No. 01-15-00166-CR 

IN THE COURT OF APPEALS

FIRST DISTRICT 

HOUSTON, TEXAS

NIARE LYTE,

Appellant

Vs.

THE STATE OF TEXAS,

Appellee

REPLY BRIEF FOR THE APPELLANT

D. Craig Hughes

TBN: 10211025

7322 Southwest Freeway, Suite 1100

Houston, Texas 77074

Phone: (713) 535-0683

Fax: (713) 981-3805

Email: dcraighughes@msn.com

J. Kyle Verret

TBN: 24042932

11200 Broadway, Suite 2743

Pearland, Texas 77584

Phone: (281)764-7071

Phone: (281)764-7071

Email: kyle@verretlaw.com

FILED ON THIS DECEMBER 3, 2015

ATTORNEYS FOR APPELLANT ORAL ARGUMENT REQUESTED

ACCEPTED

01-15-00166-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/3/2015 3:41:47 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/3/2015 3:41:47 PM CHRISTOPHER A. PRINE Clerk
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No. 01-15-00166-CR 

IN THE COURT OF APPEALS

FIRST DISTRICT 

HOUSTON, TEXAS

NIARE LYTE,

Appellant

Vs.

THE STATE OF TEXAS,

Appellee

REPLY BRIEF FOR THE APPELLANT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Niare Lyte, the Defendant in Cause No. 69744, in the 23rd Judicial District Court 

of Brazoria County, Texas, respectfully submits this brief, and would respectfully 

show the Court the following:
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TABLE OF CONTENTS

Parties to the Case.............................................................................4

List of Authorities............................................................................6

Appellant’s Reply to the Appellee’s Brief on Appellant’s Second Point of Error...7

Conclusion and Prayer......................................................................13 

Certificate of Service........................................................................14

Certificate of Word Count..................................................................14
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PARTIES TO THE CASE

APPELLANT: NIARE LYTE

Attorneys for Appellant at Trial:

Name: Jimmy Phillips

SBOT: #15953000

Address: P.O. Box 29

Angleton, Texas 77516-0029

Phone: (979) 849-8511

Name: Shannon Tigner

SBOT: #00794740

Address: 221 N. Velasco St.

Angleton, Texas 77515

Phone: (979) 848-0500

Attorneys for Appellant on Appeal:

Name: D. Craig Hughes

SBOT: #10211025

Address: 7322 Southwest Freeway, Suite 1100

Houston, Texas 77074

Phone: (713) 535-0683

Fax: (713) 981-3805

Email: dcraighughes@msn.com

Name: J. Kyle Verret

SBOT: #24042932

Address: 11200 Broadway, Suite 2743

Pearland, Texas 77584

Phone: (281) 764-7071

Fax: (281) 764-7071

Email: kyle@verretlaw.com
5

APPELLEE: THE STATE OF TEXAS

Attorneys for the State at Trial:

Name: Kurt Sistrunk

SBOT: #18444950

Name: Clay Caldwell

SBOT: #24045599

Address: Brazoria County District Attorney’s Office

111 E. Locust Street, Suite 408A

Angleton, Texas 77515

Phone: (979) 864-1230

Attorneys for the State on Appeal:

Name:

SBOT: 

Name:

SBOT:

Jeri Yenne 

#04240950 

Trey Picard

#24027742

Address: Brazoria County District Attorney’s Office

Phone: 

Email: 

111 E. Locust Street

Angleton, Texas 77515

(979) 864-1230

treyp@brazoria-county.com
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LIST OF AUTHORITIES

Constitutional Provisions

U.S. CONST. AMEND. V...............................................................11,12

TEXAS CONST. ART. I, § 10............................................................12

Statutes

Tex. Code Crim. Proc. Ann. Art. 1.15 (LexisAdvance current through 2013 3d 

C.S)............................................................................................10

Rules

Tex. R. App. Proc. 44.2(a). 

Appellate Court Decisions

Angel v. State, 627 S.W.2d 424, 426 (Tex. Crim. App. 1982)......................... 11

Birdsong v. State, 82 S.W.3d 538, 541 (Tex. App. Austin 2002, no pet.)............ 11

Bustamante v. State, 48 S.W. 3d 761, 765 (Tex. Crim. App. 2001)....................8

Carrasco v. State, 154 S.W.3d 127 (Tex. Crim. App. 2005)...........................10

Gamboa v. State, 296 S.W.3d 574, 584 (Tex. Crim. App. 2009)..................... 11

Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)................................11.

O'Conner v. State, 401 S.W.2d 237, 238 (Tex. Crim. App. 1966).....................10

Tamez v. State, 11 S.W.3d 198, 202-203 (Tex. Crim. App. 2000).....................10

United States v. Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010)......................7,12
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Appellant’s First Point of Error

Appellant’s original brief adequately address point of error one and provides 

no further briefing on that point in response to Appellee’s brief.

Appellant’s Reply to the Appellee’s Brief on

Appellant’s Second Point of Error

Appellee contends that it is not violative of a defendant’s constitutional 

rights against self-incrimination when a prosecutor, in open court and in the 

presence of the jury, requests a stipulation that the person on trial, and convicted of 

the crime, has committed the crime.

At issue in Appellant’s Second Point of Error is one statement by the 

prosecutor: "Judge, We'll stipulate that all these people will come in and say she's 

very motherly and a good person and never would have seen this coming if they'll 

stipulate that she did it." (12 R.R. at 132). The test for whether a prosecutor’s 

comment on the defendant’s silence is constitutionally impermissible is “(1) 

whether the prosecutor's manifest intent was to comment on the defendant's silence 

or (2) whether the character of the remark was such that the jury would naturally 

and necessarily construe it as a comment on the defendant's silence.” United States 

v. Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010). If there is “some other, equally

plausible explanation for the remark”, the reviewing court should find that the 

prosecutor’s intent is not manifest. Id. 
8

This Court should consider the comment from “the jury’s standpoint.” 

Bustamante v. State, 48 S.W. 3d 761, 765 (Tex. Crim. App. 2001). In conducting 

its analyses, this Court should analyze the context in which the statement was 

made. Bustamante, 48 S.W.3d at 765. 

The prosecutor’s explanation of the comment, made both at trial and on 

appeal, was that it was a request that witnesses “stipulate that they were aware of 

the jury’s verdict that the jury found her guilty and that she, in fact, did it.” (12 

R.R. at 137; Appellee’s Brief at 15). Viewing the comment in the context in which 

it was made, from the standpoint of the jury, the prosecutor’s offered explanation 

for the comment is not plausible.

The prosecutor’s explanation that he was asking for the defense’s 

punishment witnesses to “stipulate that they were aware of the jury’s verdict... and 

that she, in fact, did it” does not comport with the context surrounding the 

statement in the record. The prosecutor did not request that any specific defense

witness stipulate that Appellant murdered Jasmine Miller (hereinafter “Miller”). 

The prosecutor made his request for a stipulation between the testimonies of two 

witnesses. (12 R.R. at 132). At the time the request for a stipulation was made, 

there was not a witness testifying to stipulate that the Appellant “did it.” (12 R.R. 

at 132). 

The attorneys for the State did ask the defense’s witnesses on cross-
9

examination whether they knew that the jury had convicted Appellant and whether 

they accepted the verdict. (12 R.R. at 64, 83-84, 96, 125). The question of 

whether the witnesses agreed with the verdict was answered in various ways from 

“I don’t agree too much with it”, to “That’s the verdict. Sure.” (12 R.R. at 125, 96). 

The prosecution asked witnesses if they believed Appellant committed murder. (12 

R.R. at 127). But, the prosecutor never asked any witness to admit that Appellant 

committed murder or to stipulate to that fact. It would not have made sense for the 

State to ask the witnesses for such a stipulation because none of the punishment 

witnesses had personal knowledge of the matter. Not one of the defense witnesses 

testified to being present at the Saint Andrews Apartments to witness the 

interaction between Appellant and Miller on the day of Miller’s death. Other than 

Appellant’s father, none of the defense witnesses testified that Appellant made 

inculpatory statements regarding the murder. Without personal knowledge, none 

of the defense witnesses would be able to competently stipulate that Appellant 

murdered Jasmine Miller. The prosecutor’s request for a stipulation could not have 

been directed at the witnesses, as none of the witnesses have sufficient knowledge 

of the alleged murder to stipulate that Appellant was guilty.

The prosecutor’s choice of words is telling of what he meant when he 

requested the stipulation of Appellant’s guilt. He offered a reciprocal stipulation: 

the State would agree to the mitigating testimony being offered if “they” would 
10

stipulate to guilt. (12 R.R. at 132). The use of the word “stipulate” highlights the 

direction of the prosecutor’s comment at the Appellant and her counsel, not to the 

witnesses. The law allows for parties to enter into stipulations regarding evidence, 

but makes no provision for a witness to stipulate to facts. A defendant in a criminal 

case may enter into a variety of stipulations and courts should construe such 

stipulations “reasonably and liberally with a view of effectuating the parties’ 

intentions.” O'Conner v. State, 401 S.W.2d 237, 238 (Tex. Crim. App. 1966). For 

example, a criminal defendant may stipulate to evidence supporting a plea1

, to the 

admission of jurisdictional priors2

, to facts or the admission of evidence at trial3. 

Nothing in the law provides for a non-party witness to stipulate to a fact. Parties 

enter into stipulations, not witnesses.

In their brief, Appellee failed to address the trial judge’s comment that he 

believed the statement, and the prosecutor’s use of the word “they”, was directed at 

the Appellant and her counsel. The trial judge stated “My interpretation of ‘they’ 

would be the Defense counsel and the Defendant.” (12 R.R. at 135-136). The trial 

judge, being present in the courtroom, has a perspective that written words of the 

record are unable to deliver. The trial judge was present to witness the tone of the 

1

 Tex. Code Crim. Proc. Ann. Art. 1.15 (LexisAdvance current through 2013 3d C.S).

2 Tamez v. State, 11 S.W.3d 198, 202-203 (Tex. Crim. App. 2000). 

3

 Carrasco v. State, 154 S.W.3d 127 (Tex. Crim. App. 2005)
11

statement in question. This Court should give defer to the factual determination of 

the trial court, as the trial judge is better suited to determine how the statement was 

delivered and what effect it could have had on the jury. See Gamboa v. State, 296 

S.W.3d 574, 584 (Tex. Crim. App. 2009)(“An appellate court should defer to the 

trial court's findings of facts regarding the credibility and demeanor of the 

witnesses); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)(a reviewing 

court should defer to trial court’s determination of witness credibility).

The prosecutor’s statement in this matter is best analogized to the State 

calling a criminal defendant to testify at trial, which is clearly a violation of the 

Fifth Amendment. Birdsong v. State, 82 S.W.3d 538, 541 (Tex. App. Austin 2002, 

no pet.) While not as egregious as calling the defendant as a witness, the 

prosecutor’s comment came close. It was a direct request for a stipulation of guilt, 

a stipulation that can come only from the Appellant. See Angel v. State, 627 

S.W.2d 424, 426 (Tex. Crim. App. 1982).

The prosecutor’s comment was not a request for a factual stipulation

directed at witnesses. It was not a serious request for a stipulation from the 

Appellant. It was a comment made to contrast the mitigating evidence being 

presented by the defense against the absence of Appellant’s testimony. It pointed 

to the absence of an admission of guilt, something only the Appellant could 

provide. The prosecutor’s stated explanation, made after the Appellant’s objection, 
12

was not plausible. From a plain reading of the record, it is a request made in front 

of the jury that the defendant in this criminal trial stipulate to her guilt. Supportive 

of Appellant’s position that the statement was directed at Appellant was the trial 

court’s statement that he believed “they” referred to Appellant and her counsel. 

(12 R.R. at 135-136). The statement met both tests under Bohuchot. It was 

clearly “the prosecutor's manifest intent was to comment on the defendant's 

silence” and “the character of the remark was such that the jury would naturally 

and necessarily construe it as a comment on the defendant's silence.” Bohuchot, 

625 F.3d at 901. The statement was clearly violative of the Fifth Amendment to 

the United States Constitution and Article I, § 10 of the Texas Constitution. 

II. The Error Was Not Harmless

Appellee claims that the statement was harmless and that any possible harm 

was cured by the trial court’s instruction. There is no instruction that would 

have removed the sting of the prosecution’s request for Appellant to admit to

committing the offense, made in front of the jury, and done to contrast Appellant’s

mitigating evidence against her silence.

As the error is of a constitutional nature, reversal is required unless this 

Court finds that it was harmless. Tex. R. App. Proc. 44.2(a). The prosecutor’s 

statement was not harmless and not curable by an instruction. Even if the 

statement could have been cured by an instruction, the instruction given by the trial 
13

court in this case was insufficient to remedy the harm.

CONCLUSION AND PRAYER 

Appellant prays that this Court find that the trial court abused its discretion 

by overruling her objections to the admission of evidence relating to Appellant’s 

statements to the police that she had been accused of threating to kill Miller. 

Appellant prays that this Court reverse and remand this cause for a new trial.

In the alternative, Appellant prays that this Court find that the prosecutor’s

request for a stipulation that Appellant was guilty of the charged offense, made in 

front of the jury during punishment, violated Appellant’s constitutional rights 

against self-incrimination. Appellant prays that this Court find that Appellant was 

harmed by the prosecutor’s request. Appellant prays that this Court reverse 

Appellant’s sentence and remand this matter to the trial court for a new trial on 

punishment.

Respectfully submitted, 

/s/ D. Craig Hughes

D. Craig Hughes

SBOT: #10211025

7322 Southwest Freeway, Suite 1100

Houston, Texas 77074

Phone: (713) 535-0683

Fax: (713) 981-3805

Email: dcraighughes@msn.com

/s/ Joseph Kyle Verret 

Joseph Kyle Verret 
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THE LAW OFFICE OF KYLE VERRET, PLLC 

Counsel for Appellant 

SBOT: #240429432

11200 Broadway, Suite 2743

Pearland, Texas 77584

Phone: (281)764-7071 

Fax: (281)764-7071 

Email: kyle@verretlaw.com

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Brief for Appellant 

was served on the Counsel for the Appellee, Trey Picard, at the Criminal District 

Attorney’s Office of Brazoria County, Texas, by service through electronic 

filing on this 3rd day of December, 2015. 

/s/Joseph Kyle Verret

Joseph Kyle Verret 

SBOT: #2402932 

CERTIFICATE OF WORD COUNT

I do hereby certify that the total word count for this document is 1,617, 

excluding those parts specifically excluded in Texas Rule of Appellate Procedure 

9.4(i)(1), which is less than 7,500 words allowed per Texas Rule of Appellate 

Procedure 9.4. 

/s/Joseph Kyle Verret

Joseph Kyle Verret 

SBOT: #24042932