### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00275- CR

Kat hryn Nellie Briggs a/k/ a Kat ie Briggs, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 647 54, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is one of three app ea l s arising from a capital murder trial ag ainst three codefe ndants. The jury convicted the appellant in this cause , Kathry n Nellie Br igg s, of the offe nse of capital murder for remune ration. See Tex. Penal Code Ann. § 19.03(a) (3) (West Supp. 2012). The State did not seek the death penalty , and punishment was automatically assessed at lif e imprisonment without the possibi l i t y o f p ar o le. I n three issues on appea l, Br igg s asser ts that the evidenc e is insufficient to prove that she was criminally responsible as a party to the offe nse, that the evidenc e is insufficient to prove that she committed the offe nse “for remune ration,” and that the district court abused its discretion in deny i n g h er motion to sever her trial from the trials of her co-de fenda nts, Ky le J ames Moesc h and John Anthony Valdez, J r. We will affirm the judg ment of convic tion.

1

Moesch and Valdez filed simil ar motions to sever , which wer e also denied. Both Moesch 1 and Va ldez were also convicte d of ca pital murder. Moe sch’s a ppeal is bef

ore us a s cause number 03-11-00267- CR, while Valdez’s appea l is before us as ca use number 03- 11-00274-CR.BACK GR OUND The jury hear d evidenc e that on October 14, 2008, the body of For t Ho o d Staff S er gea n t R y an Sulli van was discovere d in the apar tment wher e he had lived. Dr. Reid Quinton,

a medical examiner who had perf ormed an autopsy on the body , testif i ed t h at S ullivan had

rec eived approximately 34 stab wounds to his abdomen, head, and other are as of his body , including defe nsive stab wounds to his arms and hands and likely fata l stab wounds that puncture d his ne ck, hear t, and lung s. Quinton also testified that the level of decomposition in the body was consistent with Sull ivan having been killed in the e arly morning hours of Oc tober 11. The crime scene was investiga ted by Detec tive Richard Tramp of the Killeen Police Depa rtment, who s ecur ed and collecte d the evidenc e that wa s found at the sc ene. Tramp testi fied that there wer e no signs of forc ed entry into the apar tment. He also testified that based on the blood

2 stains in the apar

tment and the position in which the body was found, it appea red that Sulli van had been stabbed inside the apar tment and that he had died in the location wher e his body h ad been found. Another witness, Tom Be vel, a crime scene rec onstruction expert for the State, testified that in his opinion, it was likely that two people had been involved in the killing, “one to he lp c ontrol” the victim, and “anothe r to stab” him (althoug h Be vel qualified his testimony by stating that he could not exclude the possibili ty that one per son had bee n able to commit the killing on his own). The State’s theory at trial wa s that Valdez had killed Sulli van, that Moesch had assisted Valdez in the crime, and that Br igg s, who had been in a past ro m an t i c re l at i onship with S ullivan, had orche strated the killing in order to rec over proce eds from Sulli van’s life insuran ce

I n fac t, other evide nce te nded to show that the a partment door had been locked from the 2 outside, which sug g ested to the investiga ting office rs that whoeve r had murdere d Sulli van had a key to the apar

tment. 2policy , of which she was a named benef iciary

. Be cause Br iggs challeng es the sufficie ncy of the evidenc e supporting her c onviction, we summarize the evide nce pr esente d at trial in some detail.

Sulli van wa s orig inally

from Gr and Rapids, Michig an, where his family still lived. Upon being notified of Sulli van’s death, th ree of his siblings, including his half-br other Be n and half-sister Br idge t, made plans to fly to Killeen to g et Sulli van’s aff airs in order

. Be n testified that afte r their arr ival, they met with Br igg s at the lobby of the motel wher e they wer e stay ing. Acc ording
to Be n, Br igg s “showe d a brief amount of g rief. There was a litt l e b i t o f cry ing on her part that didn’t last very

long.” After

eating lunch toge ther, they went to Sullivan’s apar

tment to inventory his belong ings. Be n testified that he did not find any photogr aphs in the apart m en t of Br igg s or any indication that Br i g g s had once lived there

. When asked to descr ibe Br igg s’s attitude at the 3 apar tment, B en rec ounted, “I t w as just like she was car ry ing on throug h any other day

. . . . [T] here

was no . . . mourning or sense of loss there , just t h at i t was another day .” Be n added, “I t was uncomforta

ble. I t just started to build a sense of this isn’t rig ht. There ’s something off kilter here .” The following day , t h e s iblings and Br igg s returne d to Sulli van’s apar tment. This time, they wer e acc ompanied by Valdez, who was introduced to Be n as a close friend of Sulli van’s. Be n testified that Valdez seeme d “distant

. . . wit h me espec ially ,” and Be n did not g et the impression that Valdez had been clos e friends with Sulli van. Be n also observe d that Br igg s and Valdez “obviously knew eac h o t h er ” an d i n tera cted with eac h other to such a deg ree that Be n believed them to be “flirting .” Given that this appar ent “flirting ” was happening at the place wher e

The rec ord ref

lects that Br igg s h ad l ea s ed the apar tment in which Sulli van’s body was 3 discovere d

. Br igg s was the sole tenant listed on the leasing contra ct and had made the monthly renta l pa y ments. Howeve r, there was e vidence tending to show that Br igg s had paid the rent with Sulli van’s cre dit car d. A cre dit car d belong ing to Sulli van that was found at the crime scene matched the cr edit car d that had bee n used to pay the re nt. 3his brother ha d been mur dere d, Be n at first found it to be “unc omfortable” and then “ nausea ting.” Be n was also troubled by Bri ggs ’s appar ent reluc tance to let g o of many of Sulli van’s valuable belong ings, including a car that had “g reat sentimental value” to Sulli van. Acc ording to Be n, Br igg s ref used to g ive Be n the car until Be n g ot the police involved and they “pre ssured” her to do so. Due to Br igg s’s “odd” behavior , Be n spoke with police detec tives prior to depar ting Killeen to “make sure that they

looked into Katie a little bit more.” Sulli van’s half-sister Br idge t testified s im il a r ly r e g a r ding her interac tion with Br igg s. Br idge t explained that she had met Br igg s a few y ear s ear lier, but she had not spent much time with her befor e Sulli van had died. Br idge t rec alled that during their lunch conver sation with Br igg s afte r they had arr ived in Killeen, Br igg s had told Be n that she and Sulli van “we re separ ated and she was living in Austin with friends,” but “she knew in her hear t that they wer e g oing to g et back toge ther.” Br idge t testified that she did not observe Br igg s “show g rief at all” and that Br igg s was “ver y calm” and “unemotional” while they wer e at the apar tment g oing throug h Sulli van’s belong ings. At one 4 point during their interac tion, Br igg s showed Br idge t a ring

. Acc ording to Br idge t, Br igg s told her, “T h is is the ring that [S ullivan] was supposed to have g iven me. Somebody told me that h e wa s g oing to f inally propose to me.” Br idge t did not believe Brig g s. She expl ained, “ Ifelt she wa sn’t telling the truth. I t just seeme d like a lie.” Br igg s also told Br idget t h at s h e m i gh t be preg nant with Sulli van’s child, but Br i d get ultimately conclude d that this was not true. Br idge t further testified that she later saw Br igg s at Sulli van’s funer al in Michig an and that she had overhe ard Br igg s introduce herse lf to others as Sulli van’s “fia ncée .” Br idge t believed this to be another lie, as she had previously asked Sulli van if he was ever g oing to marry Br igg s, and “he had alway s said no.”

Br i d g et also rec alled meeting Valdez at S ullivan’s apar tment and testi fied that Valdez’s 4 behavior was “ odd” and tha t Brig g s and Va ldez were “flirting ” with ea ch other

. 4Sulli van’s mother, Denna h, provided testimony reg arding the history of the romantic rela tionship betwee n Sulli van and Br igg s. Denna h testified that while Sulli van was serving in I raq in 2005, he had met a woman online who had identified herse lf as Marisa Miller, a Sports I llustrat ed swimsuit model. When Sulli van returne d home from I raq later that y ear , he beg an to date this

woman. I n J uly 2006, Sulli van took the woman home to M i ch i gan t o meet his pare nts. Denna h testified that when she met “Mar isa Miller,” she was surprised to discover that she was “ver y obese,” had “dy ed blond hair,” and was “we aring a long sleeve pink swea ter and very , very tight jeans.” Acc ording to Denna

h, the woman continued to claim that she was Marisa Miller, but explained that she had become “ver

y ill and had to have all differ ent kinds of operations” that resulted in her losing “thre e inches in her spine,” suffe ring “some kind of brain injury ,” and g aining “may be 150 pounds.” The woman also told Denna h that she “didn’t want to be called by Marisa Miller any more beca use that was her profe ssional model name and now she was rea lly Kate Br igg s.” Denna h had looked up M ar i s a M i ller online and, based on the fac t that Br igg s looked “absolutely nothing” like Miller , believed that Br igg s was ly ing about her identity

. Howeve r, Denna h and her husband chose not to confr ont their son about Br igg s’s identity beca use he was schedule d to return to I raq soon and they did not want to upset him.

Sulli van returne d home from his second tour of duty in I raq in J anuar y 2008. Shortly there afte r, Sulli van and Br igg s moved into an apar tment toge ther in Killeen. Denna h testified that when she had visited th e co u ple in the spring of 2008, she was introduced to Valdez. Denna h observe d that Valdez and Sulli van wer e friends and that Valdez also appea red to be “ver

y ” friendly with B rig g s. Denna

h noticed, howeve r, that “ther e wasn’t that much interac tion” betwee n her son and Br igg s. By May 2008, Denna h testified, “Thing s wer en’t g oing that well. They wer e fig hting

5a lot. She was spending most of her time in Austin.” B y J uly 2008, Denna

h rec alled, the two had “broke n up” and Sullivan had told his mother that he ha d no plans to g et marr ied “to any one.” One or two day s afte r Sulli van had be en killed, Denna h rec eived a

phone ca ll from Br igg s. Denna

h testified t hat Brig g s had tol d her that she “can’t imag ine” who w ould have killed Sulli van but a dded that it “can’ t have been any body from the fort.” Br igg s went on to te ll De nnah that “may

be i t was somebody from the [shoot ing] rang e” wher e Sulli van had last been seen befor e his murder. Denna h also testified that during this same conver sation, Br igg s had told her that other soldiers had been “tea sing” Sulli van beca use he was “looking at a jewelr y mag azine” and “wa s thinking of g etting [Brig g s] a ring .” Denna h found this “rather strang e beca use Ry an was adama

nt they wer e broke n up fore ver,” and, ac cording to Dennah, he had bee n dating someone e lse.

Finally , Br igg s told Denna h about a “video will” that Sulli van had made in which he had left most of his proper ty to her. Acc ording to Denna h, Br igg s had told her that “seve ral soldiers and sever al detec tives had watche d it, and they wer e so moved by it that some of them had to leave the room.” Br igg s mailed the video to Denna h, who watche d it with her husband and then contac ted
t h e Ki lleen Police Depa

rtment to ask them if they had seen the video. The detec tive wi t h wh o m Denna h spoke “had no idea that there was a DVD,” and she mailed it to him so that it could be used in the investigation.

The label attache d to the DVD was dated “10/07/2008,” which was one wee k befor e Sulli van’s body was found. I ncluded with the DVD was a note from Br igg s claiming that October 7, 2008 was the date t h at s h e believed Sulli van had picked up the video from the store wher e it had been proce ssed. Denna

h testified that there wer e “seve ral things” which led her to be lieve that the video was not a ctually made on that date, including that Sulli van looked y oung er on the video and l es s “bulked up,” that Sulli van made ref ere nces in the video to family members and events that 6seeme d outdated, and that he had less tattoos in the video than he had in 2008. Denna h conclude d that the video must have been made during Sulli van’s first deploy ment to I raq or shortly there afte r. I n fac t, the evidenc e tende d to show that Denna h’s suspicions about the date of the video wer e corr ect. Kathy Ca m at , the custodian of rec ords for YesVide o, a company that copies videotapes, slides, and prints to DVDs, testified that YesVide o had copied the video will from a VHS tape to a DVD. Acc ording to Camat, the di g ital conv er s i o n h ad b ee n order ed by a person named Katie Br igg s on J uly 10, 2007, and re turned to B rig g s on J uly 24, 2007. Documents rela ting to Sulli van’s life-insura nce policy wer e al s o admi tted into evidenc e. The policy , which Sulli van had signe d on Aug ust 28, 2006, desig nated Sulli van’s pare nts and Br igg s as benef

iciarie s. Acc ording to the policy , the pare nts would eac h rec eive $150,000 upon Sulli van’s death, while Br igg s would rec eive $100,000. Acc ording to Se r g e a n t M a x well Davis, who

was friends with Sulli van and had serve d in the same unit with Sulli van in I raq , S u l l i van was schedule d to update his life-insuran ce p o l i cy in October 2008 beg inning the wee k afte r he was murdere d. Davis testified that Sulli van had informed him that he was planning on making chang es to his policy at that time. Davis also testified that t h e s ch ed u l e for making chang es to one’s lifeinsurance policy

was not a se cre t and that eve ry one in the unit knew a bout it. L ee Price, the casua lty assistance office r at For t Hood, t es t i fi ed that the day afte r Sulli van’s body was discovere d, Br igg s had applied to rec eive benef its under the l i fe -i n s u ranc e policy

. The application was acc epted. Approxim ately two wee ks later, on October 31, 2008, Br igg s wrote two chec ks on t h e acc ount, eac h in the amount of $9,500 and made pay able to herse lf. Additional chec ks were written on the a ccount in later months. During the investigation into Sulli van’s murder, Br igg s talked to the police on multipl e occa sions and provided two written statements. I n her first statement, taken o n t h e day
7Sulli van’s body was d i s covered, Br igg s briefly descr ibed her rela tionship with Sulli van and explained that she had last seen him in September 2008. Howeve r, she claimed that Sulli van had left messag es for her on October 10 and October 11, 2008, asking her if they could have dinner toge ther and talk. I n her second statement, taken on October 30, Br igg s descr ibed in g reater detail 5 her rela tionship with Sulli van, explained the circ umstances surrounding their brea k-up, and claimed that Sulli van had continued contac ting her a fter the ir rela tionship had ended. Br igg s denied being involved in Sulli van’s killing or knowing who was. Br igg s also claimed not to have known that she

was a benef iciary in Sull ivan’s life- insurance policy until after Sullivan had bee n killed. As the investig ation into Sullivan’s murder prog resse d, the police beg an to suspect that Valdez and Moesch, who had both been medics in Sull ivan’s Army unit, had been i nvolved. The evidenc e tended to show that Moesch’ s DNA had been found on cig are tte butts from an ashtray

on a table located near Sulli van’s body , Valdez’s DNA had been found on three ci gar et te butts located on the floor of the apar tment and on the mouth of an ener g y -drink bottle found at the scene , and DNA from both men had been found on a cig are tte butt that had been rec overe d from inside the bottle. The bottle itself was f ound on top of a plate that had Sullivan’s blood on it. The lead investigator in the case was Detec tive Keith Dro zd of the Killeen Police Depa rtment. The day afte r Sulli van’s body was discovere d, Drozd talked with Br igg s over the phone. Acc ording to Drozd, Br igg s had told him that Valdez was stay ing with her the wee kend that Sulli van was killed. Drozd then asked B rig g s “about a missing key ” to Sulli van’s apartment, and Br igg s “stated that at one point ther e was a missing key .” Drozd also asked Br igg s “if Va ldez had

ever rec eived a key to the residenc e.” Acc ording to Drozd, Br igg s “stated that she had never g iven

As the evidenc e tended to show, these date s co rr es ponded to the wee kend in which 5 Sulli van wa s murdere d. 8him one and she didn’t believe that he had ever rec eived one.” Br igg s also told Dr ozd that Valdez

and Sullivan were friends a nd that she “w ould consider them be st friends.” A key witness for the State in its case ag ainst Valdez and Moesch was J ere my J acobs, who testified that both Valdez and Moesch had made incriminating statem en t s t o h i m reg arding their involvement in the murder. J acobs explained that he, Valdez, Moesch, and Sulli van had all

serve d toge ther in the same Army unit and that they wer e go o d fr i ends. Howeve r, acc ording to J acobs, the friendship betwee n Valdez and Sulli van eventua lly dete ri o ra t ed

. J acobs testified that in late Aug ust 2008, the four men had met up at a bar in Austin and that while they wer e there , Valdez and Sulli van g ot into a disag ree ment. Sulli van left the bar “re al upset,” while Valdez, who,

acc ording to J ac o b s , wa s very intox icated, had to be “pre tty much car ried” out of the bar by J acobs and Moesch. J acobs explained that they walked Valdez to another bar down the street wher e,

acc ording to J acobs, B rig g s was wa iting to meet up with Va ldez.

J acobs testified that at an unspecifie d later date around September or October 2008, Valdez had told J acobs and Moesch “that there was a hit on [S ullivan] and that [Valdez] was g oing
to car ry it out.” When asked if Valdez had said any thing about “who was behind [t he hit] ,” J acobs testified, “At the time he said it was lawy ers and g overnme nt officia ls and someth i n g l i k e that.” J acobs also claimed that Valdez had later told him that “[Sul livan] was pissing the wrong people off and stepping on toes.” J acobs further testified that Valdez had told him and Moesc h that “he w as g oing to g o kill [S ullivan] at night,” and that the people who had order ed the hit had paid Valdez $100,000 to do the job. Acc ording to J acobs, “Va ldez offe red us $2,000 eac h to help g et rid of the 6 body afte r he was done.” J acobs testified that both he and Moes ch t o l d Valdez, “I don’t know.”

As the e v i dence tended to show, this amount corr esponded to the amount of m oney that 6 Br igg s was entitled to re ceive under Sullivan’s life- insurance policy

. 9J acobs added that Valdez “said that we should keep quiet abou t i t

. An d since we know about it,

y ou know, something could happen to us also.” When asked what his rea ction was to Valdez’s statements, J acobs a

nswere d, “I

honestly didn’t take a

threa t on someone’s life se riously .” J acobs testified that later that day or the following day , he, Valdez, and Moesch went to Quantico Tac tical, an arms and tactica l supply shop located at For t Hood, wher e “Va ldez said he

was looking for a stun g un . . . to incapa citate [S ullivan] .” Acc ording to J acobs, Valdez was unable
to locate such a g un, and the men left the store. J acobs added that at a later date, while he and Valdez wer e at For

t Polk in L ouisiana training for their next deploy ment, they wer e “g oing throug h

some chests and medical supplies” when Valdez asked J acobs if he knew whether the supplies contained any “par aly

tic ag ents.” J acobs asked Valdez “wha t he wanted it for,” and Valdez tol d J acobs that “he was g oing to d ra w i t u p i n a sy ring e and use that to incapa citate [S ullivan] .” I n response , J acobs said nothing. L ater , Valdez told J ac o b s “that he went throug h a drug ref ere nce book and found some of the chemica ls that are used in lethal injections and showed it t o m e in his pa ck.” Acc ording to Jacobs, Valdez claimed “that he found two of the three chemica ls used in lethal i njection and he took them.” Vald ez d i d n ot tell J acobs what he planned on doing with the chemica ls, but J acobs “assumed it was for the same rea son he was asking for it befor e.” Despite this and the attempt to obtain a stun g un at the wea pons store, J acobs testified that he “re ally still didn’t take [Valdez] seriously .” After returning from their tr a in in g e xe rcises, J acobs and Valdez returne d to For t Hood. Acc ording to J acobs, Valdez “had a fig ht with the company commander ” on Wednesday , October 8, and Va ldez did not return to work the re st of the wee k. Around that same ti me period, Br igg s was working in Austin as a file clerk for the I RS. The evidenc e tended to show that on Thursday , October 9, Br igg s went to lunch at a cupca ke shop with her co-w orker s Gi l b er t Ramirez, Marg are t Mansfield, and J oy Campos. Acc ording to 10Campos, it was Br igg s’s idea to g o there

. Ramirez, Mansfield, and Campos eac h testified that Br igg s

h ad told them that she was planning on meeting her “brothe r” at the shop so that he could re t u rn to her the key to the apar

tment of Br igg s’s boy friend in Killeen. The co-w orker s eac h testified that while t hey wer e at the s hop, a man pulled up riding a mot orcy cle, talked with Br iggs, and handed her something. Ramirez testified specific ally that the man g ave Br igg s a key

. I n court, Ramirez and Campos both identified Valdez as the man w ho had met with B rig g s.

The next evening , Br igg s and Valdez wer e seen toge ther at t he Austin apar tment complex wher e Br igg s lived. Sammy Gonzalez, a friend of Valdez’s who lived at the same complex, testified that he had seen Valdez at approximately 6 : 0 0 p . m . and had asked Valdez if he “wa nted to g o out” that night. Valdez “kind of just shrug ged it off,” and Gonzalez “neve r g ot a direc t answe r.” L ater on, Gonzalez ag ain asked Valdez if he wanted to g o out that night. This time, Gonzalez testified, Br igg s was with Valdez. Acc ording to Gonzalez, Valdez did not respond to his question, but Brig g s told Gonz alez that Valdez “ha d something to do.”

The evidenc e tended to show that on that same night, Sulli van was out drinking with friends in Killee n, including Moe sch, and tha t w hile they wer e out dr inking, Moesch had rec eived
text messag es and phone calls from a person in Austin inquiring ab o u t Moesch’ s wher eabouts and whe ther Sullivan was with Moe sch. During the cour se of the inve stiga tion, Moesch provided three written s t at em ents to the police explaining his acc ount of what had happene d that night. I n all three statements, Moesch claim ed that later that night, Sulli van and Moesch had returne d to Sulli van’s apar

tment, w atche d a movie, continued to dr ink, and eve ntually fell aslee p in the living

room. I n the first statement, t aken the day afte r Sullivan’s body

was discove red, Moe sch claimed
not to reme mber any

thing afte r he had fallen aslee p. Howeve r, in the second statement, taken on November 19, 2008, Moesch s t at ed that he reme mbere d waking up later that night and seeing a 11person in the living room “we aring a black ski mask over [hi s] entire fac e.” Moesch also observe d

that the per s o n wa s “we aring black g loves with plastic knuckle protec tors” that wer e simil ar to g loves that Moesch had seen “sold at the PX in I raq.” Acc ording to Moesch’ s statement, the person took off his ski mask and told Moesch that “we need to leave now.” Moesch “looked over and saw

a body o v er i n t h e corner.” Moesch “aske d the person if [he] killed Serg eant Sulli van,” and “the person walked over” to the body , “kicke d the fee t and said y es.” Moesch “fig ured at this point that the body belong ed to Ser g eant Sulli van.” Moesch “ exit ed throug h the front door” with the person and aske d the per son to take hi m to For t Hood. Howeve r, t he person ref used, telling Moesch that he “didn’ t want to be see n any wher e at that time in the morning afte r wha t had just taken plac e.” 7 The next morning , at approximat el y 7 : 3 0 a.m., J acobs awoke to discover Moesch inside the duplex wh ere J acobs and J acobs’ s wife, Kristi, lived. J acobs and Kristi testified that 8 Moesch looked “sca

red.” J acobs testified that Moesch “wa s coming out of the hallway bathroom” and “looked like he had just finished washing his hands.” Ac cording to J acobs, Moe sch told him, “I t’s done, Sully ’s dead.” J acobs did not b el i ev e M o esch, even afte r Moesch showed J acobs what appea

red to be “a couple of little drops of . . . blood on his pants leg .” Jacobs drove Moesch to Fort Hood, dr opped him off ther e, and r eturne d home.

A reda cted version of Moesch’ s third statement, t ak en o n November 23, 2008, was 7 admitted into evidenc e. The reda cted version did not cont ai n m uch information, althoug h it did contain the following statements: (1) “When initially approa ched, I offe red to h el p i n any way neede d for a cut”; (2) “Af ter we went to Quantico Tac tical is when I knew a hundred perc ent in my mind that the person was going to kill SSG Sulli van”; and (3) “J acob s s ai d h e could probably g et some from an old g ang that he used to know in Houston.” The statement also contained Moesch’ s brief descr iption of the Aug ust 2008 arg ument betwee n Valdez and Sulli van at the bar in Austin and how Moesch and J acobs had separ ated Valdez and Sulli van befor e the arg ument beca me phy sical. There was evidenc e tending to show that Moesch had lived in the duplex with J acobs and 8 Kristi from J une 2008 until September 2008. J acobs testified that afte r Moesch moved out of t he duplex, Valdez moved in. 12L ater that same day , Gonzalez we n t wi t h Br igg s and Valdez to a bar in Austin to

watch the annual f

ootball ga me betwee n the University of Texas a nd the Univer sity

of Oklahoma

. L ater on, Gonzalez testified, Moesch joined them at the b ar . Ac co rd ing to Gonzalez, during the g ame, Valdez and Moesch spent time toge ther outsid e t h e bar, “talking and smoking.” Gonzalez further testified that at some point in the next couple of day s, he had rec eived a text messag e fr om Valdez stating that the police wer e looking for him and asking Gonzalez to tell the police that Valdez was with him that wee kend. 9

The following Tuesday , October 14, J acobs was told by another soldier that Sulli van had bee n found dea d in his a partment. When Jacobs returne d home that nig ht, he aske d Valdez if he had killed Sulli van. Acc ording to J acobs, Valdez “just looked at [hi m] and kind of g ave me a smirk.” At that point, J acobs did nothing and talked to no one , including the police. When aske d why he “didn’t say any

thing,” J acobs testified, “B eca use I take very seriously the threa ts that Valdez made ag ains t m y self and Kristi.” He later testified that he had felt threa tened by Valdez, and he imag ined that Moesch ha d felt similarly threa tened. At some later date, afte r the poli ce h ad initially questioned Valdez, J acobs “aske d [Valdez] how that went.” Valdez’s response, acc ording to J acobs, was the following : “[H]e just looked at me a

nd said they

don’t have any

thing that’ s ever

g oing to stick. And I asked him ag ain, did y ou do it? And his response was, ‘What do y ou think,’ and he just kind of g ave me some—like

a littl e twisted smile or a smirk.” After Sulli van was killed, J acobs testified, Valdez continued living with him and Kristi. Howeve r, J acobs rec alled, “He was there pretty much ever y wee k and g one on

Gonzalez’s testimony reg arding the interac tion betw ee n Valdez and Moesch during the 9 g ame and the t ext messag e tha t h e h ad all eg edly rec eived from Valdez was corr oborate d by other witnesses who ha d also bee n at the bar during the g ame. 13the wee kends.” Acc ording to J acobs, whene ver Valdez would leave for the wee kend, he would take

his motorcy cle with him.

On November 11, 2008, J acobs decide d to contac t the police and “made an anony mous call to the Killeen Police Depa rtment” from a pay phone. J aco b s was informed that the detective in char g e of the case was not in the office , and he decide d not to leave a messag e. Howeve r, the call had been rec orded, and the police play ed the rec ording to s o l d i ers in J acobs’ s company who wer e able to identify his voice. T h e s o l d iers approa ched J acobs, who eventua lly ag ree d to talk to t h e p o l i ce . Shortly there afte r, Valdez was arr ested. Following his arr est, police executed a sear ch war

rant at a motel room that Valdez had rente d. Among the evidenc e rec overe d from the room was $4,480 in cash found inside a Ba nk o f Americ a envelope

. The envelope was fo und inside a jacke t that had alleg edly belong ed to Valdez. The evidenc e tended t o s h o w t h at Valdez had a

chec king a ccount a t Ba

nk of Amer ica. Other evidenc e implicat i n g Br igg s in the murder included evidenc e tending to show that Br igg s and Valdez had ex changed s ignif icant amounts of m oney following the m urder

. Approxim ately two wee ks afte r Sulli van was killed, Detec tive Drozd discovere d that money was being withdrawn from Sulli van’s bank acc ount. Droz d co n fr onted Brig g s about whether she was responsible for the withdrawa ls, but Br igg s denied making any withdrawa ls from the acc ount. L ater , Drozd lear

ned that on October 16, 2008, Br igg s had made a flig ht rese rvation on Delta Airlines for

a J anuar y 2, 2009 trip from Austin to Cincinnati. Drozd asked Br igg s i f s h e h ad used Sulli van’s

acc ount to purchase airline ticke ts. Brig g s stated that she ha d not.

Ba nk statem en t s were admitted into evidenc e that showed activity in the bank

acc ounts of Sulli van, Br igg s, and Valdez. On September 27, 2008, Sulli van’s acc ount had a balanc e

o f $10,800. The balanc e at the end of October was $4,600. On October 15, 2008, the day afte r 14Sulli van’s body was found, the bank statement ref lected a debit of $131.10 to a hotel in Austin. On October 20, the statement re flec ted a $510 de bit to Delta Airlines. The bank statements tended to show that in l at e 2 008 and ear ly 2009, Valdez maintained a low balanc e—nea r zero dollars—in h i s t wo checking acc ounts. Howeve r, on the

occa sions when Valdez did have m o n ey in his acc ount, he would often transfe r that money into Br igg s’s acc ount. For example, in J anuar y 2009, Valdez rec eived a fede ral t ax ref und of $1,973. Some of that re fund wa s transfe rre d direc tly into Br igg s’s acc ount on two separ ate dates—$1,000 on J anuar y 30 and $400 on F ebrua

ry 2. Simi lar tra

nsfer s occur

red in late 2008. 1 0 The bank statements als o tended to show that in September 2008, Br igg s’s saving

acc ount had a n ega tive balanc e. Howeve r, in the next three months, $15,874.30 was deposited into Br igg s’s acc ount. The acc ount ref lected n u m er o us transfe rs from Valdez’s acc ount and also

a transfe r of $4,000 from her saving s acc ount to her chec king acc ount o n No v ember 13, 2008. Br igg s’s chec king acc ount had a balanc e of $7.20 on September 11, 2008, and a balanc e of $6.41

o n Oc t o b er 14, 2008. On November 7, the balanc e in the acc ount was $9,341.54. However, b y Dec ember 11, the balanc e had been reduc ed to $1,053.19. One of the transac tions during that time period was a $520.50 purcha se from Delta Airlines on November 19. Another notable transac tion

was a $4,000 cash w ithdrawa l from the bank on N ovember 17. 1 1

Acc ording to Valdez’s bank statem en t, the rema ining $573 appea rs to have been 1 0 transfe rre d from one of Valde z’s checking acc ounts into hi s other che cking acc ount. Howeve r, at trial, the custodian of bank rec ords identified this amount as being t ra n s ferred direc tly into Br igg s’s ac count. As noted above, $4,480 in cash had been found in a bank envelope in Valdez’s jacke t afte r 1 1 he had be en ar

rested on N ovember

19. 15After Valdez was arr ested, the p o lice discovere d additional evidenc e tending to

connec t Br igg s to the murder. The police lear ned that Valdez had claimed to his friends and others that he had a g irlfriend by the name of Airianna Be nitez, who he was planning to marry . Howeve r,

none of Valdez’s friends

— wi t h the exception of Br igg s—had ever met this woman. The police
eventua lly

came to believe that “ Airianna Be nitez” was ac tually

an alias use d by

Br igg s. Br igg s was friends with Michae l Peterson and his g irlfriend, Ker ri Kea ne. I n 2008,

as Br igg s’s rela tionship with Sulli van was ending , Br igg s beg an living with Peterson and Kea ne at their Austin apar

tment. Peterson rec alled a conver sation with Kea ne and Br igg s at the apar

tment in which Br igg s told them that she was a benef iciary on Sulli van’s life insurance policy , but he could

n ot rec all when the conver sation took place

. Howeve r, Kea ne also rec alled the conver sation and testified that it took place at some point befor e Ry an had died. Acc ording to Kea ne, Br igg s had told them that the amount she wa s entitled to rece ive under policy was $100,000. Peterson testified that around the time that Bri ggs wa s l iving with them, Valdez beca me a “fa irly reg ular g uest” at their apar tment and that Valdez would sometimes be acc ompanied by Moesch. Peterson also testified that he and Kea ne soon lear

ned of Valdez’s rela tion s h ip with “Airia nna Be nitez,” that Valdez was planning to marry her and that, on their honey moon, they wer e “g oing like on some exoti c vac ation.” Peter son, who worke d for Ve rizon, recounted a time in the

summer of 2008 when Valdez approa ched him about purcha sing cell phones for him and “Airia nna.” Peterson ag ree d to sell two phones to Valdez. The night afte r he sold the phones to Valdez, Peterson

rec alled, Br igg s and Va l d ez wer e at the apar tment. Peterson testified that when Valdez left the apar tment, he left behind one of the phones that he had purcha sed. Peterson asked Br igg s about the phone, and she told him t hat “she ’d g et it to Airianna.” Peterson further testified that Br igg s took

16the phone and, later that night, beg an “play ing with it,” which Peterson descr ibed as “[having ] it open, like setting the fe ature s up on it and stuff like that.”

I n ear ly October 20 0 8 , P eterson and Kea ne wer e visiti ng family in Michig an. Peterson testified that when he returne d home on the night of Fr iday , Oc t o b er 1 0, Valdez

came over to their apar

tment, “hung out for a couple of hours,” and then “took off” at approximately 11:00 p.m., alleg edly to g o to Six th Street. When Peterson awoke the next morning , h e fo u n d Valdez sleeping on the floor in the living room. That night, Peterson went out to Six th Street with

a g roup of friends, including Br igg s, Valdez, and Moesch. Peterson ag ree d with the prosec utor’s char acte rizatio n o f t h ei r behavior that night as “g oofing around” and “stay [i ng ] out pretty late partying.” When Kea ne returne d home from Michig an approximately on e wee k later, she informed Peterson that Sulli van had been murdere d. After lear ning of the murder, Peterson decide d
to use his position at Ver izon to look up Va l d ez ’s phone rec ords. He noticed that ear ly on the morning of Oc tober 11, Va ldez had made two phone calls to Moesch.

Peterson also testified that in ear ly November 2008, he and Kea ne rec eived a phone call fr om Moesch in which Moesch had admitted that he had been prese nt in Sul livan’s apa rtment when Sul livan had bee n killed. Accor ding to Peter son, that same month, Br igg s told him that she wanted to purcha se a second ce l l p h o n e to talk to an “old friend” named “Katnik.” Peterson sol d Br i ggs a p hone as reque sted, the “same exact phone” model that he had previously sold t o Valdez and “Airia

nn a.” Peterson further testified that while Valdez was in the Be ll County J ail following his arre st, Peterson would rec eive letter s from Va ldez addre ssed t o him, Keane , Br igg s, and “A irianna.” Peterson re called tha t most of Valdez’s letters we re a ddresse d to Brig g s.

17Another witness, J org e Gonzalez, who had also been with Br igg s and Valdez during

the Texas-Oklahoma g ame, testified that afte r Valdez was arr ested, he had rec eived a text messag e from a woman claiming to be the sister of “Airia nna,” Kell y . Acc ording to Gonzalez, in the

1 2 messag e, “K elly ” had of

fer ed to “pa

y off” his $3,500 student loan. Gonzalez declined the off er. The evidence also tended to s h o w t h at both Br igg s and “Airianna” wer e placed on Valdez’s list of people wh o wer e allowed to visit him at the jail. Howeve r, althoug h jail rec ords ref lected that Br igg s had visited Valdez in jail, there wer e no rec orded visits by “Airia nna.” The jail

rec ords also tended to show that Br i ggs h ad deposited hundreds of dollars into Valdez’s inmate

acc ount on multi ple occ asions.

Also admitted into evidenc e wer e telephone rec ords from the j ai l t ending to show that Valdez had made numerous calls while he was in jail to numbers associate d with Br igg s. Fr om November 20, 2008 until Fe bruar y 20, 2009, Valdez called Br igg s’s number 29 times and the calls lasted a total of 162 minutes. Fr om Fe bruar y 20, 2009 until Marc h 2011, Valdez called Br igg s 24 times and the calls lasted a total of 32 minutes. Valdez also called a number in the 512 are a code

a total of 51 times prior to Fe bruar y 20, 200 9

. Af

ter that date, other calls wer e made to the same number, but some of the calls wer e made b y Va l d ez , while other calls wer e made by Br igg s afte r she had been arr ested in May 2009. Howeve r, none of the calls made by Br igg s to that number wer e completed calls. Finally , the phone rec ords ref lect that 581 calls totaling 1,744 minutes wer e made by Valdez to a n u m b er i n t h e 2 10 are a code prior to Fe bruar y 20, 2009, and that 39 calls totaling approximately 6 minutes wer e made by Valdez to that same number afte r Fe bruar y 20. Many of the

During the investigation, office rs lear ned that Br igg s had told others that “Airia nna” had 1 2 sisters named Rupal, J ordan, and Kelly Monaco. Offic ers never located Rupal or J ordan. Howeve r, they eventua lly

lear ned that Ke lly

Monaco, similar to Mar issa Miller, is a ce lebrity , specific ally , a model and ac tress cur

rently starring on the soap ope ra Gene ral Hospital

.

18calls betwee n Valdez and Br igg s wer e rec orded and admitted into evidenc e, and multipl e witnesses

identified the voice s in these ca lls as belong ing to Va ldez and Br igg s.

After Valdez was arr es t ed , data was extracted from his cell phone. The data

corr esponding to Valdez’s contac ts reve aled three names and numbers of signific ance : (1) “Anna ” with a number in the 254 are a code; (2) “Swee tness” wit h a n u m ber in the 210 are a code; and (3) “Sis” with a number that matched Br igg s’s cell phone number. Killeen Police Detec tive Reese 1 3 Davis, who analy

zed the data, testified that there was no rec ord of any outgoing calls from Valdez’s phone betwee n October 7 and 12, 2008, which i n d i ca t ed to Davis that either no calls wer e made during that time period or that the calls wer e deleted. Also admitted into evidenc e for the jury ’s considera

tion wer e self-a

uthenticated phone rec ords for other phones belong ing to Valdez (three separ ate phone numbers wer e attributed to Valdez), Moesch, Gonzalez, Br igg s, Sulli van, and Br andon Ka tnik. 1 4

Billy Curry , an investigator with the Be ll County District Attorney ’s Offic e, h ad
at t em p t ed to locate “Airia nna” during the investigation. He had first lear ned of “Airia

nna” fro m J acobs, who had identified her as Valdez’s fianc ée. Curry testified that J acobs had told him that he had only spoken with “Airia nna” over the p h one and had never met her in person. Curry lear ned that during the wee kend of Sulli van’s murder, “ther e was signific ant contac t betwee n J ohn Valdez and the number that we had for Airianna Be n i t ez . ” Acc ording to Curry , locating “Airia nna” was

There was evidenc e tending to show that “Anna ” and “Swee tness” wer e nicknames of 1 3 “Airia nna,” and “Swee tness” was also appar ently a user n am e o n a laptop computer operated by an administrator identified on the computer as “Kitty Kate.” The police attributed the number in the 210 are a code t o “Airia

nna,” and t he phone rec ords tended to show tha t the number be longe d to a phone owne d by

Valdez. As noted ab o v e, the evidenc e tended to show that Br igg s had purcha sed an additional 1 4 cell phone so tha t she could spea k with Katnik, whom she had ide ntified as an “ old friend.”

19difficult, beca use no witnesses had any contac t information for her other than one cell phone number that J acobs had pro v i d ed , and Curry “could not find any one that had actua lly laid ey es on Airianna Be nitez.” Curry had called “A i ri an n a’ s” phone number on sever al occa sions but had alway s b ee n direc ted to voice mail, and his calls wer e never returne d. Curry also ran the name throug h sever al state a

nd fede ral databa ses but f ound no evidenc e that such a pe rson eve n exis ted. All Curry could do at that point was monitor the calls that Valdez was making from the jail and hope that Valdez made a

call to “Air ianna” that was a nswere d. On J anuar

y 6, 2009, such a call was made. Howeve r, it was no t made to the phone number in the 210 are a code that the police believed belong ed to “Airia nna.” I nstead, the call was made to a number in the 512 a rea code. Curr

y explained,

I n the jail log I observe d sever al attempt s to contac t the orig inal Airianna Be nitez without succe ss. The 210 are a code number that Mike Peterson talked about, setting up that acc ount for J ohn Valdez. T h er e were sever al attempts prior to that J anuar y 6th call that we were unable to g o throug h, that wer e not completed calls. I observe d and monito red the J anuar y 6th, ‘09 telephone call place d to the 512 are a code. And i n that conver sation—in that conversation, there was talk betwee n the parties on the line about

. . . J ohn Valdez not being able to make contac t with that [210] number. And the person responde d it’s beca use—that she’s turned it off. The DA’s office is hounding her and trac king the phone, and that s h e t urns i t off, turns it on for 14 minutes at a time. Curry believed that the person with whom Va l d ez s poke in that conver sation was “Airia nna.” Concerne d that “Airia nna” might turn off the 512 phone number as she had turned off the 210 phone number, Curry immediately soug ht to obtain rec ords associate d with the 512 phone number. Once he did so , C u rr y l ea rn ed that the phone number “did not show an addre ss for Airianna Be nitez.” I nstead, the number belong ed to “an individual by the name of Br andon Katnik that lived in Urba

ndale, I owa.” Curry deter mined from the phone rec ords that this phone was used

20in Austin, Cinncinati, and Atlanta during a time period that corr esponded to a flig ht taken by Br igg s

on Delta Airlines. Curry also observe d that activity on the Katnik phon e co rr el at ed to usag e 1 5 patterns a nd locations for the cell phone in the 859 area c ode that wa s known to belong to Brig g s. Additionally , Curry lear

ned t h at b o t h the “Airia

nna” phone number in the 210 are a code and the Br igg s phone number in the 859 are a code wer e used in Copperas Cove near a location wher e Br igg s would sometimes reside.

Br igg s was arr ested on May 19, 2009, afte r she had come home from work and had just exit ed her vehicle. Curry , who h ad as s i s t ed in Br igg s’s arr est, place d a call to the Katnik phone while he was standing outside Br igg s’s ca r. When he did so, one of two cell phones inside Br igg s’s ca

r “lit up” with an inc oming c all from Curry ’s number. Curry testified t hat af ter B rig g s

was arr ested, there wer e no further calls betwee n Valdez and any of the phone numbers associate d with “Airianna .”

The State’s final witness was Har ris County Police Offic er Dustin Deutsch, an expert in the extraction and analy sis of cell-phone data. Deutsch revie wed the cell-phone data in this case and prepa red an analy sis of the fre quency and location of calls place d by sever al of the cell phones associate d with the defe ndants. Deutsch testified that on October 9 and 10, 2008, there wer e 61 calls betwee n Vald ez an d “Airia nna”; four calls betwee n Valdez and Moesch; 14 calls between Brig g s and Valdez; and two calls betwee n Br igg s and Moesch. During the same two-day period, there wer e

Flig ht rec ords admitted into evidence tended to show that B rig g s was out of town at the 1 5 time of t he J anuar

y 6, 2009 call. B rig g s’s flig ht reser vation was for a J anuar

y 2, 2009 flig ht from Austin to Cincinnati, returning on J anuar y 10. Br igg s made the flig ht to Cincinnati but canc eled the rese rvation for the return flig ht. I nstead, Br igg s fl ew from Cincinnati to Atlanta on J anuar y 11, missed the connec ting f

light to Austin, and spent the nig ht in an Atlanta hotel.

2138 text messag es betwee n Valdez and “Airia nna”; two text messag es betwee n Valdez and Moesch; one text message from B rig g s to Moesch; and e ight text messag es betwe en Va ldez and Br igg s.

Deutsch testified that there was a “tre mendous incre ase of volume of calls as well as text messag es” leading up to October 11, 2008. On that date, the alleg ed date of the murder, there wer e 39 calls betwee n Valdez and “Airia nna”; 16 calls betwee n Valdez and Moesch; 11 calls betwee n Valdez and Br igg s; and three calls betwee n Br igg s and Moesch. On t hat same date, Deutsch found 108 text messag es betwee n Valdez and “Airia nna”; 20 text messag es betwee n Valdez and Moesc h; and three text messag es fr om Valdez to Brig g s.

On October 14, 2008, the phone records reve aled 30 calls betwee n Valdez and “A i ri an n a” ; one call betwee n Valdez and Moesch; three calls betwee n Valdez and Br igg s; and

one call betwee n Br igg s and Moesch. On that same date, Deutsch found 26 text messag es betwee n Valdez and “Airia

nna”; 22 text messag es betwee n Val dez and Br igg s; and six text messag es betwee n Moesch a nd Br igg s. Fr om N ovember 17-20, 2008, the re cords showe d 152 calls or text messag es betwee n Valdez and “ Airianna ” and 32 c alls or text m essag es betwe en Va ldez and Br igg s.

Acc ording to Deutsch, cel l p h o n e tower rec ords tended to show that Valdez’s cell phone was used in the vicinity of Sulli van’s apar tment on the morning of October 1 1 , 2008. Three calls wer e made to Moesch’ s cell phone at ap p ro x i m at el y 3:00 a.m. and a fourth call was place d to Moesch’s phone at appr ox imately 7:25 a.m. Simi lar analy sis ref

lect ed t h at Br igg s’s and Katnik’s phones wer e used in Austin

on the m orning of J anuar y 2, 2009, and in Cincinnati that afte rnoon. The Katni k phone was used

sever al times in the L udlow, Kentucky are a the night of J anuar y 6, 2009, which, the evidenc e tended
to show, is the city wher e Br igg s’s mother lives. Deutsch simil arly trac ed these phones as trave ling from Cincinnati to Atlanta on January 11, 2009 and then f

rom Atlanta to Austin the next day

. 22Cell phone rec ords further reve aled that in the time period betwee n October 7 and 14,

2008, 49 perc ent of the calls made from the cell phone belong ing to “Airia nna” used a cell t o wer loca t ed i n an ar ea near Br igg s’s residenc e. During that same time period, 38 perc ent of the calls made from Br igg s’s cell phone used that same cell tower. Cell phone rec ords also showed that a call

was made between Va l d ez and Br igg s on October 9 at 12:09 p.m. near the cupca ke shop wher e Valdez allege dly met Br iggs t o return the key to Sulli van’s apartment. The recor ds also ref lected that Br igg s’s phone was used on November 19, 2008 in the vicinity of the motel wher e Valdez had stay ed bef

ore his ar rest. Deutsch deter

mined that on t h e ev en i n g of October 10, 2008, a call was place d from Brig g s to Moesch at 6:48 p.m. t h at lasted approx imately 13 minutes. Moesch then rec eived

a call from Valdez at 7:35 p.m. that lasted approximately two minutes. Moesch calle d Sulli van ap p rox imately two minutes later for a call lasting approximately 38 seconds. Wit hin 10 seco n d s afte r that call, Deutsch testified, Moesch called Valdez ag ain. Moesch then se nt a text messag e to Br igg s within a minute after the ca ll to Valdez. Deutsch’ s an aly sis also showed that text messag es wer e sent from Moesch to Valdez at 4:29 a.m. and 4:57 a.m. on the morning of October 11, 2008. A text messag e was also sent from “Airia

nna” to Valdez at 6:52 a.m., and a tex t m es s age wa s sent from Valdez to “Airia nna” at 7: 19 a.m. Deutsc h’s ana ly sis further r evea led that 22 text messag es were sent or receive d from Br igg s’s phone on the afte rnoon of her initial meeting wi t h t he Killeen Police on October 14. Acc ording to Deutsch , the majority of these communications wer e with Valdez, but some wer e with Moesch. The jury found Br igg s g uilty of capital murder as char g ed, and she was automatically
sentenc ed to life imprisonment without the possibil ity of par ole. This appea l followed. 23ANALYSIS

Suf fi ciency of the evidence

I n her f irst issue, Brig g s asserts that the e vidence is insufficient to prove that she is criminally responsible as a party to the offe nse. I n her second issue, Br igg s asser ts that the evidenc e is insufficient to prove tha t she committed the murder “for remune ration.” T o d e te r mi ne whether evidenc e is sufficie nt to support a conviction , a r e v ie w in g c o u r t must c onsider all of the e vidence in the light most fa vorable to the verdic t a

nd deter mine whether , based on that evidenc e and rea sonable infere nces there from, a rational fac t finder could have found the essential elements of the crime beyond a reasonable doubt. See Jack son v. V irginia , 443 U.S. 307, 319 (1979); Ge a r v. S t a te , 340 S.W .3d 743, 746 (Tex. Crim. App. 2011); Brooks v. State , 323 S.W .3d 893, 8 9 5 (Tex. Crim. App. 2010). This “fa miliar standard g ives full play to the responsibility

of the trier of fac t f

airly to r esolve conflicts in the testimony , to weig h the evidenc e, and to draw rea sonable infere nces from basic fac ts to u l t i mate fac ts.” Jack son , 443 U.S. at 319; Gear , 340 S.W .3d at 746; Brooks , 323 S.W .3d at 899.

An infere nce is a conclusion rea ched by c o n s id e r in g o th e r f a c ts and deducing a logic al conseque nce from them. Hooper v. State , 214 S.W .3d 9, 16 (Tex. Crim. App. 2007). A revie wing
court determ i nes whether the nece ssary infere nces are rea sonable based upon the combined and cumulative forc e of all the evidenc e when viewed in the light most favor able to the verdic t. Clayton

v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper , 214 S.W .3d at 16-17). When the rec ord supports conflicting infere nces, a revie wing court must presume that t h e fa ct fi nder

re solved the conflicts in favor of the prosec ution and defe r to that deter mination. See Jack

son , 443 U.S. at 326. Eac h fac t need not point direc tly and independe ntly to the appellant’ s g uilt, as long
as t he cumulative eff

ect o f all incriminating fac ts is sufficie nt to support the conviction. Hooper , 24214 S.W .3d at 13. C ircumstantial evidence is as probative as direc t evidence in establishing g uilt

of an a ctor, a

nd circ umstantial evidence alone c an be suf ficient to establish g uilt. Id

. Sufficie n cy o f the evidenc e should be measure d by the elements of the offe nse as define d by the hy

pothetically corr ect jury char g e for the case . Johnson v. State , 364 S.W .3d 292, 294 (Tex. Crim. App. 2012); Malik v. State , 953 S.W .2d 234, 2 4 0 (Tex. Crim. App. 1997). Such a char g e acc urate ly sets out the law, is authorized by the indictment, does not unnece ssarily incre ase the State’s burden of proof or unnece ssarily restric t the State’s theories of liability , and adequately descr ibes the particula

r offe nse for which the defe ndant was tried. Johnson , 364 S.W .3d at 294; Malik , 953 S.W .2d at 240.

As char g ed in this case , a person commits the offe nse of murder if she intentionally

or knowing ly cause s the death of an individual. Tex. Penal Code Ann. § 19.02(b)( 1) (West 2011). Murder is a capital offe nse if it is committed for remune ration or the promise of remune ration. Id

. § 19.03(a) (3). Remunera tion occur s when an “actor kills a victim in order to rec eive a benef it

or financ ial settlement paid upon the d eath of the victim, such as proce eds of insurance and retire ment benef

its.” Bee ts v. Stat e , 7 6 7 S.W .2d 711, 737 (Tex. Crim. App. 1988) (op. on reh’ g ). R em u n er ati on “does not require the narr ow construction requiring pay ment by a principal to an ag ent.” Rice v. State , 805 S.W .2d 4 3 2 , 434 (Tex. Crim. App. 1991) (en banc)

. Rather, the term

remune ration as used in section 19.03(a) (3) “enc ompasses a broad rang e of situatio n s , including compensa tion for loss or suffe ring and the idea of a rew ard g iven or rec eived beca use of some act.” Bee ts , 767 S.W .2d at 734; Johnson v. S t a t e , 208 S.W .3d 478, 495 (Tex. App.—Austin 2006, p et

. re f’ d ). “The focus is on the actor ’s intent or state of mind: did she kill in the expectation o f

rec eiving some financ ial benef it or compensation? ” Johnson , 208 S.W .3d at 495.

25Br igg s was cha rg ed under

the law of parties. A pe rson is criminally responsible a s

a party to an o ffense if the offe nse is committed by her own conduct, by the conduct of another for whic h she is criminally responsible, or by

both. Tex. P enal Code A nn. § 7.01(a) (West 2011). A person is criminally responsible for an offe nse committed by the conduct of another if, acting with intent to promote or assist the commission of the offe nse, she solicits, enc ourag es, direc ts, a ids, or attempts to aid the other person to commit the offe nse. Id

. § 7.02(a) (2) (West 2011). Participation

as a party may be shown by events occur ring befor e, during , and afte r the commission of the offe nse, and may be demonstrated by actions showing an understanding and common design t o do the prohibited act. Salinas v. Stat e , 163 S.W .3d 734, 739-40 (Te x . Crim. App. 2005); Nzewi v. Stat e , 359 S.W .3d 829, 836 (Tex. App.—Houston [14t h Dist.] 2012, pet. re f’d)

.

I n this case, ther e wa s evidenc e tending to show the following :

• Fr om the moment that Br igg s first met Sulli van online, she was dece ptive about her identity

.

• W h ile Sulli van and Br igg s wer e dating , Br igg s formed a close rela tionship with Valdez.

• Br igg s was awa

re of Sulli van’s video will leaving his proper ty to he r and of Sulli van’s life -insuranc e policy naming her a

benef iciary

.

• Valdez told others that he was dating and planning to marry a woman named “Airia nna Be nitez,” who, the jury could have rea sonably inferr ed from phone rec ords and other

evidenc e, wa s a fictional a lias of B rig g s.

• The re lationship be tween Sulli van and Br igg s deter iorated around the same time that the friendship be tween Sullivan and Va ldez deteriora ted.

• I n the months leading up to the murder, V aldez was a “fa irly reg ular g uest” at the Austin apa

rtment wher e B rig g s was stay ing.

• Two months prior t o t h e murder, Valdez g ot into a heate d arg ument with Sulli van at a bar in Austin and, afte r the arg ument was over, his friends took him to another bar in Austin wher e he was supposed to meet up with Br igg s. 26• The Thursday befor e the wee kend in which Sulli van was killed, Valdez met with B rig g s in Austin to give her a key to what co-w orker s descr ibed as the apar tment of Br igg s’s boy friend in Killeen. The jury could have rea sonably inferr ed from this and other evidenc e that the key belong ed t o S u llivan’s apar tment.

• The evening of Sulli van’s murder, Valdez and Br igg s wer e toge ther at her Austin apar

tment. W h en a friend asked Valdez if he wanted to g o out that night, B rig g s told the friend that Va ldez had “something to do.”

• The night of the murder and the morning afte r, Br igg s exchang ed numerous phone ca lls and tex t messag es with Valde z and Moesch.

• The day and night afte r the murder, Br igg s social i z ed with Valdez and Moesch.

• On t h e d ay when Br igg s first talked to the police following Sulli van’s murder, she exchang ed numer ous tex t messag es with Valde z and Moesch.

• The day afte r Sulli van’s body was discovere d, Br igg s applied to rec eive the benef its under Sullivan’s insurance policy

.

• When Sulli van’s siblings visited Killeen following Sulli van’s m u rder , acc ording to their t estimony , Br igg s display ed only a brief amount of grie f, was reluc tant to g ive them Sulli van’s persona l belong ings, told lies about the status of her r elationship with Sul livan, and “f lirted” with Va ldez.

• During Sulli van’s funer al, Br igg s told others that she was Sulli van’s fianc ée. This, acc ording to Sull ivan’s sister, wa s another lie.

• Br igg s lied to Sullivan’s mother about the date on which Sullivan ma de the video will.

• Br igg s used Sulli van’s bank acc ount to purcha se airline tickets and lied to the police about doing so.

• Ba

nk statements reveale d that Valdez transf err ed money

from his che cking acc ounts into Brig g s’s che cking and saving s acc ounts.

• Shortly befor e Valdez was arre sted, Br igg s withdrew $4,000 cash from her chec king acc ount. After Valdez was arr ested, over $4,000 in cash was found in a bank envelope inside a jacke t all ege d l y b elonging to Valdez. Phone rec ords tend to show that Br igg s was i n the vicinity of the motel wher e Valdez was stay

ing a nd the ca sh was found.

27• Shortly afte r Valdez was arr ested for the murder of the man Br igg s purported to love, Br igg s visited the alleg ed murde rer in jail.

• Valdez m ad e an d rec eived numerous phone calls while in jail to and from phone numbers that we re associated with either Br igg s or her alias “Airia nna.”

• Br igg s deposited hundreds of dollars into Val dez’s inmate acc ount while Valdez was at the jail.

Br igg s asser

ts that the above evidenc e establish es , at most, that she had a bad rela tionship with Sulli van, that she had a secret romanti c rela tionship with Valdez, t hat s he was a liar, and that she used Sulli van’s money and the proce eds from the life insurance policy for her own persona l purposes, which included helping Valdez. Acc ording to Br igg s, b as ed o n this evidenc e, the jury could do nothing mor e than spe culate tha t she was a

party to the murder. We disag ree . Br igg s views the evidenc e in the light most favor able to her defe nsive theory at trial. Howeve r, we are to view the evidenc e in the light most favor able to the verdic t and resolve any conflicting infere nces in favor of t he prosecution. Viewe d in that light, the combined and cumulative forc e of all the incriminating circ umstances supports a finding by the jury that Br igg s

was a party to the murder. The jury could have rea sonably found that Br igg s committed acts befor e, during, and afte r the commission of the offe nse that—when viewed in their totality rathe r than in isolation—soli cited, encour ag ed, direc ted, aided, or attempted to aid Valdez and Moesch in killing Sulli van. The jury could have rea sonably inferr ed that these acts included: g iving Valdez acc ess to Sulli van’s apar

tment prior to the murder; telling Valdez’s friend that Valdez had “something to do”

on the night of the murder; calling and text ing both V aldez and Moesch on the night of the murder and the morning afte r the murder; socializing with V aldez and Moesch the wee kend of the murder

so as, t he jury could have rea sonably inferr ed, to g ive t hem an alibi ; providing false statements to

28Sulli van’s rela tives and the police following the murder so as, the jury could have rea sonably

inferr ed, to dece ive them about her involvement in the murder; rema ining in contac t with Valdez and Moesch following the murder, including visiti ng Valdez in jail; exchang ing signific ant amounts of money with Valdez; cre ating a false identity , “Airia nna Be nitez,” so as to conce al t h e ex t en t of her rela tionship with Valdez; an d p u rc h as i n g and using multipl e cell phones so as to conce al the
extent of her involvement in the crime and her communication wit h the ki lle rs. Viewing this and other evidence in its totality and in the proper l ight, we co n cl u d e that the evidence is sufficie nt to support the jury ’s finding that Br igg s was cr iminally responsible a s a par

ty to the offe nse. The e vidence is likew ise sufficie nt to prove that Br igg s committed the offe nse “f or

re m u nera tion.” Mike Peterson and Ker ri Kea ne both testified about a conversation they had wit h Br igg s i n which she had told them that she was a benef iciary on Sulli van’s life-insura nce policy and would rec eive $100,000 upon Sulli van’s death. Kea ne testifi ed that this conver sation

occur red befor e Sulli van was murdere d. Also, the evidenc e tended to show that Br igg s was awa re of Sullivan’s video will in which he had le ft his property to her upon his death. Kathy Camat, the

cu s t o d i an of records for t he st ore that proce ssed t he video, testified t hat Brig g s had subm itted th e video to the store for conver sion to DVD format in J uly 2007. The evidenc e also tended to show that the murder occur

red approximately one wee k befor e Sulli van was sche duled to make chang es to his will and life-insura

nce policy

. Moreove r, Sulli van’s brother Be n testified that Br igg s was very reluc tant to part with Sulli van’s persona l proper ty fol l owing his death, including Sulli van’s car . Other evidenc e tended to show that Br igg s had withdrawn money from Sulli van’s chec king acc ount following his death. Additionally , the evidenc e tended to show that Br igg s had applied for benef its under the life insurance policy the day afte r Sulli van’s body was discovere d and beg an writing larg e chec ks on the acc ount in the amount of $9,500, pay able to herse lf, approximately two wee ks later. 29The evidence also tended to show that prior to rec eiving the benefits under the policy , Br igg s had

a neg ative balanc e in her chec king acc ount and had worke d as a file cler k for the I RS. Ba sed on the combined and cumulative forc e of this and other evidenc e, the jury could have rea sonably inferr ed that Br igg s was in need of money , that she knew that she would rec eive m o n ey an d as sets upon Sulli van’s death, and that she had arr ang ed for him to be killed in the expectation that once Sulli van

was dead, she would rec eive the proce eds of the insurance policy and the proper ty that had been left to her in Sullivan’s will.

We overrule Br igg s’s first and se cond issues.

Motion to seve r

I n her third issue, Br igg s asser ts that the district court abused its discretion in deny ing her motion to sever her trial from those of her co-de fenda nts, Valdez an d Moesch. Severa nce is g overne d by article 36.09 of the code of criminal proc ed u re , wh ich provides that two or more defe ndants may , at the discretion of the court, be tried jointly for any offe nse g rowing o u t o f the

same transac tion un l es s , upon timely motion to sever , it is shown either that there is a previous admissible conviction ag ainst one defe ndant or that a joint trial wo u ld be prejudicia l to any defe ndant. Tex. Code Cr i m . P ro c. Ann. art. 36.09 (West 2007). Br igg s arg ues only the second g round, conte nding tha t she was pr ejudiced by a joint trial with Valdez and Moesc h. I n draf ting article 36.09, “the L e g islature intended for defe ndants acc used of the same offe nse to be tried tog ether most of the time.” Qualley v . State , 206 S.W .3d 624, 631 (Tex. Crim. App. 2006). “‘Pre

judice,’ then, cannot mean the ty pes of circ umstances or disag ree ments betwee n parties that would normally be expected to pop up during any trial containing multipl e defe ndants.’” Id

. Rather, “[t] o establish prejudice , the defe ndant must show a serious risk that a specific trial rig ht

30would be compromised by a joint tr i al , o r that a joint trial would preve nt the jury from making a

reliable judgme nt about g uilt or innocenc e, and that the problem could not be adequately addre ssed by lesser curative measure s, such as a limit ing instruction.” Qualley v. State , 206 S.W .3d 624, 636 (Tex. Crim. App. 2006). I t is not enoug h for the defe nses of co-de fenda nts to be mutually exclusive
or anta g onistic. See id

.

Br igg s claims that she was prejudice d by J acobs’ s testimony reg ardi n g t he incriminati n g h ea rs ay statements alleg edly made to him by Valdez and Moesch, which, Br igg s claims, wer e admissible ag ainst Valdez and Moesch as admissions by party opponents but inadmissible ag ainst Br igg s. Howeve r, the vast majority of statements made by Valdez and Moesch
to J acobs did not ten d to implicate Br igg s in the offe nse. I n fac t, J acobs testified that he never 1 6 hear d any one associate Br igg s with the plot to kill Sulli van. Moreove r, to the extent that statements by Valdez and Moesch could be perc eived as prejudicia l ag ainst Br igg s, such prejudice could be adequately addre ssed by les s er curative measure s, such as a li miting i nstruction. See id .; see also Zafir o v. United States , 506 U.S. 534, 539-41 (1993) (explaining that “eve n if there wer e some risk of prejudice ” in a joint trial, “less drastic measure s, such as limit ing instructions, often will suffice
to cure any

risk of pre

judice”)

. Her e, the jury was instructed that any statements made by Moesch

co u l d n o t be considere d as evidenc e ag ainst Br igg s or used in any way to connec t Br igg s t o t h e offe nse. Although no such i nstruction was provided reg arding statements made by Valdez, the 1 7 district court would not have abused its discretion i n fi n d i n g t h at Br igg s and Valdez wer e

One ex ception was Valdez’s st atement that he had been paid $100,000 to ki l l S u l l ivan. 1 6 This statement had a tendency t o i m p l i ca t e Br igg s in the offe nse beca use it corr esponded to the amount of money

that she wa s scheduled to r ece ive under Sulli van’s life insurance policy

. Br igg s did not object to the absenc e of suc h an instruction in the cha rg e. 1 7 31conspirator s to the m u rd er at the time the statements wer e made and thus admitting Valdez’s

statements ag ainst Br igg s u n d er t h e co-c onspirator exception to the hear say rule. See Tex. R. Evid. 801(e) (2)( E); see also Meador v. State , 812 S.W .2d 330, 332 (Tex. Crim. App. 1991) (“[T]he

co-c onspirator e x ception to t he hearsay rule is [] not limit ed to prosec utions for conspira cy ; it is a rule of evidenc e applicable to an y offe nse.”)

. Acc ording ly , Valdez’s statements to J acobs would have be en admissible ag ainst Br igg s even if she had bee n tried sepa rate ly

. On this rec ord, Br igg s has failed to show “a serious risk that a specific tr i al rig ht

wou l d b e co m p rom ised by a joint trial, or that a joint trial would preve nt the jury from making a reliable j udg ment about guilt or innocenc e.” See Q ualley , 206 S.W .3d at 636. According ly , we cannot conclude that the district court abused its discretion in deny ing Br igg s’s motion to sever . We

overr ule B rig g s’s third issue.

CONCLUSION We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: Aug ust 24, 2012 Do Not Publish

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