Kaitlyn Lucretia Ritcherson v. State

Opinion

ACCEPTED 03-13-00804-CR 4604985 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/23/2015 3:08:18 PM JEFFREY D. KYLE CLERK

No. 03-13-00804-CR FILED IN 3rd COURT OF APPEALS In the AUSTIN, TEXAS Court of Appeals 3/23/2015 3:08:18 PM Third District JEFFREY D. KYLE Austin, Texas Clerk

Kaitlyn Lucretia Ritcherson, Appellant

v.

The State of Texas, Appellee

Appeal from the 331st Judicial District Court Travis County, Texas Cause Number D-1-DC-11-302663

STATE’S BRIEF

Rosemary Lehmberg District Attorney Travis County

Angie Creasy Assistant District Attorney State Bar No. 24043613 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax (512) 854-4810 Angie.Creasy@traviscountytx.gov AppellateTCDA@traviscountytx.gov

Oral argument is not requested Table of Contents

Index of Authorities............................................................................. ii Summary of the State’s Argument........................................................1 Argument............................................................................................. 7 Reply Point One: The appellant was not entitled to an instruction on manslaughter. ..............................................................................7 Reply Point Two: The appellant cannot complain about the exclusion of the video because she did not try to admit the video. Additionally, the trial court did not abuse its discretion in refusing to allow the appellant to question Detective Nelson about the appellant’s out-of-court statements because he lacked personal knowledge of the statements and because the statements were hearsay. And any error in excluding the statements was harmless. .........................................................................................................18 Reply Point Three: The trial court did not err in excluding the video during the punishment phase because the video contained hearsay, it was more prejudicial than probative, and admission was not required under the best evidence rule. And any error in excluding the video was harmless.................................................. 33 Reply Point Four: The trial court did not abuse its discretion in admitting out-of-court statements under the excited utterance exception to the hearsay rule. And any error in admitting the statements was harmless ............................................................... 40 Prayer ................................................................................................ 43 Certificate of Compliance and Service............................................... 44

i Index of Authorities

Cases Apolinar v. State, 155 S.W.3d 184 (Tex. Crim. App. 2005).......... 16, 27 Barshaw v. State, 342 S.W.3d 91 (Tex. Crim. App. 2011) ..................18 Blue v. State, No. 04-11-00726-CR, 2012 Tex. App. LEXIS 7895 (Tex. App.—San Antonio 2012, pet. ref’d) (mem. op., not designated for publication) .............................................................................. 28, 30 Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) ..7, 8, 10, 11, 32 Dyke v. State, No. 06-11-00129-CR, 2012 Tex. App. LEXIS 2181 (Tex. App.—Texarkana 2012, pet. ref’d) (mem. op., not designated for publication) .....................................................................................31 Fairow v. State, 943 S.W.2d. 895 (Tex. Crim. App. 1997) ................ 25 Fischer v. State, 252 S.W.3d 375 (Tex. Crim. App. 2008) ................ 27 Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006)........ 36 Hartin v. State, 2009 Tex. App. LEXIS 2765 (Tex. App.—Beaumont 2009, pet. dism’d) (mem. op., not designated for publication) ..... 25 Ingram v. State, 2012 Tex. App. LEXIS 260 (Tex. App.—Dallas 2012, pet. ref’d) (mem. op., not designated for publication) ....................31 Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992).................... 34 King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) ...................... 17 Matute v. State, No. 03-13-00601-CR, 2014 Tex. App. LEXIS 12743 (Tex. App.—Austin Nov. 26, 2014, pet. filed March 3, 2015) (mem. op., not designated for publication) ............................................... 38 Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002).............. 17, 18 Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2001)...................... 17 Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990) ................ 17 Whitaker v. State, 286 S.W.3d 355 (Tex. Crim. App. 2009)............. 34 Zuliani v. State, 97 S.W. 3d 589 (Tex. Crim. App. 2003).................. 27 Statutes Tex. Penal Code § 19.02....................................................................... 7 Tex. Penal Code § 19.04....................................................................... 7 Rules Tex. R. App. Proc. 33.1....................................................................... 24

ii Tex. R. App. Proc. 44.2 ....................................................................... 17 Tex. R. Evid. 1002.............................................................................. 38 Tex. R. Evid. 103................................................................................ 23 Tex. R. Evid. 403 ............................................................................... 35 Tex. R. Evid. 602 ............................................................................... 24 Tex. R. Evid. 801................................................................................ 26 Tex. R. Evid. 802 ............................................................................... 26 Tex. R. Evid. 803 ............................................................................... 26

iii No. 03-13-00804-CR

In the Court of Appeals Third District Austin, Texas

Appeal from the 331st Judicial District Court Travis County, Texas Cause Number D-1-DC-11-302663

To the Honorable Third Court of Appeals:

Now comes the State of Texas and files this brief in response to

that of the appellant.

Summary of the State’s Argument

Point One: The appellant argues that the trial court erred when

it denied her request for a jury instruction on manslaughter.

Reply: Pulling out a knife, raising it up in the air, bringing it

down in a single swing, stabbing the victim in the chest, and fleeing

1 the scene does not rationally support an inference that the appellant

acted recklessly at the moment she stabbed the victim. Thus, she was

not entitled to an instruction on manslaughter.

Point Two: The appellant argues that the trial court erred during

the guilt/innocence phase of trial by excluding a video of her

emotional outburst upon learning that the victim was going to die.

She says she was harmed because the video shows that she did not

intend to kill or seriously injure the victim.

Reply: The appellant never tried to admit the video into evidence

during this phase of trial, so she has not preserved error on this

complaint.

Instead, the record shows that the appellant wanted to question

Detective Nelson about the statements that the appellant made to her

mother while Detective Nelson was out of the room, and the trial

court did not let her. This ruling was not an abuse of discretion for a

couple of reasons:

First, Detective Nelson did not have personal knowledge of the

statements. He did not personally observe or overhear the

statements. In fact, he was not even in the room when the statements

2 were made. Thus, the trial court did not abuse its discretion in

refusing to let the appellant question him about these statements.

Additionally, the trial court did not abuse its discretion because

the statements were hearsay. The appellant argues that the hearsay

exception for excited utterances applies. But the appellant’s

statements were made at the police station, after the police had

conducted an investigation, questioned the appellant and her friends,

and arrested the appellant for a felony offense. The appellant had a

motive to fabricate or exaggerate, as well as two days to reflect on the

stabbing. Additionally, her statements were predominantly self-

serving. Considering all of the circumstances surrounding the

statements, the trial court was well within its discretion in refusing to

admit the statements as excited utterances.

Finally, error, if any, was harmless because the appellant’s self-

serving statements, made two days after the stabbing and after her

arrest, are not very probative of her mental state at the time of the

stabbing.

Point Three: The appellant argues that the trial court erred

during the punishment phase of trial by excluding the same video.

3 She argues that she was harmed because the video shows her

remorse.

Reply: During punishment, the appellant offered the video in its

entirety. She never pointed out specific statements or portions of the

video that she wanted admitted. The trial court is not obligated to sort

through evidence in order to segregate the admissible from the

excludable. Therefore, if any part of the video is inadmissible, the trial

court could safely exclude it all. With this in mind, the trial court did

not abuse its discretion in excluding the video for several reasons:

As argued in Point Two, the appellant’s statements on the video

are hearsay, and the trial court acted did not abuse its discretion in

excluding these statements under the excited utterance exception.

Additionally, the trial court did not abuse its discretion in

excluding the video under Rule 403 because the danger of unfair

prejudice resulting from the extremely emotional video substantially

outweighed the video’s probative value, especially since the

appellant’s mother was allowed to testify about the contents of the

video, namely, that the appellant was crying and upset, that she no

4 longer wanted to live, that she wanted to tell the victim’s mother that

she was sorry, and that there was never any intent to harm the victim.

Additionally, admission of the video was not required under the

best evidence rule. This rule has no application at all when a party

calls a participant or observer of a conversation to testify to it because

it is the contents of the conversation, not the contents of the

recording, that is the issue. Alternatively, since the appellant’s mother

participated in the conversation, her testimony describing the

conversation is the best evidence of that conversation.

Finally, error, if any, in excluding the video was harmless because

the appellant’s mother testified about the contents of the video,

including the appellant’s remorse. Moreover, the video is not even

good evidence of remorse because the appellant never really takes

responsibility for stabbing the victim, and she is mostly concerned

about herself. Considering all of this evidence, exclusion of the video

did not have a substantial and injurious effect or influence on the

jury’s verdict.

Point Four: The appellant argues that the trial court erred

during the punishment phase of trial in admitting out-of-court

5 statements under the excited utterance exception to the hearsay rule.

She argues that she was harmed because the statements concerned an

incident where she attempted to stab her brother.

Reply: The trial court did not abuse its discretion in admitting

these statements as excited utterances. Her mother and brother made

the statements at 4 o’clock in the morning, while the police were at

their front door and the appellant was cursing at everyone,

immediately following a physical altercation with the appellant, which

included pushing and shoving and the appellant swinging a knife at

her brother. Furthermore, the responding officer testified that the

scene was “very chaotic,” that “a pretty major event had just

happened,” and that her mother and brother were “very excited,”

“upset,” and appeared to be under the influence of a recent startling

event.

And error, if any, in admitting these statements was harmless

because the majority of the testimony about the out-of-court

statements was pretty much the same as the testimony that her

mother and brother gave themselves at trial. There is only one

important difference: At the scene, her brother said that the appellant

6 swung a knife at him and tried to stab him. At trial, her brother

testified that the appellant did not swing the knife. This is obviously a

major difference, but it could not have had a substantial effect on the

jury’s verdict because the responding officer testified that the

appellant herself admitted that she swung a knife at her brother.

Argument

Reply Point One: The appellant was not entitled to an instruction on manslaughter. The appellant argues that the trial court erred when it denied her

request for a jury instruction on manslaughter. 27RR 255-58.

A defendant is entitled to an instruction on an offense if she can

show that 1) it is a lesser-included offense, and 2) there is some

evidence that the defendant is guilty only of the lesser-included

offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App.

2012).

As a matter of law, manslaughter is a lesser-included offense of

murder, as it was alleged in the indictment. Cavazos, at 384; Tex.

Penal Code § 19.02; Tex. Penal Code § 19.04; CR 20-21

The second prong requires a case-by-case analysis. The court must

consider whether there was some evidence raised at trial from which

7 a rational jury could acquit the appellant of the greater offense of

murder and convict her of the lesser-included offense of

manslaughter. Cavazos, at 385. There must be some affirmative

evidence that the appellant did not intend to cause serious bodily

injury when she stabbed the victim, and there must be some

affirmative evidence from which a rational juror could infer that the

appellant was aware of but consciously disregarded a substantial and

unjustifiable risk that death would occur as a result of her conduct.

Id. Anything more than a scintilla of evidence may be sufficient to

entitle the appellant to a charge on a lesser offense. Id. However, the

evidence produced must be sufficient to establish the lesser-included

offense as a "valid, rational alternative" to the charged offense. Id. If

the evidence raised at trial casts doubt on the greater offense, a lesser-

included offense instruction allows the jury to vote for a rational

alternative. Id. While it is true that the evidence may be weak or

contradicted, the evidence must still be directly germane to the lesser-

included offense and must rise to a level that a rational jury could find

that if the appellant is guilty, she is guilty only of the lesser-included

offense. Id. Meeting this threshold requires more than mere

8 speculation—it requires affirmative evidence that both raises the

lesser-included offense and rebuts or negates an element of the

greater offense. Id.

It is undisputed that the appellant stabbed the victim in the chest

during an altercation between two groups of people outside a night

club in downtown Austin. Most of the witnesses denied seeing the

stabbing, either because they were looking elsewhere or because their

view was blocked. The two witnesses who testified about the actual

stabbing gave differing accounts, but there is no evidence that the

stabbing was a reckless act, under either account:

Stefne Henderson (the victim’s friend) testified that the victim

was walking away when the appellant raised a knife in the air, came

up behind the victim, reached over the victim’s shoulder, and stabbed

the victim in the chest. 23RR 46-50, 97-100.

Ryan Moore (the appellant’s friend) testified that the victim

lunged at the appellant twice and took a swing at her. 27RR 168-71.

He thought that the victim hit the appellant in the head with an

object, like a shoe or cell phone, but he was not sure because he was

not paying attention. 27RR 171-75. After the victim swung at the

9 appellant, the appellant swung back. It was a single, overhand swing.

27RR 176, 234, 246. Moore grabbed the appellant’s hand and saw a

knife. Moore tussled with the appellant for the knife, she dropped it,

and he kicked it away. 27RR 176-78, 204.

The appellant’s case is similar to Cavazos. There, the appellant

was at a party when another man called him a faggot and threw a

plastic beer cup at him. The appellant shot the man twice and fled the

scene. A few days later, the appellant told a friend that he got drunk at

a party and shot a guy but that he did not mean to shoot anyone. The

appellant then fled to Mexico. Id. at 380.

The appellant argued that he was entitled to an instruction on

manslaughter because his statement to his friend negated the element

of intent and because there was evidence that he acted recklessly

since it was reckless to pull out a loaded gun in a room full of people

and shoot at a person. Id. at 385. The Court of Criminal Appeals

disagreed:

Pulling out a gun, pointing it at someone, pulling the trigger twice, fleeing the scene (and the country), and later telling a friend "I didn't mean to shoot anyone" does not rationally support an inference that Appellant acted recklessly at the moment he fired the shots. The evidence here does not support a finding of recklessness and does

10 not rise to level that would convince a rational jury to find that if Appellant is guilty, he is guilty of only the lesser- included offense.

Id.

Likewise, in this case, pulling out a knife, raising it up in the air,

bringing it down in a single swing, stabbing the victim in the chest,

and fleeing the scene does not rationally support an inference that the

appellant acted recklessly at the moment she stabbed the victim.

Thus, she was not entitled to an instruction on manslaughter.

The evidence that the appellant points to in her brief also does not

rationally support a finding that she acted recklessly when she

stabbed the victim:

The wound track

The appellant points to the wound track, which she says

contradicts witness Stefne Henderson’s account of the stabbing.

Henderson testified that the appellant reached over the victim’s right

shoulder and stabbed her on the left side. 23RR 98. The autopsy

showed that there was no downward wound track, and the wound

track went from the victim’s left side to her right. 24RR 210, 229. The

11 appellant argues that if Henderson were correct, the wound track

should have gone from right to left.

First, it makes perfect sense that the track was from left to right. If

you are standing behind a person, and you reach over their right

shoulder to stab them on their left side (as Henderson testified), the

wound will probably start on their left side and proceed to their right

side, as you draw the knife back towards yourself (as the wound track

did in this case). Thus, the wound track actually corroborates

Henderson’s account of the stabbing.

Second, even if the wound track and Henderson’s account did not

jibe, there is nothing about the wound track that would rationally

show that the appellant acted recklessly when she stabbed the victim.

Thus, this evidence does not entitle the appellant to an instruction on

manslaughter.

Dr. Dewan’s testimony about a hypothetical surgery

Dr. Dewan is a cardiothoracic surgeon who operated on the

victim. 22RR 156-71. The appellant points to Dr. Dewan’s testimony

on cross-examination, where the defense counsel asked how Dr.

Dewan would want to approach a hypothetical surgery where he had

12 to cut a 1.5 centimeter long hole in a patient’s artery (i.e., the same

wound that the victim had). The doctor replied that the most direct

way would be to cut straight on, instead of coming at an angle from

the right or left, and he agreed with defense counsel that he would

want the patient to be still, that he would want to do the surgery with

the light on, and that he would want the patient to have their clothes

off. 22RR 184-90.

There is nothing about the testimony about a hypothetical surgery

that would rationally show that the appellant acted recklessly in

stabbing the victim. Thus, this evidence also does not entitle the

appellant to an instruction on manslaughter.

The lack of medical expert opinion on mental state

The appellant next points out that none of the medical experts

testified that the stabbing was intentional, and he further points out

that the pathologist (also referred to as the medical examiner)

specifically testified that she could not conclude that the homicide

was intentional.

The record shows that the medical examiner merely agreed with

defense counsel that she could not tell “who did it,” “why they did it,”

13 “if it was intentionally done,” or “if it was done in self-defense” based

on her work. 24RR 221. She clearly meant that it is not possible to

answer these kinds of questions based solely on an autopsy. This is

not affirmative evidence of anything, and it certainly is not

affirmative evidence of recklessness. Thus, the appellant was not

entitled to an instruction on manslaughter based on this testimony.

The evidence that the knife blade was small

The appellant also argues that jurors could have concluded that

the appellant did not have a specific intent to kill the victim because

there was some evidence that the knife blade was as small as 2.5

inches.

First, the State did not have to prove that the appellant had a

specific intent to kill because it alleged murder in three alternative

ways, two of which do not require an intent to kill.

Second, it really does not matter how long the blade was. The

evidence does not rationally support an inference that the appellant

acted recklessly at the moment she stabbed the victim in the chest

with a knife, regardless of the length of the blade.

14 Ryan Moore’s testimony

The appellant points to Moore’s testimony that the appellant

stabbed the victim as a “reflex” or “reaction” to the victim’s assault on

the appellant, and that the appellant appeared “shocked or confused”

by what had happened. 27RR 181, 224.

In context, Moore did not mean that the stabbing was an

involuntary reflex, like when a doctor taps your knee with a hammer.1

Rather, Moore meant that the appellant stabbed the victim in

response to the victim hitting the appellant first. This testimony

arguably shows that the stabbing was an intentional act, a conscious

response to the victim’s initial aggression. But in any case, there is

nothing about Moore’s testimony that would rationally show that the

appellant acted recklessly when she stabbed the victim.

When requesting the instruction on manslaughter at trial, the

defense said that Moore testified that the appellant was “swinging like

a windmill and wildly.” 27RR 257. But the testimony from Moore was

actually that the appellant swung “widely”, not “wildly.” 27RR 246,

1 Even if he had, testimony on involuntary reflex supports an instruction on “voluntariness” pursuant to Tex. Pen. Code § 6.01, not recklessness or manslaughter. The jury was instructed on voluntariness. CR 286-87.

15 258. Moore further testified that it was “one swing.” 2RR 246. The

trial court explained, “But so far as I know, the way [Ryan Moore]

demonstrated it, he says that she just swung once. It wasn’t like she

was swinging all over the place or anything like that. The motion he

made was over the shoulder one time.” 27RR 258. Thus, Moore’s

testimony does not support an inference that the appellant acted

recklessly.2

In sum, there is no evidence that would rationally support a

finding that the appellant acted recklessly when she stabbed the

victim. Therefore, she was not entitled to an instruction on

Standard of review for remaining points of error

A trial court’s decision to admit or exclude evidence should not be

reversed absent a clear abuse of discretion. The trial court abuses its

discretion when its decision lies outside the zone of reasonable

disagreement. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim.

App. 2005).

2 Moore’s testimony raises the issues of self-defense and sudden passion. The jury was instructed on both of these issues. CR 288-91, 300, 305.

16 Additionally, the trial court’s ruling will be upheld if it is correct

on any theory of law. This is true regardless of the reason the judge

gives for his decision, and is especially true regarding the admission

of evidence. Romero v. State, 800 S.W.2d 539, 543-544 (Tex. Crim.

App. 1990). Therefore, the State will submit several alternative

justifications for the court’s rulings.

In the event that the appellate court finds that the trial court erred

in admitting or excluding evidence, the next step is a harm analysis.

The erroneous admission or exclusion of evidence offered under the

rules of evidence generally constitutes non-constitutional error. See

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002)

(erroneous admission); Potier v. State, 68 S.W.3d 657, 663-66 (Tex.

Crim. App. 2001) (erroneous exclusion). Non-constitutional error

that does not affect a defendant’s substantial rights must be

disregarded. Tex. R. App. Proc. 44.2(b). A substantial right is affected

when the error had a substantial and injurious effect or influence on

the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997). Additionally, the conviction must be reversed if the reviewing

court has grave doubt that the result of the trial was free from the

17 substantial effect of the error. Barshaw v. State, 342 S.W.3d 91, 94

(Tex. Crim. App. 2011). Grave doubt means that, in the judge’s mind,

the matter is so evenly balanced that he feels himself in virtual

equipoise as to the harmlessness of the error. Id. The conviction

should not be reversed if the appellate court has fair assurance that

the error did not influence the jury, or had but a slight effect, after

examining the record as a whole. Motilla, 78 S.W.3d at 355.

Reply Point Two: The appellant cannot complain about the exclusion of the video because she did not try to admit the video. Additionally, the trial court did not abuse its discretion in refusing to allow the appellant to question Detective Nelson about the appellant’s out-of-court statements because he lacked personal knowledge of the statements and because the statements were hearsay. And any error in excluding the statements was harmless. The appellant argues that the trial court erred during the

guilt/innocence phase of trial by excluding Defense Exhibit 132,

which she says is a video of her emotional outburst upon learning that

the victim was going to die.

The video

The video was made in a police interview room, two days after the

stabbing. On the video, Detective Nelson begins to read Miranda

18 warnings to the appellant, but he stops when she hands him her

attorney’s business card and asks him to call her lawyer. DX 132 at

12:34. Detective Nelson says that he is not going to call her lawyer but

that she can do so. DX 132 at 12:34. He tells her that she is under

arrest for aggravated assault, but the victim is going to die. DX 132 at

12:34. He tells her that he cannot talk to her now, but after she talks

to her lawyer, he would like to know why she did it, and that the

victim’s mother deserves to hear the truth. DX 132 at 12:34-12:36.

Detective Nelson leaves the room, and the appellant cries. DX 132 at

12:37. About twelve minutes later, the detective lets the appellant’s

mother into the room. DX 132 at 12:49. The detective does not go in

the room. He shuts the door, leaving the appellant and her mother

alone in the room. DX 132 at 12:49. Over the next half hour, the

appellant is emotional. She cries and hugs her mother. She also

makes several statements to her mother. The following is a synopsis

of the appellant’s statements, but the court should refer to the video

itself for complete accuracy:

I did not mean to. So many people were out there, I didn’t know what to do. Please don’t let them take me. It was so many people! It was so many people! Is there any way I can go home to nana and papa? I just want to talk to her

19 [the victim’s mother]. I want to tell what happened. Her mom needs to know the truth. I did not, I did not, I did not mean to do this! Her family! Lord have mercy on my soul. I can’t believe this. It wasn’t my fault! It wasn’t my fault. I need to talk to her mother. I’m ready to go see my daddy. [Her father is deceased.] I apologize for everything I ever said about you dad, I’m ready to go to you. Mommy, I don’t have anything to live for. I tried my hardest and it didn’t work. Where’s Ed? [Her lawyer.] I tried to get into college, couldn’t make it. This is where God wants me to be. I can’t believe it. I didn’t want it to happen. I’m ready to go. Why did it all have to happen? I’m ready to go. Nothing to live for. I have not accomplished anything. I want to go see my daddy. She did not deserve that. Now two lives. It’s just so hard. I don’t want to live, I can’t live with myself. I need to talk to her mom. I apologize. I didn’t mean for any of this to happen, there was just so many people coming towards me. I’ve never been in that position in my life. I love you too, please don’t let me rot in here mom. Please don’t let me rot. I’ve been praying so much! I’m not even gonna get to go to college or anything. I never imagined this a day in my life, I would have never imagined. I’m ready to go. I’m ready to go see my daddy. Yes I am. Listen, she does not deserve that, she did not deserve anything. I prayed and prayed and this is what happened. I’ve lost my relationship with God. I lost it. This is what happens for me to have to come talk to him again. I lost everything, the person I used to be, everything. I lost everybody I was close to, everything. No he won’t. I don’t even want to think about that. I lost everybody. Except you and DJ [her brother]. I don’t want to think about my family, I don’t want to think about anything.

See DX 132 at 12:49-13:09.

20 After a half hour, Detective Nelson opens the door, and the

appellant’s mother leaves the room. DX 132 at 13:10. The appellant is

taken out of the room about five minutes later. DX 132 at 13:15.

Failure to preserve error

The appellant argues that the trial court erred in excluding the

video during the guilt/innocence phase of trial. But the appellant

never tried to admit the video into evidence during this phase of trial.

Instead, the record shows that she only wanted to question Detective

Nelson about the statements that the appellant made to her mother

while Detective Nelson was out of the room:

(outside the presence of the jury)

DEFENSE: And then her mother comes in, correct?

NELSON: Yes, sir.

DEFENSE: You allow a civilian who's not under arrest to come in and see her daughter, correct?

DEFENSE: And then when her mom comes in, is there immediate crying and wailing and sobbing?

DEFENSE: And during that part does she talk about this event or the events outside?

21 NELSON: Yes, she did.

DEFENSE: She did. Okay. And clearly crying and talking about wanting to kill herself and that type of stuff, correct?

NELSON: I believe she said something like that.

DEFENSE: Wanting to go see her daddy, I think is what she said?

DEFENSE: Judge, we would offer that as an excited utterance under Rule 803.

26RR 114-15.

The State and Defense then argued about 1) whether the

statements qualified as excited utterances and 2) whether the

detective could testify about the statements since they were not made

to him. 26RR 116-19. The trial court sustained the objection,

emphasizing the second point:

COURT: Well, let me ask this question. If I understand this witness's testimony is that there is no statement made to him; is that right?

STATE: Yes, sir.

DEFENSE: Yes, sir.

COURT: So, you know, I – just as to him, anyway, I mean, I don't see that we do have an excited utterance as to him.

22 DEFENSE: Okay. Then – so are you sustaining their objection to that?

COURT: I am.

26RR 119 (emphasis added).

Following this, the video was offered and admitted for appellate

record purposes only. 26RR 120. In other words, the video was

admitted as an offer of proof to show the character of the evidence at

issue. See Tex. R. Evid. 103(b). The appellant never tried to admit the

video into evidence itself.

The trial court then asked the detective some clarifying questions,

which clearly established that the detective had left the room and that

the statements were made to the appellant’s mother. 26RR 121-24.

The video also clearly shows that the statements were made to the

appellant’s mother while the detective was out of the room. The trial

court then tells the defense that the problem is that “there’s not any

statement actually made to this witness.” 26RR 124-27.

It is clear from the record that the defense only sought to ask

Detective Nelson about statements that the appellant made to her

mother while he was out of the room. The defense never tried to

admit the video into evidence. Thus, the appellant has not preserved

23 error on a complaint that the trial court erred in failing to admit the

video during guilt/innocence. See Tex. R. App. Proc. 33.1(a).

The appellant did try to admit the video as evidence during the

punishment phase of trial, and the court excluded it. The State will

address this ruling in Point Three. In the event that the appellate

court determines that the appellant tried to admit the video at

guilt/innocence, the State incorporates the arguments made in Point

Three to support the trial court’s ruling excluding the video.

No abuse of discretion – lack of personal knowledge

The trial court did not abuse its discretion in refusing to allow the

appellant to question Detective Nelson about the statements that the

appellant made to her mother because Detective Nelson did not have

personal knowledge of the statements.

A witness may not testify to a matter unless evidence is introduced

sufficient to support a finding that the witness has personal

knowledge of the matter. Tex. R. Evid. 602. Personal knowledge is not

defined, but the Texas Court of Criminal Appeals has stated that

personal knowledge will often come directly from the witness’s senses

(for example, what they have seen or smelled), or it may include an

24 opinion based on the witness’s own experience. Fairow v. State, 943

S.W.2d. 895, 898 (Tex. Crim. App. 1997). The burden is on the

proponent of the testimony to establish that the witness has personal

knowledge of the events. Id.

The appellant’s case is similar to Hartin. In that case, the trial

court refused to let the defendant’s mother testify that the defendant

was not intoxicated because she based her opinion on her review of a

police videotape. The court of appeals affirmed, explaining that the

mother’s opinion was not based on personal knowledge because she

did not personally observe the interactions on the videotape. Hartin

v. State, 2009 Tex. App. LEXIS 2765, *2-5 (Tex. App.—Beaumont

2009, pet. dism’d) (mem. op., not designated for publication).

Like Hartin, Detective Nelson did not personally observe or

overhear the statements that were on the videotape. In fact, Detective

Nelson was not even in the room when the statements were made.

Thus, Detective Nelson did not have personal knowledge of the

statements, and the trial court did not abuse its discretion in refusing

to let the appellant question him about these statements.

25 No abuse of discretion – hearsay

It was also within the trial court’s discretion to exclude Detective

Nelson’s testimony about the appellant’s statements because the

statements were hearsay. Hearsay is an out-of-court statement

offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d).

Hearsay is generally not admissible, except as provided by statute or

rules. Tex. R. Evid. 802.

The appellant argues that the hearsay exception for excited

utterances applies. An excited utterance is "A statement relating to a

startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition." Tex. R. Evid.

803(2).

As the Texas Court of Criminal Appeals has explained,

The twenty-four hearsay exceptions listed in Texas Rule 803 may be roughly categorized into (1) unreflective statements, (2) reliable documents, and (3) reputation evidence. The rationale for all of the exceptions is that, over time, experience has shown that these types of statements are generally reliable and trustworthy. The first set of hearsay exceptions, unreflective statements, are "street corner" utterances made by ordinary people before any thoughts of litigation have crystallized. These unreflective statements used to be called "res gestae," an imprecise Latin legalese term, because the speaker was not thinking about the legal consequences of his

26 statements. In most instances, the speaker was not thinking at all; the statement was made without any reflection, thought process, or motive to fabricate or exaggerate.

Fischer v. State, 252 S.W.3d 375, 379 (Tex. Crim. App. 2008).

Stated another way, the excited utterance exception is based on

the assumption that, at the time of the statement, the declarant is not

capable of the kind of reflection that would enable him to fabricate

information. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App.

2005). Therefore, the court must determine whether the statement

was made under such circumstances as would reasonably show that it

resulted from impulse rather than reason and reflection. Zuliani v.

State, 97 S.W. 3d 589, 596 (Tex. Crim. App. 2003). Factors the court

may consider include the length of time between the occurrence and

the statement, the nature of the declarant, whether the statement is

made in response to a question, and whether the statement is self-

serving. Apolinar, 155 S.W.3d 187.

The length of time between the occurrence and the statement.

The appellant argues that there was not a lot of time between when

Detective Nelson told the appellant that the victim was going to die

and when the appellant became emotional and made all of her

27 statements to her mother. But it is important to also consider that two

days had elapsed between the stabbing and the statements, since the

excited utterance exception is based on the assumption that the

statements were made at a time when the declarant is not capable of

the kind of reflection that would enable him to fabricate information.

Over this two-day period, the appellant had plenty of time to reflect

and to fabricate information. In fact, the appellant had already lied to

the police, telling them that she had not been present when the victim

was stabbed. 25RR 251.

Considering the two-day period since the stabbing and the fact

that, during this time, the appellant had already lied about her

involvement, this factor weighs against a finding that the appellant

was not capable of the kind of reflection that would enable her to

fabricate information. Cf. Blue v. State, No. 04-11-00726-CR, 2012

Tex. App. LEXIS 7895, *17-18 (Tex. App.—San Antonio 2012, pet.

ref’d) (mem. op., not designated for publication) (finding no abuse of

discretion in excluding the defendant’s statements as excited

utterances because 15-20 minutes was a sufficient length of time in

28 which the defendant could have formulated a story about why he

stabbed the victim).

The nature of the declarant. The appellant was clearly emotional,

so this factor weighs in favor of admission.

Whether the statement is made in response to a question. Most of

the statements were not in response to direct questioning. But

Detective Nelson had just finished telling the appellant that he would

like to know why she did it and that the victim’s mother deserves to

hear the truth, and the appellant clearly had this in mind because she

says multiple times that she wants to talk to the victim’s mother and

that the victim’s mom needs to know the truth. The appellant’s

mother also asks her “What would you say?” and the appellant makes

some further statements to answer this question. Thus, the

statements were not wholly spontaneous.

Whether the statement is self-serving. The predominant nature of

the appellant’s statements are self-serving. She says, “I did not mean

to do this,” “It wasn’t my fault,” and “I didn’t mean for any of this to

happen, there was just so many people coming towards me.”

29 Additionally, it is clear that the appellant’s statements were not

“street corner utterances” made before any thoughts of litigation had

crystallized, without any reflection, thought process, or motive to

fabricate or exaggerate. To the contrary, the appellant’s statements

were made in a police station interview room, after the police had

conducted an investigation, questioned the appellant and her friends,

and arrested the appellant for a felony offense. At the time she made

the statements, the appellant was aware that she was being charged

with a serious crime, and she clearly had a motive to fabricate or

exaggerate. Also, she had an additional motive in that she clearly did

not want her mother to think badly of her.

In sum, considering the two-day period that the appellant had to

reflect on the stabbing, the self-serving nature of the statements, and

her motive to fabricate or exaggerate, the trial court was well within

its discretion to exclude them. See Blue v. State, No. 04-11-00726-CR,

2012 Tex. App. LEXIS 7895, *17-18 (Tex. App.—San Antonio 2012,

pet. ref’d) (mem. op., not designated for publication) (upholding trial

court’s exclusion of defendant’s self-serving statements); Ingram v.

State, 2012 Tex. App. LEXIS 260, at *7-9 (Tex. App.—Dallas 2012,

30 pet. ref’d) (mem. op., not designated for publication) (same); Dyke v.

State, No. 06-11-00129-CR, 2012 Tex. App. LEXIS 2181, at *8-12

(Tex. App.—Texarkana 2012, pet. ref’d) (mem. op., not designated for

publication) (same).

Finally, the appellant argues that the trial court reversed itself and

ruled that her statements were admissible as excited utterances

during the punishment phase of trial. It is true that the court allowed

her mother to testify about the initial statements that the appellant

made upon finding out that the victim was going to die, as excited

utterances. 29RR 199-200. But the court never ruled that all of the

appellant’s statements to her mother were admissible, or that the

video was admissible, or that anyone other than her mother could

testify about the statements. Thus, the court did not reverse itself.

No harm

The appellant argues that exclusion was harmful because her

statements on the video that she “did not mean to do this” constitute

strong, probative evidence of her mental state at the time of the

stabbing. She argues that this evidence shows that she did not mean

to kill the victim or cause serious bodily injury. She also argues that

31 this evidence would have given her a basis for requesting an

instruction on manslaughter.

The appellant’s self-serving statements, made two days after the

stabbing and after her arrest, are not very probative of her mental

state at the time of the stabbing. Moreover, her statements do not

support a request for an instruction on manslaughter. See Cavazos,

382 S.W.3d at 385 (holding in similar circumstances that appellant’s

statement that he did not mean to shoot anyone, made a few days

after the shooting, did not rationally support an instruction on

manslaughter).

Additionally, all of the evidence at trial showed an intentional

stabbing. The appellant pulled out a knife, raised it up in the air,

brought it down in a single swing, stabbed the victim in the chest, and

fled the scene. Considering the evidence at trial, which does not

rationally show anything other than an intentional stabbing, any

error in excluding the statements is harmless.

32 Reply Point Three: The trial court did not err in excluding the video during the punishment phase because the video contained hearsay, it was more prejudicial than probative, and admission was not required under the best evidence rule. And any error in excluding the video was harmless During punishment, the trial court said that the appellant’s

mother could testify about the initial statements that the appellant

made when she found out that the victim was going to die, as excited

utterances, but she could not testify about all of the appellant’s

statements. 29RR 199-200.

The appellant then tried to admit the video under the best

evidence rule, but the trial court excluded it “on 403 grounds.” 29RR

201. On appeal, the appellant argues that the trial court erred in

excluding the video.

The appellant’s mother then testified that when she saw the

appellant at the police station, the appellant was crying and upset,

that she no longer wanted to live, that she said she was scared, and it

was so many people. 29RR 202-03.

The State repeatedly objected to any testimony about the stabbing

itself, and the trial court told the appellant’s mother that she was only

33 being asked about the appellant’s emotional reaction to the news that

the victim was going to die. 29RR 203-05.

The appellant’s mother then testified that the appellant cried, that

she did not want to be there, that she wanted to speak to the victim’s

mother, that she wanted to tell the victim’s mother that she was sorry,

that there was never any intent to harm the victim, and that

everything happened so fast. 29RR 206.

The appellant offered the video in its entirety. She never pointed

out specific statements or portions of the video that she wanted

admitted. The trial court is not obligated to sort through evidence in

order to segregate the admissible from the excludable. Therefore, if

any part of the video is inadmissible, the trial court could safely

exclude it all. See Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim.

App. 1992), cert. denied, 507 U.S. 1035 (1993), overruled on other

grounds by Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001)

(no error in excluding 70-page transcript because appellant never

specified which portions he wanted to introduce into evidence);

Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009) (no

34 error in admitting audiotapes because the appellant never specified

which portions were inadmissible).

With this in mind, the trial court did not abuse its discretion in

excluding the video for several reasons:

No abuse of discretion – hearsay

As argued in Reply Point Two, the appellant’s statements on the

video are hearsay, and the trial court acted within the zone of

reasonable disagreement in excluding these statements under the

excited utterance exception.

No abuse of discretion – Rule 403

The trial court also excluded the video under Rule 403, which

states that, “Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

consideration of undue delay, or needless presentation of cumulative

evidence.” Tex. R. Evid. 403.

In a Rule 403 analysis, the trial court must balance (1) the

inherent probative force of the evidence along with (2) the

35 proponent's need for that evidence against (3) unfair prejudice, which

refers to a tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one, (4) any

tendency of the evidence to confuse or distract the jury from the main

issues, (5) any tendency of the evidence to be given undue weight by a

jury that has not been equipped to evaluate the probative force of the

evidence, such as with scientific evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of

time or merely repeat evidence already admitted. Gigliobianco v.

State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

The video has some probative value in showing the appellant’s

remorse. She cries, and she says that the victim “did not deserve

that,” and “I apologize.”

But the appellant’s need to admit the video was low because her

mother testified about her crying and her statements. Also, she had

other ways of getting her remorse before the jury. She could have

questioned Detective Nelson about her demeanor, if she wanted to.

And the appellant could have testified herself.

36 The appellant argues that testimony was not as impactful as the

video would have been, but this just emphasizes the prejudicial

nature of the video. Watching her wail and sob for 30 minutes would

clearly have had an unfairly prejudicial emotional impact on the jury.

To illustrate, the State never would have been allowed to play a 30

minute video of the victim’s mother wailing and sobbing upon

hearing that her daughter was going to die.

In sum, the trial court did not abuse its discretion in excluding the

video under Rule 403 because the danger of unfair prejudice resulting

from the extremely emotional video substantially outweighed the

video’s probative value, especially since the appellant had the ability

to put evidence of her remorse before the jury through other sources.

Indeed, her mother testified about her remorse. Given the emotional

impact of the video, the trial court’s decision was at least within the

zone of reasonable disagreement.

No abuse of discretion – best evidence rule

The appellant also argues that the video should have come in

under the best evidence rule.

37 The best evidence rule states that, “To prove the content of a

writing, recording, or photograph, the original writing, recording, or

photograph is required except as otherwise provided in these rules or

by law.” Tex. R. Evid. 1002.

The best evidence rule has no application at all when a party calls

a participant or observer of a conversation to testify to it because it is

the contents of the conversation, not the contents of the recording,

that is the issue. See Matute v. State, No. 03-13-00601-CR, 2014 Tex.

App. LEXIS 12743, at *13-15 (Tex. App.—Austin Nov. 26, 2014, pet.

filed March 3, 2015) (mem. op., not designated for publication).

Alternatively, since the appellant’s mother participated in the

conversation, her testimony describing the conversation is the best

evidence of that conversation. Id. at *13.

Therefore, the trial court did not abuse its discretion in allowing

the appellant’s mother to testify about the conversation while

excluding a video recording of that conversation.

The appellant argues that exclusion of the video was harmful

because it showed her remorse. But her mother testified about the

38 events on the video, namely, that the appellant was crying and upset,

that she no longer wanted to live, that she wanted to tell the victim’s

mother that she was sorry, that there was never any intent to harm

the victim, and that everything happened so fast. 29RR 202-06.

The appellant argues that the jury might have doubted her

remorse and that the video would have convinced them that her

remorse was genuine. But on the video, it appears that the appellant

is mostly concerned about herself; she never takes responsibility for

stabbing the victim; she repeatedly says that it was not her fault; and

she wants to talk to the victim’s mother so that she can explain how

the stabbing was not her fault.

In any event, considering all of the evidence, including her

mother’s testimony about her remorse, exclusion of the video did not

have a substantial and injurious effect or influence on the jury’s

verdict.

39 Reply Point Four: The trial court did not abuse its discretion in admitting out-of-court statements under the excited utterance exception to the hearsay rule. And any error in admitting the statements was harmless At punishment, the State called several witnesses to testify about

an incident in May of 2009, where the appellant swung a knife at her

brother. The State called the appellant’s mother (Patricia Ritcherson),

the responding officer (Jared Jensen), and the appellant’s brother

(Donald “DJ” Ritcherson), in that order. While questioning Officer

Jensen, the State asked him to recount what Patricia and Donald had

said at the scene on the night of the incident, under the excited

utterance exception to the hearsay rule. The defense objected, arguing

that the statements were not excited utterances. The trial court

overruled the objection. 29RR 63.3

No abuse of discretion – excited utterances

The record supports the trial court's decision to admit Patricia and

Donald’s out-of-court statements under the excited utterance

exception to the hearsay rule.

3 The appellant also made a Confrontation Clause objection, but she does not raise this issue on appeal. There is no confrontation issue because both Patricia and Donald testified.

40 Patricia and Donald made the statements at 4 o’clock in the

morning, while the police were at their front door and the appellant

was cursing at everyone, immediately following a physical altercation

with the appellant, which included pushing and shoving and the

appellant swinging a knife at Donald. 17RR 7-10; 29RR 26, 44-46, 51,

54, 60-61. Furthermore, Officer Jensen testified that the scene was

“very chaotic,” that “a pretty major event had just happened,” and

that Patricia and Donald were “very excited,” “upset,” and appeared

to be under the influence of a recent startling event. 17RR 9, 11; 29RR

61, 63.

On this record, the trial court did not abuse its discretion in

admitting Patricia and Donald’s statements as excited utterances. At

the very least, the ruling was within the zone of reasonable

disagreement.

The majority of Officer Jensen’s testimony about Patricia and

Donald’s out-of-court statements was pretty much the same as the

testimony that Patricia and Donald gave themselves at trial. Basically,

the appellant wanted to leave the house, Patricia tried to stop her,

41 Patricia asked Donald to help, there was pushing and pulling, the

appellant got a knife, Donald wrestled the knife away from her, the

appellant claimed that Donald hit her, and Donald and Patricia

denied this. Jensen’s testimony on these points was merely

cumulative and could not have had more than a slight effect on the

jury. See Patricia’s testimony, 29RR 42-59; Donald’s testimony 29RR

80-95; Jensen’s testimony, 29RR 59-75.

There is only one important difference: Officer Jensen testified

that Donald told him that the appellant swung a knife at him and

tried to stab him, and Patricia gave pretty much the same story. 29RR

63-66. But at trial, Donald and Patricia testified that they did not

recall the appellant swinging a knife at Donald. 29RR 46, 87.

This is obviously a major difference, but it could not have had a

substantial effect on the jury’s verdict because the appellant herself

admitted to Officer Jensen that she swung a knife at Donald, and

Officer Jensen testified about her admission three separate times.

29RR 67, 72, 74.

42 In light of the appellant’s own admission that she swung a knife at

Donald, Officer Jensen’s testimony about other out-of-court

statements to this effect could not have had much effect on the jury.

Prayer

The State asks this Court to overrule the appellant’s points of error

and affirm the trial court’s judgment.

Respectfully submitted,

Angie Creasy Assistant District Attorney State Bar No. 24043613 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax (512) 854-4810 Angie.Creasy@traviscountytx.gov AppellateTCDA@traviscountytx.gov

43 Certificate of Compliance and Service I certify that this brief contains 8,188 words. I further certify that,

on the 23rd day of March, 2015, a true and correct copy of this brief

was served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to the defendant’s attorney,

Alexander L. Calhoun, Law Office of Alexander L. Calhoun, 4301 W.

William Cannon Dr., Suite B-150, #260, Austin, Texas 78749.

Angie Creasy