No. 03-14-00637-CR

In the

COURT OF APPEALS

For the

THIRD SUPREME JUDICIAL DISTRICT

at Austin

______________________________________

On Appeal from the 403rd Judicial District Court of

Travis County, Texas

Cause Number D-1-DC-12-302227

______________________________________

CHRISTOPHER ROBERTS, Appellant

v.

THE STATE OF TEXAS, Appellee

_____________________________________

APPELLANT’S BRIEF

_____________________________________

Counsel for Appellant KRISTEN JERNIGAN

Christopher Roberts 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

03-14-00637-CR

5006955

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/23/2015 1:53:06 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/23/2015 1:53:06 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:

Christopher Roberts

Counsel for Appellant:

William J. Browning (at trial) Guillermo Gonzalez (at trial)

811 Nueces 700 Lavaca St., Suite 405

Austin, Texas 78701 Austin, Texas 78701

Matthew Dorsen (at trial) Kristen Jernigan (on appeal)

700 Lavaca Street 207 S. Austin Ave.

Austin, Texas 78701 Georgetown, Texas 78626

Counsel for Appellee, The State of Texas:

Rosemary Lehmberg

Travis County District Attorney

Maria Deford

Anna Lee McNelis

Joe Frederick

Assistant District Attorneys

509 W. 11th Street

Austin, Texas 78701

Trial Court Judge:

The Honorable Brenda Kennedy
iii

TABLE OF CONTENTS

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

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

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

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

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

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

ARGUMENT & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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

requested jury instruction on the lesser-included offense of 

manslaughter.

2. The trial court abused its discretion in allowing a detective to 

give his opinion that Appellant committed the offense of 

murder without any personal knowledge of that alleged fact.

3. The evidence is insufficient to support Appellant’s conviction.

4. The prosecutor unfairly argued outside the bounds of the proper 

areas of argument during closing statements.

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
iv

INDEX OF AUTHORITIES

CASES

Aguilar v. State, 682 S.W.2d 556 (Tex. Crim. App. 1985) . . . . . . . . . . . . . . . . . . . 9

Arnold v. State, 853 S.W.2d 543 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . .18, 21

Bell v. State, 724 S.W.2d 780 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . . . . 24

Cannon v. State, 668 S.W.2d 401 (Tex. Crim. App. 1984) . . . . . . . . . . . . . . . . . . 24

Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . .17

Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . .10, 16

Boyde v. State, 513 S.W.2d 588 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . . . . . . 18

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . .22, 23

Cardenas v. State, 30 S.W.3d 384 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . .9

Dobbins v. State, 228 S.W.3d 761 (Tex. App.—Houston [14th Dist.] 2007) . 10, 16

Fairow v. State, 943 S.W.2d 895 (Tex. Crim. App. 1997) . . . . . . . . . .17, 18, 21, 23

Felder v. State, 848 S.W.2d 85 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . 23, 31

Flores v. State, 245 S.W.3d 432 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . 9

Forest v. State, 989 S.W.2d 365 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . 10, 16

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . 22

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 23

Jackson v. State, 160 S.W.3d 568 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . 8
v

Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . .19

Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . 19

King v. State, 953 S.W.2d 271 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . .21, 30, 31

Kotteakos v. United States, 328 U.S. 750 (1946) . . . . . . . . . . . . . . . . . . . . . . .21, 30

Lum v. State, 903 S.W.2d 365 (Tex. App. -- Texarkana 1995) . . . . . . . . . . . . . . . 18

Makeig v. State, 802 S.W.2d 59 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . 8 

McMillan v. State, 754 S.W.2d 422 (Tex. App. -- Eastland 1988) . . . . . . . . . . . . 17

Megan Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) . . . . . . . . . . . . 22

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . 19

Nejnaoui v. State, 44 S.W.3d 111 (Tex. App.—Houston [14th Dist.] 2001) . .19, 20

Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993) . . . . . . . . . . . . .7, 9, 16

Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981) . . . . . . . . . . . . . . 7, 9, 16

Saunders v. State, 840 S.W.2d 390 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . 10

Spaulding v. State, 505 S.W.2d 919 (Tex. Crim. App. 1974) . . . . . . . . . . . . . . . . 18

State v. Kurtz, 152 S.W.3d 72 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . 8

Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Fort Worth, 2014) . . . . . . . . . . .22

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), 

cert. denied, 532 U.S. 944 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
vi

STATUTES AND RULES

TEX. CODE CRIM. PRO. Art. 37.09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

TEX. PENAL CODE § 6.03(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. PENAL CODE § 19.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. PENAL CODE § 19.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. R. APP. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

TEX. R. EVID. 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 18 

TEX. R. EVID. 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 20
vii

STATEMENT REGARDING ORAL ARGUMENT

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

argument in this case.
1

No. 03-14-00637-CR

In the

COURT OF APPEALS

For the

THIRD SUPREME JUDICIAL DISTRICT

at Austin

______________________________________

On Appeal from the 403rd Judicial District Court of

Travis County, Texas

Cause Number D-1-DC-12-302227

______________________________________

CHRISTOPHER ROBERTS, Appellant

v.

THE STATE OF TEXAS, Appellee

_____________________________________

APPELLANT’S BRIEF

_____________________________________

STATEMENT OF THE CASE

On January 22, 2013, Appellant was indicted for the felony offense of 

murder. (CR: 16). On September 26, 2014, a jury found Appellant guilty of the 

offense of murder as alleged in the indictment. (CR: 242, 258). The jury

assessed Appellant’s punishment at fifty years in prison. (CR: 246, 258). 

Appellant timely filed Notice of Appeal on September 29, 2014.

1

 (CR: 253). 

This appeal results.

 1

 Once the undersigned was appointed, the undersigned filed Notice of Appeal on October 3, 

2014 as well. (CR: 255).
2

STATEMENT OF FACTS

At trial, Kevin Garvey of the Austin Police Department told the jury that on 

November 15, 2012, he was dispatched to a call regarding a possible deceased 

person. (RR8: 24-25). When Garvey arrived at the location, a home shared by 

Appellant and his roommates, Garvey encountered roommate Michael Orf. 

(RR8: 27). Once inside, Garvey found a deceased person inside and identified 

her as Kirstin Anderson. (RR8: 28). While Garvey and other officers 

investigated, Appellant was transported to the Police Department to be 

interviewed. (RR8: 32-33). Appellant returned later and waited outside in 

Garvey’s patrol car while Garvey and the other officers on scene completed their 

investigation. (RR8: 32-33). On cross-examination, Garvey acknowledged that 

EMS had responded earlier to Appellant’s home, but Orf told them they were not 

needed and he did not understand why they were there. (RR8: 37-38). 

Jack Perkins with the Austin Police Department related that on November 

14, 2012, he responded to a call at the home Appellant shared with Orf and other 

roommates. (RR8: 45). One of the roommates, Nora Holland, called 911 and 

indicated that she might commit suicide. (RR8: 45-46). Ultimately, Holland 

was transported to the hospital. (RR8: 45-46). The next day, Perkins responded 

to the call at Appellant’s home and during the investigation of Anderson’s death, 
3

transported Appellant to the Police Department to be interviewed. (RR8: 52). 

On cross-examination, Perkins stated that on November 14, 2012, Holland was in 

distress and Appellant was attempting to care for her. (RR8: 53-54). 

Jason Hallmark of the Austin Police Department explained that on 

November 15, 2012, he responded to a 911 call of a person not breathing. (RR8: 

58). When he arrived, Hallmark encountered Appellant who was in a bedroom 

with Garvey and Anderson and was trying to determine what had happened to 

Anderson. (RR8: 58-59). Hallmark directed Appellant out to the living room 

and Appellant looked as if “he was like in shock.” (RR8: 60). 

Derek Israel, a detective with the Austin Police Department, stated that he 

arrived at Appellant’s home on November 15, 2012, to determine the manner of 

Anderson’s death. (RR8: 79-80). Israel told the jury that he found some 

bruising on Anderson’s body as well as a fingernail mark. (RR8: 90-91). Israel 

expressed an opinion that Anderson may have been choked or strangled. (RR8: 

108). Israel was shown photographs which, in his opinion, reflected a small 

injury to Appellant’s hand and some stains on a portion of his shirt. (RR8: 

119-21). On cross-examination, Israel agreed that the police are called to every 

non-hospice related death and that simply because they respond to a death scene, it 

does not mean a murder has necessarily occurred. (RR8: 126). Israel also 
4

agreed that he could not conclude Anderson’s or Appellant’s apparent injuries 

were caused by a struggle. (RR8: 130). Israel stated further that the “injuries” 

on Appellant’s hand were “small, a millimeter, two millimeters” and that he had 

“no idea” how they came about. (RR8: 132). 

Leisha Wood with the Travis County Medical Examiner’s Office expressed 

her opinion that Anderson died at least twelve hours before police responded to her 

home on November 15, 2012, and that her death could have occurred as early as 

the night of November 14, 2012. (RR8: 177). Wood expressed further that 

Anderson’s cause of death was strangulation. (RR8: 183). The toxicology 

examination of Anderson showed she had marijuana metabolites in her blood and a 

blood alcohol content of .36. (RR8: 188). On cross-examination, Wood 

admitted that if a person was put in a choke hold for thirty seconds they would 

appear to be sleeping but could die later. (RR8: 192). Additionally, a high 

blood alcohol content, like that found in the toxicology examination of Anderson, 

could impact that chance of survival negatively. (RR8: 192). Wood was also 

forced to acknowledge that Anderson’s death was caused by lack of blood to the 

brain, not an obstructed airway. (RR8: 194). 

Claire McKenna, a DNA technician with the Austin Police Department, 

stated that she tested fingernail swabs from both Appellant and Anderson, a neck 
5

swab from Anderson, and a stain on Appellant’s shirt. (RR9: 25). The 

fingernail swab from Appellant’s right hand indicated only his own DNA, and not 

that of Anderson. (RR9: 27). The swab taken from Anderson’s right fingernail 

indicated a mixture of DNA samples which could have included several different 

contributors, but Appellant and Anderson could not be excluded as contributors. 

(RR9: 28). However, McKenna testified that Appellant’s DNA could be under 

Anderson’s fingernail because they lived together. (RR9: 29). The fingernail 

swab from Anderson’s left hand also indicated a mixture of potentially many DNA 

profiles, but Appellant and Anderson could not be excluded as contributors. 

(RR9: 30). McKenna was careful to point out that regarding all of her tests, she 

could not testify Appellant’s DNA appeared on any of the samples; but rather, 

could only express her opinion as to the possibility his DNA profile could be 

excluded or included. (RR9: 32). McKenna then stated that Anderson could 

not be excluded as a contributor to the DNA found on Appellant’s shirt but could 

not say that the DNA found came from the stain on Appellant’s shirt. (RR9: 47). 

In fact, McKenna only did a presumptive test for blood and not a confirmatory test. 

(RR9: 47). Finally, McKenna indicated that Appellant was excluded as a 

contributor to the DNA found on Anderson’s neck. (RR9: 36). On 

cross-examination, McKenna admitted that she did not conduct further testing on 
6

the swabs from Anderson’s fingernails that indicated multiple contributors to 

determine who those contributors were. (RR9: 58-59).

William White with the Austin Police Department told the jury that on 

November 15, 2012, he responded to the scene of Anderson’s death. (RR9: 72). 

As part of his investigation he interviewed Appellant at the Police Department. 

(RR9: 80). The jury was then shown a video recording of that interview. (RR9: 

80). During the interview, Appellant related that he left for work on the morning 

of November 15, 2012, and Anderson was snoring in the bed next to him. (RR11: 

18). When he returned home at 5:00 p.m., he found her not moving so he 

grabbed a cell phone, called 911, and did CPR until the paramedics arrived.

(RR11: 19). Appellant indicated that the night before, he had had to restrain 

Anderson with a form of a choke hold to calm her down. (RR11: 28, 30). 

Appellant explained that Anderson had been drinking heavily and often became 

out of control. (RR11: 29-30). White stated that he spoke with Appellant again 

in Garvey’s patrol car outside Appellant’s home. (RR9: 89). White then 

interviewed Appellant again while he was in custody at the Del Valle Correctional 

Complex shortly after he was arrested. (RR9: 109). Based on that interview, 

White was allowed to testify, over Appellant’s objection that it was his opinion 

that Anderson’s death was a “straightforward murder.” (RR9: 111). At the 
7

close of White’s testimony, both sides rested and closed. (RR9: 125). 

ISSUES PRESENTED

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

requested jury instruction on the lesser-included offense of 

manslaughter.

2. The trial court abused its discretion in allowing a detective to 

give his opinion that Appellant committed the offense of 

murder without any personal knowledge of that alleged fact.

3. The evidence is insufficient to support Appellant’s conviction.

4. The prosecutor unfairly exceeded the bounds of the proper 

areas of argument during closing statements.

SUMMARY OF THE ARGUMENT

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

abused its discretion in denying Appellant’s requested jury instruction on the 

lesser-included offense of manslaughter where Appellant met the required 

two-prong test set forth in Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. 

App. 1993); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981). 

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

abused its discretion in allowing a detective to give his opinion that Appellant 

committed the offense of murder without any personal knowledge of that alleged 

fact and the detective’s opinion supplanted that of the jury’s. Appellant’s third 

point of error should be sustained because the evidence is insufficient to support 
8

Appellant’s conviction for murder when the State failed to prove the requisite 

mental state for that offense. Appellant’s fourth point of error should be 

sustained because the prosecutor unfairly exceeded the bounds of the proper areas 

of jury argument by infusing facts not testified to at trial during closing statements

which resulted in a violation of Appellant’s substantial rights, including the right to 

a fair trial.

ARGUMENT & AUTHORITIES

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

requested jury instruction on the lesser-included offense of 

manslaughter.

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

abused its discretion in denying Appellant’s request for a jury instruction on the 

lesser-included offense of manslaughter. A trial court’s decision regarding the 

submission of a lesser-included offense is reviewed for an abuse of discretion. 

Jackson v. State, 160 S.W.3d 568, 575 (Tex. Crim. App. 2005). A trial court 

abuses its discretion when its decision is arbitrary, unreasonable, or without 

reference to guiding rules or principles. Makeig v. State, 802 S.W.2d 59, 62 (Tex. 

Crim. App. 1990). A trial court also abuses its discretion when it fails to analyze 

the law correctly and apply it to the facts of the case. State v. Kurtz, 152 S.W.3d 

72, 81 (Tex. Crim. App. 2004).
9

A two-prong test is applied to determine whether a defendant is entitled to 

an instruction on a lesser-included offense. Rousseau v. State, 855 S.W.2d 666, 

672 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. 

App. 1981). First, the lesser-included offense must be included within the proof 

necessary to establish the charged offense. See TEX. CODE CRIM. PRO. Art. 37.09; 

Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008). Second, some 

evidence must exist in the record that would permit a jury to rationally find that if 

the defendant is guilty, he is guilty of only the lesser-included offense. Aguilar v. 

State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). 

Manslaughter is a lesser-included offense of murder. Cardenas v. State, 30 

S.W.3d 384, 392 (Tex. Crim. App. 2000). Thus, the first prong of the required 

test is satisfied.

As for the second prong, a person commits manslaughter if he recklessly 

causes the death of an individual. TEX. PENAL CODE § 19.04. A person acts 

recklessly if he engages in conduct and is aware of but consciously disregards a 

substantial and unjustifiable risk associated with that conduct. TEX. PENAL CODE

§ 6.03(c).

Anything more than a scintilla of evidence is sufficient to entitle a defendant 

to a charge on the lesser-included offense. Dobbins v. State, 228 S.W.3d 761, 
10

768 (Tex. App.—Houston [14th Dist.] 2007). A trial court is not permitted to 

consider the weight or credibility of the evidence, or whether it conflicts with other 

evidence. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). 

Regardless of its strength or weakness, if the evidence establishes the 

lesser-included offense as a “valid, rational alternative to the charged offense,”

then the charge must be given. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. 

App. 1999); Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).

In this case, at the close of testimony, Appellant objected to the jury charge 

and requested an instruction on the lesser-included offense of manslaughter. 

(RR9: 127-34). Counsel argued that an interview between Detective White and

Appellant raised the issue of whether Appellant’s conduct was reckless or 

intentional. (RR9: 130-34). Specifically, counsel argued that if guilty, there 

was evidence that Appellant may have recklessly caused Anderson’s death. 

(RR9: 133). 

The record reflects that during Appellant’s first interview with White, he 

explained that on the night of November 14, 2012, he had had to restrain Anderson 

with a form of a choke hold to calm her down. (RR11: 28, 30). Appellant 

informed White that Anderson had been drinking heavily and often became out of 

control. (RR11: 29-30). In response to Appellant’s comments, White 
11

repeatedly theorized that Appellant’s acts were reckless, rather than intentional or 

knowing. During Appellant’s first interview, the following exchange occurred 

between White and Appellant:

DET. WHITE: Well... again that’s not saying that you meant to harm 

her.

APPELLANT: Right.

DET. WHITE: You know? This could have been something totally 

accidental, alright? You mentioned she does like to be 

strangled... during... and she gets off on that sort of thing. 

It doesn’t take much to actually render a person 

unconscious when they’re in a choke hold.

DET. WHITE: Yeah, especially if they’re been drinking and it doesn’t 

take much to knock them out normally. Nor does it take 

much after they’re knocked out to actually cause enough 

damage from them to even be awake for a little bit, but 

then subsequently die or even to do it long enough where 

they actually die. We’ve seen cases where somebody gets 

strangled for long enough that they pass out and they 

don’t ever come to and they’ll stay breathing for you 
12

know sometimes minutes, sometimes hours and days 

before they... the lack of oxygen and amount of damage 

caused because of the strangulation eventually causes 

their brain to shut down. So...

(RR11: 41). 

In Appellant’s second statement, White again contemplated the issue 

of intent. 

DET. WHITE: Yeah, you know, and there’s a big difference between 

someone that goes out and intentionally wants to kill 

somebody and somebody who gets involved in a

situation and just gets a little beyond their control. And 

they don’t necessarily intend that outcome but sometimes 

things get out of control and, you know, mistakes 

happen. I’ve certainly made my fair share in my life

and...

(RR11: 49). 

In the third statement, White again raised the issue:

DET. WHITE: OK. Well as far as, uhh... Why it’s 1st degree murder, 

uhh... There’s two reasons they wanna charge you with 
13

1st degree murder, uhh... It’s called, what’s called 

intentionally causing someone’s death and knowingly 

causing someone’s death. Like I talked to you before,

whether or not you intended to kill her, I can see that 

you probably did not.

(RR11: 56) (emphasis added).

White continued:

DET. WHITE: Whatever the case may is, or if you’re just trying to calm 

her down. Whatever the case is, people can sometimes let 

things go a little farther than they meant to. That’s what I 

was saying, you know, it’s possible that you hit it harder

than you normally do, and that’s what ultimately caused 

this. That’s... that’s understandable. That’s... that’s 

something that I think anybody can see happening.

APPELLANT: But you, but you charged me with 1st degree murder 

which is intentional.

DET. WHITE: It’s intentional or knowingly. Intentional means, and 

it’s complicated, its legal means. Intentional is like what 

you... were... what you’re thinking in your mind. You’re 
14

right. Intentional means I’m gonna go kill that person, I 

want them dead. OK?

APPELLANT: [not audible]

DET. WHITE: Knowingly means something different. Knowing can 

mean, OK, I take a gun out and I’m gonna try to scare 

you. So, I’m gonna shoot it right at you, but then I end up 

shooting you. Well, I should have known that by doing 

this act, shooting a gun at somebody is clearly dangerous 

and can cause them, cause death to them.

APPELLANT: That’s the issue I’m having problems with... [not 

audible]... I don’t know. I don’t know. I thought that was 

way less harmful than a choke... my arm... her arm. You 

know? (RR11: 59). 

DET.WHITE: Yeah, and don’t. I don’t believe, I believe you’re not a 

cold blooded murderer and I talked to you about that at

our first interview, was I don’t think you're a serial killer. 

I don’t think your goal that night was to go out and 

murder your girlfriend or anything like that. I think it

was a situation that got, that went beyond what you
15

meant it to. 

(RR11: 60) (emphasis added).

DET. WHITE: Mmm. Well again, like what we talked about, there’s 

a...There’s a difference between going out and 

intentionally killing someone and then just, in the heat of 

the moment, things going too far. Uhh... Now, what you 

what you were saying as far as, you know, I can see it 

being manslaughter versus murder. That is something 

you can discuss, you know, that’s something you can talk 

to the prosecutors about, with your attorney about. 

(RR11: 63). 

Appellant indicated to White that he put Anderson in a choke hold to restrain 

her after she had become out of control after drinking heavily. The medical 

examiner testified that if a person was put in a choke hold for thirty seconds they 

would appear to be sleeping but could die later and that a high blood alcohol 

content, like the .36 level found in the toxicology examination of Anderson, could 

impact that chance of survival negatively. Therefore, the act of putting someone 

in a choke hold could be considered a reckless act.
16

Further, the State’s own witness repeatedly raised the issue of whether if 

Appellant was guilty, he could be guilty only of the lesser-included offense of 

manslaughter. White even went so far as to say, “I can see it being manslaughter 

versus murder” and “Like I talked to you before, whether or not you intended to 

kill her, I can see that you probably did not.” The video and audio recordings of 

Appellant’s statements were played before the jury and admitted into evidence in 

Appellant’s trial and are more than a scintilla of evidence that if Appellant was 

guilty, he was guilty only of the offense of manslaughter. See Dobbins, 228 

S.W.3d at 768. Thus, the issue of whether Appellant acted recklessly was 

undoubtedly raised at trial as a “valid, rational alternative to the charged offense.”

See Forest, 989 S.W.2d at 367; Bignall, 887 S.W.2d at 23. As such, the trial 

court was required to instruct the jury on the lesser-included offense of 

manslaughter. Id.

Appellant has met the requirements of the two-prong test as set forth in 

Rousseau and Royster, for showing he was entitled to a jury instruction on the 

lesser-included offense of manslaughter. Rousseau, 855 S.W.2d at 672; Royster, 

622 S.W.2d at 444; Dobbins, 228 S.W.3d at 768. Therefore, the trial court was 

required to give Appellant’s requested instruction and abused its discretion in 

failing to do so. Forest, 989 S.W.2d at 367; Bignall, 887 S.W.2d at 23. 
17

Accordingly, Appellant’s first point of error should be sustained.

II. The trial court abused its discretion in permitting the lead 

detective in this case to give his opinion that Appellant 

committed murder when he had no personal knowledge upon 

which to base his opinion.

The trial court abused its discretion in allowing the lead detective in this 

case, who was not present when Anderson died, to give an opinion that Appellant 

intentionally caused her death. The trial court’s ruling allowing this opinion 

testimony, over Appellant’s objection, was an abuse of discretion because the 

detective had no personal knowledge upon which to base his opinion and because 

the investigator’s opinion supplanted the jury’s determination of guilt or 

innocence. 

Texas Rule of Evidence 701 states that a lay witness’s testimony in the form 

of opinions or inferences is limited to those opinions or inferences which are (a) 

rationally based on the perception of the witness and (b) helpful to a clear 

understanding of the witness’s testimony or the determination of a fact in issue. 

TEX. R. EVID. 701. The initial requirement that an opinion be rationally based on 

the perceptions of the witness is composed of two parts. Fairow v. State, 943 

S.W.2d 895, 899-900 (Tex. Crim. App. 1997). “First, the witness must establish 

personal knowledge of the events from which his opinion is drawn and, second, the 

opinion drawn must be rationally based on that knowledge.” Id. Accordingly,
18

the proponent of lay-opinion testimony must establish that the witness has personal 

knowledge of the events upon which his opinion is based. Id. If the proponent 

of the opinion cannot establish personal knowledge on the part of the testifying 

witness, the trial court should exclude the testimony. Id.; see also Bigby v. State, 

892 S.W.2d 864, 889 (Tex. Crim. App. 1994); McMillan v. State, 754 S.W.2d 422, 

425 (Tex. App. -- Eastland 1988) (holding that a lay-witness opinion based on 

hearsay was inadmissible). It is impossible for a witness to possess personal 

knowledge of what someone else is thinking because that individual is the only one 

who knows for certain the mental state with which he or she is acting. Fairow, 

943 S.W.2d at 899-900; see also Arnold v. State, 853 S.W.2d 543, 547 (Tex. Crim. 

App. 1993). “Therefore, if the trial court determines that a proffered lay-witness 

opinion is an attempt to communicate the actual subjective mental state of the 

actor, the court should exclude the opinion because it could never be based on 

personal knowledge.” Fairow, 943 S.W.2d at 900. Moreover, if the witness’s 

lack of personal knowledge yields testimony that amounts to an opinion of guilt or 

innocence, the opinion should be excluded. Fairow, 943 S.W.2d at 900; see also 

Boyde v. State, 513 S.W.2d 588 (Tex. Crim. App. 1974); Spaulding v. State, 505 

S.W.2d 919 (Tex. Crim. App. 1974).
19

The second requirement for admissibility under rule 701 is that the opinion 

be helpful to the trier of fact to either understand the witness’s testimony or to 

determine a fact in issue. TEX. R. CRIM. EVID. 701. A lay witness’s opinion as to 

a mental state is properly excluded when the witness has not been qualified as an 

expert or shown to know the legal definition of said mental state. Fairow v. State, 

943 S.W.2d at 900; see also Lum v. State, 903 S.W.2d 365, 370 (Tex. App. --

Texarkana 1995).

To be admissible, expert testimony must “assist” the trier of fact and be both 

reliable and relevant to help the jury in reaching accurate results. TEX. R. EVID. 

702; Jordan v. State, 928 S.W.2d 550, 553- 54 (Tex. Crim. App. 1996); Kelly v. 

State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). An expert’s testimony must 

aid, but not supplant the jury’s decision. Nejnaoui v. State, 44 S.W.3d 111, 117 

(Tex. App.—Houston [14th Dist.] 2001). The trial court’s ruling on the 

admissibility of opinion testimony is reviewed under an abuse of discretion 

standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990).

Detective White interviewed Appellant while he was in custody at the Del 

Valle Correctional Complex shortly after he was arrested. (RR9: 109). Based 

on that interview, White was allowed to testify, over Appellant’s objection that it 

was his opinion that Anderson’s death was a “straightforward murder.” (RR9: 
20

111). This line of opinion testimony continued with the following:

THE PROSECUTOR: So based on what you had at the time, why did you 

charge the defendant with murder?

DET. WHITE: The law says that murder is intentionally or

knowingly. Based on the totality of the 

circumstances, the evidence we had at the time, the 

investigation, what forensics we did have, 

including the medical examination, and ultimately 

the defendant’s own statements, I felt that his 

conduct was not only knowing but intentionally 

done.

(RR9: 114).

White was not qualified as an expert and therefore, his testimony was that of 

a lay witness. TEX. R. EVID. 701. White was not present when Anderson died 

and therefore, his opinion that Appellant committed the offense of murder was not 

based on his personal knowledge or rational perception of any event. Fairow, 

943 S.W.2d at 899-900. Further, White could never have possessed personal 

knowledge of Appellant’s mental state, which White testified was knowing and 

intentional. Fairow, 943 S.W.2d at 899-900; Arnold, 853 S.W.2d at 547. Since 
21

White’s opinion was an attempt to communicate Appellant’s actual subjective 

mental state, namely that he intentionally and knowingly killed Anderson, it should 

have been excluded, especially since that opinion was an ultimate opinion of guilt 

or innocence. Fairow, 943 S.W.2d at 900. 

Further, White’s opinion was not helpful to the jury because it did not assist 

the jury in determining an issue of fact and instead, supplanted the jury’s ultimate 

decision of whether Appellant was innocent or guilty. TEX. R. EVID. 702; 

Nejnaoui, 44 S.W.3d at 117.

Appellant was harmed by the trial court’s erroneous ruling allowing the 

admission of White’s opinion because Appellant’s substantial rights, including his 

right to a fair trial, were affected. 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). Clearly, 

the admission of White’s opinion that Appellant acted intentionally and knowingly, 

and therefore, murdered Anderson affected the jury’s verdict. This was the 

State’s only evidence that Appellant acted intentionally and knowingly,

2 and 

 2

 Appellant anticipates that the State will argue Appellant confessed to intentionally causing 

Anderson’s death based on statements Appellant made during his third interview with White. 

See (RR11: 64, 68). However, the record reflects that Appellant’s statements regarding what 

could have happened on the night Anderson died were speculation and “for the sake of this 
22

therefore, necessarily affected the outcome of Appellant’s trial. See King, 953 

S.W.2d at 271. 

The trial court abused its discretion in allowing opinion testimony where 

White had no personal knowledge to give that opinion and Appellant was harmed 

by that admission. See Montgomery, 810 S.W.2d at 379; King, 953 S.W.2d at 

271. That being the case, Appellant’s second point of error should be sustained.

III. 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 only 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 Anderson’s death. TEX.

PENAL CODE § 19.02. It is well-settled that circumstantial evidence alone can be 

 

interrogation.” (RR11: 64).
23

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). 

The only “evidence” that Appellant caused Anderson’s death intentionally or 

knowingly came from Detective White who gave his opinion, unsupported by any 

personal knowledge, that Appellant acted intentionally or knowingly. 3 As 

discussed above, this “evidence” should have been excluded at trial and should not 

be considered on appeal. See Fairow, 943 S.W.2d at 900. Without Detective 

White’s testimony, the State failed to show Appellant intentionally or knowingly 

caused Anderson’s death, and any speculation to that effect is not supported by the 

record. In fact, the record evidence shows that when Appellant returned home 

from work on November 15, 2012, he called 911 and performed CPR on Anderson 

until EMS arrived.

 3 Again, Appellant anticipates that the State will argue Appellant confessed to intentionally 

causing Anderson’s death based on statements Appellant made during his third interview with 

White. See (RR11: 64, 68). However, the record reflects that Appellant’s statements 

regarding what could have happened on the night Anderson died were speculation and “for the 

sake of this interrogation.” (RR11: 64).
24

In the absence of any evidence to show Appellant’s mental state, or that he 

acted intentionally or knowingly, no 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. Accordingly, Appellant’s third point of error 

should be sustained.

IV. The prosecutor unfairly exceeded the proper areas of jury 

argument during closing statements which resulted in a 

substantial violation of Appellant’s rights, including the right 

to a fair trial.

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

exceeded the proper areas of jury argument, over Appellant’s objection, during closing 

arguments. The prosecutor’s argument harmed Appellant and resulted in a violation of 

his substantial rights, including his right to a fair trial.

It is well-settled that there are four proper areas of jury argument: (1) 

summation of the evidence, (2) reasonable deductions drawn from the evidence, 

(3) answer to opposing counsel’s argument, and (4) plea for law enforcement. 

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 

U.S. 944 (2001). “An argument which exceeds these bounds is error...” and is

subject to reversal if the argument is extreme or manifestly improper, violative of a 

mandatory statute “or injects new facts, harmful to the accused, into the trial.” 

Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992), citing Bell v. State, 
25

724 S.W.2d 780 (Tex. Crim. App. 1986); Cannon v. State, 668 S.W.2d 401 (Tex. 

Crim. App. 1984).

During closing arguments at the guilt or innocence phase of trial, the 

following occurred before the jury:

THE PROSECUTOR: Ladies and gentlemen, I want you to come with me 

to that -- to Kirstin’s home, to that address at Little 

John where she lived. I want you to come with me 

to that night of November 14th and I want us to 

walk into her bedroom and see what is going on 

there. And I want you to see as the defendant

strikes her and as she decides on that night she has

had enough, she’s going to kick him out --

TRIAL COUNSEL: Your Honor, she is arguing facts that have not 

been entered into evidence.

THE PROSECUTOR: Your Honor, it is a deduction from the evidence

based on the defendant’s statements.

THE COURT: Objection overruled.

THE PROSECUTOR: So she decides -- she has decided she’s had 

enough, she's not going take it anymore, she is
26

going to call the police. That’s what caused all of 

this to happen, she was finally going to take some 

action.

TRIAL COUNSEL: Your Honor, I renew my objection. This is not a 

deduction from the evidence. This is pure 

hypothetical being offered by the State, not based 

on any evidence that’s been admitted.

THE COURT: Objection overruled.

(RR10: 23-24). The prosecutor continued her argument, which injected new 

facts, harmful to Appellant, as follows:

THE PROSECUTOR: I want you to indulge me for a few seconds. I’m 

going to start this stopwatch that I have here and 

when I start it I want all of us to hold our breath, 

and when I stop it, for as long as you can or until I 

say stop because I want to show you how long this 

takes to kill someone, why it is intentional.

TRIAL COUNSEL: Your Honor, I object to this as well. This is outside 

the scope of the evidence that was presented.

THE COURT: Objection overruled.
27

THE PROSECUTOR: If we could start. If we could stop. That’s only 

14 seconds. Kirstin is still not dead. He’s 

continuing to choke her to unconsciousness. She is 

still not dead and we’re at 30 seconds. Imagine 

how long it took. Think about that damage to her 

cartilage, he fractured it, the pressure that is 

required. 40 seconds, we’re still not there. She’s 

still not dead. Can you imagine the fear? Can 

you imagine what she’s feeling? She can’t breathe. 

That gentleman who was on the jury told us when 

his wife has those attacks, when she can't breathe 

--

TRIAL COUNSEL: Your Honor, I object that that is not evidence that 

was offered in trial.

THE PROSECUTOR: -- the moment has to pass before she can breathe.

THE COURT: Again, the ladies and gentlemen of the jury will 

recall the evidence as they heard it.

THE PROSECUTOR: Those of you that are nurses, that work -- that are 

on the jury that work with patients that have 
28

problems with their airway --

TRIAL COUNSEL: That’s improper jury argument, Your Honor.

THE PROSECUTOR: -- use your experience.

TRIAL COUNSEL: I object, Your Honor. She cannot appeal directly to 

the individual jurors in that manner. I object that 

that is improper jury argument.

THE PROSECUTOR: Use your personal experience. Think about that.

TRIAL COUNSEL: Your Honor, could I get a ruling on my objection?

THE COURT: I’m reading what she said. The objection regarding 

the nurses is sustained. The jury will disregard that 

remark.

TRIAL COUNSEL: Your Honor, I ask for them to strike that and I 

move for a mistrial.

THE COURT: Motion denied.

THE PROSECUTOR: Think about that. All this time about the airway 

that we’ve been talking and Kirstin is still not 

dead. We’re only at a minute and 54 seconds.

(RR10: 26-27). The prosecutor continued: 

THE PROSECUTOR: No one would choose the death that Kirstin 
29

suffered, beaten. Even Dr. Wood told you about

those injuries on the top of her head where she saw

internal hemorrhaging. She talked about how the

muscles in her neck, there was hemorrhaging along 

the muscles along with that fractured thyroid 

cartilage, the injuries underneath the temple that 

was hemorrhaging underneath. This is an 

intentional act and all of this happened because 

Kirstin was going to call the police, because she 

was going to free herself from this man. And think 

about it, even in the first scenario when I asked 

you to indulge me, think about it. After only a few 

seconds when we start breathing again, it’s a good 

feeling, but imagine the panic when you can’t 

control it, you can’t what is causing the pressure 

off your neck, you are fighting for your life.

Imagine those final moments of Kirstin’s life, what

that must have been like.

TRIAL COUNSEL: Your Honor, I object to -- the medical examiner 
30

testified that those are not the causes of her injuries 

-- that that was not the cause of her death. It was 

not the tracheal injuries.

THE COURT: The ladies and gentlemen will recall the evidence 

as they heard it.

(RR10: 32-33).

There was never any testimony that Anderson was going to call the police or 

what her mental state was prior to her death. Further, as counsel correctly pointed 

out, tracheal injuries did not cause Anderson’s death, as proffered by the 

prosecutor. Finally, there was no evidence as to how long Anderson was 

deprived of air, in stark contrast to the prosecutor’s assertion, complete with a 

stopwatch. The prosecutor’s arguments were outside the bounds of proper jury 

argument and undoubtedly injected new facts, harmful to Appellant, into the trial.

See Felder, 848 S.W.2d at 94-95.

Appellant was harmed by these arguments 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 
31

U.S. 750, 776 (1946). Clearly, when the prosecutor stood before the jury and 

attempted to fill in the gaps of the State’s case by interjecting nothing more than 

speculation, the jury’s verdict was affected which necessarily impacted the 

outcome of Appellant’s trial. See King, 953 S.W.2d at 271.

The prosecutor’s arguments exceeded the proper bounds of jury argument 

which resulted in a violation of Appellant’s substantive rights. See Felder, 848 

S.W.2d at 94-95; King, 953 S.W.2d at 271. Therefore, Appellant’s fourth point of 

error should be sustained. 

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
32

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 78767, on April 23, 2015.

________”/s/” Kristen Jernigan__________

Kristen Jernigan

CERTIFICATE OF WORD COUNT

The undersigned hereby certifies that the foregoing document consists of

5,865 words in compliance with Texas Rule of Appellate Procedure 9.4.

________”/s/” Kristen Jernigan__________

Kristen Jernigan