i

CAUSE NO. PD-0138-17

CAUSE NO. PD-0139-17

______________

THE COURT OF CRIMINAL APPEALS OF TEXAS

______________

MICHELE MARIE WILLIAMS, Petitioner

VS.

THE STATE OF TEXAS, Respondent

______________

On Appeal from the Court of Appeals for the Second District of Texas at Fort 

Worth

(Court of Appeals Cause Number 02-14-00413-CR) 

On Appeal from the 396th District Court of Tarrant County, Texas

(Trial Court Cause No. 1266846D) 

On Appeal from the Court of Appeals for the Second District of Texas at Fort 

Worth

(Court of Appeals Cause Number 02-14-00414-CR) 

On Appeal from the 396th District Court of Tarrant County, Texas

(Trial Court Cause No. 1266847D) 

______________

PETITION FOR DISCRETIONARY REVIEW

______________

Mike Berger

Attorney at Law

State Bar No. 02191900

Office (817) 338-1500

Fax (817) 338-1505

Attorney for Petitioner

PD-0138&0139-17

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/27/2017 2:35:13 PM

Accepted 3/28/2017 3:08:01 PM

ABEL ACOSTA

CLERK
ii

Identity of Parties and Counsel

Parties to the Appeal:

The State of Texas

Michele Marie Williams Jr.

Names and Addresses of Trial Counsel:

The Hon. Cody Cofer

Attorney at Law

111 N. Houston, No. 222 

Fort Worth, Texas 76102 

The Hon. A. Clay Graham 

Attorney at Law 

5719 Airport Freeway 

Fort Worth, Texas 

The Hon. Jack Strickland

The Hon. Sheila Wynn

Assistant Criminal D.A.’s

401 W. Belknap

Fort Worth, Texas 76119

Names and Addresses of Appellate Counsel:

The Hon. Mike Berger

Attorney at Law

933 W. Weatherford St. #200

Fort Worth, Texas 76102

The Hon. Debra Windsor

Assistant Criminal D.A.

401 W. Belknap

Fort Worth, Texas 76119
iii

The Hon. Stacey M. Soule’

State Prosecuting Attorney

P.O. Box 12405

Austin, Texas 78711

Table of Contents

Identity of Parties and Counsel...................................................... ii, iii

Appendix ................................................................................ iii

Table of Contents...................................................................... iii

Index of Authorities.................................................................. iv

Rules, Codes, Constitutions and Statutes ......................................... v

Statement Regarding Oral Argument................................................ vi

Statement of the Case.................................................................. vii

Statement of Procedural History...................................................... viii

References to the Record............................................................... 1, 2

Grounds for Review...................................................................... 2

Reasons for Review..................................................................... 2

First Ground of Review (Restated) .................................................... 3

Prayer for Relief ........................................................................ 11

Certificate of Service ................................................................... 12

Certificate of Compliance .............................................................. 13
iv

Appendix

Court of Appeals’ December 22nd, 2016 Opinion

Court of Appeals’ January 26th, 2017 Order Denying Appellant’s Motion for En 

Banc Consideration and Motion for Rehearing

Index of Authorities

RULES, CODES, CONSTITUTIONS AND STATUTES

Cases

Dowthitt v. State, 

931 S.W.2d 244(Tex.Crim. App. 1996)........................................... 4, 5 , 8

Ervin v. State,

333 S.W.3d 187 (Tex. App. - Houston [1st Dist.] 2010)....................... 9

Estrada v. State, 

313 S.W.3d 274 (Tex. Crim. App. 2010), cert. denied, 

562 U.S. 1142 (2011)................................................................ 4

Gardner v. State,

306 S.W.3d 274 (Tex.Crim.App.2009)............................................ 9

Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)........................... 7, 10 

Montejo v. Louisiana, 

556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009)........................ 7

Pecina v. State, 

361 S.W.3d 68 (Tex.Crim.App. - 2012)........................................... 7

Stansbury v. California, 

511 U.S. 318, 114 S. Ct. 1526 (1994)............................................. 4
v

State v. Howard,

378 S.W.3d 535 (Tex. App. - Fort Worth 2012, pet. ref’d)..................... 6

Wilson v. State, 

442 S.W.3d 779 (Tex. App. - Fort Worth 2014, pet. ref’d), cert. denied,

136 S. Ct. 86 (2015).................................................................. 4, 10

Rules

TEX.R.APP.P 66.3(b)................................................................ 2 

TEX.R.APP.P 66.3(c)................................................................ 2

TEX.R.APP.P. 66.3(e)................................................................ 2

Statutes

TEX.PEN.CODE. §19.02 (b)(1)..................................................... vii

TEX.PEN.CODE. §37.09............................................................ vii

U.S. CONST. amend. V............................................................. 7
vi

Statement Regarding Oral Argument

Oral argument is waived.
vii

Statement of the Case

The Appellant was indicted on June 26th, 2012 in Cause Number 1266846D 

alleging a charge of murder pursuant to TEX.PEN.CODE. §19.02 (b)(1), (CR 1 at 

8-9), and in Cause Number 1266847, alleging a charge of Tampering with Physical 

Evidence pursuant to TEX.PEN.CODE. §37.09. (CR 1 at 6-7). On September 

22nd, 2014 the case was called to a jury trial. (CR 1 at 9). The jury returned a 

verdict of guilty in Cause Number 1266846D and Count Two of Cause Number 

1266847D on September 29th, 2014, and sentenced the Appellant to 60 and 10 

years’ incarceration respectively in the Institutional Division of the Texas 

Department of Corrections. (CR 1 at 276-277, CR 1 at 85-86). Notice of Appeal 

was filed on September 30th, 2014, and a motion for a new trial was filed on 

October 15th, 2014. (CR 1 at 282, 302, CR 1 at 91, 107). 
viii

Statement of Procedural History

(1) On December 22nd, 2016, the Second Court of Appeals affirmed

Petitioner’s convictions.

(2) Petitioner filed a Motion for En Banc Reconsideration and a Motion for 

Rehearing on January 6th, 2017. The Second Court of Appeals denied both the 

Petitioner’s Motion for En Banc Reconsideration and a Motion for Rehearing on 

January 26th, 2017.
1

CAUSE NO. PD-0138-17

CAUSE NO. PD-0139-17

______________

THE COURT OF CRIMINAL APPEALS OF TEXAS

______________

MICHELE MARIE WILLIAMS, Petitioner

VS.

THE STATE OF TEXAS, Respondent

______________

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

Petitioner, Michele Marie Williams, respectfully submits this petition for 

discretionary review in the above styled and numbered causes.

References to the Record

References to the Clerk’s Record in 02-14-00413-CR and 02-14-00414-CR 

are designated as “(CR 413/page number or CR 414/page number).” This is the 

appeal of both convictions. This appeal addresses the issue concerning the Keller 

Police Department’s detention and interrogation of the Appellant at the police 

station minutes after the murder of her husband, and the continued questioning 

after she had requested the assistance of a lawyer. References to the Reporter’s 

Record are designated as “(RR volume number (1-12)/page number).” Because 

the two appeals are related, the court can use the records from both. Guzman v. 
2

State, 732 S.W.2d 683, 686 n.2 (Tex. App. - Corpus Christi 1987, no pet.) (per 

curiam).

GROUNDS FOR REVIEW

First Ground of Review

The Court of Appeals erred in concluding that that the trial court did not abuse its 

discretion in finding that the Petitioner was never taken into custody, and that

the Keller Police Department were not obligated to accede to the Petitioner’s

request for counsel during her interrogation.

REASONS FOR REVIEW

Regarding law enforcement’s refusal to permit the Petitioner to speak to an 

attorney during her interrogation, the Petitioner argues that an important question 

of state law should be conclusively settled by this Court. TEX.R.APP.P 66.3(b). 

Petitioner believes that the lower court’s interpretation of the applicability of a 

federal case is in conflict with the Court of Criminal Appeals. TEX.R.APP.P 

66.3(c). Finally, the petitioner contends the court of appeals has so far departed 

from the accepted and usual course of judicial proceedings, or so far sanctioned 

such a departure by a lower court, as to call for an exercise of the Court of 

Criminal Appeals’ power of supervision. TEX.R.APP.P. 66.3(f).
3

First Ground of Review (Restated)

The Court of Appeals erred in concluding that that the trial court did not abuse its 

discretion in finding that the Petitioner was never taken into custody, and that

the Keller Police Department were not obligated to accede to the Petitioner’s

request for counsel during her interrogation.

The Petitioner is requesting that this court review the lower court’s finding 

that she was never taken into custody nor did she have the right to request the 

advice of counsel. The Petitioner’s argument is that for all intents and purposes, 

she was in fact in custody or transitioned into custody from the moment she was 

“asked” to accompany police officers to the Keller Police Station. The second part 

of this argument suggests that the lower court reached the disturbing conclusion 

that suspects are not permitted to request the services of an attorney if they are not 

“objectively” in custody. 

Petitioner disputes the lower court’s finding that she had “she had 

voluntarily agreed to accompany Sergeant McGrew and Officer Todd to the police 

station” (Mem.Opin. p.20). This conclusion is reached however on the faulty 

premise that an “agreement” to accompany law enforcement to the police station 

can be described as “voluntary” when there is no reasonable alternative, especially 

when that agreement to accompany police is under a cloud of suspicion that has 

not yet been communicated to the suspect. 
4

The background to this agreement needs to be reiterated. As was emphasized 

in the Petitioner’s brief, police officers had taken her cell phone, her car keys and 

her purse, and she could not return to her home as it was a crime scene. Her 

agreement therefore to accompany the police officers looks less like a choice and 

more akin to a submission to the authority of law enforcement. But even assuming 

that her agreement to accompany police to the station house was not initially 

coercive on its face, there is still the troubling circumstance that once she arrived at 

the station she was not told she could leave and she was not permitted to call an 

attorney.

The lower court first conducted an analysis which correctly tracked the case 

law but arguably failed to consider the context of the Petitioner’s trip to the station 

house or what occurred there once she arrived:

“Custodial interrogation occurs when law enforcement officers question a 

person after taking him into custody or depriving him of his freedom of action in 

any significant way. Wilson v. State, 442 S.W.3d 779, 784 (Tex. App. - Fort

Worth 2014, pet. ref’d), cert. denied, 136 S. Ct. 86 (2015). A court must examine

all of the circumstances surrounding the interrogation when determining whether 

someone is in custody; however, the ultimate inquiry is simply whether there was a 

formal arrest or restraint on the freedom of movement of the degree associated 

with a formal arrest. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526,

1529 (1994); Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App. 2010), cert.

denied, 562 U.S. 1142 (2011); Dowthitt v. State, 931 S.W.2d 244, 254-55 

(Tex.Crim. App. 1996). 

Four scenarios wherein a person might be deemed in custody are: 

(1) when the person is physically deprived of his freedom of action in any 

significant way, (2) when a law enforcement officer tells the person he cannot 

leave, (3) when law enforcement officers create a situation that would lead a 
5

reasonable person to believe his freedom of movement has been significantly 

restricted, and (4) when there is probable cause to arrest and law enforcement 

officers do not tell the person he is free to leave. Dowthitt, 931 S.W.2d at 255.”

(Mem.Opin. p.18-19). 

The Petitioner’s claim argues that all of the four conditions that suggest that 

a person might be deemed in custody were to one degree or another met in this 

case. Petitioner’s position here is that scenario one and three are overwhelmingly 

in favor of the proposition that she was in custody. Although the case law is clear 

that the reasonable person/objective standard determines whether or not custody 

has attached, the lower court’s general analysis focused solely on the Petitioner’s 

status in terms of a literal deprivation of freedom – ie. the suspect is “patted down, 

handcuffed or otherwise restrained”. Petitioner would argue that lower court’s 

interpretation of the term custody is overly narrow in the sense that a suspect, if not 

beaten, handcuffed and bound to a chair, could never in a true sense be constrained 

of her freedom. The language in Dowthitt qualifies the deprivation of freedom with 

the phrase “in any significant way”, or as a “restraint on the freedom of movement 

of the degree associated with a formal arrest”. This phrase is important because the 

circumstances leading up to the Petitioner’s transportation to the station house 

were not truly voluntary. More pertinent is the illusion that suspects are expected 

to hew to a “reasonable” perception of what constitutes custody as opposed to the 

“subjective” and therefore invalid perception of their own circumstance. 
6

One of the first things that happened in this investigation was that the 

Petitioner’s cell phone was confiscated by a uniformed officer. McGrew told the 

Petitioner that it had been taken from her because there was blood on it, but no 

evidence emerged at trial to actually bolster that claim. The salient factor was that 

her phone was confiscated en route to the station house and her ability to instantly 

communicate with the outside world (and an attorney) was terminated. Without 

dwelling on the specifics, the pivotal assertion of the Petitioner argument is 

reflected on the videotaped interrogation when the Petitioner is granted a bathroom 

break. This is crucial to the Petitioner’s argument because the lower court asserted 

that she was free to leave the station at any time.

“Although she was free to walk out of the police station and the officers 

would have had to allow her to leave unimpeded, the police officers were not 

obligated to accede to any request for a lawyer at the time she suggested she might 

need a lawyer. At that point, because the record reflects she was free to leave, 

even if she had unambiguously requested counsel, Sergeant McGrew could have 

ignored her request and proceeded. See State v. Howard, 378 S.W.3d 535, 540-41 

(Tex. App. - Fort Worth 2012, pet. ref’d). (Mem.Op. p.27).

The court’s logic is quite disturbing. The lower court states that she was free 

to walk out of the station unimpeded1 and that Sergeant McGrew could have 

ignored her request for an attorney and proceeded with the interview – something 

__________________________________________________________________

1 “After Sergeant McGrew leaves the room, Appellant appears to mumble sobbingly, “I just want 

to leave.” Officer Todd and Appellant then have a muted conversation about numbers they can 

call to have someone pick Appellant up. Appellant laments that she does not know where she 

can go, and Officer Todd tells Appellant that she cannot go home right now.” (Mem.Op. p.22). 

The court then explains the context of that interaction.
7

which the court fails to appreciate that he did anyway. Moreover, the court’s 

language states that her request for counsel was not unambiguous, implying that it 

was not clear enough anyway to have stopped the interview. In this sense, the 

lower court’s opinion suggests that even if it was unambiguous, McGrew could

have “ignored her request” because she was free to leave. 

“Thus, in Montejo, the Supreme Court stated that, under its Fifth 

Amendment jurisprudence, “a defendant who does not want to speak to the police 

without counsel present need only say as much when he is first approached and 

given the Miranda warnings.” And if he does invoke his Fifth Amendment right to 

counsel, “not only must the immediate contact [by police] end, but ‘ badgering’ by 

later requests is prohibited.” Pecina v. State, 361 S.W.3d 68, 76 (Tex.Crim.App. -

2012).

But what if McGrew deliberately withheld the Miranda warnings? If the 

interrogating officer consciously decides not to read the Miranda warnings under 

the correct assumption that it could halt the proceedings, the suspect’s right to 

counsel is summarily denied because the officer has delayed the warning and as the 

lower court has decided, “she is free to walk out of the building”. The problem is 

that the Petitioner did not know that she had that right, McGrew knew that she did 

not know her rights (he hadn’t told her after all), and the lower court concluded 

that she was never at any time, in any sense, in custody. Simply put however, the 

lower court’s assertion that she was free to leave is not only wrong, it is belied by 

the video recording in which Officer Todd accompanies her to the bathroom. If she 

was not free to take a bathroom break (or to change into a different set of clothes) 
8

without an officer with her at all times, why would the Petitioner have felt free to 

leave the station? The Dowthitt case specifically and pointedly references this 

scenario: 

“Moreover, law enforcement agents apparently ignored two requests by 

appellant to see his wife. While these actions may have merely been oversights, as 

Hidalgo and appellant became caught up in conversation (and later in addressing a 

potential medical emergency), they also constitute circumstances to be considered. 

The fact that appellant was accompanied during restroom breaks, although given 

an innocuous explanation, is also to be considered. (emphasis added), Dowthitt v. 

State, 931 S.W.2d 244, 256 (1996).

The Petitioner couldn’t take a bathroom break or change clothes without an 

officer present much less have the right to call an attorney, but she was supposed to 

know that she could walk out of the station house?

Scenario four also supports the Petitioner’s claims that there was probable 

cause to arrest her and Sergeant McGrew did not tell her she could leave. The 

lower court actually describes and places an ongoing timeline on the probable 

cause that had emerged at the outset of the interrogation:

“For approximately the next hour and fifty minutes, Sergeant McGrew 

communicates to Appellant that the information that he is getting from the officers

at the scene does not support what she had told him and that, based upon his 

experience, one of two things happened. Sergeant McGrew tells Appellant that 

either Gregory committed suicide and she tried to cover it up or that she killed 

Gregory.” (Mem.Opin. p.18-19).

Sergeant McGrew knew from the first glance at the crime scene that the 

weapon had been moved and that crime scene had been disturbed. McGrew also 

had the Petitioner tested for gunshot residue on her hands upon her arrival at the 
9

stationhouse, and had her change into different clothing taken from her residence 

by another officer. McGrew therefore himself established the indicia for probable 

cause for an arrest for tampering with the evidence and did not tell the Petitioner 

that she was free to leave the station. 

“He denied telling her she was not free to leave, but he also denied expressly 

telling her she was free to leave.” (Mem.Opin. p.21).

In plain English this means that he didn’t say she could go, and he didn’t say 

she could leave. In other words, would a reasonable person in the Petitioner’s 

situation taken that as a cue to stay or march out? This kind of ambiguity should 

not favor the State. If she had a right to leave, then McGrew had an obligation to 

tell her. But this is the detective who shouted over her request for a lawyer and 

kept the interrogation going long after she had invoked the right to counsel. 

McGrew needed her to keep talking and for her to understand that he was in total 

control of the situation.

“The fourth category applies only when the officer’s knowledge of probable 

cause is communicated to the suspect or by the suspect to the officer; even then 

custody is established only “if the manifestation of probable cause, combined with 

other circumstances, would lead a reasonable person to believe that he is under 

restraint to the degree associated with an arrest.” Gardner, 306 S.W.3d at 295 n. 

48. Ervin v. State, 333 S.W.3d 187, 205 (Tex. App. - Houston [1st Dist.] 2010).

Petitioner’s argument is overall based on the cumulative actions of the 

Keller Police Department, specifically the testimony that the McGrew knew from 

minute of the investigation that the placement of the weapon ruled out a suicide if 
10

the crime scene had been untouched, and made tampering with the evidence 

absolutely conclusive if a suicide had in fact taken place. McGrew actions in 

taking the Petitioner to the stationhouse in conjunction with his line of questioning

are clear proof that he had the necessary probable cause for an arrest for tampering 

with evidence and that he deliberately withheld that fact so that he could adhere to 

the legal fiction that she was still a “witness” or a “victim”. As is mentioned in the 

Seibert case, McGrew’s tactics were text book examples of avoiding giving the 

Petitioner her Miranda rights until after a confession had been obtained, a charade 

that Justice Meier called a “rhetorical circumvention of Miranda and its progeny.” 

Wilson v. State, 442 S.W.3d 779, 788 (Tex.App. - Fort Worth 2014).
11

Prayer

Wherefore, premises considered, Petitioner prays that the Court grant his 

petition for discretionary review, order additional briefing, reverse the court of 

appeals’ judgment and: (1) remand the cause for a new trial in both cause 

numbers; (2) suppress the videotape interrogation in its entirety or after the point in 

which requests an attorney; and/or (4) remand the cause to the court of appeals for 

further proceedings consistent with this Court’s opinion. Petitioner further prays 

for all other relief to which she may be entitled.

Respectfully submitted,

/s/ Mike Berger

michaelidf@aol.com

933 Weatherford #200

Fort Worth, Texas 76102

817/338-1500

817/338-1505 (fax)

SBOT # 02191900
12

Certificate of Service

I certify a true and correct copy of this Petition was sent on March 27th, 

2017, by first class U. S. Mail, postage prepaid, to: 

Stacey M. Soule’

State Prosecuting Attorney

P.O. Box 12405

Austin, Texas 78711.

Debra Windsor, ADA

Appellate Section

District Attorney’s Office

401 West Belknap

Fort Worth, Texas 76196

I certify the original and ten true and correct copies of this Petition were sent 

on March 27th, 2017, by first class Mail, postage prepaid, to: 

Court of Criminal Appeals of Texas

Capital Station

201 W. 14th St. - P.O. Box 12308

Austin, TX 78711

/s/ Mike Berger

michaelidf@aol.com

933 Weatherford #200

Fort Worth, Texas 76102

817/338-1500

817/338-1505 (fax)

SBOT # 02191900
13

Certificate of Compliance

I hereby certify that the above-referenced Petition for Discretionary Review 

is in compliance with TEX.R.APP.P. 9 (i)(2)(d) in that it is 2,669 words long (as 

per Microsoft Word®).
COURT OF APPEALS

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-14-00413-CR 

Michele Marie Williams 

v. 

The State of Texas 

§ 

§ 

§ 

§ 

§ 

From the 396th District Court 

of Tarrant County (1266846D) 

December 22, 2016 

Opinion by Justice Gardner 

(p) 

JUDGMENT 

This court has considered the record on appeal in this case and holds that 

there was no error in the trial court’s judgment. It is ordered that the judgment of 

the trial court is affirmed. 

SECOND DISTRICT COURT OF APPEALS 

By _/s/ Anne Gardner__________________ 

 Justice Anne Gardner 
COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH

NO. 02-14-00413-CR 

NO. 02-14-00414-CR 

MICHELE MARIE WILLIAMS APPELLANT

V. 

THE STATE OF TEXAS STATE

---------- 

FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY 

TRIAL COURT NO. 1266846D, 1266847D 

---------- 

OPINION 

---------- 

A jury found Appellant Michele Marie Williams guilty of murder and 

assessed her punishment at sixty years’ incarceration in the penitentiary.1 Tex. 

Penal Code Ann. § 19.02(b)(1) (West 2011). In a companion case, the jury 

found Appellant guilty of tampering with physical evidence and assessed her 

 1Trial court cause number 1266846D (02-14-00413-CR). 
2 

punishment at ten years’ incarceration in the penitentiary.2 Id. § 37.09 (West 

Supp. 2016). The trial court sentenced Appellant accordingly and ordered the 

sentences to run concurrently. In three points, Appellant contends that (1) the 

trial court erred in admitting her oral and written statements into evidence, (2) the 

guilty verdict for murder was not supported by the evidence, and (3) the trial court 

violated her right to confrontation by allowing a medical examiner to testify 

regarding an autopsy that the medical examiner did not personally perform. We 

affirm. 

STATEMENT OF FACTS

Gregory Williams Looks Forward to His Dream House 

In the fall of 2011, Gregory Williams lived on Jacob Lane in Keller, Texas, 

with Appellant (his wife) and their four-year-old daughter, M.W. Their house was 

inside a gated community. 

In late September 2011, Gregory’s mother described him as tired from 

working long hours but otherwise “peppy” and “energetic.” She further described 

Gregory as “very happy,” “bubbly,” and “excited” about the new house they were 

buying. Gregory was trying to design a built-in aquarium and a swimming pool 

just for their daughter. Gregory’s mother described the new house as “kind of his 

dream house.” 

 2Trial court cause number 1266847D (02-14-00414-CR). 
3 

Gregory Is Shot and Killed; Appellant Calls 9-1-1 Regarding an Intruder 

On October 13, 2011, around 4:40 a.m., the Keller police received a 9-1-1 

dispatch to go to the Williamses’ home regarding an intruder who had shot a 

woman’s husband and who was still in the home. The police had an Opticom 

device that enabled them to get past the gates. 

When the police arrived, they saw Appellant on the front porch distraught, 

crying, and talking on her cellular telephone. She had a large contusion or 

swelling on her face that was starting to bruise. Appellant informed the officers 

that her husband was in the bedroom and their daughter was on the couch in the 

living room. She told the police that the intruder had run out the back door. 

Appellant described the intruder as a male in dark clothing. 

Concerned that a threat could still be inside, three officers entered the 

house to make sure no one was still there. They found Gregory in the master 

bedroom. He was lying on the bed under the covers with blood on his head; 

blood was also on the floor. The bedroom television was blaring so loudly that 

one of the officers commented that he did not even attempt to talk over it; the 

officer found that very odd. The police observed a gun, shell casings, and a 

large wrench in close proximity to one another by the back door of the master 

bedroom that led to the backyard. Appellant told the police that the intruder ran 

out that door. 

Still concerned about a possible threat, the police searched the backyard, 

which was enclosed by a fence. The police found no evidence of an intruder in 
4 

the backyard. The door leading from the family room to the backyard was slightly 

ajar. In the backyard, the police noted that there were no broken windows or 

doors. The locks on the gates were not disturbed. The area outside the fenced 

area showed no signs of forced entry or attempted forced entry. 

After searching the house, the police concluded there was no intruder still 

there. The police found M.W. asleep on a couch in the living room. 

Appellant and M.W. went to an ambulance parked down the street. 

Appellant received an icepack for the contusion on her face. 

The Police Process the Scene 

One of the officers began processing the crime scene on the assumption 

that an intruder had entered the residence. He first inspected the outside of the 

residence and did not notice any damage or anything of an evidentiary nature. 

Within the area enclosed by the fencing, however, he discovered a flathead 

screwdriver on the ground a few feet from the master bedroom door leading to 

the backyard and scratch marks on the outside of that door, indicating the use of 

a tool to attempt entry into the house. He also collected a plastic bottle of Clorox 

wipes that he believed had been used to alter the crime scene. The officer 

explained that disinfecting wipes would destroy any DNA evidence and 

fingerprints. The Clorox wipes could have been used to wipe down the firearm 

recovered at the scene and to remove any traces of DNA and fingerprints. He 

also testified that the flathead screwdriver blade matched the marks found on 

one of the doors leading to the backyard of the house. However, the damage to 
5 

the doorframe was superficial; both the deadbolt and the doorknob were still 

functional. If someone had tried to pry open the door using the screwdriver, it did 

not work. It was also possible someone simply tried to alter the crime scene. 

The canine officers from both Bedford and Keller responded. The canine 

searches produced no evidence of any intruder. 

The police also went door to door in the neighborhood to determine if any 

of the Williamses’ neighbors had seen anything suspicious. Their efforts turned 

up no information or evidence of any intruder. 

The Police Interview Appellant; She Asserts Gregory Committed Suicide and She 

Tampered with the Scene to Show He Was Killed During a Burglary 

Sergeant John McGrew asked Appellant if she would accompany him to 

the Keller police station for an interview so that the police could get a better 

understanding of what had occurred and more information about the intruder. 

Sergeant McGrew testified that Appellant was cooperative and willing to continue 

the interview. He described her as in pain and as having an ice pack on her 

face, but he denied that she appeared woozy. Sergeant McGrew did not 

consider her to be a suspect. If he had, he said he would have searched her and 

placed her in handcuffs. 

Sergeant McGrew drove Appellant and Officer Bethany Todd to the police 

station, where they went to an interview room. Pursuant to normal procedure, 

Appellant changed her clothes so that the police could test them to see if the 
6 

intruder had transferred any evidence to them. Sergeant McGrew also swabbed 

Appellant’s hands to check for gunshot residue or blowback. 

Sergeant McGrew and Officer Todd explained the interview process to 

Appellant. Including bathroom and refreshment breaks, the interview lasted 

about five hours. The officers did not threaten Appellant during the interview and 

never indicated that she was not free to leave; Sergeant McGrew testified that if 

Appellant had asked to leave, she would have been permitted to leave. 

Appellant did not, however, ever request to leave the interview. 

During her interview, Appellant admitted tampering with the crime scene. 

Sergeant McGrew asked Appellant to write out a statement in her own words and 

advised her of her Miranda3 rights. The form on which Appellant wrote her 

statement contains a recitation of the Miranda rights, and she signed the form. 

Sergeant McGrew left the interview room while she wrote her statement. 

Appellant’s statement reads as follows: 

I went to sleep at 1:00 a.m.[,] and Gregg was still awake. He just 

took at least 3 Tylenol PM. About 3:00 a.m.[,] [M.W.] came to our 

room. I got up and [lay] down on the couch with her. Gregg was still 

awake. I asked him if he needed anything[,] and he said[,] “[J]ust to 

be left alone. I don't feel good.” I fell asleep on the couch with 

[M.W.] and was [awakened] by a [gunshot] sound after 4 a.m. I ran 

to the bedroom and saw Gregg had shot himself in the head. I 

panicked and wanted to protect [M.W.] from ever knowing her daddy 

killed himself and started to clean things up. First[,] I wiped his right 

hand with Clorox wipes and dried it with a blanket and toilet paper, 

then wiped the gun with the blanket and toilet paper and moved the 

gun to the floor by the back door, opened the back door[,] and called 

 3See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). 
7 

911—hoping to save his life and make it appear as a burglary. Then 

I went to the laundry room, got a screwdriver[,] and pried a little on 

the back door by my office and left it ajar. Then I grabbed the 

wrench[,] which was in the laundry room[,] and hit my right cheek to 

bruise it so it would appear as if I startled the [burglar]. I dropped it 

by the door in the bedroom and tossed the screwdriver out the door 

by the woodpile. I flushed all the toilet paper and Clorox wipes down 

the toilet. This entire time [M.W.] was still asleep. I didn't want his 

children to ever know he killed himself. 

Sergeant McGrew testified that Appellant’s suicide story negated her intruder 

story and that her statement acknowledged that she tampered with the crime 

scene. After finishing her statement and interview, Appellant left the police 

station with a friend. 

Gregory Had a Negative Attitude Toward Suicide 

Gregory’s mother testified that Gregory’s best friend, Brynn Fletcher, 

committed suicide in 2010. Fletcher was also the husband of Gregory’s sister 

and the father of their three children. Gregory’s mother said that Gregory was 

very angry about Fletcher’s suicide and called it a “chicken . . . way to go.” 

Gregory told his mother that Fletcher’s suicide had ruined his family. 

Appellant Never Arranges a Funeral for Gregory and Does Not Attend the 

Funeral Gregory’s Family Arranged 

Gregory’s mother said she kept thinking that Appellant would call her to tell 

her what had happened to her son, but Appellant never contacted her. Gregory’s 

mother said that she and her family waited to see what arrangements Appellant 

would make for his funeral services, but when they heard nothing from Appellant, 
8 

they went ahead and arranged funeral services on their own. Appellant did not 

attend the funeral. 

Appellant Has Conversations with Her Son, Andrew, Regarding His Brother and 

Gregory’s Ex-Wife that Cause Him Concern 

On October 14, 2011—the day after Gregory’s death—Appellant told her 

son, Andrew, that someone had broken into the house, hit her, and shot Gregory. 

She claimed that the police would not let her leave the police station until she 

admitted shooting Gregory or admitted Gregory’s death was a suicide. She told 

Andrew that she made up the suicide story just so the police would release her. 

Andrew testified that he continued to believe her intruder story for several months 

and still believed it in June 2012 when he was called as a witness before the 

grand jury. 

Andrew described Appellant’s emotions during the two weeks following 

Gregory’s death as “a big rollercoaster.” He said, “Some days she would be 

crying hard. Other days she would be laughing.” 

Andrew said that several weeks after Gregory’s death, he, his brother, and 

his sister’s boyfriend went to the house to clean up the blood that was still in the 

carpet while Appellant packed up things in the kitchen. While there, Appellant 

pulled him outside and told him that Kathy Williams (Gregory’s former wife) had 

been talking to the media, so Appellant asked him to “call some friends and have 

them frame Kathy.” He described Appellant’s demeanor when making the 

request as “[v]ery calm.” Specifically, she wanted some of his friends to pick up 
9 

an extra-large sweater, wear the sweater, fire a pistol into the sweater close 

enough to ensure gunpowder residue got on the sweater, break into Kathy’s car 

in a manner that did not reveal it had been broken into, hide the sweater under 

the seat, and call 9-1-1 and leave an anonymous tip that would lead the police to 

search her car and find the sweater. Appellant insisted that she did not want 

Andrew to do it himself because she did not want him to get caught. Andrew 

said he was shocked at her request, but he attributed it to her having a mental 

breakdown. He told her he would take care of it, but he never called anyone. A 

week or two later, Appellant approached him and told him that since he had not 

taken care of the matter, she would figure it out on her own. She told him that 

she had gone to Wal-Mart and purchased two sweaters, an extra-large one and 

one her size. She explained that by buying one her size, she was able to pick up 

the extra-large one without leaving her DNA on it. 

Later Andrew became concerned that Appellant was trying to put the 

blame of Gregory’s death on his brother, Lee, so in January 2013, he called an 

investigator in the Tarrant County District Attorney’s office to tell him about how 

Appellant had asked him to frame someone else. Andrew explained that in early 

2012 Appellant and Lee had had an argument, and the next day Appellant asked 

him if he thought it was possible that Lee had killed Gregory. Andrew said that 

she was not joking and was serious, but he just attributed it to another mental 

breakdown, ignored it, and moved on. 
10 

When the detectives met with him, he told them about the various 

explanations Appellant had given regarding Gregory’s death—an intruder did it, 

Kathy did it, or Lee possibly did it. Andrew told the detectives too how Appellant 

had also mentioned that Gregory had shown signs of contemplating suicide and 

had told him about how, a few days before Gregory’s death, she had found the 

cars warm in the garage as if someone had left them running with the garage 

door closed. Appellant also told Andrew of a fight she and Gregory had on the 

night of his death and accused Gregory of throwing a tool at her face and 

causing a bruise. 

Appellant Appears on 48 Hours

Appellant appeared on the television program 48 Hours. Six short clips 

from her interview on 48 Hours were played to the jury. In the first one, she told 

48 Hours that the intruder ran out the front door. In the second, she asserted 

that it was possible that a relative shot Gregory. In the third, she maintained that 

Gregory wanted a dominant woman, that Gregory wanted to be submissive at 

home because he was so dominant outside the home, and that whoever killed 

him was jealous and angry but not necessarily from the world in which Gregory 

was dominant. In the fourth, when confronted with the lack of any evidence of an 

intruder, she contended that the investigators were awful and missed a lot of 

evidence. In the fifth, with her voice cracking, she lamented how the real shooter 

was letting her take the blame. In the sixth, she explained how she thought the 
11 

intruder came into the house with his own gun but—for reasons she could not 

explain—used Gregory’s gun that he kept under the nightstand next to the bed. 

Gregory’s Life Was Insured for $800,000 

Gregory carried three separate life insurance policies. One was a 

$150,000 policy with the Gerber Life Insurance Company, acquired in August 

2011, with M.W. named as the beneficiary. This policy had a suicide clause that 

negated the payment of any benefits if the insured committed suicide within two 

years of obtaining the policy. On the “Claimant’s Statement,” Appellant identified 

Gregory’s cause of death as “Stated as Homicide.” 

The second was a $150,000 policy with the Garden Life Insurance 

Company acquired in May 2008 with Appellant designated as the beneficiary. It 

also had a two-year suicide clause. 

The third was a $500,000 policy with Pavonia (formerly Household Life 

Insurance) acquired in January 2009 with Appellant designated as the 

beneficiary. Like the others, it had a two-year suicide clause. 

Medical Examiners Conclude Murder, Not Suicide 

Dr. Lloyd White conducted the autopsy on Gregory. As per Tarrant County 

Medical Examiner’s Office protocol, Chief Medical Examiner Nizam Peerwani 

and the other deputy medical examiners peer-reviewed his autopsy. The 

examiners all concurred that the cause of Gregory’s death was a gunshot wound 

to the head and that the manner of his death was a homicide. 
12 

Dr. White was no longer employed by the Tarrant County Medical 

Examiner’s Office at the time of trial. His autopsy report was not introduced or 

admitted into evidence. 

The DNA Analyst 

Constance Patton, a DNA analyst, examined the handgun for the presence 

of blood; the hope was that the presence of blood from the blowback might 

indicate the distance of the shooting. She tested the gun barrel’s inside, the gun 

barrel’s outside, and the underneath part of the gun’s frame. All her tests came 

back negative for blood. 

Firearm Examiner Determines the Gun Was More Than Six Inches Away from 

Gregory’s Head When Fired 

Jamie Becker, a firearm and tool mark examiner, found no gunpowder 

residue on the comforter or blanket from Gregory’s bed. She found gunshot 

residue on the pillowcases but no evidence of soot or burning. Becker explained 

that pillows were often used in an attempt to silence or muffle gunfire, so she 

looked for holes, burning, singeing, ripping, or tearing, but she did not find any 

signs of close-range firing. However, Becker also checked for stippling; stippling 

occurs when gunpowder strikes the skin, imbeds itself in the skin, and causes a 

slight abrasion. The slight abrasion cannot be wiped off or transferred. Stippling 

suggests the shooting distance was from an intermediate range. On the basis of 

stippling documented during the autopsy and, thereafter, range testing conducted 

using the firearm and ammunition similar to that identified in the case, Becker 
13 

was able to identify stippling patterns. Becker concluded that the gun muzzle 

was further than six inches but closer than twenty-four inches when fired. The 

gun barrel was five inches in length. 

Trace Examiner Finds Gunshot Residue on the Cuffs and Sleeves of 

Appellant’s Jacket 

Vicki Hall, the trace examiner, did not find any characteristics of gunshot 

residue on the swabs from Appellant’s hands. Its absence meant that Appellant 

did not fire the gun, the weapon involved was not one that left significant 

amounts of residue, or Appellant wiped or washed her hands before the sample 

was taken. Hall explained that even when gunshot residue is found on 

someone’s hands, its presence does not indicate with certainty that the person 

fired a gun; rather, it could mean a number of things, such as the person fired the 

gun, the person’s hands were near the gun when it was fired, or the person 

handled a firearm or a firearm component. 

Gregory had gunshot residue on his hands. Therefore, this meant that he 

fired a firearm, his hands were close to a firearm at the time the firearm 

discharged, or he came in contact with a firearm or firearm component. 

Hall also found gunshot residue on both cuffs and sleeves of Appellant’s 

jacket. This meant that she was either wearing the jacket when she fired the 

gun, she was close to the gun when it discharged, she handled a firearm or 

firearm component, or she wiped the gun onto the jacket in some way. 
14 

No Fingerprints on the Gun or Tools 

William Walker, the fingerprints examiner, found no fingerprints on the gun 

or the wrench usable for comparison or identification purposes. He found no 

fingerprints at all on the screwdriver. 

Financial Concerns 

 Appellant was the bookkeeper for the Williamses. A forensic financial 

analyst testified that she saw indications of mismanagement—the type she saw 

frequently in economic crimes. A certified public accountant testified that the 

Williamses’ finances were grossly mismanaged and that they “tended to be living 

beyond their means.” 

FIRST POINT 

Whether the Trial Court Erred by Admitting Appellant’s Oral and Written 

Statements 

In her first point, Appellant contends that the trial court erred in admitting 

her oral and written statements into evidence in violation of (1) her constitutional 

rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United 

States Constitution, (2) her constitutional rights under section 9 of article I of the 

Texas constitution, and (3) article 38.23 of the Texas Code of Criminal 

Procedure. See U.S. Const. amends. IV, V, VI, XIV; Tex. Const. art. I, § 9; Tex. 

Code Crim. Proc. Ann. art. 38.23 (West 2005). She argues that she was a 

suspect in her husband’s death from the very outset and that the assertion of the 
15 

police that she was a witness or a victim was nothing more than a charade and 

defies logic. She maintains that she was in custody from the moment the police 

took her to the stationhouse. 

Additionally, even if Appellant was not in custody, she asserts that she 

requested an attorney at roughly 8:36 a.m., long before she admitted to 

tampering with the evidence and before she asserted that her husband had 

committed suicide. Appellant contends this rendered her oral and written 

statements after she requested counsel inadmissible. 

The trial court made the following oral findings regarding the custody issue: 

 THE COURT: Okay. The Court will find that on August [sic] 

the 13th of 2011, Sergeant McGrew and Officer Walsh/Todd 

responded to 1410 Jacob Avenue in the city of Keller, approximately 

6:30 a.m. 

 At that point, Officer Todd, having arrived first, made some of 

the initial contact with [Appellant] who was receiving medical 

attention. As Sergeant McGrew responded, he also made contact 

with [Appellant] who was receiving medical attention. 

 And [Appellant] was then driven to the Keller Police 

Department by Sergeant McGrew and Officer Todd in Sergeant 

McGrew’s car [and] was placed into an interview room. She was not 

a suspect at the time nor was [she] under arrest. 

 And that continued until—up until the point that Sergeant 

McGrew then believed that there had been a crime committed, at 

which point he read [Appellant] her Miranda warnings. However, 

she did not wish to terminate the interview and continued on. 

 At all points—at all times the suspect—[Appellant] was free to 

leave, was not under arrest, and as seen on . . . State’s Pretrial 7, 

there were specific references that she was free to leave and people 

would be coming to get her. Sergeant McGrew specifically states, 

you are going home here today. 
16 

 So the Court will find that [Appellant] was not in custody for 

the purposes of custodial interrogation as referred to as Article—

under 38.22 of the Code of Criminal Procedure, and I will deny the 

motion to suppress. 

The trial court did not make oral findings regarding whether Appellant invoked the 

right to counsel. 

Standard of Review 

 We review a trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. 

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 

In reviewing the trial court’s decision, we do not engage in our own factual 

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. 

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial 

judge is the sole trier of fact and judge of the credibility of the witnesses and the 

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. 

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), 

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 

2006). Therefore, we give almost total deference to the trial court’s rulings on 

(1) questions of historical fact, even if the trial court’s determination of those facts 

was not based on an evaluation of credibility and demeanor, and (2) applicationof-law-to-fact questions that turn on an evaluation of credibility and demeanor. 

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. 

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 
17 

2002). But when application-of-law-to-fact questions do not turn on the credibility 

and demeanor of the witnesses, we review the trial court’s rulings on those 

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53. 

 Stated another way, when reviewing the trial court’s ruling on a motion to 

suppress, we must view the evidence in the light most favorable to the trial 

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we 

determine whether the evidence, when viewed in the light most favorable to the 

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19. 

We then review the trial court’s legal ruling de novo unless its explicit fact 

findings that are supported by the record are also dispositive of the legal ruling. 

Id. at 818. 

 When the record is silent on the reasons for the trial court’s ruling, or when 

there are no explicit fact findings and neither party timely requested findings and 

conclusions from the trial court, we imply the necessary fact findings that would 

support the trial court’s ruling if the evidence, viewed in the light most favorable 

to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253 

S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then 

review the trial court’s legal ruling de novo unless the implied fact findings 

supported by the record are also dispositive of the legal ruling. Kelly, 204 

S.W.3d at 819. 
18 

 We must uphold the trial court’s ruling if it is supported by the record and 

correct under any theory of law applicable to the case even if the trial court gave 

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. 

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 

2003), cert. denied, 541 U.S. 974 (2004). 

Custody 

The United States Constitution commands that no person “shall be 

compelled in any criminal case to be a witness against himself.” U.S. Const. 

amend V. Constitutional and statutory protections are triggered when a person 

undergoes custodial interrogation. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; 

Herrera v. State, 241 S.W.3d 520, 525–26 (Tex. Crim. App. 2007); Tex. Code 

Crim. Proc. art. 38.22 (West Supp. 2016). “Custodial interrogation” is the 

“questioning initiated by law enforcement officers after a person has been taken 

into custody or otherwise deprived of his freedom of action in any significant 

way.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Herrera, 241 S.W.3d at 525. 

Article 38.22 of the code of criminal procedure also prohibits the use of 

statements that result from a custodial interrogation without compliance with its 

procedural safeguards. See Tex. Code Crim. Pro. Ann. art. 38.22. 

Custodial interrogation occurs when law enforcement officers question a 

person after taking him into custody or depriving him of his freedom of action in 

any significant way. Wilson v. State, 442 S.W.3d 779, 784 (Tex. App.—Fort 

Worth 2014, pet. ref’d), cert. denied, 136 S. Ct. 86 (2015). A court must examine 
19 

all of the circumstances surrounding the interrogation when determining whether 

someone is in custody; however, the ultimate inquiry is simply whether there was 

a formal arrest or restraint on the freedom of movement of the degree associated 

with a formal arrest. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 

1529 (1994); Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App. 2010), cert. 

denied, 562 U.S. 1142 (2011); Dowthitt v. State, 931 S.W.2d 244, 254–55 (Tex. 

Crim. App. 1996). 

Four scenarios wherein a person might be deemed in custody are: 

(1) when the person is physically deprived of his freedom of action in any 

significant way, (2) when a law enforcement officer tells the person he cannot 

leave, (3) when law enforcement officers create a situation that would lead a 

reasonable person to believe his freedom of movement has been significantly 

restricted, and (4) when there is probable cause to arrest and law enforcement 

officers do not tell the person he is free to leave. Dowthitt, 931 S.W.2d at 255. 

Regarding the first through third situations, the restriction upon freedom of 

movement must amount to the degree associated with an arrest as opposed to 

an investigative detention. Id. Regarding the fourth situation, the officers’ 

knowledge of probable cause must be manifested to the suspect. Id. Such 

manifestation could occur if the officers relate information substantiating probable 

cause to the person or, conversely, if the person relates information 

substantiating probable cause to the officers. Id. Moreover, given the emphasis 

on probable cause as a factor in other cases, situation four does not 
20 

automatically establish custody; rather, custody is established if the manifestation 

of probable cause, combined with other circumstances, would lead a reasonable 

person to believe that he is under restraint to the degree associated with an 

arrest. Id. 

A determination of whether a person is in custody must be based entirely 

on objective circumstances. Id. at 254. The subjective intent of either law 

enforcement or the defendant is irrelevant except to the extent manifested in the 

words or actions of law enforcement officials. Id. Finally, a defendant bears the 

initial burden of proving that her statement was the product of “custodial 

interrogation.” Herrera, 241 S.W.3d at 526. 

The evidence from the suppression hearing showed that Appellant 

voluntarily agreed to accompany Sergeant McGrew and Officer Todd to the 

police station. Appellant was not patted down, handcuffed, or otherwise 

restrained before she got into Sergeant McGrew’s unmarked police car. 

Appellant was not placed under arrest. Both Sergeant McGrew and Officer Todd 

saw Appellant as a witness to the offense and as another victim of this home 

invasion/shooting rather than a suspect. Sergeant McGrew explained that he 

wanted to interview her as part of his fact-finding process. 

Sergeant McGrew conducted his interview in the room used for witnesses 

and victims. Sergeant McGrew questioned Appellant about the events leading 

up to the shooting, including questions about who might possibly have had 

access to her house. Appellant took several breaks during her lengthy interview. 
21 

Sergeant McGrew said that Appellant was free to leave at any time and that if 

she had stood up and walked out, he would have let her. He denied telling her 

she was not free to leave, but he also denied expressly telling her she was free 

to leave. Sergeant McGrew made multiple attempts to arrange for someone to 

come and pick up Appellant. Appellant was not handcuffed or otherwise 

restrained during her interview. She was not told that she was in custody, under 

arrest, or not free to leave the police station. Appellant voluntarily agreed to write 

out a statement. Appellant wrote out her statement while she was alone in the 

interview room. Sergeant McGrew successfully found someone to come to the 

police station to pick up Appellant. 

The trial judge reviewed the video interview. We have reviewed the video 

as well. The video begins at 6:41 a.m. Appellant spends about the first hour 

recounting how the intruder came into house, injured her, shot Gregory, and went 

out the bedroom door to the backyard. At 7:47 a.m., Sergeant McGrew informs 

Appellant that Gregory is dead, and Appellant cries uncontrollably. Appellant, 

however, agrees to continue to help the police capture the intruder. 

For approximately the next hour and fifty minutes, Sergeant McGrew 

communicates to Appellant that the information that he is getting from the officers 

at the scene does not support what she had told him and that, based upon his 

experience, one of two things happened. Sergeant McGrew tells Appellant that 

either Gregory committed suicide and she tried to cover it up or that she killed 

Gregory. Appellant repeatedly denies either possibility, and at 9:42 a.m., she 
22 

puts her head down on the table and cries. Sergeant McGrew responds by 

stating that he will make one more phone call and then he would have someone 

come by to get her. 

After Sergeant McGrew leaves the room, Appellant appears to mumble 

sobbingly, “I just want to leave.” Officer Todd and Appellant then have a muted 

conversation about numbers they can call to have someone pick Appellant up. 

Appellant laments that she does not know where she can go, and Officer Todd 

tells Appellant that she cannot go home right now. In context, however, both 

Appellant and Officer Todd understood that Appellant could not go home 

because her home was a crime scene and because the police would not allow 

anyone to disturb it until after they had completed their investigation. When 

Appellant expresses concern that her car, keys, and wallet are all at the house, 

Officer Todd assures her that they will figure it all out and get it all taken care of. 

When Sergeant McGrew returns to the room, he informs Appellant that the 

canine search showed that there were no intruders and, further, that there was 

no way “on God’s green earth” that Gregory’s death occurred in the manner she 

described. Sergeant McGrew tells Appellant categorically that either (1) Gregory 

shot himself, and she covered it up or (2) she killed him. Appellant then, in a 

voice broken with tears, spends the next ten minutes explaining how she covered 

up Gregory’s suicide, after which Sergeant McGrew asks her if she wants him to 

call someone to come to be with her and asks her whom she wants him to call, 

and he agrees to make the calls. 
23 

When he returns, Sergeant McGrew informs Appellant that he was able to 

leave a message with her first preference. Appellant then relates in a more 

coherent fashion how Gregory committed suicide, how she panicked, and how 

she decided to make his death look like a burglary. 

Sergeant McGrew then informs Appellant that he needs her to put her 

statement in writing, reads the Miranda rights to her, and tells her that she has 

committed the offense of tampering with evidence. He tells Appellant that she is 

not being arrested and charged with it, but because it is an offense, he has to 

read her rights to her. He informs her that he is again going to try to call her 

contact. Appellant then asks Sergeant McGrew if she is going to be arrested, 

and his immediate response is, “You’re going home.” Seconds later, he adds, 

“You’re leaving today.” Appellant then apologizes to Sergeant McGrew and says 

that she was only trying to protect M.W., and Sergeant McGrew responds that he 

understands that she was only trying to protect her family. Appellant then is left 

alone to write her written statement. Around thirteen minutes later, Sergeant 

McGrew returns to the room and informs Appellant that he has called her 

contact, that her contact will be there in about thirty minutes, and that he has told 

her contact that once she is done, she will be free to go. 

The interview occurred in a room with no windows, the door shut, and at a 

table with Sergeant McGrew and Officer Todd. In light of the record of the 

assurances that Appellant was not being arrested and was being released to go 

home, being interviewed in a room with no windows, with the door shut, and in 
24 

close proximity to two police officers are not necessarily circumstances rising to 

the degree associated with a formal arrest. See Wilson, 442 S.W.3d at 784. 

Throughout the interview, Sergeant McGrew and Officer Todd treated Appellant 

as a woman who had just lost her husband. Officer Todd can be seen 

periodically holding Appellant’s hands and patting her on the back. 

Objectively, the video shows that Sergeant McGrew is initially skeptical 

about an intruder and, as the interview progresses and as he receives additional 

information from the officers at the scene, he openly expresses his disbelief in 

Appellant’s story about an intruder. Sergeant McGrew also openly expresses his 

belief that either Gregory committed suicide and “somebody” covered it up or that 

Appellant killed him. Sergeant McGrew was effectively stating that he saw 

Appellant as a suspect of a crime, but he did not know which one. However, 

neither being the focus of a criminal investigation nor being questioned at a 

police station, without more, made the interview a custodial interrogation. Id. 

Overall, Sergeant McGrew appears to suspect that Appellant covered up 

Gregory’s suicide, and once she admits that, he makes no effort to push the 

matter further. Even after she admits tampering with the scene, Sergeant 

McGrew makes it clear that she will be going home. 

Appellant complains that by taking her cell phone, the police isolated her. 

During the video, Appellant tells Sergeant McGrew that there was blood on her 

cell phone. Objectively, this might explain why the police took her cell phone. 

The absence of her cell phone became a problem only for purposes of finding 
25 

someone to come pick her up, but Sergeant McGrew was able to call her 

requested contact anyway. 

 We hold that the trial court did not abuse its discretion by finding that 

Appellant was never taken into custody and was not deprived of her freedom of 

action in any significant way. See id. Under the circumstances, the trial court 

could have reasonably concluded that an objectively reasonable person would 

not have believed that her freedom of movement was restrained to the degree 

associated with a formal arrest. See id. at 781–87 (holding that voluntary 

interview did not become custodial when detective asserted defendant would be 

charged with an offense or when defendant admitted accidental penetration of a 

child’s sexual organ; holding custody occurred when detective told the defendant 

he was under arrest); Hodson v. State, 350 S.W.3d 169, 174–75 (Tex. App.—

San Antonio 2011, pet. ref’d) (holding defendant was not in custody during sixtyminute interview when he admitted involvement in murder and noting that 

situations where the manifestation of probable cause triggers custody are 

unusual); Houston v. State, 185 S.W.3d 917, 921 (Tex. App.—Austin 2006, pet. 

ref’d) (explaining that although “there was probable cause to arrest and the 

strength of the State’s case was readily apparent to all,” detectives specifically 

told defendant that he was not under arrest and implied though their questioning 

that he could leave); Scott v. State, 165 S.W.3d 27, 42 (Tex. App.—Austin 2005) 

(“Although probable cause to arrest arose early in the questioning, the officers 
26 

never suggested by word or deed that [the defendant] was not free to leave.”), 

rev’d on other grounds, 227 S.W.3d 670 (Tex. Crim. App. 2007). 

Request for Counsel 

Appellant contends that at roughly 8:36 a.m. during the interview, she 

invoked her right to counsel by stating, “I need a lawyer, obviously.” Appellant 

asserts that this request was made well before she stated that Gregory 

committed suicide and that she tampered with the evidence. Because her oral 

and written statements admitting tampering with the evidence came later, she 

contends that the trial court should have sustained her motion to suppress. 

The factual determinations of whether Appellant reasonably believed she 

was not free to leave or whether a reasonable person would have believed she 

was free to leave at the time she now claims she requested a lawyer turn on the 

interpretation of the events captured by visual and audio recordings. The trial 

judge was in the unique position of being able to watch and listen to the actual 

actions and words of the officers and of Appellant. 

As we have previously explained, the law is well settled that we must 

uphold the trial court’s ruling if it is supported by the record and correct under any 

theory of law applicable to the case even if the trial court gave the wrong reason 

for its ruling. Stevens, 235 S.W.3d at 740; Armendariz, 123 S.W.3d at 404. 

Because the record may be understood in a manner to support the trial court’s 

rulings, we are compelled to hold that Appellant was not in custody and, 

therefore, not subjected to custodial interrogation at the time she made her oral 
27 

and written statements. Although she was free to walk out of the police station 

and the officers would have had to allow her to leave unimpeded, the police 

officers were not obligated to accede to any request for a lawyer at the time she 

suggested she might need a lawyer. At that point, because the record reflects 

she was free to leave, even if she had unambiguously requested counsel, 

Sergeant McGrew could have ignored her request and proceeded. See State v. 

Howard, 378 S.W.3d 535, 540–41 (Tex. App.—Fort Worth 2012, pet. ref’d). After 

the officers provided her Miranda warnings, she neither requested counsel nor 

suspended the interview. 

We overrule Appellant’s first point. 

SECOND POINT 

Whether the Evidence Supports the Murder Conviction 

In her second point, Appellant contends that the guilty verdict for murder 

was not supported by (a) the autopsy because the police department 

impermissibly tainted the alleged crime scene and (b) the ballistic testing 

because the testing was skewed. Appellant cites one authority in her second 

point, and she cites that authority to set out the standard of review of a 

sufficiency-of-the-evidence challenge. See Thornton v. State, 425 S.W.3d 289, 

303 (Tex. Crim. App. 2014). We construe her second issue to be a sufficiency 

challenge and will treat it accordingly. Appellant’s second issue attacks only the 

murder conviction. 
28 

In our due-process review of the sufficiency of the evidence to support a 

conviction, we view all of the evidence in the light most favorable to the verdict to 

determine whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives full play to the 

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the 

evidence, and to draw reasonable inferences from basic facts to ultimate facts. 

Id. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. 

App.), cert. denied, 136 S. Ct. 198 (2015). 

The trier of fact is the sole judge of the weight and credibility of the 

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. 

State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an 

evidentiary sufficiency review, we may not re-evaluate the weight and credibility 

of the evidence and substitute our judgment for that of the factfinder. See 

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we 

determine whether the necessary inferences are reasonable based upon the 

cumulative force of the evidence when viewed in the light most favorable to the 

verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder 

resolved any conflicting inferences in favor of the verdict and defer to that 

resolution. Id. at 448–49. The standard of review is the same for direct and 

circumstantial evidence cases; circumstantial evidence is as probative as direct 
29 

evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 

S.W.3d 621, 625 (Tex. Crim. App. 2014). 

Appellant acknowledges in her brief that defense counsel at trial did a 

thorough job of presenting to the jury the deficiencies of the evidence gathering 

and the ballistic testing. Appellant writes: 

 Without diverging into an extended discussion about the 

veracity of the autopsy itself, Appellant contends that there were 

multiple errors or scientific inadequacies in the collection of the 

evidence, the ballistic testing of the weapon in question, and in the 

autopsy conducted by Dr. White, all of which tainted the jury’s ability 

to reach a verdict. Trial counsel did a very thorough job in 

highlighting these issues, and the bottom line is that the findings of a 

homicide, as opposed to a suicide were impermissibly contaminated 

by the improper procedures in gathering the evidence and the 

flawed ballistic testing of the alleged murder weapon that followed. 

In other words, the jury was aware of the complained-of deficiencies but 

convicted Appellant anyway. It was the jury’s responsibility to resolve conflicts in 

the testimony, to weigh the evidence, and to draw reasonable inferences from 

basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; 

Murray, 457 S.W.3d at 448. The jury was within its prerogative to find the 

autopsy and ballistic testing reliable notwithstanding any deficiencies or that any 

deficiencies were immaterial given the other evidence. We will not re-evaluate 

the weight of the evidence and credibility of the witnesses and substitute our 

judgment for that of the factfinder. See Montgomery, 369 S.W.3d at 192. 

 There was testimony that Gregory was against suicide because his best 

friend had committed suicide only a year earlier, leaving Gregory’s sister a widow 
30 

and her three children fatherless. Gregory was also excited about the new house 

he and Appellant were buying. On the video, Appellant herself told Sergeant 

McGrew that they were closing on their house the next day and that Gregory was 

excited about it. Although there was evidence that Appellant and Gregory were 

living beyond their means, whether Gregory knew about their financial condition 

was not clear. The jury could have concluded that Appellant, however, as their 

bookkeeper, knew of the financial strains. 

 Regarding the wound, Dr. Peerwani testified, “I think that based on the 

photographs that it’s clearly not a contact gunshot wound. It is not a loose 

contact gunshot wound. It’s a range that we describe as intermediate range, a 

range beyond which there is no muzzle imprint left on the body surface.” Dr. 

Peerwani testified that the vast majority of suicides involve a tight or loose 

contact gunshot wound. He acknowledged that suicides could sometimes 

involve intermediate gunshot wounds. 

 The record reflects that Appellant made no efforts to arrange funeral 

services for Gregory. When Gregory’s family arranged funeral services, 

Appellant did not attend. During the interview with Sergeant McGrew only hours 

after Gregory had been shot in the head but before Sergeant McGrew had 

announced his death, when Sergeant McGrew asked her to describe Gregory, 
31 

she responded, “An asshole.” Although Appellant maintained that there were no 

issues between Gregory and her, the jury was free to believe otherwise.4 

 An insurance policy for $150,000 was taken out on Gregory’s life only one 

month before he was killed; however, it had a two-year suicide clause in it. 

Appellant admitted that she had attempted to stage the crime scene to reflect a 

burglary during which an alleged intruder had killed Gregory. She even struck 

her own face with a large wrench, leaving a large swelling.5 When her attempts 

to create a scenario of a burglary by a stranger failed, Appellant took steps to 

frame Gregory’s ex-wife for his murder. Appellant’s son, Andrew, was concerned 

that she was also considering trying to frame his brother, Lee, for Gregory’s 

murder. The evidence showed that Appellant, notwithstanding that she had 

signed a written statement acknowledging Gregory committed suicide, thereafter 

submitted a “Claimant’s Statement” on the policy and identified his cause of 

death as murder. The jury was within its prerogatives to believe Appellant killed 

Gregory to recover the $150,000 life insurance. 

 Viewing the evidence in the light most favorable to the verdict, we hold that 

a rational trier of fact could have found the essential elements of the offense of 

 4After Appellant gave her written statement and while she and Sergeant 

McGrew chatted during the wait for her ride, Sergeant McGrew told Appellant 

that she was a terrible liar. 

5In the video, she lamented to Sergeant McGrew that she ended up 

striking herself too hard. 
32 

murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 

2789. We overrule Appellant’s second point. 

THIRD POINT 

Whether the Trial Court Violated Her Right to Confrontation by Allowing a 

Medical Examiner Who Had Not Performed the Autopsy to Testify 

 In her third point, Appellant argues that the trial court violated her right to 

confrontation under the Sixth Amendment of the United States Constitution and 

section 10 of article I of the Texas constitution by allowing Dr. Peerwani to testify. 

Appellant filed a pretrial motion to exclude Dr. Peerwani, the chief medical 

examiner, or any deputy medical examiner from testifying about Gregory’s 

autopsy or his cause of death. She alleged that any such testimony violated the 

Confrontation Clause because neither Dr. Peerwani nor any other deputy 

medical examiner conducted Gregory’s autopsy. The trial court denied her 

motion. After conducting a hearing on Appellant’s motion to reconsider, the trial 

court again denied her confrontation objection. 

A trial court's decision to admit evidence is reviewed under an abuse of 

discretion standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006). 

As long as the trial court’s ruling is within the “zone of reasonable disagreement,” 

there is no abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. 

Crim. App. 2011). However, if the admission of evidence involves a 

constitutional legal ruling, such as whether a statement is testimonial or nontestimonial, the appellate court gives almost total deference to the trial court's 
33 

determination of historical facts but reviews de novo the trial court’s application of 

the law to those facts. Wall, 184 S.W.3d at 742 (applying hybrid standard of 

review to issue of whether statement was testimonial). 

The Confrontation Clause of the Sixth Amendment guarantees the 

accused the right to confront the witnesses against him. Pointer v. Texas, 

380 U.S. 400, 403, 85 S. Ct. 1065, 1068 (1965); Paredes v. State, 462 S.W.3d 

510, 514 (Tex. Crim. App.), cert. denied, 136 S. Ct. 483 (2015); Burch v. State, 

401 S.W.3d 634, 636 (Tex. Crim. App. 2013). “Testimonial” statements are 

inadmissible at trial unless the witness who made them either takes the stand to 

be cross-examined or is unavailable and the defendant had a prior opportunity to 

cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 

1354, 1365–66 (2004); Burch, 401 S.W.3d at 636. “Testimonial” statements 

include those statements that were made under circumstances which would lead 

an objective witness reasonably to believe that the statement would be available 

for use at a later trial. Crawford, 541 U.S. at 52, 124 S. Ct. at 1364; Paredes, 

462 S.W.3d at 514. 

Autopsy reports are testimonial where an objective medical examiner 

would reasonably believe that his report would be used in a later prosecution. 

Lee v. State, 418 S.W.3d 892, 896 (Tex. App.—Houston [14th Dist.] 2013, pet. 

ref’d); Wood v. State, 299 S.W.3d 200, 209–10 (Tex. App.—Austin 2009, pet. 

ref’d). However, an expert may disclose facts from the report of an autopsy 

conducted by another person if the expert relied on those facts in coming to his 
34 

or her own conclusions. Williams v. Illinois, 132 S. Ct. 2221, 2228 (2012); Lee, 

418 S.W.3d at 898–99. 

 Furthermore, photographs taken during an autopsy are not statements. 

Wood, 299 S.W.3d at 214; Tex. R. Evid. 801(a). Thus, autopsy photographs are 

nontestimonial in nature for confrontation purposes. Herrera v. State, 

367 S.W.3d 762, 773 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Wood, 

299 S.W.3d at 214. 

Dr. Peerwani did not sponsor Dr. White’s autopsy report and did not act as 

a surrogate for Dr. White. Instead, Dr. Peerwani presented his own opinion 

regarding the cause and manner of Gregory’s death based on his independent 

review of the autopsy report, autopsy photographs, and toxicology reports, along 

with his expertise gained from conducting numerous autopsies. Dr. Peerwani’s 

conclusions did not violate Appellant’s confrontation rights. See Edwards v. 

State, No. 01-14-00384-CR, 2015 WL 1544512, at *6–7 (Tex. App.—Houston 

[1st Dist.] Apr. 2, 2015, no pet.) (mem. op., not designated for publication) 

(holding medical examiner may give conclusions based on review and analysis of 

autopsy photographs where examiner did not sponsor report); Williams v. State, 

No. 09-12-00350-CR, 2014 WL 1102004, at *3 (Tex. App.—Beaumont Mar. 19, 

2014, pet. ref’d) (mem. op., not designated for publication) (holding medical 

examiner may give opinion regarding cause of death where based on 

independent review of entire autopsy file including autopsy report by nontestifying expert, photographs, and microscopic slides; testifying expert may use 
35 

autopsy report to explain the basis of her opinion even though autopsy report not 

admitted); Hernandez v. State, No. 05-11-01300-CR, 2013 WL 1282260, at *6 

(Tex. App.—Dallas Mar. 6, 2013, pet. ref’d) (not designated for publication) 

(holding medical examiner may give conclusion reached after independently 

reviewing the autopsy report, photographs, and scene investigative history where 

he participated in peer review of autopsy report; testifying expert may not be 

used to introduce autopsy report prepared by non-testifying expert). 

In particular, Dr. Peerwani’s testimony addressing the manner and cause 

of Gregory’s death did not violate Appellant’s confrontation rights. See 

Hutcherson v. State, 373 S.W.3d 179, 183–84 (Tex. App.—Amarillo 2012, pet. 

ref’d) (holding medical examiner may give opinion regarding cause of death even 

though he did not perform autopsy; State may not offer autopsy report prepared 

by non-testifying expert); Gilstrap v. State, No. 04-09-00609-CR, 2011 WL 

192688, at *1–2 (Tex. App.—San Antonio Jan. 12, 2011, pet. ref’d) (mem. op., 

not designated for publication) (holding medical examiner may rely on autopsy 

report prepared by non-testifying expert in reaching his independent conclusion 

concerning cause of death). Dr. Peerwani’s testimony was based on his own 

observations, conclusions, and expertise. Thus, the trial court did not abuse its 

discretion by denying Appellant’s motion and allowing Dr. Peerwani to give his 

opinion regarding the cause and manner of Gregory’s death. 

We overrule Appellant’s third point. 
36 

CONCLUSION 

 Having overruled Appellant’s three points, we affirm the trial court’s 

judgments. 

/s/ Anne Gardner 

ANNE GARDNER 

JUSTICE 

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ. 

PUBLISH 

DELIVERED: December 22, 2016