### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 131 -CR

Co lt on A ar on P it ony ak , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 147TH JUDICIAL DISTRICT NO. D-1- DC-05 -30 1918 , HO NORAB LE WI LF ORD F LOW ERS , JUDGE PRESIDI NG

O P I N I O N

A j u r y f o u n d a p p e l l a n t C o l t o n A a r o n P i t o n ya k g u i l t y o f m u r d e r a n d a s s e s s e d a f i f t yfive-y ear prison term. See Tex. Penal C ode Ann. § 19.02(b)( 1) (W est 2003). I n five points of er ror,

a pp e lla nt c on te nd s th a t: ( 1) the e vid e nc e is l e g a lly a nd fa c tua lly ins uf fi c ie nt t o s us tain

the g uil ty verdic t, (2) the tri al co u rt err ed by ref using to instruct the jury

on the lesser

included off

enses of manslaug hter a

nd criminally neg lige nt homicide , (3) the tr ial court e rre d by overr uling a ppellant’s motion to s uppress e vidence , (4) hi s t ri al counsel render ed inef fec tive assistance , and (5) the trial

c ou rte r r e d b y f a i l i n g t o c o n d

u c ta n i n qu i r

y i n t o a p p e l l a n t ’ s c o mp e t e n c e t o s t a n d t r i a l

. W e wi ll

overr ule these points of e rror

and af firm the judg ment of convic tion.2 BACK GR OUND The di sapp earance of Jenn if er C ave On Thursda

y , Aug ust 18, 2005, Sharon C ave and J im Sedwick drove to Austin from their home in C o rpus C hristi to look for Sharon’s daug hter, Jennifer Cave . J ennife r, who wa s twenty -one y ear s old, had been l iving in Austin for a bout two y ear s. Sharon and Jennifer w ere very close, a nd they spoke to ea ch other by telephone daily , often sever al times. O n Monday , Aug ust 15, J ennife r had told her

mother that she wa s g oing to interview the next day for a part-time job at a

n Austin law firm. On Tue sday , J ennife r ca lled Sharon to tell her that she had g otten the job. L ater that same da

y , J ennife r ca lled ag ain t o say that she had be en off

ere d full-time employ

ment at the firm. Sharon testified that J ennife r wa s ext reme ly excited by

the prospec t of this new job. J ennife r

a nd Sha ro n s po ke a g a in a

t 8: 30 p. m. T ue sd a y

nig ht. Jenn if

e r w a s a t th e a

pa rtme nt s he sh a re d w ith De nis e Wint e rb ott om, do ingla un dr y a nd pr e pa ri ng he rs e lf fo r the ne xt day , w hic h w a s to be he r f ir st full day at the law firm. Stil l excited about t he new job, J ennife r t old her mother that she wa s g oing to w e a r t he ne w p a nts su it that Sh a ro n h a d r e c e ntl y bought fo r h e r. Th is w a s Sh a ro n’ s la st

conver sation with J ennife r.

On W ednesda

y afte rnoon, August 17, S haron r ece ived a tele phone ca ll at her off ice fr o m W i l l i am Thompson, one of the attorney s at the law f irm that had employ ed Jennifer. Th omp so n ask e d Sharo n if sh e ha d s po ke n to Jenn if

e r t hat da y . Wh e n Sh a ro n s a id t

hat sh e ha d n ot, Thompson told her that J ennife r had not c ome to w ork that day and that she w as not answe ring her telephone. Someone from the f irm had also gone to Jennifer’ s apar tment, but she was not there

. Sharon immediately beg an calling J ennife r’s cell phone, but a ll of her calls went “straight t o her3

voicemail.” B elieving that J ennife r had me rely mi s p l ac ed her phone but never theless worr ied, Sharon called her cell phone service provider. F rom the telephone company , she obtained a list of the nu mbe rs tha

t ha d c a lle d or be e n c a lle d fr om Jenn if e r’ s ph on e , sta

rt ingwi th Je nn if

e r’ s la st c a ll at 1:08 a.m. on Wednesday and g oing ba ck seve ral hours. Sharon then be g an ca lling the number s th a t a p p e a r e d o n th e li s t mo s t f r e qu e n tl y , h o p in g to f

in d s o me o n e w h o might know Jenn if e r’ s w he re a

bo uts
. One of the numbers Shar on called be longe d to Michael Rodri gu ez . Rodrigue z testified that he ha d spoken to J ennife r by telephone thr ee times on Tue sday night a nd Wednesday

mo rni ng. I n th e fi rs t c a ll, a t 10 :30 Tu e sd a y nig ht, Jenn if

e r t old Rod ri g ue z that sh e wa s g oin g to “hangout” with a fri en d n am ed Colton, who Rodrigue z did not know. I n a sec ond call ar ound mid nig ht, Jenn if

e r s a id t hat Co lto n w a s “ up se t.” I n th e thi rd c a ll, a t 1: 00 a .m. , Jennif e r t old Rodrigue z that C olton w as upset bec ause he had lost his cell phone, that he ha d tried to brea k out the window of a parke d car , and that he was at that moment urinating on another vehicle. Rodriguez testified that J ennife r “didn’t sound like she w as in troubl e or a ny thing,” and that he “ assumed he [C olton] was just intox icated a nd doing some thing stupid.” Sha ro n r e a c he d Ro dr ig ue z onhe r o ff ice tel eph on e . Wh ile sh e wa s sp e a kin g to Rodrigue z, ap p e ll a n t, w h o s h e h a d a ls o b e e n a tt e mp ti n g to r e a c h , c a ll e d h e r c e ll p h o n e . Sha ron te sti fi e d, “ Ia sk e d h im [a

pp e lla nt] i f h e ha d s e e n J enn if

e r, if he ha d ta lke d to Jenn if

e r, a nd he sa id no. Mr. Rodrig uez said, ‘That ’s n o t t ru e. She was with him.’ So Ihad two phone c onversations g oing at the same time.” When Sharon told a ppellant that she was “ on the phone with somebody that say s she was w ith y ou,” appellant acknow ledg ed that he had seen Jennifer downtown but c laimed4

that he did not know wher e she now wa s . S h ar on testified, “Micha el was still on the phone and Michae l just said he is lying. He was with he r last night. He is lying.” After speakingto Rodrigue z and appe llant, Sharon ca lled J ennife r’s roommate

. Wint erbottom told Sharon that when she went to bed on Tuesda

y night, J ennife r had been washing clothes at the a partment, but whe n she aw oke on Wednesday

morning , J ennife r wa s g one. Sharon beg an to ca ll “place s in Austin, hospitals. I think I even called the morg ue. An d I c ou ldn ’t fi nd a ny

thi ng , so I c a lle d the po lic e statio n. ” Th e pe rs on sh e sp ok e to at th e Au sti n police depa

rtment told her that J ennife r had not been missing long e noug h to file a missing pe rsons

re po rt . H e did

op e n a c a se fi le a nd

g a ve Sha ro n th e nu mbe r. Sha

ro n g a ve the po lic e the lic e ns e plate number of Jennifer ’s ca

r and othe r per sonal information about he r daug hter. By this ti me, it was about 5:00 p.m. on Wednesday afte rnoon. Sharon c alled Sedwick at his work and told him “ther e is something very wrong . There is something wr ong with J ennife r.” Sha ro n a nd Se dw ic k me t a t th e ir

ho me , a nd the y c on tin ue d to make te le ph on e c a lls in a n atte mpt to find someone who mig ht have se en or spoken to J ennife r. One of the pe rsons Sedwick c alled wa s appellant, who did not answ er. Sedwick left a “stern” messag e telling appellant to “ call us back, w e

are looking f

or J ennife r.” A t about 7:30 p.m., appellant re turned the c all. Sharon answe red. She testified, “I said, Colton, please , do y ou know any thing a bout J ennife r, and he said, dude, I ’m eating pizz a with my

friends. L eave me alone. I don’t know whe re she ’s at.” T hen he hungup. Appellant wa s not a total strang er to Sharon a nd Sedwi ck

. S h aron testified that J ennife r had spoke n to her about appellant soon a fter she moved to Austin. Sharon said that she later lear ned that Jennifer a

nd appellant wer e using drug s. She testified that she spoke to Jennifer a boutI n the re porter’ s rec ord, the a ddress a lso appea rs as 2525 Rio Gra

nde. 1 5 this and that J ennife r see med to listen. Sharon was a sked if she ha d suspected that J ennife r’s fa ilure to show up for work on Aug ust 17 w as the re sult of “a ba d bout with alcohol or drug s.” She re plied, “No, I did not think t hat that was the problem. She wa s too ex cited about he r newjob.” On Thursda

y morning , Aug ust 18, Sharon and Sedw ick ca lled the Austin police and spoke to Dete ctive Kathleen He ctor in the missing per sons office . Sharon told Hec tor all that had ha pp e ned th e pr e vio us da

y , in c lud ingJenn if

e r’ s f a ilure to a

pp e a r f or wo rk a nd Sha ro n’ s f ru itl e ss attempt to locate he r. Sharon a lso g ave the detec tive the names and numbers of t he people she had

c a lle d. He c tor a ssu

re d Sha ro n that the po lic e wo uld “ c he c k it ou t” a nd wo uld “ loo k fo r h e r l ic e ns e

an d s ee i f there was a

ny thing like that, if he r ca

r wa s in the impound lot or any thing like that.” Sharon and Sedw ick then dec ided to drive to Austin to continue their sea rch f or Jennifer. Sharon and Sedw ick left Corpus Christi at 11:00 a.m. on Thursday morning . When they wer e nea r S an Antonio, Hec tor called Sharon on her cell phone to re port that J ennife r’s c ar ha d be e n f ound a t 25 29 Rio Gr a nd e , n e a r t he Un ive rsit y of Tex a s c a mpu s. Hec tor told Sharon that 1 appellant lived at that addre ss, in apartment 88. W h en S h ar on and Sedwick a rrived in Austin at about 4:00 p.m., they

immediately

drove to 2529 Rio Gra

nd e. They

wer e met ther e by

Sharon’s daugh t er Va n essa, who had driven to Austin from he r home in Da llas to help look for her sister J ennife r. 2529 Rio Grande is a larg e condominium complex called the Ora ng e Tree. They

found Jenn if e r’ s c a r p a rk e d in

the str e e t and

a pp e lla nt’ s a pa rtme nt o n the se c on d f

loo r. He c tor ’s bu sin e ss

car d was on both the ca r an d t h e apa rtment door. Sharon a

nd Sedwick found nothing unusual at apar tment 88. They

knocked on the door and windows, calling out J ennife r’s name, but there was6

no response . After

about an hour, they left the Ora ng e Tree and went to a hotel. Sharon, who had

a spare key , drove J ennife r’s car to the hotel. She hoped that if J ennife r “c ame out and sa w that her

car was missing, that the first thing she would do is call me or c all the police.”

Whil e at the hote l, Sharon ca lled direc tory assistance for Ar

kansas. She ha d lear

ned during a telephone conversation wit h one of J ennife r’s friends that appe llant was fr om Arkansa s, and she had se en a c ar w ith Arkansas lice nse plates at t h e Or an ge T ree. Sharon mana g ed to re ach appellant’ s fathe r. She testified, “I told him that my daug hter was missing and that I wa s l ooking for he r and that the last p er s o n t hat we thoug ht she was with wa s Colton.” Accor ding to Shar on, appellant’ s fathe r told he r that “Colton ha d called a nd asked if he could take Jennifer to dinner and use his mother’s c redit ca rd. And so it confirme d that he a n d J en n ifer ha d been some wher e on Tuesday

night.” Sharon and Sedw ick decided t o return to the O rang e Tre e. F ear ing that she had made

a mis take by

mov ingJenn if

e r’ s c a r, Sha

ro n d ro ve it b a c k a

nd pa rk e d it wh e re sh e ha d f

ound it. J oined by Vane ssa and a

friend, Shar on and Sedwick knoc ked on ap p ellant’s door but g ot no response . Although Shar on had been told by Hec tor that there was nothing the police c ould do at t h i s t i m e, s h e c al l edt h e p o l i ce aga i n a n d Of fi ce r G u i l l er m o S al i n as wa s d i s p at ch edt o t h e O ra n ge Tree

. Salinas testified that he arr ived at 8:36 p.m. Sharon told Salinas that her da ug hter wa s missi ng and that she thoug ht that she m i gh t b e in apar tment 88. Salinas ex amined Jennifer’s c ar a nd

a pp e lla nt’ s c a r, a nd

he kn oc ke d o n th e a

pa rtme nt d oo r. Th e of

fi c e r s po ke to som e on e wh o to ld h im that the apar

tments were individually

owned c ondominiums and that ther e wa s no building mana g er who would have a master key . After Salinas consulted wit h his superiors by radio, he told Sharon7

and Sedwick that he was not a uthori z ed t o fo rc e his way into the apar

tment. Sedwick aske d the office r “what w ould ha

ppen if he [S edwick] forc ed entr y .” Salinas advised Sedw ick that if he br oke in, he could be char g ed with criminal t respa ss. Sedwick then asked Salinas if the police would be wi lli ngto e nte r t

he a pa rtme nt i f S e dw ic k h ir e d a loc ks mith to op e n th e do or . Sa lin a s c he c ke d w ith his supervisor, who said “ no.” Salinas l ef t the scene approximately forty -five minutes afte r he a rrived.

The disc ov e r y o f the body

Sharon testified that a fter Salinas le ft, “W e we re desperate. We didn’t know what to do. The police w ere telling us that they wer e sorr y , they couldn’t help us. We didn’t know what to d o. ” She sa id t

hat sh e be lie ve d th a t it

wa s n e c e ssa

ry to g e t insid e a

pp e lla nt’ s a pa rtme nt “ [b]e c a

us e it’s the only

thing I had of wher e J ennife r might be a nd Ihad to start somewhe re. I had to look for he r. . . . We c ou ldn ’t fi nd he r a nd he wa s th e lin k. He wa s h ow —h e wa s th e la st p e rs on

to b e wi th her. H er c ar w as there .”

Sh a r o n a n d Se dw ic k d e c id e d to c a ll a lo c k s mi th , w h o c a me to th e a p a rtm e nt and att e mp te d to o p e n th e d o o r

w it h o u t s u c c e s s . A s Sh a r o n a n d Se dw ic k s to o d o u ts id e a ppellant’s apar tment after

the locksmith had depa

rted, Sharon notice d that one of the windows was c rac ked. She “ we nt ov e r wi th my fi ng e rn a il a nd I c hip pe d the g la ss ou t a lit tle bit .” Af te r makin g thi s h ole in the windowpane , Sharon used a temple piece from a br oken pair of sung lasses to open the loc k. Se dw ic k th e n o pe ne d th e wi nd owa nd c lim be d in to t he a pa rtme nt. As he e nte re d th e a

pa rtme nt thr ou g h the wi nd ow , Sed wi c k ca lle d out, “ I ’m

he re to help. Please don’ t hurt me. Please don’ t s h o o t me. I ’m looking f or y ou, J ennife r.” U sing the8

flas h li g h t th a t h e k e p t in h is c a r , Se dw ic k b e g a n to lo o k a r o u n d th e s ma ll s tu d io a p a rtment. The

room was in “ complete disarra y .” There was no one on the couch, in the bed, or in the kitche n are a. Sedwick found a

light switch a

nd turned it on. “[A]t that point,” he testified, “ Ismelled something.” Se dw ic k w a lke d d ow n a

sh or t ha llw a y to the bathr oo m. He sa id, “ Iop e ne d th a t do or a nd the sme ll

re a lly hit s me . I

sh in e my lig ht i n th e re . I

a m se e ingso me thi ng . I

fl ip t he lig ht o n a

nd the re is a body in the bathtub.” Sedwick descr ibed what he did ne x t: “I ’m trying to f igur e out what I ’m seeing here

. . . . I started y elling, call the police , call 911. I immediately

identified that it was a de capitate d body . Iwas see ing that and I saw the ha cksawlaying there

. S o I we n t to the front door a nd I unlocked t h e fr o n t door and I went out. And Sharon’ s y elling, is it her, is it her, a nd that’s when I said, Ithink so.” Outside the apartment, Vanessa had the 911 operator on the phone. Sedwick spoke to th e op e ra

tor , te lli nghim , “ Ihave g ot a bo dy in a batht ub fu ll o f b loo d. Ire a lly

ne e d s ome he lp

over here

. I think I g ot a sked one of those rea lly silly questions is there a pulse or somethi n g l ike that.” Af ter spea king to the 911 ope rator, Sedwi ck ree ntere d the apa rtment and re turned to the bathroom. He testified that he “couldn’ t positively identify her, obviously ,” but “she ha d on this kind of g ree nish dress that I thought I rec og nized.” Sharon testified, “ Ireme mber wa nting to g o in and J im wouldn’t let me. He said, no, no, y ou can’ t, y ou can’ t.” She adde d, “He said he thoug ht it was Jenn if e r b e c a us e he saw h e r f

e e t. T hat’ s a ll h e wo uld

sa y . H e jus t sa id— Isa id, is it J e nn if e r, is i t J ennife r, is it J ennife r? He sa id, Ithink so, I saw he r fe et. He sa w her fee t. He sawher f

eet.” Offic er Richard B arba

ria a nd his partner , Offic er Chris Clark, we re on r outine patrol that ni g ht i n th e Wes t Campu s a re a . B a rb a ri a te sti fi e d that a t 10 :15 p. m., the y we re dis patc he d to9

the int e rs e c tio n o f R io Gran de a nd Wes t 25 th S tr e e t. B a rb a ri a e xpla ine d th a t w he n th e 91 1 c a ll

c e nte r “ is g e tti ng inf

or ma tio n fe d to t

he m and it s ound s k ind

of se ri ou s, ” the y

“ wi ll d isp e rs e so me information to the patrolmen to have us heading in that are a and the n slowly they will update us as to what is g oing on.” As Ba rbar ia and Clark dr ove toward the indicated location, they wer e told by the dis patc he r t o g o to the Or a ng e Tr e e c on do min ium s a t 25 th a nd Se ton wh e re a wo man in apar tment 8 was re ported to be “possibly overdose d and in trouble.” Wit hin minutes, Ba rbar ia and Clark wer e at the O rang e Tre e and f ound apar tment 8. As they

wer e pound i n g o n t h e door, they noticed the a

rrival of ambulanc es and f ire truc ks and saw e merg ency personne l goingto apar

tment 88. Realizing that they had been g iven the wrong apar tment number, B arba

ria a nd Clark went to the oth e r ap a rtme nt. B a rb a ri a te sti fi e d, “ I wa s still un de r the be lie f that the fe ma le [in the a pa rtme nt]

was a live or at lea st in critical condition from an ove rdose.” As Ba rbar ia neared apartment 88, he

wa s a pp ro a c he d b y

Se dw ic k. Th e of

fi c e r “i mme diate ly a ssume d th a t he is r e la te d to or kn ow s w e ll the wom an who wa s in

jur e d in sid e , th e po ssi ble ov e rd os e that I ha d at th a t ti me .” Se dw ic k to ld Ba rbar ia t hat “the fema le was de ad and that she was inside” the apa rtment. Ba

rbar ia testified that Sedwick’s state ments “had no me aning to me at the time bec ause I did not see the victim as of y et.” Following a g roup of f

ire fig hters, B arba

ria e ntere d the apar

tment. He noticed that it was “messy

and unkempt,” “ a ty

pical co l l ege s t udent’s apa rtment.” B arba

ria followe d the fire fig hters to the bathr oom. He testified, “I am u s u al l y used to coming to a sce ne whe re it is an overdose or something , the fire men ar e in front of me and I usually watch them work a nd then I look for e vidence of nar cotics.” But on this night, “I knew something was wrong beca use they wer e g oing up to t he bathr oo m and

do inglik e a n a

bo ut fa c e . Yo u kn ow , y ou have a ll the se fi re me n c a rr y inga ll10

t h e i r m e d i c a l g e a r

. . . a n d t h e y a r e n o tg o i n g i n t o t h e b a t h r o o m . . . . Ia m l i k e , w h a ti s g o i n g o n ?” Ba rbar ia enter ed the bathroom and found “a female body with the head missing and the ha nds missing. I t w as propped up in the bathtub fac ing the doorwa y .” B arba

ria notice d a small hac ksaw

on the body ’s chest, and he reme mbere d “see ing por tions of flesh and blood. I t was used to cut the body .” The officer also saw a plastic g arba g e bagon the bathroom floor . “I didn’t bother looking at it or touching it because Iknew—just by the shape of the bag , Iknew wha t parts wer e in the bag .” After making sure that no one else wa s inside, Ba rb ar i a an d C lark c losed the apa rtment and contac ted homicide dete ctives to repor t what they

had found. The bod y in a p p e ll a n t’ s b a th tu

b w a s Je n n if

e r Ca v e . A s B a r

b a r ia h a d s u s p e c te d, J en n i fe r’s severe d head a nd hands we re in the pla stic g arba g e bag . I t was dete rmined during the autopsy that J ennife r wa s killed by a sing le g unshot. The bullet p assed through her r ight a rm and

ree ntere d her body

throug h the ribs on her rig ht side

. The bullet the n passed throug h her rig ht lung and punctur ed the a orta, which cause d her de ath. The bullet wa s found in the body just under the skin on the left side of he r bac k. I n addition to the bullet wound, there w ere numerous stab wounds to the body . There wer e eig hteen stab w ounds to the face and neck, and another cluster of ten stab wounds on the left shoulder and rig ht brea st. The medical e x aminer te stified that these wounds we re in f li c te d a fter death

. F in a ll y , a

s e c o n d b u ll e t w a s f

o u n d in Je n n if e r ’ s h e a d w h e n th e b o dy

w a s xray ed. The medical ex aminer testified that this wound was also post-mortem. The bull et had entere d thr ou g h th e se ve re d n e c k a nd tr a ve le d u

pw a rd , lo dg ingin t

he c ra nia l va ult

. Other e vidence

The two bullets found in J ennife r’s body wer e fired from a .380 semiautomatic pistol that w a s f

ound in a pp e lla nt’ s c a r. Th re e c a rt

ri dg e c a sin g s f

ir e d f ro m that pis tol we re fo un d in11

appellant’ s apar

tment; the third bullet was ne ver f ound. I n addition to the bloody hacksa w found on Jenn if e r’ s bo dy , a

kn if e a nd a ma c he te sta ine d w ithJenn if e r’ s b loo d w e re fo un d in

a pp e lla nt’ s a pa rtme nt. Se ve ra l wi tne sse s te sti fi e d to havin g se e n a nd sp ok e n to Je nn if e r a nd a pp e lla nt at a bar on Six th Street in dow n t own Austin on the nig ht and ea rly morning of Aug ust 16 and 17. J ennife r did not appea

r to be intox icated, but a

ppellant appe are d to be under the i nfluenc e of alcohol or drug s. Two of these witnesses hea rd appe llant mention purchasing coca ine. One of appellant’ s neig hbors at the Ora ng e Tree , Nora Sulli van, testified t hat

a pp e lla nt c a me to h e r a

pa rtme nt wi th a pis tol a t 3:0 0 a .m. on Wed ne sd a y mor nin g . App e lla

nt t old Sulli van that he had jus t been in a fight wit h “some Mex ican guy s” at his apar tment and there had b ee n an ex ch an ge o f gu n fi re . S u l l i v an h ad h ea rd n o gu n s h o t s an d d i d n o tb el i ev e ap p el l an t , al t h o u gh she did notice that he had what appea red to be a smudg e of blood on his forea rm. Sulli van testified, “I could tell he had be en drinking , so Ijust thought he wa s rambling on some story he made up.” The owne r of a

hardw are store a few bloc ks from appe llant’s apar tment testified that appellant wa s in the store shortly afte r 3:00 p.m. on Wednesday afte rnoon. Appe llant purcha sed a hacksa w, shop towels, latex gloves, dust masks, 55-g allon drum liners, ammonia, ca rpet c leane r, and odor eliminator. Appe llant told the witness that he was g oing to use the saw to c ut up a turkey . The witness s a id th a t h e s me ll e d a lc o h o l o n a p p e ll a n t’ s b r e a th , b u t th a t a p p e ll a n t d id n o t a

p p e a r to be intox icated. T he evidence shows that afte r l eaving the hardware store, appellant stopped at a Burg er King and order ed a hamburg er, fries, and a drink. The rema ins of this mea l w ere found by the police

a t a pp e lla nt’ s a pa rtme nt.12 Sc ott En g le te sti fi e d th a t he a nd Jenn if e r liv e d to g e the r f

or se ve ra l mo nth s in

e a rl y 2005, that they

rema ined frie nds after

J ennife r moved out of his apar tment, and that they often spoke to eac h other. Thr oug h J en n i fe r, E ng le was a lso acqua inted with appellant. On Wednesda y afte rnoon, Aug ust 17, Sharon Cave c alled Eng le on the telephone and t o l d h im that J ennife r wa s missing and ha d last been se en with appe llant

. E n gl e testified that a fter he spoke to Sharon, he cal led appel lant a

nd le ft a me ssa g e . App e lla

nt r e tur ne d E ng le ’s c a ll w ith in f if te e n mi nu te s. Ap pe lla nt t old En g le that he ha d n ot s e e n Jennif e r s inc e havin g dinne r wit h he r o n T ue sd a y

nig ht. Eng le told appellant that Jennifer’s c ar w as par ked at his apar

tment and that “more than likely the cops would be a

rriving there shortly .” Appellant replied, “That bitch is going to ge t me arr ested.” Appellant left Austin with a woman named L aura Hall on Wednesday night, in Hall’s

a uto mob ile . T he y dr ov e to D e l Rio , th e n c ro sse d in to M e xico a nd ma de the ir

wa y to P ie dr a s N e g ra s. They c h e c k e d in to a mo te l in th a t c it y o n F r id a y , A u g u s t 1 9

. T h e y w e r e a r r e s te d a t th e motel by Mexi can police four da

y s later a nd turned ove r t o United States marsha ls. Marshal Vince nt Be llino te sti fi e d th a t w he n h e tol d a pp e lla nt t hat he wa s b e inga rr e ste d for mur de r, a pp e lla nt s a id, “ I f t

his is a murde r cha

rg e, then I

know exactly

what this is about.”

App e lla nt ’s te st im ony

Appellant wa s twenty -four y ear s old at the time of t h e t ri al. He te stified that he g ra du a te d fr om hig h sch oo l in L itt le Roc k, Ar ka ns a s, in 200 1. Th a t f

a ll, he e nte re d th e Un ive rs ity of Texas on an ac ademic sc holarship. Appellant did we ll in school at first, but he soon beg an taking drug s and drinking to excess. Appellant was a rre sted for dr iving wh i l e int ox icated in De cembe r13

2002 and suspended from the univer sity . For the next two-and-a- half y ear s, appellant wa s in and out of the un ive rs ity

a nd the loc a l c omm

un ity c oll e g e , b ut h e c on tin

ue d to dr ink

he a vil y a nd us e dr

ug s,

a nd he ra re ly we nt t o c la ss. Appellant testified that he met J ennife r Cave in the summer of 2004. H e desc ribed their relationship as “really g ood friends” and not romantic. He said, “I knew I could alwa

y s call her or she c ould call me and w e would be there to he lp e ach othe r out.” He added, “ Icar ed about he r a lot. She was my

best frie nd.” That fa ll, appellant was a

rre sted for posse ssion of coca ine. As par t of an ag ree ment b y wh i ch t h e offense w as re duced to a misdemeanor, a

ppellant enter ed a r esidential drug reha bilitation cente r. He was rele ased after one mont h, and he beg an usi ng drug s and drinking two da y s la te r . I t w a s a t a

b o u t t h i s t i m e t h a t a

p p e l l a n t m e t L a

u r a H a l l

. A p p e l l a n t t e s t i f i e d tha t H a ll would come to his apar

tment and they “would st ay up and drink and do drugs tog ether .” He said that Ha ll w a s in

lov e wi th h im, bu t he did no t sh a re the se fe e lin g s. A p p e ll a n t t e s ti f

ie d th a t d u r in g th e s u mm e r

o f 2 0 0 5 , h e w a s dr in k in g a

c a s e o f b eer and a liter of vodka e very

day . I n addition to the drinking, he was takingXana x and usi ng coca ine. Appellant wa s also buy ing a nd selling c ocaine and other drug s. I n J uly 2005, appellant wa s g iven the .380 pistol by

“some guy s who owed me some money ” for drug s. They

also g ave him a box of ammunition. Appellant testified that he neve r loade d the wea pon an d t h at h e t hrewawa y the ammunition. I n Aug ust, appellant sol d the pi stol (without ammunition) to a friend of Hall’s name d J ason. A few day s later, on August 13, J ason visited appellant at his apartment. He asked to borr ow appellant’ s car

and off ere d to leave th e p i s t o l with appellant as a ssuranc e that he w ould return. Appellant ag ree d to this arrang ement. The pisto l wa s left either on the kitchen c ounter or in a14

kitchen dra

wer . Appellant cla imed that he “didn’ t want to mess with it” and did not know t hat the pistol was loaded.

Ap pe lla nt t e sti fi e d th a t Jen nif

e r c a lle d h im s ho rt ly

a ft e r 9 :00 p. m. o n T ue sd a y nig ht, Aug ust 16, 2005. “She told me she g ot a new job that da y . She was excited that she g ot promoted h er fi rs td ay an d s h e w as j u s tk i n d

o f c at ch i n g m e u p o n t h i n gs . An d s h e s ai d d o y o uwa n tt o go downtown and g et a dr ink and g et something to e at. I said y eah, if y ou will come pick me up, we will go.” Appellant had be en drinking vodka stea dily since about 5:00 p.m., and he had a lso taken

sever al Xanax pills. He rec alled g oing to a restaur ant on Six th Stre et with J ennife r, whe re he boug ht

a dr ink , but he te sti fi e d tha t this wa s the la st thin g he re me mbe re d ab ou t tha t nig ht. Ap pe lla nt s a id t h at h i s n ex tm em o ry

wa s wa k i n g u

p i n h i s ap ar t m en tt h e f

o l l o wi n g m o rn i n g. Telephone rec ords showed that appellant made sever al ca lls between 5:30 a nd 6:00 a.m. Wednesday morning , but appellant could not remembe r whe ther he made the c alls befor e

or a ft e r h e dis c ov e re d Jennif e r’ s b od y . H e te sti fi e d th a t a t so me tim e that mo rn ing , “ Iwe nt b a c k to the bathroom to use the r estroom and she was laying in the bathtub.” Appe llant said that he knew when he saw he r that Jennifer wa s dead. A sked why he did not call the police, ap pellant re plied, “I was sca red. I didn’t know what ha

ppened. I wanted to—I

panicke d.” Appellant testified that he was c erta in that he shot J ennife r eve n though he had no

rec ollection of havingdone so. Appellant said that “[e]very thing points to it,” and “I

can’ t think of any other thing that happene d.” He insisted, however , that “[ t ] h er e is no way it would have been on pur

pose.” Appellant said that afte r he discovere d the body , he called Hall, one of the persons he ha d s po ke n to e a rl ie r, a nd tol d h e r n ot to c ome to t

he a pa rtme nt a s sh e ha d p lann e d to do . H a ll ins ist e d on c omi ng , ho we ve r, a nd sh e a rr ive d a t a bo ut 8:0 0 a .m. Af

te r a pp e lla nt sh owe d Hall15

Jenn if e r’ s b od y , s he a sk e d, “ [W]ha t ar e we g oin g to do?” Ap pe lla nt sa id that he an d Ha ll be g a n to discuss the possibili ty of cutting up the body

. Asked why he would consider doing this, appellant

answe red, “ Iwanted to—to g et rid—g et rid of the body . Idon’t know.” A ppellant testified that he d i d n o t r e m e m b e r p e r s o n a l l y c u t t i n g t h e b o dy. H e a l s o c l a i m e d t h a th e d i d

n o ts e e H a l l c u tt h e b o dy, bu t he re me mbe re d h e r te lli ng him that “ wh a t sh e wa s tr y ingwa sn ’t

wo rk ing , th a t sh e ne e de d s ome things.” Appellant said that he “assumed” that this was a ref ere nce to “ cutting up the body ” with the knife a nd mache te that he ha d in his apartment. Appe llant’s counsel a sked him, “Truthfully , son, didn’t y ou know that L aura was in the proce ss of seeingto it that that body was c ut up into several dif fe re nt pie c e s? I sn ’t that cor re c t?” Ap pe lla

nt an sw e re d, “ Ye s, sir .” Ap pe lla nt t e sti fi e d th a t H a ll g ave him the list of items to purchase at the har dwar e store. He k new that the ha cksawand other

su pp lie s w e re to b e us e d to c ut up Jenn if e r’ s bo dy . H e sa id t

hat a ft e r r e tur

nin g to t he a pa rtme nt w ith the saw, “ Itried to g o in there a nd do some cutting , but Icouldn’t.” Ap pe lla nt w a s a sk e d if

he fi re d th e sh ot i nto Jenn if e r’ s se ve re d h e a d. He sa id, “ Idid not.” Asked w ho did, appellant answ ere d, “I was not there when it happe ned. I can only assume.” Ap pe lla nt s a id t hat no on e e lse wa s p re se nt e xce pt H a ll. Appellant te s ti f

ie d tha t he dra nk heavily

throug hout Wednesday

and also took seve ral Xana x pills. He remember ed the telephone calls from Sharon Cave on Wednesda y , and he a dmitted that he wa s rude to he r on both occa sions. That night, whe n Sharon told him that she had ca lled the police, appellant “panic ked.” He “ started throw ing some clothes in a ba g and said we need to g et out of the apa

rtment. We need to g o somewher e and fig ure out what happened.” He sa id that he and Hall did not have any definite plans when they left hi s apar tment on Wednesday night, but afte r they16

drove to Ha ll’s apar

tment so she could g et some clothes, “she said something a bout goingto Mex ico and that’s whe re w e ende d up.”

SUF F ICIENCY OF THE E VIDENCE Appellant conte nds that the evidenc e is leg ally and fa ctually insufficient to support the jur y ’s de te rm inatio n th a t he int e nti onall y or kn ow ing ly

kil le d Jennif

e r C a ve . Wh e n th e re is a challeng e to the suff

iciency of the e vidence to sustain a criminal conviction, the question pre sented is whether a

rational trier

of fa ct could have found the e ssential elements of the offe nse beyond

a re asonable doubt. J ac k so n v . V irg ini a , 443 U.S. 307, 3 2 4 (1979) ( leg al suffic iency ); Cla y ton v . S tat e , 2 35 S.W. 3d

77 2, 77 8 ( Te x. Cr im. Ap p. 20 07 ) ( le g a l su ff ic ie nc y ); J oh ns on v . S

tat e , 23 S.W .3d 1, 11 (Tex. Crim. App. 2000) (fa ctual suff iciency ). Legal suf fi ciency I n a le g a l su ff ic ie nc y re vie w, a ll the e vid e nc e is re vie we d in the lig ht mos t f a vo ra ble to the verdic t. Clayton , 235 S.W. 3d a t 778. I t is a ssume d tha t the tr ie r of fa c t re so lve d co nf lic ts i n the testimony , we i gh ed the evidence , and dre w re asonable infere nces in a manner that supports the verdic t. Id

.

Appellant concede s that he shot J ennife r, but he asserts that there is no evidence that he intended to c ause he r death. Appellant ar g ues that he a nd J ennife r we re f

riends and that he had

no rea son to kill her. H e further argues t hat t he S tate failed to neg ate the possibility that the pistol

acc identally

discharg ed. Appe llant arg ues that in the abse nce of any showing of motive or any direc t evidence o f t h e m an n er in whic h he shot J ennife r, the jury could not rationally

find bey ond a

rea sonable doubt that he intentionally or knowing ly

killed her.17 A culpable mental state must often be proved circ umstantially , and the jury is entitled to consider e vents that occ urre d befor e, during , and aft er t h e comm ission of the offe nse. Mo uto n v. Sta te , 923 S.W .2d 219, 223 (Tex. App.—Houston [14t h Dist.] 1996, no pet.). In a murde r pr os e c uti on , th e int e nt t o k ill may be inf e rr e d fr om the de fe nd a nt’ s us e of a de a dly we a po n, un le ss i n t h e manner

of its use it is reasonably appar ent that death could not result. R o s s v . S tat e , 86 1 S. W.2 d 8 70 , 8 73 (T e x. Cr im. Ap p. 19 92 ); Go ds e yv . S tat e , 7 19 S.W. 2d

57 8, 58 0- 81 (T e x. Cr im. Ap p. 19 86 ). Whe n, a s in this ca se , the e vid e nc e sh ow s tha t a de a dly we a po n w a s u se d in

a de a dly

manner , “the infe renc e is almost conclusi v e t h at [ t he def endant] intended to kill.” Godsey , 7 1 9 S

. W

. 2 d

at 5 8 1 (q u o t i n g Ha tto n v . S tat e , 21 S.W . 679 (Tex. Crim. App. 1893)). The State did not have to prove that a ppellant had a

motive for killing Jennifer. See Cla y ton v . S tat e , 235 S.W .3d 772, 781 (Tex. Crim. App. 2007) (stating that motive is not element of murder, althoug h it may be circ umstance indicative of g uilt). L ooking at the evidenc e in the light most favora

ble to the verdic t, w e must a ssume that the jury reje cted the possibili ty that the shooting

was a n acc ident or the re sult of rec kless or neg lige nt conduct, and that the jury instead d re w the permissible infere nce that appellant shot Jennifer with a de adly wea pon intending to kill her. The jury could also infer

an intent to kill from appellant’s c onduct following the shooting. See M outon , 92 3 S. W.2 d at 223 . T he jur y c ou ld r e a so na

bly c on c lud e that a

pe rs on wh o h a d ju st u

nin te nti on a lly shot his best friend would not g o next door and tell his neighbor t h at he ha d had an e x chang e of g unfire w ith some strang ers, a nd that he would not there afte r attempt t o dismember the dead body befor e fle eing to Mex ico. We hold that the evidenc e is leg ally sufficie nt to support the jury ’s finding bey ond a re asonable doubt that appellant intentionally killed J ennife r Cave.18

F actual suf

fi ciency I n a fa ctual suff

iciency revie w, all t he evidence is c onsidered e qually , including the testimony of def ense w itnesses and the ex istence of alternative hy

potheses. Cle wis v . S

tat e , 92 2 S. W.2 d 1 26 , 1 29 (T e x. Cr im. Ap p. 19 96 ); Or on a v . S tat e , 836 S

. W

. 2 d 3 19, 321 (Tex. App.—Austin 1992, no pet.). Alt houg h due defere nce stil l must be acc orded the fac t finder’ s d et erminations, par

ticularly those conc erningthe weig ht and cr edibility of the e vidence , the revie wing court may

disag ree with the result in order to prev en t a manife st injust ice. Johnson , 23 S.W. 3d

a t 9; Cai n v . S

tat e , 958 S.W .2d 404, 407 (Tex. Crim. App. 1997) . The e vidence will be deeme d fac tually

insufficient if the evidence supporting the verdic t is so weak as to make the finding of g uilt clearly

wrongor manife stly

unjust, or if the verdic t is ag ains t t h e great weig ht and preponde ranc e of the available evidenc e. W ats on v . S tat e , 204 S.W .3d 404, 414-15 (Tex. Crim. App. 20 06 ); Johnson , 23 S.W .3d at 11.

Appellant ar g ues that to find that he intende d to kill J ennife r, the jury had to disreg ard “over whelming evidenc e” that he did not know t hat t he gun was loaded when he pulled the trig g er. Appellant testified that he never loaded the pistol afte r orig inally acquir in g i t , t h rew awa y the ammunition, and sold it t o J ason unl oaded. A ppellant also testified that a fter Jason left the pistol at h is a p a rtm e n t o n Satu

r d a y , A u g u s t 1 3 , h e d id n o t e xa mi n e th e w e a p o n to d e te r

mi n e if it was loaded. He also cites the testimony of def ense f irea rms expert Edwar d Hueske , who testified that the pistol in question di d not have a safe ty or a loa ding indicator to show that a bullet is in the firing

c ha m b e r . A p p e l l a n t a s s e r t s t h a t e v e n i f h e s h o u l d h a v e c h e c k e d t h e w e a p o n w h e n h e re c e ive d it fr om Ja so n, his fa ilure to do so wa s me re ly ne g lig e nc e or re c kle ssn e ss. He ur g e s th a t be c a us e he did19

not know that the pistol was loaded, he could not ha ve intended to kill J ennife r even if he pointed the pistol at her and pulled the trig g er.

Appellant also a

rg ues that if he had intended to kill J ennife r, he would not have shot her in the side. Citing n o au t h o ri ty or evide nce, a

ppellant asser

ts that a g un shot in the side “norma lly does not produce mortal wounds.” Appellant also ref ers to Rodrigue z’s testim ony that he did not sense that Jennifer w as in any dang er w hen he spoke to her by telephone e arly

Wednesday morning , not long be fore the shooting. A ppellant contends that in light of Rodrig uez’s testimony and the a ng le from whic h J ennife r wa s shot, “the most plausible conclusion from the evidence was that [he] acc identally

shot her.” T h e S t a t e ’ s f

i r e a r m s e x p e rt , G r e gK a

r i m , t e s t i f i e d t h a tt h e p i s t o l h a d

a “ t r i g g e r s a f e t y” so that if the t rig g er “was snag g ed at the t op, the t rig g er is not g oing to move.” Kar im also testified that the pistol was so design ed t h at it would not dis char g e if droppe d. Kar im said that the trigg er pull for the g un was e ight to ten pounds, whic h is ty pical for a double a cti on wea

pon and not abnorma lly

low. The State also points to t he testimony of appe llant’s neig hbor, Sullivan, who testified that appellant ha d a pistol with him when he came to her a partment at 3:00 a.m. Wednesday morning and told her a

bout the alleg ed shoot-out in his a partment. Sulli van testified that while a ppellant was in her a p ar t m en t , he took the mag azine out of the pistol to make sure it was unloa ded. She said, “I think he might have said I ’m unloading it. I didn’t know what he was doing.” The S tate fur ther notes appe llant’s admission, during c ross-examination, t h at h e t ook the pistol with hi m “once or tw ice ” wh e n p ur c ha sin g dr ug s. Gi ve n th is e vid e nc e a nd a pp e lla nt’ s o bv iou s mo tiv a tio ns in20

testify ing, the jury could rea sonably discount appellant’ s claim that he wa s unfamiliar with the pistol and did not know that it was loade d.

App e ll a n t d is mi s s e s th e St a te ’ s p r o o f o f in te n t to k il l a s “ me r e s p e c u lati o n . ” But appellant’ s assertion that he did not int end to kill J ennife r i s equally speculative. Be cause appellant claimed that he did not reme mber shooting J ennife r and there wer e no other witnesses, the jury had to infer a ppellant’s culpable m ental st ate from the known cir cumstance s. As noted above , the jury could re asonably

infer a n intent to kill from appe llant’s use of a deadly wea pon and fr om his conduct fo llo wi ng the sh oo tin g . Wh a te ve r a pp e lla nt’ s mo tiv e fo r t

he sh oo tin g , th e jur

y c ou ld r e a so na

bly conclude that it arose a fter he and Jennifer re turned to his apar tment ear ly

Wednesday

morning and that there was no re ason for J ennife r to have felt her self in any dang er be fore then. And t h e jury could have found a number of plausible rea sons othe r than acc ident to e x plain the ang le of the f atal shot, such as appe llant’s intox ication, his lack of skill wit h the pistol, or mere c oincidence . Viewing all the evidenc e in a neutra l lig ht and g iving the jur y ’s ver dict the def

ere nce it is due, we hold that the evidenc e supporting the ver d i ct is not so weak as to make the finding of intentional murder cl e a r ly w r o n g o r ma

n if e s tl y u n ju s t a n d th a t th e v e r d ic t is n o t a g a in s t th e g r e a t w e ig ht and preponde ranc e of the available evidenc e.

Point of error one is overrule d.

LESSER IN CL UD ED OF F EN SES Appellant conte nds that the trial cour t erre d by ref using to instruct the jury

on the lesser included offe nses of manslaug hter and criminally neg lige nt homicide. See Tex. P enal Code Ann. §§ 19.04, .05 (West 2003). Ther e is a two-pa rt test for de termining if an instruction on a lesse r21

included off

ense should be g iven: (1) the lesser offe nse must be included within the proof nece ssary to establish the offe nse cha rg ed, and ( 2) there must be some evidenc e that would per mit the jury rationally to find that if the def endant is g uilty , he is gu ilty only of the lesse r off

ense. Ro us se au v . S

tat e , 855 S.W .2d 666, 672-73 (Te x . Crim. App. 1993). The only distinction be t we en an i n t en t i o n al o r k n o wi n g m u rd er an d t h e lesser offe nses of manslaug hter a

nd criminally

neg lige nt homicide lies in the culpable me ntal state ac company ing the homicidal ac t. Nava rr o v. Sta te , 863 S.W .2d 191, 204 (Tex. App.—Austin 1993), pet. ref’d , 8 9 1 S. W. 2 d 6 4 8 ( T e x. Cr im

. A p p . 1 9 9 4 )

. T h u s , th e r e is n o qu e s ti o n th a t ma n s la u g hter a nd criminally

neg lige nt hom i ci d e ar e included within the proof ne cessa ry to establish the char g ed offe nse in this case. S

e e id

. at 647. We must determine if there is evidence from which the jury could have rationally found that appellant was g uilty only of rec klessly or neg lige n t l y ca using J ennife r Cave’ s death.

Ap pe lla nt c on c e de s th a t hi s c la ime d i n a b i lity to r e me mbe r t

he sh oo tin g did

no t e nti tle him to instructions on the lesser offe nses. Se e Sc hr oe de r v . S tat e , 123 S.W. 3d

39 8, 40 1 ( Te x. Cr im. App. 2003). F urther, it is not enoug h that the j ury might have disbelieved c rucia l evidence perta ining to the char g ed off

ense. Bi gn all v . S tat e , 887 S.W .2d 21, 24 (Tex. Crim. App. 1994). Rather, ther e must be some ev i d en ce d i rectly g erma ne to the included of

fense s for the jury

to consider. Id

. In other words, it is not suf ficient that the jury might have chosen to disbe lieve th at ap p el lant intentionally

or knowing ly

killed J ennife r; there must be evide nce that appellant wa s g uilty only of acting rec klessly

or with criminal neg lige nce. Appellant conte nds that his testimony that he did not examine the pistol in advanc e to determine w hether

or not it w as loaded is e vidence from which the jury could find that, whe n he22

po int e d th e pis tol a t J e nn if e r, he e ith e r c on sc iou sly

dis re g a rd e d a

su bs tanti a l and

un jus tif ia ble ri sk th a t d e a th w o u ld r e s u lt o r th a t h e o u g h t to h a v e b e e n a w a r e o f that risk. See Tex. P enal Code Ann. § 6.03(c ), (d) (West 2003) (def ining r eckle ssness and cr i m i n al n eg lige nce) . But a ppellant’s t e s t i m o n y t h a th e h a d

n o tc h e c k e d

t o s e e w h e t h e r

t h e p i s t o l w a s l o a d e d , e v e n i f b e l i e v e d b y t h e j u r y, is not evidence that appellant wa s g uilty only of manslaug hter or c ri m i n al ly neg lige nt homicide. Appellant could have intended t o kill J ennife r when he point ed the pistol at her and pulled the trig g er even if , when he did so, he did not know to a ce rtainty that the pistol was loaded. Appellant also urg es that t he evidence reg arding his alcohol and drugintox ication on the n ig h t o f th e s h o o ti n g r a is e s th e is s u e o f w h e th e r h e w a s c a p a b le o f a c ti n g in te n tionally or knowing ly

. Under penal code section 8.04(a) , howeve r, evidence of voluntary intox ication ca nnot be used to neg ate the culpable me ntal state of a crime. Te x . Penal Code Ann. § 8.04(a ) (West 2003); Ha wk ins v . S tat e , 605 S.W .2d 586, 589 (Tex. Crim. App. 1980). F ind ingno e vid e nc e fr om w hic h th e jur y c ou ld h a ve ratio na lly fo un d tha t a pp e lla nt, if g uilty at all, was guilty

only of manslaug hter or criminally neg lige nt homicide , we hold that the trial court did not er

r by ref using to instruct on these lesser of fense s. Point of error two is overrule d.

MOTION TO S UP P RESS EVIDENCE A w arra n tt o s ea rc h ap p el l an t ’s ap ar t m en twa s i s s u edat 4 : 4 0 a. m . o n Fr i d ay m o rn i n g, Aug ust 19, about six hours af ter Jennifer Cave ’s body was disco v er ed

. A war rant to sea

rch appellant’ s automobile was issued five hours later . Appellant moved to suppress the evidenc e seized purs ua nt t o th e se wa

rr a nts on the g ro un d th a t in fo rm a ti on c ru c ia l to the fi nd ingof

pr ob a ble c a us e23

to searc h was obtained unlawfully

. I n his third point of error, a ppellant contends tha

t the trial court

e rr e d b y ov e rr uli ngthe mot ion

to s up pr e ss. We reviewa trial c ourt’s ruling on a motion to suppres s ev i d en ce for a n abuse of discretion. Vi lla re al v . S

tat e , 935 S.W .2d 134, 138 (Tex. Crim. App. 1996). I n this re view, we defe r to the trial court’ s fac tual deter minations but review de novo the court’s application of the law to the fac ts. Gu zm an v . S tat e , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997). We will sust ain the trial c ourt’s ruling admitting evide nce if the ruling is reasona

bly supported by

the re cord a

nd corr ect on a

ny theory of law applica

ble to the ca se. W

ill ov e r v . S

tat e , 70 S.W .3d 841, 845 (Tex. Crim. App. 2002). Appellan t’s c ontention

Appellant’s c halleng e to the sea rche s is based on Texas’s statutory exclusionary

rule, which provid e s th a t “ [n ]o e v id e n c e o b ta in e d b y a n o f f ic e r o r o th e r p e r s o n in v io lati o n o f any provisions of the Constitut ion or laws of [Tex as or the Unit ed S tates] shall be admitted in evidenc e ag ainst the accu s ed o n t h e t rial of a ny criminal ca se.” Te x . Code Crim. Proc. Ann. ar t. 38.23(a) (West 2005). This exclusionary rule a pplies to evidence unlawfully obtained by any person, whe ther or not the person is a g overnme nt ag ent. State v. Johnson , 939 S.W .2d 586, 587 (Tex. Crim. App. 1996). Ap p el l ant contends that J im Sedwick committed a cr iminal trespass when he enter ed appellant’ s apar

tment throug h the window. See Tex. P enal Code A nn. § 30.05(a) (1) ( West S upp. 2007) (“ A per son commits an offense if he e nters . . . prope rt y . . . o r . . . a building of another without effe cti v e conse nt and he ha d notice that the e ntry was for bidden”) . Appellant ar g ues that beca use the sea

rch w arr ants wer e issued on the basis of information Sedwick unlawfully obtained24

as a r esult of his c riminal trespass, the evidenc e seized under the war rants must be excluded pursua nt to article 38.23( a).

A sea rch w arr ant may

not be proc ure d l aw fu lly by the use of unla

wfully obtained information. Br own v . S

tat e , 605 S.W .2d 572, 577 (Tex. Crim. App. 1980). When a search w arr ant is issued on the basis of an aff idavit containing unlawfully obtained information, the evidence seized under the war

rant is admissible only

if the wa rra nt “clea rly could have been issued on the basis of the untainted information in the af fidavit.” Id

. I f the tainted infor mation was cle arly

unnece ssary to establish probable c ause f or t he search warr ant, t hen the defe ndant could not have be en har med by the i nclusion of t he tainted information in the af fidavit. Cas til lo v . S

tat e , 818 S.W .2d 803, 805 (Tex. Crim. App. 1991), overruled on othe r grounds , Torre s v . S tat e , 1 8 2 S. W. 3 d

8 9 9 , 9 0 1 -02 (Tex. Crim. App. 2005). This rule has be en held to apply under a rt i cl e 3 8.23(a) when a

sear ch

wa rra nt contains information obtained by the unlawf

ul act of a

private pe rson. M

a r t i n v . S tat e , 67 S.W. 3d

34 0, 34 3 ( Te x. Ap p. —T e xar ka na 20 01 , p e t. r e f’ d) ; State v. Johnson , 896 S.W .2d 277, 292 (Tex. App.—Houston [1s t Dist.] 1995), aff’d , 939 S.W .2d 586, 588 (Tex. Crim. App. 1996).

The proba

ble ca use af fidavits supporting the two sear ch wa rra nts were prepa

red by De te c ti v e M a r

k G i l c h r e s ta n d

s i g n e d b y D e t e c t i v e D o u g l a s S k o l a u t , b o t h m e m b e r s o f

t h e A us tin Police Depa

rt m en t’s homicide unit. The two af fidavits are substantially

identical. The pertinent portion of the two aff

idavits de scribed: (1) J ennife r’s disappea ranc e, the eff

orts that had bee n made to find her, a

nd appellant’ s connec tion to her disappea ranc e; (2) Sedw ick’s entr y into appellant’s apar tment throug h the window and his discover y of Jennifer’s body ; and (3) B arba ria’s discove ry of the body

when he responde d to Sedwick’s 911 eme rg ency call.25

The tr ial c our t’ s r uling

Appellant’s motion to suppress was overr uled following a pre trial hea ring at which Sedwick, Sharon Cave , and several Austin police officer s testified reg ardingthe disappea ranc e of J enni f e r Ca v e , th e e n s u in g s e a r c h , a n d Se dw ic k ’ s d is c o v e r y o f h e r b o dy a f

te r f o r c in g o pen the wi n d ow and e ntering appellant’ s apar tment. After he aringthe evidenc e and the arguments of counsel, the tria l court ag ree d with the State that Sedwick’ s entry into appellant’s apa

rtment was not unlawful a

nd, moreove r, that the discovery of J ennife r’s body was inevitable. The c ourt made the fo llo wi ngfi nd ing s and

c on c lus ion s:
The Court finds the actions on the pa rt of Sharon Cave and Ji m Sedwick wer e not the result of a

ny assistance or direc tion gove rned by any law enf orce ment ag ent or a uth or ity

. Th e y

we re no t a g e nts in a

ny fo rm or fa sh ion . T he ir

c on du c t w a s so le ly a dec ision of the aunt [si c], a nd with no assistance or

direc tion from the Austin Poli ce De pa rtme nt o r any

law e nf or c e me nt a g e nt o r a

uth or ity . T he Mo tio n to Sup pr e ss i s denied on that g round. The ne x t issue is the emerg ency doctrine. . . .

. . . I t ’s cl ea r t h at t h e C o u rt ’s fi n d i n g i s t h at J en n i fe r C av e w a s m i s s i n g, wher eabouts unknown. Thr oug h her [ Sharon C ave’ s] own ef forts, she discove red, in co n v er s at i ons with Michael Rodrig uez, that the last person she, be ing the dece ased, ha d contac t with, was the ac cused in this case

. Sh e f o u n d th e lo c a ti o n o f th e a c c u s e d ’ s r e s id e n c e , w e n t th e r e , f o und her daug hter’s a

utomobile, made ef

forts to deter

mine if she wa s at that location. The Court finds that, as view e d th r o u g h

— th r oug h the standpoint and the view of Sh a r o n Ca

v e a n d Jim Se dw ic k , th e ir c o n d u c t w a s r e a s o n a

b le

. T h e r e w a s an emer g e n c y , in th e ir mi n d s , th a t e xis te d

. T h e ir d a u g h te r c o u ld h a v e been injured/harme d, in some way , unable to communicate wit h them, that there was a n emer g ency

situation in t heir minds

. They wer e justified in enter ing the premises un de r t he e me rg e nc y

do c tr ine . T he y

re a so na bly be lie ve d th a t Jen nif

e r C a ve wa s in there and in nee d of immediate a id or assistance

.26 Motion to S uppress is denied w ith reg ard to a finding of this Court that an e m e r g e n c y t r

u l y d i d e x i s tt h a tj u s t i f

i e d t h e e n t r y. Wit h reg ar d

to th e q u e s tion of nece ssity , assuming that someone may disag ree with this C ourt and find that the c rime of c riminal trespass did, in fac t, o ccur —the Court is assuming that I

will be the fa ct finder

as to whether

any defe nse would be applicable in this case. And the Court finds that if someone takes exception to the Court’s ruling here and finds that a crime of criminal trespass did, in fac t, occur —the Court finds t h at as the finder of f act, that a nece ssity defe nse would be a

pplicable, that the entry made was immediately nece ssary to a void a ny imminent har

m, and that it would be applicable . And the Motion to Suppress is denied on that g round. The Court fur

ther finds that the testimony at the hea ring establishes . . . that there was the odor

of d ec o m p o s i tion in the apartment whe n the apa rtment was enter ed. The Court understands that ther e ar e two people who had smelled an odor and o n e w h o d id

n ’ t. B u t it is a f

in d in g o f f

a c t th a t th e o d o r d id e xis t, a n d that it’s rea sonable to c onclude that in a —in a short period of time that that odor would have emanated to the apartments surrounding or near the apartment whe re the body was found, and that the inevitable dis cover y doctrine is found as applicable by the Court in this case. The Motion to S uppress is denied on a ll gr ounds.

Inevitable dis cover y

Ap pe lla nt c ha lle ng e s the th ree leg a l c on c lus ion s o n w hic h th e tr ia l c ourt ba se d it s de c isi on to o ve rr ule the mot ion

to s up pr e ss. Appel lant qu ic kly dis po se s o f t

he c ourt ’s ine vit a

ble dis c ov e ry ratio na le , c or

re c tly po int ing ou t that ine vit a

ble dis c ov e ry is no t a n e xce pti on to t he a rt ic le 38.23 exclusionary

rule. Sta te v . D au

gh e rty , 9 3 1 S.W .2d 268, 273 (Tex. Crim. App. 1996). The Sta te c on c e de s th a t art ic le 38 .2 3 d oe s n ot i nc or po rate the ine vit a

ble dis c ov e ry do c tr ine , a lth ou g h it

a rgue s th a t th e law s ho uld be oth e rw ise . T hat is a n a rgume nt f or the c ourt of c ri min a l a

pp e a ls.

Em e r ge nc y do c tr ine

Ap pe lla nt a rgue s th a t th e e mer gen c y do c tr ine is a

n e xce pti on

to t he F ourt h Amendment sea

rch w arr ant re quirement a nd has no application to the actions of a pr ivate per son27

who was not acting as a state ag ent. Se e Bu rd e au v . M c Do we ll , 256 U.S. 465, 475 (1921) (holding that F ourt

h A me ndme nt p ro te c tio n a g a ins t unre a so na ble se a rches and se izur e s a pp lie s o nly

to g overnme nt ag ents). But the c ourt of cr iminal appeals ha s rec ently held that for the purpose of applying the article 38.23(a) exclusionar y ru l e, t h e ac tions of a private person a re to be judge d

acc ording to the standards that apply to police offic ers. The court he ld: [T] he plain languag e and history of Article 38.23 lead to an ine scapa ble conc lusion: if a n o ff ic e r v iol a te s a pe rs on ’s pr iva c y ri g hts by his ill e g a l c on du c t makin g the fr uit s of his sear ch or se izure inadmissibl e in a c rimina l p ro ce ed i ng under A rticle 38.23, that same illeg al conduc t unde rtake n by an “othe r per son” is also subject to the Te x as ex clus ion a ry

ru le . I f t he po lic e c a nn ot s e a rc h o r s e ize , th e n n e ith e r c a n th e pr ivate citizen. Conversely , if an officer may sear ch or seize someone under the particula r c ir c ums tanc e s, the n th e pr ivate c iti zen ’s e qu iva le nt c on du c t do e s n ot i nd e pe nd e ntl y invoke the Tex as ex clusionary rule, and the evidenc e obtained by either the office r or the private per son may be admissible.

Mi le s v . S tat e , 241 S.W .3d 28, 36 (Tex. Crim. App. 2007) (footnote omitted). In other wor ds, under

a rt ic le 38 .2 3( a ), “ a

pr ivate pe rs on

c a n do what a polic e of

fi c e r s tand ingin h is s ho e s c a n le g iti ma te ly do, but cannot do what a police of fice r ca nnot do.” Id . at 39 . T herefore , alth ou g h th e F ourt h Amendment wa

rra nt require ment applies onl y to police off icer s and other a g ents of the g overnme nt

as a matter of c o n s t i tutional law, Miles eff ectively applies the F ourth Amendment wa rra nt requir e me n t— a n d th e e xc e p ti o n s to th a t r e qu ir e me n t— to th e c o n d

u c t o f p r iv a te p e r s o n s . Under Miles , i f a police office r standing in Sedwick’s shoes would have bee n justified in entering and

sear ching appellant’ s apar tment as Sedwick did, then Sedwic k’s discover y of Jennifer’s body

was not evidence obtained in violation of the law unde r ar ticle 38.23(a ). The F ourth Amendment does not ba r police of fice rs from makingwar

rantless e ntries to assist pe rsons who are seriously injured or threatened with se rious injury . The ne ed to protec t or28

pr e se rv e lif

e or a vo id se ri ou s inj ur y is jus tif

ic a tio n fo r wh a t wo uld oth e rw ise be unla wf ul. Mince y v. A rizona , 4 3 7 U

. S

. 3 8 5 , 3 9 2 ( 1 9 7 8) ; see al so Lan e yv . S tat e , 117 S.W .3d 854, 860-61 (Tex. Crim. App. 2003) (discussing emer g ency doctrine unde r Mince

yand distinguishing it from

a uto mob ile inv e nto ry

a nd c omm un ity c a re takin g do c tr ines). Th is C ourt ha s h e ld t

hat f or thi s

emer g ency

doctrine to a

pply , three fac tors must be prese nt : (1 ) the offic er’ s conduct must be divorce d from the de tection, investig ation, or ac quisiti on of evide nce; ( 2) the off icer must have an immediate, objectively

rea sonable belief t hat t he search is nece ssary in order to protec t or pre serve lif e or a vo id s e ri ou s in

jur y ; and (3 ) t he sc op e of

the se a rc h must be str ic tly c ir c ums c ri be d b y the fa c ts of the e merg ency . W

ie de v . S tat e , 157 S.W .3d 87, 102 (Tex. App.—Austin 2005, pet. ref ’d). Since W iede w a s d e c id e d , h o w e v e r , th e U n it e d St a te s Su p r e me Co u rt h a s ma d e it c le a r th a t, in th e c o n te xt of the emer g ency doctrine, a police office r’s subjective motivation is irrele vant i n d eter mining whether the officer’ s actions vi olated the Fourth Amendme nt. Br igh am City v . S tua rt , 547 U.S. 398, 126 S. Ct . 1943, 1948 (2006). The Court reje cted the a rg ument that the emer g ency doctrine c annot be invoked if the office r wa s primaril y m o t i v ated by an intent to arr est or seize evide nce. Id . An

o f f i c e r ’ s a c t i o n i s r e a s o n a

b l e u n d e r t h e F o u rt h A m e n d m e n ti f t h e c i r c u m s t a n c e s , v i e w e d o b j e c t i v e l y, justify the act i on. Id . In d e c idi ngwh e the r a n o ff ic e r h a d a n o bje c tiv e ly

re a so na ble be lie f t

hat hi s conduct was nece ssary to protec t or preserve life or avoid serious injury , we must take into ac count the f a c ts a n d c ir c u ms ta

n c e s kn o w n to th e o f f ic e r a t th e ti me o f th e s ear ch. Laney , 117 S.W .3d at 862.

A pr o mi n e n t c o mm e n ta

to r h a s observe d that “ther e ar e an inf inite variety

of situations in w h ic h e n tr

y f o r th e p u r p o s e o f r e n d e r in g a id is r e a s o n a b le

. ” 3 Way

n e R. L aF ave, Search and Se izu re § 6.6(a) (4th ed. 2004). A s an example of the pr oper a pplication of the e merg ency doctrine,29

L aFave c ites the opinion in Pe op le v . M itc he ll , 3 4 7 N

. E

. 2 d

6 0 7 ( N

. Y

. 1 9 7 6 )

. I n th a t c a s e , a h o tel maid disappea

red shortly afte r she repor ted t o work at 9:00 a.m. Id

. at 608. Residents of the hotel b ega n t o look for her , and they wer e soon joined by

two police patr olmen. Id

. T h e ma id ’ s s tr e et clothes and he r par

tially eate n lunch wer e found on the six th f loor of the hotel, but a chec k of vac ant rooms and inqui ri es t o the other r esidents wer e unava iling. Id . At 1:15 p.m., four hours af ter the maid had last bee n seen, a homicide detective arrived at the hotel to assist i n the sea rch. Id . After a thoroug h sear ch of the base ment, roof, a lley way s, and air duc ts, a room-by -room sea rch of the hotel

was c ommenced. Id . The de tective e ntere d the def end an t ’s ro o m with a passkey provided by manag ement and f

ound the maid’s dea d body in a closet. Id . at 608-09. The Ne w York Court of A ppeals held that the sea

rch of the def endant’ s hotel room had been rea sonable under the Four th A mendment beca

use it wa s trig g ere d by an em erg ency situation. Id . at 609. The court ruled that the pol ice had rea sonable g rounds to believe that there w as

an eme rg ency : the maid had not bee n seen for hours, she had not r esponded w hen summoned, it was highly probable that she wa s somewher e in the hot el, and the circumstances “led to the conc lusion that some g rave misfortune of a n indeterminable nature had bef allen [her].” Id

. at 609-10. The c ourt noted t he absence of any obvious signs, such as screams or the odor of a de cay ing c orpse, sug g esting that the m issing maid might be in the defe ndant’s room. Id

. at 610. But the c ourt also observe d that an exhaustive sear ch of the publ ic ar eas of the hotel had r evea led nothing, r aising the possibilit y that the maid was in one of the private rooms, and that the de fenda nt’s room was on the f

loor wher e the maid had last been seen and wher e her partially eate n lunch was f

ound. Id . The c ourt conc luded that

a sea rch of the def endant’ s room “wa s imperative in lig ht of these f acts.” Id . at 611.30 As he sto od

ou tsi de a pp e lla nt’ s loc ke d co nd omi nium apa rtme nt on Thur sd a y

nig ht, Aug ust 18, Sedwick was confr onted by an eme rg ency

at least a s obvious and as immediate, if not more so, than that whic h confr onted the off icer in Mi tc he ll . Se dw ic k k

ne w that:

• On Tuesda

y , J ennife r ca lled her mother , Sharon Cave, to e x citedly repor t that she had ac cepte d a job with an Austin law fir m. That nig ht, J ennife r ag ain spoke to her mother by telephone. Stil l e x cited about the new job, Jennifer was doing her la undry a n d d e c i d i n g w h i c h c l o t h e s t o w e a r t o h e r n e w j o b o n W e dn e s d a y. • On Wednesday

morning , J ennife r did not repor t for wor k. Calls to her cell phone went unanswere d, and she was not at her apar tment. J ennife r’s roommate discovere d that J ennife r’s be d had not be en slept in on T uesday night. Jennifer’ s new e mploy ers we re so c on c e rn e d th a t th e y c a lle d h e r m oth e r that a ft e rn oo n. Al tho ug h Sh a ro n d id not suspect that J ennife r’s disappe arance was drug -re lated, Sharon did know that Jenn if e r h a d u se d d

ru g s in the pa st.

• J ennife r’s last telephone call was at 1:00 a .m. Wedne sday morning

. Sh ar o n had been una ble to rea ch Jennifer by

telephone sinc e lea

rning of h er disappea

ranc e on Wednesday afte rnoon. J ennife r, who spoke to he r mother by telephone at least onc e a day , had not ca lled her mother or answe red her mother’ s calls since the ir Tuesda y night c onversation. Shar on had called Austin hospit als and e ven the morgue in her unsucce ssful eff

ort to locate he r daug hter. • Sh a ro n h a d ma de calls t o th e pe rs on s w ho Jenn if e r h a d la st s po ke n to , b ut o nly Michae l Rodrigue z had any pertinent infor

mation. A ccor ding to Rodrig uez, J ennife r and appe llant had bee n toge ther on Six th Street in downtown Austin on Tuesday n i gh tan d ea rl y W ed n es d ay

m o rn i n g.

• W h en appellant was c ontacted by Sharon on Wednesday

afte rnoon, he de nied having been w ith J ennife r. Confronted w ith Rodriguez’s contr ary information, appellant a dmitted having se en Jennifer brie fly on Tuesday night, but denie d having any knowledg e of he r whe rea bouts. Sharon’s belief

that appellant wa s ly ing a nd knew more than he was say ing w as conf

irmed on Thursda

y , when a ppellant’s father told her that appe llant had had a dinner date with J ennife r on Tuesda y night. • O n T hurs day , J ennif

e r’ s c a r w a s f

ound pa rk e d n e a r a pp e lla nt’ s a pa rtme nt. Appellant’s c ar w as also par ked at the c ondominium complex. The re w as, howe ver, no response to repe ated knoc ks on appellant’s door and no sig n that the apa

rtment was oc cupied.31

Considered tog ether , these fac ts strong ly sug g ested that J ennife r’s disappe ara nce w as the re sult of foul play and point ed to appellant’ s apar tment as the most obvious place to look for her. G rante d, the re we re no sig ns of fo ul pla y a t the a pa rtme nt. Th e re ha d be e n no re po rt s of sho uts or g un sh ots coming from the apar

tment. No foul odor had be en dete cted. B ut J ennife r had be en missing without explanation for almost two day s, appella n t was her last known companion, he r ca r wa s parke d

ou tsi de a pp e lla nt’ s a pa rtme nt (as wa s a

pp e lla nt’ s) , a nd a pp e lla nt h a d li e d a

bo ut h a vin g be e n w ith J ennife r on Tuesda

y night. I f Jennifer wa s sick or i njured or othe rwise phy sically threatened, e ach passing moment increa sed the risk of de ath or serious injury . We conclude that a police of fice r sta n d i n g i n Sedwick’s shoe s would have ha d an objec tively rea sonable be lief that an e merg ency situation exis ted and that entry into appellant’ s apar tment was im mediately

nece ssary

to protect or prese rve J ennife r’s li fe or to avoid serious injury to her. Se e Br im ag e v . S

tat e , 918 S.W .2d 466, 503 (Tex. Crim. App. 1996) (op. on reh’ g ) (holding that emer g ency doctrine justified wa

rra ntless searc h to locate c omplainant or t o fi n d evidenc e that would lea d to complainant’s discove ry at differ ent location).

That one or

more Austin police officer s subjectively believed that they did not have a leg al re ason to enter

the apa rtment, and c onvey ed that belief to Sedwick, is irrele vant. I t is not clea r from the rec ord whe ther the of fice r or of

fice rs who made the dec ision not t o forc ibly enter appellant’ s apar

tment on that Thursday

night kne w all the per

tinent fac ts and circ umstances. I n any event, a n action is rea sonable unde r the F ourth Amendment a s long a s the ci rc u m s t an ces, vie wed objectively , justify

the ac tion. Stu ar t , 1 2 6 S

. C t
. at 1 9 4 8 (q u o t i n g S c o tt v . U n it e d S tates , 436 U.S. 128, 138 (1978))

. The question is not whether the Austin police subjectively believed that

an eme rg ency

exis ted, but whether

a police of

fice r standing in Sedwick’s shoes and knowing what32

Se dw ic k kn e w w o u ld

h a v e b e e n o b

je c ti v e ly w a r

r a n te d in b e li e v in g th a t a n e me r g e n c y e xis te d

. We hold that he would have been.

Although this case was tried be fore the opinion in Miles was a nnounced, the trial court prope rly

conclude d that Sedwick’s en t ry i nto appellant’s a partment on the nig ht in question

wa s r e a so na

ble un de r t

he e me rg e nc y do c tr ine

. Se dw ic k’ s se a rc h o f t he a pa rtme nt a ft e r e nte ri ngdid not exceed the sc ope justified by the emer g ency , and J ennife r’s body was discovered in plain view. See M incey , 437 U.S. at 393 (holding that “police ma y seize any evidenc e that is in plain view during the cour se of their

leg itimate emerg ency activities”). Sedwick’s discove ry of Jennifer’s body

was not information obtained in violation of t he Fourth Amendment. For the same rea son, there w as no

v i o l ation of ar

ticle I , section 9 of the T exas Const itution. See B rimage , 9 1 8 S. W. 2 d a t 500 (re cog nizi ng emer g ency

doctrine unde r Texas Constit ution).

Nec essity Appellant also c ontends that the evide nce doe s n o t s u p p o r t t h e tria l c o urt’s conc lusion that Sedwick’s conduct was immediately nece ssary to avoid imminent harm. See Tex. P enal Code Ann. § 9.22 (West 2003) (necessity defe nse). Appellant urg es that there is no evidence that Sedwick

was c onfronted by

an eme rg ency

situation requiring a split-second de cision without time to consider the law. Se e Ste

fan off v . S tat e , 78 S.W .3d 496, 501 (Tex. A pp.—Austin 20 0 2 , p et
. re f’d) (discussing nece ssity

defe nse). Be cause it would have bee n rea sonable for a police of

fice r standing in Sedwick’s sh oe s to have e nte re d a

pp e lla nt’ s a pa rtme nt u nd e r the e me rg e nc y

sit uatio n th a t w a s o bje c tiv e ly appar ent, the off

icer ’s entry

would have be en jus tified by public duty and would not have constituted33

a cr iminal trespass. See Te x. Pe na l Code Ann. § 9 .2 1 ( Wes t 20 03 ) ( pu bli c du ty de fe ns e ); se e als o Ro sa le z v . S tat e , 875 S.W. 2d 70 5, 71 7 (T e x. Ap p. —D a lla s 199 3, pe t. r e f’ d) (h old ingthat of fi c e rs ’ alleg ed cr iminal tre spass was justified by public duty). Unde r Miles , we ne ed not dec ide if Sedwick,

a s a pr ivate pe rs on , w ou ld h a ve be e n ju sti fi e d b y ne c e ssi ty in c omm itt inga n a c t that mi g ht o the rw ise

c on sti tut e a

c ri min a l tr e sp a ss. We hold that Sedwick’s discovery of J ennife r’s body was not information obtained in violation of the law unde r ar ticle 38.23(a ) as inter

prete d in Miles . T his inf

or ma tio n w a s p ro pe rl y

us e d to ob ta in t

he wa rr a nts to s e a rc h a

pp e lla nt’ s a pa rtme nt a nd a uto mob ile . Po int

of e rr or thr e e is

overr uled.

IN EF F EC TIV E A SSIST AN CE OF CO UN SEL Appellant’s ne x t contention is that his trial counsel re ndere d ineffe ctive assistanc e. To preva il on this claim, appellant must show that his attorney s made such se rious err ors that they

we re no t fu

nc tio nin g e ff

e c tiv e ly a s c ouns e l and

that th e se e rr or s p re

jud ic e d a pp e lla nt’ s d e fe ns e to such a de g ree that he wa s deprived of a fa ir trial. See Strick

land v. W ashington , 466 U.S. 668, 687 (1984); He rn an de

z v . S tat e , 98 8 S.W. 2d 77 0, 77 1- 72 (T e x. Cr im. Ap p. 19 99 ); He rn an de z v . S tat e , 7 2 6 S

. W

. 2 d

5 3 , 5 7 ( T e x. C r i m . A p p . 1 9 8 6 ); se e als o M oo re v . S tat e , 694 S.W .2d 528, 531 (T e x. Cr im. Ap p. 19 85 ); O’ Ha ra v . S

tat e , 837 S.W .2d 139, 1 4 3 (T ex . App.—Austin 1992, pet. re f’d) . To prove pr ejudice, a ppellant must show that there is a rea sonable proba bility that the result of his t ri al woul d have be en diffe rent ha d counsel not per formed de ficiently

. Strickland , 466 U.S. at 693-94. We must indulge a st rong presumption that counsel’s conduct fell within the wide ra ng e of r easona

ble profe ssional assist an ce. Se e J ac k so n v . S tat e , 877 S.W .2d 768, 771Th e thr e e state me nts we re : ( 1) “ Th e law s a y s p e r s e that if y ou kil l so me on e wi th a

de a dly 2 we a po n, the n spe c if

ic int e nt ca

n be inf e rr e d. ” (2 ) “L ike Ms. Mc F a rl a nd sa id, y ou c a n in fe r s pe c if

ic intent, per se, f

rom the use of

a handgun

. ” (3 ) “N one of that is im portant bec ause intent c an be inferr ed fr om the use of a deadly wea pon.” 34 (Tex. Crim. App. 1994). To overc ome this presumption, any alleg ation of ineff

ectivene ss must be firmly founded in the r ecor d and the r ecor d must affirmativ el y d em o nstrate the a lleg ed ineffe ctiveness. Ma lle tt v . S tat e , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001). Appellant first notes that during the course of the trial, his attorne y s stated that they had “no obje ction” whe n the State offe red some of the evidenc e seized during the sea rche s they had challeng ed in their m otion to suppress. Se e Ho lm es v . S tat e , No. PD-1050-07, 2008 Te x . Crim. App. L EXI S 327, at *3 (Tex. Crim. App. Mar. 5, 2008) (by stating “ no objection,” de fenda nt waives rig ht to complain on ap p ea l t h at evidence unlaw fully obtained); Bo

y k in v . S tat e , 504 S.W .2d 855, 857 (Tex. Crim. App. 1974) (same; rule applies even if motion to suppress fil ed an d o v erruled). Appellant ar g ues that if couns el there by failed to pre serve err or in the over ruling of his pretria l motion to s uppress, thi s constituted ineffe ctive assist ance . Howeve r, we have alrea dy overr uled on the me ri ts a

pp e lla nt’ s c on te nti on

that th e e vid e nc e in q

ue sti on wa s unla wf ull y ob ta ine d a

nd sh ou ld have be en suppre ssed. T h erefore , the alleg ed er ror by counsel did not prejudice the def ense at tr ia l or on a pp e a l. Appellant also c omplains of h is attorney s’ fa ilure to object to improper jury argument by the State. He ur g es that an obje ction should have been made when, on three diff ere nt occa sions duri nga rgume nt at th e g uil t st a g e of tr ia l, a pr os e c uto r t old the jur

y that a spe c if

ic int e nt t o k ill c ou ld be infe rre d from the use of a de adly wea pon. He claims that an objec tion should also have bee n 2 made to the pr osecutor’ s statement that when a ppell an t “pointed that g un and shot J ennife r Cave,35

he wa s acting intentionally . There is nothing more intentional than pointing a g un and shooting it.” Appellant ar g ues that under penal c ode section 22.05, only rec klessness is presumed w hen a pe rson points a firea

rm at anothe r. Tex. Penal Code Ann. § 22.05(c ). Appe llant complains that the prosec utors’ statements improper ly shifted the burden of proof to the defense to show that he did not have a n intent to kill

. See Sandstrom v . Montana , 442 U.S. 510, 524 (1979) (holdin g that due proce ss is viol ated by

presumption shifting bur den of pe rsuasion to defe ndant). Appellant’s a

rg ument fails to acknow ledg e the distinction betwe en an inf ere nce a nd

a pr e su mpt ion

. Th e pr os e c uto rs did no t ar g ue that app e lla nt’ s inte nt to kill wa s presumed a s a re su lt of his use of a

deadly wea pon. I nstead, the pr osecutors a rg ued that the jury

could infer

a n in te nt t o kill from his use of a de adly wea pon in a dea dly

manner . Such an infere nce is pr oper, a s we noted i n o u r d i scussion of the suff iciency of the e vidence

. Se e Ro ss , 8 61 S.W. 2d a t 87 3; Godsey , 71 9 S. W.2 d at 58 1. Couns e l’ s f a ilure to o bje c t to the a rgume nts did no t c on sti tut e ine ff

e c tiv e ne ss beca use the a rg uments were not objectionable. Point of error f

our is overr

uled.

COMP ETE NCE TO ST AND TRIAL Appellant’s f

inal point of err or is that the trial court, on its own motion, should have conducte d an inquiry

into his competenc e to stand trial. A per son is incompetent to stand trial if he does not have sufficie nt present a bility to consult with his l awy er w ith a rea sonable deg ree of rational

un de rs tand ing , o r i f h e do e s n ot have a ratio na l a nd fa c tua l un de rs tand ing of the pr oc e e din g s a g a ins t him. Tex . Code Crim. Proc. Ann. ar t. 46B.003(a ) (W est 2006). I f evide nce sug g esting that the de fe nd a nt m a y

be inc omp e te nt to sta

nd tr ia l c ome s to the a tte nti on of the c ourt , th e c ourt

mus t r a ise36

the c omp e te nc y

iss ue on its ow n moti on a nd de te rm ine by inf or ma l in qu ir

y wh e the r t he re is s ome

e vid e nc e fro m any so urc e that w ou ld s up po rt a fi nd ingthat th e de fe nd a nt m a y be inc omp e te nt t o stand trial. Id . art. 46B .004(b), ( c).

Th e statut e s g ov e rn ing c omp e te nc y de te rm inatio ns we re re vis e d by the le g isl a tur e in 2003. See Act of April 30, 2003, 78th L eg ., ch. 35, § 1, 2003 Te x . Gen. L aws 57. Unde r prior la w, a trial c ourt was r equire d to conduct what was re fer red to a s a “sec tion 2 hear ing” or a “c ompetency inq uir y ” if e vid e nc e ra isi ng a bo na fi de do ub t re g a rd ing the de fe nd a nt’ s com pe te nc e wa s bro ug ht t o the court’s attention from any source . Se e Mc

Da nie l v . S

tat e , 98 S.W .3d 704, 710 (Tex. Crim. App. 2 0 0 3 )

. I t is u n c le a r w h e th e r th a t s a me s ta n d a r d g o v e r

n s th e tr ia l c o u rt’ s o b li g a ti o n to conduct a n “informa l inquiry ” under the cur rent statute. Se e Ro

ja s v. S tat e , 228 S.W .3d 770, 773 (T e x. Ap p. —A mari llo 20 07 , n o p e t.) (a pp lying bo na fi de do ub t st a nd a rd ); Lawr e nc e v . S tat e , 1 6 9 S

. W

. 3 d 3 1 9 , 3 2 3 (T ex . Ap p . — Fo rt W o rt h 2 0 0 5 , p et
. re f’ d ) ( ac kn o wl ed gi n g, b u tn o td ec i d i n g, that new statutory lang uag e might cr eate lower e videntiary threshold). L ike the Lawrence court, we do no t de c ide thi s is su e be c a us e we c on c lud e that e ve n und e r a br oa d in te rp re ta tio n o f a rt ic le 46 B .0 04 (b ), the re wa s n o e vid e nc e su g g e sti ngthat a pp e lla nt w a s in c omp e te nt t o s tand tr ia l. Ap pe lla nt a rgue s th a t th e qu e sti on

of his c omp e te nc e to sta

nd tr ia l wa s ra ise d b y

his testimony that he could not r emember what happene d during the ear ly morning of Aug ust 17 w hen J ennife r Cave w as shot in his apartment. Appe llant a lso refe rs us to the testimony of Dr. Richa

rd Coons, a fore nsic psy chiatrist ca lled by the defe nse. Coons testified that excessive use of alcohol or depr essants ca

n result in blackouts or pe riods of amne sia. I n answe r to a hy pothetical question, Coons said that a person who dr ank a qua rt of vodka a

nd took severa l Xanax tablets might experience such a blackout: “[I ]t is c ompletely in ke eping with w hat I have testified to before , that37

alcohol and Xanax impair the abili ty to lay down m emory and it will impair that ability for a ll the tim e that y ou a re su ff

ic ie ntl y int oxic a te d. ” Coo ns a

pp a re ntl y did no t e xami ne a

pp e lla nt, a nd he did not testify that appellant’ s claimed lac k of memory was g enuine. Amnesia doe s not easily fi t t he statutory

definition of incompetenc e. Doe s an inability to reme mber the alleg ed cr ime hinder a defe ndant’s pre sent ability to consult with counsel with a rea sonable deg ree of rational understanding , or leave the de fenda nt unable to rationally

and fa c tua lly un de rs tand

the pr oc e e din g s ag a ins t him? I n its only e xten siv e dis c us sio n of thi s su bje c t, the cour t of cri m inal appea ls noted that it had found no re ported opinion holding that a cr iminal de fe nd a nt’ s in a

bil ity to r e c a ll the e ve nt fo r wh ic h he wa s o n tr ia l c on sti tut e d a me nta l in c a

pa c ity to stand trial. J

ac k so n v . S tat e , 548 S.W .2d 685, 691 (Tex. Crim. App. 1977). I n Jack son , the cour

t followed the a

pproac h taken in W

ilson v. United States , 391 F.2d 460 ( D.C. Cir. 1968). W ilson he ld that a de fe nd a nt’ s amn e sia ba

rs pr os e c uti on

on ly if the los s o f m e mor

y so c omp ro mis e s h is a

bil ity to present a defe nse as to de prive him of a fa ir trial and e ffe ctive assistanc e of c ounsel. Id . at 462-63. Th e fa c tor s to c on sid e r a re : (1 ) the e xten t to wh ic h th e a mne sia a ff e c te d th e de fe nd a nt’ s a

bil ity to consult with and assist his lawy er; (2) the extent to which the amn esi a af fec ted the def

endant’ s ability to testify

in his own behalf; (3) the extent to which the fac ts of t h e crime could be

re c on str uc te d b y e xtri ns ic e vid e nc e ; ( 4) the e xten t to wh ic h th e g ov e rn me nt a ssi ste d th e de fe ns e in that rec onstruction; (5) the stre ng th of the g overnme nt’s case ; and (6) an y o t her f acts or circ umstances indicating whe ther or not the defe ndant receive d a fa ir trial. Id . at 46 3- 64 ; Jack son , 548 S.W .2d at 692.38 I n W ilson , the defe ndant was sever ely injured in a n automobile acc ident while flee ing from th e p o li c e . 3 9 1 F

. 2 d a t 4 6 1

- 6 2

. H e s u f f e r e d b r a in d a ma g e , r e ma in e d u n c o n s c io u s for thre e

wee ks, and at the time of his trial ha d no memory of t he afternoon in question. Id . T he fa c t of his

a mne sia wa s un dis pu te d, a nd he ha d pr e vio us ly be e n de te rm ine d to be inc omp e te nt to stan d t ri al. Id . The a ppeals c ourt rema

nded the c ause to the tria l court fo r a deter mination as to whether the defe ndant’s amne sia had de prived him of a f air trial. Id . at 464. I n Jack son , t h e e v i d en ce s h o we d

t h at t h e d ef

en d an t , d u ri n g an ar gu m en twith his wife, produce d a pistol and fire d two shots, wounding his wife and killing his sister. 548 S.W .2d at 688. At a p r e t r i a l c o mp e t e n c y h e a r i n g , a c o u rt
- a p p o i n t e d p s y c h i a t r i s t t e s t i f i e d t h a t t h e d e f

e n da nt c ou ld not remembe r the shooting , a fa ct t hat t he psy chiatrist had c onfirmed by a poly g raph e x amination. Id . at 6 90 . T he ps y c hiatr ist e xpre sse d th e op ini on

that th e de fe nd a nt w a s in c omp e te nt t o s tand tr ia l. Id . The de fenda

nt ’s court-appointed attorne y testified at the he aringthat the def endant “ was constantly chang ing the fac ts of his story .” Id

. The c ourt of cr iminal appeals, a pply ing the W

ilson fa c tor s, c on c lud e d that th e de fe nd a nt’ s la c k o f m e mor y did no t a dv e rs e ly

a ff e c t hi s a bil ity to

rec onstruct the eve nt o r p re s en t a defe nse, and that the defe ndant’s trial wa s not unfair unde r the circ umstances. Id . at 692.

This issue was ra ised more r ece ntly in R e e d

v . S t a te , 1 4 S .W.3d 438 (Tex. App.—Houston [14t h Dist.] 2000, pet. re f’d) . The opinion cited twe n t y -o n e fac ts and circ umstances that the a

ppellate c ourt believe d raised a bona fide doubt as t o the def endant’ s competenc e to stand t rial, amongthem the def endant’ s inability

to remembe r the e vent for w hich he was on trial, his history of mental illness, his orga nic bra in damag e, his belief that his attorney was conspiring ag ainst him, and the State’s pre trial motion for a competenc y examination. Id . at 439-41.On

re mand , th e tr ia l c ourt

de te rm ine d th a t the de fe nd a nt w a s c omp e te nt t o s tand tr ia l and a g a in 3 im p o s e d s e n te n c e . T h e c o u rt o f a p p e a ls a f

f irmed. Ree d v . S

tat e , 112 S.W .3d 706 (Tex. App.—Houston [14t h Dist.] 2003, pet. re f’d)

. 39 Be cause the compete ncy

issue was not ra ised until sent en ci n g, t h e court re manded the c ause f or

rese ntencing

. Id . at 443. 3

I n the instant cause , there was indepe ndent evidenc e that appe llant had a hist ory of alcohol and dr

ug abuse a

nd that he wa s intox icated on the night Jennifer Cave was killed. B ut there

wa s n o ev i d en ce co rr o b o ra t i n g ap p el l an t ’s cl ai m t h at h e c o u l d n o tre m em b er

t h e s h o o t i n g. Appellant’s own e x pert did not examine him, did not confirm the a l l ege d amnesia, and did not express the opinion that appellant wa s incompetent to stand t rial. Throughout the tria l, counsel for the State expressed the opinion that appe llant’s lack of memory was fe igne d. There is no evidence sug g esting that J ennife r was not killed in appe llant’s apar tment or that any

person other

than appe llant fired the f atal shot. Th at appellant and J ennife r we re on friendly terms was undisputed. The defe nse w as able to show throug h its firear ms ex pert that the pistol t hat fire d the fatal shot did not have a s af et y o r an indicator to show that it was loaded. Appellant ar

ticulately testified o n h is own behalf a nd his ability

to present his def

ense—that he

wo uld no t ha ve int e nti on a lly

kil le d h is f

ri e nd —d oe s n ot a

pp e a r t o have be e n c omp ro mis e d by his inability to remembe r the shooting

. Appellant cites defe nse counsel’s statement, “I am not sugg esting for a moment that Ihave g ot a

ha nd le on a ll o f thi s. Th e sin g le g re a te st pr ob le m tha t I have in be ing in c ha rg e of thi s lawsuit is that I have g ot a client who c annot tell me what ha ppened.” This comm en t was made during jury

argument. Counsel was not as serting to the court that a ppellant’s lac k of memory40

rende red him in c o mp e te n t to a s s is t in h is d e f e n s e . I n f

a c t, d u r in g a p r e tr ia l h e a r in g , o n e of appellant’ s attorney s stated that the defe nse was not r aising any claim of insanity or incompete nce. There is no evidence sug g esting that appellant might have be en incompete nt to stand trial. Havingconsidere d the re cord in lig ht of the fa ctors identified in W ilson and Jack

son , we

c on c lud e that a

pp e lla nt’ s c la ime d in a

bil ity to r e me mbe r t

he sh oo tin g fo r w hic h he wa s o n tr ia l di d not result in a trial that wa s fundamenta lly unfair. Point of er

ror f ive is overr

uled. The judg ment of convic tion is affirmed.

__________________________________________ David Pury ear , J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Mar ch 27, 2008 Pub lis h