Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/3/2015 3:41:47 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00166-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 12/3/2015 3:41:47 PM CHRISTOPHER PRINE CLERK No. 01-15-00166-CR IN THE COURT OF APPEALS FIRST DISTRICT HOUSTON, TEXAS NIARE LYTE, Appellant Vs.
THE STATE OF TEXAS, Appellee REPLY BRIEF FOR THE APPELLANT D. Craig Hughes
TBN: 10211025
7322 Southwest Freeway, Suite 1100
Houston, Texas 77074
Phone: (713) 535-0683
Fax: (713) 981-3805
Email: dcraighughes@msn.com
J. Kyle Verret
TBN: 24042932
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: (281)764-7071
Phone: (281)764-7071
Email: kyle@verretlaw.com
FILED ON THIS DECEMBER 3, 2015 ATTORNEYS FOR APPELLANT ORAL ARGUMENT REQUESTED
No. 01-15-00166-CR IN THE COURT OF APPEALS FIRST DISTRICT HOUSTON, TEXAS NIARE LYTE, Appellant Vs.
THE STATE OF TEXAS, Appellee REPLY BRIEF FOR THE APPELLANT TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Niare Lyte, the Defendant in Cause No. 69744, in the 23rd Judicial District Court
of Brazoria County, Texas, respectfully submits this brief, and would respectfully
show the Court the following:
TABLE OF CONTENTS Parties to the Case………………………………………………………..………… 4
List of Authorities…………………………………………………………………. 6
Appellant’s Reply to the Appellee’s Brief on Appellant’s Second Point of Error… 7
Conclusion and Prayer……………….……………………………………………13
Certificate of Service……………………………………………………………...14
Certificate of Word Count…………………………………………………………14
PARTIES TO THE CASE APPELLANT: NIARE LYTE
Attorneys for Appellant at Trial:
Name: Jimmy Phillips
SBOT: #15953000
Address: P.O. Box 29
Angleton, Texas 77516-0029 Phone: (979) 849-8511
Name: Shannon Tigner SBOT: #00794740
Address: 221 N. Velasco St.
Angleton, Texas 77515 Phone: (979) 848-0500
Attorneys for Appellant on Appeal:
Name: D. Craig Hughes SBOT: #10211025
Address: 7322 Southwest Freeway, Suite 1100 Houston, Texas 77074 Phone: (713) 535-0683
Fax: (713) 981-3805
Email: dcraighughes@msn.com Name: J. Kyle Verret
SBOT: #24042932
Address: 11200 Broadway, Suite 2743 Pearland, Texas 77584 Phone: (281) 764-7071
Fax: (281) 764-7071
Email: kyle@verretlaw.com *5 APPELLEE: THE STATE OF TEXAS
Attorneys for the State at Trial:
Name: Kurt Sistrunk
SBOT: #18444950
Name: Clay Caldwell
SBOT: #24045599 Address: Brazoria County District Attorney’s Office 111 E. Locust Street, Suite 408A Angleton, Texas 77515 Phone: (979) 864-1230
Attorneys for the State on Appeal:
Name: Jeri Yenne
SBOT: #04240950
Name: Trey Picard
SBOT: # 24027742
Address: Brazoria County District Attorney’s Office 111 E. Locust Street Angleton, Texas 77515 Phone: (979) 864-1230
Email: treyp @brazoria-county.com *6 LIST OF AUTHORITIES Constitutional Provisions
U.S. CONST. AMEND. V……………………….………………..…………...11,12
TEXAS CONST. ART. I, § 10……………………………………………………1 2
Statutes
Tex. Code Crim. Proc. Ann. Art. 1.15 (LexisAdvance current through 2013 3d
C.S)………………………………………………………………………………..10
Rules
Tex. R. App. Proc. 44.2(a).
Appellate Court Decisions
Angel v. State , 627 S.W.2d 424, 426 (Tex. Crim. App. 1982)……………………. 11
Birdsong v. State , 82 S.W.3d 538, 541 (Tex. App. Austin 2002, no pet.)………… 11
Bustamante v. State , 48 S.W. 3d 761, 765 (Tex. Crim. App. 2001)………….……. 8
Carrasco v. State , 154 S.W.3d 127 (Tex. Crim. App. 2005)……………………... 10
Gamboa v. State , 296 S.W.3d 574, 584 (Tex. Crim. App. 2009)………………... 11
Lewis v. State , 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)………………………….. 1 1 .
O'Conner v. State , 401 S.W.2d 237, 238 (Tex. Crim. App. 1966)………………... 10
Tamez v. State , 11 S.W.3d 198, 202-203 (Tex. Crim. App. 2000)………………... 10
United States v. Bohuchot , 625 F.3d 892, 901 (5th Cir. 2010)…………………. 7,12
Appellant’s First Point of Error Appellant’s original brief adequately address point of error one and provides no further briefing on that point in response to Appellee’s brief.
Appellant’s Reply to the Appellee’s Brief on Appellant’s Second Point of Error
Appellee contends that it is not violative of a defendant’s constitutional rights against self-incrimination when a prosecutor, in open court and in the
presence of the jury, requests a stipulation that the person on trial, and convicted of
the crime, has committed the crime.
At issue in Appellant’s Second Point of Error is one statement by the prosecutor: "Judge, We'll stipulate that all these people will come in and say she's
very motherly and a good person and never would have seen this coming if they'll
stipulate that she did it." (12 R.R. at 132). The test for whether a prosecutor’s
comment on the defendant’s silence is constitutionally impermissible is “(1)
whether the prosecutor's manifest intent was to comment on the defendant's silence
or (2) whether the character of the remark was such that the jury would naturally
and necessarily construe it as a comment on the defendant's silence.” United States
v. Bohuchot , 625 F.3d 892, 901 (5th Cir. 2010). If there is “some other, equally
plausible explanation for the remark”, the reviewing court should find that the
prosecutor’s intent is not manifest. Id .
This Court should consider the comment from “the jury’s standpoint.” Bustamante v. State , 48 S.W. 3d 761, 765 (Tex. Crim. App. 2001). In conducting
its analyses, this Court should analyze the context in which the statement was
made. Bustamante, 48 S.W.3d at 765.
The prosecutor’s explanation of the comment, made both at trial and on appeal, was that it was a request that witnesses “stipulate that they were aware of
the jury’s verdict that the jury found her guilty and that she, in fact, did it.” (12
R.R. at 137; Appellee’s Brief at 15). Viewing the comment in the context in which
it was made, from the standpoint of the jury, the prosecutor’s offered explanation
for the comment is not plausible.
The prosecutor’s explanation that he was asking for the defense’s punishment witnesses to “stipulate that they were aware of the jury’s verdict… and
that she, in fact, did it” does not comport with the context surrounding the
statement in the record. The prosecutor did not request that any specific defense
witness stipulate that Appellant murdered Jasmine Miller (hereinafter “Miller”).
The prosecutor made his request for a stipulation between the testimonies of two
witnesses. (12 R.R. at 132). At the time the request for a stipulation was made,
there was not a witness testifying to stipulate that the Appellant “did it.” (12 R.R.
at 132).
The attorneys for the State did ask the defense’s witnesses on cross- *9 examination whether they knew that the jury had convicted Appellant and whether
they accepted the verdict. (12 R.R. at 64, 83-84, 96, 125). The question of
whether the witnesses agreed with the verdict was answered in various ways from
“I don’t agree too much with it”, to “That’s the verdict. Sure.” (12 R.R. at 125, 96).
The prosecution asked witnesses if they believed Appellant committed murder. (12
R.R. at 127). But, the prosecutor never asked any witness to admit that Appellant
committed murder or to stipulate to that fact. It would not have made sense for the
State to ask the witnesses for such a stipulation because none of the punishment
witnesses had personal knowledge of the matter. Not one of the defense witnesses
testified to being present at the Saint Andrews Apartments to witness the
interaction between Appellant and Miller on the day of Miller’s death. Other than
Appellant’s father, none of the defense witnesses testified that Appellant made
inculpatory statements regarding the murder. Without personal knowledge, none
of the defense witnesses would be able to competently stipulate that Appellant
murdered Jasmine Miller. The prosecutor’s request for a stipulation could not have
been directed at the witnesses, as none of the witnesses have sufficient knowledge
of the alleged murder to stipulate that Appellant was guilty.
The prosecutor’s choice of words is telling of what he meant when he requested the stipulation of Appellant’s guilt. He offered a reciprocal stipulation:
the State would agree to the mitigating testimony being offered if “they” would
stipulate to guilt. (12 R.R. at 132). The use of the word “stipulate” highlights the
direction of the prosecutor’s comment at the Appellant and her counsel, not to the
witnesses. The law allows for parties to enter into stipulations regarding evidence,
but makes no provision for a witness to stipulate to facts. A defendant in a criminal
case may enter into a variety of stipulations and courts should construe such
stipulations “reasonably and liberally with a view of effectuating the parties’
intentions.” O'Conner v. State , 401 S.W.2d 237, 238 (Tex. Crim. App. 1966). For
example, a criminal defendant may stipulate to evidence supporting a plea [1] , to the
admission of jurisdictional priors [2] , to facts or the admission of evidence at trial [3] .
Nothing in the law provides for a non-party witness to stipulate to a fact. Parties
enter into stipulations, not witnesses.
In their brief, Appellee failed to address the trial judge’s comment that he believed the statement, and the prosecutor’s use of the word “they”, was directed at
the Appellant and her counsel. The trial judge stated “My interpretation of ‘they’
would be the Defense counsel and the Defendant.” (12 R.R. at 135-136). The trial
judge, being present in the courtroom, has a perspective that written words of the
record are unable to deliver. The trial judge was present to witness the tone of the
*11 statement in question. This Court should give defer to the factual determination of
the trial court, as the trial judge is better suited to determine how the statement was
delivered and what effect it could have had on the jury. See Gamboa v. State , 296
S.W.3d 574, 584 (Tex. Crim. App. 2009)( “ An appellate court should defer to the
trial court's findings of facts regarding the credibility and demeanor of the
witnesses); Lewis v. State , 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)(a reviewing
court should defer to trial court’s determination of witness credibility).
The prosecutor’s statement in this matter is best analogized to the State calling a criminal defendant to testify at trial, which is clearly a violation of the
Fifth Amendment. Birdsong v. State , 82 S.W.3d 538, 541 (Tex. App. Austin 2002,
no pet.) While not as egregious as calling the defendant as a witness, the
prosecutor’s comment came close. It was a direct request for a stipulation of guilt,
a stipulation that can come only from the Appellant. See Angel v. State , 627
S.W.2d 424, 426 (Tex. Crim. App. 1982).
The prosecutor’s comment was not a request for a factual stipulation directed at witnesses. It was not a serious request for a stipulation from the
Appellant. It was a comment made to contrast the mitigating evidence being
presented by the defense against the absence of Appellant’s testimony. It pointed
to the absence of an admission of guilt, something only the Appellant could
provide. The prosecutor’s stated explanation, made after the Appellant’s objection,
was not plausible. From a plain reading of the record, it is a request made in front
of the jury that the defendant in this criminal trial stipulate to her guilt. Supportive
of Appellant’s position that the statement was directed at Appellant was the trial
court’s statement that he believed “they” referred to Appellant and her counsel.
(12 R.R. at 135-136). The statement met both tests under Bohuchot . It was
clearly “the prosecutor's manifest intent was to comment on the defendant's
silence” and “the character of the remark was such that the jury would naturally
and necessarily construe it as a comment on the defendant's silence.” Bohuchot ,
625 F.3d at 901. The statement was clearly violative of the Fifth Amendment to
the United States Constitution and Article I, § 10 of the Texas Constitution.
II. The Error Was Not Harmless
Appellee claims that the statement was harmless and that any possible harm was cured by the trial court’s instruction. There is no instruction that would
have removed the sting of the prosecution’s request for Appellant to admit to
committing the offense, made in front of the jury, and done to contrast Appellant’s
mitigating evidence against her silence.
As the error is of a constitutional nature, reversal is required unless this Court finds that it was harmless. Tex. R. App. Proc. 44.2(a). The prosecutor’s
statement was not harmless and not curable by an instruction. Even if the
statement could have been cured by an instruction, the instruction given by the trial
court in this case was insufficient to remedy the harm.
CONCLUSION AND PRAYER Appellant prays that this Court find that the trial court abused its discretion by overruling her objections to the admission of evidence relating to Appellant’s
statements to the police that she had been accused of threating to kill Miller.
Appellant prays that this Court reverse and remand this cause for a new trial.
In the alternative, Appellant prays that this Court find that the prosecutor’s request for a stipulation that Appellant was guilty of the charged offense, made in
front of the jury during punishment, violated Appellant’s constitutional rights
against self-incrimination. Appellant prays that this Court find that Appellant was
harmed by the prosecutor’s request. Appellant prays that this Court reverse
Appellant’s sentence and remand this matter to the trial court for a new trial on
punishment.
Respectfully submitted,
/s/ D. Craig Hughes
D. Craig Hughes
SBOT: #10211025
7322 Southwest Freeway, Suite 1100
Houston, Texas 77074
Phone: (713) 535-0683
Fax: (713) 981-3805
Email: dcraighughes@msn.com
/s/ Joseph Kyle Verret
Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
SBOT: #240429432
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: (281)764-7071
Fax: (281)764-7071
Email: kyle@verretlaw.com
CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Brief for Appellant was served on the Counsel for the Appellee, Trey Picard , at the Criminal District
Attorney’s Office of Brazoria County, Texas, by service through electronic
filing on this 3rd day of December, 2015.
/s/Joseph Kyle Verret
Joseph Kyle Verret
SBOT: #2402932
CERTIFICATE OF WORD COUNT I do hereby certify that the total word count for this document is 1,617, excluding those parts specifically exclud ed in Texas Rule of Appellate Procedure
9.4(i)(1), which is less than 7,500 words allowed per Texas Rule of Appellate
Procedure 9.4.
/s/Joseph Kyle Verret
Joseph Kyle Verret
SBOT: #24042932
[1] Tex. Code Crim. Proc. Ann. Art. 1.15 (LexisAdvance current through 2013 3d C.S).
[2] Tamez v. State , 11 S.W.3d 198, 202-203 (Tex. Crim. App. 2000).
[3] Carrasco v. State, 154 S.W.3d 127 (Tex. Crim. App. 2005)