Kaitlyn Lucretia Ritcherson v. State

Opinion

ACCEPTED 03-13-00804-CR 3822347 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/20/2015 10:43:03 AM JEFFREY D. KYLE CLERK No. 03-13-0804 - CR

FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS IN THE THIRD DISTRICT COURT OF APPEALS 1/20/2015 10:43:03 AM AT AUSTIN, TEXAS JEFFREY D. KYLE Clerk

=============================================

KAITLYN RITCHERSON Appellant

v.

THE STATE OF TEXAS, Appellee

============================================= Appeal from Convictions in Cause Numbers D-1-DC -302663 in the 331ST District Court of Travis County, Texas, Hon. Robert Perkins, Visiting Judge Presiding

============================================= BRIEF FOR APPELLANT =============================================

Respectfully submitted,

Law Office of Alexander L. Calhoun State Bar No.: 00787187 4301 W. William Cannon Dr., Ste. B-150, # 260 Austin, TX 78749 Tele: 512/ 420 - 8850 Fax: 512/ 233- 5946 Cell: 512/731-3159 Email: alcalhoun@earthlink.net

Oral Argument is Requested STATEMENT OF ORAL ARGUMENT

Counsel believes oral argument would be beneficial to address or clarify the

issues raised in this case.

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR i TABLE OF CONTENTS

STATEMENT OF ORAL ARGUMENT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

CERTIFICATE OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

POINT OF ERROR NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

POINT OF ERROR NUMBER TWO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

POINT OF ERROR NUMBER THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

POINT OF ERROR NUMBER FOUR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR ii CERTIFICATE OF PARTIES

Pursuant to Rule 38.1(a), Tex.R.App. Pro., Appellant presents the following

persons who are parties to, or have an interest in the final judgment in this cause,

so that the Court may determine whether its members are disqualified or should

recuse themselves:

Ms. Kaitlyn Ritcherson, TDCJ # 01905531 Texas Department of Criminal Justice - Mountain View Unit

Mr. Alexander L. Calhoun, Appellate Atty 4301 W. William Cannon Dr., Ste. B-150, # 260, Austin, TX 78749

Mr. Charles F. Baird, Trial Attorney 2312 Western Trails Blvd., Austin, TX 78745

Ms. Amber Farrelly, Asst. Trial Atty 2312 Western Trails Blvd., Austin, TX 78745

Ms. Rosemary Lehmberg, Dist. Atty Blackwell-Thurman Criminal Justice Complex, 509 W. 11th St, Austin, TX 78701

Mr. Gary Cobb, & Blackwell-Thurman Criminal Ms. Meg McGee, Asst. Dist. Attys Justice Complex, 509 W. 11th St, Austin, TX 78701

Judge Robert Perkins, Visiting Judge 1104 Nueces, # 203, Austin TX 78701

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR iii INDEX OF AUTHORITIES

Cases:

Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1984). . . . . . . . . . . . . . . . . . . . 23

Apolinar v. State, 155 S.W.3d 184 (Tex.Cr.App. 2005).. . . . . . . . . . . . . 31, 49, 50

Arline v. State, 721 S.W.2d 348 (Tex.Cr.App. 1986). . . . . . . . . . . . . . . . . . . . . . . 23

Bagheri v. State, 119 S.W.3d 755 (Tex.Cr.App. 2003). . . . . . . . . . . . . . . . . . . . . 34

Banda v. State, 890 S.W.2d 42 (Tex. Cr.App. 1994). . . . . . . . . . . . . . . . . . . . . . . 17

Barley v. State, 01-12-01002-CR (Tex.App.- Houston [1st Dist.] 10-29-2013) (not published). . . . . . . . . . . 35

Barshaw v. State, 342 S.W.3d 91 (Tex.Cr.App. 2011). . . . . . . . . . . . . . 34, 44, 52

Bell v. State, 693 S.W.2d 434 (Tex.Cr.App.1985).. . . . . . . . . . . . . . . . . . . . . . . . 17

Bignall v. State, 887 S.W.2d 21 (Tex.Cr.App. 1994). . . . . . . . . . . . . . . . . . . . 17, 20

Britain v. State, 412 S.W.3d 518 (Tex.Cr.App. 2013) . . . . . . . . . . . . . . . . . . . . . 17

Brown v. State, 296 S.W.3d 371 (Tex. App.- Beaumont 2009). . . . . . . . . . . . . . . 18

Bounderant v. State, 956 S.W.2d 762 (Tex.App. – Fort Worth 1997). . . . . . . . . . 50

Cavazos v. State, 382 S.W.3d 377 (Tex.Cr.App.2012). . . . . . . . . . . . 17, 18, 19, 22

Chavarriga v. State, 156 S.W.3d 642 (Tex.App. - Tyler 2004). . . . . . . . . . . . . . 18

Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Darby v. State, 145 S.W.3d 714 (Tex. App. -Fort Worth 2004). . . . . . . . . . . . . . 35

Edmondson v. State, 399 S.W.3d 607 (Tex.App. - Eastland 2013). . . . . . . . . . . . 31

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR iv Englund v. State, 946 S.W.2d 64 (Tex.Cr.App. 1997). . . . . . . . . . . . . . . . . . . . . 42

Erazo v. State, 144 S.W.3d 487 (Tex. Cr. App. 2004). . . . . . . . . . . . . . . . . . . . . . 39

Flores v. State, 245 S.W.3d 432 (Tex.Cr.App. 2008).. . . . . . . . . . . . . . . . . . . . . . 17

Garcia v. State, 126 S.W.3d 921 (Tex.Cr. App. 2004).. . . . . . . . . . . . . . . 34, 44, 51

Glover v. State, 102 S.W.3d 754 (Tex.App. - Texarkana 2002). . . . . . . . . . . 50, 51

Hernandez v. State, 819 S.W.2d 806 (Tex.Cr.App. 1991). . . . . . . . . . . . . . . . . . . 35

Hughes v. State, 128 S.W.3d 247 (Tex.App. – Tyler 2003). . . . . . . . . . . . . . . . . 50

Hooper v. State, 214 S.W.3d 9 (Tex.Cr.App. 2007).. . . . . . . . . . . . . . . . . . . . . . . 20

Hughes v. State, 128 S.W.3d 247 (Tex.App. – Tyler 2003). . . . . . . . . . . . . . . . . 50

Hunt v. State, 904 S.W.2d 813 (Tex.App. - Fort Worth 1995). . . . . . . . . . . . . . . 31

Jessop v. State, 368 S.W.3d 653 (Tex.App.-Austin 2012). . . . . . . . . . . . . . . 38, 39

Jurek v. Couch-Jurek, 296 S.W.3d 864 (Tex.App. - El Paso 2009). . . . . . . . . . . 42

King v. State, 953 S.W.2d 266 (Tex.Cr.App. 1997). . . . . . . . . . . . . . . . . . . 33, 44

Lagunas v. State, 187 S.W.3d 503 (Tex.App. - Austin 2005). . . . . . . . . . . . . . . 50

Martinez v. State, 178 S.W.3d 806 (Tex. Cr. App. 2005).. . . . . . . . . . . . . . . . . . . 50

McCarty v. State, 257 S.W.3d 238 (Tex.Cr.App. 2008).. . . . . . . . . . . . . . . . 31, 32

McMahon v. State, 582 S.W.2d 786 (Tex.Cr.App. 1978).. . . . . . . . . . . . . . . . . . . 41

Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App. 1991).. . . . . . . . . . . . . . 28, 39

Montgomery v. State, 198 S.W.3d 67 (Tex.App. - Ft. Worth 2006).. . . . . . . . . . . 23

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR v Moreno v. State, 22 S.W.3d 482 (Tex.Cr.App. 1999). . . . . . . . . . . . . . . . . . . . . . 28

Motilla v. State, 78 S.W.3d 352 (Tex.Cr.App. 2002). . . . . . . . . . . . . . . . . 34, 44, 51

Otting v. State, 8 S.W.3d 681 (Tex.App. - Austin 1999).. . . . . . . . . . . . . 23, 24, 25

Pawlak v. State, 420 S.W.3d 807 (Tex.Cr.App. 2013). . . . . . . . . . . . . . . . . . . . . . 38

People v. Allen, 158 Mich. App. 472, 404 N.W.2d 266 (1987). . . . . . . . . . . 41, 42

People v. Vanhoesen, 3 A.D.3d 787, 771 N.Y.S.2d 730 (N.Y. 3d Dept. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 41

People v. Watts, 165 P.3d 707 (Colo.App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . 41

Perez v. State, 113 S.W.3d 819 (Tex.App. - Austin 2003).. . . . . . . . . . . . . . . . . . 51

Reese v. State, 33 S.W.3d 238 (Tex.Cr.App. 2000). . . . . . . . . . . . . . . . . . . . . . . . 39

Salazar v. State, 38 S.W.3d 141 (Tex.Cr. App. 2001). . . . . . . . . . . . . . . . . . . . . . 50

Sandoval v. State, 409 S.W.3d 259 (Tex.App. - Austin 2013). . . . . . . . . . . . 28, 31

Sanders v. State, 422 S.W.3d 809 (Tex.App.-Ft. Worth 2014). . . . . . . . . . . . . . . 39

Saunders v. State, 913 S.W.2d 564 (Tex.Cr.App. 1995). . . . . . . . . . . . . . . . . . . . 23

Schroeder v. State, 123 S.W.3d 398 (Tex.Cr.App.2003). . . . . . . . . . . . . . . . . . . . 17

Soto v. State, 13-10-013-CR (Tex.App. - Corpus Christi 10-20-2011).. . . . . . . . 35

State v. Bauerly, 520 N.W.2d 760 (Minn.App. 1994). . . . . . . . . . . . . . . . . . . . . . 41

State v. Constantine, 588 A.2d 294 (Me. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . 41

Tollett v. City of Kemah, 285 F.3d 357 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . 28

Thomas v. State, 699 S.W.2d 845 (Tex.Cr.App. 1985). . . . . . . . . . . . . . . . . . . . . 18

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR vi Turpin v. Kassulke, 26 F.3d 1392 (6th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Clymore, 245 F.3d 1195 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . 28

United States v. Treff, 924 F.2d 975 (10th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . 30

Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985).. . . . . . . . . . . . . . . . . . . . . . . . 30

Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2005). . . . . . . . 49

Zuliani v. State, 97 S.W.3d 589 (Tex. Cr. App. 2003). . . . . . . . . . . . . . . . 31, 32, 49

Statutes and Rules

Tex.Code Crim.Pro. Art. 37.09. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Tex.Code Crim.Pro. Art. 38.22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Tex. Penal Code § 19.02 (b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 16, 17

Tex. Penal Code § 19.02 (b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 16, 17

Tex.R.App.Pro. Rule 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 44

Tex.R.Evid. Rue 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 38, 44

Tex.R.Evid. Rule 613(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Tex.R.Evid Rule 801(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Tex.R.Evid. Rule 803(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 29, 49

Miscellaneous Authorities

Annot., Admissibility of Evidence Concerning Words Spoken While Declarant Was Asleep or Unconscious, 14 A.L.R.4th 802 (1982 & Supp. 1989). . . . . . . . . . . . . . . . . . . . . 30

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR vii Texas Rules of Evidence Handbook, 988 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . 42

6 Wigmore, Evidence in Trials at Common Law § 1747 (James H. Chadbourn rev. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . 50

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR viii TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

COMES NOW, before the Court, Appellant, by and through his attorney of

record, and pursuant to Rule 38.1, Tex.R.App.Pro., files this brief on appeal, and

would show the Court as follows:

STATEMENT OF THE CASE

Appellant was charged by indictment with murder, in violation of Tex. Penal

Code § 19.02 (b)(1) & (2). [Clerk’s Record (“C.R.”): 20 - 21]. Her first trial ended

in a mistrial at the guilt-innocence phase afer the jury deadlocked. [19 Reporter’s

Record (“R.R.”): 5]. On re-trial, the jury convicted her of the offense as charged in

the indictment. [C.R.: 295, 306, 307 - 308]. Following the punishment phase, the

jury assessed a sentence of 25 years incarceration in the Texas Department of

Criminal Justice – Institutional Division. [C.R.: 305, 306, 307 - 308]. Appellant

filed a motion and amended motion for new trial, which the trial court denied

following several evidentiary hearings. [C.R.: 313 - 319, 347]. Appellant timely

filed a notice of appeal. [C.R.: 320, 355].

ISSUES PRESENTED

GROUND FOR RELIEF NUMBER ONE:

THE TRIAL COURT PREJUDICIALLY ERRED BY DENYING APPELLANT’S SPECIAL REQUESTED INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF MANSLAUGHTER.

GROUND FOR RELIEF NUMBER TWO:

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 1 THE TRIAL COURT ERRED BY EXCLUDING A VIDEO RECORDING OF APPELLANT’S EMOTIONAL OUTBURST UPON LEARNING THAT THE DECEDENT WOULD DIE FROM HER INJURIES.

GROUND FOR RELIEF NUMBER THREE:

THE TRIAL COURT ERRED IN REFUSING APPELLANT TO ADMIT DEFENSE EXHIBIT 132 AT THE PUNISHMENT PHASE OF TRIAL IN ORDER TO DEMONSTRATE APPELLANT’S REMORSE.

GROUND FOR RELIEF NUMBER FOUR:

THE TRIAL COURT ERRED IN ADMITTING HEARSAY STATEMENTS BY PATRICIA AND DONALD RITCHERSON UNDER THE EXCITED UTTERANCE EXCEPTION WITHOUT A SUFFICIENT PREDICATE SHOWING THAT THE WITNESS WAS UNABLE TO REFLECT UPON HIS STATEMENT AT THE TIME IT WAS MADE

STATEMENT OF FACTS

The instant case arouse from a confrontation outside of Republic Live, a night

club in the downtown entertainment district of Austin, shortly after closing hours on

December 4, 2011. The decedent, Fatima Barrie, received a stab wound to the chest

and was transported to Brackenridge Hospital but ultimately died of her injuries on

December 21, 2011. [25 R.R.: 216]. Appellant received a self-inflicted stab

wound to her thigh and was taken by her friends to Seton South West Hospital where

she was located by the police, interrogated, and subsequently arrested.

The accounts of the confrontation between Appellant and the decedent, Fatima

Barrie, varied widely at trial.

Kelvin Jones went to a club, Republic Live along with some friends on K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 2 December 3 - 4, 2009. [22 R.R.: 11 - 14]. His fiancee, Jamie Hopkins, and her

classmate Fatima Barrie also went to Republic Live, but separately from him. [22

R.R.: 11, 14, 15]. A verbal argument between his friend, Ronald Pace, and another

individual, Chris Carson, occurred inside the club and continued outside after the

club closed and emptied outside onto the sidewalk. [22 R.R.:14, 16 - 24, 57, 59].

Jones overheard a girl make a provocative comment and he decided to get the girls

and leave before the situation escalated. [22 R.R.: 26, 68 - 69]. Jones picked up

Jamie Hopkins and turned her around so they could make their way from the

disputants. He did the same for Barrie who had been standing next to Hopkins. [22

R.R.: 26, 28, 29, 71 - 72]. Barrie had been swinging at a girl in a red dress when

Hopkins grabbed and moved her. [22 R.R. 92 - 93, 95, 114]. The three started

walking down the street, but after five or ten steps, Barrie collapsed to the sidewalk

and Jones noticed she was bleeding. [22 R.R.: 25 - 29, 30 - 31, 71 - 72]. Jones had

not seen when Barrie was stabbed. [22 R.R.: 18, 31]. Nor had he seen the girl who

Barrie had attacked holding a knife during the confrontation. [22 R.R.: 95].

Jaime Hopkins, Barrie’s friend testified that she and Barrie were leaving an

end-of-the-semester celebration at Republic Live in the early morning on December

4 when they encountered a group of individuals arguing outside the club. [21 R.R.:

164 - 176]. Two girls approached Hopkins and Barrie; Hopkins felt threatened and

started to walk away. [21 R.R.: 178 - 184]. As they walked away through the

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 3 crowd, someone pulled Hopkins’ hair. [21 R.R.: 186 - 189 (195)]. Her fiancee,

Kelvin Jones, who had attended the club with his own friends, appeared and moved

her to the side to avoid the crowd. [21 R.R.: 189 - 192]. As Jones moved her aside,

she observed Appellant behind her waiving a little knife in the air. [21 R.R.: 192 -

193, 219 - 220, 261]. Kelvin also picked up Barrie, moved her over, and the three

started walking away through the crowd. [21 R.R.: 194]. They walked a few steps

and Barrie stumbled and collapsed to the sidewalk. [21 R.R.: 196]. The

paramedics arrived and tended to Barrie, transporting her to the hospital. [21 R.R.:

197]. Hopkins did not see Barrie get stabbed. She insisted that neither she nor

Barrie had been aggressive toward the girls who had approached them. [21 R.R.:

204, 211, 230, 255, 262]. She did not see Barrie swing at or strike Appellant. [21

R.R.: 210, 231].

Oghenebrohien “Shermay” Uwahlogho, a photographer working that night

at Republic Live, testified that after the club had closed, she noticed two groups of

people outside arguing back and forth. [22 R.R.: 211, 216, 217 - 218]. At some

point during the argument, she observed Appellant in the crowd, with a knife raised,

but lower it after Ryan Moore restrained her and calmed her down. Appellant then

disappeared from her sight. [22 R.R.: 218 - 220, 229, 239, 263, 266 - 267]. She

then saw Appellant move around Moore and disappear from her sight [22 R.R.:

220, 259. She did not see a physical confrontation with Barrie nor did she witness

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 4 Appellant stab Barrie. [22 R.R.: 222, 242, 264]. While walking to her car, however,

she saw Barrie, bloodied, and lying on the sidewalk. [22 R.R.: 218 - 220, 242, 267].

Stefne Henderson testified in Appellant’s first trial, but was unavailable for

the re-trial; her previous testimony was read to the jury. [23 R.R.: 7 - 8].

Henderson and a friend had attended an end-of-semester party at Republic Live and

were waiting after the club closed to board a party bus parked outside in the street.

[23 R.R.: 14, 18]. She noticed that Appellant was among a group of other

individuals, including Chris Carson and Ryan Moore, who were arguing loudly

along with another group of individuals. [23 R.R.: 20 - 25, 73, 75, 80]. Appellant

started arguing with some women with the other group, moving from one woman to

argue with Barrie. [23 R.R.: 85, 86, 89 - 90]. The two moved closer toward each

other. [23 R.R.: 32]. Barrie stopped arguing, turned away, and started to walk off.

[23 R.R.: 44]. As

Barrie walked away, Appellant raised a knife into the air, and stabbed Barrie in the

chest by reaching around or over Barrie’s right shoulder. [23 R.R.: 47 - 48, 52, 94

- 95, 97 - 98, 100, 124 - 125, 135]. Barrie had not touched Appellant prior to being

stabbed. [23 R.R.: 101, 121]. Barrie walked a few steps and then fell to the

ground. [23 R.R.: 50, 101]. Henderson observed Ryan Moore grab Appellant’s

wrist and get her to drop the knife. Appellant then walked off through the crowd.

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 5 [23 R.R.: 50 - 51, 101 - 104]. Moore appeared to have injured his hand on the knife

because he ripped his shirt and wrapped his hand. [23 R.R.: 52, 54, 115].

Ashley York testified in the previous trial, but was “unavailable” for the re-

trial; her previous testimony was admitted in lieu of live testimony. York had

been a close a friend of Appellant. [23 R.R.: 146 - 147]. Ashley and several friends

had plans to go to Republic Live on the evening of December 3. [23 R.R.: 148].

Appellant had a date that evening and did not initially go to the club but was called

over later in the evening after one of the group became intoxicated and was ejected

from the club. [23 R.R.: 148 - 149, 152 - 153, 154]. Appellant waited outside the

club until it closed and met up with York outside. [23 R.R.: 156 - 157, 239]. York

observed that her friend Chris Carson was arguing with another group of people

outside. [23 R.R.: 159, 294]. Some girls with the other group, including Barrie,

joined the confrontation, and Appellant was drawn into the argument with Barrie.

[23 R.R.: 161 - 164, 167, 223, 278, 294, 295]. As the argument progressed, York

tried to restrain Appellant, but she pulled forward toward the other group of arguing

girls. [23 R.R.: 168, 175, 178, 179, 228]. York noticed that Appellant had a knife

in her hand. [23 R.R.: 176 - 177, 179, 191, 228, 303]. York began to walk away

and observed Barrie abruptly lunge toward Appellant and struck her in the head

with her cell phone. [23 R.R.: 164 - 166, 170, 184, 188 - 189, 224, 229, 240, 243,

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 6 251 - 252, 278, 282, 289]. York did not stay to watch the confrontation but walked

to Appellant’s car parked in a nearby lot. Appellant shortly caught up with her,

displaying a blood on her hand, and revealing that she had a stab wound on her

thigh. [23 R.R.: 192 - 194, 195 - 196, 199, 230, 282, 291]. She also had a knot

on her forehead from being struck. [23 R.R.: 283, 290]. York did not see

Appellant stab Barrie after Barrie struck her. [23 R.R.: 240].

Chris Carson, a friend of Ashley York’s fiancee, Ryan Moore, went to

Republic Live with Moore on December 3. [25 R.R. 227 - 229]. After closing,

Carson got into an argument outside the club with another club-goer, Ronald Pace,

with whom he had bad history. [25 R.R.: 233 - 240]. The confrontation grew

tense and Carson anticipated a fight breaking out. [25 R..R.: 237, 240]. While

arguing with Pace, Carson saw Barrie suddenly approach with her arm raised and

holding an object which appeared to be a high heeled shoe, but cross his path and

strike Appellant in the head. [25 R.R.: 241 - 242, 272 - 276]. After striking

Appellant, Barrie appeared to slip on the ground, but recover and very quickly Barrie

and Appellant “crash[ed] into each other.” [25 R.R.: 243 - 244, 278, 280]. Barrie

again had her arm raised, holding a high heeled shoe as she approached Appellant

a second time. [25 R.R.: 280]. Carson did not see Appellant with a knife as she

engaged Barrie – she was not waiving it over her head. [25 R.R.: 280]. After the

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 7 two crashed into each other, the crowd surged around the two, blocking Carson’s

view of the events. [25 R.R.: 244 - 245, 281]. Carson and Ryan Moore left,

returning to Moore’s home. [25 R.R.: 246, 289]. Moore did not take a knife from

Appellant, nor had he been injured that evening. [25 R.R.: 247, 283, 286].

Britney Carson, Chris Carson’s younger sister also went to Republic Live on

December, separately from her brother. [26 R.R.: 299, 304, 306; 27 R.R.: 23]. She

left the club at closing time and saw Appellant and Ashley York standing outside in

the street. [26 R.R.: 308 - 309]. York was arguing with a group of girls while

Appellant stood by. [26 R.R.: 309 - 310; 27 R.R.: 31]. Suddenly, several girls

lunged toward York and Appellant. [26 R.R.: 311]. She saw Barrie, who was

among the group, struck Appellant in the forehead with her cell phone. [26 R.R.

311 - 312; 27 R.R.: 45 - 46, 49 - 51]. Barrie lost her balance after striking

Appellant, stumbled backward, and fell, but then regained her feet. [26 R.R.: 312 -

313; 27 R.R.: 53, 104]. After Barrie recovered her feet, Britney observed that

Appellant had a knife in her right hand and a frightened expression on her face. [26

R.R.: 314; 27 R.R.: 55, 56, 59, 103]. Barrie threatened Appellant, and group of

girls again moved toward Appellant and York. [26 R.R.: 314 - 315; 27 R.R.: 61 -

62, 63, 106]. Barrie still had her cell phone in her hand, raised as a weapon. [27

R.R.: 64]. After the crowd of people rushed together, Britney could no longer see

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 8 Appellant. [25 R.R.: 315; 27 R.R.: 65 - 66, 108]. She left to go search for brother

in the crowd but was successful. [26 R.R.: 316; 27 R.R.: 68 - 69, 123]. As she

walked back along the sidewalk, she saw Barrie sitting on the curb, attended by her

friends. [26 R.R.: 317- 318; 27 R.R.: 70].

Ryan Moore, Ashley York’s fiancee, testified as a State’s rebuttal witness.

He, Chris Carson and another friend went to Republic Live on December 3 - 4. [27

R.R.: 137, 146 - 147]. Carson had an argument with someone inside the club

which continued outside after closing. [27 R.R.: 149 - 153, 157]. Barrie and her

friend were standing with the individual with whom Carson was arguing; York and

Appellant were standing around Carson and Moore. [27 R.R.: 153, 161]. Barrie

and her friend joined the argument and started to confront York and Appellant. [27

R.R.: 161, 212 - 213]. During the confrontation, Barrie suddenly removed her

shoes and lunged at Appellant, but her friend restrained her from completing the

attack. [27 R.R.: 164, 166, 168, 200, 218]. Barrie lunged a second time, this time

striking Appellant in the forehead with an object, either a shoe or a cell phone. [27

R.R.: 165, 170 - 171, 172, 173, 174 - 175, 201 - 202, 219, 245]. After being struck,

Appellant swung back at Barrie. [27 R.R.: 173, 176, 219]. Moore characterized

her response as reflexive or reactive to Barrie’s assault. [27 R.R.: 224]. Moore

grabbed Appellant after she swung at Barrie, discovering that she had been holding

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 9 a knife in her hand, and that Barrie had been stabbed. [27 R.R.: 176 - 177, 219,

221 - 222, 231, 233]. He forced the knife out of Appellant’s hand, and he kicked

it away after it dropped to the ground. [27 R.R.: 178, 180, 185, 222, 239].

Appellant appeared “shocked or confused” by what had just occurred, and then

walked off in Ashley York’s direction. [27 R.R.: 181 - 182, 222]. Moore was not

injured when disarming Appellant and did not remove his shirt or wrap his hand. [27

R.R.: 185, 223].

Austin police located Appellant in Seton Southwest Hospital later that

morning and questioned her. Appellant explained that she had been downtown

when a fight erupted. She felt a pinch in her leg and discovered that she had been

stabbed. [24 R.R.: 266 - 267, 268, 285; State’s Exhibit 40A]. She was transported

from the hospital to police headquarters downtown where she was interrogated by

a homicide detective. [24 R.R.: 278 - 279; 25 R.R.: 221, 223]. Appellant told

Nelson that she had been downtown near Republic Live when a fight broke out.

During that raucous she was stabbed in the leg by an unknown person [25 R.R.:

224 - 228]. Appellant admitted during her interrogation that she had participated in

a verbal altercation with another girl. [25 R.R.: 230 - 231, 242; State’s Exhibit 79].

During the altercation, the girl came at her and struck her. [25 R.R.: 239, 249 -

250]. She was also stabbed, and heard someone alert the crowd about someone

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 10 having a knife. [25 R.R.: 239 - 240].

Barrie was transported to Brackenridge Hospital for her injuries. Dr. Charlie

Ross, a thoracic surgeon in the Brackenridge emergency room, attended to her,

treating her for penetrating wound to the chest consistent with a stab wound. [22

R.R.: 123, 125, 142]. Treated the decedent for a stabbing/penetrating wound to the

chest. [22 R.R.: 125]. The wound had pierced Barrie’s pulmonary artery, causing

the pericardial sack to fill with blood, depriving her hear to blood. [22 R.R.: 130,

148 - 149]. Dr. Ross performed an emergency thoractomy in anticipation of a

thoracic surgeon to repair the damage. [22 R.R.: 130]. Barrie’s medical records

reflected that she had experienced anoxic damage from the blood loss - a lack of

oxygen to her brain. [22 R.R.: 126, 135 - 136, 140]. She was declared brain dead

on December 21, 2011. [22 R.R. 141]

Dr. Ross agreed that stabbing a person in the chest with a sharp object was an

act which was clearly dangerous to human life. [22 R.R.: 142 - 143]. The object

used to inflict the injury was capable of causing death or serious bodily injury. [22

R.R.: 143].

Dr. Stephen Dewan, a cardiothoracic surgeon on call at Brackenridge Hospital

performed the reparative surgery to the injury to Barrie’s pulmonary artery. [22 R.R.:

157, 160 162, 168, 170]. Dr. Dewan estimated the depth of the injury was

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 11 approximately 2 ½ inches deep. [22 R.R.: 173, 189]. It was a small entrance

wound, 2 ½ centimeters to a 0.5 centimeter laceration of the pulmonary artery. [22

R.R.: 174 - 175, 178]. The injury was consistent with having been caused by knife.

[22 R.R.: 175].

Questioned about the injury, Dr. Dewan admitted that the stab was not the

ideal manner for a person intending to stab another in the pulmonary artery. The

optimal position would have been for the recipient to be lying down, rather than

standing up. [22 R.R.: 187]. Dewan would want the recipient to be stationary rather

than moving. [22 R.R.: 187 - 188]. It would have been optimal to stab a person in

a lighted environment, not in the dark. [2 RR.: 189]. And, if the goal were to hit

the pulmonary artery with one stab, then it would be more probable if the recipient

of the stab were not wearing clothes. [22 R.R.: 190].

The forensic pathologist, Travis County Deputy Medical Examiner Vikie

Willoughby conducted the autopsy and concluded Barrie had died after receiving

“sharp force injury” – a stab wound to the chest. [24 R.R.: 208, 219]. The stab

wound was received to her proximal pulmonary artery which caused blood loss to

the brain. [24 R.R.: 209, 214, 225]. The injury went from less than 2 centimeters

down to 0.5 centimeters. [24 R.R.: 208, 231]. Dr. Willoughby could not

determine the size of the knife used to inflict the injury due to the elasticity of the

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 12 human body. [24 R.R.: 230, 233]. She agreed that the act of stabbing a person in

the chest with a sharp object was “an act that’s clearly dangerous to human life.” [24

R.R.: 219, 220 - 221]. She could not conclude, however, whether the homicide was

intentional. [24 R.R.: 221].

The knife used to inflict the injury was not recovered and accounts of its size

also varied. [21 R.R.: 96]. One witness, Shermay Uwahlogho described the knife

as having a 4 inch blade. [22 R.R. 200, 202, 204]. Jamie Hopkins testified the

knife had a 2 ½ inch blade. [21 R.R.: 232]. Stefne Henderson described the knife

has “huge” and having a 6 inch blade [23 R.R.: 96, 125 - 126]. Britney Carson

characterized the knife as a “small knife”with about a 2 ½ inch blade. [27 R.R. 99,

106]. Ryan Moore characterized the knife has a “little knife,” possibly 4 ½ to 5

inches from handle to blade tip. [27 R.R.: 178 - 179, 228].

DNA testing reflected that the Barrie’s DNA was detected in samples

obtained from Appellant’s right shoe, pants, and jacket [25 R.R.: 151 - 152, 155, 160

- 161, 162 - 163, 184].

SUMMARY OF THE ARGUMENT

1. The trial court erred in denying Appellant’s requested instruction on the

lesser-included offense of manslaughter in the jury charge. As a matter of law,

manslaughter may be a lesser-included offense of murder under both Tex.Penal

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 13 Code § 19.02(b)(1), intentional murder, and § 19.02(b)(2), commission of an act

clearly dangerous to human life. Under the specific facts of the present case, there

was at least a scintilla of evidence to support the jury’s conclusion that Appellant’s

having stabbed Fatima Barrie was a reckless acts, supporting the inclusion of the

lesser charge. The court’s omission of the requested instruction caused some harm

because the evidence both strongly supported a finding of manslaughter, and

Appellant specifically argued that the stabbing was a reckless act. The lack of an

instruction caused some harm to the defense.

2. The trial court erred in excluding from the guilt-innocence phase a

video of Appellant making exculpatory statements in a highly distraught state after

having been provoked into emotional distress by the news of Barrie’s impending

death. The court excluded the recording on the basis that the emotional outburst did

not constitute a “statement” because the officer who provoked the outburst left the

room. This definition of a statement was incorrect as a matter of law. Further, the

court erred in failing to find at the time of the video’s admission that it was

admissible as an excited utterance under Tex.R.Evid. 803(2). The omission of the

video had a substantial and injurious effect upon the verdict, both by excluding

highly probative exculpatory evidence of Appellant’s culpable mental state, a well

as depriving her of evidence which would have warranted a lesser-included charge

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 14 of manslaughter.

3. The trial court also erred in preventing Appellant from playing the video

tape during the punishment phase of trial – although permitting a witness to describe

Appellant’s distraught state – under Tex.R.Evid. Rue 403. The video itself was the

“best evidence” of Appellant’s distress and could not be meaningfully or effectively

conveyed through a witnesses’ hearsay description of Appellant’s statements and

emotional state. The probative value of the evidence far outweighed any unfair

prejudicial effect which might have prompted the video’s exclusion as evidence.

The omission of the video had a substantial and injurious effect upon the punishment

verdict by excluding highly probative evidence of Appellants’ remorse, a factor

which the jury would have considered in assessing sentence.

4. The trial court erred in admitting under the excited utterance exception

of the Hearsay Rule statements by Appellant’s mother and brother relating to an

unadjudicated extraneous act in which Appellant attempted to stab her brother

during a family dispute. The record did not establish on its face that the declarants

met the threshold required to admit evidence as an excited utterance. The

admission of the hearsay statements had a substantial and injurious effect upon the

punishment verdict by introducing, for its substantive merit, an extraneous offense,

similar to the offense for which Appellant had been found guilty, and which reflected

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 15 she was habitually assaultive.

GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE:

THE TRIAL COURT PREJUDICIALLY ERRED BY DENYING APPELLANT’S SPECIAL REQUESTED INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF MANSLAUGHTER.

A. Facts on which claim relies

Appellant was charged with murder under two alternative theories,

intentionally and knowingly having caused death, under § 19.02(b)(1) and

committing an act clearly dangerous to human life under § 19.01(b)(2). [C.R. 20 -

21]. During the charge conference, Appellant submitted a special requested

instruction on the lesser-included offense of Manslaughter. [27 R.R.: 255 - 257].

The judge denied the instruction and the jury was authorized to either convict

Appellant of the offense of murder, or to acquit her outright. [C.R.: 286 - 296]. The

jury returned a verdict of guilty to murder, as alleged in the indictment [C.R.: 295].

B. Argument and Authorities

The trial court erred by denying Appellant’s special requested instruction for

an instruction on manslaughter. A defendant is entitled to a jury charge on a

lesser-included offense if two requirements are met: first, the defendant must

request an instruction on a lesser-included offense of the charged offense which

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 16 constitutes a lesser-included offense under Tex.Code Crim.Pro. Art. 37.09, and

second, there must be "some evidence" that, if the defendant is guilty, he is guilty

only of the lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382

(Tex.Cr.App.2012); and, Flores v. State, 245 S.W.3d 432, 439 (Tex.Cr.App. 2008).

To be entitled to a lesser-included offense instruction there must be some affirmative

evidence which both raises the lesser-included, and rebuts or negates an element of

the greater offense. Cavazos, 382 S.W.3d at 385. Evidence to support the inclusion

of a lesser-included offense may come from any source and may be strong or weak,

impeached or contradicted. Bell v. State, 693 S.W.2d 434, 442 (Tex.Cr.App.1985).

"Anything more than a scintilla of evidence is sufficient to entitle a defendant to a

lesser charge." Bignall v. State, 887 S.W.2d 21, 23 (Tex.Cr.App. 1994). The court

does not consider the credibility of the evidence in support of a lesser-included

offense. Banda v. State, 890 S.W.2d 42, 60 (Tex. Cr.App. 1994).

I. Involuntary Manslaughter is a lesser-included offense of Murder under §§ 19.02(b)(1) and (b)(2).

Like murder, manslaughter is a result-oriented offense. See Britain v. State,

412 S.W.3d 518, 520 (Tex.Cr.App. 2013) (citing Schroeder v. State, 123 S.W.3d

398, 400-01 (Tex.Cr.App.2003)). But in distinction to murder, which requires the

specific intent to cause death, involuntary manslaughter involves a culpable mental

state of recklessness about whether death may result from the defendant’s conduct:

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 17 To prove manslaughter, the evidence must prove that the defendant recklessly caused the death of an individual. A person acts recklessly . . . when he is aware of but consciously disregards a substantial and unjustifiable risk. . . . The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Britain, 412 S.W.3d at 520 (footnotes and internal quotations omitted).

The Court of Criminal Appeals, as well as lower courts have recognized that

manslaughter – recklessly causing the death of an individual is a lesser-included

offense of murder under Art. 37.09. Cavazos, 382 S.W.3d at 386 (manslaughter can

be a lesser-included offense to murder under § 19.02(b)(2) murder); Thomas v.

State, 699 S.W.2d 845, 852 (Tex.Cr.App. 1985); Brown v. State, 296 S.W.3d 371,

384 (Tex. App.- Beaumont 2009); andi, Chavarriga v. State, 156 S.W.3d 642,

648 (Tex.App. - Tyler 2004).

In Cavazos, the Court of Appeals specifically addressed manslaughter as a

lesser-included offense to murder under § 19.02(b)(2) – committing an act clearly

dangerous to human life. The Court explained that manslaughter could be a lesser-

included offense to § 19.02(b)(2) murder because the functional difference between

a murder and manslaughter lay in the difference of the culpable mental state, intent

versus recklessness, a difference which met the criteria for a lesser-included offense

under Art. 37.09(3):

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 18 The differences here are the following: Murder as alleged in the indictment included the intent to cause serious bodily injury and the commission of an act clearly dangerous to human life (shooting with a firearm) whereas manslaughter includes recklessness, which is a conscious disregard of a substantial and unjustifiable risk regarding circumstances or results surrounding the conduct. The commission of an act clearly dangerous to human life, shooting with a firearm, is the circumstance surrounding the conduct, which would be the same under either murder or manslaughter. This leaves us with the only difference being intent versus recklessness.

We disagree with the court of appeals's contention that the murder charged in this case does not require a culpable mental state for causing another's death. . . . Here, the indictment specified that Appellant shot the victim with a deadly weapon, so it can be inferred that he had the intent to cause the victim's death. Although the only mens rea specified in Section 19.02(b)(2) is the intent to cause serious bodily injury and the statute does not add a culpable mental state to the conduct that caused the death, murder under Section 19.02(b)(2) is a "result" crime. . . . . And, because the definition of recklessness is disregarding a risk that circumstances exist or the result will occur, the reckless mens rea for man-slaughter applies to either the nature of the conduct or the result of the conduct.

We conclude that causing death while consciously disregarding a risk that death will occur differs from intending to cause serious bodily injury with a resulting death only in the respect that a less culpable mental state establishes its commission. See TEX.CODE CRIM. PROC. ANN. art. 37.09(3).

Id., at 384 (footnote and citations omitted).

Accordingly, manslaughter is a lesser-included offense of murder alleged

under both (b)(1) and (b)(2).

ii. There was sufficient evidence at trial to support the submission of the

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 19 lesser-included instruction.

The evidence to support the submission of a lesser-included offense need only

be more than a scintilla. Bignall, 887 S.W.2d at 23. Further, in evaluating

evidence, as fact-finders, jurors are entitled to make reasonable inferences and

interpretations from what they have heard. Hooper v. State, 214 S.W.3d 9, 13, 14

(Tex.Cr.App. 2007).

There was sufficient evidence before the trial court to meet the factual basis

to submit a lesser-included offense instruction on manslaughter. The testimony

which reflected Appellant’s specific intent to kill was limited to Stefne Henderson,

who claimed that Appellant rushed Barrie from behind, reached over her right

shoulder, and stabbed her with a “huge” knife. [23 R.R.: 47 - 48, 52, 94 - 95, 96,

97 - 98, 100, 124 - 126, 135]. The autopsy refuted this account. Although

Appellant was taller than Barrie, 23 R.R.: 33, 49, 125, there was no appreciable

downward wound track. [24 R.R.: 211]. Moreover, the wound track went from left

to right, 24 R.R.: 210, rather than the right to left track that one would expect from

an attack over Barrie’s right shoulder and across her chest. The jurors could have

reasonably accepted the medical testimony over Henderson’s account to reject her

account of the stabbing.

Other medical testimony, that by Dr. Dewan, cast doubt upon whether the

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 20 injury, under the circumstances in which it was inflicted, was one which an

individual would have specifically intended to target and strike the heart. The

angle of attack was not optimal to reach the target, it was dark and the recipient of

the stab was moving, as well as clothed. [22 R.R.: 187 - 190]. Jurors could have

accepted the tenor of the questioning and responses to cast doubt on whether

Appellant had intended to target Barrie’s heart or inflict a fatal wound.

Further, while the medical experts agreed that the act of stabbing an

individual in the chest was one which was clearly dangerous to human life, 22 R.R.:

142 - 143, 175; 24 R.R.: 219, 220 - 221, none of them ventured to stated that the

act demonstrated the intent to kill. The pathologist specifically testified that she

could not conclude that homicide had been intentional. [24 R.R.: 221]. Jurors

could have concluded that while the act of stabbing an individual in the chest was

dangerous, it did not conclusively prove the intent to kill as opposed to reckless

behavior. Dr. Willoughby’s concession that she could not conclude the homicide

was “intentional” merely reinforced the open question of Appellant’s culpable

mental state.

Moreover, the varying accounts of the knife further militate toward the lesser-

included charge by refuting an implication that Appellant had the specific intent to

kill when she stabbed Barrie. While Henderson characterized the knife as having

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 21 a six -inch blade, 23 R.R. 96, 1125 - 126, other witnesses, Britney Carson and

even Barrie’s friend, Jamie Hopkins estimated the blade to have been approximately

2 ½ inches. [21 R.R.: 232; 27 R.R.: 99, 106]. Jurors could have reasonably

concluded that an individual using a small pen knife, as opposed to a large carving

knife, would not necessarily have specifically intended to kill another person, as

opposed to merely intending to injure her.

Finally, yet most importantly, Ryan Moore’s testimony supported a

conclusion that Appellant lacked a specific intent when she struck Barrie in

response to the previous assault. He characterized Appellant’s response to Barrie

as “reflexive” or “reactive.” [27 R.R.: 224]. After striking Barrie, Appellant

appeared “shocked or confused” by what had happened. [27 R.R.: 181 - 182, 222].

Jurors giving credence to Moore could have concluded Appellant lacked a specific

intent, but in her striking out against Barrie with a knife in response to the assault,

had disregarded the dangerousness of her actions.

The evidence before the trial court amounted to more than a scintilla to

support the submission of the lesser-included charge of manslaughter. In light of

Cavazos, the jurors could have regarded the facts before them as reflective of

reckless disregard to the likelihood that death would result from striking Barrie with

a knife. The trial court erred in denying the requested instruction.

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 22 iii. The denial of a lesser-included instruction on manslaughter resulted in “some harm” to the defenses and compels reversal.

The denial of a requested jury instruction is measured for “some harm.”

Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1984); Arline v. State, 721

S.W.2d 348, 351 (Tex.Cr.App. 1986); and, Otting v. State, 8 S.W.3d 681, 688

(Tex.App. - Austin 1999). The harm must be actual, rather than theoretical.

Arline, 721 S.W.2d at 351. But if the denial of the instruction had any prejudicial

impact upon the defense, then a conviction must be reversed. Arline, 721 S.W.2d

at 351; and, Otting, 8 S.W.3d at 688 (“Error properly preserved by an objection

will require reversal as long as the error is not harmless. . . . This has been

interpreted to mean any harm regardless of degree.”) (Internal quotations omitted).

If the absence of instructions on the lesser included offenses requested and to which the defendant is entitled, leaves the jury with the sole option either to convict the defendant of the charged offense or to acquit him, a finding of harm is essentially automatic because the jury was denied the opportunity to convict him of the lesser included offenses. This is true because the jury, believing the accused to have committed some crime but given the option only to convict him of the greater offense, may choose to convict him of the greater offense, rather than acquit altogether, even though it had a reasonable doubt he really committed the greater offense.

Otting, 8 S.W.3d at 689 (citing Saunders v. State, 913 S.W.2d 564, 571

(Tex.Cr.App. 1995)). See also, Montgomery v. State, 198 S.W.3d 67, 94

(Tex.App. - Ft. Worth 2006) (citing Otting).

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 23 Appellant was harmed by the trial court’s denial of the lesser-included charge

on manslaughter because it placed the jury into an untenable “either-or” position

in deliberating over muddled facts relating to a homicide. The evidence as a whole

reflected that Appellant caused Barrie’s death, but did not clearly and unequivocally

reflect it was murder under § 19.02. The length of the jury’s deliberation – 9 ½

hours, 28 R.R.: 124 – belies any conclusion that the evidence was overwhelming.

While the evidence reflected Appellant had caused Barrie’s death, it was

nevertheless equivocal as to her culpable mental state. The medical evidence did

not prove it to have been an intentional homicide – at most, the experts could

conclude that it had been a dangerous act to stab Barrie in the chest – and the

testimony by Henderson, the only direct witness to the stabbing, was largely offset

by the medical evidence. The jury was permitted only two options, however,

convict for murder or outright acquittal. Appellant acknowledged this limitation

to the jury – that if they believed Appellant had acted recklessly, and thus been

guilty only of manslaughter, they would have to acquit her. [28 R.R.: 78]. In the

absence of an option of manslaughter, Appellant’s attempt to emphasize in closing

argument that Appellant’s conduct had been only been reckless, 28 R.R.: 78 - 79,

was rendered ineffectual. The harm to Appellant was precisely that harm which

this Court recognized in Otting, that the jury, “believing [Appellant] to have

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 24 committed some crime but given the option only to convict [her] of the greater

offense, [would] choose to convict [her] of the greater offense, rather than acquit

altogether, even though it had a reasonable doubt [she] really committed the greater

offense.” Otting, 8 S.W.3d at 689.

Accordingly, this Court should hold the trial court erred in denying Appellant

an instruction on the lesser-included offense of manslaughter, and that the denial of

this instruction caused actual harm to Appellant’s case. Her conviction should be

reversed and the case remanded to the trial court.

§§§

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 25 GROUND FOR REVIEW NUMBER TWO:

THE TRIAL COURT ERRED BY EXCLUDING A VIDEO RECORDING OF APPELLANT’S EMOTIONAL OUTBURST UPON LEARNING THAT THE DECEDENT WOULD DIE FROM HER INJURIES.

A. Facts in Support of Claim

During the guilt-innocence phase of trial, the State presented testimony by the

lead Detective, Anthony Nelson about his interviews of Appellant following the

Barrie’s stabbing. Nelson first met with Appellant in the morning hours of

December 4 after she was brought to police headquarters from the hospital. [25

R.R.: 222 - 224]. Nelson’s interview of Appellant was recorded and the video was

both published to the jury and admitted into evidence as State’s Exhibit 79. [25

R.R.: 235 - 237, 244 - 245, 247, 248, 249, 250, 252, 254]. Nelson also discussed

Appellant’s statements to him about the events of the evening. [25 R.R.: 224 -

256].

Nelson again met with Appellant on December 6, after she voluntarily

appeared at the police station. [26 R.R.: 115]. During the interview, Nelson

informed Appellant that Barrie was expected to die from her injuries. In response

to this news, Appellant immediately lost her composure, “became emotional, [and]

cried.” [26 R.R.: 115, 116]. Nelson left the room, but later permitted

Appellant’s mother to visit her. [Def Ex. 132]. The hidden cameras remained

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 26 activated in the room, however, and Appellant’s conversation with her mother were

recorded. [26 R.R.: 131 - 132].

Appellant sought to introduce the recordings of Appellant’s reaction to news

that Barrie would die, but the trial court sustained the State’s hearsay objection.

[26 R.R.: 119 - 128]. In a hearing outside the jury’s presence, Nelson explained

that he met with Appellant on October 4 and started reading her the Miranda

warnings when she advised him that she had an attorney. [26 R.R.: 121 - 122].

He placed her under arrest and advised her that Barrie was going to die from her

injuries. [26 R.R.: 122]. Appellant started to cry and Nelson left the room. [26

R.R.: 123]. Outside the interview room, he encountered Appellant’s mother and

decided to let her speak with Appellant in the interview room. [26 R.R.: 123].

Her returned after Appellants’ mother knocked on the door and stated Appellant had

wanted to speak with Barrie’s mother. [26 R.R.: 123 - 124]. He did not resume

questioning Appellant. [26 R.R. 124].

The court concluded Appellant’s statements on the video were not excited

utterances because they were not actually made to Detective Nelson:

there’s not any statement actually made to this witness other than her crying. . . .

...

. . . the rule basically says a statement relating to a startling event or

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 27 condition. . . . no statements that I know of were actually made to this witness other than seeing her start crying. So I’m going to sustain the State’s objection.

[26 R.R.: 125].

The recording, Defense Exhibit 132 was admitted into the record in a bill of

exception. [26 R.R.: 120, 127 - 128].

The trial court erred in excluding Defense Exhibit 132 on the basis that

Appellant’s excited utterances had not been to Detective Nelson.

A court’s decision to admit or exclude evidence is reviewed for an abuse of

discretion. Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Cr.App. 1991); and,

Sandoval v. State, 409 S.W.3d 259, 297 (Tex.App. - Austin 2013). A court’s

exercise of discretion will be sustained if it falls within the zone of reasonable

disagreement. Sandoval, 409 S.W.3d at 297. A court necessarily abuses its

discretion, however, if it bases its decision upon a misunderstanding of the law, or

a misapprehension of the facts. Moreno v. State, 22 S.W.3d 482, 489 (Tex.Cr.App.

1999). Compare, Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir. 2002)

(“An abuse of discretion occurs where the ‘ruling is based on an erroneous view of

the law or on a clearly erroneous assessment of the evidence’.”); and, United States

v. Clymore, 245 F.3d 1195, 1198 (10th Cir. 2001) (“the district court abused its

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 28 discretion in relying on a mistake of fact on which to base [its ruling].”).

The trial court excluded Defense Exhibit 132 on the ground that her

comments had not been directed toward Detective Nelson: “no statements that I

know of were actually made to this witness other than seeing her start crying. So

I’m going to explain the State’s objection.” [26 R.R.: 125]. The court did not

take issue with the contention that Appellant was emotionally distraught upon

learning Barrie would die, and so Appellant takes the position that it is not

necessary the brief the issue of whether Nelson’s comments statements were

sufficient to place Appellant “the stress of excitement caused by the event. . . ”

Tex.R.Evid. Rule 803(2). This predicate showing, that Appellant was under the

stress of Nelson’s statements regarding Barrie’s condition and her own arrest

appears to have been accepted by the court.

I. The trial court conflated the issue of Appellant’s statement under the Rules of Evidence with whether they were a statement for the purposes of a custodial interrogation.

The trial court’s ruling is based on its misunderstanding of what constitutes

a “statement” under the Rules of Evidence and conflating that with the concept of

a “statement” for procedural admissibility rules under the Constitution and Code of

Criminal Procedure. The hearsay rule defines a “statement” as any oral or written

verbal expression, or non verbal conduct which substitutes for a verbal expression.

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 29 Tex.R.Evid 801(a). This definition differs from the “testimonial statement” or

interrogation-related statements. See generally, Crawford v. Washington, 541 U.S.

36, 51 - 52 (2004) (discussing testimonial statements); Miranda v. Arizona, 384

U.S. 436 (1966) (addressing custodial statements); and, Tex.Code Crim.Pro. Art.

38.22. These concepts of a statement for hearsay purposes, and a “statement” for

procedural purposes are distinct. “Statement” in the context of Miranda and

custodial interrogations connotes a two-way exchange of information for law

enforcement purposes. There is a speaker and there is a listener. A “statement”

under the Rules of Evidence contains no such definitional limitation that it me made

to any particular individual, or even to another individual. There is no requirement

under the Hearsay Rule that a “statement” must result from a question. Private

diary entries constitute “statements” under the hearsay rule. See Turpin v.

Kassulke, 26 F.3d 1392, 1401 (6th Cir. 1994); United States v. Treff, 924 F.2d

975, 983 (10th Cir. 1991); and, Walker v. Lockhart, 763 F.2d 942, 951 (8th Cir.

1985). Assertions made by a person in her sleep and overheard by others may

constitute “statements,” although their admissibility is dubious See Annot.,

Admissibility of Evidence Concerning Words Spoken While Declarant Was Asleep

or Unconscious, 14 A.L.R.4th 802, 804 (1982 & Supp. 1989). Appellant’s own

soliloquy plainly met the definition of a “statement” under the Hearsay Rule

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 30 regardless of whether it was directed to Detective Nelson, to another person, or

merely expressing her thoughts aloud.

ii. Appellant’s comments in the interrogation room were made while still under the stress of learning that her conduct would result in Barrie’s death.

Nelson testified that after confronting Appellant that Barrie was expected to

die and that Appellant would be arrested, Appellant started to cry and he left the

room. [26 R.R.: 115 - 116, 122 - 123]. Defense Exhibit 132, the video itself,

reflects Nelson downplayed the extent of Appellant’s emotional response in the

interrogation room: she is plainly overwrought, audibly wailing, and

hyperventilating. [Def Ex. 132]. Even after her mother entered the interrogation

room, Appellant was visibly distraught while discussing the incident.

A hearsay statement under the excited utterance exception need not

immediately follow from the incident but may arise at a later time if a sufficient

triggering event prompts an overwhelming emotional response. McCarty v. State,

257 S.W.3d 238, 240 (Tex.Cr.App. 2008); Apolinar v. State, 155 S.W.3d 184

(Tex.Cr.App. 2005); and, Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Cr. App.

2003). “The startling event need not be the original offense but can be a subsequent

event, so long as it is itself startling or shocking.” Sandoval, 409 S.W.3d at 285;

Edmondson v. State, 399 S.W.3d 607, 614 (Tex.App. - Eastland 2013); and, Hunt

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 31 v. State, 904 S.W.2d 813, 815 (Tex.App. - Fort Worth 1995). The declarant’s

emotional state need not be continual as long as the triggering incident is sufficient

to produce a sufficient emotional state to precluding the declarant’s ability to reflect

upon her statements. McCarty, 257 S.W.3d at 240. See also, Zuliani, 97

S.W.3d at 595 - 596. The controlling inquiry under is whether the declarant is

capable of conscious reflection despite her emotional state or whether she is

sufficiently dominated by her emotional reaction to the triggering incident as to

preclude conscious reflection upon her statements. Zuliani, 97 S.W.3d at 596.

Appellant’s statements occurred within minutes of Nelson arrested her and

advised her that Barrie would die from her injuries. Her demeanor on video reflects

the extent to which she was influenced by Nelson’s statement. Even after

Appellants’ mother entered the interrogation room to comfort her, the video still

reflects Appellant was still dominated by her arrest and the news of Barrie’s

impending death. All of Appellant’s exculpatory statements occur within

approximately one half hour of learning of the death.

Notably, the court reversed its’ ruling at the conclusion of the punishment

phase of trial, acknowledging that Appellant’s statements in the interrogation room

had been excited utterances:

I do think that we should have her testify as to initial statements that the daughter made to her there. I do think they are excited utterances

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 32 as to her finding out that [Barrie’s] going to die, that the victim is going to die. I do think that they are excited utterances. And the ones that she – the statements that she makes to her mom, I think are admissible on that subject.

[29 R.R.: 199].

This later ruling, through clearly supported by the facts, came several days

late and more than a dollar short; by the time it recognized the admissibility of

Appellant’s statement as an excited utterance, its relevance to the guilt phase had

passed. For this reason, the trial court erred in initially excluding Appellant’s

statements upon learning of Barrie’s impending death. To the extent that the trial

court excluded the evidence under the belief that Appellant’s assertions did not

constitute a “statement,” it rested upon an incorrect evaluation of the law. And to

the extent that the court believed the statement did not constitute an exited

utterance, its explanation on the record plainly demonstrates it was incorrect.

iii. The exclusion of the video had a substantial and injurious effect on Appellant’s case by depriving her of directly relevant evidence of her lack of specific intent to kill, or cause serious bodily injury to Barrie.

The erroneous exclusion of evidence is reviewed for whether the error had

a substantial and injurious effect upon the jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex.Cr.App. 1997); and, Tex.R.App.Pro. Rule 44.2(b). This

review is not the equivalent to a mere inquiry into the sufficiency of the evidence.

While the strength of the evidence is a consideration of whether the error had a

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 33 substantial and injurious effect on verdict, the strength of the evidence as a whole

is not determinative. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Cr.App. 2003).

Unless the court has a fair assurance that the error did not have a substantial and

injurious effect upon the verdict, it must reverse the verdict. Garcia v. State, 126

S.W.3d 921, 927 (Tex.Cr. App. 2004); and, Motilla v. State, 78 S.W.3d 352, 355

(Tex.Cr.App. 2002). If the court has a doubt about whether the error might have

influenced the verdict, then it must presume that the error had an effect. See,

Barshaw v. State, 342 S.W.3d 91, 94 (Tex.Cr.App. 2011).

The exclusion of the video was highly damaging to Appellants defense

because it deprived her of potentially probative exculpatory evidence, in essence,

an anti-confession. The video of Appellant’s emotional reaction upon learning of

Barrie’s impending death was relevant because it contained express exculpatory

statements probative toward her intentions toward Barrie on the night of the

confrontation. At several points, a distraught Appellant exclaimed that she had

“not meant to do it,” or have “meant” to have caused Barrie’s death. [Def Ex. 132

(counter at 42:00, 46:54, and 54:54)]. These statements were relevant and

probative toward her culpable mental state; had the jury believed by the jury, it

could have concluded that he had lacked the requisite culpable mental state to

commit murder. Her general distress from learning of Barrie’s impending death,

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 34 expressed through her remorse could have been interpreted by the jury to negate the

culpable mental state to kill or cause injuries that resulted in Barrie’s death.1 See

and compare, Darby v. State, 145 S.W.3d 714, 721 (Tex. App. -Fort Worth 2004)

(citing Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Cr.App. 1991) (holding that

lack of remorse is evidence from which jury can infer intent). See also, Barley v.

State, 01-12-01002-CR, slip op. at 13 (Tex.App.- Houston [1st Dist.] 10-29-2013)

(not published) (“A jury may consider a defendant's attitude during his police

interview . . . when assessing guilt. Further, an intention to commit murder

reasonably can be inferred when a defendant is hostile and shows no empathy or

remorse during his police interview.”); and, Soto v. State, 13-10-013-CR, slip op.

at 18 (Tex.App. - Corpus Christi 10-20-2011) (not published). This testimony

carried a strong probative value to the issue of Appellant’s culpable mental state

on the night of the incident. Moreover, the credibility of her statements could only

be enhanced by the fact that her statements were made without anyone being

present, underscoring the truth of her statements.

Further, the exclusion of the evidence also deprived Appellant of a clear

factual basis to support the submission of a lesser-included offense of manslaughter.

1 An individual who had intended to cause death or serious bodily injury would arguably not have expressed remorse upon learning that the complainant was likely to die from the assault. Why would she if she had intended to cause the very injuries she had just learned had occurred ? By contrast, the remorse reaction entails the defendant had not intended, nor anticipated that the injury would have occurred in light of her conduct. K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 35 It is reasonably likely that had the evidence been admitted, it would have prompted

the trial court to submit the requested instruction (or, in the alternative, to

strengthen Appellant’s point of error on appeal) to the jury, permitting Appellant to

present a reasonable option to the jury.

The trial court’s exclusion of Defense Exhibit 132 had a definite and

substantial prejudicial effect upon the defense and compels reversal of Appellant’s

conviction.

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 36 GROUND FOR REVIEW NUMBER THREE:

THE TRIAL COURT ERRED IN REFUSING APPELLANT TO ADMIT DEFENSE EXHIBIT 132 AT THE PUNISHMENT PHASE OF TRIAL IN ORDER TO DEMONSTRATE APPELLANT’S REMORSE.

Patricia Ritcherson, Appellant’s mother testified during the defense’s

punishment case-in-chief as one of two witnesses. [29 R.R.: 161 - 192, 201 -

206]. Ritcherson stated that her daughter voluntarily went to the police station on

December 6 and was arrested. [29 R.R. 175]. Ritcherson went down to the station

and was permitted to meet with Appellant. [29 R.R.: 181]. Appellant was “visibly

upset” and was crying about wanting to see her [deceased] father. [29 R.R.: 176].

In a bench conference, Appellant advised the court that she wanted to show Defense

Exhibit 132 as evidence of her remorse. [29 R.R.: 178 - 179]. After considering the

issue the court concluded that Appellant’s statements to her mother were excited

utterances, and permitted the defense to call Ritcherson to relate her daughter’s

statements to her. [29 R.R.: 200 - 201].

Appellant requested to “offer the video itself as best evidence of what

actually occurred there between Ms. Ritcherson and her daughter, Kaitlyn.” [29

R.R.: 201]. The court denied the request “on Rule 403" grounds. [29 R.R.: 201].2

2 While the court did not specify its precise basis for excluding the video, its comments during the bench conference reflect the court wanted to conclude the trial by 5:00 o’clock: “Also, it’s 20 till K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 37 Ritcherson subsequently testified that she was permitted to meet with her

daughter after she had been arrested. [29 R.R.: 202]. Appellant was crying and said

that she wanted to “meet her father.” Appellant’s father was deceased and

Ritcherson interpreted her daughter’s statements to mean that she wanted to die.

[29 R.R.: 202]. Appellant also told her that she had been frightened the evening

of the incident with Barrie and that she had not intended to harm Barrie. [29 R.R.:

203, 204].

The trial court erred by denying Appellant’s request to publish Defense

Exhibit 132 and limiting the evidence of Appellant’s remorse to a hearsay recital

through her mother, Patricia Ritcherson. The court abused its discretion under

Rule 403 by excluding the video, which constituted the best, most probative

evidence of Appellant’s remorse, in favor of the second-hand recitation of

Appellant’s statements.

I. The Trial Court’s exclusion of the evidence under Texas Rule of Evidence Rule 403 was unreasonable because it thwarted the policy of admitting relevant and probative evidence while lacking any overwhelming justification set out by the Rule.

The Rules of Evidence carry the presumption that relevant evidence will be

admissible. Pawlak v. State, 420 S.W.3d 807, 809 (Tex.Cr.App. 2013); and, Jessop

5:00 and we need to wrap this thing up.” [29 R.R.: 200 - 201]. K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 38 v. State, 368 S.W.3d 653, 684 (Tex.App.-Austin 2012). Under Rule 403, relevant

evidence should be excluded only if the probative value is substantially outweighed

by the danger of unfair prejudice or other listed considerations.3 Montgomery, 810

S.W.2d at 387. “Unfair prejudice' refers to a tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.” Jessop,

368 S.W.3d at 684 (internal quotations omitted). Trial courts should favor the

admission of in close cases. Sanders v. State, 422 S.W.3d 809, 815 (Tex.App.-Ft.

Worth 2014). “It is only when there exists a clear disparity between the degree of

prejudice produced by the offered evidence and its probative value that Rule 403

is applicable.” Jessop, 368 S.W.3d at 684.

In reviewing whether to admit evidence under Rule 403 the court should

consider, (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. Cr. App. 2004); Reese v. State, 33 S.W.3d 238, 240-41

(Tex.Cr.App. 2000).

In the present case, the evidence was highly probative to show Appellant’s

3 These considerations are: evidence which confuses the issues, evidence which misleads the jury, evidence which causes undue delay in the course of trial, or evidence which is needlessly cumulative to other evidence which has been presented. Tex.R.Evid. Rule 403. K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 39 remorse over having caused Barrie’s death. As direct evidence of her reaction, it

was direct evidence of her reaction and the sincerity of her beliefs. The evidence

did not post a threat of influencing the jury in an irrational manner. The time

necessary to present the evidence was minimal in context of the entire trial. The

portion of the video which depicted Appellant was approximately 40 minutes; of

this, approximately 20 - 30 minutes constituted reflected her emotional outbursts.

Finally, Appellant had a high need for the video since the quality of her remorse

could not be meaningfully or as probatively presented through another source.

While Appellant’s mother could relate that her daughter had been emotional and

made statements of remorse, her dry testimony could not fully convey Appellant’s

statements in their full probative value.

In light of the foregoing, the factors in favor of publishing the portion of the

video, Defense Exhibit 132 to the jury instead of limiting the defense evidence to

Patricia Ritcherson’s recitation of her daughter’s statements substantially outweighs

the Rule 403's listed considerations:

a. The video would not have unfairly prejudiced the State;

There was nothing in the video which would have unfairly prejudiced the

State since the video merely captured Appellant’s emotional reaction on hidden

cameras in the police interrogation room after Detective Nelson advised her of

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 40 Barrie’s anticipated death. The State in effect created the very evidence by

prompting Appellant’s emotional reaction and then recording that reaction. It

could even be argued that Detective Nelson’s decision to permit Patricia Ritcherson

to visit her daughter was premised on his gambit that Appellant might make an

inculpatory admission to her mother. Regardless of the reasoning for the State’s

recording Appellant’s reaction, “unfair” prejudice in the context of Rule 403 refers

only to the tendency of evidence to promote a decision on an improper basis.

Jessop, 368 S.W.3d at 684. Insofar as the video objectively recorded Appellant’s

remorse for her actions, it was not improper.

b. The video would not have confused the issues;

The video would not have confused the issues for punishment because

whether a defendant is remorseful for her conduct is an important consideration in

assessing punishment. See McMahon v. State, 582 S.W.2d 786, 791 (Tex.Cr.App.

1978); People v. Watts, 165 P.3d 707, 713 (Colo.App. 2006); People v.

Vanhoesen, 3 A.D.3d 787, 771 N.Y.S.2d 730 (N.Y. 3d Dept. 2004); State v.

Bauerly, 520 N.W.2d 760, 762 (Minn.App. 1994); State v. Constantine, 588 A.2d

294, 296 (Me. 1991); and, People v. Allen, 158 Mich. App. 472, 478, 404 N.W.2d

266 (1987).

c. The video would not have mislead the jury;

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 41 The video was offered as probative evidence of Appellant’s remorse. In

response to the court’s limitation of the evidence to Ritcherson’s account of her

daughter’s reaction, Appellant plainly objected that the video itself was the “best

evidence” available to prove the issue. [29 R.R.: 201]. The “best evidence” rule

is premised on the basis of “produc[ing] the best obtainable evidence” for the jury’s

consideration. Jurek v. Couch-Jurek, 296 S.W.3d 864, 871 (Tex.App. - El Paso

2009). “[T]he exact words are "of more than average importance particularly in

the case . . . where a slight variation of words may mean a great difference . . ..”

Englund v. State, 946 S.W.2d 64, 67 (Tex.Cr.App. 1997). “[I]f a party chooses to

establish the content of a conversation by offering a recording, the best-evidence

doctrine applies and Rule 1002 requires the introduction of the original recording

. . .” Texas Rules of Evidence Handbook, 988 (2011). Publishing the video itself

would have permitted the jury to evaluate Appellant’s emotional reaction, rather

then rely upon a limited and filtered recitation of that reaction by her mother.

Rather than mislead the jury, depriving them of the video interfered with their role

in evaluating “the sincerity of defendant's remorse” an issue “relevant to

sentencing.” Allen, 158 Mich. App. at 478. Ritcherson’s testimony, rather than the

video carried a capacity to mislead the jury because her recitation lacked the direct

and immediate quality to making credibility determinations. The jurors would

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 42 have been no more mislead by actually viewing Appellant’s emotional response

than they were when viewing her responses during the December 4 interrogation.

d. The video would not have caused undue delay in the course of trial;

The court’s comments during the bench conference, that it wanted to

conclude the trial around 5 p.m. suggests that this was the primary factor underlying

the court’s decision to limit the presentation of evidence. [29 R.R.: 200 - 201].

Concededly, the court has a valid interest in managing its docket. But that

consideration is not paramount, and must be evaluated in the context, not in

absolutes.

Appellant was convicted of a first degree felony. She was facing a sentencing

range of 5 years to life imprisonment. Trial on the merits had lasted nine days.

The State presented twenty-nine witnesses; Appellant presented four. The

punishment phase lasted one day. The State presented four witnesses; Appellant

presented two. The time in which Appellant appeared on video was approximately

40 minutes but the time period in which Appellant made the relevant excited

outburst was between 20 - 30 minutes. By limiting Appellant’s presentation of

probative evidence, the court injected a significant inequity of time between the

State and defense’s punishment phase presentations. The State presented four

witnesses throughout the day to prove a single uncharted extraneous offense

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 43 involving Appellant and her brother. Appellant, by contrast, presented only two

witnesses, her mother, and her pastor, the latter whose testimony was relatively

brief. The court’s limitation of Appellant’s punishment evidence in order to hasten

the end of trial does not appear to arise from Appellant having taken an inordinate

amount of time in presenting his punishment case. The court’s desire to complete

the trial by 5 p.m. by truncating the defense’s presentation of 30 minutes worth of

video was unreasonable under the equities involved in the case.

e. The video was not needlessly cumulative with other evidence which had been presented.

Publishing the video to the jury would not have been needlessly cumulative

with other evidence of Appellant’s remorse for the simple reason that the video was

the only evidence relating to Appellant’s remorse for having caused Barrie’s death.

The factors prompting exclusion under Rule 403 do not substantially

outweigh the probative evidence demonstrating Appellant’s remorse over the

offense.

ii. The exclusion of the video and limitation of remorse evidence prejudiced Appellant’s punishment phase presentation and very likely affected the jury’s verdict.

The erroneous exclusion of evidence is reviewed for whether the error had

a substantial and injurious effect upon the jury’s verdict. King, 953 S.W.2d at

271; and Rule 44.2(b). Unless the court has a fair assurance that the error had

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 44 either no influence, or only a minor effect on the verdict, then it must reverse the

verdict. Garcia, 126 S.W.3d at 927; and, Motilla, 78 S.W.3d at 355. If the court

is unsure whether the error might have influenced the verdict, then it must presume

that the error had an prejudicial effect. See, Barshaw, 342 S.W.3d at 94.

The court’s exclusion of the video in favor of Patricia Ritcherson’s testimony

had substantial effect on the jury by depriving the defense of the most probative

evidence demonstrating her remorse. The full probative effect of the video is

reflected in the well-worn saying “a picture is worth a thousand words.” As

noted previously, the video constituted the best evidence because it most accurately

depicted Appellant’s emotional state. The actual depiction possessed a quality that

could not be matched by the mere description of her reaction; it is akin to the

distinction between seeing a moving painting, say, for example, Géricault’s The

Raft of the Medusa, and reading a description of a painting. Both convey

information – but they are not the same. Unlike directly viewing the video, jurors

might reasonably have been skeptical of Ritcherson’s testimony of her daughter’s

reaction. Jurors having viewed the video would not likely have harbored these

doubts.

Moreover, in the context of evaluating harm, it is noteworthy that during

closing argument at punishment, the prosecutor mocked Appellant’s emotional

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 45 state throughout trial, contending that her tears in the courtroom had been motivated

by self-pity, rather than remorse. [29 R.R.: 238]. The argument exploited the lack

of directly probative evidence of remorse from the trial court’s exclusion of the

video. The court’s exclusion of the evidence was not harmless, and warrants

Appellant’s case be remanded for a new sentencing trial.

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 46 GROUND FOR REVIEW NUMBER FOUR:

THE TRIAL COURT ERRED IN ADMITTING HEARSAY STATEMENTS BY PATRICIA AND DONALD RITCHERSON UNDER THE EXCITED UTTERANCE EXCEPTION WITHOUT A SUFFICIENT PREDICATE SHOWING THAT THE WITNESS WAS UNABLE TO REFLECT UPON HIS STATEMENT AT THE TIME IT WAS MADE.4

At the punishment phase of trial, the State sought to admit testimony of an

unadjudicated extraneous offense in which Appellant had attempted to stab her

brother, Donald Ritcherson during a family argument.

Officer Jared Jensen testified that he responded to a family disturbance call

on May 15, 2009 where he encountered and spoke with Appellant, her mother, and

her brother, Donald. [29 R.R.: 60 - 63]. Over objection, Officer Jensen testified

that Donald had informed him that he joined a family argument between Appellant

and her mother.5 During the argument, Appellant “went to the kitchen and

retrieved a steak knife and attempted to stab him with it.” [29 R.R.: 63, 65, 66].

Their mother intervened to keep Donald and Appellant separated and Donald

managed to disarm Appellant. [29 R.R.: 66]. Patricia’s account was “basically ..

4 Appellant brings the claim relating to statements by both Patricia and her son Donald in one claim because in the context of the evidence, the statements are intertwined and largely inseparable. Should the court conclude that the issues are multiplicitous, then Appellant would request the opportunity to re-brief the issue into two separate claims. 5 Appellant preserved error by timely objecting to the testimony and receiving a running objection. [29 R.R.: 64]. K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 47 . the same thing.” [29 R.R.: 64, 66].

Appellant told Jensen that while she was arguing with her brother, he struck

her in the face and pulled her hair, prompting her to get a knife and swing it at him

in order to protect herself. [29 R.R.: 68, 71]. She displayed a mark by her eye,

and Jensen noticed that her hair was “a little messed up.” [29 R.R.: 67, 72 - 73].

Donald denied striking his sister, and contended the argument became

physical after Appellant attempted to stab him. [29 R.R.: 68, 73]. Patricia

Ritcherson advised Jensen that her son had not struck Appellant during their fight

and that Appellant’s injury had likely resulted from Patricia’s efforts to keep her

children separated. [29 R.R.: 68].

Patricia Ritcherson testified that there was family disturbance in the early

morning hours on May 15 which escalated to pushing and shoving. [29 R.R.: 44 -

45, 51]. At some point the argument moved into the kitchen [29 R.R.: 52] While

in the kitchen, Appellant picked up a knife, but Ritcherson did not remember

Appellant swinging it. [29 R.R.: 46 – 47, 52]. Patricia managed to get between

her children. [29 R.R.: 46].

Donald testified that he got involved into an argument between his mother

and Appellant. [29 R.R.: 82]. The argument moved into the kitchen and at some

point Appellant picked up a knife. [29 R.R.: 83]. Their mother got between them

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 48 and Donald took the knife from his sister. [29 R.R.: 83]. Donald could not recall

Appellant actually swinging the knife and he disarmed her after grabbing her hair.

[29 R.R.: 88 - 89, 90 - 91].

The trial court erred in admitting Donald Ritcherson’s hearsay statements

through Officer Jensen because the evidence before the court did not establish that

Ritcherson was sufficiently overwhelmed by his confrontation with Appellant to

have been incapable of reflection.

i. The record lacked any factual basis to establish the predicate that Patricia and Donald Ritcherson were incapable of conscious reflection when relating the details of the confrontation with Appellant.

Although statements “relating to a startling event . . . made while the

declarant was under the stress or excitement caused by the event” are admissible

under Rule 803(2), the statement must be made under circumstances in which the

declarant has not had inadequate opportunity to consciously reflect upon the matter.

Apolinar, 155 S.W.2d at 188 - 189; and, Zuliani, 97 S.W.3d at 596 (Tex.Cr.App.

2003). To be an excited utterance, the “event speaks through the individual” rather

than the individual simply relates the event. Id., at 595. It is precisely the lack of

opportunity to reflect prior to relating an event which is what renders the statements

sufficiently reliable to be admissible as a hearsay exception. Volkswagen of

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 49 America, Inc. v. Ramirez, 159 S.W.3d 897, 908 (Tex. 2005) (citing 6 Wigmore,

Evidence in Trials at Common Law § 1747, at 195 (James H. Chadbourn rev.

1976)); Glover v. State, 102 S.W.3d 754, 763 (Tex.App. - Texarkana 2002);

Bounderant v. State, 956 S.W.2d 762, 765 (Tex.App. – Fort Worth 1997). The

court’s focus then, as a predicate to admitting testimony under the exception, must

rest on whether the declarant’s emotional state is so overwhelmed by the incident

that he is unable to have reflected in a meaningful manner upon his statement.

Apolinar, 155 S.W.2d at 186. It is insufficient merely that declarant is in an

“emotional” state, as opposed to a calm one. Martinez v. State, 178 S.W.3d 806,

814 - 815 (Tex. Cr. App. 2005); and, Hughes v. State, 128 S.W.3d 247, 252

(Tex.App. – Tyler 2003). “A statement that is simply a narrative of past acts or

events is distinct from an excited utterance and does not qualify under Rule 803(2)

regardless of how soon after the event it is made. . . . [The declarant] may have

been upset, but that does not make [his] statements excited utterances.” Glover v.

State, 102 S.W.3d 754, 765 (Tex.App. - Texarkana 2002). The declarant must be

sufficiently distraught by the incident to be incapable of reflection. Salazar v.

State, 38 S.W.3d 141, 154 (Tex.Cr. App. 2001); and, Lagunas v. State, 187 S.W.3d

503, 512 (Tex.App. - Austin 2005). The burden of establishing that a witness’s

emotional state meets the criteria of an excited utterance rests with the proponent

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 50 of the evidence. Perez v. State, 113 S.W.3d 819, 827 n. 4 (Tex.App. - Austin

2003).

The State did nothing to establish the predicate to admitting Donald

Ritcherson’s statements. Officer Jarred Jensen simply answered “yes” to the

formulaic question whether Patricia and Donald “appeared to be under the

influence of a recent startling event which was later described to you?” [29 R.R.:

63]. This was inadequate to make the predicate showing under Rue 803(2). The

cases law behind Rule 803(2) requires more than this “magic words” or incantation

approach. Jarred’s testimony, neither at the time of the courts ruling, or thereafter

reflected that either Patricia or Donald were dominated by the previous argument,

or rendered unable to reflect upon the incident before relating the details of their

confrontation with Appellant. It was insufficient merely to contend that Patricia and

Donald were under some influence of the confrontation. Glover, 102 S.W.3d at

765.

ii. The erroneous introduction of testimony that Appellant had attempted to stab her brother had a likely substantial and injurious effect on the jury’s verdict.

The court must reverse the verdict unless it has a fair assurance from its

review of the record that the error had either no influence, or only a minor effect on

the verdict. Garcia, 126 S.W.3d at 927; and, Motilla, 78 S.W.3d at 355. If the

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 51 court is unsure whether the error might have influenced the verdict, then it must

presume that the error had an prejudicial effect. See, Barshaw, 342 S.W.3d at 94.

The 2009 incident in which Appellant allegedly tried to stab her brother

likely had a highly prejudicial effect. Not only was it a crime of violence, but it

mirrored the charged offense. This significance was not lost on the State; the both

emphasized the incident during closing argument. [29 R.R.: 214 - 215, 220, 234 -

235]. Obviously, the probative thrust of the evidence lay in demonstrating that

Appellant readily resorted to violence and that Barrie’s killing had not been

idiosyncratic.

While excluding as hearsay what Officer’s Jensen’s learned from Patricia and

Donald might not have completely prevented the jury from hearing the evidence –

their statements might have been admissible as prior inconsistent statements,

Tex.R.Evid. Rule 613(a), this testimony would have been subject to an instruction

limiting its probative value to mere impeachment. See Rule 105(a). Neither

Patricia nor Donald claimed at trial that Appellant had swung the knife, much less

attempted to stab her brother, and so the limited testimony about the knife would

merely have contributed to a muddled and unclear incident. By contrast, in the

present case, the evidence was admitted for its full probative value. The jury could

consider the hearsay statements as direct evidence that Appellant had attempted to

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 52 stab her brother and disregard their lackluster testimony. Given the importance that

the prosecution placed on the incident, there is little chance that the jury remained

uninfluenced by the testimony. For this reason, the Court should reverse

Appellant’s sentence and remand the case for a new sentencing trial.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

this Honorable Court reverse Appellant’s convictions, remand the case for re-trial,

and to grant any other such relief to which Appellant may be entitled.

Law Office of Alexander L. Calhoun 4301 W. William Cannon Dr., B-150, # 260 Austin, TX 78749 Tele: 512/ 420- 8850 Fax: 512/ 233-5946 Cell: 512/731-3159 Email: alcalhoun@earthlink.net

BY:__/s/_Alexander L. Calhoun ____ Alexander L. Calhoun State Bar No.: 00787187

Attorney for Appellant,

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 53 CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing Appellant’s Brief has

been served upon the Travis County District Attorney's Office, Blackwell-Thurman

Justice Complex, Austin, TX 78767 on January 18 2015 by email to opposing

counsel at the following email address: scott.talliaferro@co.travis.tx.us /

scott.talliaferro@traviscountytx.gov.

/s/ Alexander L. Calhoun Alexander L. Calhoun

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing document was created in 14 point type,

Times New Roman font, and consists of 12464 words.

K AITLY N R ITCH ERSO N V. S TATE O F T EXAS : N O . 03 - 13 – 0804 - CR 54