NO. 07-14-00412-CR 

IN THE COURT OF APPEALS FOR 

THE SEVENTH SUPREME JUDICIAL 

DISTRICT OF TEXAS 

AT AMARILLO, TEXAS 

******************** 

JEFFERY SEAN NOBLETT 

APPELLANT, 

v.

THE STATE OF TEXAS 

APPELLEE. 

******************** 

APPEAL FROM CAUSE NUMBER 67,623-D FROM THE 

 320th JUDICIAL DISTRICT COURT OF POTTER COUNTY, 

THE HONORABLE DON R. EMERSON PRESIDING 

******************** 

BRIEF FOR THE APPELLANT 

******************** 

THE WARNER LAW FIRM 

101 S.E. 11th, Ste. 301 

Amarillo, Texas 79101 

Tele: 806.372.2595

Fax: 866.397.9054

e-mail: mike@thewarnerlawfirm.com

e-mail: brent@thewarnerlawfirm.com 

Michael A. Warner

Texas Bar No. 20872700 

Brent C. Huckabay 

Texas Bar No. 24085879 

APPELLANT REQUESTS ORAL ARGUMENT 

ACCEPTED

07-14-00412-cr

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

5/11/2015 6:05:07 PM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 5/11/2015 6:05:07 PM VIVIAN LONG CLERK
2

IDENTITY OF PARTIES & COUNSEL

1. Appellant

Jeffery Sean Noblett

Trial Counsel: Michael A. Warner (State Bar No. 20872700)

101 Southeast 11th Avenue, Suite 301

Amarillo, Texas 79101

Telephone: (806) 372-2595

Appellate Counsel: Michael A. Warner (State Bar No. 20872700)

101 Southeast 11th Avenue, Suite 301

Amarillo, Texas 79101

Telephone: (806) 372-2595

Brent C. Huckabay (State Bar No. 24085879)

101 Southeast 11th Avenue, Suite 301

Amarillo, Texas 79101

Telephone: (806) 372-2595

2. Appellee:

The State of Texas

Trial Counsel: Roberto Lopez, Jr. (State Bar No. 24074617 )

Potter County Assistant District Attorney

501 South Fillmore, Suite 5-A

Amarillo, Texas 79101

Telephone: (806) 379-2535

Appellate Counsel: Kathy Levy (State Bar No. 12266480)

Jack Owen (State Bar No. 15369200)

Potter County Assistant District Attorneys

501 South Fillmore, Suite 5-A

Amarillo, Texas 79101

Telephone: (806) 379-2535
3

TABLE OF CONTENTS

Identity of Parties and Counsel..............................................................2

Index of Authorities...........................................................................5

Address to the Court...........................................................................7

Statement of Case..............................................................................7

Statement Regarding Oral Argument.......................................................8

Issues Presented................................................................................8

1. Whether the trial court erred in denying Defendant’s 

Motion for Limine?

2. Whether the trial court erred in denying Defendant’s 

Objection to allowing the pictures of the murdered victim?

3. Whether the trial court erred in denying Defendant’s 

Objection to the cumulative nature of the photographs?

4. Whether the trail court erred in denying Defendants 

Objection to mentioning that the victim was ultimately murdered?

5. Whether the trial court erred in denying Defendant’s 

Objection to trying the Defendant for Aggravated Kidnapping 

under the Rule of Parties?

6. Whether the evidence was sufficient to convict the 

Defendant of Aggravated Kidnapping?

Statement of Facts............................................................................9

Summary of the Arguments...............................................................11
4

Argument for Issue One.....................................................................14

Argument for Issue Two.....................................................................17

Argument for Issue Three...................................................................22

Argument for Issue Four.....................................................................24

Argument for Issue Five.....................................................................27

Argument for Issue Six......................................................................29

Prayer..........................................................................................32

Certificate of Compliance...................................................................33

Certificate of Service.........................................................................33
5

INDEX OF AUTHORITIES

Cases

Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2010)........................15,18,22

Earhart v. State, 823 S.W.2d 607 (Tex. Crim. App. 1991).............................30

Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004)...........................19,20

Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992), cert. denied, 

508 U.S. 941, 113 S.Ct. 2418, 124 L. Ed. 2d 640 (1993).......................21

Hinojosa v. State, 433 S.W.3d 742 (Tex.App.-San Antonio 2014,

pet. ref’d................................................................................31

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)..............................30

Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991), cert denied,

505 U.S. 1224, 112 S. Ct. 3042, 120 L. Ed. 2d 910 (1992).....................21

Malik v. State, 953 S.W. 2d 234 (Tex. Crim. App. 1997)..............................30

Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010), cert denied

131 S.Ct. 2966, 180 L. Ed. 2d 253 (2011)..........................15,18,22,25,27

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010)...........................14,30

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

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2001)................15,19,23,25,28

Ray v. State, 178 S.W.3d 833 (Tex. Crim. App. 2005)...................15,18,22,25,28

Rich v. State, 1602 S.W.3d 575 (Tex. Crim. App. 2005)................15,18,22,25,27

Scott v. State, 155 S.W.3d 312 (Tex. Crim. App. 2004).................................20
6

State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005)............................23

Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000)..................................20

Statutory Provisions

Tex. R. App. P. §33.1(a).....................................................................14

Tex. R. App. P. §38.1.........................................................................7

Tex. R. App. P. §44.2(b)..................................................15,18,20,23,25,28

Texas R. Evid. §401.........................................................9,16,19,23,26,28

Texas R. Evid. §402...........................................................16,19,23,26,28

Texas R. Evid. §403.....................................................9,16,19,23,24,26,28

Rules

Texas Penal Code Ann. §7.01(b)............................................................29

Texas Penal Code Ann. §7.02...............................................8,13,14,16,26,27

Texas Penal Code Ann. §7.02(a)(2).........................................................29

Texas Penal Code Ann. §20.01(2)...........................................................31

Texas Penal Code Ann. §20.01(1)(a)........................................................31

Texas Penal Code Ann. §20.04(B)..........................................................30
7

NO. 07-14-00412-CR

IN THE COURT OF APPEALS FOR

THE SEVENTH SUPREME JUDICIAL

DISTRICT OF TEXAS

AT AMARILLO, TEXAS

********************

JEFFERY SEAN NOBLETT

APPELLANT,

v.

THE STATE OF TEXAS

APPELLEE.

********************

APPEAL FROM CAUSE NUMBER 67,623-D FROM THE

320th JUDICIAL DISTRICT COURT OF POTTER COUNTY, 

THE HONORABLE DON R. EMERSON PRESIDING

********************

BRIEF FOR THE APPELLANT

********************

To the Honorable Justices of the Court of Appeals:

COMES NOW JEFFERY SEAN NOBLETT, appellant, and submits this 

Brief under TEX. R. APP. P. §38.1, requesting a new trial in this cause. 

STATEMENT OF THE CASE

The appellant pled not guilty to a charge of Aggravated Kidnapping. The jury 

returned a guilty verdict and sentenced Appellant to fifty (50) years’ imprisonment

in the Texas Department of Criminal Justice-Institutional Division, which the trial 
8

court imposed. (Clerk’s Record (CR), v. 1, p. 95, 101).

STATEMENT REGARDING ORAL ARGUMENT

Particularly since the majority of the issues are of constitutional dimension the 

appellant requests oral argument.

ISSUES PRESENTED FOR REVIEW

1. Whether the trial court’s denial of Appellant’s Motion for Limine and 

corresponding pre-trial hearing was a harmful abuse of discretion?

2. Whether the trial court’s denial of Appellant’s Objection to allowing the 

pictures of the murdered victim was a harmful abuse of discretion?

3. Whether the trial court’s denial of Appellant’s Objection to the 

cumulative nature of the photographs was a harmful abuse of discretion?

4. Whether the trial court’s denial of Appellant’s Objection in mentioning 

that the victim was ultimately murdered was an abuse of discretion?

5. Whether the trial court’s denial of Appellant’s Objection to trying the 

Defendant for Aggravated Kidnapping under the Texas Penal Code Ann. §7.02 was 

a harmful abuse of discretion?

6. Whether the evidence was sufficient to convict the Defendant of 

Aggravated Kidnapping?
9

STATEMENT OF FACTS

Before the trial began, Appellant’s Attorney requested a hearing on 

Appellant’s Motion in Limine, which was denied. The Motion had been properly 

served on the trial court and on the District Attorney; however, the trial court stated 

“object during the trial.” During the trial, Officer Hudson, testified that on his way 

to the police station on August 13, 2013, he noticed what turned out to be a dead body 

in the road off 2nd and Bryan in Amarillo, Texas. (RR, V.3, p. 17-30). The Appellant 

objected to the introduction of any pictures of the dead body of the victim under 

Texas R. Evid. §403, which was overruled. (RR, V.3, p. 20) The Appellant 

continued to object to Officer Hudson detailing where and what type injuries he 

noticed on the victim, which were all overruled. (RR, v.3, p.22). 

Officer Rifenberg then testified about his review of the crime scene and the 

continued examination of the victim. (RR, v.3, p. 31-62) The Appellant objected to 

the introduction of additional photos under Texas R. Evid. §401, Texas R. Evid. §403, 

and the cumulative nature of the photographs, which were all overruled. (RR, v.3, p. 

33-34) Officer Rifendberg continued to testify about the strength of the wire wrapped 

around the victim’s legs and arms. (RR, v.3, p. 38-39) The Appellant objected to the 

giving of expert testimony by someone other than an expert and was again overruled. 

(RR, v.3, p. 39) Officer Rifendberg then testified about a residence on the 700th block 
10

of Tennessee in Amarillo, Texas. (RR, v.3, p. 44-61) 

Officer Bushey testified about the retrieval of evidence from cell phones during 

the investigation. (RR, v.3, p. 61-65) 

Brittney Bralley than testified about her involvement with the Appellant and 

what she recollects about the time period between the end of July and mid-August 

2013. (RR, v.3, p. 65-101) 

Officer Rolan testified about the interview of the Appellant and what was 

found on the audio recordings recovered from the Appellant’s phone. (RR, v.3, p. 

102-145) The appellant objected to the question by the State of “So keeping a 

Lookout” as being speculation, which was overruled. (RR, v.3, p. 110) The Appellant 

objected to the question of “if somebody were to cut somebody’s balls off, is that 

serious bodily injury” as not being relevant, which was overruled. (RR, v.3, p. 111) 

The Appellant objected to the question of “what do you think he’s meaning by I’m 

going to go” as being speculation, which was overruled. (RR, v.3, p.113) The 

Appellant objected to the question of “do you figure out what he means by I’m going 

to go” as being for the jury to decide, which was overruled. (RR, v.3, p.114) The 

Appellant objected to the question of “do you now realize what he meant when he 

said, I’m going to go” as being speculation, which was overruled. (RR, v.3, p.114) 

The Appellant objected to the question of “were you able to determine whether he 
11

had assisted in any way in the kidnapping of Lance Hooser” as calling for a legal 

conclusion and invading the province of the jury, which was overruled. (RR, v.3, 

p.115) The Appellant objected to the question of “in what ways did he assist in the 

aggravated kidnapping” as calling for a legal conclusion, which was overruled. (RR, 

v.3, p.115) The Appellant objected to the question “did he attempt to assist in any 

way after the SUV left”, as not relevant since the Appellant is not charged with 

attempted anything, which was overruled. (RR, v.3, p.116) 

Dr. Parson’s than testified about the results of the autopsy. (RR, v.4, p.4-24) 

After the State’s and the Appellant’s closing arguments, deliberations then began.

SUMMARY OF THE ARGUMENT

In Issue One, the Appellant respectfully contends that the trial court’s denial 

of Appellant’s Motion for Limine and corresponding pre-trial hearing was a harmful 

abuse of discretion. The Appellant’s Motion for Limine sought to restrict the 

introduction of the photos of the deceased and the knowledge that the victim 

ultimately died from the jury. It is undisputed that Appellant was nowhere around 

when the victim was ultimately killed and the Appellant was not a party or privy to 

the information that the victim even had a chance of dying. The Appellant was just 

in the wrong place at the wrong time and when he realized what was happening he 

left and drove in the opposite direction of the events unfolding.
12

In Issues Two and Three, the Appellant respectfully contends that the denial 

of Appellant’s objections to the introduction of the photographs of the deceased body 

and the autopsy reports and the cumulative nature of the photos were an abuse of 

discretion. The photographs in question were more prejudicial then probative and 

they were not relevant to the charge Appellant was facing. These photos depict 

gunshot wounds that the victim suffered after Appellant left the house where the 

victim was last seen alive. The trial court could have allowed only the photos 

depicting the red wire, rather than those of the victim’s injuries from the assault by 

the other defendants and gunshot wounds. Appellant was never charged with murder, 

nor was Appellant given any notice that he would be tried for any offense outside the 

“four corners” of the indictment. Thus, any extraneous evidence of a murder 

Appellant did not commit was highly inflammatory and prejudicial on its face 

causing an unjust result. In addition, photos of the deceased inflamed the jury and 

prevented Appellant from receiving a fair trial under both the United States and Texas 

Constitutions.

In Issue Four, the Appellant respectfully contends that the denial of the 

Appellant’s objections to the introduction of the fact that the victim ultimately died 

was an abuse of discretion. The Appellant did not participate in any of the injuries 

sustained by the victim and left the scene of the crime while the victim was still 
13

present at the house and was still alive. By introducing the fact that the victim 

ultimately died was more prejudicial then probative and was used to inflame the jury 

against the Appellant who had no part in the victim’s death.

In Issue Five, the Appellant respectfully contends that the denial Appellant’s 

objection to being tried under Texas Penal Code Ann. §7.02 was an abuse of 

discretion. Under Texas Penal Code Ann. §7.02, a party is eligible to be tried for the 

offense committed by another if they aided, helped, participated, encouraged, etc... 

in the commission of a crime; however, the Appellant was ultimately tried for a 

murder charge, even though he was only charged with Aggravated Kidnapping, thus 

the introduction of the facts of the murder were not relevant to the charge the 

Appellant was facing.

In Issue Six, the Appellant respectfully challenges the sufficiency of the 

evidence for his conviction for Aggravated Kidnapping. The Appellant was charged 

with Aggravated Kidnapping which required the State to prove beyond a reasonable 

doubt that the Appellant intended to terrorize the victim, intentionally or knowingly 

abducting Lance Hooser, while using or threatening to use deadly force and by 

moving him from one place to another with the intent to prevent his liberation. The 

Appellant never made any comments or participated in any of the terrorizing of the 

victim. The Appellant also never threatened to use deadly force against Lance 
14

Hooser. The Appellant also did not move Lance Hooser, all the Appellant did was 

catch him from being dropped by the other co-defendants. There was no evidence 

that the Appellant had any other physical contact other than this. When the Appellant 

left the scene and went in the opposite direction, Lance Hooser was still alive and 

still at the location where Hooser was last seen alive. 

ARGUMENT FOR ISSUE ONE

Was the denial of the Defendant’s Motion in Limine a harmful abuse of 

discretion?

The Propriety of this Claim

The appellant sought to have their Motion in Limine ruled on during a pre-trial 

hearing before the sitting of the jury panel; however, the Judge refused to hear it and 

thus informed the Appellant that they would have to object during the trial. Also, the 

appellant sought to object to any of the State’s witnesses inferring or alluding to the 

fact in this case that the victim was ultimately killed or that he was shot. The 

appellant also objected to the use law of parties under Texas. Penal Code Ann. §7.02; 

however, the trial court denied to hear the objection and informed the appellant to 

object during trial. (RR, v.3, p.15) The particular injections were included in the 

Defendant’s Motion in Limine. The specific request and its rejection accordingly 

satisfy TEX. R. APP. P. 33.1(a). In addition, there is a claim of insufficiency of the 

evidence, for which nothing need be preserved for review. Mayer v. State, 309 
15

S.W.2d 552, 556 (Tex.Crim.App. 2010). 

Standard of Review

“The trial court’s decision to admit or exclude evidence” is reviewed “under 

an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736 

(Tex.Crim.App. 2010), cert. denied, 131 S.Ct. 2966, 180 L.Ed.2d 253 (2011). Á trial 

court abuses its discretion when its decision lies outside the zone of reasonable 

disagreement.” Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). And 

everything in the record is included in the analysis, including “the character of the 

alleged error, “defensive theories and closing argument”. Rich v. State, 1602 S.W.3d 

575, 577-8 (Tex.Crim.App. 2005). 

Harm Analysis

A trial court’s erroneous decision on the admission of evidence is generally 

not of constitutional dimension. Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App. 

2005). As such, to be reversible error must have affected the appellant’s substantial 

rights. TEX. R. APP. P. §44.2(b). And substantial rights have been affected where 

the reviewing court cannot conclude with “fair assurance that the error did not 

influence the jury, or had but a slight effect” – otherwise the error is harmless. Motilla 

v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2001).
16

Underlying Law

“Relevant evidence” is “evidence having any tendency to make the existence 

of any fact that is of consequence to the determination of” the case “more probable 

or less probable than it would be without the evidence.” TEX. R. EVID. §401. Also, 

all “relevant evidence is admissible” unless made inadmissible by constitutional 

provision, statute or other rules “prescribed pursuant to statutory authority. Evidence 

which is not relevant is inadmissible.” TEX.R.EVID. §402. Also, the court examines 

whether its probative value is outweighed by its inflammatory nature. TEX R. EVID. 

§403. Pursuant to Tex. Penal Code Ann. §7.02, a person is criminally responsible 

for an offense committed by the conduct of another if acting with intent to promote 

or assist the commission of the offense, he solicits, encourages, directs, aids, or 

attempts to aid the person to commit the offense. Mere presence alone will not 

constitute one a party to an offense. 

Analysis

Here the evidence was not relevant and was more prejudicial than probative. 

The mentioning of the fact that the victim ultimately died inflamed the jury and 

prevented the appellant from receiving a fair trial. During the trial, Defense counsel 

asked Officer Hudson, “The situation you’ve described for us today is basically a 

murder charge isn’t it?” Officer Hudson responded with “yes, sir.” (RR, v.3, p. 28).
17

Thus, the failure of the trial court to sustain Appellant’s objection, allowed the jury 

to hear about the ultimate death of the victim, which was unfairly prejudicial and was 

not relevant to the charge of Aggravated Kidnapping for which Appellant was 

charged. 

In this case, Appellant was charged with the offense of Aggravated 

Kidnapping, but in reality, because of the trial court’s rulings, Appellant was tried for 

murder. The trial court’s decision to allow in evidence of victim’s murder (when 

Appellant was not within miles of that location), the information and pictures of the 

dead body, Appellant was actually tried for a murder instead of the charged offense 

of Aggravated Kidnapping. A person cannot be tried under the Rule of Parties unless 

they are actually charged with the same offense. Since Appellant was not charged 

with murder, the jury should not have seen gruesome photos of the victim’s gunshot 

wounds and received evidence of the victim’s untimely death while Appellant was 

not within miles of the area where the victim was shot and killed. Appellant’s Motion 

in Limine directly addressed these issues, but were dismissed with the trial court 

without a hearing and/or ruling on same.

ARGUMENT FOR ISSUE TWO

Whether the trial court’s denial of Appellant’s Objection to allowing the 

pictures of the murdered victim was a harmful abuse of discretion?
18

The Propriety of this Claim

This is a claim for abuse of discretion on the part of the trial court. The 

Appellant timely objected to the introduction of any and all pictures of Lance Hooser 

showing that he had died.

Standard of Review

“The trial court’s decision to admit or exclude evidence” is reviewed “under 

an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736 

(Tex.Crim.App. 2010), cert. denied, 131 S.Ct. 2966, 180 L.Ed.2d 253 (2011). Á trial 

court abuses its discretion when its decision lies outside the zone of reasonable 

disagreement.” Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). And 

everything in the record is included in the analysis, including “the character of the 

alleged error, “defensive theories and closing argument”. Rich v. State, 1602 S.W.3d 

575, 577-8 (Tex.Crim.App. 2005). 

Harm Analysis

A trial court’s erroneous decision on the admission of evidence is generally 

not of constitutional dimension. Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App. 

2005). As such, to be reversible error must have affected the appellant’s substantial 

rights. TEX. R. APP. P. §44.2(b). And substantial rights have been affected where 

the reviewing court cannot conclude with “fair assurance that the error did not 
19

influence the jury, or had but a slight effect” – otherwise the error is harmless. Motilla 

v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2001).

Underlying Law

“Relevant evidence” is “evidence having any tendency to make the existence 

of any fact that is of consequence to the determination of” the case “more probable 

or less probable than it would be without the evidence.” TEX. R. EVID. §401. Also, 

all “relevant evidence is admissible” unless made inadmissible by constitutional 

provision, statute or other rules “prescribed pursuant to statutory authority. Evidence 

which is not relevant is inadmissible.” TEX.R.EVID. §402. Also, the court examines 

whether its probative value is outweighed by its inflammatory nature. TEX R. EVID. 

§403.

Evidence may be excluded if its probative value is substantially outweighed 

by the danger of unfair prejudice, confusion of the issues, misleading the jury, by 

considerations of undue delay, or needless presentation of cumulative evidence. TEX. 

R. EVID. §403. A four-prong test is used in reviewing a trial court's evidentiary 

ruling under rule §403: (1) the probative value of the evidence; (2) the potential to 

impress the jury in some irrational, yet indelible, way; (3) the time needed to develop 

the evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144

S.W.3d 487, 489 (Tex. Crim. App. 2004); Montgomery v. State, 810 S.W.2d 372,
20

379-380 (Tex. Crim. App. 1990). In the context of photographs, the Court also 

considers the number of photographs, their size, whether they are gruesome, whether 

any bodies are clothed or naked, and whether the body has been altered by 

autopsy. Erazo v. State, 144 S.W.3d at 489; Wyatt v. State, 23 S.W.3d 18, 29 (Tex.

Crim. App. 2000). Appellate courts are not limited to this list. They also consider the 

availability of other means of proof and the circumstances unique to each individual 

case. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).

Analysis

Erroneous admission of evidence is non-constitutional error. Scott v. State, 

155 S.W. 3d 312, 314 (Tex. Crim. App. 2004). A non-constitutional error “that does 

not affect substantial rights must be disregarded.” TEX.R.APP.P 44.2(b). When an 

error had a substantial and injurious effect or influence in determining the jury’s 

verdict, a substantial right is affected. Scott at 314. In the present case, the pictures 

of the dead body had a substantial and injurious effect on the jury. The Appellant 

was ultimately tried and convicted for the murder of Lance Hooser, even though he 

was only charged with Aggravated Kidnapping. 

In weighing the probative value of a photograph against the danger of unfair 

prejudice, the court must consider the inherent tendency that the photograph may 

have to encourage the resolution of material issues on an inappropriate emotional 
21

basis. Fuller v. State, 829 S.W.2d 191, 209 (Tex.Crim.App. 1992), cert. denied, 508 

U.S. 941, 113 S. Ct. 2418, 124 L. Ed. 2d 640 (1993). The court must balance carefully 

against that inherent tendency the host of factors affecting probativeness, including 

the relative weight of the photographic evidence and the degree to which its 

proponent might be disadvantaged without it. Id. In conducting the balancing test, 

the court should consider factors such as the gruesomeness of the photographs, their 

detail and their size, whether they are black and white or color, whether they are 

close-up, and whether a body is clothed. Long v. State, 823 S.W.2d 259 (Tex. Crim. 

App. 1991), cert denied, 505 U.S. 1224, 112 S. Ct. 3042, 120 L. Ed. 2d 910 (1992). 

Generally, a photograph is admissible if verbal testimony of what it portrays is

relevant to the case. Id. at 271. In the present case, the Appellant was charged with 

Aggravated Kidnapping and the evidence shows that the Appellant had left the scene 

of the crime and said, “I am going to go.” The Appellant was not a party to anything 

that happened after he had left, therefore, pictures of the victim after the victim had 

been tossed from the vehicle and had further been shot in the head were not relevant 

to the instant case. The only purposed served by admitting these types of pictures 

was to inflame the jury and prevent the Appellant from receiving a fair trial. It 

worked.
22

ARGUMENT FOR ISSUE THREE

Was the trial court’s denial of Appellant’s Objection to the cumulative nature 

of the photographs a harmful abuse of discretion?

The Propriety of this Claim

This is a claim for abuse of discretion on the part of the trial court. The 

Appellant timely objected to the cumulative nature of the photographs being 

introduced depicting Lance Hooser’s dead body.

Standard of Review

“The trial court’s decision to admit or exclude evidence” is reviewed “under 

an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736 

(Tex.Crim.App. 2010), cert. denied, 131 S.Ct. 2966, 180 L.Ed.2d 253 (2011). Á trial 

court abuses its discretion when its decision lies outside the zone of reasonable 

disagreement.” Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). And 

everything in the record is included in the analysis, including “the character of the 

alleged error, “defensive theories and closing argument.” Rich v. State, 1602 S.W.3d 

575, 577-8 (Tex.Crim.App. 2005). 

Harm Analysis

A trial court’s erroneous decision on the admission of evidence is generally 

not of constitutional dimension. Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App. 
23

2005). As such, to be reversible error must have affected the appellant’s substantial 

rights. TEX. R. APP. P. §44.2(b). And substantial rights have been affected where 

the reviewing court cannot conclude with “fair assurance that the error did not

influence the jury, or had but a slight effect” – otherwise the error is harmless. Motilla 

v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2001).

Underlying Law

“Relevant evidence” is “evidence having any tendency to make the existence 

of any fact that is of consequence to the determination of” the case “more probable 

or less probable than it would be without the evidence.” TEX. R. EVID. §401. Also, 

all “relevant evidence is admissible” unless made inadmissible by constitutional 

provision, statute or other rules “prescribed pursuant to statutory authority. Evidence 

which is not relevant is inadmissible.” TEX.R.EVID. §402. Also, the court examines 

whether its probative value is outweighed by its inflammatory nature. TEX R. EVID. 

§403.

Analysis

TEX R. EVID. §403 requires analyzing for factors to determine trial court 

abuse of discretion. The four factors are (1) the probative value of the evidence; (2) 

the potential to impress the jury in some irrational yet indelible way; (3) the time 

needed to develop the evidence; and (4) the proponents need for the evidence. State 
24

v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005). In the present case, the 

probative value of the evidence is lacking, since the Appellant was not charged with 

the victim’s murder. The only reason the photographs were published to the jury was 

to inflame the jury. The alleged crime happened in August 2013; however, over a 

year later the Appellant was only indicted and ultimately charged with Aggravated 

Kidnapping since there was no evidence that Appellant participated, aided, or even 

knew about the ultimate death of the victim until after it happened. Appellant had 

left the scene before the death occurred and this is further evidenced by the fact the 

Appellant had headed in the totally opposite direction from where the events took 

place. The State needed the evidence of the death and the cumulative photos to show 

the jury, because they knew without them they could not reach a guilty verdict for 

murder nor the charged Aggravated Kidnapping. Based on the analysis of TEX. R. 

EVID. §403, the photographs were more prejudicial then probative and should never 

have been shown to the jury. 

ARGUMENT FOR ISSUE FOUR

Was the trial court’s denial of Appellant’s Objection to mentioning that the

victim was ultimately murdered?

The Propriety of this Claim

This is a claim for abuse of discretion on the part of the trial court. The 
25

Appellant timely objected to the mentioning of the untimely death of Lance Hooser, 

thus setting the Appellant up for a murder trial even though he was only charged with 

Aggravated kidnapping.

Standard of Review

“The trial court’s decision to admit or exclude evidence” is reviewed “under 

an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736 

(Tex.Crim.App. 2010), cert. denied, 131 S.Ct. 2966, 180 L.Ed.2d 253 (2011). Á trial 

court abuses its discretion when its decision lies outside the zone of reasonable 

disagreement.” Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). And 

everything in the record is included in the analysis, including “the character of the 

alleged error, “defensive theories and closing argument”. Rich v. State, 1602 S.W.3d 

575, 577-8 (Tex.Crim.App. 2005). 

Harm Analysis

A trial court’s erroneous decision on the admission of evidence is generally 

not of constitutional dimension. Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App. 

2005). As such, to be reversible error must have affected the appellant’s substantial 

rights. TEX. R. APP. P. §44.2(b). And substantial rights have been affected where 

the reviewing court cannot conclude with “fair assurance that the error did not 

influence the jury, or had but a slight effect” – otherwise the error is harmless. Motilla 
26

v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2001).

Underlying Law

“Relevant evidence” is “evidence having any tendency to make the existence 

of any fact that is of consequence to the determination of” the case “more probable 

or less probable than it would be without the evidence.” TEX. R. EVID. §401. Also, 

all “relevant evidence is admissible” unless made inadmissible by constitutional 

provision, statute or other rules “prescribed pursuant to statutory authority. Evidence 

which is not relevant is inadmissible.” TEX.R.EVID. §402. Also, the court examines 

whether its probative value is outweighed by its inflammatory nature. TEX R. EVID. 

§403.

Analysis

The Appellant was only charged with Aggravated Kidnapping, he was not 

charged with the murder of Lance Hooser. By showing the mentioning to the jury 

and basing the entire case on the fact that Lance Hooser ultimately died was an abuse 

in discretion by the trial court. The Appellant was not present when Lance Hooser 

was ultimately killed nor was he aware that that was even a possibility the victim was 

be killed. Appellant did not participate in the assault to Lance Hooser, thus the 

pictures of his untimely death were only there to inflame the jury and prejudice 

Appellant. 
27

ARGUMENT FOR ISSUE FIVE

Was the trial court’s denial of Appellant’s Objection to trying the Defendant 

for Aggravated Kidnapping under the Texas Penal Code Ann. §7.02 a harmful abuse 

of discretion?

The Propriety of this Claim

This is a claim for abuse of discretion on the part of the trial court. The 

Appellant timely objected to the inclusion of the Rule of Parties under Texas Penal 

Code Ann. §7.02 for the charge of Aggravated Kidnapping, since the rest of the 

“parties” were being charged with murder, which is exactly what Appellant was tried 

for.

Standard of Review

“The trial court’s decision to admit or exclude evidence” is reviewed “under 

an abuse of discretion standard.” Martinez v. State, 327 S.W.3d 727, 736 

(Tex.Crim.App. 2010), cert. denied, 131 S.Ct. 2966, 180 L.Ed.2d 253 (2011). Á trial 

court abuses its discretion when its decision lies outside the zone of reasonable 

disagreement.” Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). And 

everything in the record is included in the analysis, including “the character of the 

alleged error, “defensive theories and closing argument”. Rich v. State, 1602 S.W.3d 

575, 577-8 (Tex.Crim.App. 2005). 
28

Harm Analysis

A trial court’s erroneous decision on the admission of evidence is generally 

not of constitutional dimension. Ray v. State, 178 S.W.3d 833, 836 (Tex.Crim.App. 

2005). As such, to be reversible error must have affected the appellant’s substantial 

rights. TEX. R. APP. P. 44.2(b). And substantial rights have been affected where 

the reviewing court cannot conclude with “fair assurance that the error did not 

influence the jury, or had but a slight effect” – otherwise the error is harmless. Motilla 

v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2001).

Underlying Law

“Relevant evidence” is “evidence having any tendency to make the existence 

of any fact that is of consequence to the determination of” the case “more probable 

or less probable than it would be without the evidence.” TEX. R. EVID. §401. Also, 

all “relevant evidence is admissible” unless made inadmissible by constitutional 

provision, statute or other rules “prescribed pursuant to statutory authority. Evidence 

which is not relevant is inadmissible.” TEX.R.EVID. §402. Also, the court examines 

whether its probative value is outweighed by its inflammatory nature. TEX R. EVID. 

§403.

The law of parties in the Texas Penal Code defines when a person may be held 

criminally responsible for the conduct of another. The statue provides that each party 
29

to an offense may be charged with the offense. Tex. Penal Code Ann. §7.01(b).

Under Tex. Penal Code Ann. §7.02(a)(2), a person is criminally responsible for an 

offense committed by the conduct of another if, acting with intent to promote or assist 

the commission of the offense, he solicits, encourages, directs, aids, or attempts to 

aid the other person to commit the offense.

Analysis

In the present case, the Appellant showed up at house to meet friends. The 

Appellant did not solicit, encourage, or directed anybody to do anything to the victim. 

The Appellant stayed outside the entire time he was there, which was like 15 minutes 

if that. Sometime during the event, one of the guys in the house asked if he had any 

rope or wire. The Appellant grabbed some speaker wire from his truck and gave it 

to his buddy. Again, Appellant never went inside, never participated in the tying up 

the victim and was gone before anything further happened to the victim. Appellant 

was heading in the opposite direction from where the events ultimately took place at 

the time the victim was removed from the premises. 

ARGUMENT FOR ISSUE SIX

Whether the evidence was sufficient to convict the Defendant of Aggravated 

Kidnapping?
30

The Propriety of the Claim

This is a claim of insufficiency of the evidence, for which nothing need by 

preserved for error. Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.2010). The 

issue was accordingly preserved for error

Standard of Review

When reviewing the legal sufficiency of the evidence, all the evidence in the 

light most favorable to the verdict to determine whether any rational trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. Jackson 

v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). The standard is the same for both 

direct and circumstantial evidence cases. Earhart v. State, 823 S.W.2d 607, 616 (Tex. 

Crim. App. 1991). We measure the legal sufficiency of the evidence by the elements 

of the offense as defined by a "hypothetically correct jury charge" for the case. Malik 

v. State, 953 S.W. 2d 234 (Tex. Crim. App. 1997).

Underlying Law

A person commits the offense of aggravated kidnapping if he intentionally or 

knowingly abducts another person and uses or exhibits a deadly weapon during the 

commission of the offense. Tex. Penal Code Ann. §20.04B. For purposes of this 

statute, abduct "means to restrain a person with intent to prevent his liberation by: 

(A) secreting or holding him in a place where he is not likely to be found; or (B) using 
31

or threatening to use deadly force. See id. §20.01(2). Restrain "means to restrict a 

person's movements without consent, so as to interfere substantially with the person's 

liberty, by moving the person from one place to another or by confining the person.

Restraint is "without consent" if "accomplished by force, intimidation, or deception."

Id. §20.01(1)(A). 

Analysis

During the trial, there is no evidence that the Appellant threatened or even 

knew there was a deadly weapon present. He had left the scene before the gun was 

pulled out by Ricky Burns, and was heading in the opposite direction. Also, during 

the trial there is no evidence that the Defendant participated in any of the violence to 

the victim. Appellant stayed outside the entire time. There is no evidence that 

Appellant was an active participant in the assault on the victim. The only time, the 

Appellant was even around the victim, was when he was brought outside and he 

caught the victim as the victim was about to be dropped, thus preventing any more

damage to the victim. Thus, the jury could not find beyond a reasonable doubt that 

Appellant abducted the victim, when Appellant left the victim in the same location 

the victim was in when Appellant arrived was in the exact same place as when he 

arrived. The car was still present at the house, he did not do any of the driving. This 

is different from Hinojosa v. State, 433 S.W.3d 742, (Tex.App.-San Antonio 2014,
32

pet. ref’d at 756, where the Appellant was actually driving the vehicle with the victim 

in the car. Here the Appellant had already left the scene, when the victim was moved. 

CONCLUSION AND PRAYER FOR RELIEF

The trial court abused its discretion by denying Defendant’s Motion in Limine 

and thus not allowing Defendant to have a fair trial. The introduction of the objected 

to evidence was more prejudicial than probative. The Court should reverse the trial 

court’s decision denying the defendant’s Motion in Limine and should grant the 

Defendant a new trial. Appellant prays that this Honorable Court reverse the ruling 

of the trial court and remand this case back to the trial court for a new trial without 

the objected to evidence being allowed to be presented.

Respectfully submitted,

THE WARNER LAW FIRM

/s/ Michael A. Warner

MICHAEL A. WARNER

State Bar No. 20872700

E-mail: mike@thewarnerlawfirm.com

BRENT C. HUCKABAY

State Bar No. 24085879

E-mail: brent@thewarnerlawfirm.com

101 S.E. 11th, Suite 301

Amarillo, Texas 79101

Tele: 806.372.2595

Fax: 866.397.9054 

 ATTORNEYS FOR APPELLANT
33

Certificate of Service

I certify that a true copy of this the Brief of Appellant, Jeffery Sean Noblett

was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on 

each party or that party's lead counsel as follows:

STATE OF TEXAS, represented by

Randall Sims, 47th District Attorney’s Office

501 S. Fillmore, Suite 5A Certified mail Delivery service

Amarillo, Texas 79101 _____________ _______________

Tele: 806.379.2325 Fax transfer Personal delivery

Fax: 806.379.2863 #_____X____ _______________

Date of service: May 11, 2015

Signed this 11th day of May, 2015.

/s/ Michael A. Warner

MICHAEL A. WARNER

CERTIFICATE OF COMPLIANCE WITH TARP 9.4(i)

I certify that the Appellant’s Brief is in compliance with Texas Appellate 

Rule of Procedure 9.4(i). The total word count for the document is 6,353. The 

Total page length is 33 pages.

Signed this 11

th day of May, 2015

/s/ Michael A. Warner

MICHAEL A. WARNER