Richard Lynn WINFREY, Appellant, v. The STATE of Texas.
No. PD-0987-09
Court of Criminal Appeals of Texas
Sept. 22, 2010
Rehearing Denied Nov. 10, 2010.
323 S.W.3d 875
The original notice of appeal was timely filed insofar as a restricted appeal is concerned. It properly invoked the court of appeals’ jurisdiction, was timely amended, and the court of appeals erred by dismissing the appeal.
Although the State now concedes that the court of appeals should not have dismissed Sweed‘s restricted appeal, it nonetheless argues that Sweed‘s petition for review should be denied because his underlying case lacks merit.
We do not agree that the merits of Sweed‘s case are a consideration in determining whether he procedurally invoked the court of appeals’ jurisdiction. He is entitled to proper application of the appellate rules regardless of the merits of his underlying case. Furthermore, our decisions construing the appellate rules have not favored disposing of appeals on harmless procedural defects. Higgins v. Randall County Sheriff‘s Office, 257 S.W.3d 684, 688 (Tex.2008) (“Indigency provisions, like other appellate rules, have long been liberally construed in favor of a right to appeal.” (quoting Jones v. Stayman, 747 S.W.2d 369, 370 (Tex.1987))); see also Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997).
We grant the petition for review. Without hearing oral argument, we reverse the court of appeals’ judgment. See
Shirley Baccus-Lobel, Dallas, for Appellant.
Bill Burnet, Crim. D.A., Coldspring, Jeffrey L. Van Horn, State‘s Attorney, Austin, for State.
OPINION
Charged with the capital murder of Murray Wayne Burr, appellant was convicted of the lesser offense of murder and sentenced to seventy-five years in prison. We reverse the court of appeals and render an acquittal.
I. FACTUAL & PROCEDURAL BACKGROUND
In August 2004, Murray Wayne Burr was found murdered in his home. Evidence at trial indicated that the victim had been stabbed twenty-eight times and had received multiple blunt-force injuries, including a broken right-eye orbit and a broken jaw. There was no evidence of forced entry into the victim‘s home. The evidence indicated that the victim was dragged from his living room to his bedroom where his body was found. Family members reported that the only item missing from the victim‘s home was a Bible.
Investigators collected a variety of forensic evidence from the crime scene including: a partial bloody fingerprint, a bloody shoe print, and several hair samples. Neither the prints nor the hair samples matched appellant. Investigators were able to obtain a DNA profile from evidence at the crime scene, however, the profile excluded appellant and his family members.1 Appellant‘s children, Megan (then 16 years of age) and Richard Winfrey Jr. (then 17 years of age), became persons of interest in the murder investigation. Texas Rangers interviewed appel
In July 2006, the Sheriff‘s Department received new information about the Burr murder from David Campbell, an inmate in the Montgomery County Jail. Campbell testified at the trial that, while he was sharing a cell with appellant, appellant relayed information that he claimed to have heard about the murder; specifically, that “some kind of gun and some knife collection” were taken from the Burr residence. Appellant related other details to Campbell that he claimed to have heard about the murder, such as the victim‘s body being dragged from one room to another and the lack of forced entry. Appellant did not tell Campbell that he was involved in the murder.
To assist in the investigation, Texas Ranger Grover Huff contacted Deputy Keith Pikett, a dog handler with the Fort Bend County Sheriff‘s office. Deputy Pikett testified about a “scent lineup” that he conducted nearly three years after the murder in August 2007. He used his three bloodhounds, Quincy, James Bond, and Clue. This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including appellant. The dogs were “pre-scented” on the scent samples obtained from the victim‘s clothing. The dogs then walked a line of paint cans containing the scent samples of the six white males. All three dogs alerted on the can containing appellant‘s scent sample.3
Based on this, Deputy Pikett concluded that appellant‘s scent was on the victim‘s clothing. Deputy Pikett testified on cross-examination that an alert only establishes some relationship between the scent and objects and that scent detection does not necessarily indicate person-to-person contact.4 Deputy Pikett also testified on
Appellant complained on direct appeal that the evidence is legally and factually insufficient to support a conviction of murder. In its published opinion affirming the trial court, the court of appeals addressed the sufficiency of the evidence in a two-paragraph analysis. Concluding that the evidence was legally and factually sufficient, the court of appeals specifically found: (1) Deputy Pikett‘s canine-scent testimony provided direct evidence placing appellant in direct contact with Burr‘s clothing; (2) the jury could have reasonably concluded that appellant was in Burr‘s house at the time of the murder and that he had significant physical contact with Burr; (3) appellant shared information about the murder with Campbell that was not known, even by the police; and (4) appellant identified himself as the “number one suspect” in the murder at a time when the police did not consider him a suspect. Winfrey v. State, 291 S.W.3d 68, 75 (Tex. App.-Eastland 2009).
Pursuant to
(1) An important question implicating the administration of justice is presented by the Court of Appeals’ reliance upon a dog scent lineup to sustain the legal sufficiency of the evidence without regard to the inherent limitations of such evidence.
(2) An important question implicating the administration of justice is also presented by the Court of Appeals’ failure to properly evaluate the factual sufficiency of the evidence by addressing the inherent limitations of dog scent lineup evidence.
Appellant contends the evidence, when viewed in a neutral light, is factually insufficient to support a conviction of murder. He further contends that the evidence, even when viewed in the light most favorable to the verdict, is legally insufficient to support a conviction of murder. The State argues that the court of appeals applied the proper standards of review for legal and factual sufficiency and that a jury could have reasonably concluded that appellant murdered Murray Wayne Burr.
II. STANDARD OF REVIEW
We begin our analysis by addressing the question of legal sufficiency. When reviewing a case for legal sufficiency, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the
III. ANALYSIS
A. Appellant‘s Statement to Authorities
During trial, Texas Ranger Grover Huff testified that he interviewed appellant in 2004 and that appellant indicated that he was the number one suspect.
Q. And did he indicate whether he had ever been in Murray Burr‘s home?
A. He stated that he had never been inside of Murray Burr‘s residence.
Q. Did he indicate whether he thought he was a suspect?
A. Yes.
Q. What did he indicate?
A. His statement to me was he was the number one suspect.
In closing arguments, the prosecution emphasized this statement as evidence of appellant‘s guilt.
I think defense counsel said in closing there is nothing to put Richard Lynn Winfrey, Sr., in that trailer. Nothing to put Megan Winfrey or Richard Winfrey, Jr. First of all, early in the investigation, when they were looking at Megan Winfrey and Richard Lynn Winfrey, Jr., Ranger Huff said he went and talked to Richard Sr. They were looking at the kids. Kind of interesting, what was Richard Lynn Winfrey, Sr.‘s, words, “Well, I guess I‘m the primary suspect here.” He said he is the primary suspect at that point in time.
In its briefs to the court of appeals and to this Court, the State relies on appellant‘s statement as evidence of his guilt.5 Indeed, in affirming appellant‘s conviction, the court of appeals relied on appellant‘s statement, concluding that “appellant identified himself as the ‘number one suspect’ in the murder at a time when the police did not consider him a suspect.” Winfrey, 291 S.W.3d at 75. This statement is not tantamount to an admission of guilt. At no time during the interview did appellant admit to any involvement. Nor did the
B. Cellmate
The court of appeals also found it significant that appellant “shared information about the murder with Campbell that was not even known by the police” and that “would only be known by the murderer or murderers.” Winfrey, 291 S.W.3d at 74. According to the court of appeals, appellant “told Campbell that ‘some kind of a gun and some knife collection’ had been taken from Burr‘s house.”6 id.
The evidence, however, is that appellant told Campbell that he heard that “some kind of a gun and some knife collection” were taken from the victim‘s home. That appellant stated that he had heard that a gun or knife collection was taken is a subtle, yet significant distinction. Appellant never told Campbell that he was involved in the murder. Campbell himself made it clear that his entire testimony was based on information that appellant had heard.
Q. [Defense] The things that you said that Mr. Winfrey told you while in Montgomery County jail was [sic] things that Mr. Winfrey told you that he had heard; is that correct?
A. [Campbell] Yes.
Q. [Defense] Things that he had heard, it had been two years since the death of Mr. Burr. And the things that Mr. Winfrey told you was [sic] things that he told you that he had heard?
A. [Campbell] Yes, that‘s what I said, hearsay.
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Q. [State] When he told you about Murray being beaten and stabbed, no one in law enforcement had contacted you?
A. [Campbell] It was all hearsay what I heard from him, just hearsay.
Q. [State] And he told you about the penis,7 nobody had talked to you about anything?
A. [Campbell] It is just hearsay from what he was going to be charged with.
Q. [State] And when he told you that somebody had let the actor in the house, nobody from law enforcement had talked too [sic] you about a murder at that time?
A. [Campbell] No sir, just hearsay directly from him.
The court of appeals found that appellant “told Campbell that ‘some kind of a gun and some knife collection’ had been taken from Burr‘s house. Before Sheriff Rogers‘s interview of Campbell, the police
C. Dog-Scent Lineup
At the request of the Texas Rangers, Deputy Keith Pikett performed the dog-scent lineup.8 Deputy Pikett, a certified peace officer who specializes in canine handling, testified that he had been training bloodhounds since 1989. At trial, Deputy Pikett explained the scent lineup procedure:
We use 6-quart paint cans that have numbers on them. They‘re just clean paint cans, and I put a piece of wood on the bottom of them so they are more stable and they‘re numbered. I set the paint cans out. I typically go like ten walking steps, put a can down; ten walking steps, put a can down. The cans are placed so there-with a cross-wind-so if the can is here and the next can is here, the wind is going either this way or this way. We don‘t want the scent from can 2 blowing toward 3 or toward can 1. We want the wind to be blowing away, so it‘s not going to cross-contaminate that way. So we check that. Then I set the cans out.
On August 22, 2007, a scent lineup was conducted, and appellant‘s scent was placed in paint can number four. Deputy Pikett had no knowledge where appellant‘s scent was placed. He used three bloodhounds during this scent lineup: James Bond, Quincy, and Clue. All three alerted to appellant‘s scent in paint can number four.
This however, is not proof positive that appellant came in contact with the victim. Even when viewed in the light most favorable to the verdict, the dog-scent lineup proves only that appellant‘s scent was on the victim‘s clothes, not that appellant had been in direct contact with the victim, as the court of appeals decided.
This important distinction is highlighted in the Federal Bureau of Investigation‘s publication, Forensic Science Communications, which explains that “[i]dentifying someone‘s scent at a crime scene is not an indication of complicity. It simply establishe[s] a direct or indirect relationship to the scene.”
Q. [Defense Counsel] All it does is establish a scent relationship between the articles?
A. [Deputy Pikett] You mean between the person and the clothing?
Q. [Defense Counsel] The scent matches, yes.
A. [Deputy Pikett] Yes.
During his testimony, Deputy Pikett acknowledged, “It‘s possible to transfer scent.... If I shake hands with you, I
At oral argument, the State conceded that “dog scent alone is not enough [to convict the defendant].” Deputy Pikett also recognized the limitations of the scent lineup in his testimony when he stated that: “We never convict anybody solely on the dog. It is illegal in the State of Texas.... You cannot convict solely on the dog‘s testimony.” However, the record indicates, and the State acknowledged, that the jury gave significant weight to the canine-scent evidence. The jury submitted a note asking, “Is it illegal to convict solely on the scent pad evidence?”9 No eye witnesses put the appellant at the crime scene. The State was unable to match the appellant to the fingerprint or to any of the footprints found at the crime scene. The appellant did not match the DNA profile obtained from the crime scene. Criminologists microscopically compared seventy-three hairs recovered from the crime scene, yet none of the hairs were consistent with appellant‘s. None of the victim‘s belongings were found in appellant‘s possession. Not a Bible, a gun, or a knife collection. Winfrey, 291 S.W.3d at 72 (“In summary, none of the items tested at the DPS crime laboratories tied appellant to the murder scene.“).
The Jackson v. Virginia legal-sufficiency standard requires the reviewing court to view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319. At most, the evidence here shows: (1) appellant indicated that he believed he was the number one suspect in a murder investigation; (2) appellant shared information with Campbell that appellant claimed to have heard about the murder; and (3) appellant‘s scent was on the victim‘s clothes. It is the obligation and responsibility of appellate courts “to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.” Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). Furthermore, “[i]f the evidence at trial raises only a suspicion of guilt, even a strong one, then that evidence is insufficient [to convict].” Urbano v. State, 837 S.W.2d 114, 116 (Tex.Crim.App.1992), superseded in part on other grounds, Herrin v. State, 125 S.W.3d 436, 443 (Tex.Crim. App.2002). Based on our review of this record, we find that the evidence, even when viewed in the light most favorable to the verdict, merely raises a suspicion of guilt and is legally insufficient to support a conviction of murder beyond a reasonable doubt. Because we find the evidence legally insufficient, we need not address appellant‘s factual-sufficiency claim.
We note, however, that the science underlying canine-scent lineups has been questioned; thus, we think it proper to briefly address the issue. Law-enforcement personnel have long utilized canines in crime management. For example, dogs have been employed for detecting narcotics and explosives, for tracking trails, in
This case pertains to canines used to discriminate among human scents in order to identify a specific person in a lineup. This process is often referred to as human-scent discrimination. Some courts, including the Fourteenth Court of Appeals, have determined that for purposes of admissibility, “there is little distinction between a scent lineup and a situation where a dog is required to track an individual‘s scent over an area traversed by multiple persons.” Winston v. State, 78 S.W.3d 522, 527 (Tex. App.-Houston [14th Dist.] 2002, pet. ref‘d) (citing Roberts v. State, 298 Md. 261, 469 A.2d 442, 447-48 (1983)). Other courts, such as the Supreme Court of Florida, have distinguished scent lineups from dog tracking. Ramos v. State, 496 So.2d 121, 123 (Fla.1986) (“[I]t is important to recognize that using a dog to track a human or to detect the presence of drugs or explosives is distinctive from using a dog to directly identify a specific human from items in a lineup.“).
Cases involving the use of dogs, usually bloodhounds, to track humans are abundant and the law is well settled in regards to admissibility of such evidence with only a minority of courts outright rejecting bloodhound evidence. People v. Cruz, 162 Ill.2d 314, 643 N.E.2d 636, 662 (1994); Brafford v. State, 516 N.E.2d 45, 49 (Ind.1987); State v. Storm, 125 Mont. 346, 238 P.2d 1161, 1181-82 (1952); Brott v. State, 70 Neb. 395, 97 N.W. 593, 594 (1903). Fewer courts have addressed the question of whether dog evidence is sufficient to sustain a conviction when it is the only evidence. However, as early as 1913, our colleagues at the Supreme Court of Mississippi held that dog tracking evidence, alone and unsupported, to be insufficient to affirm a conviction. Carter v. Mississippi, 106 Miss. 507, 64 So. 215, 215 (1913). And as recently as 1983, the Supreme Court of Washington agreed. State v. Loucks, 98 Wash.2d 563, 656 P.2d 480, 483 (1983). In fact, our research suggests the courts that have passed on this issue have concluded that dog-scent evidence, when admissible, is insufficient, standing alone, to sustain a conviction. State v. Taylor, 118 N.H. 855, 395 A.2d 505, 507 (1978); State v. Cheatham, 458 S.W.2d 336, 339 (Mo.1970); State v. Green, 210 La. 157, 26 So.2d 487, 489 (1946); Buck v. State, 77 Okla.Crim. 17, 138 P.2d 115, 123 (1943); Copley v. State, 153 Tenn. 189, 281 S.W. 460, 461 (1926).
Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. “Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups.” Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of Dog Scenting, 42 HASTINGS L.J. 15, 42 (1990) (explaining that drug detection canines need only determine whether a specific scent is present. Tracking dogs, on the other hand, have the benefit of using both vegetative scents and human scent, while canines performing scent lineups must find one specific scent among many competing, similar
The State argues in its brief:
During the videotaped canine scent lineup on August 22, 2007, all the dogs made positive hits on [appellant‘s] scent pads, indicating that [appellant] had been in contact with the clothes [the victim] was wearing at the time of his death.10 This is significant because in the earlier interview with [appellant] in 2004, he indicated that he had NEVER been in [the victim‘s] home and had not seen [the victim] in five years.
An effort was made by defense counsel to advance a theory of “transferred scent” or “casual contact” to explain how [appellant‘s] scent would be on the clothes the victim had on at the time of death. Keith Pikett testified that the scent is essentially from skin cells sloughed off by the provider of the skin cells.11 Pikett testified that, based on the scent lineups, [appellant‘s daughter, appellant‘s son and appellant] had left their scent on the clothes the victim was wearing at the time of his death. Following cross-examination, Pikett also indicated that a boyfriend and girlfriend would have significant contact with each other, more than with family members. But none of the dogs hit on Christopher Hammond‘s scent pads. In that regard the jury could certainly draw the inference that if [appellant‘s daughter‘s] boyfriend at the time of the murder was Christopher Hammond, then under the transferred scent or casual contact theory, it would be MORE likely that if she touched [the victim‘s] clothes, Hammond‘s scent rather than her father, [appellant‘s] scent would have been transferred.
(Emphasis in original and record reference omitted).
It cannot be denied that the jury and the court of appeals found the dog-scent lineup evidence in this case to be compelling. In 2004, two different dogs alerted only to the scents of appellant‘s son and daughter. In 2007, three different dogs alerted only to appellant‘s scent. But, the question essentially presented in this case is whether dog-scent lineup evidence alone can support a conviction beyond a reason-
The judgment of the court of appeals is reversed, and a judgment of acquittal is entered. Burks v. United States, 437 U.S. 1, 18 (1978) (holding if the record evidence is legally insufficient under the Jackson rule, the reviewing court must render a judgment of acquittal).
COCHRAN, J., filed a concurring opinion in which WOMACK, JOHNSON and HOLCOMB, JJ., joined.
MEYERS, J., did not participate.
COCHRAN, J., concurring, in which WOMACK, JOHNSON and HOLCOMB, JJ., joined.
Appellant did not object at trial to Deputy Pikett‘s “dog scent line-up” testimony. Therefore, neither the court of appeals nor this Court has had an occasion to review or determine the admissibility of that evidence under either Kelly v. State1 or Nenno v. State.2 But, as the majority holds, even if Deputy Pikett‘s testimony concerning the “dog scent line-up” was properly admissible under
With that understanding, I join the majority opinion.
Stephen Bernard JONES, Appellant, v. The STATE of Texas.
Nos. PD-0499-09, PD-0500-09
Court of Criminal Appeals of Texas
Sept. 29, 2010
Rehearing Denied Nov. 10, 2010.
Notes
Pikett testified on cross-examination:Q. [State] Now, based on the results of that final scent lineup, do you believe that the scent of [appellant] is on the scent on the clothing of [the victim]?
A. [Pikett] Yes.
Q. [Defense Counsel] All it does is that it establishes a relationship, does it not?
A. [Pikett] It puts that person in contact with something.
Q. It puts the person in contact with something, not necessarily person-to-person, does it?
A. No. Without knowing the specifics of anything, no, you can‘t say that.
Q If I come up and I shake your hand, am I going to get some of your skin cells?
A. Yes.
Q. Now, if I come over here and grab [one of the prosecutors] on the arm, have your skin cells transferred to him?
A. Yes.
Q. Did you touch him?
A. No.
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Q. Again, an alert by a dog is nothing but to establish some sort of a relationship between the scents and the objects, would you agree?
A. Yes.