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Routh v. State

Court of Appeals of Texas, Eleventh District

March 31, 2017

EDDIE RAY ROUTH, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 266th District Court Erath County, Texas Trial Court Cause No. CR14024

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

          OPINION

          JIM R. WRIGHT CHIEF JUSTICE.

         The jury rejected Eddie Ray Routh's insanity defense and convicted him of capital murder for the murders of Christopher Scott Kyle and Chad Hutson Littlefield. See Tex. Penal Code Ann. § 19.03(a)(7) (West Supp. 2016). The State did not seek the death penalty. Therefore, the trial court assessed Appellant's punishment at confinement for life without parole and sentenced him accordingly. See id. §12.31(a)(2); Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (West Supp. 2016). We affirm.

         Appellant challenges his conviction in three points of error. In his first point of error, he asserts that the jury's verdict was improper because Appellant did not know that his conduct was wrong. Appellant maintains in his second point of error that the trial court erred when it denied Appellant's motion to suppress statements that he made to Texas Ranger Danny Briley. Finally, in his third issue, Appellant contends that the trial court abused its discretion when it overruled his motion for a mistrial.

         We take Appellant's first point of error to be a challenge to the sufficiency of the evidence to support the jury's rejection of Appellant's affirmative defense of insanity. Section 8.01 of the Texas Penal Code 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." Penal § 8.01(a) (West 2011). The Court of Criminal Appeals has defined "wrong" in this context to mean "illegal." Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008). "[T]he question for deciding insanity is this: 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?" Id. Appellant bore the burden to prove his affirmative defense of insanity by a preponderance of the evidence. Id. at 591 n.13, 592.

         In a challenge to the legal sufficiency of the evidence to support a rejection of an affirmative defense, we use the standards for review expressed by the Supreme Court of Texas in City of Keller v. Wilson. Matlock v. State, 392 S.W.3d 662, 668- 69 (Tex. Crim. App. 2013) (citing City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)). We first look to whether there is more than a scintilla of evidence to support the jury's rejection of Appellant's affirmative defense. Id. at 669. We review the evidence in the light most favorable to the verdict, and we credit any favorable evidence if a reasonable factfinder could and disregard any contrary evidence unless a reasonable factfinder could not. Id. If we find no evidence to support the jury's rejection of Appellant's affirmative defense, we look to whether Appellant established, as a matter of law, the elements of his affirmative defense. Id. at 669- 70. Evidence that is subject to a credibility assessment is not considered because it is within the jury's province to disregard that evidence. 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 jury's rejection of the defendant's affirmative defense." Id. (footnote omitted) (quoting Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009)).

         To determine whether the evidence was factually sufficient to support the jury's rejection of Appellant's affirmative defense, we look to whether the jury's adverse finding was so against the great weight and preponderance of the evidence as to be manifestly unjust. Id. at 671 (citing Meraz v. State, 785 S.W.2d 146, 154- 55 (Tex. Crim. App. 1990)). We view all the evidence in a neutral light, but we may not substitute our judgment in place of the jury's assessment of the weight and credibility of the witnesses' testimony. Id. If we find that the evidence that supports the affirmative defense so greatly outweighs the State's contrary evidence that the verdict is manifestly unjust, we will reverse the trial court's judgment and remand the case for a new trial. Id. at 672.

         Appellant is a former Marine, with service in Iraq and other places. After Appellant's service ended, the Veterans Administration diagnosed Appellant with post-traumatic stress disorder. Sometime in early January 2013, Appellant's mother, Jodi Routh, asked Kyle, a former Navy Seal, to help Appellant. Jodi knew Kyle. Kyle's children attended the elementary school where Jodi worked. She had seen Kyle there from time to time and had heard a speech that he had given at the school. She knew that he helped veterans and that he had written a book. She told Kyle that the VA had diagnosed Appellant with PTSD. Kyle told her that he also suffered from PTSD and that he would do anything and everything in his power to help Appellant, even though Kyle did not know Appellant at the time.

         Later, on February 2, Kyle went to Appellant's home in Lancaster; Littlefield went with him. After they picked up Appellant, they drove to Rough Creek Lodge near Glen Rose; they arrived at Rough Creek Lodge around 3:15 that afternoon. When they arrived, Kyle stopped at the main lodge and went inside to see if they could use the shooting range. Once they were cleared to use the shooting range, they left the main lodge and drove to the range. By 5:00 that afternoon, Kyle and Littlefield lay dead on the shooting range.

         Both suffered from multiple gunshot wounds. Kyle was shot six times, and Littlefield was shot six or seven times, depending on whether one bullet re-entered Littlefield's body after its initial exit. Several bullets were recovered during the autopsies. The State's firearms expert was able to match the bullets recovered from Kyle to the Springfield XD-45 .45 auto caliber pistol that was found at the scene and was able to match the bullets recovered from Littlefield to the Sig Sauer semiautomatic P226 nine-millimeter Luger caliber pistol that was found in Kyle's pickup after officers arrested Appellant. Also found at the scene were eight shell casings that matched the Springfield XD-45 pistol and three shell casings that matched the Sig Sauer P226 pistol.

         Howard J. Ryan, a forensic operations specialist in New Jersey, testified as an expert in the fields of shooting incident reconstruction and bloodstain pattern analysis. He performed a reconstruction of the incident and determined that Kyle did not see the gunfire coming. Kyle's gunshot wounds were located in one general area-the upper portion of the right side of his body. The pattern indicated that Kyle did not move after he was shot; the shots were incapacitating. The pattern also indicated that the shooter would have been fairly close to Kyle when he fired the shots.

         Ryan further determined that the first two shots that Littlefield sustained were shots to his back, one of which hit his spinal column. He opined that those were also not long distance shots and that they were also incapacitating. Ryan believed that Littlefield went down to one or both knees after sustaining the two shots to the back and that, while he was on his knees, sustained a shot to the back of his head. Littlefield then fell backward and ultimately landed on his back. The evidence showed that Littlefield sustained a shot to the top of his head and to his face either while he was on his knees or was already on his back on the ground. Ryan testified that the most likely scenario, due in part to a lack of blood spatter evidence, was that Littlefield was lying flat on his back when he sustained the shots to the top of his head and to his face.

         Ryan believed that the shooter would have been standing in between Kyle and Littlefield, slightly behind them. Ryan also believed that the shooter chose to wait until Kyle's revolver was empty before he began shooting at Kyle and Littlefield. The evidence further showed that Appellant fled the scene in Kyle's pickup, made several stops before returning to his home, and was ultimately apprehended by officers with the Lancaster Police Department.

         Appellant's uncle, James Watson, testified that he talked to Appellant on the day of the incident. Watson spent time with Appellant at Appellant's home on the morning of the incident. Watson saw Appellant again that afternoon when Appellant went to Watson's house in Alvarado. They visited for a few minutes at Watson's house, and Appellant showed him a nine-millimeter semi-automatic handgun. Appellant was driving a black Ford pickup that Watson had not seen him drive before. He told Watson that he was driving a "dead man's truck." Watson thought that Appellant was talking about himself, not an actual dead person, because Appellant often made "bizarre comments like that about himself"; Appellant thought that the government was after him. Appellant did not stay at Watson's for very long.

         Laura Blevins, Appellant's sister, testified that Appellant called her cell phone on the evening of the offense. She did not want to answer because she had "just about had [her] limit" with his outbursts. He would talk about things that were not relevant to their conversation and that were "out of the blue." She knew that a knife had been involved during his last outburst with his girlfriend, and that fact "pushed [her] limits" for his being around her child. Nevertheless, she answered the phone and had a brief conversation with Appellant. Laura then gave the phone to her husband, Gaines Blevins, so that he could talk to Appellant. When she found out that Appellant was coming to their house, she was angry. She told Gaines that, if Appellant started talking nonsense, she was going to call the police and have him committed. She knew that "he wasn't quite right"; she wanted him to have treatment.

         When Appellant showed up at her house, Laura knew that he was not himself. He was talking about "pigs sucking his soul" or, as she wrote in her statement to police, "people were sucking his soul and he could smell the pigs." He told the Blevinses that he had killed two guys. At first, Laura did not believe him because he was not talking normally, but she started to get concerned when he continued talking about it and when she saw the pickup that he was driving. He told her that he took their souls before they could take his and explained that they were out to get him. He also told her that he sold his soul for a pickup. Laura told him that he needed to turn himself in if he really killed someone. Appellant told her that he was going to Oklahoma, and he left shortly thereafter.

         Terrified, Laura called 9-1-1 and reported that Appellant had just left her house and that he had said that he killed two men at a shooting range and took one of their pickups. Laura also told the dispatcher that she did not know whether Appellant was on drugs but that he was crazy and psychotic. Gaines told the dispatcher that Appellant had recently been diagnosed with post-traumatic stress disorder. Laura testified that she was not trying to help Appellant out by saying that he was psychotic; she was just genuinely afraid for her family and herself.

         Gaines testified that Appellant came to their house on the evening of the offense and that Appellant seemed confused and "to not be there completely"; he was not his normal self. However, Appellant did not smell like alcohol or marihuana and did not appear to be drunk. The first thing that Appellant said to Gaines was, "[I]s it just me or is the world freezing over." He then went on to say that "he took two souls before they could take his." Appellant said he shot "Chris Kyle and his friend." He explained that he was at target practice with them and that he could not trust them anymore. He also said that he traded his soul for the pickup that he was driving. Appellant told them that he was going to try to get to Oklahoma before Texas could get him. After Appellant left, the Blevinses called 9-1-1 and then drove to the Midlothian Police Department.

         Lieutenant Michael Smith of the Criminal Investigations Division of the Lancaster Police Department, who was assistant chief of the department at the time of the incident, testified that, on the date of the offense, he was called to Appellant's home by Detective Jesse Chevera to "check on things." Detective Chevera lived next door to Appellant and, based on some information that he had learned, was concerned about his house and his family.

         Appellant was not at his house when Lieutenant Smith and Detective Chevera arrived. However, Appellant arrived while the officers were discussing the information that they had received. Appellant was driving Kyle's pickup. Appellant opened the door, but he never got out of the pickup. Detective Chevera tried to get Appellant to talk to him and to get out of the pickup, but Appellant refused. Appellant shut the door, cracked the window, and turned off the pickup. Appellant either told them that he had "taken a couple of souls and he had some more souls to take" or that "he had taken two souls that he had to take before they took his." He made several other comments, such as: "It's just happening so fast, I don't know if I'm, um, going insane"; "The f---ing anarchy has been killing the world"; and "I can feel everybody feeding on my soul." Lieutenant Smith testified that he did not know whether Appellant was intoxicated, high, an odd guy, or "straight up nuts"; he was just trying to get Appellant out of the pickup.

         While Lieutenant Smith and Detective Chevera talked to Appellant, two other officers put "stop sticks" on the back tires of Kyle's pickup in order to try to disable the pickup. Appellant continued to refuse to get out of Kyle's pickup.

         After approximately twenty to thirty minutes, Appellant fled in the pickup, and multiple Lancaster police officers pursued him. During the pursuit, an officer rammed the pickup with his marked squad car, and the pickup eventually became disabled and was no longer operable. Appellant got out of the pickup with his hands up in the air and immediately got down on the ground. Officers detained Appellant at approximately 8:30 p.m.

         When asked why he ran from them, Appellant responded, "I have been having panic attacks all day." The State presented a video that depicted Appellant sitting in the back of a patrol car. Appellant stated that he had a disease and had been in Iraq. Appellant appeared very distraught. Officer Flavio Salazar, of the Lancaster Police Department, tried to get Appellant to calm down and relax so that the EMTs could check him out. Appellant said that he did not know what was happening in his world. Appellant was much calmer when no one was around and the patrol car doors were closed, but he was crying.

         Appellant asked Detective Chevera if he was going to go to the insane asylum; Detective Chevera did not respond. While in the patrol car, he also stated that he was nervous about what had been happening in his life that day, that he did not know what had been happening, that he had been so paranoid schizophrenic all day that he did not know what to think of the world, that he did not know whether he was insane or sane, and that he did not know what was sane in the world. Officer Salazar transported Appellant to the Lancaster Police Department, and when they arrived, Appellant said, "This is like the most comfort I've had in a couple days being in this cop car. I'm serious."

         Later, Ranger Briley conducted a custodial interrogation of Appellant at the Lancaster Police Department. Ranger Briley testified that he informed Appellant of his constitutional rights, including the right to remain silent; Appellant agreed to speak with him. He explained that Appellant responded to questions in an unusual, bizarre, or philosophical manner. There were times when Appellant's responses had no logical connection to what Ranger Briley was asking: "[s]ome of the stuff I had no clue what he's talking about."

         Appellant told Ranger Briley that he kept "talking to Chrises in my world" and that he would talk to one Chris and get sent to another man named Chris. He said that he thought about talking to the wolf, "the one in the sky." "The ones in the sky are the ones that fly . . . the pigs." He said that he could tell the difference between "pig s--t" and "bulls--t" and two different kinds of "pig s--t." He also told Ranger Briley that there were no straight streets in Texas and that there were no square towns. Appellant said that you "can't just keep letting people eat your soul up for free." He said that tons of people were eating at his soul and that he could not sleep. He also commented that "the Reds are already eating up all the Indians" and that "the warlords aren't very happy with me." He said that "the sandman keeps winning." Appellant further commented that "you can eat souls when you are down here, " "but you can never make any more after . . . the true souls are gone." Several times throughout the interview Appellant asked if Ranger Briley could take off Appellant's handcuffs. At one point, Appellant said that he needed to get the cuffs off before they started strangling his neck.

         As to the offense itself, Appellant told Ranger Briley that Kyle and Littlefield came and got him from his house and they drove down to the country and did some shooting sports. He explained to Ranger Briley that Kyle and Littlefield were head hunters and were trying to hunt people down. He admitted that he killed Kyle and Littlefield with a nine-millimeter pistol. He said that he fired "a couple, few" shots and that he was "right up close to them." They just lay there after he killed them; they were not breathing anymore. It happened around two or three o'clock. With regard to Kyle, he explained that he knew that, if he did not take Kyle's soul, Kyle was going to take his soul next or have one of Kyle's gangsters take it.

         Appellant told Ranger Briley that he fled after he shot Kyle and Littlefield. He drove to his sister's house and asked her if she wanted to see the guns in the pickup. He reported to Ranger Briley that he told his sister that he had to kill a man and that it was not a "want to, " it was a "need"; otherwise, he "would be the next one out there getting [his] head shot completely off." Appellant told Ranger Briley that he understood the difference between right and wrong and that he knew what he did was wrong. He said that he knew killing them was wrong. Appellant asked Ranger Briley whether his parents had made it yet. He wanted to give his mom a hug one last time.

         Appellant told Ranger Briley that he was sorry for what he had done and that he wanted to get help. He wanted to tell the family that he was so sorry for what he had done and that, if he could have done it differently, he would have done it so much differently.

         In addition to Ranger Briley's testimony that Appellant had admitted to him that he killed Kyle and Littlefield, Gene Cole, a deputy at the Erath County Sheriff's Office in 2013, testified that, while he was on duty at the Erath County Jail, he heard Appellant say, "I shot them because they wouldn't talk to me." He further heard Appellant say, "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 wouldn't talk to me, I'm sure they've forgiven me."

         Based on Appellant's responses to Ranger Briley's questions about whether Appellant knew what he did was wrong, Ranger Briley believed that "clearly [Appellant] knew what he was doing was wrong." He explained that Appellant was able to recall specific details about the trip to the gun range, one of the murder weapons, and the crime itself. Ranger Briley also believed that Appellant knew what he did was wrong because Appellant used the word "fled" when he told Ranger Briley what he did after he left the scene.

         Ranger Briley asked Appellant whether he had used drugs at all that day, and Appellant told him that he had used marihuana. Ranger Briley asked him if there was anything else, besides marihuana, and Appellant said, "[Y]ou can't trust anything in Texas . . . because it's usually laced up, you know, laced up so f---king tight with different drugs." In response to Ranger Briley's question of what the marihuana would have been laced with if it was laced, Appellant responded that the marihuana could have been "wet" with "Purple Hearts" or laced with anything, including formaldehyde.

         Officer Salazar and Texas Ranger Ronald Eugene Pettigrew described "wet" marihuana as marihuana that had been dipped in Phencyclidine (PCP) or formaldehyde. They explained that "Purple Hearts" was a slang term for a form of marihuana that had higher THC levels or was more potent than other strains; the strain was also called "Purple Kush." Ranger Pettigrew agreed on cross-examination that, in order to know whether marihuana was "wet, " it had to be tested by a chemist. However, the State's chemist explained that the presence of formaldehyde could not be tested because formaldehyde was a very volatile chemical that evaporated very quickly and would most likely evaporate by the time it was received for testing.

         Texas Ranger David Armstrong and other Texas Rangers searched Appellant's house and found several items of drug paraphernalia. Specifically, they found two pipes, two packages of rolling papers, a rolling mechanism, a grinder, a bong, a ceramic smoking device that looked like a cigarette, and a leafy substance that was later identified as marihuana. The marihuana and drug paraphernalia did not test positive for any foreign substances such as formaldehyde. Ranger Armstrong testified that he smelled marihuana in the house but admitted that he did not put that in his report. He did not touch the pipes or the bong to see if they were warm.

         Ranger Armstrong also testified that there was a whiskey bottle that was "not even a quarter of the way full" on the kitchen table but that he had no idea when someone last drank out of it. He also found a prescription bottle of risperidone, an antipsychotic medication that was prescribed to Appellant, on top of the refrigerator.

         Appellant was not subjected to a blood draw, nor did the investigating officers pursue a warrant to seize Appellant's blood. Ranger Armstrong testified that he did not get close enough to Appellant to smell alcohol or marihuana on Appellant and that he did not remember any of the other officers that were at the scene of Appellant's arrest telling him that they smelled alcohol or marihuana on Appellant. Ranger Briley testified that he did not smell alcohol on Appellant during his interview of Appellant. However, Sergeant Kenny Phillips, who was working at the Erath County Jail in February 2013, testified that he believed that Appellant was under the influence when he transported Appellant from the Lancaster Police Department to the Erath County Jail.

         Texas Ranger Michael Adcock testified that he found a receipt from Taco Bell in the driver's side door of Kyle's pickup. The receipt showed a purchase of two bean burritos from the Taco Bell in Red Oak at 6:50 p.m. on the night of the incident. Texas Ranger Pettigrew found a cell phone in the center console of Kyle's pickup. He took that cell phone, which was later determined to belong to Littlefield, and Kyle's cell phone found at the scene of the crime to the Secret Service for analysis.

         Jeff Shaffer, who was employed by the Secret Service during the time of the investigation and specialized in digital forensics, testified that he received three phones to analyze: one belonged to Kyle, one to Littlefield, and one to Watson. Shaffer retrieved several text messages between Kyle's and Littlefield's phones regarding Appellant. The first message was sent from Kyle to Littlefield at 2:30 p.m. on the day of the offense and read: "[T]his dude is straight up nuts." At 2:32 p.m., Littlefield responded to Kyle: "[S]itting behind ...


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