Rex Allen Nisbett v. State

Opinion

ACCEPTED 03-14-00402-CR 7774714 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/10/2015 5:24:44 PM JEFFREY D. KYLE CLERK No. 03-14-00402-CR

In the FILED IN 3rd COURT OF APPEALS Court of Appeals for the Third District of Texas AUSTIN, TEXAS at Austin 11/10/2015 5:24:44 PM ___________________________ JEFFREY D. KYLE Clerk No. 13-0481-K26 In the 26th Judicial District Court Williamson County, Texas ____________________________

REX ALLEN NISBETT Appellant v. THE STATE OF TEXAS Appellee _____________________________

STATE’S BRIEF IN RESPONSE _____________________________

Jana Duty District Attorney Williamson County, Texas

John C. Prezas State Bar No: 24041722 Assistant District Attorney 405 Martin Luther King, Box 1 Georgetown, Texas 78626 (512) 943-1234 (512) 943-1255 (fax) jprezas@wilco.org

ORAL ARGUMENT REQUESTED TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................... ii IDENTIFICATION OF THE PARTIES.............................................................. iv INDEX OF AUTHORITIES ...............................................................................v STATEMENT REGARDING ORAL ARGUMENT ............................................1 STATEMENT OF FACTS ..................................................................................1 SUMMARY OF THE ARGUMENT ................................................................. 35 ARGUMENT ................................................................................................... 36 I. THERE WAS SUFFICIENT EVIDENCE ADMITTED UPON WHICH THE JURY COULD RATIONALLY FIND APPELLANT GUITLY BEYOND A REASONABLE DOUBT .................................................................................. 36 A. The Standard............................................................................................ 36 B. The Voluminous Evidence of Appellant’s Guilt......................................... 40 While Appellant may point to any of these portions of evidence and downplay their individual significance, the cumulative force of all of this evidence together allows the jury to move far beyond mere speculation into the realm in which they could reasonably infer and rationally conclude beyond a reasonable doubt that Appellant murdered Vicki Nisbett. ............................................... 51 II. THE CHALLENGED JURY ARGUMENT DURING THE PUNISHMENT PHASE WAS PERSMISSIBLE AND EVEN IF IT WERE NOT THE TRIAL COURT’S DUAL INSTRUCTIONS TO THE JURY CURED ANY RESULTING HARM OR ERROR.......................................................................................... 51 A. The Argument was Not a Comment on Defendant’s Choice Not to Testify . 52 B. Case Law Establish Power of Curative Instructions to Jury ........................ 53 C. Trial Court Gave Two Instructions to Disregard Prosecutors Comment ...... 55 D. Appellant Requests the Wrong Remedy .................................................... 56 E. Any Error Not Cured by the Jury Instructions Was Ultimately Harmless .... 58 III. THE CHALLENGED QUESTION WAS NOT A COMMENT ON APPELLANT’S CHOICE NOT TO TESTIFY AND APPELLANT DID NOT PROPERLY PRESERVE THE ISSUE FOR APPELLATE REVIEW................. 58 A. The Question was Not a Comment on Appellant’s Choice Not to Testify ... 58 B. By Failing to Object, Appellant did not Properly Preserve the Issue for Appellate Review........................................................................................... 59 ii IV. THERE IS NEITHER HARM NOR ERROR IN THE CHALLENGED NOTICE BECAUSE APPELLANT DID HAVE NOTICE OF THE TESTIMONY AT ISSUE AND NEVER OBTAINED AN ORDER BINDING THE PROSECUTOR TO PROVIDE ANY NOTICE AT ALL ................................... 60 A. There was No Error Because the Trial Court Never Ordered Disclosure ..... 60 B. The State Disclosures Regarding Clement were Sufficiently Accurate to Put Appellant on Notice as to her Testimony......................................................... 61 1. The State Disclosed Prior to Trial that Megan Clement Would Testify as a DNA Expert................................................................................................ 61 2. The State’s Disclosure Accurately Described Clement’s Employer During the Time at Issue ......................................................................................... 62 PRAYER.......................................................................................................... 63 CERTIFICATE OF COMPLIANCE.................................................................. 63 CERTIFICATE OF SERVICE .......................................................................... 63

iii IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State

offers the following supplement to the parties listed in Appellant’s brief.

Attorneys for the State

• Mr. John C. Prezas (appeal), Assistant District Attorney for Williamson County, 405 Martin Luther King, Georgetown, Texas 78626.

• Mr. Daniel Sakaida (appeal), Assistant District Attorney for Williamson County, 405 Martin Luther King, Georgetown, Texas 78626.

iv INDEX OF AUTHORITIES

CASES Brooks v. State, 323 S.W.3d 893, 898-902 (Tex. Crim. App. 2010) ------------- 36, 39 Calderon v. State, 950 S.W.2d 121 (Tex. App.—El Paso 1997) --------------------- 53 Davis v. State, 645 S.W.2d 817, 818-19 (Tex.Crim.App. 1983) --------------------- 54 Fisher v. State, 851 S.W.2d 298 (Tex. Crim. App. 1993) ----------------------------- 38 Gardner v. State, 730 S.W.2d 675, 700 & n.13 (Tex. Crim. App.), cert. denied, 484 U.S. 905, (1987) ---------------------------------------------------------------------------- 53 Hacker v. State, 389 S.W.3d 860, 871 (Tex. Crim. App. 2013) ---------------------- 38 Hawkins v. State, 660 S.W.2d 65, 79 (Tex. Crim. App. 1983). ----------------------- 53 Hernandez v. State, 819 S.W.2d 806, 820 (Tex.Crim.App. 1991), cert. denied, 504 U.S. 974 (1992) ----------------------------------------------------------------------------- 54 Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ---------------------- 36, 37 Jackson v. State, 745 S.W.2d 4, 13-15(Tex. Crim. App.), cert. denied, 487 U.S. 1241 (1988) ---------------------------------------------------------------------------------- 53 Jackson v. Virginia, 443 U.S. 307, 319-320 (1979) ------------------------------------ 36 Laca v. State, 893 S.W.2d 171, 184 (Tex.App.--El Paso 1995, pet ref'd)----------- 54 Logan v. State, 698 S.W.2d 680, 682 (Tex.Crim.App. 1985) --------------------- 54, 55 Long v. State, 823 S.W.2d 259, 268-70 (Tex. Crim. App. 1991) --------------------- 53 McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) ------------- 36, 38, 39 McGee v. State, 774 S.W.2d 229, 238 (Tex.Crim.App. 1989) ------------------------ 54 Norton v. State, 851 S.W.2d 341, 345 (Tex.App.--Dallas 1993, pet. ref'd)--------- 54 Rent v. State, 982 S.W.2d 382, 385 (Tex. Crim. App. 1998) ------------------------- 57 Stobaugh v. State, 421 S.W.3d 787, 862 (Tex. App.—Fort Worth, 2014) ---------- 37 Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988) ----------------------- 53 Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013) --------------------- 37

STATUTES Tex. Code Crim. Pro. Art. 39.14(b)-------------------------------------------------------- 59 Tex. Code Crim. Proc. Art 49.22(b) ------------------------------------------------------- 55 Tex. R. App. Pro. 33.1(a)(1) ---------------------------------------------------------------- 58

v TO THE HONORABLE COURT OF APPEALS:

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.7, Appellant

has requested oral argument in this case. Therefore, to preserve its right to argue,

the State requests oral argument although the State believes that the facts and legal

arguments are adequately presented in the briefs and record, and that the decisional

process would not be significantly aided by oral argument.

STATEMENT OF FACTS

To more clearly analyze the issues raised, the state wishes to clarify and

supplement the facts recited in Appellant’s brief with the following:

Carol Johnson testified that she was notified on December 16, 1991, by

someone from Williamson County that her daughter, Vicki Lynn Nisbett, the

victim in this case, was missing. R.R. vol. 8 p. 38, 40. Carol has not seen, heard,

spoken, or received a letter from Vicki since December 1991. R.R. vol. 8 p. 46.

When Carol last saw Vicki, the last week of November 1991, Vicki and

Appellant were not living together. R.R. vol. 8 p. 39. Prior to her disappearance

Vicki had chosen to file for divorce from Appellant. R.R. vol. 8 p. 40.

Despite the circumstance of Vicki’s disappearance, Carol did not hear from

Appellant until several months after Vicki went missing. R.R. vol. 8 p. 40. Carol

1 spoke with Appellant for the second time after Vicki’s disappearance in May of

1992. R.R. vol. 8 p. 41. During that conversation Appellant told Carol the

following: (1) he didn’t know where Vicki was, (2) he suspected a person named

McDuff had abducted Vicki, (3) Vicki was probably dead, (4) he had hired an

investigator to find Vicki, and (5) he had already paid $30,000 in cash in efforts to

find Vicki. R.R. vol. 8 p. 41. During this conversation Appellant also told Carol

that no evidence was found, and specifically noted that no blood was found in the

apartment because when he moved out he and his mother cleaned it thoroughly.

R.R. vol. 8 p. 42. Appellant told Carol he was 95 percent sure McDuff was the

person who harmed Vicki. R.R. vol. 8 p. 43-44.

Carol asked the name of the investigator to whom Appellant had paid the

$30,000 but Appellant never told her. R.R. vol. 8 p. 42. Carol was never contacted

by a private investigator and was never able to verify whether or not Appellant had

ever actually hired such an investigator. R.R. vol. 8 p. 42.

Appellant told Carol the authorities got a warrant for his DNA, took him to

the hospital, and when he refused, brought him back to the jail where officers held

him down while they pulled out his hair and took his fingerprints. R.R. vol. 8 p. 43.

Appellant told Carol she could have Vicki’s personal items but never gave them to

Carol. R.R. vol. 8 p. 44.

2 Appellant did not allow Carol to see her three grandsons until seven or eight

months after Vicki’s disappearance. R.R. vol. 8 p. 44. Appellant required her to

meet him and the boys at the Galleria, where Appellant allowed her to spend only

one hour with boys. R.R. vol. 8 p. 45. During that time the boys did not speak to

Carol; only Appellant spoke. R.R. vol. 8 p. 45. A month later Appellant allowed

Carol another visit where the boys played in the yard and Carol spoke with

Appellant and Laura Leavit, with whom Appellant had moved in. R.R. vol. 8 p. 45.

Appellant began dating Laura Leavit shortly after Vicki’s disappearance. R.R. vol.

8 p. 176.

When Carol asked why she was not allowed to spend time alone with her

grandsons, Appellant told her he had to protect himself. R.R. vol. 8 p. 45. After

that Carol did not see her grandsons together again. She saw one of them, Ryan by

himself approximately 8 years later. R.R. vol. 8 p. 46. Prior to Vicki’s

disappearance Carol did see her grandchildren regularly so the limitations

Appellant placed on her visits with them was a significant change in her

relationship with them. R.R. vol. 8 p. 49.

Carol made several efforts to get information about Vicki, including

contacting multiple people in the Williamson County Sheriff’s Office, speaking

with Captain Elliot approximately weekly from December 1991 to May of 1992,

contacting Vicki’s pastor, and coordinating with a reporter from the Austin

3 American Statesman who printed several articles about Vicki. R.R. vol. 8 p. 47,

49. Carol knew Vicki to be a caring mother who would never willingly leave her

children behind. R.R. vol. 8 p. 49.

Julie Tower testified that she worked with Vicki for about a year prior to

Vicki’s disappearance, during which time they became friends. R.R. vol. 8 p. 64-

65. They would spend time together at softball games or birthday parties for the

children. R.R. vol. 8 p. 65. During the time Julie spent with Vicki, she observed

Vicki to be an excellent mother. R.R. vol. 8 p. 69.

Julie and Vicki planned to attend their company sponsored Christmas party

on December 14, 1991, together. R.R. vol. 8 p. 65. Julie called Vicki around 2:30

p.m in response to a message Vicki had left. R.R. vol. 8 p. 65. Vicki answered and

was upset because Appellant didn’t want her to go to the party. Vicki and

Appellant had been arguing. R.R. vol. 8 p. 66. Julie told Vicki to gather her things

and come to Julie’s house, from whence they could leave for the party together.

R.R. vol. 8 p. 66.

When Julie called at 5:00 p.m. to confirm the plan, Vicki answered in a

hysterical demeanor, continued an ongoing argument with Appellant that Julie was

able to hear, and told Julie that Appellant had choked her. R.R. vol. 8 p. 66. Julie

told Vicki to get her stuff and come to Julie’s residence immediately. R.R. vol. 8 p.

66. When Vicki had not arrived approximately thirty to forty-five minutes later,

4 Julie again called Vicki. R.R. vol. 8 p. 67. This time Appellant answered the

phone and told Julie that Vicki had just left, headed for Julie’s apartment. R.R. vol.

8 p. 67.

After waiting another 30 minutes or so without Vicki arriving, Julie called

again and again Appellant answered. R.R. vol. 8 p. 67. This time Appellant told

Julie that Vicki decided to go straight to the party and not go to Julie’s residence.

R.R. vol. 8 p. 67. Unsurprisingly for 1991, Julie testified that they did not have

cell phones at this time. R.R. vol. 8 p. 67. Julie eventually left without Vicki and

attended the party, expecting to see Vicki there, but Vicki never showed up. R.R.

vol. 8 p. 67-68.

The next morning Appellant called Julie, asking where Vicki was. R.R. vol.

8 p. 68. Julie responded by asking Appellant what he had done with Vicki and

Appellant hung up. R.R. vol. 8 p. 68. Some time later, Appellant called Julie

asking Julie to bring some Triaminic for Appellant’s son. R.R. vol. 8 p. 68.

Appellant met Julie at the door, where Julie saw, just inside the door, on a kitchen

bar ledge, pictures of Vicki and a candle burning, like a shrine. R.R. vol. 8 p. 68-

69.

Wayne Castleberry testified that he met Vicki on a Friday night in December

of 1991 at the Sneakers Night Club. R.R. vol. 8 p. 73-74. Vicki approached Wayne

and, despite being there with her brother-in-law, had a conversation with Wayne

5 that lead to the two of them exchanging phone numbers. R.R. vol. 8 p. 74-75.

During that conversation Vicki told Wayne that she was still married but separated.

R.R. vol. 8 p. 76. When Wayne called the number Vicki gave him the following

day, Appellant answered the phone, said Vicki wasn’t there, and tried to engage

Wayne in conversation. R.R. vol. 8 p. 76-77.

Wayne and Vicki continued to speak on the phone from Friday to Monday,

had lunch together on Monday, and continued to talk on the phone in the days

following their lunch date. R.R. vol. 8 p. 77-79. As their conversations continued,

Wayne spoke with Vicki on December 14, 1991, once in the morning and once in

the afternoon. R.R. vol. 8 p. 79. During the second of those calls, Wayne heard

Appellant listening on the phone, heard Appellant tell Vicki to quit talking about

him, and heard Appellant command Vicki in a harsh tone and loud voice to get off

the phone. R.R. vol. 8 p. 79-80.

Wayne and Vicki had plans to continue seeing each other when Appellant

moved out of Vicki’s residence and had made plans to spend time together after

the Christmas party Vicki was supposed to attend. R.R. vol. 8 p. 80-81. Wayne

never met with Vicki after the party and never heard from her again. R.R. vol. 8 p.

81. Wayne tried to call and find Vicki without success and drove by her residence

but only saw a truck that he assumed was Appellant’s. R.R. vol. 8 p. 81.

6 David Proctor, a police officer serving with the Williamson County Sheriff’s

Office in December of 1991 testified that he began serving in that capacity in 1985

and had occasions in his official capacity to see the inside of Vicki’s apartment.

R.R. vol. 8 p. 85-87. On those occasions Proctor observed that the apartment was

in a state of clutter or disarray typical of having a home in which children reside.

R.R. vol. 8 p. 87.

On December 16, 1991, Proctor was dispatched to a missing persons call

involving Vicki Nisbett and told to contact Rex Nisbett. R.R. vol. 8 p. 88-89.

Appellant told Proctor that Vicki left the apartment with a single change of

clothing, heading for the Christmas party and he had not seen her since. R.R. vol. 8

p. 89. Proctor gathered identifying information about Vicki and information about

her vehicle and entered into the statewide computer system so that if another law

enforcement agency encountered Vicki or her vehicle, that agency would, per

existant protocol, contact Williamson County. R.R. vol. 8 p. 89-92. Procotor

received and followed up on many leads, including contacting many people but no

one had seen or heard from Vicki after December 14, 1991. R.R. vol. 8 p. 92.

Proctor also went to Vicki’s apartment on December 16th, approximately two

days after she went missing, where Appellant was then staying, and noticed that

the normally cluttered apartment was suddenly immaculately clean. R.R. vol. 8 p.

93-94. Proctor also noticed that while the bathroom itself was very clean, the

7 vanity top and containers thereon had a great many personal grooming items of the

type not normally leave behind when travelling, such as hair brushes, blow driers,

and make up. R.R. vol. 8 p.94-95. Further, Proctor observed that Vicki’s closet

was still quite full. There did not appear to be the kind of large quantity of clothes

missing Proctor would have expected had Vicki simply decided to leave. R.R. vol.

8 p. 95.

Proctor spoke with Appellant during this visit. At first Appellant denied any

altercations or disputes but later, when Proctor asked again, Appellant admitted

that Appellant knew one of Vicki’s coworkers was aware that Appellant and Vicki

had an altercation on the evening of December 14. R.R. vol. 8 p. 96. Appellant

tried to explain away the altercation by telling Proctor that Vicki approached

Appellant in anger and Appellant pushed Vicki away defensively. R.R. vol. 8 p.

96-97. Proctor put out a statewide notice to be-on-the-lookout or BOLO to all law

enforcement agencies in the State and then handed off the investigation to Richard

Elliot, Captain of Criminal Investigations at the time. R.R. vol. 8 p. 97.

Jerry Fryer testified that in December of 1991 he was the pastor of Trinity

Christian Center and in that capacity got to know Appellant and Vicki as members

of that church. R.R. vol. 8 p. 103-104. Mr. Fryer and his wife developed a

friendship with Vicki and Appellant. R.R. vol. 8 p. q105-106. In addition, he

provided counseling to Vicki and Appellant together, and later to Vicki

8 individually. R.R. vol. 109-110. The last time Fryer saw Vicki, within two to

three days of her disappearance, he observed her to be extremely afraid, crying,

with her head down. R.R. vol. 8 p. 110. Fryer offered to help Vicki by using his

knowledge of safe places women could go to get away from situations inspiring the

type of fear he observed in her, but Vicki refused to accept his offer. R.R. vol. 8 p.

111. During the time Fryer knew Vicki he knew her to be a good mother. R.R. vol.

8 p. 111.

Chief Richard Elliot testified that he had served approximately 32 years as a

law enforcement officer in Williamson County, Texas, and had served four years

in the Navy, including three tours in Vietnam. R.R. vol. 8 p. 113-114. On

December 16, 1991, when Elliot was captain of the Criminal Investigation

Division, received calls from Appellant and from Vicki’s supervisor at her work,

based on which a missing persons investigation was begun with Proctor, handling

the initial report. R.R. vol. 8 p. 114-115.

When Elliot took over the investigation he interviewed Appellant, who

admitted that he and Vicki were in the process of getting divorced. R.R. vol. 8 p.

116-117, 120. Elliot reviewed the court documents relating to the divorce and

learned Appellant was served with a copy of the divorce paperwork, including

temporary orders and temporary child support, on November 15, 1991. R.R. vol. 8

p. 120-121.

9 Appellant told Ellliot that despite the divorce, Appellant had asked and

Vicki agreed to let Appellant move back into her apartment until after the

Christmas holidays so Appellant could be near the children. R.R. vol. 8 p. 121.

Appellant told Elliot that Vicki was supposed to go to the Christmas party and that

he stayed at the residence with the children and did not leave that night. R.R. vol. 8

p. 121-122. Appellant originally said the evening went fine, then said that he’d

heard another person say that he and Vicki had gotten into an argument. Appellant

confirmed to Elliot that he and Vicki had argued and then said that Vicki

approached him while angry and he pushed her away. R.R. vol. 8 p. 122.

Appellant told Elliot that Appellant believed Vicki had run off with some man,

something she had done on other occasions, that he thought she was ok, and that he

believed she would return before Christmas. R.R. vol. 8 p. 122.

Elliot continued to investigate and spoke with, among others, Jerry Fryer,

Julie Coen, now Julie Tower, and Wayne Castleberry. Elliot’s recollection of

those conversations, and of the written statements given by Julie Coen/Tower and

Wayne Castleberry, matched the testimony of those individuals. R.R. vol. 8 p. 121-

128.

At one point Appellant contacted Elliot and told Elliot he believed Vicki was

staying with a close friend in Galveston named Carri Moore. Elliot contacted

Moore but was unable to locate Vicki. R.R. vol. 8 p. 128. Elliot contacted the

10 Texas Department of Public Safety, hereinafter “DPS”, specifically their Missing

Persons Unit, to have information put in state and national computer systems.

Elliot also monitored Vicki’s bank records, had DPS do an offline search on

Vicki’s vehicle to see if any law enforcement agency had stopped it, and reached

out to local news media asking anyone with information to come forward. Elliot

also spoke with several to multiple individuals following leads that ultimately were

not fruitful. R.R. vol. 8 p. 128-130. Elliot specifically spoke with Morris “Bubba”

Smith who provided Elliot with a written statement. R.R. vol. 8 p. 131.

Appellant told Elliot that he, Appellant, was going to put up posters but

Elliot was not aware of him ever having done so. Appellant also told Elliot that he

had hired private investigators and spent large sums of money but Elliot was never

able to confirm this claim, in part because Appellant never gave Elliot the name of

any such investigator and no such investigator ever contacted Elliot. R.R. vol. 8 p.

132.

Elliot testified that from subpoenaing Vicki’s bank records he learned Vicki

deposited a paycheck the day before her disappearance in the amount of $807.07.

R.R. vol. 8 p. 133-134. The Court admitted without objection State’s Exhibit 5, the

paystub from the deposited paycheck, and State’s Exhibit 6, the bank records. R.R.

vol. 8 p. 134. While watching Vicki’s bank account, Elliot noticed a check that

11 appeared to be out of sequence and written from a different checkbook, based on

numbering, than the one Vicki had been using. R.R. vol. 8 p. 135.

Elliot asked Appellant about it and Appellant said he signed Vicki’s name to

that check to get gas from a Diamond Shamrock. R.R. vol. 8 p. 135. Elliot made

this admission abruptly before Elliot could even finish his question and acted

surprised that the Sheriff’s Office was monitoring Vicki’s accounts. R.R. vol. 8 p.

136, 180. Appellant wrote this check from Vicki’s account, not a joint account,

five days after Vicki’s disappearance. R.R. vol. 8 p. 180. After this conversation,

Appellant did not write any more checks on that account and neither did anyone

else. R.R. vol. 8 p. 180-181. Elliot recorded this conversation and that recording

was admitted without objection as State’s Exhibit 7. R.R. vol. 8 p. 136-137. Vicki

did not have any credit cards so far as Elliot was aware. R.R. vol. 8 p. 138.

Approximately six weeks after Vicki disappeared Appellant was evicted

from the Apartment, at which time Elliot obtained consent from the apartment

manager to search the apartment and obtained the assistance of the DPS Crime Lab

in conducting the search. R.R. vol. 8 p. 138-139. Elliot was present when persons

from the DPS searched and forensically examined the apartment. R.R. vol. 8 p.

141. During his career Elliot has been to hundreds of crime scenes and been

present when investigators processed a large number of such scenes. R.R. vol. 8 p.

144-145. State’s Exhibits 8 through 19, photographs of the scene as it was when

12 this examination was conducted were admitted without objection. R.R. vol. 8 p.

141-144. While Elliot was present he observed the collection of carpet pieces from

the entranceway and the closet, padding from underneath the carpet, and two

pieces of sheetrock. R.R. vol. 8 p. 146-147. Some of those items were sent for

testing. R.R. vol. 8 p. 147.

While they were conducting this search, Appellant showed up twice at the

residence and expressed great curiosity about what law enforcement had found in

the apartment. R.R. vol. 8 p. 139-140. Both times he showed up Appellant tried to

convince Elliot not to bother with the search. R.R. vol. 8 p. 139-140. Based on the

curiosity Appellant expressed, Elliot invited Appellant to come by his office so that

they could sit down and discuss what Elliot had found. R.R. vol. 8 p. 140.

However, instead of Appellant showing up to discuss matters, a private attorney

called Elliot, explained that Appellant would not be showing up, and forbid Elliot

from talking to Appellant any further. R.R. vol. 8 p. 140.

In January of 1992, Elliot enlisted the help of a Mrs. Johnson to get a

message to Appellant that the police had found Vicki’s body in hopes that

Appellant would check on the place where he had disposed of Vicki’s body,

thereby revealing it to the law enforcement. In fact, when law enforcement

watched Appellant, they learned Appellant’s vehicle was broken down, and

observed Appellant obtained a ride down a road that had several large wooded

13 areas. R.R. vol. 8 p. 148. Elliot searched portions of the very large wooded area

with cadaver dogs but did not locate Vicki’s body. R.R. vol. 8 p. 148.

During the investigation, the Sheriff’s Office released the license plate

information for Vicki’s car in hopes of locating it. Despite claiming to have paid

$30,00 to a private investigator to find Vicki, Appellant contacted the Sheriff’s

office upset and demanding to know why they had released her license plate

information. R.R. vol. 8 p. 149.

The Sheriff’s Office located Vicki’s car in February of 1992 in an HEB

parking lot, found that Appellant’s name was also on the registration, and asked

Appellant for consent to search Vicki’s vehicle. Again, despite claiming to have a

strong interest in finding Vicki, Appellant denied consent to search the vehicle, and

told Elliot that he needed to speak with his attorney. Rather than wait to hear from

Appellant’s attorney, Elliot obtained a search warrant and had the same individuals

that examined and searched Vicki’s apartment assist Sheriff’s office personnel in

processing the vehicle. R.R. vol. 8 p. 148-150.

Inside the car, law enforcement observed that the light bulb was removed

from the dome light, which would have prevented it from turning on when the car

door was open. R.R. vol. 8 p. 150. Elliot was present while the car was examined

and testified as to the accuracy of the photographs taken of the car, which were

14 admitted without objection as State’s exhibits 20 through 30. R.R. vol. 8 p. 151-

152.

At some point during Elliot’s investigation, Appellant changed his story

from asserting to Elliot that Vicki had just run off with some man and would return

at some point, to a claim that Kenneth McDuff, a serial killer in the news at the

time, had killed Vicki and left her body on the roadside. R.R. vol. 8 p. 155-157.

Elliot never had any leads or evidence pointing towards Kenneth McDuff. R.R.

vol. 8 p. 157.

After his arrest Elliot interviewed Appellant, laid out the fruits of his

investigation and explained what he believed happen. Appellant expressed great

anger at statements made on television that he was homeless but never expressed

any anger at being described as a murderer. Further, during the approximately

twenty two years that Elliot worked on this case prior to Appellant’s arrest, never

once did directly tell Elliot that he did not kill his wife, Vicki. R.R. vol. 8 p. 160-

161.

Randy Traylor testified that although currently employed as an investigator

with the Williamson County District Attorney’s Office, from 1982 to 2005 he was

employed as a Sergeant Investigator by the Williamson County Sheriff’s

Deparment where he was given several investigative assignments related to this

case. R.R. vol. 8 p.182-183. Traylor was present when the DPS personnel analyzed

15 and processed Vicki’s apartment and took measurements. He went there a second

time six days later to collect a control sample of carpeting that he submitted to the

DPS to assist with their analysis of other carpet samples taken. R.R. vol. 8 p. 185-

186, 202-205.

Mr. Traylor confirmed the accuracy of State’s Exhibits 32 through 37 and 39

through 41, photographs of the inside and outside of Vicki’s apartment taken at the

time it was processed and photographs of the carpet sample collected, which were

admitted into evidence without objection. R.R. vol. 8 p. 187-188, 203-204. Mr.

Traylor also prepared a diagram of Vicki’s apartment, marked with points where

evidence was collected, which was offered and admitted into evidence. R.R. vol. 8

p. 195-198. Mr. Traylor testified that the apartment, and particularly the bedroom,

was small even without the furniture that would have been in it at the time of

Vicki’s disappearance. R.R. vol. 8 p. 200-201. Traylor also testified that from the

bottom of the stairs in the apartment a person could only see someone standing in

the doorway and it would be difficult to see much else. R.R. vol. 8 p. 218.

Traylor also confirmed, consistent with Elliot’s testimony, that the Sheriff’s

Office entered Vicki into the DPS Missing Persons Clearing House, which has

access to information the Sheriff does not, such as credit checks. The Sheriff’s

Department also did an off-line search of Vicki’s license plate to see if any law

enforcement agency had run her license plate. R.R. vol. 8 p. 206-207. Traylor

16 obtained Vicki’s dental records and entered that information into the National

Crime Information Center or “NCIC” in case any other law enforcement agency

might recover a body for comparison. The Sheriff’s Office received dozens of

calls regarding unidentified bodies, but each time a comparison was made between

Vicki’s dental records and the body, that comparison revealed the body was not

Vicki. R.R. vol. 8 p.207-208, 210-211.

Traylor also witnessed a phlebotomist collect blood from both of Vicki’s

parents for use in DNA analysis, as blood was necessary for such analysis at the

time, collected the blood, and transported it to the DPS for analysis. R.R. vol. 8 p.

208, 210, 217-218, vol. 10 p. 147-152. The blood kit and blood vials were admitted

as State’s exhibit 70. R.R. vol. 10 p. 174-179. Traylor verified the vials used as a

predicate to their admission and that evidence was admitted as State’s exhibit 75

and 76. R.R. vol. 11 p. 86-90.

Traylor had two conversations with Appellant after Vicki’s disappearance.

R.R. vol. 8 p. 211. During the first conversation Appellant was unhappy that his

wages had been garnished to pay for child support and wanted help getting that

money back now that he had to care for his children. Appellant also stated he

wanted to confront Chief Elliot about lies he claimed people from the Sheriff’s

Department were telling his neighbors about him. Finally, Appellant made a vague

representation to Traylor that Appellant had “some financial stuff” that he believed

17 a private investigator could use to locate Vicki within a couple of days and was

considering hiring such an investigator. R.R. vol. 8 p. 211-212. Appellant did not

give the name of the investigator or any other details and Vicki was not found.

R.R. vol. 8 p. 212-213.

The second time they spoke, Traylor called Appellant seeking information

and learned from Appellant the name of Vicki’s dentist and that Vicki had been

arrested for theft when she was approximately twenty years old. Using this

information Traylor obtained a set of Vicki’s fingerprints and her dental records,

which he released to the Missing Persons Clearing house so it could be included in

the NCIC entry. R.R. vol. 8 p. 213-214. If law enforcement anywhere in the

United States that had access to NCIC found Vicki they would have her

fingerprints and dental records and contacted the Sheriff’s Department about it.

The Department never received such information. R.R. vol. 8 p. 215.

Kelly Misfeldt testified that he lived in the same apartment complex and

shared a common wall with Vicki Nisbett. R.R. vol. 9 p. 6. Misfeldt spoke with

Appellant on December 14, 1991, the day of Vicki’s disappearance and Appellant

apologized for the noise from the Nisbett’s apartment. R.R. vol. 9 p. 7. Misfeldt

did testify he saw a person he believed to be Vicki standing outside his apartment

15 days after Vicki disappeared. R.R. vol. 9 p. 8-9. However Misfeldt also

conceded that he did not know the Nisbetts well, they were merely acquaintances,

18 it was almost 5:00 p.m. in the winter time of December, it was starting to get dark,

the person he saw was dressed in a black jacket, black slacks, and black shoes,

there were no street lights or lighting on the apartment building, that the person he

saw was standing thirty to thirty-five feet away from the apartments, he was

looking from his second story window, the person he saw did not approach or talk

to anyone, enter an apartment, get into a car, or knock on a door, and he gave a

statement to the police in which he stated he could not be 100 percent sure it was

Vicki. R.R. vol. 9 p. 9-11, 14-17. Misfeldt denied that from this vantage point the

carport in the parking lot would obscure his view, but State’s exhibit 37 is a

photograph of the area described, including the car port and calls into question the

clarity of Misfeldt’s view. R.R. vol. 9 p. 16; R.R. vol. 16.

After seeing this, Misfeldt encountered Appellant and remarked on what he

had seen. Appellant told Misfeldt he was going to call the authorities, but Misfeldt

never verified whether or not Appellant did so. R.R. vol. 9 p. 12. Misfeldt did tell

Appellant what the person she saw was wearing and Appellant responded by

saying those were the same clothes Vicki was wearing on December 14th, when she

disappeared. R.R. vol. 9 p. 13.

Morris “Bubba” Smith testified that he lived in the same apartment complex

as Vicki and Appellant, and while they were acquaintances at first, he came to

know Appellant better because Appellant would stop by to talk. R.R. vol. 9 p. 25-

19 28. Appellant asked to borrow Smith’s car around mid-December. R.R. vol. 9 p.

30. Smith did not recall that he watched Appellant’s sons but testified without

objection when asked by both the State and Appellant’s counsel, that his sister

reminded him that he did watch Appellant’s sons once and that his sister rented

and brought over a movie for them to watch. R.R. vol. 9 p. 30, 38. Smith did have

to review the statement he wrote at the time to refresh his memory of events that

occurred approximately twenty two years prior to the trial.

Smith did recall checking on his car the morning after he lent Appellant his

car and watched Appellant’s sons. When he did so, Smith found damage to the

headlights and that the lock on the trunk had been knocked out. R.R. vol. 9 p. 30-

33. Smith was confident in his memory of the damage to the trunk’s lock. R.R.

vol. 9 p. 43. Smith’s car had two keys, one for the ignition and one for the trunk.

R.R. vol. 9 p. 33. Smith did not recall ever seeing Vicki after the day Appellant

borrowed his car.

Lana Faye Reed, Smith’s sister, testified that she was living with him in the

same apartment complex as Vicki and Appellant in December of 1991 and January

of 1992. R.R. vol. 9 p. 51-52. Reed clearly remembered Appellant asking to

borrow Smith’s car and asking Smith to watch Appellant’s sons for him, because

she did not know Appellant or Vicki very well. R.R. vol. 9 p. 52-53. Reed went

and got a movie from a video store for the children to watch. R.R. vol. 9 p. 53.

20 State’s Exhibit 42, the receipt from the video store showing the movies Reed

rented at 7:52 p.m. on December 14, 1991, was admitted into evidence without

objection. R.R. vol. 9 p. 54-56. Smith watched Appellant’s sons for an hour to an

hour and a half. R.R. vol. 9 p. 56.

Robert James testified that back in 1991 he worked for the same company as

Appellant and on at least one occasion Appellant discussed with James problems in

Appellant’s marriage. R.R. vol. 9 p. 62-63. Specifically, Appellant told James that

he caught his wife cheating and he thought about killing her but that wouldn’t be

the Christian thing to do. R.R. vol. 9 p. 71.

Mark Johnson, Vicki’s brother, testified that he went with Appellant to land

owned by Appellant’s brother Mike, and while there observed many excavating

holes. Upon seeing these holes Appellant commented to Johnson that someone had

already done half the work and somebody could throw a body in there and no one

would ever find it. R.R. vol. 9 p. 83-85. During the course of their relationship as

in-laws, Appellant discussed the possibility of divorce with Johnson. Appellant

told Johnson that he would kill Vicki before he let her divorce him and take his

three boys. R.R. vol. 9 p. 85.

After Vicki’s disappearance, Johnson returned to the same property with the

holes, and knocked on the door seeking permission to look aroud the property for

signs of Vicki. Johnson heard commotion inside the house but no one answered

21 his knock. Johnson was initially going to go around the side of the house but he

overheard someone direct someone else to call the police and Johnson got scared

and left. R.R. vol. 9 p. 85-86. There was a barn-like garage on the property that

Johnson wanted to search. He was never given permission to stay on the property

or to search it or the garage for evidence relating to Vicki. R.R. vol. 9 p. 86.

Johnson knew her to be a good mother to her three sons and not the kind of person

or mother to abandon her children or her family for over twenty years. Johnson

has not heard form his sister since December of 1991. R.R. vol. 9 p. 87-88.

Donnie Rodriguez testified that he was retired from the Cedar Park Police

Department, where he was employed on December 14, 1991. At that time, while he

was on patrol he noticed a vehicle that slowed and would not pass him and had a

yellow ribbon tied onto the antennae. Rodriguez ran the license plate of the

vehicle a between 9:30 and 9:35 p.m. and it came back to Vicki Nisbett, the victim.

R.R. vol. 9 p. 104-105, 107. The vehicle was headed northbound on South Bell or

183 towards 1431. R.R. vol. 9 p. 105. State’s exhibit 43, a map of the area

described by Rodriguez was entered into evidence without objection. R.R. vol. 9

p. 106. Rodriguez recalled the driver as the only occupant and that the driver had

dark colored hair cut short. R.R. vol. 9 p. 110. When shown a picture of Vicki,

admitted as State’s Exhibit 2, Rodriguez agreed that Vicki had short hair. R.R. vol.

9 p. 111.

22 Diane Kagan testified that back in late 1991 she was a coworker of Vicki’s.

She saw what she recognized as Vicki’s car on December 28th in a parking lot of

HEB. R.R. vol. 9 p. 115-116. Kagan went to the same HEB on January 3, 1992,

looked for Vicki’s car and noted it was not there. Kagan went back to the same

HEB on January 4th and this time saw Vicki’s car parked in the same spot she had

seen it on December 28th. R.R. vol. 9 p. 117-118. During each of these visits to

HEB, Kagan went into HEB to buy groceries. She did not see Vicki in the store on

any of these occasions and she has not seen Vicki since December of 1991. R.R.

vol. 9 p. 118-119.

Devon Clarke testified that he was employed as a forensic scientist for DPS

in 1992. R.R. vol. 10 p. 7-8. Clarke went to Vicki’s apartment to process the scene,

noticed stains on the carpet and on the sheetrock on the walls that tested

presumptively positive for blood. R.R. vol. 10 p. 8-13. Having found a

presumptive positive, Clarke packaged the samples, sealed it, and returned it to his

lab where he conducted further testing. R.R. vol. 10 p. 15-16. This further testing

revealed that item 1, a piece of sheetrock taken from the upstairs bedroom, was

human blood R.R. vol. 10 p. 10, 16. Clarke collected item 2, a piece of sheetrock

removed from near the light switch containing a hand print or palm print, sent it to

the Latent Prints Division for fingerprint analysis first, and then conducted further

23 testing that revealed the material making up the hand stain was human blood. R.R.

vol. 10 p. 18-19, 31.

Clarke also conducted tests with luminal, a very sensitive substance that

reacts to the iron in the hemoglobin of blood and functions as a presumptive test

for blood; photos of this testing were admitted without objection as State’s 44

through 47. R.R. vol. 10 p. 21-22. Clarke collected item 3, admitted into evidence

as State’s 16, a section of the carpet from the bedroom and that tested presumptive

positive for human blood using phenolphthalein. R.R. vol. 10 p. 25-26. Clarke

collected item 4, admitted into evidence as State’s exhibit 17, the carpet pad from

the closet that tested presumptively positive for human blood. R.R. vol. 10 p. 28-

29.

Clarke preserved the items collected and sent items 3 and 4 to another lab

for DNA analysis by Dr. Arthur Eisenberg. R.R. vol. 10 p. 29, 30-32. Item 5 is a

sample of carpet taken from near the bedroom door that tested presumptive

positive for blood. R.R. vol. 10 p. 30. As part of his standard practice at the time,

Clarke made drawings of where in the apartment he found items 1-5; these were

admitted into evidence as State’s exhibits 48 through 50. R.R. vol. 10 p. 32-34.

The documents made and kept by Clarke’s lab as a record of the submission,

testing, and results for items 1 through 5 were admitted into evidence as State’s

exhibit 51. R.R. vol. 10 p. 37-39. Clarke also asked Randy Traylor to collect a

24 negative control sample of the carpet and pad with no stains and, upon receipt,

analyzed those as well and guard against the possibility of a false positive. R.R.

vol. 10 p. 36, 42, 60, 63.

Clarke assisted in processing and analyzing samples from Vicki Nisbett’s

vehicle at the Sheriff’s Department impound lot. No blood was found, only debris

was collected for possible trace evidence, and the debris was not analyzed. R.R.

vol. 10 p. 42-44, 67-68. Clarke also assisted Elliot by processing a scene wherein

he recovered four items, including bones of some kind, that were held for future

analysis. R.R. vol. 10 p. 44, 73-74. Clarke is not an expert on animal bones, could

not say whether or not those bones were human or animal, and was not aware of

whether or not those bones were ever linked to this case. R.R. vol. 10 p. 73-73, 78-

79.

On cross-examination Clarke conceded that the tests he ran were

presumptive and not confirmatory and that luminol will react with substances other

than blood. R.R. vol. 10 p. 51-55, 58-59. Clarked did testify that he analyzed these

samples with both luminol and phenophtalein. R.R. vol. 10 p. 10-13, 25, 28, 30,

38-39 ,58. He further testified that he did confirm the presence of human blood on

item 4, the padding beneath the carpet. R.R. vol. 10 p. 76. Clarke testified that

based on his expertise, blood is a viscous liquid and it would require a fair amount

of blood to soak through a carpet and into the carpet pad. R.R. vol. 10 p. 77. Clarke

25 testified he was not aware of any test that would let him detect the presence of

bleach, hydrogen peroxide, or any other cleaning agent to determine if the Nisbett

bedroom where he took his samples had been cleaned. R.R. vol. 10 p. 71.

Chief Richard Elliot testified that he sought and obtained a search warrant

for the fingerprints, palm prints, blood sample, body hair sample, and pubic hair

sample, of Appellant, which was admitted into evidence as State’s exhibit 68. R.R.

vol. 10 p. 103-106. Elliot was present when the samples were taken. Appellant

initially refused to cooperate and said they would have to take the samples by

force. Once Elliot explained the consequences of using force against police

officers, Appellant relented. R.R. vol. 10 p. 107-109. Sgt Tom Adams was also

present, took fingerprints from Appellant, and transported the other samples to the

DPS. R.R. vol. 10 p. 108, 110-111, 113.

Tom Adams testified that in 1992 he was employed by the Williamson

County Sheriff’s Department, a part of his thirty two years in law enforcement.

R.R. vol. 10 p. 98. Over that time, he had a great deal of experience taken

fingerprints from people as that was his primary duty while at the Sheriff’s

Department. R.R. vol. 10 p. 99-100. Pursuant to the search warrant Elliot obtained,

Adams obtained Appellant’s fingerprints while Appellant was in the Williamson

County jail via fingerprint cards admitted into evidence as State’s exhibits 66 and

67. R.R. vol. 10 p. 100, 115-118, 127. After collection, Adams took the prints to

26 the Department of Public Safety. R.R. vol. 10 p. 119. Adams was also present

when Appellant’s blood was drawn pursuant to the warrant and transported the

vials of blood, admitted into evidence as State’s exhibit 71 and 72, to the DPS for

analysis. R.R. vol. 11 p. 5-12.

Oscar Kizzee testified that he was previously employed as a latent print

examiner for the DPS crime lab and had significant experience with finger prints

even in 1992. R.R. vol. 10 p. 84-86. In 1992, Kizzee examined a piece of sheetrock

with a stain that appeared to be blood and obtained latent prints therefrom,

photographs of which were admitted as State’s exhibit 52, 53, 53A, 54 through 58.

R.R. vol. 10 p. 91-96, 127-128. He compared the latent prints to the known prints

of Appellant that Adams obtained. R.R. vol. 10 p. 124, 134. Adams found that

Appellants finger and palm prints matched the latent prints he lifted with sheetrock

that appeared to be stained with blood. R.R. vol. 10 p. 130-136. When developing

the latent prints, Adams used amido black, a substance that reacts to proteins in the

blood. R.R. vol. 10 p. 135

Bryan Strong testified that he is employed by the DPS crime lab doing the

job Kizzee used to do. R.R. vol. 10 p. 139-140. Strong reexamined the

comparisons previously done of Appellant’s prints to the samples collected from

Vicki’s apartment and concluded that they were match, agreeing with Kizzee’s

conclusion of the same. R.R. vol. 10 p. 141-145.

27 Texas Ranger Matt Lindemann testified that he has been employed by DPS

since 1990. In 2002 he received evidence from Sgt. Lummus of the Williamson

County Sheriff’s Department, which he identified as State’s exhibit 73, and

transported it to the DPS crime lab for analysis. R.R. vol. 11 p. 14-19.

Detective Kee with the Sheriff’s Department testified that in 2013 he

collected swabs from Carol and Earl Johnson that he identified as State’s exhibit

74. R.R. vol. 11 p. 20-25.

Megan Clement testified that she is the senior director at Cellmark

Forensics, a private laboratory that examined the carpet and padding as well as

known samples from Appellant, Carol Johnson, and Earl Johnson. R.R. vol. 10 p.

152-154, vol. 11 p. 46. Clement described the scientific process by which she, in

cooperation with the Texas College of Osteopathic Medicine’s radiation facilities,

generated results and data that she sent to Dr. Eisenberg at the University of North

Texas for reverse parentage analysis. R.R. vol. 10 p. 154-162. Vol. 11 p. 45-47. A

photocopy of the actual data and result she generated and sent was admitted in

evidence as State’s 69. R.R. vol. 11 p. 47-48. Clement explained her

interpretations of these results to the jury and her conclusion that she could not

exclude the blood sample on the carpet as originating from a biological child of

Carol Johnson and Earl Johnson. R.R. vol. 11 p. 48-50.

28 Heidi Prather, the program supervisor for the Missing Persons Clearing

House at DPS, testified that the Sheriff’s Department contacted her agency for help

about a month after Vicki went missing. R.R. vol. 11 p. 52-55. The clearing house

took several steps in their search for Vicki, all of which came up negative. These

included searches on electronic records such as Texas and out of state driver’s

licenses, banking records, vehicle registration, social security information, credit

applications, utilities, employment records, criminal histories, arrests, traffic stops,

hospital records, public record databases, Interpol for out of country activity, vital

statistics for things like marriages, divorces, children born, and pawn transactions.

R.R. vol. 11 p. 55-59.

Because they compare a variety of collected personal data, Prather testified

that the clearing house can locate people even if they operate under an alias or

assumed name. R.R. vol. 11 p. 59-60. They also entered in to law enforcement

databases a wide variety of information pertaining to Vicki, have her fingerprints

and dental records for use in comparing with any bodies found, and publicized

requests for information about her via a paper bulletin previously and a website

currently. R.R. vol. 11 p. 55-56, 60-65. Despite all of these efforts the clearing

house has not received any leads or information about Vicki living anywhere and

Vicki’s body has not been found. R.R. vol. 11 p. 65.

29 Michael Lummus, currently chief of police in Lockhart, testified that in 2002

he worked for the Williamson County Sheriff’s Department. R.R. vol. 11 p. 75.

While at the Sheriff’s Department he obtained oral swabs for DNA analysis from

Carol and Earl Johnson, which were admitted into evidence as State’s exhibit 73,

and gave them to Ranger Matt Lindemman. R.R. vol. 11 p. 76-85.

Jane Burgett, a forensic scientist in the DNA-serology section of the DPS

crime lab with seventeen years experience, testified about her education, training,

expertise, explained the basics of her discipline to the jury, and explained how the

science had changed over the twenty two years from Vicki’s disappearance to the

trial. R.R. vol. 11 p. 101-115. Burgett testified that she tested the swabs taken

from Carol and Earl Johnson, which she identified and was admitted into evience

as State’s Exhibit 74. R.R. vol. 11 p. 115-117. Burgett also identified State’s

Exhibits State’s 75 and 76 as blood vials and State’s Exhibit 73 as saliva samples

of Carol and Earl Johnson she used in her analysis. R.R. vol. 11 p. 117-119.

Burgett identified photos she took to document evidence as it was being examined

or evidence that was already collected to keep a record of the state of the evidence

as it was stored. These were admitted as State’s exhibit 77 through 89A. R.R. vol.

11 p. 124-125.

Burgett then explained the analysis she performed and her conclusions

regarding the various samples gathered. Item 1, a piece of sheetrock, was

30 determined to contain blood of human origin and there was an unknown female

who could not be excluded as a major contributor to that sample. The sample was

then sent to the University of North Texas (“UNT”) because they have the ability

to determine whether that unknown female could be the child of a known sample,

that given by Vicki’s parents. R.R. vol. 11 p. 125-131.

Item 2, the sheetrock with the palm print was determined to be in blood of

human origin. It had a DNA mixture of two people and Appellant could not be

excluded as a contributor. R.R. vol. 11 p. 131-138. The probability of selected an

unrelated person at random who could be a contributor to this mixture is

approximately one in 117.3 thousand for Caucasians. R.R. vol. 11 p. 174-176.

Item 3, a piece of carpet from the closet, had human blood that, when DNA

tested, it was determined the same unknown female could not be excluded but

Appellant could be excluded because the other contributor to this DNA mixture

was another unknown female. R.R. vol. 11 p. 138-141, 166-167, 177-178. This

item was also sent to UNT for further testing. R.R. vol. 11 p. 177.

Item 4 is a portion of carpet padding that had blood of human origin and was

sent to UNT for further testing. R.R. vol. 11 p. 141. Item 5 is another piece of

carpet that was presumptively tested by Devane Clarke at DPS. Mr. Clarke did not

collect and freeze a sample for further testing. Burgett did presumptive testing

herself but it ws negative. R.R. vol. 11 p.141-142, 163-166.

31 Burgett did testify that because DNA comes from white blood cells but the

iron that luminesces with luminol is in the red blood cells it is possible to get DNA

from evidence that doesn’t always appear to have blood on it. She also testified

that it becomes less likely to obtain DNA evidence from blood in carpet if the

carpet has been steam cleaned. R.R. vol. 11 p. 171-173.

Appellant’s affidavit to a divorce that he filed in Fort Bend County was

admitted as State’s exhibit 90. R.R. vol. 12 p. 5.

Dr. Arthur Eisenberg testified he is a professor at UNT and Operational

Director of the UNT Center for Human Identification, which is responsible for

identifying human remains and missing persons for Texas and the United States

government and assists the Texas Attorney General’s Child Support Enforcement

Division by determining the biological parents of certain children. Eisenberg

described his extensive education, training, and experience as a pioneer and expert

in the parentage testing field, and described the science of DNA and reverse

parentage testing. R.R. vol. 12 p. 6-15.

Eisenberg received known samples from Appellant, Carol Johnson, and Earl

Johnson, as well as an evidentiary sample of bloody carpet stain and an evidentiary

sample of padding with blood soaked into it. He had Megan Clement of the

Tarrant County Medical Examiner’s Office who worked part-time in his lab,

extract DNA from the carpet and padding stains. R.R. vol. 12 p.10. All the

32 samples, both known and evidentiary, yielded human DNA. R.R. vol. 12 p. 15.

Eisenberg then conducted his analysis and determined that Appellant could not

have been a contributor to the blood on either the carpet or the padding. R.R. vol.

12 p. 15-16. He also determined that the bloodstains originated from the offspring

of Carol and Earl Johnson with a probability of 99.999999 probability of

parentage. Eisenberg stated he had little doubt that the samples came form the

offspring of Carol and Earl Johnson sine the genetic results were approximately

124 million times more likely to have originated from their biological child as

opposed to a random, untested, unrelated invidivual of the Caucasian population.

R.R. vol. 12 p. 16-18.

Farrah Plopper testified as to her education, training, and experience as a

forensic DNA analyst at the UNT Center for Human Identification under Dr.

Eisenberg. R.R. vol. 12 p. 22-24. She examined Item 2 and did not observe any

potential bloodstains and did not test further. She did note that portions of the

sheetrock appeared to have been scraped away before she received it. R.R. vol. 12

p. 24-27. She also acknowledged that the passage of time since collection and

testing could impact the results because DNA can degrade. R.R. vol. 12 p. 32.

In 2009 Plopper analyzed the DNA extracted from item 3 and determined

that Carol and Earl Johnson cannot be exclude as the parents of the person who left

the DNA on the stain thereon. The parentage probability that they are the parents

33 of the person who left that DNA is 99.75% compared to two unrelated, untested,

random individuals. R.R. vol. 12 p. 32-34. In 2014, compared the known samples

from Carol and Earl Johnson with the unknown female contributor DPS obtained

from the sheetrock and carpet samples. Plopper determined that Carol and Earl

Johnson cannot be excluded as parents of the person whose DNA is on Item 1 and

Item 4. Her analysis showed 99.9999999999 percent of the population would be

excluded as being a biological child of Carol and Earl Johnson R.R. vol. 12 p. 34-

36.

Brooks Nisbett testified that he is Appellant’s brother and visited Appellant

often in the fifteen months leading up to trial. In all that time and all those visits,

and despite Brooks helping Appellant locate or contact people, Appellant never

asked Brooks to help him locate Vicki. R.R. vol. 12 p. 45-48. During that time

Appellant told Brooks three times that he is upset the prosecutors referred to him

as homeless but never once state he was upset that they have labeled him a murder.

R.R. vol. 12 p. 52. Appellant never told Brooks he isn’t guilty and ask for help

finding Vicki. R.R. vol. 12 p. 52-53.

Samantha Henderson testified that she works for the Austin Police

Department handling forensic multimedia. She explained her training and

experience in this area and the process of photo enhancement. R.R. vol. 12 p. 56-

58. She applied these techniques to States exhibit 21 and produced the images in

34 States exhibits 95 and 96. She explained the process she used to produce these

images, which more clearly show a checkbook and State’s exhibits 95 and 96 were

admitted into evidence. R.R. vol. 12 p. 58-60.

Appellant called his older brother Mike Nisbett, who testified generally

about his land, that he made renovations to it in late 1996 or 1997 but denied

otherwise digging holes. He also sponsored a photo of portions of his property

admitted as Defense exhibit 2. R.R. vol. 12 p. 76-81.

SUMMARY OF THE ARGUMENT

Appellant’s first point of claimed error fails because the cumulative force of

the evidence presented in this case is more than sufficient for a rational jury to find

Appellant guilty of murder beyond a reasonable doubt. Appellant’s second point of

claimed error fails because the prosecutor’s argument during the punishment phase

of the trial was not a comment on Appellant’s choice not to testify. The trial

court’s oral and written instructions to the jury cured any potential error and any

resulting error was harmless. In addition, even if there were harmful error,

Appellant requests the wrong remedy.

Appellant’s third point of claimed error fails because the prosecutor’s

question during was not a comment on Appellant’s choice not to testify and

Appellant did not properly preserve the issue for appellate review. Finally,

35 Appellant’s fourth point of claimed error fails because Appellant did, in fact,

receive notice prior to trial that Megan Clement would testify as a DNA expert and

because the trial court never ordered the State to make disclosures, a prerequisite to

showing a violation of the discovery statute.

ARGUMENT

I. THERE WAS SUFFICIENT EVIDENCE ADMITTED UPON WHICH

THE JURY COULD RATIONALLY FIND APPELLANT GUITLY

BEYOND A REASONABLE DOUBT

A. The Standard

When considering a challenge to the sufficiency of the evidence, the

reviewing appellate court must view all of the evidence in the light most favorable

to the prosecution to determine whether any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319-320 (1979); Brooks v. State, 323 S.W.3d 893, 898-902

(Tex. Crim. App. 2010); McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.

1997)(finding the evidence of murder sufficient despite the lack of the victim’s

body or a witness to the actual killing).

The reviewing court must defer to the trier of fact’s resolution of conflicts in

testimony, the weight given the evidence, and the reasonable inferences drawn.

36 Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This Court may

consider events occurring before, during, and after the commission of the offense

and can rely those actions of Appellant’s that show an understanding and common

design to do the prohibited act. Id. Each individual fact does not have to point

directly or independently to Appellant’s guilt so long as the cumulative force of all

the evidence is sufficient to support the conviction. Id. Circumstance evidence

alone can be sufficient to establish guilt. Id.

Appellant cites Stobaugh v. State, 421 S.W.3d 787, 862 (Tex. App.—Fort

Worth, 2014, pet. ref’d.), for the proposition that while juries can draw reasonable

inferences from the evidence, they cannot reach conclusions based on mere

speculation or inferences unsupported by facts. In this, he is correct. In, Megan

Winfrey v. State, the case cited by Stobaugh for support, the Court of Criminal

Appeals said

"[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them," while "[s]peculation is mere theorizing or guessing about the possible meaning of facts and evidence presented." Id. at 16. "A conclusion reached by speculation . . . is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt."

Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013). (quoting Hooper

214 S.W.3d at 13).

In the Stobaugh case itself the only evidence presented was that the

defendant and victim were getting divorced, lies the defendant told after the victim 37 went missing, and the defendant’s failure to notify anyone of the victim’s

disappearance or to attend court settings for the divorce. There was no blood,

threats, or other evidence that any actual harm had occurred to anyone. Stogaugh,

421 S.W.3d at 865. As set forth in subparagraph II below, and set forth above, the

facts at issue here clearly distinguish the instant case from Stobaugh.

Appellant mistakenly relies on the dicta discussing motive and opportunity

in a murder case in Hacker v. State, 389 S.W.3d 860, 871 (Tex. Crim. App. 2013),

a decision reversing the revocation of a deferred-adjudication based on insufficient

evidence that Hacker violated a “no contact” provision of probation. Appellant’s

Brief p. 15. In Hacker, the Court of Criminal Appeals stated that motive for

murder is meaningless where there is no evidence at all of the victim’s death. Id.

But the lack of a body or autopsy evidence is not the same thing as no evidence

and precedent makes clear that neither does that lack necessarily equate to

insufficient evidence. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.

1997); Fisher v. State, 851 S.W.2d 298, 303-304 (Tex. Crim. App. 1993)(holding

statute requiring State to produce and identify body or remains was expressly

repealed and the evidence was sufficient despite such lack).

The McDuff case is pertinent here as it involves the testimony of a co-

defendant who witnessed McDuff sexual assault and slap the victim but was

dropped off while the victim was still alive. The Court of Criminal Appeals

38 rejected McDuff’s claim that the remaining evidence was insufficient, even when

coupled with the co-defendant’s testimony, due to the lack of a body, autoposy, or

a confession. McDuff, 939 S.W.2d 607 at 613-615. The court took note of all of

the circumstantial evidence, some of which mirrors the evidence in this case such

as lack of activity in the victim’s bank and charge accounts, testimony from family

that the victim would not just disappear and leave everything behind,

uncharacteristic cessation of contact, and a DPS serologist testimony that some

items found in Appellants car contained small amounts of human blood. Id at 612-

615.

It is true that in the McDuff case the co-defendant actually saw McDuff

strike the victim whereas here, Julie Tower only heard Vicki say that Appellant

had choked her. R.R. vol. 8 p. 66. However, Tower was also able to hear and

observe Vicki’s demeanor, which she described as hysterical and is consistent with

a reasonable reaction to having just been choked. R.R. vol. 8 p. 66.

In addition to the lack of Vicki’s body, Appellant points to testimony by

Kelly Misfeldt that he saw Vicki briefly after Vicki went missing. Yet given the

volume of other evidence presented, and the circumstances of that viewing, the

jury as, as the finder of fact, was able to make a credibility determination regarding

the weight to be given Misfeldt’s testimony that this court must not disturb or

circumvent. See e.g. Brooks, 323 S.W.3d at 900-901 (part of holding that factual

39 sufficiency and legal sufficiency review indistinguishable lies in the great amount

of deference an appellate court owes to a jury’s credibility and weight

determinations).

B. The Voluminous Evidence of Appellant’s Guilt

As this Court can readily ascertain from the lengthy Statement of Facts

above, the jury had a great deal of evidence in the form of both testimony and

exhibits upon which to base their verdict. When viewed in the light most favorable

to their verdict, it becomes clear that a rational jury could, and indeed did, find

Appellant guilty beyond a reasonable doubt of Vicki Nisbett’s murder.

Among this volume of evidence, when viewed in the light most favorable to

the jury’s verdict, several key points stand out. These include:

• Appellant’s Violence the Day Vicki Disappeared

o The last time Jerry Fryer saw Vicki, just a few days before she

disappeared, she was extremely afraid, crying, and had her head down.

Fryer was so struck by this he offered to help Vicki get to a safe place he

knew through his work as a pastor where women could escape situations

inspiring such fear.

o When Wayne Castleberry called in the afternoon he heard:

 Appellant listening on the phone

40  Appellant chastising Vicki for talking about him

 Appellant commanding Vicki in a harsh tone and loud voice to get

off the phone

o When Julie Tower called Vicki later in the afternoon to confirm their

evening plans:

 Vicki had a hysterical demeanor.

 Vicki and Appellant continued an ongoing argument loudly

enough for Julie to hear

 Vicki told Tower that Appellant had choked her.

• Evidence Gathered at the Apartment

o When Officer Proctor visited Vicki’s residence after her disappearance,

he found the apartment immaculately clean as opposed to the typical

disarray he had come to know as typical for Vicki’s residence.

o Appellant told Carol Johnson no blood was found in Vicki’s apartment

because when he moved out Appellant and his mother cleaned it

thoroughly.

 The jury might reasonably infer that Appellant would only clean an

apartment from which he was evicted and for which he was not on

the lease to hide evidence.

41 o Proctor noticed Vicki left behind a closet full of clothes and many

personal grooming items she would need had she simply left her children

behind.

o After Appellant was evicted for not being on the lease, they executed a

search warrant for Vicki’s apartment and collected samples that, after

analysis and testing by a variety of scientists and experts revealed:

 Appellant’s finger and palm prints in Vicki’s blood on the

sheetrock wall,

 Vicki’s blood on the carpet in the bedroom

 Vicki’s blood on the padding beneath that carpet

• Unusual Cessation of Contact

o Carol Johnson, Vicki’s mother, has not seen, heard, spoken, or received a

letter from Vicki since December 1991.

o Carol told the jury Vicki was a caring mother who would never willingly

leave her children behind.

o Jerry Fryer and Julie Tower also testified that Vicki was a good mother.

o Elliot entered Vicki’s information into the DPS Missing Person’s Unit,

monitored her bank records, did an search for any law enforcement

contacts, and reached out to the news among other steps. Yet, since her

42 disappearance in 1991, not a single hit has occurred anywhere in the

United States of which Elliot or any other witness was aware.

o Randy Traylor obtained a set of Vicki’s fingerprints and dental records

and had those sent to the Missing Persons Clearinghouse as well, yet no

unidentified body has ever matched this data.

o Heidi Prather of the DPS Missing Persons Clearing House testified to the

many efforts she made and the wide variety of records her agency

searched without success in the twenty two years between Vicki’s

disappearance and the trial. This despite Prather’s testimony that her

agency can find people even if they use an alias or assume dname.

• The Check

o While monitoring Vicki’s bank records, Elliot noticed a check written out

of sequence, after her disappearance, and written from a different

checkbook, based on numbering, than the one Vicki was using.

o Appellant admitted he signed Vicki’s name to that check and made the

admission abruptly before Elliot could even finish his sentence.

Appellant expressed surprise Elliot was monitoring Vicki’s accounts.

 Appellant wrote this check on Vicki’s account, not a joint account,

while they were going through a divorce, and after her

disappearance

43  Once Appellant learned Elliot was monitoring Vicki’s accounts he

did not write any more checks on her account and neither did

anyone else.

 Samantha Henderson’s efforts enhancing the checkbook in the

photos taken of Vicki’s car, State’s 21, 95, and 96, show that the

checkbook from which Appellant wrote the check was in Vicki’s

car when it was found long after she disappeared

 If Vicki truly walked out unharmed and Appellant never saw her

again and had no idea where she was, how did he get access to the

checkbook in the vehicle that went missing around the time she did

and was not located until long after her disappearance by someone

else? The jury could reasonably infer he had access to the

checkbook because he had access to her vehicle and that he had

access to her vehicle because he was operating her vehicle after her

disappearance.

• Appellant’s Excursion the Night of Vicki’s Disappearance

o Despite telling Elliot that he was at Vicki’s residence the entire night,

Appellant borrowed Morris Smith’s vehicle and asked Smith, someone

he didn’t know that well, to watch his children while he was gone.

44 Appellant did not know that Smith’s sister would bring over a video

when he left his children with Smith.

 From these circumstances, the jury might reasonably infer that

whatever reason compelled Appellant to borrow a vehicle the same

night as Vicki’s disappearance was very urgent.

o Appellant returned the car with damaged headlights and the lock to the

trunk knocked out. This is significant because that model of car had two

keys—one for the trunk and one for the vehicle.

o The jury might reasonably infer that Appellant was hiding and disposing

of evidence of his crime during this time.

• Appellant’s Incriminating Statements and Misleading Statements

o Appellant told his co-worker Robert James that he caught his wife

cheating on him and he thought about killing her.

o Appellant told Mark Johnson, Vicki’s brother, that he would kill Vicki

before he let her divorce him and take his three boys.

 This is especially significant because at the time of her

disappearance, Vicki was seeking a divorce from Appellant, had

served Appellant with divorce paperwork, did have custody of the

boys, and had a new paramour.

45 o While on Mike Nesbitt’s property, when encountering excavating holes

on, Appellant told Mark Johnson, that someone had done half the work

and somebody could throw a body in there and non one would ever find

it.

o Lies to Carol Johnson

 Appellant told Carol Johnson that he hired a private investigator to

find Vicki but when she asked he could not give her the name of

the investigator and no such private investigator ever contacted

her.

 Appellant told Carol Johnson she could have Vicki’s personal

items but was never able to give them to her.

o Appellant’s story to Julie Tower about Vicki’s whereabouts after he

choked her changed:

 First Appellant told Tower Vicki had just left for Tower’s

apartment.

 Thirty minutes later, when Tower called to check on Vicki,

Appellant then said Vicki went straight to the party instead of

going to Tower’s residence.

 Tower testified they did not have cell phones at this time so

Appellant would have had no way of knowing Vicki had decided

46 to go straight to the party if Vicki had truly left the apartment just

before the previous call.

o Lies to Officer Proctor

 Denied any altercations or disputes occurred initially, and only

upon further questioning did he admit he knew Tower heard the

altercation on the phone.

 Told Proctor he pushed Vicki away defensively—a description

quite different from Vicki’s statement that he choked her

o Lies to Chief Elliot

 Appellant told Elliot that the night Vicki disappeared he stayed at

Vicki’s residence with the children all night, but actually borrowed

Morris Smith’s vehicle and left his children in Smith’s care

 First said the evening of Vicki’s disappearance went fine, but later

admitted he was aware another person said he and Vicki had an

argument. Indeed, Tower testified she overheard them arguing

while on the phone with Vicki.

 Eventually Appellant admitted the argument got physical but

blamed Vicki saying she approached him angrily and he pushed

her.

47  Appellant told Elliot he paid a large sum of money to a private

investigator to find Vicki, but never gave a name or any

information about this investigator—preventing Elliot from

verifying Appellant’s claim or offering information, assistance, or

collaboration with the investigator.

• Appellant’s Behaviors Commensurate with Consciousness of Guilt

o Appellant called Julie Tower the morning after Vicki’s disappearance

asking about Vicki. Julie responded by asking Appellant what he had

done with Vicki. Rather than respond or say anything at all, Appellant

hung up.

o Some time after Vicki disappeared Appellant asked Julie Tower to bring

him some Triaminic for his son. Appellant met Tower at the door but

Tower still observed a shrine on the kitchen bar, complete with pictures

of Vicki and a burning candle.

o Despite the circumstances, Carol Johnson did not hear from Appellant

until several months after Vicki went missing.

o Appellant did not allow Carol Johnson to see her grandsons until seven or

eight months after Vicki’s disappearance, limited her visits, did not allow

her to talk with her grandsons, and did not allow her to be alone with

48 them. This was a significant change from her relationship with them

prior to Vicki’s disappearance.

o When Carol Johnson asked Appellant why she could not spend time

alone with her grandchildren, Appellant told her he had to protect

himself.

o Appellant showed up twice while police were searching Vicki’s

apartment and tried to discourage them from continuing the search.

o Elliot had a third party get a message to Appellant that police had found

Vicki’s body. Undeterred by his vehicle being broken down, Appellant

got a ride to a several large wooded areas.

o Despite having claimed to have spent $30,000 on a private investigator to

find Vicki, Appellant called the Sheriff’s office to complain when police

released Vicki’s license place to the public in hopes of locating Vicki’s

vehicle.

 The jury might reasonably infer Appellant was worried Vicki’s

vehicle would be found, since he was still accessing it, as he must

have to get her checkbook and write a check from it.

o Despite claiming to want to find Vicki, when police located Vicki’s car

and asked Appellant, who was also on the registration, for permission to

search the car, he refused to grant consent and said he needed to speak

49 with his lawyer. This despite no charges having been filed and police not

having yet confronted him with their suspicions.

o When Elliot interviewed Appellant after his eventual arrest, Appellant

expressed great anger at being labeled homeless on television but never

expressed any anger at being accused of murder.

o When Appellant’s brother Brooks visited Appellant frequently in the

months between Appellant’s arrest and the trial, never once did Appellant

ask for help finding Vicki.

 Further, just as with Elliot, Appellant expressed anger to Brooks

three times about being called homeless but never once expressed

anger at being called a murderer.

• Appellant had motive

o Appellant and Vicki were going through a divorce.

 Appellant admitted this fact to Elliot.

o Despite the divorce, Vicki let Appellant move back in with her until after

the Christmas holidays so Appellant could be close to their children.

o This gave him a front row seat when Vicki had begun seeing other

people, especially to her budding romance with Wayne Castleberry.

o Appellant began dating Laura Leavit shortly after Vicki’s disappearance

50 While Appellant may point to any of these portions of evidence and

downplay their individual significance, the cumulative force of all of this evidence

together allows the jury to move far beyond mere speculation into the realm in

which they could reasonably infer and rationally conclude beyond a reasonable

doubt that Appellant murdered Vicki Nisbett.

II. THE CHALLENGED JURY ARGUMENT DURING THE PUNISHMENT

PHASE WAS PERSMISSIBLE AND EVEN IF IT WERE NOT THE

TRIAL COURT’S DUAL INSTRUCTIONS TO THE JURY CURED ANY

RESULTING HARM OR ERROR

In his second point of error, Appellant complains about a comment the

prosecutor made during closing arguments at the punishment phase of his trial. The

prosecutor noted that all the parents of the victim wanted was to know the location

of their daughter’s remains and began to explain that the defendant had denied

them that. R.R. vol. 15 p. 57-58. Appellant objected and his objection was

sustained. Appellant requested and received an oral instruction to disregard.

Appellant then requested and was denied a mistrial. R.R. vol. 15 p. 58.

51 A. The Argument was Not a Comment on Defendant’s Choice Not to

Testify

Appellant construes the argument as a comment on his choice not to testify

in trial. However, the prosecutor’s argument was directed at Appellant’s failure to

admit his guilt and disclose the location of Vicki’s remains when Appellant was

interviewed by law enforcement.

As the Statement of Facts above reveals, during the course of the

investigation Appellant spoke with multiple law enforcement officials, including a

conversation with Randy Traylor and multiple conversations with Richard Elliot.

Appellant could have come clean during any of these conversations and it was

permissible and proper for the prosecutor to point this out during the punishment

phase of the trial. Further, after Vicki’s disappearance, Appellant distanced

himself and his children from Vicki’s parents. The prosecutor could permissibly

point out in her punishment closing argument that Appellant chose to clam up and

stay away from Vicki’s parents during the approximately twenty two years that

elapsed between Vicki’s disappearance and the trial rather than, at any point prior

to trial, coming clean and telling them what he did with Vicki.

52 B. Case Law Establish Power of Curative Instructions to Jury

Even if this Court believes the prosecutor’s argument was indeed a comment

on Appellant’s failure to testify, Appellant misunderstands the law on this point.

Appellant cites Owen v. State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983) for

the proposition that an improper comment on an accused’s failure to testify cannot

generally be cured by an instruction to disregard.

Indeed that used to be the prevailing legal theory. However, that general

legal rule has been significantly eroded over the years and now applies only in the

most blatant examples. See, e.g., Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim.

App. 1988). The court of criminal appeals has, in recent years, frequently held that

an instruction to disregard may cure an impermissible comment on an accused's

failure to testify. See, e.g., Long v. State, 823 S.W.2d 259, 268-70 (Tex. Crim. App.

1991); Jackson v. State, 745 S.W.2d 4, 13-15 (Tex. Crim. App. 1998), cert.

denied, 487 U.S. 1241 (1988); Gardner v. State, 730 S.W.2d 675, 700 n.13 (Tex.

Crim. App. 1987), cert. denied, 484 U.S. 905, (1987); Hawkins v. State, 660

S.W.2d 65, 79 (Tex. Crim. App. 1983).

In fact the El Paso Court of Appeals noted this evolution of the law back in

1997, explaining:

Some current decisions suggest that an instruction may cure, in certain circumstances, even a direct and explicit comment. See, e.g, Long, 823 S.W.2d at 269 (finding that the State did not contest the remark's characterization as an impermissible comment on the defendant's 53 failure to testify, but instead argued that the comment was invited; comment in question was a direct comment on failure to testify); Bower v. State, 769 S.W.2d 887, 907 (Tex.Crim.App. 1989) (finding that comment on defendant's lack of remorse was cured by instruction), cert. denied, 506 U.S. 835, 113 S. Ct. 107, 121 L. Ed. 2d 66 (1992). However, the presumption remains that an instruction to disregard does not cure error with respect to direct, and certain indirect, comments on failure to testify. See De Los Santos v. State, 918 S.W.2d 565, 570 (Tex.App.--San Antonio 1996, no pet.).

Calderon v. State, 950 S.W.2d 121, 136 (Tex. App.—El Paso 1997, no pet.).

The standard in determining effectiveness of a curative instruction provides

that reversible error results from improper prosecutorial argument only where the

argument is extreme or manifestly improper, injects new and harmful facts into the

case, or violates a mandatory statutory provision. Hernandez v. State, 819 S.W.2d

806, 820 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 974 (1992); McGee v.

State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989); Logan v. State, 698 S.W.2d

680, 682 (Tex. Crim. App. 1985); see also Laca v. State, 893 S.W.2d 171, 184

(Tex. App.—El Paso 1995, pet ref'd); Norton v. State, 851 S.W.2d 341, 345

(Tex.App.—Dallas 1993, pet. ref'd).

An instruction fails to cure error only when the prosecutor’s argument is so

manifestly improper or inflammatory that its prejudicial effect cannot reasonably

be cured. Logan, 698 S.W.2d at 682. The Court must examine the argument in

light of the entire record and the probable impact on the argument had on the

minds of the jury. Hernandez, 819 S.W.2d at 820; Logan, 698 S.W.2d at 682.

54 When considering the impact of the argument on the jury, the court must also

consider the nature and extent of the instruction given. Davis v. State, 645 S.W.2d

817, 818-19 (Tex. Crim. App. 1983).

C. Trial Court Gave Two Instructions to Disregard Prosecutors

Comment

In light of the above, it is important that, as acknowledged in Appellant’s

brief, after the Judge sustained Appellant’s objection, he also instructed the jury to

disregard the comment. R.R. vol. 15 p. 58. In addition, the Court’s Charge on

punishment, in paragraph IV, contained an instruction that jury not consider the

fact that defendant did not testify as a circumstance against him and forbidding the

jury from alluding to, commenting on, or in any manner referring to the fact that

the defendant did not testify. C.R. p. 213.

These two instructions, taken together, left no room for the jury to act in the

way Appellant fears. The immediate instruction to disregard coupled with the clear

and detailed instructions to the jury in the charge provide for a much greater

impact on the jury than a single unfinished argument to which the State did not

return. The cases cited in subparagraph III reveal the variety of factual situations

in which the Court of Criminal Appeals and other appellate courts have considered

55 this issue. The argument here is not so manifestly improper and inflammatory as

to fall within that narrow category of statements that is incurable.

This is especially true considering that the valid basis for said argument, set

out in subparagraph I. above, is, even if ultimately rejected by this court, plausible

enough that, when coupled with the trial court’s instructions, was unlikely to

inflame the jury in the manner required for a reversal. Cf. Logan, 698 S.W.2d at

682 (noting that where the court of appeals focused only on one possible inference

from the objectionable statement, the Court of Criminal Appeals found that the

jury could have drawn another inference from the comment and citing that as part

of its decision that the trial court’s instruction in that case was sufficient to cure

any error).

D. Appellant Requests the Wrong Remedy

Even if this Court believes the prosecutor argued improperly and in a way

that requires departure from existing Court of Criminal Appeals, precedent, the

reversal Appellant seeks is not the proper remedy. See Tex. Code Crim. Proc. Art

49.22(b). Since the legislature amended Article 49.22(b) in 1987 to its current

form, errors in the punishment phase in a case with an offense date after 1987

entitle a defendant only to a new punishment phase, not a new trial. Cf. Hartfield v.

Thaler, 403 S.W.3d 234, 238 (Tex. Crim. App. 2013) (noting the difference). This

protection of the guilty verdict even extends to prevent a defendant filing a motion 56 for new trial after his punishment phase on remand by an appellate court. Lopez v.

State, 18 S.W.3d 637, 640 (Tex. Crim. App. 2000) (“We believe that to give effect

to Art. 44.29(b), a remand on punishment only must limit a trial court's jurisdiction

to only punishment issues”).

The Court of Criminal Appeals made clear in 1998 when faced with the

question of how to handle an error that occurred in the punishment phase of the

trial, to remand for a full trial on both guilt/innocence and punishment, “would be

in contravention of the specific mandates of Arts. 44.29 and 44.33(a), and thus of

the most basic notions of the ‘separation of powers’ doctrine and ‘hierarchy of

legislation.’” Rent v. State, 982 S.W.2d 382, 385 (Tex. Crim. App. 1998). The

Court of Criminal Appeals has also said,

If, after remand, the trial court has the authority to reconsider issues from the guilt-innocence portion of the trial, the appellate court's remand "on punishment only" is rendered meaningless. We believe that to give effect to Art. 44.29(b), a remand on punishment only must limit a trial court's jurisdiction to only punishment issues.

Lopez v. State, 18 S.W.3d 637, 640 (Tex. Crim. App. 2000), and

Before it was amended in 1987, Texas Code of Criminal Procedure Article 44.29 required that, when punishment was assessed by a jury and a new trial was awarded on the basis of punishment phase error, the defendant would receive a complete new trial rather than just a new punishment phase.

Hartfield v. Thaler, 403 S.W.3d 234, 238 (Tex. Crim. App. 2013).

57 E. Any Error Not Cured by the Jury Instructions Was Ultimately

Harmless

After Appellant’s objection, the prosecutor moved on to other arguments and

never revisited this topic. The statement at issue was a small part of the

prosecutor’s total argument. Considering the scope of that argument, the evidence

summarized above, and the valid interpretation of the statement explained above,

Appellant cannot show that the statement caused him harm.

III. THE CHALLENGED QUESTION WAS NOT A COMMENT ON

APPELLANT’S CHOICE NOT TO TESTIFY AND APPELLANT DID

NOT PROPERLY PRESERVE THE ISSUE FOR APPELLATE REVIEW

A. The Question was Not a Comment on Appellant’s Choice Not to

Testify

In his third point of error, Appellant argues that a question to interviewing

officer Chief Richard Elliot, amounted to the State commenting on the Appellant’s

choice not to testify. The question was, “In the 22 and half years that you have

worked with or dealt with Rex Nisbett, has he ever said to you, ‘Chief, I did not

kill my wife?’” Elliot answered that Appellant had not. R.R. vol. 8 p. 161-162.

Given that Elliot testified that he interviewed Appellant after Appellant was

arrested and while Appellant was in jail, and that he spoke to Appellant at several

58 points during the investigation, this question properly called the jury’s attention to

the fact that during the many times prior to trial when Appellant had voluntary

conversations with Elliot, Appellant never protested his innocence.

B. By Failing to Object, Appellant did not Properly Preserve the Issue

for Appellate Review

Appellant’s argument regarding the prosecutor’s question to Elliot ignores

the fundamental fact that Appellant never objected to the questions. R.R. vol. 8 p.

161-162. By not objecting and giving the trial court an opportunity to consider this

complain, Appellant has failed to meet a prerequisite to presenting a complaint for

appellate review, as required by Tex. R. App. P. 33.1(a)(1). Thus, this Court need

not address this point further.

59 IV. THERE IS NEITHER HARM NOR ERROR IN THE CHALLENGED

NOTICE BECAUSE APPELLANT DID HAVE NOTICE OF THE

TESTIMONY AT ISSUE AND NEVER OBTAINED AN ORDER

BINDING THE PROSECUTOR TO PROVIDE ANY NOTICE AT ALL

A. There was No Error Because the Trial Court Never Ordered

Disclosure

Appellant’s argument that the State violated article 39.14(b) of the Tex.

Code Crim. Proc. overlooks an important consideration—the trial court never

ordered disclosure. Appellant’s brief quotes the version of the statute applicable to

Appellant’s case, yet misses the most important portion of that statute: “On a

motion of a party and notice to the other parties, the court in which an action is

pending may order…” Appellant’s Brief p. 24; Tex. Code Crim. Pro. Art.

39.14(b).

Article 39.14(b) requires an order from the trial court to make any disclosure

legally binding. Yet, nowhere in the clerk’s record or the reporter’s record is there

an oral or written order from the trial court ruling on Appellant’s motion for

disclosure of experts. In fact, the trial court itself noted it made no written order

but believed there may have been an oral order, though the court had no

independent recollection. R.R. vol. 10 p. 168-169. The clerk and reporter’s records

show there was no order. 60 The only such ruling is an Order granting the State’s request for notice of

Appellant’s expert witnesses, granted on March 31, 2014 and filed with the district

clerk on April 1, 2014. Thus, the State could not have violated article 39.14,

regardless of the content of its disclosures.

Despite not being required to do so, the State began making disclosures as

soon as it received notice of Appellant’s request, despite not being ordered to do

so. C.R. 67-71, 73-77, 89-90, 95-102, 104-111, 113-120.

B. The State Disclosures Regarding Clement were Sufficiently Accurate

to Put Appellant on Notice as to her Testimony

1. The State Disclosed Prior to Trial that Megan Clement Would

Testify as a DNA Expert

In State’s Third Notice of Intention to Use Expert Witnesses, filed January

2, 2104, subsection 2(h), the State gave notice of, “Megan Clement: Tarrant

County Medical Examiner who collected evidence.” C.R. p. 101. In the State’s

Fourth Notice of Intention to Use Expert Witnesses, filed May 8, 2014, the State

gave notice in subsection 2(i) repeating the same language in the January 2 notice,

but also added, in subsection 2(d), “Tarrant County Medical Examiner’s Office:

Megan E. Clement: DNA Analyst.” C.R. p. 110. The State’s Fifth Notice of

61 Intention to Use Expert Witnesses, filed May 13, 2014, repeats both subsections

regarding Clement contained in the May 8, 2014, notice. C.R. p. 113.

Thus, Appellant had at least two notices, filed well before trial that Megan

Clement would testify as a DNA expert. His argument that he was surprised and

harmed by such testimony is therefore without merit.

2. The State’s Disclosure Accurately Described Clement’s Employer

During the Time at Issue

Appellant takes issue with the disclosure of Megan Clement as a working for

the Tarrant County Medical Examiner’s Office.

Megan Clement did indeed testify that, at the time of trial, she was the senior

director at Cellmark Forensics. R.R. vol. 10 p. 152. However, she also testified

that from 1991 to 1994 she was in fact employed by the Tarrant County Medical

Examiner’s Office. R.R. vol. 10 p. 153. Further, Dr. Eisenberg testified that at the

time Clement extracted DNA to assist him in his reverse parentage analysis,

Clement worked part-time in his lab while still employed at the Tarrant County

Medical Examiner’s Office. R.R. vol. 12 p.10.

Thus, during the time at issue Clement was employed as disclosed.

62 PRAYER

Wherefore, the State respectfully requests that this Court affirm the

conviction.

Respectfully submitted, Jana Duty District Attorney Williamson County, Texas

/s/ John C. Prezas John C. Prezas State Bar No: 24041722 Assistant District Attorney 405 Martin Luther King, Box 1 Georgetown, Texas 78626 (512) 943-1234 (512) 943-1255 (fax) jprezas@wilco.org

CERTIFICATE OF COMPLIANCE

I certify that, after allowable exclusions, the State’s brief contains 14,387 words in compliance with Rule 9.4 of the Texas rules of Appellate Procedure.

__/s/ John C. Prezas______________ John C. Prezas

CERTIFICATE OF SERVICE

This is to certify that on November 10, 2015, a copy of the foregoing brief has been sent to Appellant’s attorney of record, Kristen Jernigan, 207 S. Austin Ave., Georgetown, TX 78626, by eservice at kristen@txcrimapp.com.

_/s/ John C. Prezas_______________ JOHN C. PREZAS