state's brief in eddie ray routh appeal

8/19/2019 State's Brief in Eddie Ray Routh Appeal

http://slidepdf.com/reader/full/states-brief-in-eddie-ray-routh-appeal 1/63

CAUSE NO. 11-15-00036-CR

IN THE COURT OF APPEALS

OF THE STATE OF TEXAS

ELEVENTH DISTRICT

EASTLAND, TEXAS

EDDIE RAY ROUTHAppellant

v.

THE STATE OF TEXAS,

Appellee

Appeal from Cause No. CR14024

In the 266th Judicial District CourtErath County, Texas

BRIEF FOR APPELLEE

ORAL ARGUMENT REQUESTED

M. Alan NashState Bar No. 24027680

District Attorney266th Judicial District

Erath County, TexasP. O. Box 30

Stephenville, Texas 76401254.965.1462

254.965.5543 Facsimile

[email protected]

A

11-15

ELEVENTH COURT OF

EASTLAN

3/11/2016 4

SHERRY WIL

FILED IN11th COURT OF APPEALS EASTLAND, TEXAS

03/11/16 4:50:14 PM SHERRY WILLIAMSON Clerk

mailto:[email protected]





i

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

INDEX OF AUTHORITIES........................................................................................................... ii

RECORD CITATION CONVENTION ........................................................................................ iv

STATEMENT OF THE CASE ...................................................................................................... iv

ISSUES PRESENTED.................................................................................................................... v

STATEMENT OF FACTS ............................................................................................................. 1

ARGUMENT AND AUTHORITIES ........................................................................................... 11

RESPONSE TO APPELLANT’S POINT NUMBER ONE .................................................... 11

SUMMARY OF THE STATE’S ARGUMENT ............................................................................ 11

I NSANITY ........................................................................................................................... 12

MATLOCK STANDARD OF R EVIEW FOR LEGAL SUFFICIENCY OF EVIDENCE IN

R EJECTION OF AFFIRMATIVE DEFENSE .................................................................. 13

MATLOCK STANDARD OF R EVIEW FOR FACTUAL SUFFICIENCY OF EVIDENCE

IN R EJECTION OF AFFIRMATIVE DEFENSE .............................................................. 14

RESPONSE TO APPELLANT’S POINT NUMBER TWO ................................................... 29


TRIAL COURT’S FINDINGS PURSUANT TO ARTICLE 38.22 .................................................. 29

EVIDENCE OF APPELLANT’S GUILT WAS OVERWHELMING, I NDEPENDENT OF

R ANGER BRILEY’S I NTERVIEW .............................................................................. 36

APPELLANT’S R ELIANCE ON BRILEY I NTERVIEW IN ATTEMPTING TO PROVE

I NSANITY ............................................................................................................... 39

RESPONSE TO APPELLANT’S POINT NUMBER THR EE: .............................................. 41


PROCEDURAL SEQUENCE R ELATING TO THE VIAL ............................................................. 43

NO ERROR COMMITTED BY TRIAL COURT ......................................................................... 47

SELF-CORRECTIVE MEASURES OF STATE TO PREVENT HARM TO APPELLANT ................... 48

TESTIMONY OF THE LAB CHEMIST AFFIRMATIVELY CLARIFIED THE ORIGIN

AND PURPOSE OF THE VIAL .................................................................................... 49

THE TRIAL COURT WITHDREW THE EVIDENCE AND I NSTRUCTED THE JURY

TO DISREGARD A NY BASIS FOR IMPROPER I NFERENCES R EGARDING

THE ORIGIN AND PURPOSE OF THE VIAL ................................................................ 50

PRAYER ....................................................................................................................................... 53

CERTIFICATE OF SERVICE ..................................................................................................... 55

APPENDIX ................................................................................................................................... 57



ii

INDEX OF AUTHORITIES

CASES

Akins v. State, 202 S.W.3d 879 (Tex. App. —Fort Worth 2006, pet ref’d) ...................... 35

Anderson v. State, 717 S.W.2d 622 (Tex. Crim. App. 1986) ........................................... 36

Bigby v. State, 892 S.W.864 (Tex. Crim. App. 1994) ...................................................... 12

Cavender v. State , 547 S.W.2d 601 (Tex. Crim. App. 1977) ............................................ 49

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) .............................................. 13, 35

Colburn v. State , 966 S.W.2d 511 (Tex. Crim. App. 1998) .............................................. 50

Delao v. State, 235 S.W.3d 235 (Tex. Crim. App. 2007) ................................................. 31

Delao v. State, No. 10-05-00323-CR, 2006 WL 3317718 (Tex. App. —

Waco 2006, aff’d) ................................................................................................... 31

Gardner v. State , 730 S.W.2d 675 (Tex. Crim. App. 1987) .............................................. 50

Graham v. State , 566 S.W.2d 941 (Tex. Crim. App. 1978) .............................................. 12

Griffin v. State, 765 S.W.2d 422 (Tex. Crim. App. 1989) ................................................ 30

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ......................................... 30, 34

Hawkins v. State , 135 S.W.3d 72 (Tex. Crim. App. 2004) ......................................... 41, 47

Hinejosa v. State, 4 S.W.3d 240 (Tex. Crim. App. 1999) ................................................. 50

Jimenez v. State, 446 S.W.3d 544 (Tex. App. — Houston [1st Dist] 2014,

no pet.) .................................................................................................................... 35

Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003) .................................................. 35

Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App. 2010) .................................................. 32

Karnes v. State, 127 S.W.3d 184 (Tex. App. — Fort Worth 2003, pet

ref’d) ....................................................................................................................... 50

Littlepage v. State, No. 11-02-00312-CR, 2003 WL 2010976 (Tex.

App. — Eastland 2003, no pet.) (not designated for publication) ........................... 50



iii

Martinez v. State , 867 S.W.2d 30 (Tex. Crim. App. 1993) ............................................... 12

Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013) ....................................... passim

Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990) ................................................. 14

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966) ............................................................................................................... 29, 31

North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L.Ed.2d 286

(1979) ..................................................................................................................... 32

Otero v. State, No. 11-05-00224-CR, 2007 WL 1500884 (Tex. App. —

Eastland 2007, no pet.) (not designated for publication) ................................. 41, 47

Paster v. State , 701 S.W.2d 843 (Tex. Crim. App. 1985) ................................................. 50

Pham v. State, 463 S.W.3d 660 (Tex. App —Amarillo 2015, pet ref’d) ......... 12, 13, 15, 16

Ramirez v. State, 822 S.W.2d 240 (Tex. App. — Houston [1st Dist.]

1991, pet ref’d) ....................................................................................................... 49

Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App. 2008) ................................................. 13

Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989) .............................................. 13

Umana v. State, 447 S.W.3d 346 (Tex. App. — Houston (14th) 2014, pet

ref’d) ........................................................................................................... 30, 33, 34

Waldo v. State , 746 S.W.2d 750 (Tex. Crim. App. 1988) ................................................ 49

STATUTES

TEX. CODE OF CRIMINAL PRO. A NN. art 38.22, § 3 (West) ................................... 29, 31, 35

TEX. PENAL CODE A NN. § 2.04 (West) ............................................................................. 13

TEX. PENAL CODE A NN. § 8.01 (West) ............................................................................. 12

R ULES

TEX. R. APP. P. 44.2 (a) ..................................................................................................... 35



iv

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW THE STATE OF TEXAS, by and through her District

Attorney for the 266th Judicial District Court, Appellee in the above-styled appeal,

and files this Brief for Appellee, and would respectfully show the Court as follows:

RECORD CITATION CONVENTION

Citations to the record in this brief conform to the following parenthetical

convention:

Reporter’s Record (RR vol __, p ___)

Clerk’s Record (CR ___)

State’s Exhibit (SX __)

Defendant’s Exhibit (DX ___)

STATEMENT OF THE CASE

On July 24, 2013, Appellant was charged by grand jury indictment with the

offense of capital murder. (CR 492). The indictment alleged that Appellant

intentionally or knowingly caused the death of Chris Kyle and Chad Littlefield by

shooting each of them with a firearm during the same criminal episode. (Id.).

Appellant announced a plea of not guilty. (RR vol 2, p 7). Appellant filed written



v

notice of his intent to assert the affirmative defense of insanity on March 7, 2014.

(CR 700).

A nine-day jury trial culminated in a guilty verdict and Judgment of

Conviction by Jury entered by the trial court on February 24, 2015. (Id. at 972).

Appellant was sentenced to life without parole in the Institutional Division of the

Texas Department of Criminal Justice. (Id.). On March 3, 2015, the trial court

certified Appellant’s right to appeal, and Appellant filed contemporaneously a

motion for new trial notice of appeal on the same date. (Id. at 975, 1508, 1510).

ISSUES PRESENTED

The State submits no issues asserting error in the trial court. The State

submits responses to the issues asserted by Appellant in the Argument and

Authorities contained herein.



1

STATEMENT OF FACTS

On February 2, 2013, Chris Kyle and Chad Littlefield traveled in Kyle’s

black Ford F-350 truck to the Rough Creek Lodge with the Appellant, Eddie Ray

Routh. (RR vol 17, pp 91-93). The purpose of the trip was for Kyle and Littlefield

to befriend and spend time with the Appellant, who is a former member of the

armed forces. (Id. at p 85). By the late afternoon on February 2, 2013, Kyle and

Littlefield were found by hunting guide Justin Nabours, shot to death, on the

Rough Creek Lodge shooting range. (Id. at p 181). When first responders arrived,

they found Littlefield’s body on the deck of the shooting range, and Kyle’s body

directly in front of the deck. (Id. at pp 246-247). Littlefield had multiple gunshot

wounds to the back, face, and top of his head. Kyle had multiple gunshot wounds

to the right side of his torso and neck. (RR vol 20, pp 200, 206). When Kyle and

Littlefield were discovered mortally wounded, neither Appellant nor Kyle’s truck

were at the scene. (RR vol 17, p 22).

Shortly after arriving on scene, Somervell County law enforcement

determined that the location of the shooting was in Erath County, and the Erath

County Sheriff’s Office was notified. While en route to the scene, Erath County

officials notified and requested assistance of Texas Ranger Danny Briley, who

promptly responded to the scene. (RR vol 17, p 269). Investigators learned that a

third person, later determined to be Appellant, had arrived at the range that day



2

with Kyle and Littlefield, and that the third person was no longer present at the

scene. (Id. at p 273).

Several Texas Rangers were soon dispatched to control and process the

crime scene. (RR vol 18, p 19). The crime scene was videotaped, photographed

and mapped by the Rangers. (Id. at pp 19-20). The Rangers identified numerous

sporting firearms, shell casings, and handguns. (Id. at p 21). The personal

firearms of both Kyle and Littlefield were found on their persons, holstered and

unfired. (Id. at pp 57-58). Both Kyle and Littlefield had ear protection in place.

(RR vol 17, p 194). Beside Kyle’s body on the ground was a six-shot Uberti

single-action revolver with six spent shell casings in its cylinder. (RR vol 18,

pp 39, 43).

Later in the evening of February 2, when Littlefield’s wife became

concerned that Littlefield was late returning home, a friend of Littlefield called

Littlefield’s cell phone; a man answered the phone and identified himself as

“Eddie.” (RR vol 17, p 295).

Meanwhile, still on the evening of February 2, Laura Blevins, the sister of

the Appellant who resided in Midlothian, Texas, placed a 9-1-1 emergency call.

(RR vol 17, p 286; SX 230). Blevins, in a state of great fear and shock, explained

to the dispatcher that her brother, Appellant, had come to her home and told her

that he had “committed a murder.” Blevins explained that her brother had left the



3

Blevins home and was driving a large black truck (RR vol 17, p 286, SX 230).

Blevins explained that Appellant stated his intention to flee to Oklahoma. Blevins

advised that Appellant would not travel without his dog, and that Appellant may go

to his home in Lancaster before fleeing to Oklahoma. (SX 230).

Based on the information provided by Blevins, Lancaster Police Department

officers were dispatched to the Appellant’s home in Lancaster. (RR vol 18, p 88).

Upon arriving at the scene, officers found the residence unoccupied. Shortly after

officers reached the home, Appellant arrived at his Lancaster home driving Kyle’s

custom Ford F-350 pickup truck, which was the same vehicle in which Kyle,

Littlefield, and Appellant had traveled to Rough Creek Lodge earlier that day. (Id.

at p 96).

Lancaster officers instructed Appellant to exit the vehicle and comply with

their commands, attempting to persuade Appellant to peacefully surrender. (RR

vol 18, pp 131-140). Appellant refused to exit the vehicle, show his hands, or

lower the windows of the truck. (Id.). Officers made contact with Appellant’s

mother, Jodie Routh, and allowed Appellant to speak with her on speaker phone in

an attempt to end that standoff. (SX 233). The attempts to get the Appellant to

exit the vehicle were captured on a body camera. (RR vol 18, p 141, SX 233).

After lengthy discussion with officers, Appellant abruptly fled the scene in

Kyle’s truck, and led officers on a high speed chase through the residential and



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business districts of Lancaster toward Interstate Highway 35. (RR vol 18, pp 99,

114). At a city intersection, Lancaster Police Officer Grimes courageously

rammed with his patrol car the truck driven by the Appellant, damaging the truck

such that it finally failed later in the pursuit. (Id. at pp 100-102). The chase, in its

entirety, was captured on dash-cam video. (Id. at p 103, SX 232, SX 234). After

the pursuit reached IH-35, the truck operated by Appellant failed and gradually

slowed to a stop. (RR vol 18, p 102). Just prior to the vehicle coming to a

complete stop, Appellant stuck his hands out of the driver-side window, and once

stopped, Appellant exited the vehicle with his hands up and complied with the

commands given to him by law enforcement. (SX 234). Appellant was

immediately taken into custody and transported to the Lancaster Police

Department. (RR vol 18, p 103, SX 232, SX 234).

Kyle’s truck was secured and transported to the Department of Public Safety

Crime Lab in Garland, Texas, for processing. (RR vol 19, p 177). Inside the

driver door map pocket was a Sig Sauer P226 MK25 9mm handgun which was

engraved with the Navy anchor. (RR vol 19, pp 36, 183). The handgun was found

to be fully loaded with fifteen rounds of ammunition. (RR vol 19, p 196). On the

passenger front seat was a Remington 700 bolt action rifle. (Id. at p 36). In

subsequent processing of the truck, Texas Ranger Michael Adcock discovered a

receipt from Taco Bell that indicated a purchase took place on February 2, 2013, at



5

6:50:38 p.m., a time after both Chris Kyle and Chad Littlefield had been shot and

killed. (RR vol 18, p 75).

After the Appellant was taken into custody, Texas Rangers were dispatched

to serve and execute a search warrant on Appellant’s home in Lancaster. (RR

vol 19, p 39). Once inside the home of the Appellant, Texas Ranger David

Armstrong located marijuana, pipes and a bong capable of being used to smoke

illegal drugs, and a marijuana grinder. (Id. at p 62, SX 167 through SX 199).

Ranger Armstrong was also able to locate a mostly empty bottle of Texas Crown

Whiskey. (RR vol 19, pp 66, 68). A metal box containing other drug

paraphernalia was also identified. (RR vol 19, p 75, SX 223). Within that metal

box, Ranger Armstrong located rolling papers, a marijuana grinder, and a ceramic

smoking pipe. (RR vol 19, p 80).

James Watson, the uncle of the Appellant, testified that he had spent time

with Appellant at Appellant’s home in Lancaster on the morning of February 2,

2013 until Appellant left in a truck with other men. (RR vol 19, p 118). Watson

testified that the Appellant was upset that morning because he had been in an

argument with his girlfriend. (Id. at p 138). Both the Appellant and Mr. Watson

smoked marijuana before the Appellant went to the gun range with Chris Kyle and

Chad Littlefield. (Id. at p 139).



6

Late in the day on February 2, 2013, Appellant arrived at Watson’s

residence in Alvarado, Texas driving a large black truck unfamiliar to Watson.

(RR vol 19, p 146). While at Watson’s home, Appellant showed Mr. Watson a

new handgun he had acquired. (Id. at p 146). Appellant stated to Watson that he

was “driving a dead man’s truck.” (Id. at p 147).

Texas Ranger Danny Briley was assigned the task of lead investigator

concerning the murders of Littlefield and Kyle. (RR vol 20, p 96). Ranger Briley

travelled to the Lancaster police Department for the purpose of conducting an

interview with Appellant. (Id. at p 131). Appellant, after being advised of his

constitutional rights, agreed to speak with Ranger Briley concerning the events of

the day. (Id. at p 132). Ranger Briley asked Appellant questions during the

interview which were designed to ascertain whether he knew that his conduct was

wrong; Appellant acknowledged he was aware of the wrongful nature of his

conduct. (Id. at pp 136, 198, SX 331).

The Appellant ultimately confessed to killing Littlefield and Kyle. (RR

vol 20, p 136). He was able to accurately describe the make and caliber of one of

the firearms used to shoot Kyle and Littlefield, specifically the Sig Sauer 9mm

pistol. (Id. at p 195). Further, the timeline that he gave Ranger Briley was detailed

and accurate. (Id. at p 208). When asked, the Appellant also explained that neither

of the victims were aware that he was going to shoot them. (Id. at p 196). Indeed,



7

the Appellant stated that it was wrong to kill them, that he wished he had not done

it, that if he could apologize to the families he would, that if he could do it

differently he would, and that he was sorry for what he had done. (Id. at pp 136-

137). When asked whether he knew the difference between right and wrong, the

Appellant indicated that he did. (Id. at p 210).

Ranger Briley inquired into the Appellant’s drug usage on the day of the

killings. (RR vol 20, p 142). The defendant admitted that he smoked marijuana in

the morning before he left with Kyle and Littlefield, and that the marijuana could

have been “wet,” or possibly laced with formaldehyde. (Id. at pp 142, 201-202).

The boots that the Appellant was wearing on the day of the killings were

collected and submitted for forensic testing. (RR vol 20, p 15, SX 166). The

Appellant’s boots were determined to be stained by blood which was consistent

with the DNA profile of Chad Littlefield. (RR vol 21, pp 60, 61).

The State’s evidence supporting the elements of capital murder was not

controverted by Appellant. (See RR vol 25, p 204, Defendant’s Closing

Argument). In support of his affirmative defense of insanity, Appellant presented

the testimony of Dr. Mitchell Dunn, a forensic psychiatrist, to speak to the issue of

Appellant’s sanity at the time of the offense. (RR vol 23, p 59). Dr. Dunn testified

that he believed that the Appellant suffers from schizophrenia, a severe mental



8

disease or defect, and that Appellant was legally insane at the time of the offense.

(RR vol 23, p 115).

Dr. Randall Price, a forensic psychologist, testified during the State’s

rebuttal. (RR vol 24, p 11). After reviewing extensive records of Appellant’s

schooling, military service, Veterans Administration programs and treatment,

medical and psychiatric records, and audio-recorded interviews of Appellant by

The New Yorker , and other documents, Dr. Price conducted an in-person

evaluation of Appellant. (Id. at p 21). Dr. Price testified that although the

Appellant may have been exhibiting signs of psychosis during the commission of

the offense, these signs were attributable to the Appellant ingesting drugs and

alcohol. (Id. at p 30). Dr. Price testified that Appellant did not suffer from

schizophrenia or any other severe mental disease or defect. (Id. at p 32). Dr. Price

identified statements and actions of Appellant which supported his opinion that the

Appellant knew his conduct in murdering Kyle and Littlefield was wrong, and that

the Appellant was not legally insane at the time of the offense. (Id. at pp 30, 31).

Dr. Michael Arambula, a board certified forensic psychiatrist and then-

President of the Texas Medical Board, also testified in the State’s rebuttal

concerning Appellant’s state of mind at the time of the offense. (RR vol 24,

p 151). After reviewing medical and psychiatric records, military records, and

investigation reports, Dr. Arambula performed an in-person evaluation of



9

Appellant. Dr. Arambula concluded that the Appellant was not legally insane at

the time of the offense. (Id. at p163). Dr. Arambula based his opinion on the fact

that the Appellant was voluntarily intoxicated at the time of the offense, and that

the Appellant did not suffer from a severe mental disease or defect. (Id. at pp 163-

164). Dr. Arambula cited numerous and consistent notations that were made in the

Appellant’s medical records indicating that he had a long history of substance

abuse; indeed, drug screens performed in each of Appellant’s previous

hospitalizations consistently showed Appellant’s use of marijuana. (Id. at p166).

Dr. Arambula expressly disagreed with Dr. Dunn’s diagnosis of Appellant as

having schizophrenia, observing that Appellant’s thinking was inconsistent with

schizophrenia, and that Appellant lacked the physical manifestations of

schizophrenia. (Id. at p 207).

Dr. Arambula identified supporting statements and actions of Appellant

which suggested motivation for committing the murder distinct from symptoms of

mental illness, and showed that Appellant knew his conduct was wrong (illegal).

Appellant revealed to Dr. Arambula that he was offended because neither Kyle nor

Littlefield would speak to him. (RR vol 24, p 216). Appellant was particularly

angry at Littlefield because he was not actively participating with Appellant and

Kyle in shooting at the gun range. (Id. at pp 218-221). Appellant explained that he



10

shot Littlefield first, and then had to shoot Kyle because if he did not, Kyle would

then kill the Appellant for shooting his friend. (Id. at p 221).

While in pre-trial custody in the Erath County Jail, the Appellant

spontaneously stated to a jailer, “I shot them because they wouldn’t talk to me…,”

(RR vol 19, p 217). Also during Appellant’s pre-trial incarceration at the Erath

County Jail, Appellant participated in a series of telephone interviews with

Nicholas Schmidle, a reporter for The New Yorker magazine. (RR vol 21, p 105,

SX 359). Appellant explained in detail to Schmidle the events of the day of the

crime, his anger and frustration with Littlefield, the sequence of his killing

Littlefield and Kyle, the timing of his shooting Kyle immediately upon Kyle

discharging the last round from his sporting revolver, and how he “took care of

business . . . put in a fucking dip, and took off.” (SX 359).

Howard Ryan, an expert in forensic crime scene analysis, testified during the

State’s rebuttal concerning the sequence of actions and the positioning of Kyle and

Littlefield relative to Appellant when he shot them. (RR vol 25, pp 44-104). After

reviewing case-related materials that were provided to him, Mr. Ryan was able to

reconstruct the crime scene and determine possible scenarios for how the shooting

took place. (Id. at p 54). Mr. Ryan believed that Appellant first shot Littlefield

multiple times in the back using the Sig Sauer 9mm pistol, and that Littlefield fell

forward to his knees and hands onto the wooden deck. (Id. at pp 44-104).



11

Appellant then shot Kyle multiple times in back and side of the torso and neck

using the Springfield XD 45-caliber pistol. (Id.). Appellant then positioned

himself in front of Littlefield and shot him in the face and then the top of the head.

(Id.).

Additional evidence in the record directly relevant to Appellant’s points of

error are set out in the Argument and Authorities.

ARGUMENT AND AUTHORITIES

RESPONSE TO APPELLANT’S POINT NUMBER ONE

SUMMARY OF THE STATE’S ARGUMENT

The evidence in the record is legally and factually sufficient to support the

jury’s rejection of Appellant’s affirmative defense of insanity. The jury wasentitled to disbelieve expert testimony diagnosing Appellant with a severe

mental disease or defect, and the jury could conclude that Appellant knewhis conduct in murdering Littlefield and Kyle was wrong. Further, the

State’s evidence that Appellant did not suffer from a severe mental disease

or defect, Appellant was intoxicated at the time of the offense, and Appellant

knew that his conduct was wrong supports the jury’s rejection of the insanitydefense.

Appellant’s Point Number One appears to be a legal and/or factual

sufficiency issue relating to the second prong of the affirmative defense of

insanity; that is, that Appellant did not know is conduct was wrong. Appellant



12

appears to presume that he met his burden, as a matter of law, to establish that he

suffered from a severe mental disease or defect, and to establish a causal

relationship between that presumed mental disease or defect and his failure to

know that his conduct was wrong. Rather than bypass these core elements of the

affirmative defense of insanity, it is important to review the record as it relates to

each element that Appellant was burdened to prove. It is also important to review

the evidence in the record concerning Appellant’s voluntary intoxication in the

time leading up to the offense.

INSANITY

Penal Code § 8.01 provides: “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.” TEX. PENAL CODE

A NN. § 8.01 (West).

“There is a general presumption of sanity and the defendant bears the burden

of proving, by a preponderance of the evidence, his insanity at the time of the

conduct charged.” Pham v. State, 463 S.W.3d 660, 671 (Tex. App — Amarillo

2015, pet ref’d), quoting Martinez v. State , 867 S.W.2d 30, 33 (Tex. Crim. App.

1993). At trial, a defendant bears both the burden of production of evidence and

the burden of persuasion for his affirmative defense of insanity. See Bigby v.

State, 892 S.W.864, 875 (Tex. Crim. App. 1994). Whether the defense of insanity



13

was proved is a decision that lies within the province of the trier of fact, not only as

to the credibility of witnesses and the weight of the evidence, but also as to the

limits of the defense. See Id. at 878, quoting Graham v. State , 566 S.W.2d 941,

952 (Tex. Crim. App. 1978).

Thus, the question for deciding insanity becomes as follows: 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

that the conduct is morally justified? If the accused knows that his conduct is

“illegal” by societal standards, then he understands that his conduct is

wrong, even if, due to a mental disease or defect, he thinks his conduct ismorally justified.

Pham v. State, 463 S.W.3d at 671 (citations omitted). See also Ruffin v. State, 270

S.W.3d 586, 592 (Tex. Crim. App. 2008).

MATLOCK STANDARD OF R EVIEW FOR LEGAL SUFFICIENCY OF EVIDENCE IN

R EJECTION OF AFFIRMATIVE DEFENSE

The Court of Criminal Appeals has recently modified and clarified standards

of review for legal sufficiency of a jury’s rejection of an affirmative defense, and

its analysis is outcome determinative to this appeal. See Matlock v. State, 392

S.W.3d 662, 668-72 (Tex. Crim. App. 2013). In Matlock, the Court evaluated and

appropriated the standards promulgated by the Texas Supreme Court for use in

civil proceedings, recognizing that affirmative defenses in criminal cases impose a

preponderance-of-evidence burden of proof on the proponent of the defense. Id. at

669, citing City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005); Sterner v.

Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989); TEX. PENAL CODE A NN. § 2.04



14

(West). In reviewing the legal sufficiency of the evidence to support an adverse

finding on an affirmative defense, the court first looks for evidence, specifically,

“more than a mere scintilla,” that supports the jury’s implied finding adverse to the

defendant’s affirmative defense. Matlock, 392 S.W.3d at 669. The reviewing

court is to disregard all evidence supporting the affirmative defense “unless a

reasonable factfinder could not disregard that evidence.” Id. Even should the

reviewing court find no evidence supporting the jury’s rejection of the affirmative

defense, the court must still determine whether the defendant established, as a

matter of law, the elements of his affirmative defense. Id. If the record reveals

evidence supporting the defendant’s affirmative defense, “but that evidence was

subject to a credibility assessment and was evidence that a reasonable jury was

entitled to disbelieve, we will not consider that evidence in our matter-of-law

assessment.” Id. at 670. “Only if the appealing party establishes that the evidence

conclusively proves his affirmative defense and ‘that no reasonable jur y was free

to think otherwise,’ may the reviewing court conclude that the evidence is legally

insufficient to support the jury’s rejection of the defendant’s affirmative defense.”

Id.

MATLOCK STANDARD OF R EVIEW FOR FACTUAL SUFFICIENCY OF EVIDENCE IN

R EJECTION OF AFFIRMATIVE DEFENSE

In Matlock, the Court of Criminal Appeals also provided exhaustive

guidance for review of a criminal defendant’s factual-sufficiency challenge to a



15

jury’s adverse finding on his affirmative defense, reaffirming and explaining its

long-standing seminal case on factual sufficiency, Meraz v. State, 785 S.W.2d 146

(Tex. Crim. App. 1990); Matlock , 392 S.W.3d at 671. “In making a factual-

sufficiency claim, the defendant is asserting that, considering the entire body of

evidence, the jury’s adverse finding on his affirmative defense was so ‘against the

great weight and preponderance’ of that evidence to be manifestly unjust.’” Id. In

conducting a factual-sufficiency review in this context, the court views the entire

body of evidence in a neutral light, careful not to usurp the function of the trier of

fact by substituting the reviewing court’s assessment of the weight and credibility

of testimony. “Therefore, an appellate court may sustain a defendant’s factual-

sufficiency claim only if, after setting out the relevant evidence and explaining

precisely how the contrary evidence greatly outweighs the evidence supporting the

verdict, the court clearly states why the verdict is so much against the great weight

of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.”

Id. at 671.

Since the publication of Matlock, the Amarillo Court of Appeals has applied

its principles to factual sufficiency review of a jury’s rejection of the insanity

defense in Pham v. State, 463 S.W.3d at 672-73. The defendant in Pham

challenged the sufficiency of evidence supporting the jury’s implied finding that

the defendant had failed to prove, by a preponderance of the evidence, that, as a



16

result of his severe mental disease or defect, he did not know his conduct (murder)

was wrong. Id at 672. Like the Appellant in the instant case, Pham focused his

factual sufficiency challenge on the issue of his “ability, at the time of the murder,

to distinguish right from wrong.” Id. In affirming the conviction, the Amarillo

court noted that the State and the defendant offered experts with conflicting

conclusions as to whether the defendant, at the time of the offense, was able to

distinguish right from wrong. Id. The court also explained that a search of “the

record for evidence favorable to the jury’s rejection of the appellant’s claim of

insanity,” revealed certain behaviors “preceding the murder and immediately after

the murder” that suggested that, at the time of the murder, Pham was able to

distinguish right from wrong. Id. Based on the information found in the record,

and applying the Matlock standards of review, the Amarillo court rejected both the

legal sufficiency and factual sufficiency points of error. Id.

Before reaching the issue of whether Appellant knew that his conduct was

wrong at the time he murdered Kyle and Littlefield, it is important to explore the

conflicting evidence concerning the threshold question of whether Appellant

suffered from a severe mental disease or defect. This prong of the insanity

definition was vigorously disputed in trial. Dr. Mitchell Dunn, who testified in the

defendant’s case-in-chief and in surrebuttal, stated his opinion that Appellant, at

the time of the offense, suffered from a severe mental disease or defect,



17

specifically schizophrenia. (RR vol 23, pp 114-115). Dunn also stated his opinion

that, as a result of the schizophrenia, Appellant did not know his conduct was

wrong when he killed Littlefield and Kyle. (Id.) Dunn based his opinion

significantly on an in-person evaluation he performed with Appellant on April 15,

2014. (Id. at p. 70). It is notable, too, that Dunn based his diagnosis significantly

on Appellant’s words, demeanor, and conduct in the videotaped interview of

Appellant by Ranger Briley on the night of the crime1. (Id. at p 118; see SX 1 and

SX 331).

Prior to presenting rebuttal evidence on the insanity issue, the State

vigorously challenged the credibility of Dunn’s findings and opinions through

cross examination. The State confronted Dunn with inconsistencies in accounts

Appellant had provided to Dunn and others about the events and activities of the

day of the crime, which inconsistencies Dunn acknowledged. Specifically, Dunn

acknowledged that, during his in-person evaluation of Appellant, Appellant had

lied to Dunn about having used marijuana the morning of the murder. (RR vol 23,

p 158). Dunn’s report did not account for use of marijuana on the morning of the

murder because Appellant did not tell him about his use. (Id. at pp 169-170).

Further, Dunn acknowledged that the descriptions of Littlefield, Kyle, and

1 The videotaped interview of Routh by Briley is the subject of Appellant’s Issue Number Two,

wherein he asserts it was error for the trial court to deny Appellant’s motion to suppress the

interview.



18

Appellant’s coworkers appearing as “pig hybrids,” “pig man,” “pig assassins” were

not included in Appellant’s detailed description of the events and actions

surrounding the crime made to Nicholas Schmidle, a reporter for The New Yorker ,

in a recorded jail call from May 31, 2014 (six weeks after Dunn’s evaluation). (RR

vol 25, p 155, SX 359).

Dunn also acknowledged that Appellant knew that what he was doing was

something that would be viewed as illegal and that the police would come after

him. (RR vol 23, p 176). Dunn states that, in the immediate moments after the

murder, “There’s no question in his [Appellant’s] mind that the police were going

to come after him.” (Id.) Dunn confirmed that Appellant fled the scene

immediately after the crime. (Id. at p 177). Dunn agreed that the evidence

established that, prior to leaving the scene of the murder, Appellant reloaded the

nine-millimeter pistol he used in the crime. (Id. at p. 178). Appellant fled from

police whom he encountered at Appellant’s residence in Lancaster. (Id. at p 184).

In the same interview with Ranger Briley that Dunn used so extensively in forming

his opinion as to Appellant’s sanity, Appellant agreed with Briley that what

Appellant did was wrong, and expressed remorse. (Id. at p 208). All of this

information concerning Appellant’s actions and statements following the crime

was acknowledged by Dunn in addition to having been presented through other

witnesses.



19

Applying Matlock’s standards for reviewing legal sufficiency to the

keystone of Appellant’s defense, that is, Dr. Dunn’s expert testimony, it is apparent

that, even though Dr. Dunn articulated his opinion supporting each element of the

insanity defense, a reasonable trier of fact could asses the credibility of Dr. Dunn’s

testimony and was entitled to disbelieve his findings. If the record reveals

evidence supporting the defendant’s affirmative defense, “but that evidence was

subject to a credibility assessment and was evidence that a reasonable jury was

entitled to disbelieve, we will not consider that evidence in our matter-of-law

assessment.” Matlock, 392 S.W.3d at 670. Accordingly, even were the State to

have presented no rebuttal evidence, based on the record as it stood when the

defense concluded its case-in-chief, the jury could question the credibility of the

defense evidence and was entitled to disbelieve Dr. Dunn’s conclusion that

Appellant did not know his conduct was wrong.

Indeed, the State did present evidence in rebuttal to Appellant’s affirmative

defense. Randall Price, Ph.D., a well-qualified forensic psychologist, performed a

thorough review of military records, medical and psychiatric records, offense

reports, and statements made by Appellant prior to trial. (R.R. vol 24, p 20). Price

also performed a 4 1/2-hour, in-person evaluation of Appellant on December 15,

2014. Dr. Price testified that Appellant “does not meet the definition of insanity in

the state of Texas . . .” (Id. at p 30). At the time of the offense, Appellant was



20

experiencing symptoms of a mental disorder or disease as a result of drugs and

alcohol. (Id.) Directly addressing the testimony of Dr. Dunn, Dr. Price testified:

I do not think, considering all the information, that Mr. Routh . . . wassuffering from schizophrenia at the time of the offense, even though I think

that he was experiencing some psychotic symptoms, I think they were due to

the drugs – to the marijuana . . . and that . . . I do not agree with his opinionabout the wrongfulness prong of this criteria in Texas, that I have theopinion that Mr. Routh knew what he did was wrong.” (Id. at p. 32).

Dr. Price further clarified his findings:

There were some other factors that – that occurred in the day or two preceding this that I also think added to this offense occurring, but those are

the disorders that I think form this constellation that was involved in this,and that the most serious of which was the cannabis-induced psychotic

symptoms, and that was due to the voluntary ingestion of cannabis. (Id. at56).

Dr. Price also considered a recorded interview Appellant gave to Nicholas

Schmidle of The New Yorker thirteen days into his pretrial incarceration following

the offense. (SX 359). Dr. Price explained that the interview revealed that “his

speech, his underlying thinking did not seem disjointed, it seemed logical, goal

directed, responsive to the questions or the statements from the reporter . . . he

sounded like he was not experiencing psychotic symptoms . . .” (RR vol 24, p

64). The psychotic symptoms that Appellant experienced close to the offense, due

to the cannabis, were gone or lessening. “That would be consistent with cannabis-

induced psychotic symptoms.” (Id.)



21

Dr. Price expressed skepticism about Appellant’s descriptions of “pig men,”

“hybrid pigs,” and other pig references made in Appellant’s meeting with Dr.

Dunn months after the crime. Dr. Price’s review of Appellant’s history revealed

that his first detailed account of the crime which included “pig men” or “hybrid pig

men” was in April 2013, when Dr. Dunn first evaluated Appellant. (RR vol 24, p

143). Dr. Price noted that jail telephone recordings revealed that, in the days prior

to first meeting Dr. Dunn in April 2013, Appellant had become fascinated with a

cable television show Boss Hog in which the main character was “Pig Man.” (RR

vol 24, p 35). Appellant had also revealed in conversations with friends and family

from the jail that his favorite show was Seinfeld . (Id. at p 34). One of the

notorious episodes of Seinfeld involved a comedic plot in which Cosmo Kramer

believed that he discovered a half pig, half man created through government DNA

research. (Id.). Dr. Price noted that, in Appellant’s detailed account to Dr. Price of

the days leading up to the crime, the murder, and the af termath, “No pigs came up

at all.” (Id. at p 88).

Dr. Price also explained that Appellant had a long history of exaggerating

symptoms to the Veterans Administration in order to obtain financial benefits.

(RR vol 24, p 69). In forms completed by Appellant and submitted to the V.A.,

Appellant claimed problems with “every body system, including erectile problems,

digestive problems, muscle problems, every single one was endorsed . . .” (Id.)



22

Despite Appellant having been approved for benefits from the V.A. based on Post

Traumatic Stress Disorder (P.T.S.D.), the singular finding which was common

among Dr. Dunn, Dr. Price, and Dr. Arambula was that Appellant did not suffer

from P.T.S.D.2 (RR vol 23, p 191-92, vol 24, pp 72-73, 188). Dr. Dunn

acknowledged that Appellant’s history, by record and by self -report, revealed no

significant trauma from military service or otherwise which would cause P.T.S.D.

(RR vol 23, p 192).

Having concluded that Appellant did not suffer from a severe mental disease

or defect, and that Appellant’s symptoms before, during, and immediately

following the crime were cannabis-induced, Dr. Price also evaluated whether

Appellant knew his conduct was wrong (illegal). Dr. Price testified that Appellant

had explained in the evaluation that, immediately following the crime, Appellant

felt “instantly remorseful.” (RR vol 24, p 94). In explaining his opinion that

Appellant knew his conduct was wrong, Price attached significance to Appellant’s

flight from the scene and attempts to avoid apprehension in Lancaster. (Id. at p

95).

The State also presented testimony of Michael Arambula, Pharm.D, M.D.,

which controverted defensive evidence as to all the elements of the insanity

2 Dr. Price confirmed that P.T.S.D. is an anxiety disorder that is not a severe mental disease or

defect which would form the basis for insanity under the Penal Code. (RR vol 24, p 73).



23

affirmative defense. Dr. Arambula, who holds a terminal degree in pharmacy, a

medical degree and license, is Board Certified in general psychiatry and forensic

psychiatry, and served as President of the Texas Medical Board, performed an

evaluation of Appellant on January 30, 2015. (R.R. vol 24, pp 151-152, 179). In

preparation for the evaluation, Dr. Arambula reviewed extensive records of the jail,

psychiatric hospitals, the Medical Examiner’s reports, the Veterans’

Administration, military service reports of Appellant, and law enforcement reports.

(Id. at p 161).

Dr. Arambula concluded that Appellant was not insane at the time of the

offense “because he was intoxicated at the time.” (RR vol 24, p 163). Dr.

Arambula further concluded that Appellant did not have a severe mental disease or

defect on the date of the offense. (Id. at p 164). Dr. Arambula expressly disagreed

with Dr. Dunn’s findings, concluding that Appellant did not have schizophrenia.

(Id.). Appellant’s suspiciousness of co-workers and others did not have the level

of content associated with schizophrenia. (Id. at p. 203). Dr. Arambula explained,

From the get-go, he has been treated as if he has a mood disorder, and that – and by looking at the pharmacologic regimen – the medication regimen, he’s

been treated as if he has bipolar on this or even depression, and that’s notschizophrenia.

(Id. at p. 204). Dr. Arambula also noted that Appellant lacked the physical

manifestations of schizophrenia. (Id.).



24

Dr. Arambula explained that Appellant’s medical and psychiatric records

show a history of mood disorders, not pure mental illness, with a typical diagnosis

of “Psychosis NOS”. (Id. at p 165). Psychosis NOS means psychotic symptoms

which are not purely from mental illness; instead, “there’s something else involved

. . . usually it’s drugs or alcohol, and they coexist at the same time.” (Id. at p 166).

In Appellant’s specific background, Dr. Arambula noted that in all drug tests

administered through Appellant’s previous hospitalizations, Appellant was positive

for cannabis. (Id.). In fact, one hospital note referenced a self-report by Appellant

of use of “formaldehyde laced marijuana”—or “wet marijuana.” (Id. at p p 167-

168). Based on his evaluation of Appellant and his history, Dr. Arambula

concluded that Appellant was a “heavy user” of marijuana. (Id. at p 170). Dr.

Arambula provided a detailed explanation of the acute and long-term effects of

chronic use of marijuana, including senses of paranoia, suspiciousness, and even

non-psychotic delusional beliefs. (Id. at pp 170-78). The behaviors and

perceptions of Appellant surrounding the time of the offense were more consistent

with cannabis-based intoxication rather than a severe mental illness such as

schizophrenia. (RR vol 24, p 201).

Dr. Arambula also explained that Appellant’s manner of thinking and acting

before, during, and after killing Kyle and Littlefield supported both the findings

that Appellant did not experience a severe mental disease or defect and that



25

Appellant knew his conduct was wrong. In Arambula’s evaluation, Appellant

explained that if Appellant shot Chad only, then Chris would shoot Appellant, “and

I didn’t have any issues with Chris.” Appellant only had issues with Chad, but

since Chris would have probably shot Appellant after he shot Chris’ friend, Chad,

then Appellant had to shoot Chris. Dr. Arambula noted, “I know that’s terrible, but

it makes sense and – you know, that’s not psychotic thinking.” (RR vol 24, p 221).

Appellant expressed to Dr. Arambula anger concerning Chad Littlefield,

expressing frustration that, upon their first meeting the day of the murder,

Littlefield had not shaken Appellant’s hand. (RR vol 24, p 256). Appellant

spontaneously revealed to a jailer weeks after the murder that he killed Littlefield

and Kyle because they would not talk to him. (RR vol 19, pp 216-17). In The New

Yorker interview with Nicholas Schmidle, Appellant expressed targeted hostility

toward Chad Littlefield in recounting the events of the day; “I mean, why the fuck

are you even here?”; “He was just watching.” “He watched it. . . he watched it.”

(SX 359). Though murder is an extreme expression of anger or any other normal

human emotion, Appellant’s anger with Littlefield and Kyle, even months after the

murder, supports an inference that Appellant killed Littlefield and Kyle because of

anger, rather than a severe mental disease or defect.

Dr. Arambula also noted instances of Appellant’s words and conduct which

indicated Appellant was malingering or exaggerating the effects of non-severe



26

mood disorders. Dr. Arambula noted that in Appellant’s multiple-hour visit with

Dr. Arambula, Appellant did not mention the word “pig” a single time. (RR vol

24, pp 195, 263). Dr. Arambula explained that Appellant’s use of the pig theme

was suspicious “because of its inconsistency,” particularly with what Appellant

told Arambula during a three-and-one-half-hour evaluation. (Id. at p 264). Dr.

Arambula also explained that Appellant’s claim asserted after the crime that he had

feared Kyle and Littlefield was inconsistent with Appellant’s self -reported actions

at the gun range; specifically, in participating in sport-shooting at the range,

Appellant had gone “down range” with his back to Kyle and Littlefield. (Id.).

Immediately after his apprehension, Appellant’s unusual behavior in the Lancaster

Police patrol car, in which he exclaimed a self-diagnosis, stating “I feel

schizophrenic” and “I feel insane”, was self-serving. Dr. Arambula explained,

I was a bit troubled by that . . . videotape of him saying maybe he had

schizophrenia or maybe he was insane, so I – I perceived that clinically as anexample of what’s called secondary gain, i.e., he was trying to look out forhimself.

(Id. at p 208).

Having determined that Appellant was intoxicated and that Appellant did not

suffer from a severe mental disease or defect, Dr. Arambula nonetheless evaluated

whether Appellant knew his conduct in killing Kyle and Littlefield was wrong

(illegal). Dr. Arambula listed actions and statements of Appellant indicating his

understanding that what he did was wrong. Appellant immediately thought he had



27

done something “terrible.” Appellant fled the crime scene in Chris Kyle’s truck.

Appellant went to his uncle’s house and then his sister’s house, telling his sister “I

murdered two men.” Dr. Arambula noted, “and there’s a big difference to me, as a

forensic clinician, between killing somebody and murdering them . . . murdering is

full intent, knowledge, full knowledge as opposed to maybe an accident.”

Appellant went to Taco Bell, a last meal before his planned flight to Oklahoma,

supporting an inference that Appellant knew he was in trouble. Appellant intended

to flee to Oklahoma, where he believed he could avoid arrest. Appellant attempted

to evade the police in Lancaster, heading north on I-35 toward Oklahoma. When

the vehicle Appellant was driving finally came to a stop, he immediately came out

with his hands up and he got on the ground. Dr. Arambula testified that these

actions all indicated “a knowledge that he knew what he did was wrong.” (RR vol

24, pp 224-25).

The State placed in dispute, through evidence a jury was entitled to believe

and could find credible, each element of Appellant’s aff irmative defense of

insanity. Applying the Matlock standard of review for factual sufficiency of the

jury’s rejection of Appellant’s affirmative defense, the verdict was not so “against

the great weight and preponderance” of the entire body of evidence as to be

“manifestly unjust, conscience-shocking, or clearly biased.” Matlock, 392 S.W.3d

at 671.



28



29

RESPONSE TO APPELLANT’S POINT NUMBER TWO


The trial court did not err in admitting the statements of Appellant made in

his custodial interrogation by Ranger Briley. The evidence supports the trial

court’s findings that the interview was carried out in compliance with Code

of Criminal Procedure art. 38.22. Appellant’s waiver of his right to remain

silent and to counsel was voluntary and free from coercion. In addition, if

the trial court erred in admitting the statements, evidence of Appellant’s

guilt was so overwhelming, independent of the statements, that such error

did not substantially affect the jury’s finding of guilt.

Appellant challenges the admission into evidence of a custodial videotaped

interview of Appellant taken by Ranger Briley late in the night following the

murder of Kyle and Littlefield. Following his nine-page verbatim excerpt of the

Reporter’s Record of the suppression hearing, Appellant makes the assertion,

unsupported by explanation, that the case should be reversed due to error in the

trial court’s denial of his motion to suppress.

TRIAL COURT’S FINDINGS PURSUANT TO ARTICLE 38.22

Following an evidentiary pretrial hearing on Appellant’s motion to suppress

held on March 7, 2014, the trial court took the matter under advisement. The trial

court deferred ruling on the motion pending its review of the video recording of the

interview which was introduced during the hearing. (RR vol 5, p 57; SX 1). On

May 28, 2014, the trial court’s Sealed Order Denying Motion to Suppress was



30

entered. (CR 746). Included with the trial court’s order were findings that the

recorded interview of Appellant, which was custodial, comported with the

requirements of TEX. CODE OF CRIMINAL PRO. A NN. art 38.22, § 3 (West). The

trial court found that after being informed and warned pursuant to the familiar legal

standard in Miranda v. Arizona, which he understood, the defendant voluntarily

and knowingly waived his rights and made an oral statement. Specifically, the trial

court cited a number of non-exclusive factors forming the totality of the

circumstances, which indicated that Appellant voluntarily waived his rights:

The Defendant’s apparent intelligence, his ability to articulate his thoughts,

the information within the knowledge of the Defendant as to the nature ofthe crime and the investigation surrounding the crime, the knowledge on the

part of the Defendant as to his right to counsel and his right to avail himselfof counsel as well as his right to continue or discontinue the interview, the

method of interrogation employed by Ranger Briley, including the duration,location, and technique of questioning.

(C.R. 746). The trial court found that “no evidence, credible or otherwise, was

presented that the Defendant was unduly frightened, coerced, or otherwise

improperly induced into providing his statement.” (Id.); (See also trial court’s

Sealed Order Denying Motion to Suppress included in the Appendix to this brief).

Appellant makes the bare assertion in his Point Number Two, that, at the

time of Appellant’s interview by Briley on the night of the murder, “Mr. Routh

was in a psychotic state.” Indeed, the cross examination of Ranger Briley in the



31

pretrial hearing on Appellant’s motion to suppress was a preview of Appellant’s

insanity defense urged at trial. However, there is nothing in the record of the

pretrial hearing concerning a diagnosis of a severe mental disease or defect. (RR

vol 5). Nonetheless, the State will address the identifiable gravamen of

Appellant’s issue with Briley’s interview: that Appellant was mentally ill; ergo,

his participation in the interview was not voluntary.

A bifurcated standard of review is applied to a trial court’s denial of a

motion to suppress. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

A reviewing court is to afford almost total deference to the trial court’s

determination of historical facts supported by the record, especially when the trial

court’s findings are based on its evaluation of credibility and demeanor. Id.;

Umana v. State, 447 S.W.3d 346, 350 (Tex. App. — Houston (14th) 2014, pet ref’d).

The appellate court reviews de novo those questions not turning on credibility and

demeanor. Umana, 447 S.W.3d at 351. Voluntariness is determined by looking at

the totality of the circumstances. Id.; See Griffin v. State, 765 S.W.2d 422, 427

(Tex. Crim. App. 1989). The totality of the circumstances includes the defendant’s

“experience, background, and conduct,” as well as other characteristics of the

accused. Umana, 447 S.W.3d at 351.

Texas courts have long upheld as voluntary the inculpatory statements of

defendants suffering from mental illness and impairments. See Delao v. State, 235



32

S.W.3d 235, 240 (Tex. Crim. App. 2007), citing case below, Delao v. State, No.

10-05-00323-CR, 2006 WL 3317718 (Tex. App. — Waco 2006, aff’d). A

reviewing court is to apply the same totality-of-the-circumstances standard to the

voluntariness of a statement by a mentally retarded or mentally ill person as that

standard applied to adults and juveniles who are not mentally ill. Delao, 235

S.W.3d at 239. “An accused’s mentality is but one factor among many to consider

when evaluating the voluntariness of a confession.” Id. at 240.

Ranger Briley was the sole witness who testified in the pretrial hearing on

Appellant’s motion to suppress. Ranger Briley interviewed Appellant late in the

night of February 2, 2013, following Appellant’s flight from Lancaster to Dallas.

(RR vol 5, p 8). The interview was recorded, and prior to questioning, Briley

advised Appellant of the rights enumerated in Article 38.22 and Miranda. (Id. at

pp 16, 26, 27). Briley asked Appellant if he understood his rights; Appellant

responded by nodding his head in an up and down fashion. (Id. at p 16). When

Briley attempted to confirm Appellant’s response verbally, Appellant continued

talking and began to answer questions posed by Briley. (Id. at pp 16-17. See SX

1).

Ranger Briley testified that he in no way threatened the Appellant, nor was

the Appellant fearful of him at any time during the course of the interview. (RR

vol 5, p 25). Further, Ranger Briley testified that he believed that any statements



33

made by the Appellant were voluntary, and that the Appellant acknowledged that

he understood his rights by nodding. (RR vol 5, pp 25, 28, 31). The Appellant,

during the course of the interview, was able to describe whom he shot first, the

make and caliber of the firearm he used, and answered other specific questions

posed to him by Ranger Briley. (RR vol 5, p 46). At no point did the Appellant

assert his right to remain silent, or his right to counsel. (RR vol 5, p 46) The

Appellant did, however, have the presence of mind to request that his handcuffs be

removed and to see his parents. (RR vol 5, pp 46-47). Ranger Briley testified that

he believed some of Appellant’s responses to his questions were consistent with

the Appellant trying to avoid speaking about the actual crime. (RR vol 5, p 36).

Appellant notes in his brief that, in response to Briley’s request that

Appellant speak with him, Appellant “never stated he would.” Silence is not,

standing alone, sufficient to create a presumption of waiver of Miranda rights.

Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). However, a waiver

need not assume a particular form, and a “waiver can be clearly inferred from the

actions and words of the person interrogated.” Joseph, 309 S.W.3d at 25, quoting

North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L.Ed.2d 286

(1979). If the totality of the circumstances surrounding the interrogation show an

“uncoerced choice and the requisite level of comprehension,” a court may find a

waiver of Miranda rights. Joseph, 309 S.W.3d at 25.



34

In this case, Ranger Briley testified that Appellant nodded affirmatively in

response to the question of whether he understood his rights. (RR vol 5, p 25).

Appellant then continued to speak with Briley. (Id. at p 46) As the trial court

found, there was no evidence of coercion or improper inducement. (CR 746).

Appellant, in argument to the trial court, did not claim that Ranger Briley did

anything improper in terms of how Ranger Briley spoke to the Appellant during

the course of the interview. (RR vol 5, p 51). In addition, Appellant did not claim

that Ranger Briley mistreated him in any way, or that he was improperly

admonished of his constitutional rights. (RR vol 5, pp 53, 51).

The recent case opinion of the Fourteenth Court of Appeals in Umana v.

State is instructive. In Umana, as in this case, there was a video interview of the

accused in which he makes unusual statements about hearing voices inside his

mind. Umana, 447 S.W.3d at 357. It is notable that, unlike Routh, Umana was

subsequently found incompetent, which the court of appeals found to be merely a

relevant, not a dispositive, factor in determining whether the defendant’s

participation in the interrogation was voluntary3. Id. At the beginning of the

interrogation, Umana was informed of his rights and asked if he understood those

3 In response to Appellant’s Point Number One, the State has referenced significant evidence in

the record placing in dispute whether Routh suffered from a severe mental disease or defect atall. Indeed, if a subsequent finding of incompetency is a relevant, though not dispositive, factor

in assessing the voluntariness of a custodial interview, surely a subsequent rejection of an

insanity defense would also be a relevant, if not dispositive, factor as well.



35

rights, to which he responded, “Uh-huh.” Id. Questioning ensued with no specific

inquiry or express waiver by Umana regarding his rights. Id.

The Fourteenth Court of Appeals noted that the video-taped statement of

Umana was evidence of his state of mind, and that the trial court had been able to

view the video and assess his state of mind, together with testimony from the

interrogating police officer. Umana, 447 S.W.3d at 356. In affirming the trial

court’s admission of the recorded interview, the Court of Appeals explained that

the defendant was read his rights and was asked whether he understood his rights.

Appellant nodded his head up and down and stated, “Uh-huh.” The record showed

warnings were given and appellant affirmatively indicated that he understood those

warnings. The recording of the interview showed that appellant did not invoke his

rights at any time during the interrogation. “We therefore conclude the totality of

the circumstances supports the trial court’s reliance upon appellant’s implied

waiver of his rights.” Id.

The testimony and evidence support the trial court’s denial of Appellant’s

motion to suppress. Ranger Briley’s testimony was judged credible by the trial

court, and such findings must be granted almost total deference. See Guzman, 955

S.W.2d at 89. Further, a review of the video recording of the interview confirms

the perceptions and account of Ranger Briley. (SX 1).



36

EVIDENCE OF APPELLANT’S GUILT WAS OVERWHELMING, INDEPENDENT OF

R ANGER BRILEY’S INTERVIEW

Were there error in the trial court’s denial of Appellant’s motion to suppress

and admission of Appellant’s recorded statement to Briley, such constitutional

error 4 would be subject to harmless error review pursuant to Rule of Appellate

Procedure 44.2 (a). The conviction should not be reversed, even for constitutional

error, if the failure to suppress Appellant’s statement did not contribute to his

adjudication of guilt. See Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App.

2003); Jimenez v. State, 446 S.W.3d 544, 548 (Tex. App. — Houston[1st Dist] 2014,

no pet.). A reviewing court must “judge the magnitude of the error in light of the

evidence as a whole to determine the degree of prejudice to the defendant resulting

from that error.” Jones, 119 S.W.3d at 777.

Inadmissible evidence can be rendered harmless if other evidence of the

defendant’s guilt is overwhelming. Akins v. State, 202 S.W.3d 879, 891-92 (Tex.

App. — Fort Worth 2006, pet ref’d). Improper admission of a defendant’s

statement “would be deemed harmless if the other evidence of the defendant’s guilt

is overwhelming, independent of the erroneously admitted evidence. Anderson v.

State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986).

4 The State acknowledges that the notice and voluntariness provisions of Code of Criminal

Procedure art. 38.22 implicate Miranda and constitutional protections described therein. See

Dickerson v. United States, 530 U.S. 428, 439-40, 120 S. Ct. 2326, 2333-34, 147 L.Ed.2d 405

(2000); Akins v. State, 202 S.W.3d 879, 891-92 (Tex. App. — Fort Worth 2006).



37

The evidence that Appellant murdered Kyle and Littlefield, independent of

Ranger Briley’s interview, is overwhelming. A short time after Kyle and

Littlefield were found mortally wounded at the gun range in Erath County,

Appellant arrived at the home of his uncle, James Watson, in Alvarado, Texas,

driving Kyle’s black truck. (RR vol 19, p 146). Appellant showed Watson a

handgun Watson had never seen before, and Appellant stated that he was “driving

a dead man’s truck.” (RR vol 19, pp 146-147). Soon thereafter, Appellant arrived

at the home of his sister, Laura Blevins, in Midlothian, Texas, driving a large black

truck. Within minutes of his arrival, Blevins contacted 911 emergency dispatch

and explained that Appellant told her that he had “committed a murder.” (RR vol

17, p 286; SX 230). Based on information provided by Blevins, law enforcement

went to Appellant’s home in Lancaster, Texas. (RR vol 18, p 88). Shortly

thereafter, Appellant arrived at his home driving Kyle’s black truck. (Id. at 96).

After protracted efforts by Lancaster police to persuade Appellant to exit Kyle’s

truck, Appellant fled in Kyle’s tr uck and led police in a high-speed pursuit through

city streets and onto Interstate Highway 35. (RR vol 18, pp 99-103; SX 233; SX

232; SX 234). Having been damaged in a courageous collision effected by a

Lancaster police officer, the truck failed and came to a stop on IH-35 heading

north. (RR vol 18, 103; SX 232, SX 234). In the truck, verified to belong to Chris

Kyle, was located the Sig Sauer P226 MK25 (Navy SEAL Edition) which was



38

later confirmed to be the firearm used to shoot Chad Littlefield. (RR vol 19, p

194). Following Appellant’s apprehension by police, Appellant’s boots were

collected. (RR vol 20, p 15; SX 166). DNA analysis determined that blood stains

on Appellant’s boots were consistent with the DNA profile of Chad Littlefield.

(RR 21, pp 60-61).

On May 31, 2013, almost four months after the date of offense, Appellant

participated in a jail-house telephone interview with The New Yorker

reporter/writer Nicholas Schmidle. (RR vol 21, p 107; SX 332). A recording of

the interview was published for the jury during the State’s case-in-chief wherein

Appellant explained details of the events before, during, and following his killing

of Littlefield and Kyle. (Id.). Appellant described becoming angry with Chad

Littlefield, shooting Chad Littlefield first, then Chris Kyle; Appellant “took care of

business,” then “put in a fucking dip and took off.” (Id.).

In June of 2013, six months after the murder, Gene Cole, a jailer assisting in

routine inmate range of motion exercises, heard Appellant make the following

spontaneous statements:



39

I shot them because they wouldn’t talk to me. I was just riding in the back

seat of the truck and nobody would talk to me. They were just taking me tothe range, so I shot them. I feel bad about it, but they wouldn’t talk to me.I’m sure they’ve forgiven me.

(RR vol 19, pp 216-17).

Underscoring that the contest in the case below was not about whether the

State established the elements of capital murder, Appellant, in closing argument,

opined that the State’s burden of proof was not as important in this case because

“we’ve pretty much conceded, it’s pretty obvious that . . . Eddie Routh shot these

two men.” (RR vol 25, p 205).

APPELLANT’S R ELIANCE ON BRILEY INTERVIEW IN ATTEMPTING TO PROVE

INSANITY

The primary issue to be resolved by the jury in this case was not whether

Appellant committed the acts resulting in the deaths of Kyle and Littlefield; the

evidence of Appellant’s guilt presented in the State’s case-in-chief was

overwhelming without consideration of Appellant’s interview by Ranger Briley.

Indeed, Appellant’s trial counsel framed the narrowing of the issues in his opening

statement: “ . . . Eddie’s psychosis is kicked in, and the tragedy happens and he

takes their lives . . .” (RR vol 17, p 38).

Appellant previewed his reliance on the Briley interview in opening

statement: “Eddie is taken to the Lancaster Police Department, and at about 11:30

that night Ranger Danny Briley, from the Texas Rangers, who is the lead detective



40

in this case, comes in to interview him, and you will see that interview, I anticipate,

and you’ll see Eddie Routh’s demeanor, and you’ll see his answers to seemingly

straightforward questions, and you’ll hear the delusional responses, the psychotic

responses that he gives to Ranger Briley.” (RR vol 17, p 38).

The ultimate issue before the jury was Appellant’s affirmative defense of

insanity. This is significant because, in setting up the defense during the State’s

case-in-chief, and during Appellant’s presentation of evidence attempting to meet

his burden, Appellant relied significantly on Ranger Briley’s interview. The

interview was conducted in close temporal proximity to the crime, and Appellant’s

demeanor and words were a focus of Appellant’s efforts in trial to support his

theory that he suffered from a severe mental disease or defect. The defense

psychiatrist, Dr. Mitchell Dunn, testified that he relied on Ranger Briley’s

interview as a significant part of his evaluation of Appellant’s mental condition.

(RR vol 23, p 188). Dunn explained that the Briley interview was important;

Because it was very supportive of the idea that . . . you know, one, he’d felt

paranoid about these individuals, that he thought that he had to kill them or

he would be killed, and then he had a mental illness at the time, his . . . thethings that he said – the – the marked thought disorganization, the lack of

emotional response, the . . . numerous bizarre statements about his thinkingat the time.

(RR vol 23, p 188).



41

Even were there error in the trial court’s admission of Briley’s interview of

Appellant, judging “the magnitude of the error in light of the evidence as a whole,”

including Appellant’s use of the statement in support of his affirmative defense,

supports a conclusion that Appellant was not harmed by the trial court’s ruling.

RESPONSE TO APPELLANT’S POINT NUMBER THR EE:


If there were error or potential harm to Appellant as a result of introduction

of a glass vial which was a by-product of lab testing, such harm waseffectively cured by 1) announcement by the State’s attorney that the vial

was a product of lab testing and was not attributable to Appellant; 2)testimony presented by the State explaining in detail the origin and utility of

the vial; 3) withdrawal of the vial from evidence; and 4) the trial court’sinstruction to the jury to disregard the vial and testimony which might leadto an incorrect inference that the vial was drug paraphernalia.

In his Point Number Three, Appellant asserts that the trial court erred in

denying his motion for mistrial which was urged after the State mistakenly

introduced a glass vial. The glass vial was located inside a metal box originally

found in Appellant’s house and admitted into evidence. The metal box and its

contents had been discovered in Appellant’s bedroom the night of the crime and

seized by law enforcement. The metal box contained drug paraphernalia and a

small amount of marijuana and marijuana residue. After Ranger Armstrong, the



42

sponsoring witness, had testified, the State discovered that the glass vial was

packaged inside the metal box as part of Texas Department of Public Safety lab

testing procedures. The glass vial bore no markings that would identify it as the

property of the lab or having been placed there by the lab. However, as soon as

this mistake was discovered, the State explained the origin of the vial to the court,

the defense attorneys, and thoroughly explained it to the jury. The State asked to

withdraw the vial from evidence, and requested that the jury be instructed to

disregard the vial and any testimony related to the vial.

A trial court’s denial of a motion for mistrial is reviewed under an abuse of

discretion standard. Hawkins v. State , 135 S.W.3d 72, 76 – 77 (Tex. Crim. App.

2004); Otero v. State, No. 11-05-00224-CR, 2007 WL 1500884, at *3 (Tex.

App. — Eastland 2007, no pet.) (not designated for publication).

Appellant’s motion for mistrial was based on the State’s introduction,

without objection from the Appellant, of a glass vial contained in a metal box in

which marijuana and drug paraphernalia were discovered in Appellant’s home by

law enforcement the night of the murders. (RR vol 21, p 11). Appellant complains

that measures taken by the State’s attorney and the trial court to clarify the origin

of the vial and remove it from evidence failed to cure any theoretical harm to

Appellant. Appellant, in his brief, alludes to a comment made by the prosecutor



43

(District Attorney Nash) concerning the presence of the vial in the metal box

(SX 223).

In his brief, Appellant does not specify the harm done to Appellant. To the

trial court, Appellant presented argument in support of an oral motion for mistrial

on day five of the nine-day jury trial. The motion was urged following the State’s

unsolicited announcement to the trial court that the vial was a tool for the

preservation of evidence and was inserted into the metal box by lab personnel

following testing at the Garland DPS Crime Lab. (RR vol 21, pp 7-9). Counsel for

Appellant ar gued that during a “big discussion about all the drug paraphernalia”

the passing question and answer about the vial “leaves an inference with the jury

that my client has some type of controlled substance in his home . . . there’s

testimony there could have been marijuana in there, but there’s – there’s an

inference that it could have been methamphetamine or some other type of

controlled substance, so I would suggest to the court that there’s no . . . anything

you can do regarding – an instruction to the jury to – to cure the harm that my

client received . . .” (RR. vol 21, pp 10-11).

PROCEDURAL SEQUENCE R ELATING TO THE VIAL

Appellant provides in his argument and authorities a verbatim recitation of

excerpts of the Reporter’s Record relating to the vial. In summary, during

testimony of Ranger Armstrong concerning his participation in the execution of a



44

search warrant on Appellant’s home on February 2, 2013 (the night of the murders

of Littlefield and Kyle), Ranger Armstrong described seizing a metal box

containing drug paraphernalia and suspected marijuana in Appellant’s bedroom.

(RR vol 19, p 75, SX 223). Photographs of the metal box depicting its location in

Appellant’s bedroom and the specific contents of the metal box were produced and

admitted without objection, following a detailed proffer outside the presence of the

jury. (RR vol 19, pp 59-60). It is worth noting that the contents of the metal box,

including the glass vial, were presented in a hearing outside the presence of the

jury, and referenced by Ranger Armstrong as “some kind of . . . liquid you inject,

and I’m not certain what it is.” (RR vol 19, p 57). This display to the trial judge

occurred during the unboxing of the tin that immediately preceded counsel for

Appellant announcing that, due to apparent strategic and tactical decision-making

of Appellant’s three attorneys,5 there would be no objection to introduction of the

drug paraphernalia, drugs, or other fruit of the search of Appellant’s home. (RR

vol 19, pp 57, 59-60).

5 Following the State’s tender of proposed testimony from Ranger Armstrong, which included

photographs of the metal box and its contents, as well as the physical metal box and contents

(including the vial) — Counsel for Routh stated: “Judge, I just would like the record to reflectthat . . . we have . . . Mr. Isham, Mr. St. John and I have looked at the search warrant affidavit,

and in our opinion . . . there probably a – an issue as to whether or not it contained probable

cause to even search the residence . . . it’s our decision, though, that we are not going tochallenge . . . the actual probable cause contained within the four corners of the affidavit . . .

plus extraneous matters that would come into evidence as a result of the search. (RR vol 19,

pp 59-60).



45

In front of the jury, Appellant not only failed to object, but expressly

announced the decision to allow the evidence to be introduced with no objection.

As a result, numerous drug paraphernalia exhibits found within the metal box were

admitted and shown. Certain exhibits, including the glass pipes with residue,

rolling papers, pipe cleaners, and green leafy substance were accompanied by

detailed explanations of their status as contraband or tools for the use of

contraband. (RR vol 19, pp 77-78). For example, in reference to a grinder found

in the tin, Ranger Armstrong was asked how such a tool is commonly used.

Ranger Armstrong responded, “For grinding down . . . hard-packed marijuana into

something that you can roll and smoke later on.” (RR vol 19, p 78). Ranger

Armstrong further explained, “And once the product is finished grinding, you

would just unscrew the middle portion of it and take out whatever you wanted to

retrieve, then package it up.” (Id.)

The vial was presented as somewhat of an afterthought as the contents of the

metal box were shown in open court. In describing remnants of items as they were

removed from the metal box in open court, Ranger Armstrong stated, “ . . . I mean,

there’s a --- is a vial of some type of liquid, which I don’t know what it is, that was

also found in the tin can as well.” The question was posed, “Ranger, is that a vial -

-- is that the type of vial into which you stick a syringe?” Ranger Armstrong

replied, “Yes, it is. (Pause) Finally, this is just a piece of paper that has some little,



46

non-legible markings on it. (Pause) That’s the contents of the can.” District

Attorney Nash then stated, “Thank you, Ranger. If you don’t mind, since you have

gloves, repackaging all of that.” Counsel for Appellant, Mr. Moor e, immediately

asked to see the contents before they were repackaged--- Nash said “Sure.”

Questioning then moved on to photographic evidence. (RR vol 19, pp 78-80).

On day five of the trial, the District Attorney asked the trial court leave to

address the court and explain discoveries which occurred over the intervening

weekend concerning the origin and purpose of the vial. (RR vol 21, pp 7-9). Nash

explained that the State had discovered over the weekend, while speaking to

upcoming witness Jennifer Rumppe, that the vial had been inserted into the metal

box during the lab testing of the contraband and paraphernalia found therein in

order to facilitate future testing of those items, should any future testing be desired.

The vial contained “wash” or excess testing solution used in the testing procedure.

Nash requested four measures to ensure fairness to the defendant and avoid

confusion or inaccurate inferences by the jury: 1) allow the State to address the

court with the same explanation in front of the jury; 2) allow testimony from the

lab chemist concerning the origin and purpose of the vial; 3) withdraw the vial

from evidence; and 4) instruct the jury to disregard the introduction of the vial and

any testimony of the vial to prevent confusion concerning the vial. (RR vol 21,

pp 7-9).



47

Following argument and a motion for mistrial by Appellant’s counsel, which

was overruled by the trial court, Nash addressed the trial court in the presence of

the jury. The curative steps taken by the State and the trial court are detailed

herein below.

NO ERROR COMMITTED BY TRIAL COURT

The situation before the trial court involved the introduction by the State of

evidence which incorporated a vial used in lab testing procedures. The metal box

and its contents came into evidence without objection or opposition from

Appellant. Accordingly, there was no error committed by the trial court in the

admission of the vial or any other object contained in the metal box; further, no

attempt to preserve error was made by Appellant at the time of the offer.

The unusual condition in the record before this Court is that, upon discovery

that the glass vial was a lab testing tool and was not attributable to the accused, the

State raised its concern to the trial court that clarification of the origin of the vial

and an instruction to the jury was needed to prevent any potential confusion of the

jury. (RR vol 21, pp 7-9). What was to be cured, if a cure were necessary at all,

was conduct of a party rather than erroneous admission of evidence by the trial

court. This Court has addressed the specter of mistrial as a result of conduct of a

party in a trial.



48

In making its determination as to whether to grant a mistrial, the trial court

determines whether the improper conduct is so harmful that the case must beredone. The harm analysis is conducted in light of the trial court's curative

instruction. Only in extreme circumstances, where the prejudice is

incurable, will a mistrial be required. In determining whether the trial courtabused its discretion, we apply a tailored version of the factors found in

Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998): (1) theseverity of the misconduct (prejudicial effect); (2) curative measures; and (3)

the certainty of the punishment assessed absent the misconduct (likelihoodof the same punishment being assessed).

Otero, 2007 WL 1500884, at *3 (citing Hawkins, 135 S.W.3d 72, 76 – 77),

(citations omitted).

SELF-CORRECTIVE MEASURES OF STATE TO PREVENT HARM TO APPELLANT

The Court of Criminal Appeals has recognized the value of self-corrective

measures by a proponent of evidence or argument in curing potential harm to a

defendant. In Hawkins, the Court noted:

Although a prosecutor's self-corrective action might not carry the sameweight as a trial court's instruction to disregard, it is nevertheless a relevant

consideration in determining harm and can, in the appropriate circumstances,

render an improper comment harmless. And this is not a case in which the prosecutor's retraction was the only curative action.

Hawkins, 135 S.W.3d at 84.

To avoid even minimal confusion of the jury relating to the origin of the vial

and the purpose for which it was included with the metal box, the State’s attorney

took the extraordinary step, with leave of the trial court, to explain to the trial court

in front of the jury the origin of the vial. The explanation by the State’s attorney



49

went so far as representing to the court and jury that the glass vial “should not be

attributed to the possession of the defendant, those glass vials were produced and

inserted into the exhibit as part of the testing process.” (RR vol 21, p 16). “We

represent to the court at this time, in all fairness to the defendant, that those glass

vials did not belong to the defendant.” (Id.).

TESTIMONY OF THE LAB CHEMIST AFFIRMATIVELY CLARIFIED THE ORIGIN AND

PURPOSE OF THE VIAL

The testimony of Jennifer Rumppe, the Garland DPS drug lab chemist, made

it abundantly clear that the vial was inserted into the metal box as a byproduct of

testing. (RR vol 21, p 29). Thorough questioning of Ms. Rumppe further clarified

that was the vial was not present when the metal box was submitted to the lab, and

that the vial was in no way attributable to the Appellant. (RR vol 21, p 30). Ms.

Rumppe further testified that the only controlled substance identified in the metal

box was marijuana. (RR vol 21, p 41, 42). Specifically, the State’s attorney asked

Ms. Rumppe, “To be fair, we didn’t have any meth, cocaine, PCP or any other

items on the hookah?” Ms. Rumppe responded, “That’s correct, there were no

controlled substances detected.” (RR vol 21, p 41). On cross examination, counsel

for Appellant asked Ms. Rumppe, “So, in conclusion, you tested a green leafy

substance or a plant material, and that material was marijuana.” “Correct.” “And

that’s all it was?” “Correct.” “That’s it?” “That’s it.” (RR vol 21, pp 42-43).



50

Following the explanation of the origin of the vial through Jennifer Rumppe,

the State requested the Court order removal of the vial from evidence, and removal

of the vial was ordered. (RR vol 21, p 27). The trial court then instructed the jury

“to disregard and not consider the glass vial for any purpose, you are further

instructed that you are to disregard any testimony relating to the vials being used in

conjunction with a syringe or an inference . . . that they may constitute drug

paraphernalia, do not consider such testimony for any purpose.” (RR vol 21, p 28).

THE TRIAL COURT WITHDREW THE EVIDENCE AND INSTRUCTED THE JURY TO

DISREGARD ANY BASIS FOR IMPROPER INFERENCES R EGARDING THE ORIGIN

AND PURPOSE OF THE VIAL

Following arguments of the parties regarding the potential for cure of any

misapprehension of the jury relating to the vial, the trial court found that the

“nature of the testimony [of Ranger Armstrong] is curable by an instruction, I will

allow the testimony to the presented in front of the jury with regard to . . . the vial,

the nature of the explanation relating to its erroneous admission and its

withdrawal.” (RR vol 21, p 12).

“As a general rule, any error in admitting improper testimony may be cured

by the trial court's withdrawal of the evidence and its instruction to the jury to

disregard.” Ramirez v. State, 822 S.W.2d 240, 247 (Tex. App. — Houston [1st

Dist.] 1991, pet ref’d), citing Cavender v. State , 547 S.W.2d 601, 603 (Tex. Crim.



51

App. 1977). Further, when a court has instructed a jury to disregard erroneously

admitted testimony, there is a presumption that the jury will obey the instruction.

Waldo v. State , 746 S.W.2d 750, 753 (Tex. Crim. App. 1988); Gardner v. State ,

730 S.W.2d 675, 696 (Tex. Crim. App. 1987); see also Paster v. State , 701 S.W.2d

843, 848 (Tex. Crim. App. 1985). Absent some indicia that the jury disobeyed or

disregarded the trial court’s instruction, a reviewing court must presume that the

jury followed the instruction. Karnes v. State, 127 S.W.3d 184, 196 (Tex. App. —

Fort Worth 2003, pet ref’d), citing Colburn v. State , 966 S.W.2d 511, 520 (Tex.

Crim. App. 1998). There is no indicia in the record that the jury disobeyed or

disregarded the trial court’s instruction.

Concerning Appellant’s motion for mistrial, this Court has cited authority

from the Court of Criminal Appeals setting out the standard for reviewing a request

for mistrial after an instruction to disregard evidence. See Littlepage v. State, No.

11-02-00312-CR, 2003 WL 2010976, at *3 (Tex. App. — Eastland May 1, 2003, no

pet.) (not designated for publication). The Court cited favorably Hinejosa v. State,

4 S.W.3d 240 (Tex. Crim. App. 1999), which set out the principle:

Generally, a mistrial is only required when the improper evidence is “clearlycalculated to inflame the minds of the jury and is of such a character as to

suggest the impossibility of withdrawing the impression produced on theminds of the jury.” In all other situations, the jury is presumed to follow thetrial court's [instruction] to disregard improperly admitted evidence.

Hinejosa, 4 S.W.3d at 254 (emphasis added).



52

The curative measures to prevent potential confusion of the jury concerning

the origin of the glass vial included the following: 1) announcement to the trial

court by the State’s attorney, in the presence of the jury, that the vial was a product

of lab testing and should not be attributed to the defendant; 2) the State’s

presentation of testimony of the lab chemist, Jennifer Rumppe, detailing the

standard operating procedures of the Garland DPS lab involving preservation of

testing materials in glass vials, and inclusion of the specific vial (SX 335) in the

metal box when it was returned to law enforcement; 3) withdrawal of the vial from

evidence by the trial court (at the request of the State); 4) instruction by the trial

court to the jury to disregard the vial and testimony which might lead to an

incorrect inference that the vial was drug paraphernalia.



53

If there were error in the vial being admitted as a component of the metal

box, it was cured by its withdrawal from evidence and the trial court’s instructions.

The additional steps of the prosecutor announcing and proving up the origin of the

vial affirmatively clarified for the jury the nature of the vial and that no controlled

substances other than marijuana were found in the home of Appellant. Any

confusion that might have existed as of day three of the nine-day trial was fully

dispelled through the self-correction by the State and the comprehensive curative

measures of the trial court.

Not only has the Appellant provided no indicia that the jury disobeyed or

disregarded the trial court’s curative instruction, the record is clear that the origin

and purpose of the vial was undisputed and unambiguous: it was by-product of lab

testing and was not attributable to Appellant. The self-corrective measures by the

State, the testimony of the lab chemist, and the Court’s instruction left no room for

harmful inferences against the defendant.

PRAYER

The State urges this Court, after reviewing the record and considering the

arguments and authorities of the parties, to find that the judgment of the trial court

should be affirmed in all things.

WHEREFORE, PREMISES CONSIDERED, Appellee, the State of Texas,

prays this Honorable Court affirm the judgment of the trial court.



54

Respectfully submitted,

M. Alan Nash

State Bar No. 24027680

District Attorney

266th Judicial District

P. O. Box 30Stephenville, Texas 76401

254.965.1462254.965-5543 Facsimile

[email protected]






55

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Appellee’s Brief has been served on

all counsel and interested parties identified in the Appellant’s Certificate of

Interested Parties on this the 11th day of March, 2016.

M. Alan Nash



56

CERTIFICATE OF COMPLIANCE

At the request of the Court, I certify that this submitted computer disc or CD (or email

attachment) complies with the following requests of the Court:

1. This filing is labeled with or accompanied by the following information:

a. Case Name: Eddie Ray Routh, Appellant v. State of Texas

b. The Docket Number: 11-15-00036-CR

c. The Type of Document: Appellee’s Brief

d. The Word Processing Software and Version Used to prepare the filing:

Microsoft Word 2013 and that, according to that program’s word-countfunction contains 12,955 words, excluding any parts exempted by Tex. R.

App. P. 9.4(i)(1). The body text is in 14 point font, and the footnote text is

in 12 point font.

2. This disc or CD (or email attachment) contains only an electronic copy of the

submitted filing and does not contain any appendices, any portion of the appellaterecord (other than a portion contained in the text of the filing) hypertext links to

other material, or any document that is not included in the filing.

3. The electronic filing is free of viruses or any other files that would be disruptive

to the Court’s computer system. The following software, if any, was used toensure the filing is virus-free: AVG CloudCare.

4. I understand that a copy of this f iling will be posted on the Court’s web site and

becomes part of the Court’s record.

5. Copies have been sent to all parties associated with this case.

______________________________M. ALAN NASHDistrict Attorney, 266

th Judicial District

March 11, 2016



APPENDIX

Sealed Order Denying Motion to Suppress, Entered in the 266th Judicial DistrictCourt, May 28, 2014

TEX. CODE OF CRIMINAL PRO. A NN. art 38.22, § 3 (West)

TEX. PENAL CODE A NN. § 2.04 (West)

TEX. PENAL CODE A NN. § 8.01 (West)

TEX. R. APP. P. 44.2 (a)

state's brief in eddie ray routh appeal

Documents