by Routh on February 2, 2013 was not laced
with anything.
Dr. Arambula, a psychiatrist for the state, stated that Mr. Routh had a mood
disorder, but could not assert why he thought he had a mood disorder.
It is clear the Appellant met his burden of proof to show that he was insane at the
time of the offense, but the jury chose to disregard Mr. Routh’s severe mental illness.
36
POINT NUMBER TWO:
THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S MOTION TOSUPPRESS STATEMENTS TAKEN BY TEXAS RANGER DANNY BRILEY INVIOLATION OF TEX. CODE CRIM. P. ART. 38.22 V.A.T.S. (RR Vol. XX, pp. 167-174)
Argument and Authorities:
In Miranda v. Arizona, 304 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Miranda
defines custodial interrogation as “questioning initiated by law officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant
way”.
In Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297,
306 (1980), the Supreme Court rejected the notion “that the Miranda rules were to apply
only to those police interrogation practices that involve express questioning of a defendant
while in custody.” The Supreme Court held instead:
“Miranda safeguards come into play whenever a person in custody is subjected toeither express questioning or its functional equivalent. That is to say, the term‘interrogation’ under Miranda refers not only to express questioning, but also to anywords or actions on the part of the police (other than those normally attendant toarrest and custody) that the police should know are reasonably likely to elicit anincriminating response from the subject.” Id. at 300-301, 100 S.Ct. 1689-1690, 64 L.Ed.2d 307, 308.[footnotes omitted][emphasis added.]
The Court of Appeals relied on this Court’s decision in McCrory v. State, 643 SW2d725 (Tex.Crim.App.1982), in holding that appellant’s statements to Vera stemmedfrom custodial interrogation.
In McCrory, supra, a majority of this Court held that the oral statement in questionwas the result of custodial interrogation since the record as a whole clearlyestablished [FN2] that the defendant’s statement” ‘resulted from a calculatedpractice’ which all agents of the State present knew was ‘reasonably likely to evokean incriminating response’ from him.” 643 SW2d at 734 [emphasis in original]
The Appellant did not understand his warnings under Article 38.22 of the Texas
37
Code of Criminal Procedure. The Appellant was clearly in custody of the Texas Rangers.
In Creager v. State, 952 SW2d 852 (Tex.Crim.App.1997) states that the voluntariness of
a statement is decided by considering the totality of the circumstances under which the
statement was obtained. Trickery or deception does not make a statement involuntary
unless the method was calculated to produce untruthful confession or was offensive to
due process U.S.C.A. Const. Amend. 14. Appellant would not have given a statement if
he understood that he could terminate the interview. The officer used a method to induce
the Appellant to give a statement that was in violation of the due process clause of the
State and Federal Constitutions. Creager goes on to say that in Miranda v. Arizona, 304
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court said that the Fifth Amendment
required at least some warnings before custodial interrogation, one being that a person in
custody must first be warned “that anything he says can be used against him in a court of
law.”1 384 U.S. at 479, 86 S.Ct. at 1630. The Fifth Amendment right is not violated when
a suspect is warned that his statement “could be used against him, or could be used for
him.” Gardner v. State, 733 SW2d 195, 202-03 (Tex.Crim.App. 1987). Voluntariness is
decided by considering the totality of the circumstances
under which the statement was obtained. Haynes v. Washington, 373 U.S. 503, 83 S.Ct.
1336, 10 L.Ed.2d 513 (1963).
Article 38.21 of the Code of Criminal Procedure requires that the statement have
been “freely and voluntarily made without compulsion or persuasion.” Even without the
statute, the courts of this state have held that statements must not have been “obtained
1 The substance of this particular Miranda warning was added to the Texas confession statute in 1977. S.B.157, 65th Legislature–Regular Session, Acts 1977, ch. 348, § 2. It appears in Article 38.22 as Section 2(a)(2): “anystatement he makes may be used as evidence against him in court.”
38
by the influence of hope or fear, applied by a third person to the prisoner’s mind.” Cain v.
State, 18 Tex. 387, 390 (Tex. 1857) The ultimate question is whether the suspect’s will was
overborne. Armstrong v. State, 718 SW2d 686, 693 (Tex.Crim.App.1985) In this case, it
was.
Texas Ranger Briley interviewed Mr. Routh at the Lancaster Police Department after
the incident. Ranger Briley asked Mr. Routh if he wanted to speak to him; Mr. Routh never
stated he would, Mr. Routh was in a psychotic state.
18 Q. Well, then you say --huh-- he tells you that there
19 have to be councils to keep people accountable, and stuf f like
20 this that people do, they can't walk on the ground with you,
21 they can't walk on the same ground with you, you know what I
22 mean, and you say, right, and I assume you're just playing along
23 with him, correct?
24 A. Yeah, this is all at the initial stages of the
25 interview, and I'm certainly going along with whatever he's
1 going to talk about and I'm going to grab ahold of whatever
2 themes he's --huh-- talking about and then develop a plan to --
3 to get down --
4 Q. But he's --
5 A. -- get down to the truth.
39
6 Q. But he's just not making any sense, is he?
7 A. Huh-- That's true.
8 Q. Huh-- And --huh-- you tell him, I -- I want you to
9 know, I work with the Texas Rangers, and what we do is we
10 investigate major crimes, homicides, we have all the resources
11 that we utilize to look into these cases, you understand what
12 I'm saying, and he says, right, and you say, and I know what you
13 went through today has been very difficult for you, and I want
14 to talk about what happened, and you can start when you woke up
15 today and what happened, and his answer was, well, I kept talk
16 -- I keep talking to Chris, you know, I keep talking to Chrises
17 in my world, seems like every time I talk to another man named
18 Chris I get -- get sent to another man named Chris, that didn't
19 make any sense either, did it?
20 A. That's -- huh-- some of the denial that I'm talking
21 about --
22 Q. That's --
23 A. -- denial.
24 Q. -- That's what you're talking -- denial?
25 A. Yes, denial avoidance.
1 Q. He says, every time I talk to another man named Chris,
2 I get sent -- oh, I'm sorry, he says, I think about talking to
40
3 the wolf, the one in the sky, I think about fighting through the
4 war, you know, did you ask him what he meant by that?
5 A. Huh-- No, he likes --huh-- from my investigation, to
6 say --huh-- shocking things.
7 Q. Well, that just doesn't makes sense, though, does
8 it --
9 A. Huh--
10 Q. -- "the wolf in the sky"?
11 A. Yeah, he -- he -- he will -- he says things that
12 --huh-- are, to him --huh-- means something.
13 Q. So he goes on and says, the ones in the sky are the
14 ones that fly, you know what I mean, the pigs in the world, they
15 can truly say they're pigs, I've been smelling it this whole
16 time, I'm tired of everyone's fucking bullshit, I can smell
17 bullshit and pigshit, you know, I can tell the difference
18 between two different kinds of pigshit, I don't know you can
19 smell your shit, I'm not saying anybody's shit's stinking, but
20 shit's stinking, you know what I mean, y'all hadn't talked about
21 any pigs or anything like that, had you?
22 A. We had not.
23 Q. So you don't respond to any of that, and you say, what
24 exactly happened today after you woke up, and Eddie responds,
25 look, I'm finally getting rest, peace of my mind, you know,
41
1 peace of my mind back that I won't ever get back, that wasn't an
2 answer to what happened after you woke up, was it?
3 A. That's correct.
4 Q. And you asked him, what kind of education do you have,
5 and he responds, just high school, I went to high school, then I
6 went and joined the Marine Corps right out of high school, and
7 he continues, it wasn't the street that I was trying for, it was
8 the streets I was trying to come back and get, you know, the
9 streets have not been straight in Texas forever, you know what I
10 mean, no town square, there's towns that are square and there's
11 towns that are fixed, but there's no real square towns, there
12 can be, there are square towns around America, there can be
13 prairie towns, there was no -- no response by you, correct, I
14 mean, you didn't ask him what the heck are you talking about,
15 straight towns or square towns?
16 A. Did you say prairie towns a minute ago because --huh--
17 he refers to crooked towns, square towns and crooked towns.
18 Q. Okay. But that still -- that wasn't an answer to your
19 question, was it?
20 A. Huh-- It was --huh-- philosophical talk and --huh--
21 he's -- he's still avoiding talking about what we're there to
22 talk about at that point.
42
23 Q. That's your opinion?
24 A. That is my opinion.
25 Q. So what did you do in the Marine Corps, you asked, I
1 worked as a prison guard and I worked on guns, you know, tit for
2 tat, he said -- he continues, who's saying who's right and who's
3 wrong, nobody wants to admit that they're right, nobody wants to
4 admit that they're wrong, I'm the only one that can change it,
5 that's why these are behind my back right now, referring to his
6 handcuffs, is that philosophical --
7 A. He's --
8 Q. -- in your mind?
9 A. He's just not answering the question.
10 Q. Okay. Huh-- Then you talk about how he met Chris, and
11 he says, he was protecting the schools, you know --huh-- he
12 responds, when I finally met the guy I could smell him for what
13 he's worth, I was like -- you didn't ask him what he meant by
14 that, did you?
15 A. Huh-- It sound like -- seemed like he's angry, you
16 know, he's -- he's -- he's angry at that point --huh-- about
17 Chris.
18 Q. When -- When he said, I could smell him for what he's
19 worth, he was referring to Chris Kyle, wasn't he?
43
20 A. Huh-- In this part of the investigation, that's true,
21 and then we've heard --huh-- the same towards Chad.
22 Q. And then he says, he was a Kyle, doesn't remember the
23 other guy's name --huh-- then a little later you ask -- or just
24 a -- a few seconds later you asked, what kind of shooting
25 sports, he responds, well, I imagine they're head -- they're
1 headhunters, you know, trying to hurt everybody down who did
2 them wrong before, get them all or something like that, I'm not
3 trying to hunt down anybody what -- hunt down anybody what I did
4 wrong or you, did you ask him what he meant by the -- calling
5 them "headhunters"?
6 A. I didn't feel I needed to, it appeared to me he's
7 setting himself up for a self-defense.
8 Q. Okay. Huh-- Y'all talk about -- Y'all are both
9 reasonable and normal, and you asked him, what happened out
10 there today, shooting sports, what kind of guns, and he
11 responds, I was being reasonable with these boys, they looked me
12 in the eyes and I looked them in the eyes; is that correct?
13 A. That's what he says.
14 Q. Okay. And then you asked him, what happened to them
15 from you're perspective, correct, you want to know what his
16 perspective of the situation was, didn't you?
44
17 A. Yes.
18 Q. And he respond, well, I can't just keep eating my soul
19 up about this, you know, you can't just keep letting people eat
20 your soul up for free, you know, it's not what it's about, it's
21 about having a soul that you have in you, for yourself, I still
22 got tons of people that are eating on my soul right now, I
23 haven't been able to sleep because I've been waiting for them to
24 come back and get my soul, you know how that feels, that doesn't
25 really make a lot of sense either, does it, Ranger Briley?
1 A. Huh-- He's --huh-- He's talking about --huh-- you
2 know, he's having a -- he's having a rough time, you know --
3 Q. Okay.
4 A. --huh-- things aren't good in his live, and --huh--
5 there's a few other expletives that --huh-- other words that --
6 that you left out --huh-- but he's having a -- he's having a
7 rough time or at least that's what he's conveying to me at that
8 point.
9 Q. Okay. And you -- And you respond by telling him, I'm
10 understanding, and he says, I just wish the world wasn't such a
11 soulless place, you know, sometimes there's no soul for the
12 soup -- or something about sleep anymore -- and writing down
13 books --huh-- that didn't make a whole lot of sense either, did
45
14 it?
15 A. No, sir.
16 Q. And you say, well, tell me what happened out there
17 when -- when you were with Chris and that other guy, and his
18 response -- and that's a pretty straightforward question, isn't
19 it --
20 A. It is.
21 Q. -- tell me what happened?
22 A. Yes.
23 Q. Well, you know, he says, I've --huh-- seen evidently
24 --huh-- something about, the Reds are eating up all the Indians,
25 the Communist Party wants to run rampant in America --huh--
1 talks about common groundwork to do, so we can all get better,
2 there has to be common grounds, then he says, the warlords are
3 not very happy with me, I know that, everybody knows that in
4 town, I could start making things right, I mean, obviously, did
5 you ask him what he meant by "the warlords"?
6 A. I did not.
7 Q. You just said, I -- you saw your sister today, you
8 told her something bad happened, right, what did you tell her,
9 didn't you ask him that?
10 A. I did.
46
11 Q. Okay. His response was, I told her I had to kill men
12 today, I had to kill men today was his response, correct?
13 A. Yes.
14 Q. It wasn't a "want to", it was a "need to", I had to to
15 get out of that situation I was in today, if not, I was going to
16 be the next one out there getting my head shot off -- shot
17 completely off, you know, that was what he told you he told his
18 sister, correct?
19 A. That's correct.
(RR. Vol. XX, pp. 167-174)
The State cannot benefit from the admission of Mr. Rouths’s statement because it
was in violation of Art. 38.22 Tex. Code Crim. Pro. and the Fifth and Fourteenth
Amendments to the United States Constitution. Based on this reason, Appellant’s Motion
to Suppress Statement should have been sustained. The trial court erred in denying
Appellant’s Motion to Suppress Statement therefore, the case should be reversed on that
ground.
47
POINT NUMBER THREE:
IT WAS ABUSE OF DISCRETION FOR THE TRIAL COURT TO OVERRULEAPPELLANT’S MOTION FOR MISTRIAL WHEN THE PROSECUTOR PARADEDA VIAL IN FRONT OF THE JURY THAT WAS NOT ADMITTED INTO EVIDENCE. (RR Vol. XXI, pp. 10-16)
Argument and Authorities:
The Texas Court of Criminal Appeals indicated in its review of Wead v. State, 94
S.W.3d 131, 138 (Tex.App.-Corpus Christi 2002) that:
An appellate court reviewing a trial court’s ruling on a motion for mistrial must utilize
an abuse of discretion standard of review, Ladd v. State, 991 3 S.W.3d 547, 567
(Tex.Crim.App.1999), cert. denied, 529 U.S. 1070 (2000), and must uphold the trial court’s
ruling if that ruling was within the zone of reasonable disagreement, Montgomery v. State,
810 S.W.2d 372, 391 (Tex.Crim.App.1990). In addition, the appellate court must review
the trial court’s ruling in light of the arguments that were before the trial court at the time
it ruled. See Tex. R. App. Proc. 33.1; Dragoo v. State, 96 S.W.3d 308, 313
(Tex.Crim.App.2003) (appellate court reviewing a trial court ruling on a motion to dismiss
must do so in light of the arguments before the trial court at the time it ruled); Weatherred
v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000) (appellate court reviewing a trial court
ruling on the admission of evidence must do so in light of the arguments before the trial
court at the time it ruled). The appellate court may not fault the trial court on the basis of
arguments not presented to the trial court.
MR. ST. JOHN: Thank you, Your Honor. Huh--
10 Judge, it's our position that --huh-- it's a little bit too late
11 in the game to try to cure anything --huh-- Ranger -- the Texas
48
12 Ranger from Dallas County, who testified under oath that he
13 collected these items for -- from my client's house --huh--
14 Eddie Routh's house, this would be Ranger David Armstrong,
15 testified under oath he collected these items found in the tin
16 box, so I will submit to the court he committed a felony in
17 front of this court, committed perjury in front of these twelve
18 folks, and there's no -- nothing you can say to cure his
19 perjured testimony, he testified under oath he collected it,
20 and, matter of fact, the D.A. -- I -- I would suggest the D.A.
21 was in good faith, but the D.A. asked the specif ic question, as
22 he paraded a vial in front of the jury --huh-- quote, unquote,
23 Ranger, is that the vial -- is that the vial -- is that the type
24 of vial into which you stick a syringe, and the Ranger stated,
25 yes, it is, big discussion about all the drug paraphernalia,
1 that leaves an inference with the jury that my client has some
2 type of controlled substance in his home --huh-- there's
3 testimony there could have been marijuana in there, but
4 there's -- there's an inference that it could have been
5 methamphetamine or some other type of controlled substance, so I
6 would suggest to the court that there's no --huh-- anything you
7 can do regarding any -- an instruction to the jury to -- to cure
8 the harm that my client received, based on perjured testimony
49
9 from a Texas Ranger, who, I would suggest, is a certified peace
10 officer of the State of Texas, knows what to do when telling the
11 truth, collected those items, testified he collected those
12 items, he testified everything in the tin box he collected, and
13 then when brought it out he didn't say, in the presence of the
14 jury, I didn't collect these vials, never stated that, never
15 gave that indication at all, had every opportunity to say that,
16 chose not to do that, so I would suggest that there's nothing
17 you can do regarding the instruction to cure the damage to the
18 jury, basically there's already a skunk in the box based on the
19 misrepresentation of a Texas Ranger, therefore --huh-- since we
20 don't believe anything can be cured, and based on perjured
21 testimony, we're going to ask for a mistrial, Your Honor.
22 MR. NASH: Your Honor, briefly, to address the
23 issue of the -- the allegation of perjury, this witness
24 committed no perjury at all, he responded to inartful questions
25 of counsel regarding an exhibit -- a portion of an exhibit and
1 its contents, which was revealed and removed here in open court,
2 there was no misrepresentation about what was seized at the
3 scene, there was no misrepresentation about the contents of the
4 box, he had testified he had seized the box, identified drug
5 paraphernalia in it, and seized it, counsel asked him inartful
50
6 questions regarding that vial, this Ranger did nothing wrong.
7 THE COURT: All right. Having received the
8 argument this morning, outside the presence of the jury, I will
9 first find that the nature of the testimony is curable by an
10 instruction, I will allow the testimony to be presented in front
11 of the jury with regard to --huh-- the vial, the nature of the
12 explanation relating to its erroneous admission and its
13 withdrawal, I think that the items need to be marked and
14 admitted for record purposes only, outside of the exhibit
15 numbers, that's 221 and 223, and I will instruct over counsel's
16 objection the jury to disregard -- once that's been done in
17 front of the jury, to disregard the testimony relating --huh--
18 to the vials and that it not to be considered --huh-- for any
19 purpose. I have read the contents of the Defendant's Exhibit 2,
20 which is admitted for record purposes only, and specifically
21 --huh-- the allegation relating to the commission of perjury,
22 the -- it's a narrative by the Ranger, describing what he's
23 pulling out of the tin can, and then when it gets to a relevant
24 part, there is a vial of some type of liquid, which I don't know
25 what that is, pause, that was also found in the tin can as well,
1 at this point I don't know whether he's describing that he found
2 it at the crime scene in the tin can, or he found it in the tin
51
3 can as he was removing exhibits during the course of the trial,
4 so I'll not consider any perjured testimony at -- at this time,
5 in any event, I don't think it's material --huh-- to the
6 proceedings. In that regard, I think counsel wishes to make an
7 additional objection, I'm overruling --huh-- the objection with
8 regard to the limiting instruction, I will provide it, I think
9 you can certainly cure what has been put in front of the jury,
10 especially coupled with testimony backing back out of that
11 scenario. Any further motion?
12 MR. ST. JOHN: Well, may I -- Now, let me make
13 sure I understand the court's ruling clearly, so you're not
14 telling the court that, during closing argument, we can't
15 address the issue about the Ranger misrepresenting something to
16 the jury, can you?
17 THE COURT: I'm -- I'm allowing both sides to
18 argue that for what can reasonably be inferred therefrom.
19 MR. ST. JOHN: Thank you, Your Honor.
20 THE COURT: Uh-huh.
21 MR. NASH: Just for clarification, Your Honor,
22 may I address the court in the presence of the jury concerning
23 the -- what we anticipate doing with this exhibit?
24 THE COURT: You may.
25 MR. NASH: Thank you.
52
1 MR. ST. JOHN: And also I still request the court
2 to give a specific instruction after he addresses the jury
3 regarding those issues, Your Honor.
4 THE COURT: I will draft a specific instruction,
5 and, in fact, I'm going to tell them to disregard the existence
6 of the vials and the testimony related thereto with regard to
7 the syringe, but I am not going to mention anything about this
8 testimony regarding how or when it was found or what condition.
9 MR. ST. JOHN: Yes, Your Honor.
10 THE COURT: That's a dangerous position for this
11 court to be, I think.
12 MR. ST. JOHN: Thank you, Your Honor.
13 MR. NASH: Yes, sir.
14 THE COURT: All right. Anything further by
15 either side?
16 MR. NASH: No, Your Honor.
17 MR. ST. JOHN: No, Judge.
18 THE COURT: Okay. Bring the jury in.
19 (Jury enters at 9:20 a.m.)
20 THE COURT: All right. You can be seated in the
21 courtroom.
22 (Pause)
23 THE COURT: Record will reflect the jury's in the
53
24 jury box this morning, we got a little late start. Huh-- But,
25 in any event, state's counsel is present at counsel table, as
1 well as the defendant and defense counsel. Mr. Nash, you may
2 proceed.
3 MR. NASH: Your Honor, before I -- we call our
4 first witness may I address the court?
5 THE COURT: You may.
6 MR. NASH: Your Honor, I need to bring something
7 to the court's attention, which we have done informally --huh--
8 yesterday, and -- and as well as counsel, on Friday, testimony
9 was presented through Texas Ranger David Armstrong, concerning
10 --huh-- certain exhibits which were identified through the
11 search of the defendant's home, on February the 2nd, 2013,
12 specifically we're dealing with State's Exhibit 221 --huh--
13 which was admitted and is identified as a -- a bong or hookah
14 pipe, which was in the -- and the contents of a metal box, and
15 State's Exhibit 223, which was a metal tin box --huh-- in which
16 was contained drug paraphernalia and other items, over the
17 weekend it came to the state's attention that a certain glass
18 vial of clear liquid, with a metal top and a rubber insert, was
19 -- was placed in those items through the testing process at the
20 DPS Crime Lab in Garland, that item -- those glass vials, which
54
21 are in each of those two exhibits, were not present when the
22 items were seized from the home of the defendant, as officers of
23 the court, it is our duty to notify the court and state for the
24 record that we stipulate and represent to the court that those
25 glass vials were not present at the home of the defendant on
1 February the 2nd, 2013, and that those glass vials should not be
2 attributed to the possession of the defendant, those glass vials
3 were produced and inserted into the exhibit as part of the
4 testing process, that was not known to the state at the time the
5 exhibits were presented, and we will be asking the court,
6 through testimony of the -- the --huh-- DPS Crime Lab Chemist,
7 Ms. Jennifer Rumppe, here in a moment we'll be asking her to
8 identify the glass vials, explain how they were produced, and at
9 that time we'll be asking the court to remove those glass vials
10 from each of State's Exhibit 221 and 223. In addition, Your
11 Honor, we'll be asking the court to instruct the jury to
12 disregard any testimony which was offered concerning those glass
13 vials, specifically any reference to them as having been
14 contained in the box of -- boxes of drug paraphernalia found in
15 the defendant's home, and specifically for State's Exhibit 223,
16 the glass vial that was removed from that box, any reference to
17 the susceptibility of the insertion of a syringe into that glass
55
18 vial. We represent to the court at this time, in all fairness
19 to the defendant, that those glass vials did not belong to the
20 defendant.
21 MR. ST. JOHN: Huh-- Your Honor, based on that
22 representation by the State of Texas, we move for a mistrial.
23 THE COURT: Overruled. Call your witness.
(RR. Vol. XXI, pp. 10-16)
The instruction by the Court to the jury did not cure the harm to the Appellant
created by the Prosecutor’s comment.
56
SUMMARY OF ARGUMENT
The jury returned an improper verdict because the Appellant did not know his
conduct was wrong.
The Trial Court erred by overruling Appellant’s Motion to Suppress Statement taken
by Texas Ranger Danny Briley in violation of Tex. Code Crim. P. Art. 38.22 V.A.T.S.
It was abuse of discretion for the Trial Court to overrule Appellant’s Motion for
Mistrial when the Prosecutor paraded a vial in front of the jury that was not entered into
evidence.
57
CONCLUSION AND PRAYER
Appellant has presented three independent points of error, any of which, if
sustained, would warrant reversal of the case. Appellant therefore prays that his conviction
be overturned with instructions that the trial court acquit Appellant of all charges against
him. Alternatively, Appellant requests reversal of the conviction against him and remand
to the trial court for a new trial. Finally, Appellant requests further relief either in law or in
equity to which he is justly entitled.
Respectfully Submitted,
/S/ J. Warren St. JohnJ. WARREN ST. JOHNState Bar No. 189863002020 Burnett Plaza801 Cherry Street, Unit No. 5Fort Worth, Texas 76102-6810Telephone: (817) 336-1436Fax:(817) [email protected]
ATTORNEY FOR APPELLANT
58
CERTIFICATE OF SERVICE
A copy of this brief has been delivered to the Honorable Alan Nash, Erath County
District Attorney, P.O. Box 30, Stephenville, Texas 76401 and mailed to Appellant, EDDIE
RAY ROUTH, on this 11th day of December, 2015.
/S/ J. Warren St. John
59
CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)
Certificate of Compliance with Type-Volume Limitation
This brief contains 13,412 words, in compliance with TEX.R.APP.P 9.4(i)