ACCEPTED 07-14-00412-cr SEVENTH COURT OF APPEALS AMARILLO, TEXAS 5/11/2015 6:05:07 PM Vivian Long, Clerk
NO. 07-14-00412-CR IN THE COURT OF APPEALS FOR FILED IN 7th COURT OF APPEALS THE SEVENTH SUPREME JUDICIAL AMARILLO, TEXAS 5/11/2015 6:05:07 PM DISTRICT OF TEXAS VIVIAN LONG CLERK AT AMARILLO, TEXAS ******************** JEFFERY SEAN NOBLETT APPELLANT, v. THE STATE OF TEXAS APPELLEE. ********************
APPEAL FROM CAUSE NUMBER 67,623-D FROM THE 320th JUDICIAL DISTRICT COURT OF POTTER COUNTY, THE HONORABLE DON R. EMERSON PRESIDING ******************** BRIEF FOR THE APPELLANT ******************** THE WARNER LAW FIRM
101 S.E. 11th, Ste. 301 Amarillo, Texas 79101 Tele: 806.372.2595 Fax: 866.397.9054 e-mail: mike@thewarnerlawfirm.com e-mail: brent@thewarnerlawfirm.com
Michael A. Warner Texas Bar No. 20872700 Brent C. Huckabay Texas Bar No. 24085879
APPELLANT REQUESTS ORAL ARGUMENT IDENTITY OF PARTIES & COUNSEL 1. Appellant
Jeffery Sean Noblett
Trial Counsel: Michael A. Warner (State Bar No. 20872700) 101 Southeast 11th Avenue, Suite 301 Amarillo, Texas 79101 Telephone: (806) 372-2595
Appellate Counsel: Michael A. Warner (State Bar No. 20872700) 101 Southeast 11th Avenue, Suite 301 Amarillo, Texas 79101 Telephone: (806) 372-2595
Brent C. Huckabay (State Bar No. 24085879) 101 Southeast 11th Avenue, Suite 301 Amarillo, Texas 79101 Telephone: (806) 372-2595
2. Appellee:
The State of Texas
Trial Counsel: Roberto Lopez, Jr. (State Bar No. 24074617 ) Potter County Assistant District Attorney 501 South Fillmore, Suite 5-A Amarillo, Texas 79101 Telephone: (806) 379-2535
Appellate Counsel: Kathy Levy (State Bar No. 12266480) Jack Owen (State Bar No. 15369200) Potter County Assistant District Attorneys 501 South Fillmore, Suite 5-A Amarillo, Texas 79101 Telephone: (806) 379-2535
2 TABLE OF CONTENTS Identity of Parties and Counsel……………………………………………………..2
Index of Authorities………………………………………………………………...5
Address to the Court………………………………………………………………...7
Statement of Case…………………………………………………………………...7
Statement Regarding Oral Argument……………………………………………….8
Issues Presented……………………………………………………………………..8
1. Whether the trial court erred in denying Defendant’s Motion for Limine?
2. Whether the trial court erred in denying Defendant’s Objection to allowing the pictures of the murdered victim?
3. Whether the trial court erred in denying Defendant’s Objection to the cumulative nature of the photographs?
4. Whether the trail court erred in denying Defendants Objection to mentioning that the victim was ultimately murdered?
5. Whether the trial court erred in denying Defendant’s Objection to trying the Defendant for Aggravated Kidnapping under the Rule of Parties?
6. Whether the evidence was sufficient to convict the Defendant of Aggravated Kidnapping?
Statement of Facts………………………………………………………………....9
Summary of the Arguments………………………………………………………11
3 Argument for Issue One……………………………………………………………14
Argument for Issue Two…………………………………………………...………17
Argument for Issue Three………………………………………………………….22
Argument for Issue Four………………………………………………...…………24
Argument for Issue Five………………………………………………...…………27
Argument for Issue Six………………………………………………………….…29
Prayer………………………………………………………………………………32
Certificate of Compliance………………………………………………………….33
Certificate of Service…………………………………………………...………….33
4 INDEX OF AUTHORITIES Cases
Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2010)…………………...15,18,22
Earhart v. State, 823 S.W.2d 607 (Tex. Crim. App. 1991)………………………..30
Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004)………………………19,20
Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 941, 113 S.Ct. 2418, 124 L. Ed. 2d 640 (1993)…………………..21
Hinojosa v. State, 433 S.W.3d 742 (Tex.App.-San Antonio 2014, pet. ref’d……….………………………………………….………………...31
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)…………………………30
Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991), cert denied, 505 U.S. 1224, 112 S. Ct. 3042, 120 L. Ed. 2d 910 (1992)………………...21
Malik v. State, 953 S.W. 2d 234 (Tex. Crim. App. 1997)…………………………30
Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010), cert denied 131 S.Ct. 2966, 180 L. Ed. 2d 253 (2011)……………………..15,18,22,25,27
Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010)……………………...14,30
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990)…………………..19
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2001)…………….15,19,23,25,28
Ray v. State, 178 S.W.3d 833 (Tex. Crim. App. 2005)……………....15,18,22,25,28
Rich v. State, 1602 S.W.3d 575 (Tex. Crim. App. 2005)…………….15,18,22,25,27
Scott v. State, 155 S.W.3d 312 (Tex. Crim. App. 2004)…………………………...20
5 State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005)……………………….23
Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000)…………………………….20
Statutory Provisions
Tex. R. App. P. §33.1(a)…………………………………………………………...14
Tex. R. App. P. §38.1……………………………………………………………….7
Tex. R. App. P. §44.2(b)…………………………………………..15,18,20,23,25,28
Texas R. Evid. §401………………………………………………...9,16,19,23,26,28
Texas R. Evid. §402…………………………………………………..16,19,23,26,28
Texas R. Evid. §403……………………………………………..9,16,19,23,24,26,28
Rules
Texas Penal Code Ann. §7.01(b)…………………………………………………...29
Texas Penal Code Ann. §7.02…...……..……………………………8,13,14,16,26,27
Texas Penal Code Ann. §7.02(a)(2)………………………………………………...29
Texas Penal Code Ann. §20.01(2)…………..……………………………………...31
Texas Penal Code Ann. §20.01(1)(a)……..………………………………………...31
Texas Penal Code Ann. §20.04(B)………………………………………………….30
6 NO. 07-14-00412-CR IN THE COURT OF APPEALS FOR
THE SEVENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT AMARILLO, TEXAS ******************** JEFFERY SEAN NOBLETT APPELLANT, v. THE STATE OF TEXAS APPELLEE. ********************
APPEAL FROM CAUSE NUMBER 67,623-D FROM THE 320th JUDICIAL DISTRICT COURT OF POTTER COUNTY, THE HONORABLE DON R. EMERSON PRESIDING
******************** BRIEF FOR THE APPELLANT ********************
To the Honorable Justices of the Court of Appeals:
COMES NOW JEFFERY SEAN NOBLETT, appellant, and submits this
Brief under TEX. R. APP. P. §38.1, requesting a new trial in this cause.
STATEMENT OF THE CASE
The appellant pled not guilty to a charge of Aggravated Kidnapping. The jury
returned a guilty verdict and sentenced Appellant to fifty (50) years’ imprisonment
in the Texas Department of Criminal Justice-Institutional Division, which the trial 7 court imposed. (Clerk’s Record (CR), v. 1, p. 95, 101).
STATEMENT REGARDING ORAL ARGUMENT
Particularly since the majority of the issues are of constitutional dimension the
appellant requests oral argument.
ISSUES PRESENTED FOR REVIEW
1. Whether the trial court’s denial of Appellant’s Motion for Limine and
corresponding pre-trial hearing was a harmful abuse of discretion?
2. Whether the trial court’s denial of Appellant’s Objection to allowing the
pictures of the murdered victim was a harmful abuse of discretion?
3. Whether the trial court’s denial of Appellant’s Objection to the
cumulative nature of the photographs was a harmful abuse of discretion?
4. Whether the trial court’s denial of Appellant’s Objection in mentioning
that the victim was ultimately murdered was an abuse of discretion?
5. Whether the trial court’s denial of Appellant’s Objection to trying the
Defendant for Aggravated Kidnapping under the Texas Penal Code Ann. §7.02 was
a harmful abuse of discretion?
6. Whether the evidence was sufficient to convict the Defendant of
Aggravated Kidnapping?
8 STATEMENT OF FACTS
Before the trial began, Appellant’s Attorney requested a hearing on
Appellant’s Motion in Limine, which was denied. The Motion had been properly
served on the trial court and on the District Attorney; however, the trial court stated
“object during the trial.” During the trial, Officer Hudson, testified that on his way
to the police station on August 13, 2013, he noticed what turned out to be a dead body
in the road off 2nd and Bryan in Amarillo, Texas. (RR, V.3, p. 17-30). The Appellant
objected to the introduction of any pictures of the dead body of the victim under
Texas R. Evid. §403, which was overruled. (RR, V.3, p. 20) The Appellant
continued to object to Officer Hudson detailing where and what type injuries he
noticed on the victim, which were all overruled. (RR, v.3, p.22).
Officer Rifenberg then testified about his review of the crime scene and the
continued examination of the victim. (RR, v.3, p. 31-62) The Appellant objected to
the introduction of additional photos under Texas R. Evid. §401, Texas R. Evid. §403,
and the cumulative nature of the photographs, which were all overruled. (RR, v.3, p.
33-34) Officer Rifendberg continued to testify about the strength of the wire wrapped
around the victim’s legs and arms. (RR, v.3, p. 38-39) The Appellant objected to the
giving of expert testimony by someone other than an expert and was again overruled.
(RR, v.3, p. 39) Officer Rifendberg then testified about a residence on the 700th block
9 of Tennessee in Amarillo, Texas. (RR, v.3, p. 44-61)
Officer Bushey testified about the retrieval of evidence from cell phones during
the investigation. (RR, v.3, p. 61-65)
Brittney Bralley than testified about her involvement with the Appellant and
what she recollects about the time period between the end of July and mid-August
2013. (RR, v.3, p. 65-101)
Officer Rolan testified about the interview of the Appellant and what was
found on the audio recordings recovered from the Appellant’s phone. (RR, v.3, p.
102-145) The appellant objected to the question by the State of “So keeping a
Lookout” as being speculation, which was overruled. (RR, v.3, p. 110) The Appellant
objected to the question of “if somebody were to cut somebody’s balls off, is that
serious bodily injury” as not being relevant, which was overruled. (RR, v.3, p. 111)
The Appellant objected to the question of “what do you think he’s meaning by I’m
going to go” as being speculation, which was overruled. (RR, v.3, p.113) The
Appellant objected to the question of “do you figure out what he means by I’m going
to go” as being for the jury to decide, which was overruled. (RR, v.3, p.114) The
Appellant objected to the question of “do you now realize what he meant when he
said, I’m going to go” as being speculation, which was overruled. (RR, v.3, p.114)
The Appellant objected to the question of “were you able to determine whether he
10 had assisted in any way in the kidnapping of Lance Hooser” as calling for a legal
conclusion and invading the province of the jury, which was overruled. (RR, v.3,
p.115) The Appellant objected to the question of “in what ways did he assist in the
aggravated kidnapping” as calling for a legal conclusion, which was overruled. (RR,
v.3, p.115) The Appellant objected to the question “did he attempt to assist in any
way after the SUV left”, as not relevant since the Appellant is not charged with
attempted anything, which was overruled. (RR, v.3, p.116)
Dr. Parson’s than testified about the results of the autopsy. (RR, v.4, p.4-24)
After the State’s and the Appellant’s closing arguments, deliberations then began.
SUMMARY OF THE ARGUMENT
In Issue One, the Appellant respectfully contends that the trial court’s denial
of Appellant’s Motion for Limine and corresponding pre-trial hearing was a harmful
abuse of discretion. The Appellant’s Motion for Limine sought to restrict the
introduction of the photos of the deceased and the knowledge that the victim
ultimately died from the jury. It is undisputed that Appellant was nowhere around
when the victim was ultimately killed and the Appellant was not a party or privy to
the information that the victim even had a chance of dying. The Appellant was just
in the wrong place at the wrong time and when he realized what was happening he
left and drove in the opposite direction of the events unfolding.
11 In Issues Two and Three, the Appellant respectfully contends that the denial
of Appellant’s objections to the introduction of the photographs of the deceased body
and the autopsy reports and the cumulative nature of the photos were an abuse of
discretion. The photographs in question were more prejudicial then probative and
they were not relevant to the charge Appellant was facing. These photos depict
gunshot wounds that the victim suffered after Appellant left the house where the
victim was last seen alive. The trial court could have allowed only the photos
depicting the red wire, rather than those of the victim’s injuries from the assault by
the other defendants and gunshot wounds. Appellant was never charged with murder,
nor was Appellant given any notice that he would be tried for any offense outside the
“four corners” of the indictment. Thus, any extraneous evidence of a murder
Appellant did not commit was highly inflammatory and prejudicial on its face
causing an unjust result. In addition, photos of the deceased inflamed the jury and
prevented Appellant from receiving a fair trial under both the United States and Texas
Constitutions.
In Issue Four, the Appellant respectfully contends that the denial of the
Appellant’s objections to the introduction of the fact that the victim ultimately died
was an abuse of discretion. The Appellant did not participate in any of the injuries
sustained by the victim and left the scene of the crime while the victim was still
12 present at the house and was still alive. By introducing the fact that the victim
ultimately died was more prejudicial then probative and was used to inflame the jury
against the Appellant who had no part in the victim’s death.
In Issue Five, the Appellant respectfully contends that the denial Appellant’s
objection to being tried under Texas Penal Code Ann. §7.02 was an abuse of
discretion. Under Texas Penal Code Ann. §7.02, a party is eligible to be tried for the
offense committed by another if they aided, helped, participated, encouraged, etc…
in the commission of a crime; however, the Appellant was ultimately tried for a
murder charge, even though he was only charged with Aggravated Kidnapping, thus
the introduction of the facts of the murder were not relevant to the charge the
Appellant was facing.
In Issue Six, the Appellant respectfully challenges the sufficiency of the
evidence for his conviction for Aggravated Kidnapping. The Appellant was charged
with Aggravated Kidnapping which required the State to prove beyond a reasonable
doubt that the Appellant intended to terrorize the victim, intentionally or knowingly
abducting Lance Hooser, while using or threatening to use deadly force and by
moving him from one place to another with the intent to prevent his liberation. The
Appellant never made any comments or participated in any of the terrorizing of the
victim. The Appellant also never threatened to use deadly force against Lance
13 Hooser. The Appellant also did not move Lance Hooser, all the Appellant did was
catch him from being dropped by the other co-defendants. There was no evidence
that the Appellant had any other physical contact other than this. When the Appellant
left the scene and went in the opposite direction, Lance Hooser was still alive and
still at the location where Hooser was last seen alive.
ARGUMENT FOR ISSUE ONE
Was the denial of the Defendant’s Motion in Limine a harmful abuse of discretion?
The Propriety of this Claim
The appellant sought to have their Motion in Limine ruled on during a pre-trial
hearing before the sitting of the jury panel; however, the Judge refused to hear it and
thus informed the Appellant that they would have to object during the trial. Also, the
appellant sought to object to any of the State’s witnesses inferring or alluding to the
fact in this case that the victim was ultimately killed or that he was shot. The
appellant also objected to the use law of parties under Texas. Penal Code Ann. §7.02;
however, the trial court denied to hear the objection and informed the appellant to
object during trial. (RR, v.3, p.15) The particular injections were included in the
Defendant’s Motion in Limine. The specific request and its rejection accordingly
satisfy TEX. R. APP. P. 33.1(a). In addition, there is a claim of insufficiency of the
evidence, for which nothing need be preserved for review. Mayer v. State, 309 14 S.W.2d 552, 556 (Tex.Crim.App. 2010).
Standard of Review
“The trial court’s decision to admit or exclude evidence” is reviewed “under
an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736
(Tex.Crim.App. 2010), cert. denied, 131 S.Ct. 2966, 180 L.Ed.2d 253 (2011). Á trial
court abuses its discretion when its decision lies outside the zone of reasonable
disagreement.” Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). And
everything in the record is included in the analysis, including “the character of the
alleged error, “defensive theories and closing argument”. Rich v. State, 1602 S.W.3d
575, 577-8 (Tex.Crim.App. 2005).
Harm Analysis
A trial court’s erroneous decision on the admission of evidence is generally
not of constitutional dimension. Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App.
2005). As such, to be reversible error must have affected the appellant’s substantial
rights. TEX. R. APP. P. §44.2(b). And substantial rights have been affected where
the reviewing court cannot conclude with “fair assurance that the error did not
influence the jury, or had but a slight effect” – otherwise the error is harmless. Motilla
v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2001).
15 Underlying Law
“Relevant evidence” is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of” the case “more probable
or less probable than it would be without the evidence.” TEX. R. EVID. §401. Also,
all “relevant evidence is admissible” unless made inadmissible by constitutional
provision, statute or other rules “prescribed pursuant to statutory authority. Evidence
which is not relevant is inadmissible.” TEX.R.EVID. §402. Also, the court examines
whether its probative value is outweighed by its inflammatory nature. TEX R. EVID.
§403. Pursuant to Tex. Penal Code Ann. §7.02, a person is criminally responsible
for an offense committed by the conduct of another if acting with intent to promote
or assist the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the person to commit the offense. Mere presence alone will not
constitute one a party to an offense.
Analysis
Here the evidence was not relevant and was more prejudicial than probative.
The mentioning of the fact that the victim ultimately died inflamed the jury and
prevented the appellant from receiving a fair trial. During the trial, Defense counsel
asked Officer Hudson, “The situation you’ve described for us today is basically a
murder charge isn’t it?” Officer Hudson responded with “yes, sir.” (RR, v.3, p. 28).
16 Thus, the failure of the trial court to sustain Appellant’s objection, allowed the jury
to hear about the ultimate death of the victim, which was unfairly prejudicial and was
not relevant to the charge of Aggravated Kidnapping for which Appellant was
charged.
In this case, Appellant was charged with the offense of Aggravated
Kidnapping, but in reality, because of the trial court’s rulings, Appellant was tried for
murder. The trial court’s decision to allow in evidence of victim’s murder (when
Appellant was not within miles of that location), the information and pictures of the
dead body, Appellant was actually tried for a murder instead of the charged offense
of Aggravated Kidnapping. A person cannot be tried under the Rule of Parties unless
they are actually charged with the same offense. Since Appellant was not charged
with murder, the jury should not have seen gruesome photos of the victim’s gunshot
wounds and received evidence of the victim’s untimely death while Appellant was
not within miles of the area where the victim was shot and killed. Appellant’s Motion
in Limine directly addressed these issues, but were dismissed with the trial court
without a hearing and/or ruling on same.
ARGUMENT FOR ISSUE TWO
Whether the trial court’s denial of Appellant’s Objection to allowing the
pictures of the murdered victim was a harmful abuse of discretion?
17 The Propriety of this Claim
This is a claim for abuse of discretion on the part of the trial court. The
Appellant timely objected to the introduction of any and all pictures of Lance Hooser
showing that he had died.
“The trial court’s decision to admit or exclude evidence” is reviewed “under
an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736
(Tex.Crim.App. 2010), cert. denied, 131 S.Ct. 2966, 180 L.Ed.2d 253 (2011). Á trial
court abuses its discretion when its decision lies outside the zone of reasonable
disagreement.” Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). And
everything in the record is included in the analysis, including “the character of the
alleged error, “defensive theories and closing argument”. Rich v. State, 1602 S.W.3d
A trial court’s erroneous decision on the admission of evidence is generally
not of constitutional dimension. Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App.
2005). As such, to be reversible error must have affected the appellant’s substantial
rights. TEX. R. APP. P. §44.2(b). And substantial rights have been affected where
the reviewing court cannot conclude with “fair assurance that the error did not
18 influence the jury, or had but a slight effect” – otherwise the error is harmless. Motilla
Underlying Law
“Relevant evidence” is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of” the case “more probable
or less probable than it would be without the evidence.” TEX. R. EVID. §401. Also,
all “relevant evidence is admissible” unless made inadmissible by constitutional
provision, statute or other rules “prescribed pursuant to statutory authority. Evidence
which is not relevant is inadmissible.” TEX.R.EVID. §402. Also, the court examines
whether its probative value is outweighed by its inflammatory nature. TEX R. EVID.
§403.
Evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, misleading the jury, by
considerations of undue delay, or needless presentation of cumulative evidence. TEX.
R. EVID. §403. A four-prong test is used in reviewing a trial court's evidentiary
ruling under rule §403: (1) the probative value of the evidence; (2) the potential to
impress the jury in some irrational, yet indelible, way; (3) the time needed to develop
the evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144
S.W.3d 487, 489 (Tex. Crim. App. 2004); Montgomery v. State, 810 S.W.2d 372,
19 379-380 (Tex. Crim. App. 1990). In the context of photographs, the Court also
considers the number of photographs, their size, whether they are gruesome, whether
any bodies are clothed or naked, and whether the body has been altered by
autopsy. Erazo v. State, 144 S.W.3d at 489; Wyatt v. State, 23 S.W.3d 18, 29 (Tex.
Crim. App. 2000). Appellate courts are not limited to this list. They also consider the
availability of other means of proof and the circumstances unique to each individual
case. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).
Erroneous admission of evidence is non-constitutional error. Scott v. State,
155 S.W. 3d 312, 314 (Tex. Crim. App. 2004). A non-constitutional error “that does
not affect substantial rights must be disregarded.” TEX.R.APP.P 44.2(b). When an
error had a substantial and injurious effect or influence in determining the jury’s
verdict, a substantial right is affected. Scott at 314. In the present case, the pictures
of the dead body had a substantial and injurious effect on the jury. The Appellant
was ultimately tried and convicted for the murder of Lance Hooser, even though he
was only charged with Aggravated Kidnapping.
In weighing the probative value of a photograph against the danger of unfair
prejudice, the court must consider the inherent tendency that the photograph may
have to encourage the resolution of material issues on an inappropriate emotional
20 basis. Fuller v. State, 829 S.W.2d 191, 209 (Tex.Crim.App. 1992), cert. denied, 508
U.S. 941, 113 S. Ct. 2418, 124 L. Ed. 2d 640 (1993). The court must balance carefully
against that inherent tendency the host of factors affecting probativeness, including
the relative weight of the photographic evidence and the degree to which its
proponent might be disadvantaged without it. Id. In conducting the balancing test,
the court should consider factors such as the gruesomeness of the photographs, their
detail and their size, whether they are black and white or color, whether they are
close-up, and whether a body is clothed. Long v. State, 823 S.W.2d 259 (Tex. Crim.
App. 1991), cert denied, 505 U.S. 1224, 112 S. Ct. 3042, 120 L. Ed. 2d 910 (1992).
Generally, a photograph is admissible if verbal testimony of what it portrays is
relevant to the case. Id. at 271. In the present case, the Appellant was charged with
Aggravated Kidnapping and the evidence shows that the Appellant had left the scene
of the crime and said, “I am going to go.” The Appellant was not a party to anything
that happened after he had left, therefore, pictures of the victim after the victim had
been tossed from the vehicle and had further been shot in the head were not relevant
to the instant case. The only purposed served by admitting these types of pictures
was to inflame the jury and prevent the Appellant from receiving a fair trial. It
worked.
21 ARGUMENT FOR ISSUE THREE
Was the trial court’s denial of Appellant’s Objection to the cumulative nature
of the photographs a harmful abuse of discretion?
This is a claim for abuse of discretion on the part of the trial court. The
Appellant timely objected to the cumulative nature of the photographs being
introduced depicting Lance Hooser’s dead body.
“The trial court’s decision to admit or exclude evidence” is reviewed “under
an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736
(Tex.Crim.App. 2010), cert. denied, 131 S.Ct. 2966, 180 L.Ed.2d 253 (2011). Á trial
court abuses its discretion when its decision lies outside the zone of reasonable
disagreement.” Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). And
everything in the record is included in the analysis, including “the character of the
alleged error, “defensive theories and closing argument.” Rich v. State, 1602 S.W.3d
A trial court’s erroneous decision on the admission of evidence is generally
not of constitutional dimension. Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App.
22 2005). As such, to be reversible error must have affected the appellant’s substantial
rights. TEX. R. APP. P. §44.2(b). And substantial rights have been affected where
the reviewing court cannot conclude with “fair assurance that the error did not
influence the jury, or had but a slight effect” – otherwise the error is harmless. Motilla
“Relevant evidence” is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of” the case “more probable
or less probable than it would be without the evidence.” TEX. R. EVID. §401. Also,
all “relevant evidence is admissible” unless made inadmissible by constitutional
provision, statute or other rules “prescribed pursuant to statutory authority. Evidence
which is not relevant is inadmissible.” TEX.R.EVID. §402. Also, the court examines
whether its probative value is outweighed by its inflammatory nature. TEX R. EVID.
TEX R. EVID. §403 requires analyzing for factors to determine trial court
abuse of discretion. The four factors are (1) the probative value of the evidence; (2)
the potential to impress the jury in some irrational yet indelible way; (3) the time
needed to develop the evidence; and (4) the proponents need for the evidence. State
23 v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005). In the present case, the
probative value of the evidence is lacking, since the Appellant was not charged with
the victim’s murder. The only reason the photographs were published to the jury was
to inflame the jury. The alleged crime happened in August 2013; however, over a
year later the Appellant was only indicted and ultimately charged with Aggravated
Kidnapping since there was no evidence that Appellant participated, aided, or even
knew about the ultimate death of the victim until after it happened. Appellant had
left the scene before the death occurred and this is further evidenced by the fact the
Appellant had headed in the totally opposite direction from where the events took
place. The State needed the evidence of the death and the cumulative photos to show
the jury, because they knew without them they could not reach a guilty verdict for
murder nor the charged Aggravated Kidnapping. Based on the analysis of TEX. R.
EVID. §403, the photographs were more prejudicial then probative and should never
have been shown to the jury.
ARGUMENT FOR ISSUE FOUR
Was the trial court’s denial of Appellant’s Objection to mentioning that the
victim was ultimately murdered?
This is a claim for abuse of discretion on the part of the trial court. The
24 Appellant timely objected to the mentioning of the untimely death of Lance Hooser,
thus setting the Appellant up for a murder trial even though he was only charged with
Aggravated kidnapping.
“The trial court’s decision to admit or exclude evidence” is reviewed “under
an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736
(Tex.Crim.App. 2010), cert. denied, 131 S.Ct. 2966, 180 L.Ed.2d 253 (2011). Á trial
court abuses its discretion when its decision lies outside the zone of reasonable
disagreement.” Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). And
everything in the record is included in the analysis, including “the character of the
alleged error, “defensive theories and closing argument”. Rich v. State, 1602 S.W.3d
A trial court’s erroneous decision on the admission of evidence is generally
not of constitutional dimension. Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App.
2005). As such, to be reversible error must have affected the appellant’s substantial
rights. TEX. R. APP. P. §44.2(b). And substantial rights have been affected where
the reviewing court cannot conclude with “fair assurance that the error did not
influence the jury, or had but a slight effect” – otherwise the error is harmless. Motilla
25 v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2001).
“Relevant evidence” is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of” the case “more probable
or less probable than it would be without the evidence.” TEX. R. EVID. §401. Also,
all “relevant evidence is admissible” unless made inadmissible by constitutional
provision, statute or other rules “prescribed pursuant to statutory authority. Evidence
which is not relevant is inadmissible.” TEX.R.EVID. §402. Also, the court examines
whether its probative value is outweighed by its inflammatory nature. TEX R. EVID.
The Appellant was only charged with Aggravated Kidnapping, he was not
charged with the murder of Lance Hooser. By showing the mentioning to the jury
and basing the entire case on the fact that Lance Hooser ultimately died was an abuse
in discretion by the trial court. The Appellant was not present when Lance Hooser
was ultimately killed nor was he aware that that was even a possibility the victim was
be killed. Appellant did not participate in the assault to Lance Hooser, thus the
pictures of his untimely death were only there to inflame the jury and prejudice
Appellant.
26 ARGUMENT FOR ISSUE FIVE
Was the trial court’s denial of Appellant’s Objection to trying the Defendant
for Aggravated Kidnapping under the Texas Penal Code Ann. §7.02 a harmful abuse
of discretion?
This is a claim for abuse of discretion on the part of the trial court. The
Appellant timely objected to the inclusion of the Rule of Parties under Texas Penal
Code Ann. §7.02 for the charge of Aggravated Kidnapping, since the rest of the
“parties” were being charged with murder, which is exactly what Appellant was tried
for.
“The trial court’s decision to admit or exclude evidence” is reviewed “under
an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736
(Tex.Crim.App. 2010), cert. denied, 131 S.Ct. 2966, 180 L.Ed.2d 253 (2011). Á trial
court abuses its discretion when its decision lies outside the zone of reasonable
disagreement.” Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). And
everything in the record is included in the analysis, including “the character of the
alleged error, “defensive theories and closing argument”. Rich v. State, 1602 S.W.3d
27 Harm Analysis
A trial court’s erroneous decision on the admission of evidence is generally
not of constitutional dimension. Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App.
2005). As such, to be reversible error must have affected the appellant’s substantial
rights. TEX. R. APP. P. 44.2(b). And substantial rights have been affected where
the reviewing court cannot conclude with “fair assurance that the error did not
influence the jury, or had but a slight effect” – otherwise the error is harmless. Motilla
“Relevant evidence” is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of” the case “more probable
or less probable than it would be without the evidence.” TEX. R. EVID. §401. Also,
all “relevant evidence is admissible” unless made inadmissible by constitutional
provision, statute or other rules “prescribed pursuant to statutory authority. Evidence
which is not relevant is inadmissible.” TEX.R.EVID. §402. Also, the court examines
whether its probative value is outweighed by its inflammatory nature. TEX R. EVID.
The law of parties in the Texas Penal Code defines when a person may be held
criminally responsible for the conduct of another. The statue provides that each party
28 to an offense may be charged with the offense. Tex. Penal Code Ann. §7.01(b).
Under Tex. Penal Code Ann. §7.02(a)(2), a person is criminally responsible for an
offense committed by the conduct of another if, acting with intent to promote or assist
the commission of the offense, he solicits, encourages, directs, aids, or attempts to
aid the other person to commit the offense.
In the present case, the Appellant showed up at house to meet friends. The
Appellant did not solicit, encourage, or directed anybody to do anything to the victim.
The Appellant stayed outside the entire time he was there, which was like 15 minutes
if that. Sometime during the event, one of the guys in the house asked if he had any
rope or wire. The Appellant grabbed some speaker wire from his truck and gave it
to his buddy. Again, Appellant never went inside, never participated in the tying up
the victim and was gone before anything further happened to the victim. Appellant
was heading in the opposite direction from where the events ultimately took place at
the time the victim was removed from the premises.
ARGUMENT FOR ISSUE SIX
Whether the evidence was sufficient to convict the Defendant of Aggravated
Kidnapping?
29 The Propriety of the Claim
This is a claim of insufficiency of the evidence, for which nothing need by
preserved for error. Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.2010). The
issue was accordingly preserved for error
When reviewing the legal sufficiency of the evidence, all the evidence in the
light most favorable to the verdict to determine whether 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, 99 S. Ct. 2781 (1979). The standard is the same for both
direct and circumstantial evidence cases. Earhart v. State, 823 S.W.2d 607, 616 (Tex.
Crim. App. 1991). We measure the legal sufficiency of the evidence by the elements
of the offense as defined by a "hypothetically correct jury charge" for the case. Malik
v. State, 953 S.W. 2d 234 (Tex. Crim. App. 1997).
A person commits the offense of aggravated kidnapping if he intentionally or
knowingly abducts another person and uses or exhibits a deadly weapon during the
commission of the offense. Tex. Penal Code Ann. §20.04B. For purposes of this
statute, abduct "means to restrain a person with intent to prevent his liberation by:
(A) secreting or holding him in a place where he is not likely to be found; or (B) using
30 or threatening to use deadly force. See id. §20.01(2). Restrain "means to restrict a
person's movements without consent, so as to interfere substantially with the person's
liberty, by moving the person from one place to another or by confining the person.
Restraint is "without consent" if "accomplished by force, intimidation, or deception."
Id. §20.01(1)(A).
During the trial, there is no evidence that the Appellant threatened or even
knew there was a deadly weapon present. He had left the scene before the gun was
pulled out by Ricky Burns, and was heading in the opposite direction. Also, during
the trial there is no evidence that the Defendant participated in any of the violence to
the victim. Appellant stayed outside the entire time. There is no evidence that
Appellant was an active participant in the assault on the victim. The only time, the
Appellant was even around the victim, was when he was brought outside and he
caught the victim as the victim was about to be dropped, thus preventing any more
damage to the victim. Thus, the jury could not find beyond a reasonable doubt that
Appellant abducted the victim, when Appellant left the victim in the same location
the victim was in when Appellant arrived was in the exact same place as when he
arrived. The car was still present at the house, he did not do any of the driving. This
is different from Hinojosa v. State, 433 S.W.3d 742, (Tex.App.-San Antonio 2014,
31 pet. ref’d at 756, where the Appellant was actually driving the vehicle with the victim
in the car. Here the Appellant had already left the scene, when the victim was moved.
CONCLUSION AND PRAYER FOR RELIEF
The trial court abused its discretion by denying Defendant’s Motion in Limine
and thus not allowing Defendant to have a fair trial. The introduction of the objected
to evidence was more prejudicial than probative. The Court should reverse the trial
court’s decision denying the defendant’s Motion in Limine and should grant the
Defendant a new trial. Appellant prays that this Honorable Court reverse the ruling
of the trial court and remand this case back to the trial court for a new trial without
the objected to evidence being allowed to be presented.
Respectfully submitted,
THE WARNER LAW FIRM
/s/ Michael A. Warner MICHAEL A. WARNER State Bar No. 20872700 E-mail: mike@thewarnerlawfirm.com BRENT C. HUCKABAY State Bar No. 24085879 E-mail: brent@thewarnerlawfirm.com
101 S.E. 11th, Suite 301 Amarillo, Texas 79101 Tele: 806.372.2595 Fax: 866.397.9054
ATTORNEYS FOR APPELLANT 32 Certificate of Service
I certify that a true copy of this the Brief of Appellant, Jeffery Sean Noblett
was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on
each party or that party's lead counsel as follows:
STATE OF TEXAS, represented by
Randall Sims, 47th District Attorney’s Office
501 S. Fillmore, Suite 5A Certified mail Delivery service
Amarillo, Texas 79101 _____________ _______________
Tele: 806.379.2325 Fax transfer Personal delivery
Fax: 806.379.2863 #_____X____ _______________
Date of service: May 11, 2015 Signed this 11th day of May, 2015.
/s/ Michael A. Warner MICHAEL A. WARNER
CERTIFICATE OF COMPLIANCE WITH TARP 9.4(i)
I certify that the Appellant’s Brief is in compliance with Texas Appellate
Rule of Procedure 9.4(i). The total word count for the document is 6,353. The
Total page length is 33 pages.
Signed this 11th day of May, 2015
/s/ Michael A. Warner MICHAEL A. WARNER 33