Winfrey, Megan AKA Megan Winfrey Hammond

WINFREY, Megan Megan a.k.a.

Winfrey Hammond,

Appellant

The STATE of Texas.

No. PD-0943-11. Appeals

Court of Criminal of Texas.

Feb. 2013.

Rehearing April Denied Baccus-Lobel, Dallas, TX,

Shirley Appellant. Countiss,

Richard N. Attorney, District TX, McMinn, Coldspring, Lisa C. State’s Austin, TX, Attorney, for State. OPINION JOHNSON, J., opinion delivered the PRICE, WOMACK, in which Court KEASLER, HERVEY, COCHRAN, and ALCALÁ, JJ., joined. Burr, August Murray

In a man who at the high worked local school that attended, was found dead in his home with numerous stab wounds and multiple sharp- injuries. and blunt-force years missing old in 2004. was from the victim’s home was a Appellant was sixteen house, Bible. His wallet was in the investigation that includ after except body, nothing for the blood and the lineups, appellant and her dog-scent ed appeared the home to be disturbed. into custo father and brother were taken later, Some time a relative that he said Her in dy charged with the murder. and thought guns that two were missing. capital contained two counts: dictment robbery of and during murder the course hair, Investigators collected blood and Her conspiracy capital to commit murder. samples, bloody footprint, DNA fin- and co-con father and brother were named as gerprints places from various in the house conspiracy in the count. A spirators and a DNA swab from women’s underwear appellant convicted of both counts. The that They was found Burr’s bedroom. im appellant trial court sentenced to life also a casting footprint took of a in the count prisonment capital-murder for the yard. samples front Hair recovered from the forty-five years’ imprisonment and for body partial Burr’s contained a female conspiracy appeals count. The court of af DNA DNA profile. profiles that were convictions, justice with firmed the one developed from the collected items either State, Megan Winfrey v. dissenting. any matched the victim or not match did (Tex.App.-Beaumont at least nine who were ques- individuals 2011).1 judgment We reverse tioned in regard physi- the murder. No acquittals render on appeals court of and appellant cal evidence connected or her scene, both counts. family nor were she or family member of her connected to the Facts property missing assumed to be Megan Winfrey Burr’s home. 2004, Murray Wayne In Burr August only 338 S.W.3d at 689. The evidence that murdered in his home. Evi- was found purported directly appellant connect at trial indicated that the victim had dence lineup” the crime scene was a “scent con- twenty-five cut times in been stabbed or by ducted Keith Pikett. head neck area and three times in and multiple the torso and had also received trial, Deputy At before Pik- produced blunt-force trauma that broken testified, Ranger ett Grover Huff testified injuries right jaw eye and orbit. No other lineup that he had the scent witnessed by medical exam- were noted the assistant samples. noted that appellant’s scent He iner. grass high too to see the cans on was lineup Deputy the video of the and that entry

There was no evidence of forced having reposition Pikett “is me the cans. A trail into the victim’s home. blood indi- react. The She doesn’t [the bloodhound] dragged the victim had been cated You something. wind had switched or bedroom, living from his room into his was.” way grass could tell found, body where his but there was Shortly that, struggle. no indication of a violent the 2007 Deputy Pikett testified at murder, family report- members dog-scent lineups, dogs after the the two both alert- they thought sample.2 item that Pikett ed ed on scent father, Appellant’s capi- jury acquitted appellant's A brother of also accused of this 885. murder, capital conspiracy. this same murder and tal convicted of the lesser-includ- Winfrey v. Richard ed offense of murder. His conviction' was (Tex.Crim.App.2010). n. 1 but, appeals affirmed the court of on dis- review, cretionary we reversed his conviction dog 2. An "alert” when the matches occurs judgment acquittal. Id. and entered a at collected from the victim to the sus- scent lick,” easy that Burr’s home “was an which he dog alerts reflected indicated being to her on money. scent dogs get took to mean she would alerted clothes, indicating Burr’s Robertson, Karen teacher or teacher’s clothing.3 Burr’s contact with had had school,5 high tes- assistant from voluntarily August In tified she saw in the summer interview Texas to an with a consented Burr at school ask appellant approach murder investigating this Ranger who was him, to take you going “When are me out swabs, voluntarily provided buccal money you spend have? We fingerprints him. pads, scent hid you money know have that [sic] order, 2006, pursuant to a court August of rebuttal, home.” In the state’s another attempted to obtain a sheriff deputy overhearing appellant teacher testified to but it pubic-hair sample appellant, “Somebody say, refer to Burr and should that that she had shaved was determined him,” although beat the out of that shit did such a morning; deputy the obtain acknowledged appellant teacher that then thirty days deputy later. The tes- sample voluntarily said appellant apologized consented to the teacher and she did tified request when the second was made. aloud not mean to have said that and that just she lived near Burr and “was tired of ex-boyfriend, King, Jason Appellant’s showed, all his cats.” Other evidence and for six months after the who had dated conceded, on appellant occasion she murder, appellant re- testified had home, and her Burr at his brother visited that a warrant ceived information search residence, conducted which to be for her was near their on their going was then that she shaved herself. way hair and to church. She also testified that the that, shaving King also testified after the Winfreys the go sometimes asked victim to incident, appellant phone received them, but that he church with would her that informing call her brother decline. arrested, went her ex- been to see On appeal, appellant direct claimed that Hammond, husband, and with him spoke legally factually the evidence was and in- having together attended concert about sufficient establish that she had commit- “King around the time murder. conspiracy ted the murder or the capital attempt understood the conversation as an commit capital alternatively, murder and Megan Winfrey, to establish an alibi.”4 that, Richard holding our upon based that, King at 695. related 338 S.W.3d also Winfrey v. 876-78 they “partying drinking,” while him the evidence going (Tex.Crim.App.2010),6 had told into was pad. Winfrey It was trial that the pect’s scent Richard established at concert case, and Hammond attended was Deputy n. 3. In body day on the the victim's discovered. dogs indicated that the in different Pikett alert Appellant did not raise the concert as an alibi. E.g., going "James manners. Bond is to turn can[,]” degrees right if he finds the while trial, 5. At the Robertson time of was em- bark, "Quincy going sideways to turn is ployed as the Crime Victim Assistant Coordi- going jump to turn and Clue is on [Pik- attorney’s nator for the local district office. ultimately V 74. But R.R. Pikett ett].” dog makes the decision as to whether a has support 6. The insufficient to evidence was the V R.R. 75-76. alerted. appellant's murder conviction of father for killing that appellant same named victim the the time at killing conspiring 3.We note that which a scent was to kill. convicted an item cannot be left on determined. Id. sufficient to establish that she had commit though even other conspirators ted those two offenses. have acquitted.” been Appellant

In reviewing sufficiency of the evi- asserts unless the ca- convictions, nine scent lineup is dence to the court treated as primary evidence, “there is appeals dog-scent no evidence lineup set aside the which im- plicates appellant in this murder evidence either because such evidence was insuf- directly or by application of the law beyond ficient to establish parties.” She argues that the majority Megan Winfrey, reasonable doubt. opinion of the court of appeals conflicts reviewing S.W.3d at 694. After all of the with our decision in Richard Winfrey, 323 evidence, other including evidence at the supra. Appellant contends scene, appellant’s crime statements and “[i]t inconceivable that did conduct, and an informant-inmate’s testi- not convict on the basis of the scent line- mony about appellant’s purported father’s ups[,]” regardless of the court appeals’s statements while incarcerated nearly two attempt analyze wholly murder, years after the court of regard without dog-scent lineup. peals sup- determined that the evidence argues She that the dog-scent lineup evi- ports jury’s decision and thus affirmed dence “is sufficiently reliable to be Id., judgment. passim. The court of any weight, accorded even a supporting that, appeals regard also held with to ap- role.” conviction, pellant’s conspiracy the fact that appellant’s alleged co-conspirators conducting a legal “[W]hen suffi (her brother) father and her were either review, ciency this Court considers all evi of, with, acquitted or not charged conspira- trial, dence in the record of the whether it cy being did not her from bar convicted of was admissible or inadmissible.” Dewber conspiracy. Id. at 698-99. State, (Tex.Crim. ry v. 740 State, App.1999). See also Conner v.

Capital Murder S.W.3d 197 (Tex.Crim.App.2001) granted We review (“When of two conducting review, a sufficiency grounds. ground challenges Her first admitted, we consider all the evidence capital-murder conviction and asserts that whether proper improper.”); or Powell v. State, appeals’s the court of holding that 507 (Tex.Crim.App. 2006) (“[A] legally reviewing evidence was permitted sufficient to sustain court is consider all evidence in that conviction conflicts with the trial-court rec this Court’s ord, inadmissible, whether admissible decision in Winfrey Richard v. making a legal-sufficiency determi respect “with to the same nation.”). Thus, regardless of whether the evidence and with this Court’s decision in dog-scent lineup properly evidence was ad (Tex. v. Brooks S.W.3d 893 [323 mitted, properly such evidence is consid Crim.App.2010)], requires rigorous which ered in a review of the sufficiency of the proper application Virgin of Jackson v. evidence. exacting ia' s standards.” Her second

ground challenges the conspiracy convic The court of appeals specifically stated questions tion and “the appeals’[s] court of dog-scent lineup that “the evidence is in- holding, contrary to the dictates of sufficient to [appellant's guilt establish be- 15.02(c)(2), Code, § Texas Penal yond doubt, that a a reasonable and we set it conspiracy conviction for can be sustained sufficiency aside from our review”7 and Megan Winfrey, 338 S.W.3d at 694. dog-scent lineup Winfrey, supra, In Richard we dis- consider thus did not use ca- cussed evidence involves sufficiency review of the in its human among nines differentiate scents discretionary In its brief on the evidence. identify specific person in order to in a review, does not assert that the the state lineup, i.e. human-scent discrimination. in doing erred so. We do appeals court of ultimately inculpatory We held “when evidence, lineup dog-scent that the observe dog-scent evidence is obtained from line- dog alerting scent with the up, merely role in the courtroom its clothing, simply indicates on Burr’s supportive.” Id. at 884. We concluded contact with had had some “when dog-scent lineups, used alone timing, cir- clothing, although Burr’s evidence, primary legally or as are insuffi- cumstances, degree of that contact support cient to a conviction.” Id. While a cannot be determined. dog-scent lineup might have raised a Virginia, apply We Jackson “strong suspicion” father’s 307, 99 61 L.Ed.2d 560 443 U.S. S.Ct. guilt, standing alone it was insufficient to (1979), reviewing the standard for beyond a establish his reasonable determining of evidence. “In sufficiency Appellant argues doubt. Id. at 885. legally the evidence is sufficient whether dog-scent lineup evidence is even less conviction, reviewing court her, incriminatory points while the state all of the evidence in the must consider multiple evidentiary facts which it in- light most favorable to verdict and incriminatory, sufficiently sists are above whether, determine based on that evidence beyond the dog-scent lineup evidence. therefrom, inferences a ra and reasonable Thus we must review these additional evi- have tional fact finder could found the dentiary they facts to determine whether beyond of the crime essential elements prove appellant’s guilt. are sufficient to reasonable doubt.” Gear v. Appellant principle asserts that the evi- (Tex.Crim.App.2011), cit by dence the appeals cited court of —her ing Virginia, Jackson v. 443 U.S. at 318- ex-boyfriend’s testimony that she called Brooks, 2781. In we supra, 99 S.Ct. lick,” Burr an “easy jailhouse and the that, viewing when the also determined testimony formant’s that her father told light evidence in the most favorable to the him supposed that one of his kids was verdict, reviewing required “the court is to let him into Burr’s house—does not impli- credibility jury’s weight defer to the and crime, cate in place her nor does it her determinations because the is the sole at the at or scene near the time of the credibility judge of the witnesses’ and the that, murder: She contends weight given testimony.” to be their prism outside the tainted of the “[v]iewed Brooks, Jackson, citing 323 S.W.3d at evidence, dog-scent two pieces these of supra at 319 and 99 S.Ct. 2781. The weak sup- circumstantial evidence do not properly court of noted that appeals stan port a reasonable that appellant inference unnecessary dard for ev murder, “[i]t in knowledgeable was involved ery point directly independent fact to murder, present about the or even at the accused; ly guilt enough of the it is time of the crime.” Appellant also asserts if the finding is warranted no testimony presented there was incriminating murder, cumulative force of all the implicated trial her in the Megan Winfrey, evidence.” 338 S.W.3d at physical there was no evidence that con- Burr, citing Johnson v. nected her to crime scene or 183, 186 evidence, physical there (Tex.Crim.App.1993). including blood, DNA, hair, footprint provided pubic-hair sample. Appel- in Burr’s mem- family not match her or her Appellant that did lant’s brief at 38. also suggests could not be that, and for which the source bers in light unchallenged testimony of her suggests nearly all of identified. She area, ordinarily that she her pubic shaved that she would evidence was of the sort her ultimate provision pubic-hair of the introduced, the state not done so. have had sample, and her earlier full cooperation providing samples other that would have Appellant acknowledges testimony that been used to determine whether of the say her to Burr one of her teachers heard forensic evidence from the crime scene money knew he hidden at his that she had connected her it—the purpose same home, but notes that there was no pubic-hair sample any speculation taken from money evidence that — conjecture predicated upon ex-boy- out that Burr’s points Burr’s home and residence, testimony atop timing wallet was still at the friend’s about the of the machine. She also discounts the washing shaving “seems faint indeed.” there was imply state’s efforts Appellant challenges testimony money missing Burr’s Bible. another of her teachers that she clenched Appellant questions also the incrimina- somebody her fist and said that should ting sufficiency testimony nature and Burr, “beat the shit out of’ purportedly ex-boyfriend that her had heard her dis- because she was mad about his She cats. they whether cuss with her ex-husband indicating notes evidence that she subse- night were at a concert the of the murder. quently friendly dealings with Burr She asserts that such a discussion estab- suggests without context or tim- nothing investigation lishes more than of a ing, the incident described this teacher alibi, possible any prudent per- for which weight, analysis warrants little even in an son, upon learning possibility that views the in the light most being criminally charged, would search his favorable to the verdict. memory, and that of close friends and Appellant asserts that none of the cir- relatives, in order to determine his where- evidence, separately cumstantial or cumu- abouts at the time a crime occurred and latively, beyond specu- rise to a level mere any discover witnesses who could may lation that “a criminal conviction and Echoing appeals’s an alibi. the court of properly upon speculation not rest and dissenting opinion, suggests that “this conjecture.” argues dog- She that “[t]he was not in sense evidence of the cre- lineups represented scent — ation of a alibi.” brief at Appellant’s false scientifically essentially authentic and explain the verdicts here” and fallible— Appellant questions the nature of the ex- “[tjhose com- suggests that verdicts do not boyfriend’s testimony that she shaved her port process with due and should be set that a pubic having area after learned aside.” search warrant had been issued to obtain a acknowledges The state that “review of out sample points of her hair. She with a begins the evidence in this case boyfriend that the never claimed that she State’s strong suspicion guilt.” of [her] previously, had not shaved that area strong suspicion brief at 14. Yet a of cooper- undisputed facts show that she legally with suffi- equate does not “by voluntarily in investigation ated guilt. discussing evidence of In our cient interview, submitting by provid- to an of swabs, opinion appeal in the of the conviction ing exemplars, scent buccal father, upon the state focuses fingerprints[,]” subsequently and that she 770 dog-scent dog

whether the evidence is corrob- was made to the scent evidence.” orated, ample that there is corrob- Appellant’s insists brief at 22. oration, and notes six items of corrobo- compares sugges state its rating argues it “connect evidence tion of corroborating dog- evidence directly to this brutal mur- [appellant] statutory require scent evidence with the Winfrey, supra,, der.” Yet Richard ment of Texas Code of Procedure Criminal we, acknowledging while like the Su- may art. 38.14 that conviction not be “[a] Washington, “believe that preme Court upon testimony accomplice of an dangers dog inherent the use of ‘[t]he unless corroborated other evidence can tracking evidence be alleviated tending to connect the defendant with the presence corroborating evi- offense committed.” “This rule is ‘statu ”8 dence,’ simply we held that “when that torily imposed review and is not derived inculpatory evidence is obtained princi from federal or state constitutional dog-scent role in lineup, its the court- ples legal that define the suffi factual merely supportive.” room is Richard ” State, ciency standards.’ Malone v. 253 State, Winfrey v. 323 at 884 S.W.3d 253, (Tex.Crim.App.2008), 257 Loucks, (quoting v. 98 State Wash.2d quoting Druery v. (1983)). spe- 656 P.2d We (Tex.Crim.App.2007); Solomon cifically lineups held “scent-discrimination (Tex.Crim.App. ... separate dog- to be and distinct from 2001) (“The accomplice-witness rule is not tracking scent evidence.” Id. at 883. upon based federal or state constitutional say dog-scent We did not that such line- sufficiency.”). notions of We do use up evidence must be corroborated to be accomplice-witness rule in evaluating legally guilt, sufficient evidence of evidence, sufficiency including evi merely rather that such evidence “is sup- dog-scent dence derived from a lineup. portive” of the remainder of the evidence. simply We review all of the evidence in the merely supportive evidence,

As dog-scent verdict, light most favorable to the and the lineup evidence cannot itself constitute dog-scent lineup merely sup evidence “is guilt. sufficient evidence of The state ac- portive” of the remainder the evidence.9 knowledges that the “issue of the admis- reviewing sibility all of the evidence in the dog scent evidence was set- requisite light, tled in her we include the six items of father’s case and need not be reargued corroborating here.” brief State’s at 28. The the state as- recognizes state also dog appellant directly same serts connect to the in- “[t]he 1) scent present evidence is in this stant case.” murder. These six items include: State’s brief at 14. Appellant testimony acknowl- that appellant believed that case, edges that objection home, no Burr money “[i]n in his and she dog-tracking activity again We note that ap- is the 9. We note since the court of performed by tracking dogs such as blood- peals dog-scent lineup did not consider the hounds, searching persons often when sufficiency evidence in its review of the of the missing thought who are or to be involved in sufficiency evidence—it "set it aside from [its] circumstances, a criminal act. In those the review”—and the state has not asserted that scent, dog scent, given is it and then follows that so, appeals doing the court of erred in we do following dog with humans where the propriety setting not consider the aside Dog-scent lineups per- leads. are activities reviewing sufficiency such evidence in by tracking dogs formed humans who use to the evidence. sample match a known scent to an unknown sample. scent 2) it; appellant’s jail wanted father’s cell- long as each inference is supported by the mate, Campbell, testified trial, evidence presented “juries are not specific father related information about permitted to come to conclusions based on murder, including the father’s speculation mere factually or unsupported house, children had let the father into the inferences or presumptions.” Id. at 15. repeatedly, Burr had been stabbed inference “[A]n is conclusion reached guns and that had been stolen from the considering other facts and deducing a log house, whereupon law-enforcement offi- consequence them,” ical while cials, guns who had not known that were “[speculation is mere theorizing guess missing, then talked to Burr’s relatives ing about possible meaning of facts 3) and that guns missing; confirmed presented.” Id. at 16. “A heard that her brother had conclusion reached speculation ... is murder, been arrested for the she asked sufficiently based on facts or evidence boyfriend to take her to her ex-hus- finding beyond a reasonable house, band’s allegedly to discuss their doubt.” Id. daughter, but instead discussed a pos- The circumstantial evidence that 4) murder; night sible alibi for the of the presents state as indicia of appellant’s guilt subpoenaed, after her ex-husband was ap- capital-murder appears offense pellant called his mother if to find out he speculative more than inferential as 5) going testify; when she learned pellant’s guilt. Campbell testified that ap- personnel that law-enforcement had found pellant’s father just told him that one of scene, a pubic hair at the crime his herself, gain children allowed him to access to allegedly prevent shaved hair; taking one, of a of her Burr’s house but did not sample say which 6) appellant boyfriend told her time, that she nor did he indicate the circum- went to Burr’s house because “it stances, was an or manner in which access to the lick,” easy which boyfriend construed gained. Campbell house was also testified to mean appellant thought get she would appellant, that he did not know had never money. her, met everything he being “hearsay asked was to this trial[J”

The state points testimony also that he right today there did not “feel drop testifying was a of blood underneath and drop top against on pressed by overturned vacuum her.” When defense counsel, cleaner in the closet and suggests that this Campbell conceded that “got he allowed the trier of fact to “draw the infer- the impression” father was ence that drops positioning these and their murder, stated, present during the could have occurred when the murderer that I “Everything saying today am was in the taking guns closet hearsay....” Campbell also indicated that looking for items to steal.”10 appellant’s father’s main concern was that his kids were being framed for the murder

Circumstantial evidence is as and that he could why they not understand probative as direct evidence in establishing were going after his kids. While Camp- guilt, and circumstantial evidence alone testimony appears bell’s this trial some- can be sufficient to guilt. establish Hoo (Tex.Crim. incriminatory father, what per as to App.2007). juries testimony that permitted specifically While are to does not incul- draw multiple pate reasonable inferences as appellant. Perhaps tellingly, most any 10. DNA from the any any blood did not link of the evidence that connected of them to scene, Winfreys missing guns. to the murder nor was there the that, supports appel- not cleaner no connection to asserted repeatedly Campbell at DNA of things father him lant all because the those blood only told present drops any Winfreys. who had match of the been did not only someone know, that he would at the murder that, in reflects law record after law enforcement contacted family Burr’s about enforcement contacted how the victim’s pellant’s father described may guns the have been possibility off and “crammed into” penis had been cut brother-in-law, taken. who had Burr’s If that been the mouth. claim had victim’s possession seen in Burr’s several guns the fact, have surely would been noted it and, murder approxi- months before the not; examiner, but all the medical was mately the three to five months before head, neck, injuries were to the victim’s murder, home, one in had seen Burr’s back left arm. and that, guns after the murder the confirmed appellant’s shaving of of The evidence and were not in Burr’s home have never significant much her hair seems less However, there been located. was no evi- unchallenged testimony in of her light indicating dence when and under what cir- it, provision she her later regularly shaved gun guns the or removed cumstances requested sample, of and the determi- the home, appel- from Burr’s no evidence that not hair that her hair did match a nation any lant had involvement with removal the scene. to regard recovered from With home, gun of the from the or that guns or with her speaking ex-husband guns during were removed the course attended a concert around having about of the murder. Burr’s sister testified murder, perceive the time we do not through she walked the house after any simply discussing indicia murder, noted that Burr’s Bible murder; possible a for the time of alibi testimony missing. Her not in does non-statutory alibi legitimate is a defense. any way in implicate appellant the removal any particular We also fail to discern of the Burr’s home prove Bible from or appellant contacting her ex- crimination money there had been hidden in it. he husband’s mother determine whether finding a Basing testify going Appellant’s trial. guilt on evidence and all of the other expression knowledge that Burr had best, is, at “mere theorizing evidence home that money his she wanted appellant’s possible guilt about guessing” that she went to his house because “it was rather than a reasonable inference based an easy any lick” does not reveal action on upon presented. and facts “A evidence part actually kill Burr take his by speculation conclusion reached ... money, incriminatory and it is even less sufficiently based on facts or evidence police investiga- when we consider that the beyond finding tion reasonable was unable to determine that doubt.” at 16. Hooper money during had been taken from Burr After in the reviewing all evidence course of the murder.11 The state’s verdict, suggestion light guilty favorable to the appropriate of an inference12 most drops drawn we hold merely from blood on the vacuum raises 11. if when die When asked at trial she understood Burr could have occurred murderer was stated, money, appellant “No. taking guns looking have lot of in the closet janitor." He was a may very items That inference well to steal.” it, one, appropriate be but without a DNA suggests drops The state the blood appellant, or other connection to does not allowed the trier of fact to the infer- “draw implicate her. drops positioning ence that these their suspicion appellant’s guilt legally and is does not contain evidence on which a rea- capi- insufficient to a conviction of sonable could find that agreed with beyond tal murder a reasonable doubt. one or both of the alleged co- Accordingly conspirators we sustain first that one or more of them would ground engage for review. conduct that would consti-

tute alleged capital murder or that one Conspiracy Capital to Commit Murder performed or more of them an overt act in pursuance agreement. of such an Appel- appeal, appellant argued

On direct lant addressed and argued the issue of the evidence was insufficient to establish agreement in her brief to the court of conspiracy that she had committed to com- appeals: “The produce State could not Court, mit capital appel- murder. In this single witness that was produce able to lant notes “that the conduct at issue is an Appellant evidence agreed [that] with agreement. It agreement is the that de- anyone Murray to murder Burr in the conspiracy.”13 Alternatively, fines she as- robbery.” course of a' Appellant’s brief on 15.02(c)(2) § serts that permit does not appeal at responded 33. The state in its conspiracy conviction for when the only agreement brief: “The to commit conspirators acquitted other have been crime may be inferred from the acts of the contrary holding by that the the court of parties.” State’s brief on appeal at 30. appeals constitutes fundamental error.14 And, although the majority opinion did not 15.02(c)(2) § The state asserts that explicitly agreement element, address the correctly. construed It notes that two dissenting opinion the court of people have not acquitted, been as the peals noted that the issue had been raised requires argues statute and, implicitly, majority: overruled attempting to circumvent the first ele- person “A commits the offense of conspira- 15.02(c)(1) statute, § ment of the it—that if, cy felony with intent that a be commit- prosecution is no defense to for criminal ted, agrees persons with one or more conspiracy that “one or more of the cocon- engage in conduct that would constitute spirators criminally responsible is not offense, performs and she an overt act object offense[.]”15 in pursuance agreement. of the Tex. Pe- 15.02(a) (West 2003).... We find we do not need to § nal Ann. Code proper Moreover, evidence, address the interpretation of the there was no other evidence, statute in this case because the record than lineup the scent from which 15.02(a) provides person person being acquitted Section that a one and the other con if, victed, conspiracy resulting conspiracy commits criminal with intent in a of one. Such committed, 1) felony agrees that a be he with a result is barred. Barber v. 1988) (In persons they one or more (Tex.Crim.App. or one or more engage § of them in conduct that criminal-conspiracy prosecution, would consti- 15.02 offense; 2) tute the person acting he or one or more of "[o]ne alone cannot commit performs pursuance conspiracy."). them an overt act in 15.02(a). agreement. § Tex. Penal Code briefing 15.We observe that the state’s on this 15.02(c)(2) provides, page 14. Section conclusory "It is no de- issue consists of one state- prosecution conspiracy only meaning fense to for criminal ments and addresses (2) conspirators only that: ... one supporting authority or more of the statute. The is a acquitted, long opinion has been so two or more citation to a 2010 from the Texas coconspirators acquitted.” Supreme have not been "[p]lain Court that holds that mean- Presumably, person ing applying "two” includes the on is the dominant factor in a stat- presumption, trial. Without conspir- such ute.” The state out sets no acy persons agreement, between two could result in and we find none in the record. 774 Winfrey between and her in the agreement wrong light give

an and fails to brother or to commit the crime father the deference that it is I due. would hold Megan Winfrey, could be inferred.” in the light, viewed correct the evi- J., (Kreger, dissenting). 708-09 Because support appellant’s dence is sufficient to (and rejected) the issue was raised in the convictions. below, properly court it is before this Court.16 Principles A. General Regardless acquittal of whether the of Virginia,1 Under Jackson v. the stan- brother of conspiracy, com- for determining sufficiency dard of the acquittal bined with her father’s “whether, viewing evidence is after murder and the election not state’s evidence in light most favorable to the him for conspiracy, dict constituted a de- prosecution, any rational trier fact of could prosecution fense to the for the criminal have found the essential elements of the in conspiracy, the record is beyond crime a reasonable doubt.”2 A insufficient to the agreement sustain ele- reviewing court engage must not in a di- conspiracy ment of the Appellant statute. vide-and-conquer approach to the evi- is thus entitled to the requested relief dence3 must consider the cumulative regarding her criminal-conspiracy convic- evidence,4 force of all the including im- tion. “[wjhen properly admitted evidence.5 And judgment We reverse the court of inferences, supports the record conflicting appeals and judgment acquittal render a presume we the factfinder resolved States, for each offense. Burks v. United prosecution conflicts favor of the 1, 18, 2141, 437 U.S. 98 57 1 S.Ct. L.Ed.2d and therefore defer to that determina- (1978) (which required remedy 6 tion.” pellate acquittal on grounds evidentiary insufficiency). (Capital B. Evidence a Crime Murder) was Committed

KELLER, P.J., dissenting filed a It undisputed that Murray Burr opinion. died and that his death was a homicide. MEYERS, J., dissented. (seen There was also evidence that a Bible KELLER, P.J., filed a dissenting approximately days four before the mur- opinion. der) guns (purchased and two several earlier) missing It months appears to me that from the res- finding the evidence insufficient to idence. This support appellant’s evidence was sufficient to convictions, the Court views the evidence an inference that someone eom- See, State, 772, e.g., 16. v. (Tex.Crim.App.2007)). 323 S.W.3d 778 Benavidez See 179, Jackson, (in (Tex.Crim.App.2010) 183 & n. 20 its also 443 U.S. at 99 S.Ct. 2781. discretionary-review capacity, this Court re- Clayton, 3. 235 S.W.3d at 778. appeals; views “decisions” of the courts of issue that the pass upon lower court did not Sorrells, (quoting Clay 4. 343 S.W.3d at 155 review). ordinarily ripe for our ton, 778). 235 S.W.3d at 1. 443 U.S. 99 S.Ct. 61 L.Ed.2d 560 State, (Tex. 5. Neal v. 277 (1979). Crim.App.2008). (Tex. Sorrells, 2. Sorrells (quoting Clay 343 S.W.3d at 155 ton, 778). Crim.App.2011) (quoting Clayton v. 235 S.W.3d at Moreover, remaining jury murder. The a rational could capital mitted a have con- taken, then, cluded that items of value is what evidence connects question, Bible, namely guns two and a ration- to the crime. appellant jury might al have concluded that Bi- the Connecting Appellant C. Evidence ble possibility was taken because of the to the Crime Further, money might that be inside it.7 below, will be discussed in more detail 1. Confession appellant made statements before the King, appellant’s ex-boyfriend, Jason murder indicated that she thought occurred, testified that after murder money. that Burr had appellant drinking, had been relating make comments would sometimes 2. Motive Burr’s murder. asked whether When Although by motive does not itself es- why would indicate she would do appellant committed, tablish that a crime been has it house, anything go to Burr or over to his significant can be linking some- said, Jason “Her words were it was an one to a crime and indeed can be glue “the easy interpreted “easy lick.” Jason together.”8 holds entire case appellant lick” comment to mean that thought they get money. The would Court “Easy a. Lick” says appellant’s “easy lick” statement Even if “easy lick” statement were part “does not reveal action on her confession, not viewed as a it would at money,” kill actually Burr and take his but least show motive to commit the crimel wrong this views the statement from the Moreover, the record two contains other assuming that it refers to a perspective, showing a incidents motive to rob and kill possible “might” motive—a reason she do Burr. something. jury A rational could have inferred that statement “it was b. Incident Observed Robertson an easy lick” described instead actual murder, a month before the About past, event in the and therefore was an employee school district named Karen capital admission to involvement in the run, appellant up, jump Robertson saw that appellant’s murder. Given statement “Oh, grab say, Burr the arm and Mur- tense, in the is the more past is ray, Murray, you going when are to take meaning. reasonable money me spend out and some The evidence in Court discounts this you money have that you have? We know part police because the were unable to hid at home.” Robertson testified that any money determine whether was taken embarrassed, appellant Burr was shook during police’s the murder. But the ina- loose, on In and went about his business. money bility to determine whether footnote, tes- the Court notes taken, taken does not mean that none was timony that she knew that Burr did not nor does it mean that someone did not money have a because he was a lot attempt money. example, to take For janitor, again viewing Court there was evidence that Burr’s wallet was wrong perspective. evidence from the machine, washing on found which could did not to believe have suggest through testimony. that someone looked it. PD-0438-12, possibility by a No. 2013 WL

7. This was discussed witness 8. Hacker Tex.Crim.App. LEXIS at trial. 16, 2013). January (Tex.Crim.App. at 22-23 Hair Shaving Pubic King b. by Debra Observed Incident c. that, after also indicated The evidence incident, De- schoolteacher separate In a a warrant to obtain her becoming aware of Burr in appellant and King saw Jessup bra hair, shaved herself. Debra hall. As in the conversation testi- colloquy, King Jason following away, and Burr turned proached, fied: said, “Somebody her fist clenched information Megan receive Q. [D]id him.” After- out of beat the shit should be going warrant was to that a search saying that wards, for apologized appellant ham? regarding pubic conducted was and said that she out loud statement Yes, A. sir. jury The did not all cats. tired of his just you know what she did Q. Okay. Do for explanation odd believe this have to information? got when she Burr, regard- but angry why she was Yes, A. sir. other less, reveals a motive this incident Q. What did she do? murdering anger. Burr: for greed than A. She herself. shaved Wick, Depart- from the Sheriffs Katherine 3. Consciousness Guilt/Cover- ment, the first time she tried testified that up/Perjury appel- pubic sample a hair to obtain could have been incidents order, Several appellant a court pursuant lant jury showing morning. as pubic a rational her hair that viewed had shaved easily have believed jury A rational could guilt of her own consciousness pellant’s pubic her hair be- crime, appellant shaved both up cover attempts to give the authori- she did not want to cause during trial. before and might connect her to the ties evidence that crime.10 to Establish Alibi Attempt a. significance of The court discounts the appel- that he and King testified Jason gave “un- appellant this evidence because house, and went Hammond’s lant to Chris testimony” regularly that she challenged Hammond they arrived she talked to hair, because she later pubic shaved her nothing The sees an alibi. Court about sample, pubic a and because provided alibi this incident because significant about recovered from did not match the hair hair A statutory defense. ra- legitimate is a scene, views the again but the Court way, have seen it that jury could tional wrong perspective. from the have inferred jury could also a rational did not have to believe jury trying to establish a appellant always self-serving statement hair,11 in up especially light her involvement in false alibi to cover shaves her testimony indicating that of Jason’s the murder.9 State, plice as to to remain silent v. 282 S.W.3d 510 9.See Simmons it.”). (about get volvement (Tex.Crim.App.2009) attempt exonerating sign the de- affidavit someone could, "Although juror a rational Bartlett v. fendant: 10. See stated, (refusing (Tex.Crim.App.2008) to submit to a appeals find that the court of test tends to show consciousness an inno- breath be construed as the efforts of 'could man, prosecution). in a DWI currently facing serious criminal cent name,’ charges, also be to clear his this could juror by rational as the efforts of construed 11. See Wise (jury guilty attempting responsibili- (Tex.Crim.App.2012) did not have to be- man to avoid uncontroverted by encouraging lieve defendant’s brother’s ty his accom- offense Q. shaving response you occurred to the war- What think going did he was testify about? rant. And when Wick could not obtain a time, sample appel- the first she advised A. I guess don’t know. I another char- that “if acter lant she shaved she would be in witness. order,”

violation of court so a rational Q. you Are afraid he had something jury could have believed that incriminating say you? about gave sample only because she realized Well, A. we are divorced. that she would consequences suffer for The says Court it fails to discern refusing a time second and would ultimate- particular actions, incrimination in these ly provide sample be forced to anyway. but a jury rational could believe that she

As for the fact that hair did not attempting to contact her ex-husband scene, match the hair at the a rational to influence his testimony or because she could have concluded that be- was afraid of what might testify he to.12 lieved there was a it risk would By concluding that episode is not match. criminating, the Court fails to view the evidence in the light most favorable to the c. Attempt to Contact Hammond verdict. during Trial Testimony d. cross-examination, During the State Supreme The recognized Court has questioned appellant attempting about testimony defendant’s trial that denies reach Hammond: wrongdoing can be considered as substan- Q. you explain jury Would why tive guilt jury evidence of if a could ration- you called Chris Hammond’s mother this ally believe that the testimony per- was morning wanting to talk to Chris? jured.13 holding apply This seems to even A. I not want did to talk to Chris. I when testimony merely the defendant’s de- why subpoe- called and asked he was wrongdoing,14 nies but it applies especially naed, if going testify. he was when the defendant makes affirmative Q. you But that? did in attempt statements of fact an to dis- A. Yes. tance herself from the crime.15 West, testimony (1993); purchased computer that defendant 122 317 L.Ed.2d 505 U.S. at 2006). 296, at a flea market in (citing Zafiro). 112 S.Ct. 2482 136, 12. See Wilson v. States, 7 S.W.3d 141 613, 15.Wilson v. United 162 U.S. 620- (an (Tex.Crim.App.1999) attempt tamper 21, 895, (1896) ("[I]f 16 S.Ct. 40 L.Ed. 1090 with a witness evidence of consciousness of jury were satisfied evidence that guilt). false statements in the were made case defendant, behalf, instigation, or on his at his West, 277, 296, Wright v. 505 U.S. 112 , they right had the not to take such state- 2482, (1992). S.Ct. 120 L.Ed.2d 225 See also ments into consideration in with connection 556, (Tex.Crim. King v. 565 all the other in circumstances case (false App.2000) statements to the media indi determining whether or not defendant's con- guilt cated a attempt consciousness of and an satisfactorily explained by duct had been him crime). up cover innocence, upon theory of his but also to regard explanation false statements in or de- Zafiro, 14. United States 945 F.2d (7th Cir.1991) ("The procured fence made or to be made as in government cannot force West, stand, course, tending guilt.”); themselves to show a defendant to take the if (citing charges 505 U.S. at 112 S.Ct. 2482 Wil- jury he does and denies the and the liar, ); parte Napper, thinks he's a this becomes son Ex evidence of evidence.”), (Defendant (Tex.Crim.App.2010) to add to the other on showed his aff’d grounds, other guilt, 506 U.S. 113 S.Ct. "own consciousness of as he advanced Lineup testimony, appellant 4. Scent denied During her crime, in the but she also any involvement Pikett of the Deputy Keith Fort Bend affirmative statements made least three County Department conducted Sheriffs her to convince the attempt lineups” using “scent his trained blood- proce- hounds. have discussed We jury could have disbe- innocence. involving appellant’s dure in the case fa- already I have lieved these statements. case, present suspect’s ther.17 In the each (1) not of these: that she did discussed two separate along in a placed lineup scent was money lots of because he think Burr Deputy with control scents. Pikett (2) always that she janitor, Ranger Grover Huff both testified that the hair. The third state- shaved dogs alerted on scent and also testimony ment that she on the of her father and brother.18 scents “easy what an lick” meant did know not They Deputy Pikett also testified that did it was a term used for discovered samples not know which of scent be- illegal transactions: drug longed Deputy Pikett appellant, dogs sepa- testified kept fact, somebody to ask what an I had rate in his truck compartments and did drug-relat- was. I believe easy lick it’s lineup. watch each other conduct the On ed, drugs selling picking up like cross-examination, Ranger Huff testified something to that nature. I drugs or conditions, due to wind it took a know what meant. I do didn’t even dog second the first alert on pass terminology.16 use appellant’s scent. jury appel- could have believed that case, Winfrey, Sr.’s Richard we held respect lant with all three of lying lineups, “scent-discrimination statements, and in these these turn taken evidence, primary used or as are alone attempts up her falsehoods as cover legally insufficient to a convic- guilt. explained dangers tion.”19 We 470, 2012, implausible explanations attempt (Tex.App.-Texarkana in an pet.). to dis- no 473 State, 615, from evidence tance himself that tended to 272 See also v. S.W.3d Martinez crime.”). link him to the (Tex.Crim.App.2008) ("get 632 n. 10 a lick” robbery-murder). phrase to a At used to refer 16.A LEXIS search reveals that the term unpublished least one decision testi involves "easy appears unpublished in two lick” cases mony slang "go a lick” that "hit is street for robbing Torrey a reference someone. v. someone” but could refer to rob also 2-08-042-CR, 1565032, State, No. 2009 WL State, selling dope. v. Burnside No. 11 - 10- 4, 3951, Tex.App. at 4 1-2 n. 2009 LEXIS at 00371-CR, 3765065, 4, WL at 2012 2012 Tex. 2009, 4, (Tex.App.Fort n. 4 Worth June no 7399, App. (Tex.App.-Eastland LEXIS at 10 (not pet.) designated publication); for Alcorn 2012, (not designated pet.) publica no for State, 14-05-01195-CR, v. No. 2007 WL tion). 582292, 3, 1407, Tex.App. 2007 LEXIS at 8 27, (Tex.App.-Houston February [14th Dist.] State, (Tex. Winfrey 17. See v. 323 S.W.3d 875 2007, ref’d) (not designated pet. publica Crim.App.2010). tion). published Several cases refer to the phrase involving “hit a lick” as similar rob pads 18. Scent from Hammond and two other State, bing stealing. Walter v. 267 S.W.3d suspects who were individuals were also (Tex.Crim.App.2008); 887 Amador v. placed lineups, dogs but the did not alert State, (Tex.App.-Houston 341 on them. ref'd); pet. Cooper [14th Dist.] (Tex.App.-Austin pet. granted); Medina v. 19. Id. at 884. using type Campbell of evidence But father told with associated that one of his two children him only by presence helped could be alleviated evidence, inculpatory gain so re- access to the home. From that testi- corroborating lineup mony, jury could be used was entitled to believe that sults from a scent present Winfrey, in a role.20 In the one Richard Sr.’s two children supportive case, help connects did indeed him gain other evidence exists that such access. crime, Moreover, scent-lineup Lacy Rogers to the so the Sheriff said that appellant brother, role in between plays only supportive appellant appel- and her individual, regard, In that lant was the dominant supporting this conviction. the lead- evidence, er, Also, in com- while lineup the scent is some her brother was a follower. case, appellant Ranger bination with other evidence told Huff that she had an appellant ability that connects to the crime. But to control men in her life. The above, and as will be dis- evidence at trial as discussed showed that it below, enough there is evi- was expressed cussed further who motive to crime dence to connect rob or hurt Burr on three different occa- sions, considering having without the scent evidence. that she was the one seen

unusually familiar contact at school with Appellant’s janitor, 5. Statements Father and that she was the one who initially resisted hair providing sample. Campbell, sharing David an inmate Nothing in the record points to similar father, cell with informed the brother, except conduct he had with authorities of conversations go two of them would often to Burr’s Sr. father Winfrey, Appellant’s Richard way house on their to church and invite en- Campbell told that one his children along. him to come Given all of this evi- home, him gain abled access to Burr’s dence, rationally could have afterwards, that the murder occurred in fact appellant ferred was the child repeatedly, Burr was stabbed and that two him spoke helping that her father of as guns Campbell were taken. Until came gain access to Burr’s home. information, police forward with the guns missing had been unaware that were Sign Entry 6. No Forced says from Burr’s home. The “there Court indicating Upon examining was no evidence when and un- the windows and doors home, sign Huff no gun guns Ranger der what circumstances the to Burr’s found home,” entry. were removed form Burr’s but that of forced He also noticed Campbell’s testimony except presence body, is not correct. for the bloodstains, about what father said was massive and an overturned cleaner, extremely guns some evidence that the were stolen vacuum the home was Elsewhere, during nothing place. the murder.21 neat and was out of Nor acknowledges Campbell’s any things Court testi- was there indication that mony incriminatory put struggle. Ranger as to been back after a “somewhat appellant’s father” but claims that the tes- Huff concluded that the absence of evi- timony specifically inculpate ap- struggle suggested does not dence of a that Burr violent attack. pellant. was killed in a sudden they bought 20. murder because had been within Id. dead, guns past year, Burr and the event, jury 21. In could have inferred missing after the murder. guns were the time that the stolen at Because the conspiracy.23 combination, raises the murder this evidence contrary, respectfully killed someone I Burr was Court holds likelihood opened have knew,22 he would someone he dissent. for, took him sur- who then

the door Burr lived quickly. him and killed

prise family who lived else- some

alone. He had no indi-

where, enforcement found but law Appellant girlfriend. he had a

cation that Burr’s inside that she had been

testified and that she to six times

house four Burr to come regularly asked

her brother always but that he with them to church HOBBS, Lynn parte Ex Patrick testimony, own By so. to do declined Applicant. been someone would have appellant AP-76,980. No. the door for and have opened Burr would home. allowed into his of Texas. Appeals of Criminal Court Agreement D. Evidence March Conspiracy for that there was no contends Court appel- agreement of an between alleged co-conspirators. and one of the

lant exis- have inferred the jury

But the could appellant agreement between tence of Gelb, Galveston, TX, Appel- Jeffrey for above, the As discussed and her father. lant. could have inferred Galveston, TX, At- District Roady, Jack her father to who enabled the individual County, Lisa C. torney, Galveston home, that her father access to Burr’s get Austin, McMinn, Attorney, State’s guns kill Burr and steal helped killed or State. Bible, at least with the gain her father access

helped OPINION stealing from killing Burr and intention him. information is sufficient for This PER CURIAM. jury to have inferred of Article provisions Pursuant to rob and agreement father had an Proce- 11.07 of the Texas Code Criminal kill the victim. dure, trial transmit- the clerk of the court E. Conclusion writ application for a ted to this Court parte Young, Ex corpus. habeas discussion, I From the above conclude Ap- (Tex.Crim.App.1967). that the evidence was sufficient of a plicant possession was convicted of capital convictions for both appellant's father and brother stand because 22. See Manns ("There sign acquitted. this is a dis- (Tex.Crim.App.2003) was no have been Because sent, claim in detail entry-indicating that the murderer I will not address the forced knew.”) likely the victim father someone other than to remark (on acquitted capital appeal) murder with, charged ac- never much less but was not address The Court does of, quitted conspiracy. conspiracy cannot claim that the conviction

Case Details

Case Name: Winfrey, Megan AKA Megan Winfrey Hammond

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 27, 2013

Citation: 393 S.W.3d 763

Docket Number: PD-0943-11

Court Abbreviation: Tex. Crim. App.