ACCEPTED

11-15-00036-CR
ELEVENTH COURT OF APPEALS
EASTLAND, TEXAS
3/11/2016 4:50:14 PM
SHERRY WILLIAMSON
CLERK

CAUSE NO. 11-15-00036-CR

IN THE COURT OF APPEALS

OF THE STATE OF TEXAS
ELEVENTH DISTRICT
EASTLAND, TEXAS

FILED IN
11th COURT OF APPEALS
EASTLAND, TEXAS
03/11/16 4:50:14 PM
SHERRY WILLIAMSON
Clerk

EDDIE RAY ROUTH

Appellant
v.
THE STATE OF TEXAS,
Appellee

Appeal from Cause No. CR14024

In the 266th Judicial District Court
Erath County, Texas

BRIEF FOR APPELLEE

ORAL ARGUMENT REQUESTED

M. Alan Nash
State Bar No. 24027680
District Attorney
266th Judicial District
Erath County, Texas
P. O. Box 30
Stephenville, Texas 76401
254.965.1462
254.965.5543 Facsimile
da@co.erath.tx.us

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 APPELLANTS POINT NUMBER ONE .................................................... 11
SUMMARY OF THE STATES ARGUMENT ............................................................................ 11
INSANITY ........................................................................................................................... 12
MATLOCK STANDARD OF REVIEW FOR LEGAL SUFFICIENCY OF EVIDENCE IN
REJECTION OF AFFIRMATIVE DEFENSE .................................................................. 13
MATLOCK STANDARD OF REVIEW FOR FACTUAL SUFFICIENCY OF EVIDENCE
IN REJECTION OF AFFIRMATIVE DEFENSE .............................................................. 14
RESPONSE TO APPELLANTS POINT NUMBER TWO ................................................... 29
SUMMARY OF THE STATES ARGUMENT ............................................................................ 29
TRIAL COURTS FINDINGS PURSUANT TO ARTICLE 38.22 .................................................. 29
EVIDENCE OF APPELLANTS GUILT WAS OVERWHELMING, INDEPENDENT OF
RANGER BRILEYS INTERVIEW .............................................................................. 36
APPELLANTS RELIANCE ON BRILEY INTERVIEW IN ATTEMPTING TO PROVE
INSANITY ............................................................................................................... 39
RESPONSE TO APPELLANTS POINT NUMBER THREE: .............................................. 41
SUMMARY OF THE STATES ARGUMENT ............................................................................ 41
PROCEDURAL SEQUENCE RELATING 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 INSTRUCTED THE JURY
TO DISREGARD ANY BASIS FOR IMPROPER INFERENCES REGARDING
THE ORIGIN AND PURPOSE OF THE VIAL ................................................................ 50
PRAYER ....................................................................................................................................... 53
CERTIFICATE OF SERVICE ..................................................................................................... 55
APPENDIX ................................................................................................................................... 57

INDEX OF AUTHORITIES
CASES
Akins v. State, 202 S.W.3d 879 (Tex. App.Fort Worth 2006, pet refd) ...................... 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, affd) ................................................................................................... 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
refd) ....................................................................................................................... 50
Littlepage v. State, No. 11-02-00312-CR, 2003 WL 2010976 (Tex.
App.Eastland 2003, no pet.) (not designated for publication) ........................... 50

ii

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. AppAmarillo 2015, pet refd) ......... 12, 13, 15, 16
Ramirez v. State, 822 S.W.2d 240 (Tex. App.Houston [1st Dist.]
1991, pet refd) ....................................................................................................... 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
refd) ........................................................................................................... 30, 33, 34
Waldo v. State, 746 S.W.2d 750 (Tex. Crim. App. 1988) ................................................ 49

STATUTES
TEX. CODE OF CRIMINAL PRO. ANN. art 38.22, 3 (West) ................................... 29, 31, 35
TEX. PENAL CODE ANN. 2.04 (West) ............................................................................. 13
TEX. PENAL CODE ANN. 8.01 (West) ............................................................................. 12

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

iii

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:
Reporters Record

(RR vol __, p ___)

Clerks Record

(CR ___)

States Exhibit

(SX __)

Defendants 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

iv

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 Appellants 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.

STATEMENT OF FACTS
On February 2, 2013, Chris Kyle and Chad Littlefield traveled in Kyles
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 Littlefields body on the deck of the shooting range, and Kyles 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 Kyles 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 Sheriffs 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
1

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 Kyles 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 Littlefields wife became
concerned that Littlefield was late returning home, a friend of Littlefield called
Littlefields 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
2

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 Appellants 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 Kyles
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 Appellants
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
Kyles truck, and led officers on a high speed chase through the residential and
3

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).
Kyles 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
4

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 Appellants 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 Appellants 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).

Late in the day on February 2, 2013, Appellant arrived at Watsons

residence in Alvarado, Texas driving a large black truck unfamiliar to Watson.
(RR vol 19, p 146). While at Watsons 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 mans 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,
6

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 136137). 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 Appellants 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
Appellants 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 States evidence supporting the elements of capital murder was not
controverted by Appellant.

(See RR vol 25, p 204, Defendants 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
Appellants 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

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 States
rebuttal. (RR vol 24, p 11). After reviewing extensive records of Appellants
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 thenPresident of the Texas Medical Board, also testified in the States rebuttal
concerning Appellants 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
8

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 163164). Dr. Arambula cited numerous and consistent notations that were made in the
Appellants medical records indicating that he had a long history of substance
abuse; indeed, drug screens performed in each of Appellants previous
hospitalizations consistently showed Appellants use of marijuana. (Id. at p166).
Dr. Arambula expressly disagreed with Dr. Dunns diagnosis of Appellant as
having schizophrenia, observing that Appellants 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

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 wouldnt talk to me,
(RR vol 19, p 217). Also during Appellants 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
States 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.
10

(Id. at pp 44-104).

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 Appellants points of
error are set out in the Argument and Authorities.

ARGUMENT AND AUTHORITIES

RESPONSE TO APPELLANTS POINT NUMBER ONE

SUMMARY OF THE STATES ARGUMENT
The evidence in the record is legally and factually sufficient to support the
jurys rejection of Appellants affirmative defense of insanity. The jury was
entitled to disbelieve expert testimony diagnosing Appellant with a severe
mental disease or defect, and the jury could conclude that Appellant knew
his conduct in murdering Littlefield and Kyle was wrong. Further, the
States 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 jurys rejection of the insanity
defense.

Appellants 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
11

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 Appellants 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
ANN. 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. AppAmarillo
2015, pet refd), 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
12

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 is
morally 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 REVIEW FOR LEGAL SUFFICIENCY
REJECTION OF AFFIRMATIVE DEFENSE

OF

EVIDENCE

IN

The Court of Criminal Appeals has recently modified and clarified standards
of review for legal sufficiency of a jurys 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 ANN. 2.04
13

(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 jurys implied finding adverse to the
defendants 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 jurys 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 defendants 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 jury was free
to think otherwise, may the reviewing court conclude that the evidence is legally
insufficient to support the jurys rejection of the defendants affirmative defense.
Id.
MATLOCK STANDARD OF REVIEW FOR FACTUAL SUFFICIENCY
REJECTION OF AFFIRMATIVE DEFENSE

OF

EVIDENCE

IN

In Matlock, the Court of Criminal Appeals also provided exhaustive

guidance for review of a criminal defendants factual-sufficiency challenge to a
14

jurys 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 factualsufficiency claim, the defendant is asserting that, considering the entire body of
evidence, the jurys 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 courts assessment of the weight and credibility
of testimony. Therefore, an appellate court may sustain a defendants factualsufficiency 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 jurys 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 jurys implied finding that
the defendant had failed to prove, by a preponderance of the evidence, that, as a
15

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 jurys rejection of the appellants 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
defendants 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,
16

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 Appellants 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 Dunns 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). Dunns 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

The videotaped interview of Routh by Briley is the subject of Appellants Issue Number Two,
wherein he asserts it was error for the trial court to deny Appellants motion to suppress the
interview.

17

Appellants coworkers appearing as pig hybrids, pig man, pig assassins were
not included in Appellants 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 Dunns 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, Theres no question in his [Appellants] 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 Appellants 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 Appellants sanity, Appellant agreed with Briley that what
Appellant did was wrong, and expressed remorse. (Id. at p 208). All of this
information concerning Appellants actions and statements following the crime
was acknowledged by Dunn in addition to having been presented through other
witnesses.
18

Applying Matlocks standards for reviewing legal sufficiency to the

keystone of Appellants defense, that is, Dr. Dunns 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. Dunns
testimony and was entitled to disbelieve his findings.

If the record reveals

evidence supporting the defendants 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. Dunns conclusion that
Appellant did not know his conduct was wrong.
Indeed, the State did present evidence in rebuttal to Appellants 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
19

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 . . . was
suffering 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 opinion
about the wrongfulness prong of this criteria in Texas, that I have the
opinion 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. at
56).
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 cannabisinduced psychotic symptoms. (Id.)

20

Dr. Price expressed skepticism about Appellants descriptions ofpig men,

hybrid pigs, and other pig references made in Appellants meeting with Dr.
Dunn months after the crime. Dr. Prices review of Appellants 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 Appellants detailed account to Dr. Price of
the days leading up to the crime, the murder, and the aftermath, 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.)
21

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 Appellants 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 Appellants 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 Appellants
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

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).

22

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

Examiners

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. Dunns findings, concluding that Appellant did not have schizophrenia.
(Id.). Appellants 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, hes
been treated as if he has bipolar on this or even depression, and thats not
schizophrenia.
(Id. at p. 204).

Dr. Arambula also noted that Appellant lacked the physical

manifestations of schizophrenia. (Id.).

23

Dr. Arambula explained that Appellants 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, theres something else involved
. . . usually its drugs or alcohol, and they coexist at the same time. (Id. at p 166).
In Appellants specific background, Dr. Arambula noted that in all drug tests
administered through Appellants previous hospitalizations, Appellant was positive
for cannabis. (Id.). In fact, one hospital note referenced a self-report by Appellant
of use of formaldehyde laced marijuanaor wet marijuana. (Id. at pp 167168).

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 Appellants 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
24

Appellant knew his conduct was wrong. In Arambulas evaluation, Appellant

explained that if Appellant shot Chad only, then Chris would shoot Appellant, and
I didnt 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 thats terrible, but
it makes sense and you know, thats 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 Appellants 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, Appellants 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 Appellants words and conduct which
indicated Appellant was malingering or exaggerating the effects of non-severe
25

mood disorders. Dr. Arambula noted that in Appellants 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 Appellants 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 Appellants claim asserted after the crime that he had
feared Kyle and Littlefield was inconsistent with Appellants 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, Appellants 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 an
example of whats called secondary gain, i.e., he was trying to look out for
himself.
(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
26

done something terrible. Appellant fled the crime scene in Chris Kyles truck.
Appellant went to his uncles house and then his sisters house, telling his sister I
murdered two men. Dr. Arambula noted, and theres 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 Appellants affirmative defense of
insanity. Applying the Matlock standard of review for factual sufficiency of the
jurys rejection of Appellants 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.
27

28

RESPONSE TO APPELLANTS POINT NUMBER TWO

SUMMARY OF THE STATES ARGUMENT
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
courts findings that the interview was carried out in compliance with Code
of Criminal Procedure art. 38.22. Appellants 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 Appellants
guilt was so overwhelming, independent of the statements, that such error
did not substantially affect the jurys 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
Reporters Record of the suppression hearing, Appellant makes the assertion,
unsupported by explanation, that the case should be reversed due to error in the
trial courts denial of his motion to suppress.
TRIAL COURTS FINDINGS PURSUANT TO ARTICLE 38.22
Following an evidentiary pretrial hearing on Appellants 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 courts Sealed Order Denying Motion to Suppress was
29

entered. (CR 746). Included with the trial courts order were findings that the
recorded interview of Appellant, which was custodial, comported with the
requirements of TEX. CODE

OF

CRIMINAL PRO. ANN. 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 Defendants apparent intelligence, his ability to articulate his thoughts,
the information within the knowledge of the Defendant as to the nature of
the 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 himself
of 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 courts
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 Appellants 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
30

pretrial hearing on Appellants motion to suppress was a preview of Appellants

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

Appellants issue with Brileys 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 courts 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 courts
determination of historical facts supported by the record, especially when the trial
courts 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 refd).
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 defendants
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
31

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, affd).

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 accuseds 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
Appellants motion to suppress. Ranger Briley interviewed Appellant late in the
night of February 2, 2013, following Appellants 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 Appellants 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
32

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 Appellants 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 Brileys 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.
33

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 defendants
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

In response to Appellants 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 at
all. 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.

34

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
courts 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 courts reliance upon appellants implied
waiver of his rights. Id.
The testimony and evidence support the trial courts denial of Appellants
motion to suppress. Ranger Brileys 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).

35

EVIDENCE OF APPELLANTS GUILT

RANGER BRILEYS INTERVIEW

WAS

OVERWHELMING, INDEPENDENT

OF

Were there error in the trial courts denial of Appellants motion to suppress
and admission of Appellants recorded statement to Briley, such constitutional
error4 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 Appellants 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
defendants guilt is overwhelming. Akins v. State, 202 S.W.3d 879, 891-92 (Tex.
App.Fort Worth 2006, pet refd).

Improper admission of a defendants

statement would be deemed harmless if the other evidence of the defendants 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).

36

The evidence that Appellant murdered Kyle and Littlefield, independent of

Ranger Brileys 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 Kyles 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 mans 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 Appellants home in Lancaster, Texas.

(RR vol 18, p 88).

Shortly

thereafter, Appellant arrived at his home driving Kyles black truck. (Id. at 96).
After protracted efforts by Lancaster police to persuade Appellant to exit Kyles
truck, Appellant fled in Kyles truck 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
37

later confirmed to be the firearm used to shoot Chad Littlefield. (RR vol 19, p
194).

Following Appellants apprehension by police, Appellants boots were

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

38

I shot them because they wouldnt 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 to
the range, so I shot them. I feel bad about it, but they wouldnt talk to me.
Im sure theyve 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 States burden of proof was not as important in this case because
weve pretty much conceded, its pretty obvious that . . . Eddie Routh shot these
two men. (RR vol 25, p 205).
APPELLANTS RELIANCE
INSANITY

ON

BRILEY INTERVIEW

IN

ATTEMPTING

TO

PROVE

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 Appellants guilt presented in the States case-in-chief was
overwhelming without consideration of Appellants interview by Ranger Briley.
Indeed, Appellants trial counsel framed the narrowing of the issues in his opening
statement: . . . Eddies 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

39

in this case, comes in to interview him, and you will see that interview, I anticipate,
and youll see Eddie Rouths demeanor, and youll see his answers to seemingly
straightforward questions, and youll 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 Appellants affirmative defense of
insanity. This is significant because, in setting up the defense during the States
case-in-chief, and during Appellants presentation of evidence attempting to meet
his burden, Appellant relied significantly on Ranger Brileys interview.

The

interview was conducted in close temporal proximity to the crime, and Appellants
demeanor and words were a focus of Appellants 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 Brileys
interview as a significant part of his evaluation of Appellants 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, hed 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 . . . the
things that he said the the marked thought disorganization, the lack of
emotional response, the . . . numerous bizarre statements about his thinking
at the time.

(RR vol 23, p 188).

40

Even were there error in the trial courts admission of Brileys interview of
Appellant, judging the magnitude of the error in light of the evidence as a whole,
including Appellants use of the statement in support of his affirmative defense,
supports a conclusion that Appellant was not harmed by the trial courts ruling.

RESPONSE TO APPELLANTS POINT NUMBER THREE:

SUMMARY OF THE STATES ARGUMENT
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 was
effectively cured by 1) announcement by the States 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 courts
instruction to the jury to disregard the vial and testimony which might lead
to 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 Appellants house and admitted into evidence. The metal box and its
contents had been discovered in Appellants 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
41

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 courts denial of a motion for mistrial is reviewed under an abuse of
discretion standard. Hawkins v. State, 135 S.W.3d 72, 7677 (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).
Appellants motion for mistrial was based on the States introduction,
without objection from the Appellant, of a glass vial contained in a metal box in
which marijuana and drug paraphernalia were discovered in Appellants home by
law enforcement the night of the murders. (RR vol 21, p 11). Appellant complains
that measures taken by the States 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

42

(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 States
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 argued 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 . . . theres
testimony there could have been marijuana in there, but theres theres an
inference that it could have been methamphetamine or some other type of
controlled substance, so I would suggest to the court that theres 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 RELATING TO THE VIAL
Appellant provides in his argument and authorities a verbatim recitation of
excerpts of the Reporters Record relating to the vial.

In summary, during

testimony of Ranger Armstrong concerning his participation in the execution of a

43

search warrant on Appellants 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 Appellants bedroom.
(RR vol 19, p 75, SX 223). Photographs of the metal box depicting its location in
Appellants 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 Im 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 Appellants three attorneys,5 there would be no objection to introduction of the
drug paraphernalia, drugs, or other fruit of the search of Appellants home. (RR
vol 19, pp 57, 59-60).

Following the States 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 reflect
that . . . 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 . . . its our decision, though, that we are not going to
challenge . . . 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).

44

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,
theres a --- is a vial of some type of liquid, which I dont 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,
45

non-legible markings on it. (Pause) Thats the contents of the can.

District

Attorney Nash then stated, Thank you, Ranger. If you dont mind, since you have
gloves, repackaging all of that. Counsel for Appellant, Mr. Moore, 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).
46

Following argument and a motion for mistrial by Appellants 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.

47

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 be
redone. 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 court
abused 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) the
severity of the misconduct (prejudicial effect); (2) curative measures; and (3)
the certainty of the punishment assessed absent the misconduct (likelihood
of the same punishment being assessed).
Otero, 2007 WL 1500884, at *3

(citing Hawkins, 135 S.W.3d 72, 7677),

(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 same
weight 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 States 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 States attorney

48

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 States attorney asked
Ms. Rumppe, To be fair, we didnt have any meth, cocaine, PCP or any other
items on the hookah? Ms. Rumppe responded, Thats 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
thats all it was? Correct. Thats it? Thats it. (RR vol 21, pp 42-43).
49

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 REGARDING 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 refd), citing Cavender v. State, 547 S.W.2d 601, 603 (Tex. Crim.
50

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 courts 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 refd), 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 courts instruction.
Concerning Appellants 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 clearly
calculated to inflame the minds of the jury and is of such a character as to
suggest the impossibility of withdrawing the impression produced on the
minds of the jury. In all other situations, the jury is presumed to follow the
trial court's [instruction] to disregard improperly admitted evidence.
Hinejosa, 4 S.W.3d at 254 (emphasis added).
51

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 States 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 States
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.

52

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 courts 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 courts 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 Courts 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.
53

Respectfully submitted,
M. Alan Nash
State Bar No. 24027680
District Attorney
266th Judicial District
P. O. Box 30
Stephenville, Texas 76401
254.965.1462
254.965-5543 Facsimile
da@co.erath.tx.us

54

CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Appellees Brief has been served on
all counsel and interested parties identified in the Appellants Certificate of
Interested Parties on this the 11th day of March, 2016.

M. Alan Nash

55

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: Appellees Brief

d.

The Word Processing Software and Version Used to prepare the filing:
Microsoft Word 2013 and that, according to that programs word-count
function 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 appellate
record (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 Courts computer system. The following software, if any, was used to
ensure the filing is virus-free: AVG CloudCare.

4.

I understand that a copy of this filing will be posted on the Courts web site and
becomes part of the Courts record.

5.

Copies have been sent to all parties associated with this case.

______________________________
M. ALAN NASH
District Attorney, 266th Judicial District
March 11, 2016

56

APPENDIX

Sealed Order Denying Motion to Suppress, Entered in the 266th Judicial District
Court, May 28, 2014
TEX. CODE OF CRIMINAL PRO. ANN. art 38.22, 3 (West)
TEX. PENAL CODE ANN. 2.04 (West)
TEX. PENAL CODE ANN. 8.01 (West)
TEX. R. APP. P. 44.2 (a)

57