No. 01

- 15

- 00166 -CR
IN THE C OURT OF APPEALS FIRST DISTRICT HOUSTON, TEXAS

NIARE L YTE, Appellant
Vs. THE STA TE OF TEXAS, Appellee

REP LY BRIEF FOR THE APPELLANT

D. Cra ig Hughes TBN: 10211025 7322 Southwest Freeway, Suite 1100 Houston, Texas 77074 Phone: (713) 535

- 0683 Fax: (713) 981

- 3805 Email: dcraighughes@msn.com
J. K yle 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 APPELL ANT ORAL ARGUMENT REQUESTED ACCEPTED 01-15-00166-CR FIRST COURT OF APPEALS

HOUSTON, TEXAS 12/3/2015 3:41:47 PM CHRISTOPHER PRINE

CLERK2 No. 01

- 15

- 00166 -CR
IN THE COURT OF APPEALS FIRST DISTRICT HOUSTON, TEXAS

NIAR E LYTE, Appellant
Vs. THE ST ATE OF TEXAS, Appellee

RE PLY 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 Co unty, Texas, respectfully submits this brief, and would respectfully show the Court the following:3 TABLE OF CONTENTS Parties to the Case............................................................................. 4
L ist of Authori ties........................................................................

.... 6 Appellant ’ s Reply to the Appellee ’ s Brief on Appellant ’ s Seco nd Point of Error... 7 Con clusion and Prayer.................. ....................................................13 Certi ficate of Service........................................................................14 Certi ficate of Word Count..................................................................144 PARTIES TO THE CASE
APP ELLANT: NIARE LYTE Attorney s fo r Appellant at Trial:
Na me: Jimmy Phillips SBOT: # 15953000 Address: P.O. Box 29 Angleton, Texas 77516

- 0029 Phone: (979) 849

- 8511
Na me: Shannon Tigner SBOT: #00794740 Address: 221 N. Velasco St. Angleton, Texas 77515 Phone: (979) 848

- 0500
Att orney s for Appellant on Appeal:
Na me: D. Craig Hughes SBOT: # 10211025 Address: 732 2 Southwest Freeway, Suite 1100 Houston, Texas 77074 Phone: (713) 535

- 0683 Fax: (713) 981

- 3805 Email: dcraighughes@msn.com
Na me: J. Kyle Verret SBOT : #24042932 Address: 11200 Broadway, Suite 2743 Pearland, Texas 77584 Phone: (281) 764

- 7071 Fax: ( 281) 764

- 7071 Email: kyle@verretlaw.com5 APPELLEE: THE STATE OF TEXAS Attorney s for the State at Trial:
Name: Kurt S istrunk SBOT : # 18444950 Name: Clay Caldwell SBOT : # 24045599 Address: Br azoria County District Attorney’s Office 111 E. Locust Street, Suite 408A Angleton, Texas 77515 Phon e: (979) 864

- 1230 Attorney s for the State on Appeal:
Name: SB OT: Name: SBOT: Jeri Y

enne #0 4240950 Trey Picard # 24027742 Address: Brazoria County District Attorney’s Office

P hone: Email: 111 E. L ocust Street

Angleton, T

exas 77515 (979) 8 64 -1 23 0 treyp @brazoria -c ount y . com6 LIST OF AUTHORITIES Constitutional Provisions U.S. CONST. AMEND. V...............................................................11,12
TEXAS CONST . AR

T

. I, § 10............................................................1 2 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 . St ate , 6 27 S. W

.2d 424, 4 26 ( T

ex. Crim. App. 1982)......................... 11 Birdso ng v

. St ate , 8 2 S. W

.3d 538, 54 1 ( T

ex. A pp. A usti n 2002 , n o pet. )............ 11
Bustamante v

. S tate , 48 S. W

. 3d 76 1, 76 5 ( T

ex. Crim. App. 2001).............

... .... 8
Carrasco v

. S tate , 154 S. W

.3d 127 ( T

ex. C rim. App. 20 05)

........................... 10 Gamboa v

. St ate , 296 S

. W

.3d 574, 584 ( T

ex. C rim. App. 2 009)

................... . . 11
Lewis v . S tate , 9 11 S. W

.2d 1, 7 ( T

ex. C rim. App. 1995)

............................... . 1 1

. O'Conner v

. St ate , 4 01 S. W

.2d 237, 2 38 ( T

ex. C rim. App. 1 966)

..................... 10
T amez v . S tate , 11 S. W

.3d 198, 2 02 -2 03 ( T

ex. C rim. App. 2 000)

..................... 10 United States v

. Bo huchot , 6 25 F

. 3d 892, 9 01 (5th Ci r . 2010)

...................... 7,127 Appellant’s First Point of Error Appellant’s original brief adequately address point of error one and provides no f urther 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

r ights against self

- incrimination when a prosecutor, in open court and in the presence of the jury, request s a stipulation that the pers on 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 comm ent 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 comm ent, 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.” (1 2 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.
T he 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 wa s 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, t he 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. N ot 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 p ersonal 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 prosecu tor’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” would10 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 r egarding 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 plea 1 , to the admission of jurisdictional priors 2 , to facts or the admission of evidence at trial 3

. 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 a t the Appellan t 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). Th e trial judge, being present in the courtroom, has a p erspective that written words of the record are unable to deliver. The trial judge was presen t 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 o f 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) ( “ A n 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 stipulat ion 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 stipula tion 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 c ould 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. S upportive 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 clea rly “ the prosecutor's manifest intent was to com ment 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 v iolative 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. T here 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 agains t her silence. As th e 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
stateme nt could have been cured by an instruction, the instruction given by the trial13 court in this case was insufficient to remedy the harm. CONCLUSION AND PRAYE R 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 pray s 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 Verret14 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 forego in g Brief for Appellant

was served on the Co unsel for the Appellee, Trey Picard , at the Criminal District Attorney ’ s Office of Brazoria Count y , T exas, by serv ice th rough electronic filing on thi s 3rd day of Dec emb e r, 2 01 5. /s/Joseph Kyle V

erret Jose ph Kyle V

erret SBOT : #24 02 93 2

CERTIFIC A TE O F WORD COUNT
I do h ereby c ertify th at th e total word count for this document is 1,6 17 , excludin g those pa rts specifically exclud ed in T exa s Rule of Appellate P roced ure 9. 4(i)(1) , which is less than 7,500 wor ds allowed per T exas Rule of Appellate Procedure 9. 4. /s/Joseph Kyle V

erret Jose ph Kyle V

erret SBOT : #24 0 429 32