routh new trial request

IN THE COURT OF APPEALS FOR THE ELEVENTH DISTRICT OF TEXAS

EASTLAND, TEXAS

EDDIE RAY ROUTH §Appellant, §

§vs. § NO. 11-15-00036-CR

§THE STATE OF TEXAS, §

Appellee. §

APPEALED FROM CAUSE NUMBER CR14024 IN THE 266TH JUDICIAL DISTRICT

COURT OF ERATH COUNTY, TEXAS; THE HONORABLE JASON CASHON, JUDGE

PRESIDING.

§§§

APPELLANT’S BRIEF

§§§

J. WARREN ST. JOHNState Bar No. 189863002020 Burnett Plaza801 Cherry Street, Unit No. 5Fort Worth, Texas 76102-6810Telephone: (817) 336-1436Fax:(817) 336-1429E-mail: [email protected]

Appellant’s Counsel

Oral Argument Is Requested.

ACCEPTED11-15-00036-CR

ELEVENTH COURT OF APPEALSEASTLAND, TEXAS

12/11/2015 9:02:38 AMSHERRY WILLIAMSON

CLERK

FILED IN11th COURT OF APPEALS EASTLAND, TEXAS 12/11/15 9:02:38 AM SHERRY WILLIAMSON Clerk


EASTLAND, TEXAS

EDDIE RAY ROUTH, §Appellant, §

§vs. § NO. 11-15-00036-CR


Appellee. §



PRESIDING.

§§§

APPELLANT’S BRIEF

§§§

J. WARREN ST. JOHNState Bar No. 189863002020 Burnett Plaza801 Cherry Street, Unit No. 5Fort Worth, Texas 76102-6810Telephone: (817) 336-1436Fax:(817) 336-1429E-mail: [email protected]

Appellant’s Counsel

Oral Argument Is Requested.

LIST OF INTERESTED PARTIES

Pursuant to Rule 38.1, TEX. R. APP. P., the following is a complete listing of all

parties to the trial court’s final judgment and their counsel in the trial court;

1. The Honorable Jason Cashon, 266th Judicial District Court of Erath County, Texas,

112 W. College Street, Stephenville, Texas 76401.

2. Honorable Alan Nash, District Attorney for Erath County, Texas, and Honorable

Jane Starnes, Assistant Attorney General.

3. Appellant, EDDIE RAY ROUTH, presently serving his prison sentence, who can be

served through his attorney of record, J. Warren St. John.

4. Honorable J. Warren St. John, 2020 Burnett Plaza, 801 Cherry Street, Unit No. 5,

Fort Worth, Texas 76102, Appellant’s counsel in the trial court.

5. Honorable Tim Moore, 115 West 2nd Street, Suite 202, Fort Worth, Texas 76102,

Appellant’s counsel in the trial court.

6. Honorable Shay Isham, 505 N. Graham Street, Stephenville, Texas 76401,

Appellant’s counsel in the trial court.

i

TABLE OF CONTENTS

LIST OF INTERESTED PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

CASE IN BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

POINT NUMBER ONE:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

THE JURY’S VERDICT WAS IMPROPER BECAUSE APPELLANT DID NOTKNOW HIS CONDUCT WAS WRONG. (RR Vol. XVII - XXV, pp. 86-91, 96-110,115-122, 222)

POINT NUMBER TWO:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S MOTION TOSUPPRESS STATEMENTS TAKEN BY TEXAS RANGER DANNY BRILEY INVIOLATION OF TEX. CODE CRIM. P. ART. 38.22 V.A.T.S. (RR Vol. XX, pp. 167-174)

POINT NUMBER THREE:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

IT WAS ABUSE OF DISCRETION FOR THE TRIAL COURT TO OVERRULEAPPELLANT’S MOTION FOR MISTRIAL WHEN THE PROSECUTOR PARADEDA VIAL IN FRONT OF THE JURY THAT WAS NOT ADMITTED INTO EVIDENCE. (RR Vol. XXI, pp. 10-16)

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

ii

TABLE OF AUTHORITIESCASES PAGES

Armstrong v. State, 718 SW2d 686, 693 (Tex.Crim.App.1985). . . . . . . . . . . . . . . . . . 39

Bigby v. State, 892 SW2d 864, 878 (Tex.Crim.App.1994). . . . . . . . . . . . . . . . . . . . . . . 4

Cain v. State, 18 Tex. 387, 390 (Tex. 1857).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Creager v. State, 952 SW2d 852 (Tex.Crim.App.1997). . . . . . . . . . . . . . . . . . . . . . . . 38

Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App.2003). . . . . . . . . . . . . . . . . . . . 48

Gardner v. State, 733 SW2d 195, 202-03 (Tex.Crim.App. 1987).. . . . . . . . . . . . . . . . 38

Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) . . . . . . . 38

Ladd v. State, 991 3 S.W.3d 547, 567 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

McCrory v. State, 643 SW2d 725 (Tex.Crim.App.1982).. . . . . . . . . . . . . . . . . . . . . . . 37

Miranda v. Arizona, 304 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . . . . . . . 37,38

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). . . . . . . . . . . . . . . 48

Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297, 306 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Ruffin v. State, 270 SW3d 586 (Tex.Crim.App.2008).. . . . . . . . . . . . . . . . . . . . . . . . . . 4

Wead v. State, 94 S.W.3d 131, 138 (Tex.App.-Corpus Christi 2002) . . . . . . . . . . . . . 48

Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000) . . . . . . . . . . . . . . . . 48

CODES, RULES AND STATUTES

RULE 9.4 (i) TEX. R. APP. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

RULE 38.1 TEX. R. APP. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

iii

TEX. CODE CRIM. P. ART. 38.21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

TEX. CODE CRIM. P. ART. 38.22 V.A.T.S. . . . . . . . . . . . . . . . . . . . . . . . . . 37,38,47,57

UNITED STATES CONSTITUTION

U.S.C.A. Const. Amend 5.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38,47

U.S.C.A. Const. Amend 14.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38,47

iv


EASTLAND, TEXAS

EDDIE RAY ROUTH §Appellant, §

§vs. § NO. 11-15-00036-CR


Appellee. §



PRESIDING.

TO THE COURT OF APPEALS:

THE CASE IN BRIEF

THE INDICTMENT CAPITAL MURDER (CR. Vol. I, pp. 972-973)

THE PLEA NOT GUILTY BY REASON OF INSANITY (CR. Vol. I, pp.

972-973)

THE VERDICT GUILTY TO CAPITAL MURDER AS CHARGED IN THE

INDICTMENT (CR. Vol. I, pp. 972-973)

THE PUNISHMENT LIFE WITHOUT PAROLE IN THE INSTITUTIONAL

DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL

JUSTICE (CR. Vol. I, pp. 972-973)

1

STATEMENT OF FACTS

The following summary is intended to provide a brief overview of the trial testimony.

Further discussion of the testimony will be reserved for the argument and authorities

section of Appellant’s points of error.

The evidence shows that on February 2, 2013, Chris Kyle, a former United States

Navy Seal, and his friend, Chad Littlefield, went to the home of Eddie Routh, a former

United States Marine. Mr. Routh’s mother, Jodie Routh, knew Chris Kyle from the

Midlothian school she had worked at, and knew Mr. Kyle tried to help troubled vets from

overseas. The Dallas VA had diagnosed Mr. Routh with Post Traumatic Stress Disorder.

Mr. Kyle had never met Appellant until the afternoon of February 2, 2013. Mr. Kyle

and Mr. Littlefield, who was not in the military, agreed to help Mr. Routh with his Post

Traumatic Stress Disorder by taking him to the Rough Creek Lodge in Glen Rose, Texas,

which is located in both Somervell County and Erath County.

Mr. Kyle picked up Appellant in his black Ford 350 pick up truck. Mr. Kyle brought

rifles and pistols with him to take Mr. Routh to the gun range located at the Lodge, which

is on the Erath County side. Appellant had been in and out of the Dallas VA and other

mental hospitals many times before February 2, 2013. This was unknown to Mr. Kyle. Mr.

Routh had several psychotic episodes days before with his girlfriend, Jennifer Weed.

Mr. Kyle, Mr. Littlefield, and Appellant, traveled from Lancaster to Rough Creek

Lodge, which took about an hour and a half to drive. There was really no conversation

between the men. Mr. Kyle realized that Mr. Routh was not stable, texting his friend, Mr.

Littlefield, that Mr. Routh was “straight up nuts.” Littlefield texted back, “watch my six.” Mr.

Kyle was driving and Mr. Littlefield was in the front, passenger seat.

2

Mr. Kyle, his friend, and Mr. Routh, arrived at the gun range and set up to shoot.

Mr. Routh did not have his own gun with him. Both Mr. Kyle and Mr. Littlefield were

carrying 45 caliber handguns in holsters on their person. Mr. Routh was in the midst of a

psychotic episode believing the two men were going to kill him. As a result of his mental

illness, he shot both men at the range and left in Mr. Kyle’s black Ford pick up truck.

Mr. Routh went by his uncle’s house and sister’s, saying some very bizarre things.

Mr. Routh’s sister called the authorities. Mr. Routh went back to his home in Lancaster.

There, he was confronted by the police.

Lancaster Police Department had interaction with him, he fled in the truck and was

eventually stopped by the police. Mr. Routh made a statement to authorities after he was

arrested asking, “Am I going insane?”

Mr. Routh was taken to the Lancaster Police Department and was interviewed by

Texas Ranger, Danny Briley. During that interview, Mr. Routh, once again, appeared to

be psychotic and said some very bizarre things. He was arrested for the deaths of Mr. Kyle

and Mr. Littlefield and was eventually taken to the Erath County Jail.

A jury returned a guilty verdict. The Court sentenced the Appellant to Life without

Parole. (CR. Vol. I, pp. 972-973) The Appellant gave timely Notice of Appeal to this

Honorable Court. (CR. Vol. I, p. 1508)

3

ARGUMENTS AND AUTHORITIES

POINT NUMBER ONE:

THE JURY’S VERDICT WAS IMPROPER BECAUSE APPELLANT DID NOTKNOW HIS CONDUCT WAS WRONG. (RR Vol. XVII - XXV, pp. 86-91, 96-110,115-122, 222)

Argument and Authorities:

Under the Texas Penal Code § 801(a), it is an affirmative defense to prosecution

that, at the time of the conduct charged, the actor, as a result of severe mental disease or

defect, did not know that his conduct was wrong. Under Texas law, “wrong” in this context

means illegal”. Ruffin v. State, 270 SW3d 586 (Tex.Crim.App.2008).

In Bigby v. State, 892 SW2d 864, 878 (Tex.Crim.App.1994), the Court stated that

several expert witnesses testified that Appellant knew his conduct was illegal, however,

these experts contended that Appellant did not know the act was “morally” wrong. In other

words, Appellant believed that regardless of society’s views about this illegal act and his

understanding it was illegal, under his “moral” code it was permissible. This focus upon

Appellant’s morality is misplaced. The question of insanity should focus on whether a

Defendant understood the nature and quality of his action and whether it was an act he

ought to do. By accepting and acknowledging his action was “illegal” by societal standards,

he understood that others believed his conduct was “wrong”.

Thus, the question for deciding insanity is; does the Defendant factually know that

society considers this conduct against the law, even though the Defendant, due to his

mental disease or defect, may think the conduct is morally justified. Mr. Routh fit this

definition to a tee based on Dr. Dunn’s evaluation. (RR Vol. XXIII)

4

Dr. Dunn testified to the following:

15 A. Well --huh-- I discovered that he was having

16 significant symptoms of psychosis not just on the day of the

17 offense but in the several days leading up to the offense -- in

18 fact, the weeks --huh-- going from the incident that occurred

19 with the Ninja swords -- the Ninja sword with Ms. Weed and her

20 roommate and the hospitalization that occurred, you know, at the

21 Green Oaks and the VA, he was having a lot of unusual thinking

22 --huh-- delusion of these people were going to try to harm him,

23 that people were going to try to harm Ms. Weed and even harm her

24 roommate at the time that led to the --huh-- that

25 hospitalization, but even prior to that he was having paranoia

1 about his neighbor, a guy who, I believe, was a -- actually an

2 investigator for the Lancaster Police Department --huh--

3 Q. What -- What about that, what kind of -- what -- what

4 led --

5 A. Well, for months he believed that --huh-- this

6 individual was with the Mexican Mafia and was a drug dealer,

7 because he'd seen some type of van backed up to his house, and

8 so he concluded that this neighbor was actually, you know,

9 dealing with -- with Mexican gangs and -- and was dealing

10 drugs --huh-- he was --

5

11 Q. Did he tell -- Did he tell you when that was?

12 A. Just -- Just in the -- in the months before, in fact

13 --huh-- he said that that's part of what he was believing back

14 in that September 2nd incident, with the fish fry, that he was

15 believing that his neighbor was part of the Mexican Mafia, it's

16 not anything that he did anything about at the time, but it was

17 just one of the delusional beliefs that he -- that he had that

18 was kind of ongoing, so he had continued to believe that up

19 through and into the incident that occurred in January with the

20 -- the Ninja sword and -- and, you know, mid -- the -- the mid

21 January hospitalizations --huh-- and then after he got out of

22 that hospital he wanted to -- to go to work, he was working at a

23 cabinet shop.

24 Q. This is -- This is January 25th, after he -- of 2013,

25 when he got out?

1 A. Yeah, he got out then, he -- he spent the weekend with

2 Ms. Weed --huh-- and then when he went to work at the cabinet

3 shop --huh-- he'd worked there off and on for awhile, and he

4 trusted -- there were two Hispanic named or surnamed individuals

5 who worked there, but he started to believe that --huh-- these

6 individuals maybe were cannibals, and he believed that because

7 he --huh-- just -- he said his perception was thrown off, that

6

8 the -- their food looked off, like it wasn't food that people

9 would normally eat, but maybe it was flesh of some sort, and he

10 began to be concerned that they might try to harm him, he

11 --huh-- he said there was a cold snap that was occurring at the

12 time, it -- gotten cold, and the --huh-- the workshop area had

13 a -- had a heater in it, I guess they had floor heaters or -- or

14 something, and he felt that maybe that it was a rotisserie and

15 he was supposed to be cooked, because he was turning his body

16 the way you would if you were on a spit in a rotisserie,

17 thinking that perhaps these individuals were actually going --

18 were supposed to --huh-- eat him and -- and kill him, and he was

19 afraid to have his back to them, normally he would sit at a --

20 at the workbench with his back to them, instead he was kind of

21 sitting -- he said kind of sideways so he could kinda keep his

22 eyes on them the whole time, making sure they weren't going to

23 do something --huh--

24 Q. Now, let -- let me stop you. Is -- Is that an

25 indication of schizophrenia?

1 A. Huh-- That is the type of belief that people with

2 schizophrenia can have, I mean, most -- most people with

3 schizophrenia don't believe that their co-workers are cannibals,

4 you know, individuals who -- who would hear this story, who

7

5 aren't used to talking to people with schizophrenia, would think

6 that that's either so made up or fantastical that it couldn't

7 happen with anybody, but, yeah, I mean, in schizophrenia, we see

8 individuals who have really, really bizarre ideas, things that

9 most individuals have never encountered --huh-- and I -- I see

10 stuff at -- at Terrell every day that, you know, most people

11 just couldn't believe, other people could believe.

12 Q. Well, let me ask you this, this was -- this was a

13 period of time where he was working at the cabinet shop right

14 before this incident, correct?

15 A. Yeah.

16 Q. Huh -- And if he looked normal to his boss and other

17 people --huh-- but he's having these thoughts, how do you

18 explain that?

19 A. Huh-- People with mental illness, in large part, look

20 like you or I, I mean, if you were to come to Terrell State

21 Hospital's Forensic Unit and look out into the dayroom, most of

22 the time you would simply see, you know, people watching TV

23 or -- or playing dominoes or talking to staff members, I'd say

24 ninety-five percent of the time, if you looked out, you wouldn't

25 even know that you were at a mental hospital, but then somebody

1 will walk by and they're talking to themselves or

8

2 they're --huh-- screaming to somebody they can't see or --huh--

3 had a woman the other day who tried to pull down her pants and

4 show me her penis --huh-- I have a guy who believes he's

5 pregnant with triplets and he was traveling from coast to coast

6 because the illuminati in California, you know, wanted him to be

7 there, and he thinks those triplets are going to be born in --

8 in two years, so I guess he's having elephants, but he truly

9 believes this stuff, and most people wouldn't know that, you

10 know, that's even what mental illness is about, but if you watch

11 -- if you watch him walk by in the hallway, you -- you can't

12 tell necessarily he has a mental illness, it's -- you know, it's

13 -- he doesn't look crazy, it's not -- mental illness is not

14 like --huh-- being tall, you know, if somebody is tall, you look

15 at them and you go, oh, they're tall, and you ask them, do you

16 play basketball, but --huh-- you know, mental illness -- unless

17 you're talking to somebody -- unless they're clearly, obviously

18 responding to somebody that you can't see or, you know, talking

19 to voices, it's not necessarily the way it's portrayed in

20 movies, I mean, some of the time it is, but that's a small

21 percentage of the time, like I said, ninety-five percent of the

22 time, you know, they -- they're looking normal, and they can

23 even respond to directly to -- to questions that you ask them,

24 it's frequently times when you ask them kind of more open-ended

9

25 questions, do they start kind of going off on tangents that

1 don't really make any sense --huh-- but just because somebody

2 looked normal -- sorry, it's a long-winded answer, but just

3 because somebody looks normal or is able to work in a cabinet

4 shop doesn't mean that they're not mentally ill.

5 Q. And if -- if a person is having those kind of thoughts

6 may be an indication, would it be correct, that they were not

7 taking those medications that were prescribed for them or they

8 weren't working?

(RR Vol. XXIII, pp. 86-91)

Dr. Dunn further testified to the following:

9 A. Huh-- Well, he told me that in the day before the

10 offense --huh-- before Ms. Weed came over, he --huh-- went over

11 and --huh-- spoke to his -- his neighbor, the one who was the

12 investigator, that he thought was part of the Mexican Mafia, and

13 when he knocked on the door the neighbor's wife answered, and

14 there was some kind of strange aroma that was coming from the

15 home --huh-- but he thought it wasn't the kind of smell you get

16 from cooking a steak, which inferred to me that these people

17 were, again, cooking something else, some other type of

18 meat --huh-- that, you know, would -- would kind of feed into

19 this -- this belief that --huh-- something strange was going on,

10

20 and --huh-- he also said that this neighbor --huh-- and his wife

21 were very small, and he began to think that maybe they were part

22 of -- of blood-thirsty savages, people who might be cannibals,

23 who might eat human meat --huh-- he told me later on in the

24 interview that he also began to get the idea that, because their

25 -- he believes their --huh-- sewer systems connect, that perhaps

1 his -- a neighbor had been eating his own -- I'll use a word

2 different from what he used, but eating his own excrement, that

3 when he would go to the bathroom and flush, somehow that would

4 go up into his neighbor's home and his neighbor was -- was

5 eating that. Huh--

6 Q. And he was -- he was experiencing that --huh-- right

7 before February 2nd?

8 A. Yes. Yeah, these were things that he had -- that he

9 was beginning to believe, the --

10 Q. What else -- What else was he talking about?

11 A. Huh-- Well, he spoke of what happened that evening,

12 the Friday evening before the offense --huh--

13 Q. And that was when Jen Weed had come over to --huh--

14 spend the weekend with him?

15 A. Yeah, Jen Weed came over that evening, he said

16 before -- before she came over he'd had that -- the drink with

11

17 his neighbor, and he also --huh-- had smoked some pot with his

18 friend, Greg Lindamood, and --huh-- that --huh-- felt the

19 marijuana relaxed him --huh-- and he felt very comfortable with

20 his friend Greg, he wasn't feeling paranoid or feeling that Greg

21 was some kind of hybrid --huh-- but that when Jen came over, he

22 thought that maybe she was.

23 Q. A hybrid?

24 A. Yeah, a hybrid -- a pig hybrid of some sort --huh-- he

25 said that her ears looked kind of funny --huh-- and he began to

1 think that maybe everybody around him -- or many -- many people

2 around him were this kind of strange hybrid --huh-- he said he

3 was -- what he was thinking -- what was going through his head

4 that whole night was about --huh-- these people, okay, he said

5 he had concerns about -- speculation about pigs, and humans, and

6 hybrids, and --huh-- I asked him, you know, was this something

7 you'd had, you know, many times before, he said, no, this was --

8 this was what was occurring that week and it was kind of

9 building up, this -- this kind of belief was new -- new to him,

10 is not like some other paranoid had when he was previously

11 treated --huh-- he -- he told me he had -- he went to bed early

12 that evening, but he got up early the next morning, he said a

13 lot of difficulty sleeping, hadn't really slept at all, and he

12

14 made some coffee, he --huh--

15 Q. Now, you're talking about --

16 A. The Saturday morning of the offense, yeah.

17 Q. -- the morning of February 2nd of 2013?

18 A. Right.

19 Q. Okay.

20 A. Huh-- He said he got up, it was still dark, he made

21 breakfast, he made a breakfast with egg and bacon sandwiches, he

22 made it for himself and Jennifer, and that he watched her

23 consume a piece of bacon, even though she said she really wasn't

24 hungry, he thought that was pretty weird.

25 Q. That she ate a piece of bacon?

1 A. Yeah.

2 Q. Okay.

3 A. Because he was thinking she was a -- a pig hybrid, why

4 would you eat your own flesh -- or flesh of -- of your people.

5 Huh-- And I -- I asked him -- you know, he said they both got in

6 the shower, and then he spontaneously said to me, I wasn't

7 expecting a tail or nothing --huh-- it's as if I was going to,

8 you know, ask him a question, and did -- did you expect her to

9 have a -- a pigtail, but he did say her ears looked kind of

10 unusual, different than they've looked before, kind of pointing

13

11 out, and --huh--

12 Q. When they were in the shower?

13 A. Yeah.

14 Q. Okay.

15 A. And that --huh-- her body looked kind of different,

16 her breasts looked askew, that something had -- had changed in

17 some way, and I asked her (Sic) if he noticed anything else, and

18 he said, when --huh-- when she talked he could see her tongue,

19 which he thought was unusual, he hadn't noticed that

20 before --huh-- but -- and even after the shower, after they were

21 both clean --huh-- he smelled this kind of smell, he called it a

22 musk smell, it was disturbing to him, and he felt it was a

23 different smell than she had ever emitted previously --huh-- and

24 he also felt that it was kind of strange because she wanted him

25 to stay in the shower, even though he was ready to get out,

1 and --huh-- wasn't sure why that would be.

2 Q. Did you --huh-- don't mean to interrupt, but they were

3 taking a shower --huh-- did you -- did you learn through your

4 interviews that Eddie would go some time without bathing?

5 A. Yes, that he would go -- sometimes he went many days

6 without bathing, and so Jen was focusing on getting him showered

7 when she saw him.

14

8 Q. Is that typical of a person that has mental health

9 problems?

10 A. Huh-- Yeah, we -- we see that quite a bit at Terrell,

11 we -- we might have somebody go a month or two without

12 showering, and they get to be pretty ripe. Huh-- People with

13 schizophrenia frequently, you know, aren't aware of the

14 impression that they're making on others, and so they don't take

15 care of the kind of basic hygiene needs that most of us just,

16 you know, take for granted, so --

17 Q. So maybe -- maybe dressing sloppily or -- and --huh--

18 not caring what they look like and not bathing would be some

19 kind of sign of a mental illness?

20 A. It -- It can be, I mean, that alone doesn't make the

21 diagnosis --

22 Q. Right.

23 A. -- but that's consistent with the diagnosis.

24 Q. So he's telling you about this morning and in the

25 shower, what else did he tell you?

1 A. Huh-- He said that they had a -- that's the point

2 where he told me about believing for some time that his neighbor

3 was eating his excrement coming through the pipes --huh-- and

4 thoughts he's had the sense of maybe he'd been eating it the

15

5 whole time, and then he told me that he and Jennifer had an

6 argument about filling out this VA paperwork, about the -- the

7 PTSD program in Waco, and --huh-- I -- I told him -- I asked him

8 at that point, do you think you have PTSD, and he just told me,

9 I had some kind of disorder --huh-- he told me that he -- he

10 told Jennifer they were breaking up, but she wasn't accepting

11 that, she wasn't accepting that -- that he wanted to break up

12 with her, and I did ask him if she wasn't hearing it because she

13 was a pig, and he -- he just said kind of, sort of --huh-- and

14 --

15 Q. Did you know -- Did you know --huh-- or did he tell

16 you -- or did anybody tell you that he had proposed to her the

17 night before?

18 A. Huh-- He did not tell me that, I -- I saw that in --

19 in the documents and also when I much later spoke with -- with

20 Ms. Weed, she told me that.

21 Q. Okay.

22 A. Huh-- And when I asked him -- During the interview I

23 asked him if he still thought she could be a pig, and he said he

24 didn't think so anymore, he didn't think stuff like that

25 anymore, you know, those fourteen months after I saw him, but he

1 did say spontaneously -- when I -- when I first got here to --

16

2 to the jail, I thought I was was going to be cooked for people

3 to eat, so he had that kind of ongoing concern. Huh-- He told

4 me that morning he had -- he had called his Uncle Jamie to come

5 over, that --huh-- Jamie said he would, and when Jamie arrived

6 --huh-- Jen soon thereafter left, and he and Jamie --huh--

7 smoked some whiskey -- I'm sorry, drank some whiskey --huh-- and

8 then when --huh-- told me when Chris Kyle came to his home, he

9 was smoking cigarettes on the back porch of the house, he found

10 it odd that Mr. Kyle did not introduce himself or even shake his

11 hands, but --huh--

12 Q. Did -- Did he -- Did he tell you that he'd smoked a

13 bowl or two of marijuana with Jamie?

14 A. He told me later in -- in the interview he did, as I

15 was walking through it he -- he didn't spontaneously just tell

16 me that, but he told me later he had -- he'd smoked some

17 marijuana.

18 Q. Okay.

19 A. Huh-- He --huh-- Said when Chris Kyle did come over

20 that he found it odd that Mr. Kyle did not introduce himself or

21 even shake hands and that they just went --huh-- he -- he

22 --huh-- said that he thought initially they were maybe just

23 going to go and talk somewhere, but --huh-- he did remember they

24 had said something about doing some other out -- outdoor

17

25 activities, and --huh-- I think when he saw the guns in the --

1 in the vehicle he was quite -- you know, he was aware of what

2 that was going to be.

3 Q. Okay. So -- So at this point he's -- he's starting to

4 talk to you about --huh-- getting in the truck with Chris Kyle

5 and Chad Littlefield, correct?

6 A. Correct.

7 Q. Huh-- How is he telling -- How -- What does he tell

8 you he feels like when he gets in there?

9 A. Huh-- Yeah, I don't know if I asked him what his

10 emotion was as he got into the truck, he did say that one of the

11 first things they did was stop at Whataburger --

12 Q. Right.

13 A. -- and that seemed kind of weird to him, because

14 --huh-- he -- he didn't really want anything to eat, but --huh--

15 Mr. Kyle told him you're going to eat, and he ordered him --

16 ordered all three of them --huh-- meals and a Dr. Pepper, and

17 --huh-- that, you know, he felt -- he was sitting there eating

18 his -- or his burger and drinking his Dr. Pepper and he had this

19 big piles of guns next to him, and he was feeling pretty nervous

20 about that --huh-- because it was kind of strange to --

21 Q. Did he -- Did -- Did he describe the guns to you?

18

22 A. He did not, no, he just said it -- it felt weird to go

23 --huh-- do firearms with a group he hadn't met before --huh-- I

24 asked him why he was really nervous about that, and he said that

25 he was still on his pig agenda --huh-- and later on in the

1 interview he kind of went back and told me when he was at the

2 Whataburger he did say something to these gentlemen, he -- he

3 said he asked them, aren't you tired of eating people's shit,

4 and I asked him if he thought that they were pigs, and he said,

5 that's what I thought at the time, and then he told me that he

6 -- the odor that he had smelled at his neighbor's home was the

7 same odor that he thought he smelled in Mr. Kyle's truck --huh--

8 and that it made him nervous, in his words, it -- it made my

9 hair stand up on the back of my neck --huh-- so at that point

10 smelling the same odor, it made him pretty anxious.

11 Q. Okay. And what else did he tell you about, anything

12 else about the --huh-- the -- the ride --

13 A. He --

14 Q. -- between Lancaster and Rough Creek Lodge?

15 A. He said that they didn't speak hardly at all --huh--

16 that that -- he tried to keep up his end of the conversation but

17 nothing was said back to him, and that made him even more

18 nervous, and he began to think to himself --huh-- this might be

19

19 a one-way trip.

20 Q. Those were his words "a one-way trip"?

21 A. Yeah, a one-way trip. I did ask him -- because I had

22 the information, whether he noticed they were texting at all,

23 and he said he -- he didn't notice that, but that they -- he did

24 notice that they were driving --huh-- and --huh-- you know, he

25 -- pretty fast, he got anxious, and --huh-- he did remember that

1 his girlfriend, Jen, had texted Chris, and Chris asked him if he

2 wanted to talk to her, but --huh-- she -- she said --huh-- you

3 know, he told them he didn't want to talk with her, that they

4 had broken up --huh-- asked what he thought about the fact that

5 he -- Jen had texted Mr. Kyle and he said she -- she thought she

6 was bold to send a text to him like that.

7 Q. Well, did he talk anymore about the ride over there?

8 A. The -- He said that once they stopped --huh-- he had

9 to urinate, he urinated on the side of the road, and --huh--

10 then when he got to Rough Creek Lodge --huh-- he had to -- told

11 them he had to urinate again, got out and urinated on the side

12 of the road, and --huh-- he still thought it was strange that

13 they -- they weren't telling him anywhere about what -- where

14 they were going and what was going on, and they didn't explain

15 anything to him, and that as they drove apparently through the

20

16 front gate and towards the -- the main lodge area --huh-- he

17 felt paranoid, he noticed there were two white cars that they

18 passed, and that the -- the white cars began to follow him

19 --huh-- he -- he began to think that --huh-- both that Mr. Kyle

20 and Mr. Littlefield were some type of pig assassins, hybrid

21 pigs, sent here to kill people, he said when they did stop at

22 the lodge he also thought it was strange because while Mr. Kyle

23 went in Mr. Littlefield stayed in the truck, but they didn't say

24 -- he didn't say anything to him.

25 Q. Well, let me ask you this real quick --huh-- is it

1 --huh-- is it typical that he could recall the details of this

2 --huh-- trip?

3 A. Is it typical --huh--

4 Q. Well --

5 A. There's nothing about schizophrenia that keeps you

6 from remembering things --huh-- I think if he was highly

7 intoxicated, he would have had difficulty remembering the

8 details --huh-- memory seems to be -- memory is real

9 complicated, but we usually remember things the best when

10 there's some type of emotional association with it, as long as

11 we're not so overwhelmed emotionally, so that's -- that's why we

12 usually remember, you know, our first kiss, you know, the first

21

13 time we met our spouse, or --huh-- you know, something that

14 really scared us, as long as we weren't scared out of our mind,

15 so if this was some -- if he had a fairly high anxiety state,

16 then it wouldn't be atypical that he would be able to remember,

17 you know, such a thing at all.

18 Q. Okay. So he remembers stopping at the lodge, and --

19 and Mr. Kyle going in the lodge, and he and Mr. Littlefield

20 staying in the truck, and no conversation --

21 A. Right.

22 Q. -- and that concerned him.

23 A. It did. Huh-- He said that once Mr. Kyle got back in

24 and got in the truck, they proceeded down the road to the range,

25 and that he remembered --huh-- Mr. Littlefield getting out and

1 putting up the flag, to let people know that the range was --

2 was occupied, and then went through a gate, closed the gate, and

3 went to the last of three range areas in -- in that section of

4 the range, he said he asked them if he could help unload the

5 guns, because they had a number of guns, but they -- they still

6 didn't say anything to him, and he said they took maybe ten guns

7 out of the truck and --huh-- the truck -- parked the truck right

8 near where they were going to be shooting from.

9 Q. What --huh-- After they unloaded -- Well, he -- he

22

10 didn't mention whether he helped unload the guns or not?

11 A. No, he --huh-- Didn't sound like he did, that --huh--

12 that they didn't say anything to him, like I understood that to

13 mean that he didn't unload the guns --huh-- that they just did

14 it on their own, because they didn't respond.

15 Q. Well, after they unloaded the guns what did he

16 continue to tell you what happened?

17 A. Huh-- He said that for the next five minutes or so he

18 loaded up a 9 millimeter and did -- what he calls slow fired, at

19 a silhouettes target that was painted, about twenty to

20 twenty-five meters away, and that Mr. Kyle at that same time was

21 shooting at a different target to his right, he thought about

22 thirty to forty meters away, but that Mr. Littlefield wasn't

23 shooting at all, which --

24 Q. And did that concern him?

25 A. He said that -- that seemed -- in his words, totally

1 odd to him, he said --huh-- that he knew that Mr. Littlefield

2 had a pistol on him, but he wasn't shooting, so he thought that

3 that was really strange, he couldn't really make any sense of

4 it.

5 Q. So he knew that Mr. Littlefield had a -- a gun on him?

6 A. Right.

23

7 Q. Okay.

8 A. Huh-- He told me that he --huh-- felt like he was in

9 danger and that something was going to happen, that --huh-- he

10 then fired at Mr. Littlefield and hit him in -- what he

11 described as center mass, and that --huh-- then he -- he saw

12 Mr. Kyle turning, and he -- he shot at him --huh-- two to three

13 times, in the back and the upper torso, and that when Mr.

14 Littlefield began twitching around, he shot him in the head, and

15 that stopped the twitching.

16 Q. Did he -- Did he tell you who he -- why he shot Mr.

17 Littlefield first?

18 A. Huh-- I didn't ask him why he shot Mr. Littlefield

19 first --huh-- he -- he felt threatened by him, I asked -- asked

20 him what he was thinking at the time, he said he thought he'd

21 neutralize the threat.

22 Q. Those were his words --

23 A. Yes.

24 Q. -- was "neutralize the threat"? Okay. What else did

25 he tell you happened after that?

1 A. Huh-- That he thought, you know, that's -- that's

2 terrible, you know, I shot two guys --huh-- I asked him why, you

3 know, why he'd -- he'd shot Mr. Kyle, and he said he had a

24

4 pistol in his hand, I was sure he was going to shoot me. I did

5 ask him, you know, why hadn't they shot you up to that point

6 --huh-- you know, they -- they had guns, you -- why hadn't they

7 done it, you know, prior to that, and he said that he -- he

8 thought they were simply biding their time, that maybe there was

9 a pond nearby, maybe there's a better place, a better time that

10 they -- they could do this --huh-- assassins pick their time,

11 that -- those weren't his specific words, that -- that's the way

12 I understood him to say it, and I asked him why he thought they

13 had give him a gun if they planned to shoot him, he just said, I

14 -- I have no clue.

15 Q. Did he talk about --huh-- leaving after the incident

16 happened?

17 A. Huh-- Yeah, he did.

18 Q. Huh-- How did he explain that to you?

19 A. Huh-- He said that he didn't plan to -- to steal the

20 truck, but there were keys in the truck, and he stood over the

21 bodies for about a minute and he felt -- felt relieved, felt

22 he'd done what he had to do, but he also was -- was in shock

23 --huh-- I asked him if he thought he'd made a mistake, and he

24 did -- he said, yeah, in the Bible it says not to kill anybody,

25 but --huh-- he also said that --huh-- it was necessary when he

25

1 shot them, I -- I thought it was needed for the situation to get

2 out of the situation I was in, and I -- I asked him if he

3 thought others would have done the same in the same situation,

4 and he said, I think some would and some wouldn't, it's a pretty

5 shitty thing to do, to -- to kill someone, I asked if he had

6 simply thought about allowing them to kill him, and he said, no,

7 absolutely not --huh-- he --huh-- I did, you know, ask him

8 whether he thought, you know, other people would understand what

9 he'd done, and --huh-- and he said he -- he f igured he would be

10 arrested, he knew that if you kill somebody the police will look

11 for you, but at the same time he thought he did what he had to

12 do, he was going to be killed or -- or he would have to kill

13 them.

14 Q. So in his mind he -- he was under -- at -- at that

15 point in time he was under some kind of threat from the other

16 two?

17 A. Yes, he -- he was acting in self-defense, to kill them

18 before they killed him.


Dr. Dunn further stated:

3 A. Well, first, that he did have a severe mental disease.

4 Q. And can you classify that or explain to us what it is?

5 A. I -- I believe that Mr. Routh was suffering from

26

6 schizophrenia.

7 Q. Okay. And what are the symptoms --huh--

8 characteristics of schizophrenia?

9 A. I shared some of these with you before --huh-- to --

10 to make a diagnosis of schizophrenia, you have to have certain

11 symptoms or characteristics of the illness --huh-- he suffered

12 from delusional beliefs, that we've discussed in detail, he also

13 exhibited disorganized thinking, and I think that was exhibited

14 probably best by the -- the audiotaped interview -- no,

15 videotaped interview with -- with Ranger Briley, in which he was

16 saying things that were frequently disconnected with the

17 question that was being asked, Ranger Briley kept trying to

18 focus him back in, you know, on the -- on the question that was

19 being asked and didn't explore a lot of the things that Mr.

20 Routh was saying, but he was going pretty -- pretty far afield

21 and saying stuff that simply didn't make sense about house

22 squares, and square towns, and people sucking souls, and chess

23 pieces, just --huh-- kind of all -- all over the place. Huh--

24 He also had, in that interview, and was described by family

25 members, as a, you know, kind of restricted emotional response

1 -- we -- we use the term "affect", which is basically the

2 --huh-- perceived mood, the way people interact with -- with

3 each other, and he had a very kind of restricted affect or a

27

4 --huh-- restricted emotional response. To make the diagnosis of

5 schizophrenia, you have to have two of the categories of

6 illness, hallucinations, delusions --huh-- disorganized speech,

7 disorganized behavior or these negative symptoms of --huh--

8 restricted affect or avolition, avolition means a low desire to

9 do things --huh-- just kind of the -- the social withdrawal that

10 we frequently see in schizophrenia. Huh-- So I -- While Ms.

11 Weed had reported that he was hearing and seeing things the --

12 the night before and that he had done that before --huh-- he

13 didn't tell me of any hallucinations, I didn't use that report

14 to make the diagnosis of schizophrenia, but to make the

15 diagnosis I relied on the delusions, the really disorganized

16 speech and thinking --huh-- and the --huh-- the negative

17 symptoms or the -- the flattened affect as well, so that's what

18 led to the -- the diagnosis, and I don't think it just started

19 even that week of the offense, but I think it probably started

20 back in July of 2011, when he first had the symptoms of the --

21 the tapeworm and, you know, we talked about the -- the doctors

22 at the VA being against him and the people there being against

23 him, and, you know, symptoms that -- that began, you know,

24 probably around that time, just that they weren't -- they

25 weren't there as prominently for eighteen or -- or twenty

28

1 months, but that's probably when he -- around the first time he

2 had symptoms of the illness.

3 Q. You talk in your report about --huh-- malingering

4 mental illness.

5 A. Yes.

6 Q. Huh-- Explain why you feel that --huh-- that you do

7 not think that Eddie was faking or malingering mental illness.

8 A. Well, I spoke about that some -- a little bit before,

9 about how the --huh-- type of symptoms that -- that he described

10 weren't what we normally see in an individual whom -- who

11 malingers, his --huh-- his symptoms -- his presentation was very

12 consistent with what's normally seen in schizophrenia, and it --

13 it wasn't this kind of dramatic, flowery stuff that you see in

14 movies or cartoons, but also I did -- did the testing -- the

15 M-FAST, that I talked about earlier, that was not supportive of

16 a diagnosis of malingering, you know --huh-- I think the -- one

17 of the strongest pieces of evidence that he had of mental

18 illness was not in my interview or my evaluation, but the text

19 that Mr. Kyle sent at the time that --huh-- Mr. Routh was in his

20 vehicle --huh--

21 Q. Tell -- Tell me why you think that's important.

22 A. Well, he was always -- he was -- he's the one who saw

23 him the closest to this --huh-- event --huh-- of anybody, and

29

24 Mr. Kyle was used to seeing people who were a little bit strange

25 or people with post-traumatic stress disorder, people who were

1 disturbed by the war, but he text, this guy is straight up --

2 this dude is straight up nuts, and, you know, Mr. Littlefield's

3 concerned enough that he says, you know, watch my 6, he -- he

4 knows that there's -- there's something wrong with the fellow

5 sitting behind him, and it's not just PTSD, so I think that

6 that's, you know, pretty strong support for the idea that there

7 was something really wrong with Eddie Ray Routh on the day of

8 the offense, and that something wrong was a mental disease.

9 Q. And -- And as part of forming your opinion, did -- did

10 his interview with Ranger Briley play a significant part?

11 A. It did.

12 Q. Huh-- Why?

13 A. Because it was very supportive of the idea that

14 --huh-- you know, one, he'd felt paranoid about these

15 individuals, that he thought that he had to kill them or he

16 would be killed, and then he had a mental illness at the time,

17 his --huh-- the things that he said -- the -- the marked thought

18 disorganization, the lack of emotional response, the --huh--

19 just -- you know, numerous bizarre statements about --huh-- his

20 thinking at the time --huh-- I -- I -- I killed him today, it

30

21 wasn't a want to, it was a need to, I had to get out of there

22 --huh-- statements that -- he described them as imaginary

23 headhunters, trying to run everybody down --huh-- he drew a

24 contrast between himself and Mr. Kyle and Mr. Littlefield by

25 saying, I'm not trying to hunt everybody down for what they done

1 wrong, and --huh-- when Mr. -- Ranger Briley asked him what was

2 going on, he said, I can't just leave my soul up there, it's not

3 what it's about, I've got people eating at my soul, so it was

4 supportive both of mental illness and of this idea that he was

5 in danger and he had to kill them before -- before they killed

6 him. Even the -- Excuse me. (Pause) The very first statement

7 he made to Ranger Briley is, I'm try -- I'm trying to find out

8 more about the world that I've been living in, too, I never knew

9 I was in this deep, what -- when I'm looking at those computer

10 screens, when I was in Iraq, I never thought I was, I never

11 thought it was -- I was, I mean, you can look at it, doesn't

12 make sense to you at the time, when you realize that's happening

13 you know --huh-- you're looking like it's astonishing, you know,

14 he's trying to figure out the world, he's saying the stuff

15 that's really bizarre, Briley is obviously trying to get him to,

16 you know, just talk about the offense, and he asked him these

17 questions, he goes through a Miranda warning, and then

31

18 immediately Mr. Routh responds, I never knew that counsel was --

19 maybe you know, counseling between men and women, needed to be

20 more heavy in the world than it did, but when you're all

21 surrounded by --huh-- by all -- by all fronts, where it begins

22 you just can't start in one place, you know, and then

23 immediately thereafter Ranger Briley tries to get him to say

24 again, you know, tell me what happened, and he responds with

25 well, you know, I keep talking to Chris, you know, I keep

1 talking to Chrises in the world, it seems like every time I talk

2 to another man named Chris I get sent to another man named

3 Chris, I think about talking to the wolf, the one in the sky, I

4 think about fighting through the war, you know, the ones in the

5 sky are the ones that fly, you know what I mean, the pigs in the

6 world they can truly say they're pigs, I've been smelling it

7 this whole time, I'm just tired of everything -- I'm sorry, I'm

8 tired of everybody's fucking bullshit, I can smell bullshit and

9 pigshit, you know, I can tell the difference between two

10 different kinds of pigshit -- two different kinds of pigs

11 shitting, I don't know how you can smell your shit, I'm not

12 saying nobody's shit stinking, but shit stinking, you know what

13 I mean.

14 Q. So, that's kind of the -- the continuation of several

32

15 days of this pig --

16 A. Yeah, it's -- it's totally nonresponsive to what

17 Ranger Briley was asking him, but it's clearly evident that he

18 was having a mental illness, that he's having a lot of

19 difficulty organizing his thinking, and that it pulls in a lot

20 of stuff that he, you know, was telling me about pig hybrids,

21 and -- and pigshit, and -- and other people's shit, and a lot of

22 stinking stuff, but Ranger Briley doesn't know what that means,

23 I mean, Ranger Briley's got a job to do, he's got -- his job is

24 to try to, you know, find out what happened and to see if he can

25 get a confession, it's not to find out does this guy have a -- a

1 mental illness that might have prevented him from knowing what

2 he did was wrong --huh-- he does ask him, you know, he knew --

3 you knew what you did was wrong, didn't you, and at some point

4 Mr. Routh says, yes, I -- I did, which is what many defendants

5 are going to say to the officers asking them questions, but the

6 clear evidence of mental illness in the very initial responses

7 in that interview I think are, you know, indicative of his state

8 of mind at the time, are supportive of a mental illness, and are

9 also supportive of the idea that he believed that he did what he

10 had to do.

11 Q. And, in fact, through what you've reviewed --huh-- he

33

12 not only told Ranger Briley that it was either him or them

13 --huh-- he also told his sister that, too, didn't he?

14 A. Yes, he did.

15 Q. That he had to get them before they got him. And I

16 guess my point is is --huh-- through your interview with him and

17 -- and other collateral matters --huh-- that was -- that was his

18 major fear, was that they were going to kill him?

19 A. He thought he was going to die if he didn't take care

20 of business and kill them first.

21 Q. And that would also not only show evidence of some

22 delusional thinking but, in his mind, that what he did was not

23 wrong?

24 A. Correct, if -- if you are going to be killed, then you

25 have the right to defend yourself, he defended himself --huh--

1 Q. In his mind?

2 A. In his mind, right. I'm not saying that's -- that's

3 logical, but it was logical in his sense, you know, he -- he

4 believed he was going to die, none of us would have thought that

5 was the case, we thought that here's, you know, a decorated war

6 veteran and his friend taking out a guy who's been in the army,

7 to try to, you know, relate to him and give him some -- you

8 know, engage him in an activity, isn't -- isn't what they're

34

9 doing, you know, really helpful thing, but in his mind he

10 thought he was going to die unless he had to -- unless he took

11 care of business.

12 Q. Now, there's mentioned in the records of marijuana

13 smoking --huh-- a habit of marijuana smoking, and so they --

14 there's -- what we discussed earlier is a substance-induced

15 psychosis, correct?

16 A. Yes.

17 Q. Huh-- And you don't -- What -- What is your opinion

18 about -- at the time this offense was committed --huh-- whether

19 or not his psychosis was substance-induced?

20 A. It's my opinion that his psychosis was not

21 substance-induced.


5 Q. (BY MR. MOORE) Just to make sure, Doctor, is it your

6 opinion, that on February 2nd, 2013, when Eddie shot Mr. Kyle

7 and Mr. Littlefield, that at the time of that conduct charged,

8 that he as a result of a severe mental disease or defect, did

9 not know that his conduct was wrong?

10 A. Yes.

11 Q. Thank you.

(RR Vol. XXIII, p. 222)

Dr. Dunn is clear in his diagnosis of Mr. Routh that he was legally insane when he

35

shot both Mr. Kyle and Mr. Littlefield.

Dr. Price, a State’s Expert, came up with some far fetched idea that indicated that

Mr. Routh’s behavior was based on smoking wet marijuana. Texas Department of Public

Safety’s chemist stated the marijuana smoked by Routh on February 2, 2013 was not laced

with anything.

Dr. Arambula, a psychiatrist for the state, stated that Mr. Routh had a mood

disorder, but could not assert why he thought he had a mood disorder.

It is clear the Appellant met his burden of proof to show that he was insane at the

time of the offense, but the jury chose to disregard Mr. Routh’s severe mental illness.

36

POINT NUMBER TWO:

THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S MOTION TOSUPPRESS STATEMENTS TAKEN BY TEXAS RANGER DANNY BRILEY INVIOLATION OF TEX. CODE CRIM. P. ART. 38.22 V.A.T.S. (RR Vol. XX, pp. 167-174)


In Miranda v. Arizona, 304 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Miranda

defines custodial interrogation as “questioning initiated by law officers after a person has

been taken into custody or otherwise deprived of his freedom of action in any significant

way”.

In Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297,

306 (1980), the Supreme Court rejected the notion “that the Miranda rules were to apply

only to those police interrogation practices that involve express questioning of a defendant

while in custody.” The Supreme Court held instead:

“Miranda safeguards come into play whenever a person in custody is subjected toeither express questioning or its functional equivalent. That is to say, the term‘interrogation’ under Miranda refers not only to express questioning, but also to anywords or actions on the part of the police (other than those normally attendant toarrest and custody) that the police should know are reasonably likely to elicit anincriminating response from the subject.” Id. at 300-301, 100 S.Ct. 1689-1690, 64 L.Ed.2d 307, 308.[footnotes omitted][emphasis added.]

The Court of Appeals relied on this Court’s decision in McCrory v. State, 643 SW2d725 (Tex.Crim.App.1982), in holding that appellant’s statements to Vera stemmedfrom custodial interrogation.

In McCrory, supra, a majority of this Court held that the oral statement in questionwas the result of custodial interrogation since the record as a whole clearlyestablished [FN2] that the defendant’s statement” ‘resulted from a calculatedpractice’ which all agents of the State present knew was ‘reasonably likely to evokean incriminating response’ from him.” 643 SW2d at 734 [emphasis in original]

The Appellant did not understand his warnings under Article 38.22 of the Texas

37

Code of Criminal Procedure. The Appellant was clearly in custody of the Texas Rangers.

In Creager v. State, 952 SW2d 852 (Tex.Crim.App.1997) states that the voluntariness of

a statement is decided by considering the totality of the circumstances under which the

statement was obtained. Trickery or deception does not make a statement involuntary

unless the method was calculated to produce untruthful confession or was offensive to

due process U.S.C.A. Const. Amend. 14. Appellant would not have given a statement if

he understood that he could terminate the interview. The officer used a method to induce

the Appellant to give a statement that was in violation of the due process clause of the

State and Federal Constitutions. Creager goes on to say that in Miranda v. Arizona, 304

U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court said that the Fifth Amendment

required at least some warnings before custodial interrogation, one being that a person in

custody must first be warned “that anything he says can be used against him in a court of

law.”1 384 U.S. at 479, 86 S.Ct. at 1630. The Fifth Amendment right is not violated when

a suspect is warned that his statement “could be used against him, or could be used for

him.” Gardner v. State, 733 SW2d 195, 202-03 (Tex.Crim.App. 1987). Voluntariness is

decided by considering the totality of the circumstances

under which the statement was obtained. Haynes v. Washington, 373 U.S. 503, 83 S.Ct.

1336, 10 L.Ed.2d 513 (1963).

Article 38.21 of the Code of Criminal Procedure requires that the statement have

been “freely and voluntarily made without compulsion or persuasion.” Even without the

statute, the courts of this state have held that statements must not have been “obtained

1 The substance of this particular Miranda warning was added to the Texas confession statute in 1977. S.B.157, 65th Legislature–Regular Session, Acts 1977, ch. 348, § 2. It appears in Article 38.22 as Section 2(a)(2): “anystatement he makes may be used as evidence against him in court.”

38

by the influence of hope or fear, applied by a third person to the prisoner’s mind.” Cain v.

State, 18 Tex. 387, 390 (Tex. 1857) The ultimate question is whether the suspect’s will was

overborne. Armstrong v. State, 718 SW2d 686, 693 (Tex.Crim.App.1985) In this case, it

was.

Texas Ranger Briley interviewed Mr. Routh at the Lancaster Police Department after

the incident. Ranger Briley asked Mr. Routh if he wanted to speak to him; Mr. Routh never

stated he would, Mr. Routh was in a psychotic state.

18 Q. Well, then you say --huh-- he tells you that there

19 have to be councils to keep people accountable, and stuf f like

20 this that people do, they can't walk on the ground with you,

21 they can't walk on the same ground with you, you know what I

22 mean, and you say, right, and I assume you're just playing along

23 with him, correct?

24 A. Yeah, this is all at the initial stages of the

25 interview, and I'm certainly going along with whatever he's

1 going to talk about and I'm going to grab ahold of whatever

2 themes he's --huh-- talking about and then develop a plan to --

3 to get down --

4 Q. But he's --

5 A. -- get down to the truth.

39

6 Q. But he's just not making any sense, is he?

7 A. Huh-- That's true.

8 Q. Huh-- And --huh-- you tell him, I -- I want you to

9 know, I work with the Texas Rangers, and what we do is we

10 investigate major crimes, homicides, we have all the resources

11 that we utilize to look into these cases, you understand what

12 I'm saying, and he says, right, and you say, and I know what you

13 went through today has been very difficult for you, and I want

14 to talk about what happened, and you can start when you woke up

15 today and what happened, and his answer was, well, I kept talk

16 -- I keep talking to Chris, you know, I keep talking to Chrises

17 in my world, seems like every time I talk to another man named

18 Chris I get -- get sent to another man named Chris, that didn't

19 make any sense either, did it?

20 A. That's -- huh-- some of the denial that I'm talking

21 about --

22 Q. That's --

23 A. -- denial.

24 Q. -- That's what you're talking -- denial?

25 A. Yes, denial avoidance.

1 Q. He says, every time I talk to another man named Chris,

2 I get sent -- oh, I'm sorry, he says, I think about talking to

40

3 the wolf, the one in the sky, I think about fighting through the

4 war, you know, did you ask him what he meant by that?

5 A. Huh-- No, he likes --huh-- from my investigation, to

6 say --huh-- shocking things.

7 Q. Well, that just doesn't makes sense, though, does

8 it --

9 A. Huh--

10 Q. -- "the wolf in the sky"?

11 A. Yeah, he -- he -- he will -- he says things that

12 --huh-- are, to him --huh-- means something.

13 Q. So he goes on and says, the ones in the sky are the

14 ones that fly, you know what I mean, the pigs in the world, they

15 can truly say they're pigs, I've been smelling it this whole

16 time, I'm tired of everyone's fucking bullshit, I can smell

17 bullshit and pigshit, you know, I can tell the difference

18 between two different kinds of pigshit, I don't know you can

19 smell your shit, I'm not saying anybody's shit's stinking, but

20 shit's stinking, you know what I mean, y'all hadn't talked about

21 any pigs or anything like that, had you?

22 A. We had not.

23 Q. So you don't respond to any of that, and you say, what

24 exactly happened today after you woke up, and Eddie responds,

25 look, I'm finally getting rest, peace of my mind, you know,

41

1 peace of my mind back that I won't ever get back, that wasn't an

2 answer to what happened after you woke up, was it?

3 A. That's correct.

4 Q. And you asked him, what kind of education do you have,

5 and he responds, just high school, I went to high school, then I

6 went and joined the Marine Corps right out of high school, and

7 he continues, it wasn't the street that I was trying for, it was

8 the streets I was trying to come back and get, you know, the

9 streets have not been straight in Texas forever, you know what I

10 mean, no town square, there's towns that are square and there's

11 towns that are fixed, but there's no real square towns, there

12 can be, there are square towns around America, there can be

13 prairie towns, there was no -- no response by you, correct, I

14 mean, you didn't ask him what the heck are you talking about,

15 straight towns or square towns?

16 A. Did you say prairie towns a minute ago because --huh--

17 he refers to crooked towns, square towns and crooked towns.

18 Q. Okay. But that still -- that wasn't an answer to your

19 question, was it?

20 A. Huh-- It was --huh-- philosophical talk and --huh--

21 he's -- he's still avoiding talking about what we're there to

22 talk about at that point.

42

23 Q. That's your opinion?

24 A. That is my opinion.

25 Q. So what did you do in the Marine Corps, you asked, I

1 worked as a prison guard and I worked on guns, you know, tit for

2 tat, he said -- he continues, who's saying who's right and who's

3 wrong, nobody wants to admit that they're right, nobody wants to

4 admit that they're wrong, I'm the only one that can change it,

5 that's why these are behind my back right now, referring to his

6 handcuffs, is that philosophical --

7 A. He's --

8 Q. -- in your mind?

9 A. He's just not answering the question.

10 Q. Okay. Huh-- Then you talk about how he met Chris, and

11 he says, he was protecting the schools, you know --huh-- he

12 responds, when I finally met the guy I could smell him for what

13 he's worth, I was like -- you didn't ask him what he meant by

14 that, did you?

15 A. Huh-- It sound like -- seemed like he's angry, you

16 know, he's -- he's -- he's angry at that point --huh-- about

17 Chris.

18 Q. When -- When he said, I could smell him for what he's

19 worth, he was referring to Chris Kyle, wasn't he?

43

20 A. Huh-- In this part of the investigation, that's true,

21 and then we've heard --huh-- the same towards Chad.

22 Q. And then he says, he was a Kyle, doesn't remember the

23 other guy's name --huh-- then a little later you ask -- or just

24 a -- a few seconds later you asked, what kind of shooting

25 sports, he responds, well, I imagine they're head -- they're

1 headhunters, you know, trying to hurt everybody down who did

2 them wrong before, get them all or something like that, I'm not

3 trying to hunt down anybody what -- hunt down anybody what I did

4 wrong or you, did you ask him what he meant by the -- calling

5 them "headhunters"?

6 A. I didn't feel I needed to, it appeared to me he's

7 setting himself up for a self-defense.

8 Q. Okay. Huh-- Y'all talk about -- Y'all are both

9 reasonable and normal, and you asked him, what happened out

10 there today, shooting sports, what kind of guns, and he

11 responds, I was being reasonable with these boys, they looked me

12 in the eyes and I looked them in the eyes; is that correct?

13 A. That's what he says.

14 Q. Okay. And then you asked him, what happened to them

15 from you're perspective, correct, you want to know what his

16 perspective of the situation was, didn't you?

44

17 A. Yes.

18 Q. And he respond, well, I can't just keep eating my soul

19 up about this, you know, you can't just keep letting people eat

20 your soul up for free, you know, it's not what it's about, it's

21 about having a soul that you have in you, for yourself, I still

22 got tons of people that are eating on my soul right now, I

23 haven't been able to sleep because I've been waiting for them to

24 come back and get my soul, you know how that feels, that doesn't

25 really make a lot of sense either, does it, Ranger Briley?

1 A. Huh-- He's --huh-- He's talking about --huh-- you

2 know, he's having a -- he's having a rough time, you know --

3 Q. Okay.

4 A. --huh-- things aren't good in his live, and --huh--

5 there's a few other expletives that --huh-- other words that --

6 that you left out --huh-- but he's having a -- he's having a

7 rough time or at least that's what he's conveying to me at that

8 point.

9 Q. Okay. And you -- And you respond by telling him, I'm

10 understanding, and he says, I just wish the world wasn't such a

11 soulless place, you know, sometimes there's no soul for the

12 soup -- or something about sleep anymore -- and writing down

13 books --huh-- that didn't make a whole lot of sense either, did

45

14 it?

15 A. No, sir.

16 Q. And you say, well, tell me what happened out there

17 when -- when you were with Chris and that other guy, and his

18 response -- and that's a pretty straightforward question, isn't

19 it --

20 A. It is.

21 Q. -- tell me what happened?

22 A. Yes.

23 Q. Well, you know, he says, I've --huh-- seen evidently

24 --huh-- something about, the Reds are eating up all the Indians,

25 the Communist Party wants to run rampant in America --huh--

1 talks about common groundwork to do, so we can all get better,

2 there has to be common grounds, then he says, the warlords are

3 not very happy with me, I know that, everybody knows that in

4 town, I could start making things right, I mean, obviously, did

5 you ask him what he meant by "the warlords"?

6 A. I did not.

7 Q. You just said, I -- you saw your sister today, you

8 told her something bad happened, right, what did you tell her,

9 didn't you ask him that?

10 A. I did.

46

11 Q. Okay. His response was, I told her I had to kill men

12 today, I had to kill men today was his response, correct?

13 A. Yes.

14 Q. It wasn't a "want to", it was a "need to", I had to to

15 get out of that situation I was in today, if not, I was going to

16 be the next one out there getting my head shot off -- shot

17 completely off, you know, that was what he told you he told his

18 sister, correct?

19 A. That's correct.

(RR. Vol. XX, pp. 167-174)

The State cannot benefit from the admission of Mr. Rouths’s statement because it

was in violation of Art. 38.22 Tex. Code Crim. Pro. and the Fifth and Fourteenth

Amendments to the United States Constitution. Based on this reason, Appellant’s Motion

to Suppress Statement should have been sustained. The trial court erred in denying

Appellant’s Motion to Suppress Statement therefore, the case should be reversed on that

ground.

47

POINT NUMBER THREE:

IT WAS ABUSE OF DISCRETION FOR THE TRIAL COURT TO OVERRULEAPPELLANT’S MOTION FOR MISTRIAL WHEN THE PROSECUTOR PARADEDA VIAL IN FRONT OF THE JURY THAT WAS NOT ADMITTED INTO EVIDENCE. (RR Vol. XXI, pp. 10-16)


The Texas Court of Criminal Appeals indicated in its review of Wead v. State, 94

S.W.3d 131, 138 (Tex.App.-Corpus Christi 2002) that:

An appellate court reviewing a trial court’s ruling on a motion for mistrial must utilize

an abuse of discretion standard of review, Ladd v. State, 991 3 S.W.3d 547, 567

(Tex.Crim.App.1999), cert. denied, 529 U.S. 1070 (2000), and must uphold the trial court’s

ruling if that ruling was within the zone of reasonable disagreement, Montgomery v. State,

810 S.W.2d 372, 391 (Tex.Crim.App.1990). In addition, the appellate court must review

the trial court’s ruling in light of the arguments that were before the trial court at the time

it ruled. See Tex. R. App. Proc. 33.1; Dragoo v. State, 96 S.W.3d 308, 313

(Tex.Crim.App.2003) (appellate court reviewing a trial court ruling on a motion to dismiss

must do so in light of the arguments before the trial court at the time it ruled); Weatherred

v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000) (appellate court reviewing a trial court

ruling on the admission of evidence must do so in light of the arguments before the trial

court at the time it ruled). The appellate court may not fault the trial court on the basis of

arguments not presented to the trial court.

MR. ST. JOHN: Thank you, Your Honor. Huh--

10 Judge, it's our position that --huh-- it's a little bit too late

11 in the game to try to cure anything --huh-- Ranger -- the Texas

48

12 Ranger from Dallas County, who testified under oath that he

13 collected these items for -- from my client's house --huh--

14 Eddie Routh's house, this would be Ranger David Armstrong,

15 testified under oath he collected these items found in the tin

16 box, so I will submit to the court he committed a felony in

17 front of this court, committed perjury in front of these twelve

18 folks, and there's no -- nothing you can say to cure his

19 perjured testimony, he testified under oath he collected it,

20 and, matter of fact, the D.A. -- I -- I would suggest the D.A.

21 was in good faith, but the D.A. asked the specif ic question, as

22 he paraded a vial in front of the jury --huh-- quote, unquote,

23 Ranger, is that the vial -- is that the vial -- is that the type

24 of vial into which you stick a syringe, and the Ranger stated,

25 yes, it is, big discussion about all the drug paraphernalia,

1 that leaves an inference with the jury that my client has some

2 type of controlled substance in his home --huh-- there's

3 testimony there could have been marijuana in there, but

4 there's -- there's an inference that it could have been

5 methamphetamine or some other type of controlled substance, so I

6 would suggest to the court that there's no --huh-- anything you

7 can do regarding any -- an instruction to the jury to -- to cure

8 the harm that my client received, based on perjured testimony

49

9 from a Texas Ranger, who, I would suggest, is a certified peace

10 officer of the State of Texas, knows what to do when telling the

11 truth, collected those items, testified he collected those

12 items, he testified everything in the tin box he collected, and

13 then when brought it out he didn't say, in the presence of the

14 jury, I didn't collect these vials, never stated that, never

15 gave that indication at all, had every opportunity to say that,

16 chose not to do that, so I would suggest that there's nothing

17 you can do regarding the instruction to cure the damage to the

18 jury, basically there's already a skunk in the box based on the

19 misrepresentation of a Texas Ranger, therefore --huh-- since we

20 don't believe anything can be cured, and based on perjured

21 testimony, we're going to ask for a mistrial, Your Honor.

22 MR. NASH: Your Honor, briefly, to address the

23 issue of the -- the allegation of perjury, this witness

24 committed no perjury at all, he responded to inartful questions

25 of counsel regarding an exhibit -- a portion of an exhibit and

1 its contents, which was revealed and removed here in open court,

2 there was no misrepresentation about what was seized at the

3 scene, there was no misrepresentation about the contents of the

4 box, he had testified he had seized the box, identified drug

5 paraphernalia in it, and seized it, counsel asked him inartful

50

6 questions regarding that vial, this Ranger did nothing wrong.

7 THE COURT: All right. Having received the

8 argument this morning, outside the presence of the jury, I will

9 first find that the nature of the testimony is curable by an

10 instruction, I will allow the testimony to be presented in front

11 of the jury with regard to --huh-- the vial, the nature of the

12 explanation relating to its erroneous admission and its

13 withdrawal, I think that the items need to be marked and

14 admitted for record purposes only, outside of the exhibit

15 numbers, that's 221 and 223, and I will instruct over counsel's

16 objection the jury to disregard -- once that's been done in

17 front of the jury, to disregard the testimony relating --huh--

18 to the vials and that it not to be considered --huh-- for any

19 purpose. I have read the contents of the Defendant's Exhibit 2,

20 which is admitted for record purposes only, and specifically

21 --huh-- the allegation relating to the commission of perjury,

22 the -- it's a narrative by the Ranger, describing what he's

23 pulling out of the tin can, and then when it gets to a relevant

24 part, there is a vial of some type of liquid, which I don't know

25 what that is, pause, that was also found in the tin can as well,

1 at this point I don't know whether he's describing that he found

2 it at the crime scene in the tin can, or he found it in the tin

51

3 can as he was removing exhibits during the course of the trial,

4 so I'll not consider any perjured testimony at -- at this time,

5 in any event, I don't think it's material --huh-- to the

6 proceedings. In that regard, I think counsel wishes to make an

7 additional objection, I'm overruling --huh-- the objection with

8 regard to the limiting instruction, I will provide it, I think

9 you can certainly cure what has been put in front of the jury,

10 especially coupled with testimony backing back out of that

11 scenario. Any further motion?

12 MR. ST. JOHN: Well, may I -- Now, let me make

13 sure I understand the court's ruling clearly, so you're not

14 telling the court that, during closing argument, we can't

15 address the issue about the Ranger misrepresenting something to

16 the jury, can you?

17 THE COURT: I'm -- I'm allowing both sides to

18 argue that for what can reasonably be inferred therefrom.

19 MR. ST. JOHN: Thank you, Your Honor.

20 THE COURT: Uh-huh.

21 MR. NASH: Just for clarification, Your Honor,

22 may I address the court in the presence of the jury concerning

23 the -- what we anticipate doing with this exhibit?

24 THE COURT: You may.

25 MR. NASH: Thank you.

52

1 MR. ST. JOHN: And also I still request the court

2 to give a specific instruction after he addresses the jury

3 regarding those issues, Your Honor.

4 THE COURT: I will draft a specific instruction,

5 and, in fact, I'm going to tell them to disregard the existence

6 of the vials and the testimony related thereto with regard to

7 the syringe, but I am not going to mention anything about this

8 testimony regarding how or when it was found or what condition.

9 MR. ST. JOHN: Yes, Your Honor.

10 THE COURT: That's a dangerous position for this

11 court to be, I think.

12 MR. ST. JOHN: Thank you, Your Honor.

13 MR. NASH: Yes, sir.

14 THE COURT: All right. Anything further by

15 either side?

16 MR. NASH: No, Your Honor.

17 MR. ST. JOHN: No, Judge.

18 THE COURT: Okay. Bring the jury in.

19 (Jury enters at 9:20 a.m.)

20 THE COURT: All right. You can be seated in the

21 courtroom.

22 (Pause)

23 THE COURT: Record will reflect the jury's in the

53

24 jury box this morning, we got a little late start. Huh-- But,

25 in any event, state's counsel is present at counsel table, as

1 well as the defendant and defense counsel. Mr. Nash, you may

2 proceed.

3 MR. NASH: Your Honor, before I -- we call our

4 first witness may I address the court?

5 THE COURT: You may.

6 MR. NASH: Your Honor, I need to bring something

7 to the court's attention, which we have done informally --huh--

8 yesterday, and -- and as well as counsel, on Friday, testimony

9 was presented through Texas Ranger David Armstrong, concerning

10 --huh-- certain exhibits which were identified through the

11 search of the defendant's home, on February the 2nd, 2013,

12 specifically we're dealing with State's Exhibit 221 --huh--

13 which was admitted and is identified as a -- a bong or hookah

14 pipe, which was in the -- and the contents of a metal box, and

15 State's Exhibit 223, which was a metal tin box --huh-- in which

16 was contained drug paraphernalia and other items, over the

17 weekend it came to the state's attention that a certain glass

18 vial of clear liquid, with a metal top and a rubber insert, was

19 -- was placed in those items through the testing process at the

20 DPS Crime Lab in Garland, that item -- those glass vials, which

54

21 are in each of those two exhibits, were not present when the

22 items were seized from the home of the defendant, as officers of

23 the court, it is our duty to notify the court and state for the

24 record that we stipulate and represent to the court that those

25 glass vials were not present at the home of the defendant on

1 February the 2nd, 2013, and that those glass vials should not be

2 attributed to the possession of the defendant, those glass vials

3 were produced and inserted into the exhibit as part of the

4 testing process, that was not known to the state at the time the

5 exhibits were presented, and we will be asking the court,

6 through testimony of the -- the --huh-- DPS Crime Lab Chemist,

7 Ms. Jennifer Rumppe, here in a moment we'll be asking her to

8 identify the glass vials, explain how they were produced, and at

9 that time we'll be asking the court to remove those glass vials

10 from each of State's Exhibit 221 and 223. In addition, Your

11 Honor, we'll be asking the court to instruct the jury to

12 disregard any testimony which was offered concerning those glass

13 vials, specifically any reference to them as having been

14 contained in the box of -- boxes of drug paraphernalia found in

15 the defendant's home, and specifically for State's Exhibit 223,

16 the glass vial that was removed from that box, any reference to

17 the susceptibility of the insertion of a syringe into that glass

55

18 vial. We represent to the court at this time, in all fairness

19 to the defendant, that those glass vials did not belong to the

20 defendant.

21 MR. ST. JOHN: Huh-- Your Honor, based on that

22 representation by the State of Texas, we move for a mistrial.

23 THE COURT: Overruled. Call your witness.

(RR. Vol. XXI, pp. 10-16)

The instruction by the Court to the jury did not cure the harm to the Appellant

created by the Prosecutor’s comment.

56

SUMMARY OF ARGUMENT

The jury returned an improper verdict because the Appellant did not know his

conduct was wrong.

The Trial Court erred by overruling Appellant’s Motion to Suppress Statement taken

by Texas Ranger Danny Briley in violation of Tex. Code Crim. P. Art. 38.22 V.A.T.S.

It was abuse of discretion for the Trial Court to overrule Appellant’s Motion for

Mistrial when the Prosecutor paraded a vial in front of the jury that was not entered into

evidence.

57

CONCLUSION AND PRAYER

Appellant has presented three independent points of error, any of which, if

sustained, would warrant reversal of the case. Appellant therefore prays that his conviction

be overturned with instructions that the trial court acquit Appellant of all charges against

him. Alternatively, Appellant requests reversal of the conviction against him and remand

to the trial court for a new trial. Finally, Appellant requests further relief either in law or in

equity to which he is justly entitled.

Respectfully Submitted,

/S/ J. Warren St. JohnJ. WARREN ST. JOHNState Bar No. 189863002020 Burnett Plaza801 Cherry Street, Unit No. 5Fort Worth, Texas 76102-6810Telephone: (817) 336-1436Fax:(817) [email protected]

ATTORNEY FOR APPELLANT

58

CERTIFICATE OF SERVICE

A copy of this brief has been delivered to the Honorable Alan Nash, Erath County

District Attorney, P.O. Box 30, Stephenville, Texas 76401 and mailed to Appellant, EDDIE

RAY ROUTH, on this 11th day of December, 2015.

/S/ J. Warren St. John

59

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)

Certificate of Compliance with Type-Volume Limitation

This brief contains 13,412 words, in compliance with TEX.R.APP.P 9.4(i)

/S/ J. Warren St. John

DATED: December 11, 2015

60

routh new trial request

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