No. 03-14-00235-CR

In the

COURT OF APPEALS

For the

THIRD SUPREME JUDICIAL DISTRICT

at Austin

______________________________________

On Appeal from the 147th Judicial District Court of

Travis County, Texas

Cause Number D-1-DC-11-902003

______________________________________

JOE DEREK CARR, Appellant

v.

THE STATE OF TEXAS, Appellee

_____________________________________

APPELLANT’S BRIEF

_____________________________________

Counsel for Appellant KRISTEN JERNIGAN

Joe Derek Carr ATTORNEY AT LAW

STATE BAR NUMBER 90001898

207 S. AUSTIN AVE.

GEORGETOWN, TEXAS 78626

(512) 904-0123

(512) 931-3650 (FAX)

Kristen@txcrimapp.com

ORAL ARGUMENT REQUESTED

ACCEPTED

03-14-00235-CR

4202543

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/18/2015 5:19:27 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/18/2015 5:19:27 PM JEFFREY D. KYLE Clerk
ii

IDENTIFICATION OF PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the 

names of all interested parties is provided below so the members of this Honorable 

Court may at once determine whether they are disqualified to serve or should 

recuse themselves from participating in the decision of this case.

Appellant:

Joe Derek Carr

Counsel for Appellant:

John Carsey (at trial)

1100 Guadalupe

Austin, Texas 78701

Kristen Jernigan (on appeal)

207 S. Austin Ave.

Georgetown, Texas 78626

Counsel for Appellee, The State of Texas:

Rosemary Lehmberg

Travis County District Attorney

Amy Meredith

J.D. Castro

Assistant District Attorneys

509 W. 11th Street

Austin, Texas 78701

Trial Court Judge:

The Honorable Clifford Brown
iii

TABLE OF CONTENTS

IDENTIFICATION OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . vii

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

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

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1. The trial court abused its discretion in allowing hearsay testimony 

regarding Appellant’s alleged bad character and specific instances of 

that alleged conduct.

2. The evidence is insufficient to show Appellant committed the offense 

of murder.

3. The trial court abused its discretion in excluding admissible and 

proper impeachment evidence.

4. The trial court abused its discretion in allowing the admission of a 

recorded phone call which was not properly authenticated.

5. The content of a recorded phone call between Appellant and his 

mother, which was improperly admitted at trial, violated Appellant’s 

right against self-incrimination.
iv

6. The trial court abused its discretion in denying Appellant’s Motion for 

New Trial.

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
v

INDEX OF AUTHORITIES

CASES

Angel v. State, 627 S.W.2d 426 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . . . . .26

Barber v. State, 989 S.W.2d 822 (Tex. App.--Fort Worth 1999). . . . . . . . . . . . . . 12

Brady v. Maryland, 373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 9, 27

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . .14, 17

Buhl v. State, 960 S.W.2d 927 (Tex. App.--Waco 1998) . . . . . . . . . . . . . . . . . . . .12

Garcia v. State, 201 S.W.3d 695, 702 (Tex. Crim. App. 2006), 

cert. denied, 127 S. Ct. 1289 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . .17

Henderson v. State, 906 S.W.2d 589 (Tex. App.--El Paso 1995) . . . . . . . . . . . . . 12

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . 16

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

Johnson v. State, 611 S.W.2d 649 (Tex. Crim. App. 1981) . . . . . . . . . . . . . . . . . .26

Jones v. State, 711 S.W.2d 35 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . .27, 28

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . .13, 14, 22, 25

Kotteakos v. United States, 328 U.S. 750 (1946) . . . . . . . . . . . . . . . . . . . .13, 22, 25

Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . .27

Losada v. State, 721 S.W.2d 305 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . .26

Malloy v. Hogan, 378 U.S. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
vi

Megan Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) . . . . . . . . . . . . 16

Montgomery v. State, 810 S.W.2d 372

(Tex. Crim. App. 1990) . . . . . . . . . . . . . . .10, 13, 18, 21, 22, 24

Richard Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010) . . . . . . . . . . . 16

Richardson v. State, 860 S.W.2d 214 (Tex. App.--Fort Worth 1993) . . . . . . . . . . 12

Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Fort Worth, 2014) . . . . . . . .16, 17

Werner v. State, 711 S.W.2d 639 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . 12

STATUTES AND RULES

TEX. CODE CRIM. PRO. Art. 38.08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

TEX. CONST. Art. I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

TEX. PENAL CODE § 19.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. R. APP. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 21, 25

TEX. R. EVID. 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20, 21

TEX. R. EVID. 608 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

TEX. R. EVID. 611(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. R. EVID. 802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. R. EVID. 803(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

TEX. R. EVID. 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23, 24

U.S. CONST. AMEND. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
vii

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rule of Appellate Procedure 39.1, Appellant requests oral 

argument in this case.
1

No. 03-14-00235-CR

In the

COURT OF APPEALS

For the

THIRD SUPREME JUDICIAL DISTRICT

at Austin

______________________________________

On Appeal from the 147th Judicial District Court of

Travis County, Texas

Cause Number D-1-DC-11-902003

______________________________________

JOE DEREK CARR, Appellant

v.

THE STATE OF TEXAS, Appellee

_____________________________________

APPELLANT’S BRIEF

_____________________________________

STATEMENT OF THE CASE

On February 11, 2015, a jury found Appellant guilty of the offense of 

murder as alleged in the indictment. (CR: 103). The Court assessed punishment 

of sixty years in prison. (CR: 106). Appellant filed a Motion for New Trial on 

March 12, 2014. (CR: 115). The Motion was denied by the trial court on April 

10, 2014. (RR10: 24). Appellant timely filed Notice of Appeal the same date, 

on April 10, 2014. (CR: 128). This appeal results.
2

STATEMENT OF FACTS

At trial, Chris Kashimba testified that he was the victim, Veronica Navarro’s 

ex-boyfriend. (RR3: 88-90, 92, 96). On June 25, 2014, Navarro spent the night 

at Kashmiba’s house and left the next morning. (RR3: 107). Kashimba told the 

jury that on June 27, 2011, he saw Navarro again after she had attended a job 

interview. (RR3: 101). According to Kashimba, during their meeting, Navarro 

indicated that she wanted to break up with her boyfriend, Appellant, and return to 

her relationship with Kashimba. (RR3: 102, 112). Kashimba did not hear from 

Navarro again and so he assumed she had reconciled with Appellant. (RR3: 115). 

Jeff Allbritton, a Travis County park police officer, told the jury that on July 

6, 2011, he responded to a call of a possible deceased person at Lake Travis. 

(RR3: 192). Allbritton was directed to an area on the lake and observed a body 

wrapped in a tent. (RR3: 202). It appeared the body was anchored to 

something, but he and other law enforcement officers removed it. (RR3: 205-06). 

Renee Luna, a Travis County Sheriff’s Department Crime Scene Specialist, 

stated that when Navarro’s body was pulled from the water, she observed that tied 

to the tent wrapping her body was a cinder block and paint cans. (RR3: 233). 

One of the paint cans had a sticker which indicated it was Olympia brand paint and 

was purchased from a Lowe’s store in Hutto in July of 2010. (RR3: 236). On 
3

cross-examination, Luna admitted that she collected seventeen pieces of evidence 

at the crime scene, but did not test any of them. (RR3: 254). She agreed further 

that she did not know whether any of those items contained DNA because they 

were not tested. (RR3: 254). Luna was later re-called and stated that she and 

other law enforcement officers searched Appellant’s home and found an empty tent 

bag. (RR5: 41-43). Luna indicated that the tent bag and the tent found wrapped 

around Navarro’s body had the same product number. (RR5: 43). On 

cross-examination, Luna admitted that any tent of the same make and model would 

have the same labeling. (RR5: 145). 

Sylvia Leal, a detective with the Travis County Sheriff’s Office, testified 

that she participated in examining the crime scene, removing Navarro’s body, and 

attending Navarro’s autopsy. (RR4: 135-41). At the time of the autopsy, Leal 

did not know Navarro’s identity, but when she later learned Navarro was the 

deceased, she notified her family. (RR4: 138). When she spoke with the family, 

she learned Navarro had been dating Appellant, a Pedernales firefighter. (RR4: 

140). Leal attempted to locate Appellant but was not able to, so she contacted the 

United States Marshall’s Office. (RR4: 141). Leal was later re-called and stated 

that she executed a search warrant on Appellant’s home, but did not follow usual 

procedure because she learned Appellant was being held at the Canadian border. 
4

(RR4: 223-24). 

Dr. Satish Chundru, a deputy medical examiner at the Travis County 

Medical Examiner’s Office, testified that he performed the autopsy on Navarro’s 

body. (RR4: 158). The State offered Exhibits 54-59 and 61-63 which were 

photographs of Navarro’s dead body. (RR4: 159). Chundru explained that he 

could not determine the time of death. (RR4: 166). He estimated that Navarro’s 

body had been in the water for a few days, but could not say exactly how long. 

(RR4: 166). Chundru stated that there were no obvious signs of injury on 

Navarro’s body and that he only came to the conclusion that Navarro died from a 

lack of oxygen to the brain because there were no other indications to conclude 

otherwise. (RR4: 187). Chundru could not determine how oxygen was 

deprived. (RR4: 190-91). On cross-examination, Chundru acknowledged that if 

someone was being deprived of oxygen, there would be signs of a struggle and 

DNA underneath the victim’s fingernails. (RR4: 194). Chundru admitted that 

his determination of Navarro’s cause of death was because of how the body was 

found, not based on his examination. (RR4: 204). Chundru admitted further 

that it is possible for an adult to succumb to Sudden Arrythmic Death Syndrome. 

(RR4: 209-10). In fact, nearly 2,500 people in the United States die of the 

syndrome every year. (RR4: 210-11). Chundru concluded his testimony by 
5

agreeing that he had no physical evidence to support his finding of asphyxia as the 

cause of Navarro’s death. (RR4: 216). 

Heather Dragna, a forensic scientist in the DNA section at the Texas 

Department of Public Saftey, testified that several items collected in this case were 

tested but were negative for any probative evidence. (RR5: 91-94, 98). A glove 

was tested and was positive for blood, but Navarro was excluded as a contributor 

to the blood. (RR5: 96). The only other “positive” results for blood were from 

Navarro’s SANE exam which showed she was the only contributor to the samples. 

(RR5: 98). As for all of the other items tested, Dragna again confirmed that 

“everything else was negative.” (RR5: 98). 

Kenneth Crawford, a trash bag examiner with the Texas Department of 

Public Safety, testified that there was no evidence that a trash bag collected from 

inside the tent containing Navarro’s body and a trash bag found at Appellant’s 

home were previously connected. (RR5: 153). Crawford could not say which 

company manufactured either trash bag and could not associate one with the other. 

(RR5: 155). On cross-examination, Crawford acknowledged that the two bags 

could have come from separate boxes “anywhere in the world.” (RR5: 156). 

Melissa Valadez, a trace evidence specialist with the Texas Department of 

Public Safety, testified that she examined a sheet collected from Appellant’s house 
6

and tape lifts from Appellant’s car but did not find any fibers consistent with fibers 

from the rope or tent found with Navarro’s body. (RR5: 165-67). Valadez also 

compared the fibers from the tent bag found at Appellant’s home with the tent 

wrapped around Navarro’s body and determined that the fibers were inconsistent. 

(RR5: 167). Valadez determined that the tent found with Navarro’s body did not 

come from the tent bag found at Appellant’s house. (RR5: 167). Valadez ran 

tests on a piece of drywall to compare the paint on it with the paint in the cans 

found with Navarro’s body. (RR5: 187). While Valadez found the paint to be 

similar, and that it could have come from Appellant’s home, she noted that it could 

have also come from “any other source with similar characteristics.” (RR5: 187). 

During Appellant’s case-in-chief, he recalled Detective Leal who stated that 

it was her theory that in the days and weeks leading up to Navarro’s disappearance, 

she was scared of Appellant and was planning on leaving him. (RR8: 26-27). 

Leal was then shown several facebook posts from Navarro. (RR8: 28). One 

post was dated June 19, 2011, in which Navarro posted about what a loving father 

Appellant was and how much she loved him. (RR8: 28). Another post from the 

same date indicated that Navarro hated to see Appellant leave for work. (RR8: 

28). Also on the same date, Navarro updated her current city to Spicewood, 

Texas, where she had just moved with Appellant. (RR8: 29). On June 22, 2011, 
7

Navarro posted that she had just put Appellant’s son down for a nap so she had 

time to plant her mini azaleas, which she loved. (RR8: 30). On June 26, 2011, 

Navarro posted that Appellant was her fiancé. (RR8: 31). 

At the hearing on Appellant’s Motion for New Trial, it was undisputed that 

an investigating officer committed a Brady1 violation by failing to turn over 

surveillance videotapes from a Walmart store which showed Appellant and 

Navarro shopping together the day before she disappeared. (RR10: 10-18). 

These tapes, admitted as Exhibits 339, 339(b), 339(c), and 341 refuted the theory 

presented by the State that Navarro was frightened by Appellant and was planning 

to leave him. (RR10: 18). Despite the arguments made by counsel that these 

tapes would have affected the outcome of Appellant’s trial, the Court denied 

Appellant’s Motion for New Trial. (RR10: 26). 

 1

 Brady v. Maryland, 373 U.S. 83 (1963). 
8

ISSUES PRESENTED

1. The trial court abused its discretion in allowing hearsay testimony 

regarding Appellant’s alleged bad character and specific instances of that 

alleged conduct.

2. The evidence is insufficient to show Appellant committed the offense of 

murder.

3. The trial court abused its discretion in excluding admissible and proper 

impeachment evidence.

4. The trial court abused its discretion in allowing the admission of a 

recorded phone call which was not properly authenticated.

5. The content of a recorded phone call between Appellant and his mother, 

which was improperly admitted at trial, violated Appellant’s right against 

self-incrimination.

6. The trial court abused its discretion in denying Appellant’s Motion for 

New Trial.

SUMMARY OF THE ARGUMENT

Appellant’s first point of error should be sustained because the trial court 

abused its discretion in allowing hearsay testimony regarding Appellant’s alleged 

bad character and specific instances of that alleged conduct which only served to 

inflame the jury. Appellant’s second point of error should be sustained because 

the evidence is insufficient to show Appellant committed the offense of murder

where the State failed to prove a specific act that caused Navarro’s death or even 

the cause of death itself. Appellant’s third point of error should be sustained 
9

because the trial court abused its discretion in excluding admissible and proper 

impeachment evidence which would have shown a crucial witness for the State, 

Kashimba, was untruthful. Appellant’s fourth point of error should be sustained 

because the trial court abused its discretion in allowing the admission of a recorded 

phone call which was not properly authenticated. Appellant’s fifth point of error 

should be sustained because the content of a recorded phone call between 

Appellant and his mother, which was improperly admitted at trial, violated 

Appellant’s right against self-incrimination. Appellant’s sixth point of error 

should be sustained because the trial court abused its discretion in denying 

Appellant’s Motion for New Trial where it was shown competent and material 

evidence was withheld from Appellant in violation of Brady v. Maryland, 373 U.S. 

83 (1963).
10

ARGUMENT & AUTHORITIES

I. The trial court abused its discretion in allowing hearsay 

testimony regarding Appellant’s alleged bad character and 

specific instances of that alleged conduct.

The trial court abused its discretion in allowing hearsay testimony of 

Appellant’s alleged bad character in violation of Texas Rules of Evidence 403, 

404(b), and 802. A trial court’s decision to admit or exclude evidence is 

reviewed under an abuse of discretion standard. Montgomery v. State, 810 

S.W.2d 372, 391 (Tex. Crim. App. 1990). The test for abuse of discretion is not 

whether, in the opinion of the reviewing court, the facts present an appropriate case 

for the trial court’s action; but rather, whether the court acted without reference to 

any guiding rules or principles. Id.

At trial, Manuela Navarro, Navarro’s cousin, told the jury that Navarro told 

her Appellant “would never let her do anything and would never let her go 

anywhere.” (RR3: 56).2 Chris Kashimba, Navarro’s ex-boyfriend, stated that 

Navarro told him that she was afraid of Appellant and “didn’t like his attitude.” 

(RR3: 93).3 Kashimba also stated that Navarro told him that Appellant would 

 2

 Appellant preserved error by objecting and receiving a running objection to this testimony. 

(RR3: 50).

3

 Appellant preserved error by objecting and receiving a running objection to this testimony. 

(RR3: 93). 
11

“scream or throw things, throwed little fits, temper tantrums.” (RR3: 94). In 

addition, Kashimba was allowed to testify that Navarro told him Appellant gave 

her bruises, “drank a lot,” and became “more aggressive.” (RR3: 94-95). 

Kashimba told the jury that Navarro told him that she planned to get a job and 

break up with Appellant. (RR3: 102). When the prosecutor asked AnnaKaren 

Perez, Navarro’s cousin, whether Navarro had expressed any concerns about her 

relationship with Appellant, Appellant objected and the Court interjected, outside 

the presence of the jury:

THE COURT: To this point I’ve allowed you to have some latitude with 

the hearsay going to her state of mind and so forth, but 

it’s not just a blanket allowance to just have a rambling 

hearsay. I mean, you have to be very specific with your 

questions as they relate to her state of mind and the 

relationship. All right? (RR3: 154-55). 

Perez was then allowed to testify, over Appellant’s objection, that Navarro 

said her relationship with Appellant was not what she expected and that she had 

concerns about moving in with Appellant. (RR3: 156). 

Appellant anticipates that the State will argue, as it did at trial, that the 

above, complained-of testimony is evidence regarding the relationship between 
12

Appellant and Navarro and is admissible pursuant to Texas Code of Criminal 

Procedure Article 38.36. Even if this is true, the Rules of Evidence still apply and 

the evidence must fall under an exception to the hearsay rule. Garcia v. State, 

201 S.W.3d 695, 702 (Tex. Crim. App. 2006), cert. denied, 127 S. Ct. 1289 (2007). 

Article 38.36 does not extend the rules of evidence to admit otherwise inadmissible 

testimony. See Barber v. State, 989 S.W.2d 822, 834 (Tex. App.--Fort Worth 

1999), citing Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986); 

Henderson v. State, 906 S.W.2d 589, 597 (Tex. App.--El Paso 1995); Richardson 

v. State, 860 S.W.2d 214, 216 (Tex. App.--Fort Worth 1993); Buhl v. State, 960 

S.W.2d 927, 932 (Tex. App.--Waco 1998).

Texas Rule of Evidence 802 instructs, “Hearsay is not admissible except as 

provided by statute or these rules or by other rules prescribed pursuant to statutory 

authority. Inadmissible hearsay admitted without objection shall not be denied 

probative value merely because it is hearsay.” TEX. R. EVID. 802.

At trial, the State argued that all of the testimony above fell under Rule of 

Evidence 803(3) as an exception to the hearsay rule. Texas Rule of Evidence 

803(3) states, “A statement of the declarant’s then existing state of mind, emotion, 

sensation, or physical condition (such as intent, plan, motive, design, mental 

feeling, pain, or bodily health), but not including a statement of memory or belief 
13

to prove the fact remembered or believed unless it relates to the execution, 

revocation, identification, or terms of declarant’s will.” TEX. R. EVID. 803(3).

However, the testimony elicited at trial as described above did not reflect 

Navarro’s then existing mental condition, but rather, reflected bad acts on 

Appellant’s part such as drinking in excess, becoming aggressive, and throwing 

temper tantrums. It also reflected Appellant’s alleged attempts to control Navarro 

by telling her what to do and where she could go. Again, these are not reflections 

of Navarro’s then existing mental condition, but rather, attempts by the State to 

paint Appellant as an unlikeable and threatening person. As such, the trial court 

erred in allowing this testimony into evidence. See Montgomery, 810 S.W.2d at

391. 

Appellant was harmed by the admission of this evidence because his 

substantial rights, including his right to a fair trial, were affected by the trial court’s 

ruling. TEX. R. APP. 44.2(b). “A substantial right is affected when the error had 

a substantial and injurious effect or influence in determining the jury’s verdict.” 

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997), citing Kotteakos v. 

United States, 328 U.S. 750, 776 (1946). This “evidence,” which was admitted in 

violation of Texas Rule of Evidence 802, only served to inflame the jury and bias 

the jurors against Appellant. In a case in which the manner of Navarro’s death 
14

was never proven, or that Appellant committed an act which caused Navarro’s 

death, as discussed below, this evidence surely influenced the jury’s verdict. See

King v. State, 953 S.W.2d at 271. Accordingly, Appellant’s first point of error 

should be sustained. 

II. The evidence is insufficient to show Appellant committed the 

offense of murder.

Appellant’s second point of error should be sustained because the evidence 

is insufficient to show Appellant committed the offense of murder. The Court of 

Criminal Appeals has held that the legal sufficiency standard set out in Jackson v. 

Virginia, 443 U.S. 307, 320 (1979), is the standard that a reviewing court should 

apply when determining the sufficiency of the evidence. Brooks v. State, 323 

S.W.3d 893, 896 (Tex. Crim. App. 2010). When reviewing the legal sufficiency 

of the evidence, an appellate court views the evidence in the light most favorable to 

the verdict and determines whether any rational trier of fact could have found the 

essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 

320; Brooks, 323 S.W.3d at 896.

In order to prove its case beyond a reasonable doubt, the State was required 

to show that Appellant intentionally or knowingly caused Navarro’s death. TEX.

PENAL CODE § 19.02. However, in this case, Navarro’s cause of death was never 

determined. The deputy medical examiner, Dr. Chundru stated that there were no 
15

obvious signs of injury on Navarro’s body and that he only came to the conclusion 

that Navarro died from a lack of oxygen to the brain because there were no other 

indications to conclude otherwise. (RR4: 187). Chundru could not determine 

how oxygen was deprived. (RR4: 190-91). On cross-examination, Chundru 

acknowledged that if someone was being deprived of oxygen, there would be signs 

of a struggle and DNA underneath the victim’s fingernails. (RR4: 194). 

Chundru admitted that his determination of Navarro’s cause of death was because 

of how the body was found, not based on his examination. (RR4: 204). In fact, 

Chundru agreed that he had no physical evidence to support his finding of asphyxia 

as the cause of Navarro’s death. (RR4: 216). 

In addition, Dragna, testified that several items collected in this case were 

tested but were negative for any probative evidence. (RR5: 91-94, 98). 

Crawford testified that there was no evidence that a trash bag collected from inside 

the tent containing Navarro’s body and a trash bag found at Appellant’s home were 

previously connected. (RR5: 153). Valadez testified that she examined a sheet 

collected from Appellant’s house and tape lifts from Appellant’s car but did not 

find any fibers consistent with fibers from the rope or tent found with Navarro’s 

body. (RR5: 165-67). Valadez also compared the fibers from the tent bag found 

at Appellant’s home with the tent wrapped around Navarro’s body and determined 
16

that the fibers were inconsistent. (RR5: 167). Valadez determined that the tent 

found with Navarro’s body did not come from the tent bag found at Appellant’s 

house. (RR5: 167). Valadez ran tests on a piece of drywall to compare the paint 

on it with the paint in the cans found with Navarro’s body. (RR5: 187). While 

Valadez found the paint to be similar, and that it could have come from 

Appellant’s home, she noted that it could have also come from “any other source 

with similar characteristics.” (RR5: 187). 

It is well-settled that circumstantial evidence alone can be sufficient to 

establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). 

“And while juries are permitted to draw multiple reasonable inferences, as long as 

each inference is supported by the evidence presented at trial, juries are not 

permitted to come to conclusions based on mere speculation or factually 

unsupported inferences or presumptions.” Stobaugh v. State, 421 S.W.3d 787, 

862 (Tex. App.—Fort Worth, 2014), citing Megan Winfrey v. State, 393 S.W.3d 

763, 771 (Tex. Crim. App. 2013). “If the evidence presented at trial raises ‘only a 

suspicion of guilt, even a strong one, then that evidence is insufficient [to 

convict].’” Id., citing Richard Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. 

App. 2010). 
17

In Stobaugh, the Second Court of Appeals found the evidence insufficient to 

support the defendant’s conviction for murder where the State failed to prove a 

specific act which caused the victim’s death. Id. at 864-65. Further, the Court 

held that motive and opportunity alone are not enough to support a murder 

conviction. Id. at 865. 

Such is the case here. The only “evidence” presented by the State was 

testimony from Kashimba that Navarro wanted to break up with Appellant and 

therefore, he had a motive to kill her, and suspicions by law enforcement that 

Appellant was connected to Navarro’s death. However, while it is true that 

evidence of motive and opportunity helps link a defendant to wrongful conduct or 

is supportive of other evidence of such conduct, without evidence that wrongful 

conduct has occurred, there is nothing for motive and opportunity evidence to link 

the defendant to. Hacker v. State, 389 S.W.3d 860, 871 (Tex. Crim. App. 2013). 

In sum, there is absolutely no evidence that Appellant caused Navarro’s 

death. Therefore, no rational trier of fact could have found Appellant guilty based 

on the evidence presented in this case. See Jackson, 443 U.S. at 320; Brooks, 323 

S.W.3d at 896. Accordingly, Appellant’s second point of error should be 

sustained.
18

III. The trial court abused its discretion in excluding admissible 

and proper impeachment evidence.

Appellant’s third point of error should be sustained because the trial court 

erred in excluding evidence which would have properly impeached Kashimba’s 

credibility. Specifically, the trial court erred in excluding evidence that Kashimba 

and Navarro fought often, in direct contrast to his affirmative representation on 

direct examination. A trial court’s decision to admit or exclude evidence is 

reviewed under an abuse of discretion standard. Montgomery v. State, 810 

S.W.2d 372, 391 (Tex. Crim. App. 1990). The test for abuse of discretion is not 

whether, in the opinion of the reviewing court, the facts present an appropriate case 

for the trial court’s action; but rather, whether the court acted without reference to 

any guiding rules or principles. Id. 

On direct examination, Kashimba testified as follows:

THE PROSECUTOR: Okay. When you guys were together, did you

have a fight?

KASHIMBA: No, ma’am. It might have been a discussion. I 

mean, we never fought. We never threw things or 

blew things out of portion. We were civilized 

people and talked like human beings. (RR3: 96). 
19

Outside the presence of the jury, and prior to commencing 

cross-examination, Defense Counsel informed the Court that he wished to impeach 

Kashimba, who previously testified that he and Navarro never fought, with three 

incidents in which law enforcement was called as a result of domestic disturbances 

between Kashimba and Navarro. Specifically, Counsel referenced the following:

DEFENSE COUNSEL: Your Honor, there are three Travis County 

Sheriff’s Office case reports. One is dated 

February 26th, 2010, in which two officers

responded to a report that there was a male chasing 

a female down the street. That ended up to be 

Chris Kashimba chasing Veronica Navarro down 

the street. The investigation revealed that 

Navarro had told Kashimba that she was breaking 

off the relationship and that he became extremely 

upset and chased her down the street. She got 

away. There was no physical violence, but there 

was this incident. There is another Travis County 

report dated October 24th of 2008 in which a 

deputy was dispatched to a family disturbance on 
20

Kings Court. It ended up that it was again 

Kashimba and Navarro, and he was told by 

Navarro that she was living with Kashimba’s

family and that the two of them had gotten into an

argument and the police were called. And then 

on September 22nd, 2008, there was a sheriff's 

department report concerning a theft of a laptop 

from Hyde Park Baptist Church. A deputy reports 

that the employees were identified as Navarro and 

Kashimba and then the deputy was present when 

they were fired. This report says that it was learned 

that Navarro and Kashimba had stolen a laptop 

from the church after a report had been filed with 

the Austin Police Department. And those three 

items, based on his testimony, I believe I should be 

able to inquire about. (RR3: 120-21). 

The trial court denied Counsel’s request. (RR3: 123).

Texas Rule of Evidence 607 allows for the impeachment of a witness. 

TEX. R. EVID. 607. It instructs: “The credibility of a witness may be attacked by 
21

any party, including the party calling the witness.” TEX. R. EVID. 607. 

Likewise, Texas Rule of Evidence 611(b) provides: “a witness may be 

cross-examined on any matter relevant to any issue in the case, including 

credibility.” TEX. R. EVID. 611(b). Texas Rule of Evidence 608 governs the 

admissibility of impeachment evidence and forbids the use of specific instances of 

conduct to impeach a witness’s credibility except to “expose bias or interest, rebut 

affirmative representations made on direct examination, or to demonstrate a lack of 

capacity.” TEX. R. EVID. 608; Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. 

App. 1997).

The evidence of the fights between Kashimba and Navarro, which were 

serious enough for law enforcement to be called, was admissible to impeach 

Kashimba’s credibility, and specifically, his affirmative representations made on 

direct examination that he and Navarro “never fought.” TEX. R. EVID. 608; 

Lagrone, 942 S.W.2d at 613. As such, the trial court abused its discretion in 

excluding this evidence. Montgomery, 810 S.W.2d at 391.

Appellant was harmed by the exclusion of this evidence because his 

substantial rights, including his right to a fair trial, were affected by the trial court’s 

ruling. TEX. R. APP. 44.2(b). “A substantial right is affected when the error had 

a substantial and injurious effect or influence in determining the jury’s verdict.” 
22

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997), citing Kotteakos v. 

United States, 328 U.S. 750, 776 (1946). The only “evidence” presented at trial 

was Kashimba’s testimony that Navarro was planning on leaving Appellant, thus 

establishing a motive for killing her. Had the jury been made aware that 

Kashimba was not, in fact, truthful, that fact would most certainly have affected 

the jury’s verdict. See King v. State, 953 S.W.2d at 271. Accordingly, 

Appellant’s third point of error should be sustained.

IV. The trial court abused its discretion in allowing the admission 

of a recorded phone call which was not properly 

authenticated.

Appellant’s fourth point of error should be sustained because the trial court 

allowed the admission of a recorded phone call without proper authentication. A 

trial court’s decision to admit or exclude evidence is reviewed under an abuse of 

discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 

1990). The test for abuse of discretion is not whether, in the opinion of the 

reviewing court, the facts present an appropriate case for the trial court’s action; 

but rather, whether the court acted without reference to any guiding rules or 

principles. Id.

During the testimony of Chief Osvold, of the Pembina County Jail where 

Appellant was held until Travis County authorities transported him to Texas, the 
23

State offered a recorded phone call between Appellant and his mother. Appellant 

challenged the authentication of that phone call and established the following:

DEFENSE COUNSEL: Chief Osvold, did you personally have anything to 

do with this phone call at the time it was made?

OSVOLD: I had nothing to do with any of the phone calls at 

the time they were made.

DEFENSE COUNSEL: So you did not -- at the time it was made, you did 

not check to see if the system was operating

properly at the time, correct?

OSVOLD: No, correct.

DEFENSE COUNSEL: And you didn’t push the button that records the 

call, correct?

OSVOLD: Correct.

DEFENSE COUNSEL: In fact, you didn’t even know the call was being 

made when it was made, correct?

OSVOLD: Correct. (RR7: 82-84). 

Appellant objected that the tape was not properly authenticated under Rule 

of Evidence 901, that the contents of the tape were not relevant, and that the 

admission of the tape violated Appellant’s right against self-incrimination. (RR7: 
24

76-77, 85-86). The trial court overruled Appellant’s objections. (RR7: 77-78, 

87). On the tape, Appellant’s mother asks Appellant whether or not he killed 

Navarro and he remains silent. (RR7: 77).

Texas Rule of Evidence 901 requires authentication that a voice, whether 

heard firsthand or through mechanical or electronic transmission or recording, 

through opinion testimony, is the voice of the alleged speaker. TEX. R. EVID. 

901(b)(5). Further, Rule 901 telephone conversations must be authenticated by 

evidence that a call was made to the number assigned at the time by the telephone 

company to a particular person or business, if: (a) in the case of a person, 

circumstances, including self-identification, show the person answering to be the 

one called; or (b) in the case of a business, the call was made to a place of business 

and the conversation related to business reasonably transacted over the telephone. 

TEX. R. EVID. 901(b)(6). 

None of this evidence which was required to show authenticity, was 

presented and therefore, authentication was not established. See TEX. R. EVID. 

901. Therefore, the trial court abused its discretion in allowing the recorded 

phone call into evidence. Montgomery, 810 S.W.2d at 391. 

Appellant was harmed by the admission of this evidence because his 

substantial rights, including his right to a fair trial, were affected by the trial court’s 
25

ruling. TEX. R. APP. 44.2(b). “A substantial right is affected when the error had 

a substantial and injurious effect or influence in determining the jury’s verdict.” 

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997), citing Kotteakos v. 

United States, 328 U.S. 750, 776 (1946). During the recorded phone call, 

Appellant’s mother asked Appellant if he killed Navarro and Appellant remained 

silent. This was clearly inflammatory in two ways. First, it insinuates that 

Appellant’s mother believed he was capable of murder. Second, it implies that 

Appellant’s silence reflects his guilt. In a case such as this one, where there was 

no evidence that Appellant committed an act which caused Navarro’s death, the 

recorded phone call most certainly had an effect on the jury’s verdict. See King v. 

State, 953 S.W.2d at 271. For the foregoing reasons, Appellant’s fourth point of 

error should be sustained.

V. The content of a recorded phone call between Appellant and 

his mother, which was improperly admitted at trial, violated 

Appellant’s right against self-incrimination.

Appellant’s fifth point of error should be sustained because the contents of 

the recorded phone call between Appellant and his mother, in which Appellant’s 

mother asks Appellant if he killed Navarro, violated his right to remain silent. 

The Fifth Amendment provides that “no person ... shall be compelled in any 

criminal case to be a witness against himself.” U.S. CONST. AMEND. V. This 
26

right was made applicable to the states by the Due Process Clause of the 

Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1 (1964). Texas 

Constitution article I, § 10, provides that “in all criminal prosecutions the accused 

shall ... not be compelled to give evidence against himself.” TEX. CONST. Art. I, 

§ 10. Texas Code of Criminal Procedure Article 38.08 provides, “...the failure of 

any defendant to so testify shall not be taken as a circumstance against him, nor 

shall the same be alluded to or commented on by counsel in the cause.” TEX.

CODE CRIM. PRO. Art. 38.08. If the complained-of remark called the jury’s 

attention to the absence of evidence that only the testimony from the appellant 

could supply, the conviction must be reversed. See Losada v. State, 721 S.W.2d 

305, 313 (Tex. Crim. App. 1986); Angel v. State, 627 S.W.2d 424, 426 (Tex. Crim. 

App. 1982); Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981).

In this case, the question from Appellant’s mother as to whether Appellant 

killed Navarro clearly invaded his right to remain silent. Additionally, the answer 

to Appellant’s mother’s question was information only Appellant could supply, 

and therefore, should never have been put before the jury. See Losada, 721 

S.W.2d at 313; Angel, 627 S.W.2d at 426; Johnson, 611 S.W.2d at 650. 

Accordingly, Appellant’s fifth point of error should be sustained and his conviction 

reversed. See Id.
27

VI. The trial court abused its discretion in denying Appellant’s 

Motion for New Trial.

Appellant’s sixth point of error should be sustained because the trial court 

abused its discretion in denying Appellant’s Motion for New Trial. A trial court’s 

ruling on a Motion for New Trial is reviewed under an abuse of discretion 

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

To be entitled to a new trial, appellant must show there is, in fact, new 

evidence, both competent and material to the case, the existence of which was 

unknown to appellant at the time of trial. See Jones v. State, 711 S.W.2d 35, 38 

(Tex. Crim. App. 1986). Second, appellant must show his failure to discover such 

evidence before trial, or to utilize the evidence, once discovered, at the time of 

trial, was not a result of any lack of diligence on his part. Id.

At the hearing on Appellant’s Motion for New Trial, it was undisputed that 

an investigating officer committed a Brady4 violation by failing to turn over 

surveillance videotapes from a Walmart store which showed Appellant and 

Navarro shopping together the day before she disappeared. (RR10: 10-18). 

These tapes, admitted as Exhibits 339, 339(b), 339(c), and 341 refuted the theory 

presented by the State that Navarro was frightened by Appellant and was planning 

to leave him. (RR10: 18). Despite the arguments made by counsel that these 

 4

 Brady v. Maryland, 373 U.S. 83 (1963). 
28

tapes would have affected the outcome of Appellant’s trial, the Court denied 

Appellant’s Motion for New Trial. (RR10: 26). 

Here, Appellant is able to show new evidence, in the form of surveillance 

videotapes which contradict the State’s theory of their case, which is both 

competent and material to the case, the existence of which was unknown to 

appellant at the time of trial. See Jones, 711 S.W.2d 35, 38 (Tex. Crim. App. 

1986). He is also able to show that his failure to discover this evidence before 

trial was not a result of any lack of diligence on his part because it is undisputed 

that a Brady violation occurred which deprived Appellant of this evidence. Id. 

Because Appellant has met the standard for receiving a new trial, the trial court 

abused its discretion in denying Appellant’s Motion for New Trial. Id. 

Therefore, Appellant’s sixth point of error should be sustained.
29

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays 

that this Court reverse the judgment and sentence in this case.

Respectfully submitted,

_____”/s/” Kristen Jernigan_______

KRISTEN JERNIGAN

State Bar Number 90001898

207 S. Austin Ave.

Georgetown, Texas 78626

(512) 904-0123

(512) 931-3650 (fax)

Kristen@txcrimapp.com

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the 

foregoing Appellant’s Brief has been mailed to the Travis County District 

Attorney’s Office, P.O. Box 1748, Austin, Texas 7867, on February 19, 2015.

________”/s/” Kristen Jernigan__________

Kristen Jernigan
30

CERTIFICATE OF WORD COUNT

The undersigned hereby certifies that the foregoing document consists of 

5,812 words in compliance with Texas Rule of Appellate Procedure 9.4.

________”/s/” Kristen Jernigan__________

Kristen Jernigan