## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

N O

. P D - 0 9 4 3 - 1 1

M E G A N W I N F R E Y , A
. K
. A
. M E G A N W I N F R E Y H A M M O N D , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E N I N T H C O U R T O F A P P E A L S

S A N J A C I N T O C O U N T Y

J O H N S O N , J
. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h P R IC E , W O M A C K , K E A S L E R , H E R V E Y , C O C H R A N , a n d A LC A LÁ , J J
. , j o i n e d
. K E L L E R , P
. J
. , f i l e d a d i s s e n t i n g o p i n i o n . M E Y E R S , J
. , d i s s e n t e d
.
O P I N I O N

I n Au gu s t 2 0 04, Murra

y Bur r, a man who worke d at the local high school that appellant attended, was found dead in his home wit h numerous st ab wounds and mul tiple sharp- and blunt

forc e injuries. Appellant was six teen y ear s old in 2004. I n 2007, afte r an investiga tion that included dog -sce nt lineups, appellant and her fathe r and brother wer e taken into custody and char g ed with the
murder. Her indictment contained two counts: capital murder during the course o f ro bbery and conspirac y to commit capital murder. Her fathe r and brother wer e named as co-c onspirators in the2

conspirac y count. A jury convicted appellant of both counts. The trial court sentenc ed appellant to
life imprisonment for the capital- murder count an d forty -five y ear s’ imprisonment for the conspirac y

count. The court of appea ls aff irmed the convictions, with one justice dissenting. Megan W infrey

v. State , 338 S.W .3d 687, 689 (Tex. App.–B eaumont 2011). We reve rse the judgme nt of the court 1 of appe als and re nder a cquittals on both counts.

F acts
I n Aug ust 2004, Murra

y Way ne Bur r was found murdere d in his home. Evidenc e at t ri al
indicated that the victim had been stabbed or cut twenty -five times in the head and neck are a and
three t i m es i n t h e torso and had also rec eived mult iple blunt-forc e trauma that produce d a broken rig ht jaw and e y e orbit. No other injuries wer e noted by

the assistant medica l examiner.
There was no evidenc e of forc ed entry into the victim’s home . A blood trail indicated tha t
the victim had been drag g ed from his living room into his bedroom, wher e his body was found, but
there was no indication of a violent strug g le. Shortly afte r the murder, family members repor ted that
the only item that they thought was missing from the victim’s home was a Bible. His wallet was in
the house, and ex cept for the blood and the body , nothing in the home appea red to be disturbed. Some time later, a r elative sa id that he thoug ht that two guns w ere missing.

I nvestig ators collecte d hair, blood and DNA samples, a bloody footprint, and fing erpr ints
from various place s in the house and a DNA swab from women’s underw ear t h at wa s found in

Bur r’s bedroom. They also took a casting of a footprint in the front y ard. H air samples r ecove red

A p p e l l a n t ’ s f

a t h e r , a l s o a c c u s e d o f t h i s c a p i t a l m u r d e r , w a s c o n v i c t e d o f t h e l e s s e r - i n c l u d e d o f f e n s e o f 1

m u r d e r
. H i s c o n v i c t i o n w a s a f f i r m e d b y t h e c o u r t o f a p p e a l s b u t , o n d i s c r e t i o n a r y r e v i e w , w e r e v e r s e d h i s c o n v i c t i o n a n d e n t e r e d a j u d g m e n t o f a c q u i t t a l

. I d

. a t 8 8 5

. A j u r y a c q u i t t e d a p p e l l a n t ’ s b r o t h e r o f t h i s s a m e c a p i t a l m u r d e r a n d
c o n s p i r a c y
. R i c h a r d W i n f r e y v

. S t a t e , 3 2 3 S

. W

. 3 d 8 7 5 , 8 7 6 , n
. 1 ( T e x
. C r i m
. A p p
. 2 0 1 0 )

.3

from Bur r’s body contained a partial fema le DNA profile. The DNA pr ofiles that wer e develope d
from the collecte d items either matched the victim or did not match any of at least nine individuals
who wer e questioned in reg ard to t h e m urder

. No phy sical evidenc e connec ted appellant or her family to the s cene , nor we re she or any member of her family connec ted t o the property assumed to be missing fr om Burr ’s home. Megan W infrey v. State , 338 S.W .3d at 689. The only evidenc e
that purported to direc tly connec t appellant to the crime scene was a “scen t lineup” conducte d by
Keith Pikett.
At appellant’ s trial, befor e Deputy Pikett testified, Rang er Grove r Huff testified that he had
witnessed the scent lineup for appellant’ s scent samples. He noted that the g rass was too high to see
the cans on the video of the lineup and that Deputy Pikett “is having me reposition the cans. She [t he bloodhound] doesn’t rea ct. The wind had swit ched or something. You cou l d tell by the way the

g rass wa s.” Deputy Pikett testified that, at the 2007 dog -sce nt lineups, the two dog s b o t h al er t ed on appellant’ s scent sample. Pikett indicate d that the dog aler ts refle cted that the dog s alerte d to her 2

scent being on Bur

r’s clothes, indicating that appellant had had co n t ac t wi th Bur r’s clothing. 3

I n Aug ust of 2004, appellant voluntarily consente d to an interview with a Texas Rang er who was investigating this murder and vol untarily provided buccal swa bs, scent pads, and finge rprints
to him. I n Aug ust of 2006, pursuant to a c ourt order , a deputy sheriff attempted to obta in a pubicA n “ a l e r t ” o c c u r s w h e n t h e d o g m a t c h e s a s c e n t c o l l e c t e d f r o m t h e v i c t i m t o t h e s u s p e c t ’ s s c e n t p a d

. 2 R i c h a r d W i n

f r e y v

. S t a t e , 3 2 3 S

. W

. 3 d a t 8 7 7 , n
. 3

. I n t h i s c a s e , D e p u t y P i k e t t i n d i c a t e d t h a t t h e d o g s a l e r t i n d i f f e r e n t
m a n n e r s
. E

. g
. , “ J a m e s B o n d i s g o i n g t o t u r n 9 0 d e g r e e s i f h e f i n d s t h e r i g h t c a n [ , ] ” w h i l e “ Q u i n c y i s g o i n g t o t u r n s i d e w a y s a n d b a r k , a n d C l u e i s g o i n g t o t u r n a n d j u m p o n [ P i k e t t ]

. ” V R

. R

. 7 4

. B u t u l t i m a t e l y P i k e t t m a k e s t h e d e c i s i o n a s t o w h e t h e r a d o g h a s a l e r t e d

. V R

. R

. 7 5

- 7 6

.

W e n o t e t h a t t h e t i m e a t w h i c h a s c e n t w a s l e f t o n a n i t e m c a n n o t b e d e t e r m i n e d

. 34

hair sample from appellant, but it was deter mined that she had shaved that morning ; the deputy did
obtain such a sample thirty day s later. The deputy testified that appellant voluntarily consente d when
the sec ond reque st was made. Appellant’s ex -boy frie n d , J ason King, who had dated her for si x months afte r t he murder,
testified that appellant had rec eived information that a sear ch war rant was g oing to be conducte d for
her pubic hair and that she then shaved herse lf. King also testified that, afte r the shaving incident,
when appellant rec eived a phone call informing her that her brother had been arr ested, she went to

see her ex-husband, Hammond, and spoke with him about having attended a conce rt toge ther around
the time of the murder. “King understood the conver sation as an attem p t t o es t ablish an alibi.” 4 Megan W infrey , 338 S.W .3d at 695. King also rela ted that, while they wer e “par ty ing and drinking ,” appellant ha d told him that g oing into B urr’ s home “wa s an easy lick,” which he took to mean she would g et money

. Kar en Robertson, a teac her or teac her’ s assistant from appellant’ s high school, testified that, 5

in the summer of 2004, she saw appellant approa ch Bur r at school and ask him, “When are y ou g oing

to take me out and spend that mon ey t hat y ou have? We know y ou have that money hid [si c] at
home.” I n the state’s rebuttal, another teac her testified to overhe aring appellant ref er to Bur r and say , “Somebody should beat the shit out of him,” althoug h that teac her acknow ledg ed that appellant then apolog ized to the teac her a nd said she did not mean to have said that aloud and that she lived near
Bur r and “wa s just tired of all his cats.” Other evidence showed, and appella n t co n ceded, t hat on

I t w a s e s t a b l i s h e d a t t r i a l t h a t t h e c o n c e r t t h a t a p p e l l a n t a n d H a m m o n d a t t e n d e d w a s o n t h e d a y t h e 4

v i c t i m ’ s b o d y w a s d i s c o v e r e d

. A p p e l l a n t d i d n o t r a i s e t h e c o n c e r t a s a n a l i b i

.

A t t h e t i m e o f t r i a l , R o b e r t s o n w a s e m p l o y e d a s t h e C r i m e V i c t i m A s s i s t a n t C o o r d i n a t o r f o r t h e l o c a l 5 d i s t r i c t a t t o r n e y ’ s o f

f i c e
.5

occa sion she and her brother visited Bur r at his home, which was near their residenc e, on their way

to churc h. She also t es t ified that the Winfrey s sometimes asked the victim to g o to churc h with them, but that he would dec line.
On direc t a

ppeal, appellant claimed that the evidenc e was leg ally and fa ctually insufficient

to e stablish that she had committed the ca pital murder or

the conspira cy to c ommit ca pital mur der
and alterna tively , that, based upon our holding in Richard W infrey v. State , 323 S.W .3d 875, 876-78 (Tex. Crim. App. 2010), the evidenc e was insufficient to establish that she had committed those two 6
offe nses.
I n revie wing the sufficie ncy of the evidenc e to support the convictions, the court of appea ls

s et aside the dog -sce nt lineup evidenc e beca use such evidenc e was insufficient to establi s h appellant’ s g uilt bey ond a rea sonable doubt. Megan W infrey , 338 S.W .3d at 694. After revie wing
all of the other evidenc e, including evidenc e at the crime scene , appellant’ s statements and conduct,
and an informant-inmate ’s testimony about appellant’ s fathe r’s purported s t at em ents while
incar cer ated near ly tw o y ear s afte r the murder, the court of appea ls deter mined that the evidenc e supports the jury ’s decision and thus aff irmed the judgme nt. Id., passim

. The court of appea ls also
held that, with reg ard to appellant’ s conspirac y convict ion, the fac t that appellant’ s alleg ed coconspirator s (her fathe r and her brother) wer e either acquitted of, or not char g ed with, conspirac y did
not bar he r fr om being convicted of the conspira cy
. Id . at 698-99. Capital Murder
We g rante d revie w of appellant’ s two g rounds. Her first g round challeng es the capitalT h e e v i d e n c e w a s i n s u f f i c i e n t t o s u p p o r t t h e m u r d e r c o n v i c t i o n o f a p p e l l a n t ’ s f a t h e r f o r k i l l i n g t h e s a m e 6

n a m e d v i c t i m t h a t a p p e l l a n t w a s c o n v i c t e d o f k i l l i n g a n d c o n s p i r i n g t o k i l l

. I d

.6

murder conviction and asser ts that the court of appea ls’s holding that the evidenc e was l ega lly
sufficie nt to sustain that conviction conflicts with this Court’s decision in Richard W infrey v. State , 323 S.W .3d 875, “with respe ct to the same evidenc e and with this Court’s decision in Brooks v.
State , [323 S.W .3d 893 (Tex. Crim. App. 2010)], which require s rig orous and proper application of
Jack son v. Virginia ’s exacting standards.” Her second g round challeng es the conspirac y conviction
and questions “the court of appea ls’[s] holding, contra ry to the dictates of §15.02(c) (2), Texas Penal Code, that a conviction for conspirac y can be sustained even though the only other conspirator s have
been a cquitted.” Appellant asse rts that, unless the ca nine sce nt lineup is trea ted as primar y evidenc e, “the re
is no evidenc e which implicates appellant in this murder either direc tly or by application of the law
of parties.” She arg ues that the majority opinion of the court of appea ls conflicts with our decision
in Richard W

infrey , 323 S.W .3d 875, supra
. Appellant contends that “[i] t is inconce ivable that the jury did not convict on the basis of the scent lineups[,] ” reg ardle ss of the court of appea ls’s attempt

to analy ze the evidenc e wholly without reg ard to the dog -sce nt lineup. She arg ues that the dog -sce nt lineup evidenc e “is not suffic iently reliable to be ac corde d any weig ht, even a

supporting r ole.”

“ [W ]hen conducting a leg al sufficie ncy revie w, this Court considers all e v id e n c e in th e r e c o r d
of the trial, whether it was admissible or inadmissible.” Dewberry v. State , 4 S.W .3d 735, 740 (Tex.
Crim. App. 1999). See also Conner v. State , 67 S.W .3d 192, 197 (Tex. Crim. App. 2001) (“When conducting a sufficie ncy revie w, we consider all the evidenc e admi t t ed , whether proper or improper.” ); Powell v. State , 194 S.W .3d 503, 507 (Tex. Crim. App. 2006) (“[A] revie wing court
is permitted t o consider all evidence in the t rial-c ourt rec ord, whether admissi ble or inadmissible,
when making a leg al-suff

iciency deter

mination.”). Thus, reg ardle ss of whether the dog -sce nt lineup7

evidenc e was proper ly admitted, such evidenc e is proper ly considere d in a revie w of the sufficie ncy
of the e vidence

. The court of appea ls specific ally stated that “the dog -sce nt lineup evidenc e is insufficient to
establish [appellant]’s g uilt bey ond a rea sonable doubt, and we set it aside from our sufficie ncy
revie w” and thus did not consider the dog -sce nt lineup evidenc e in its revie w of the sufficie ncy of

7
the evidenc e. I n its brief on discretionar y revie w, the state does not asser t that the court of appea ls

err ed in doing s o
. W e d o o b serve that the dog -sce nt lineup evidenc e, with the dog aler ting to appellant’ s scent on Bur

r’s clo t hing, simply indicates that appellant had had some contac t with

Bur r’s clothing, althoug h the timing, circ umstances, and deg ree of th a t c o n ta c t cannot be deter

mined.

We apply Jack

son v. Virgi n i a , 4 4 3 U. S

. 307 (1979), as the standard for revie wing the

s u ff i cienc y of evidenc e. “I n deter mining whether the evidenc e is leg ally sufficie nt to su p p o rt a

co n v i ction, a revie wing court must consider all of the evidenc e in the light most favor able t o t h e
verdic t and deter

mine wh et her, 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 bey ond a rea sonable doubt.”
Gear v. State , 340 S.W .3d 743, 746 (Tex. Crim. App. 2011), citing Ja ck son v. Virgi nia , 443 U.S.

at 318-19. I n Brooks , supra , we also deter mined that, when viewing the evidenc e in the light most
favor able to the verdic t, “the revie wing court is require d to defe r to the jury ’s cre dibilit y and weig ht
deter minations because the jury is the s ole judg e of the witnesses’ c redibility and the we ight to be

g iven their testimony .” Brooks , 323 S.W .3d at 899, citing Jack son , supra at 319 and 326. The court
of appea ls pr operly noted that standard a nd that “[i] t is unnecessa

ry for e very fac t to point dire ctly
and independe ntly to the g uilt of the acc used; it is enoug h if the finding of g uilt is war rante d by the

M e g a n W i n

f r e y , 3 3 8 S

. W

. 3 d a t 6 9 4

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cumulativ e fo rc e o f all the incriminating evidenc e.” Megan W infrey , 338 S.W .3d at 694, citing
Johnson v. State , 871 S.W .2d 183, 186 (Tex. Crim. App. 1993).

I n Richard W

in fr e y , s u p r a , we discussed evidenc e that involves use of canine s to differ entiate

among human scents in order to identify a speci fi c person in a lineup, i.e. human-sce nt
discrimination. We ultimately held that, “whe n inculpatory evidenc e is obta ined from a dog -sce nt lineup, its role in the courtroom is mere ly supportive.” Id. at 884. We co n cl u ded that dog -sce nt lineups, “whe n used alone or as primary evidenc e, are leg ally insufficient to support a conviction.”
Id

. W h ile a dog -sce nt lineup might have raised a “strong suspicion” of appellant’ s fathe r’s g ui l t , standing alone it was insufficient to establish his g uilt bey ond a rea s o n able doubt. Id

. at 885. Appellant arg ues that this dog -sce nt lineup evidenc e is even less incriminatory of her, while the state points to multipl e evidentiar y fac ts which it insists are sufficie ntly incriminatory , above and bey ond
the dog -sce nt lineup evidenc e. Thus we must revie w these additional evidentiar y fac ts to deter

mine
whether they are sufficie nt to prove appe llant’s g uilt. Appellant asser

ts that the principle evidenc e cited by the court of appea ls–her ex-boy friend’ s testimony that she called Bur r an “ea sy lick,” and the jailhouse informant’s testimony that her fathe r
told him that one of his kids was supposed to let him into Bur r’s house–does not implicate her in this crime, nor does it place her at the scene at or near the time of the murder: She contends that, when “[v] iewed outside the tainted prism of the d o g-s cent evidenc e, these two piece s of weak
circumstantial evidenc e do not support a rea sonable infere nce that appellant was involved in the murder, knowledg eable about the murder, or even prese nt at the time of the crime.” Appellant also

asser ts that there was no testimony prese nted at trial that implicated her in the murder, there was no phy sical evidenc e that connec ted her to the crime scene or Bur r, bu t there was phy sical evidenc e,9

including DNA, hair, and a footprint in Bur r’s blood, that did not match her or her family members
and for which the source could not be identified. She sug g ests that near ly all of t he evidence w as
of the sort that she w ould have introduc ed, had the state not done so. Appellant acknow ledg es t es t imony that one of her teac hers hear d her say to Bur r that she
knew he had money hidden at his home, but she not es t hat t here was no evidenc e that money was
taken from Bur

r’s home and points out that Bur r’s wallet was still at the residenc e, atop the washing
machine. She also discounts the state’s eff orts t o i m ply that there was money in Bur r’s missing
Bible. Appellant also que stions the incriminating nature and sufficie ncy of testimony that her e x boy friend had hear d her discuss with her ex-husband whether they wer e at a conce rt the night of the
murder. She asser

ts that such a discussion establishes nothing more than investiga tion of a possible
al i b i, for which any prudent person, upon lear ning of the possibili ty of being criminally ch ar ged , would sear ch his memory , and that of close friends and rela tives, in order to deter

mine his
wher eabouts a t the time a crime occur red and discover any witnesses who could support an a libi. Echoing the court of appea ls’s dissenting opinion, she sug g ests that “t h i s wa s n ot in any sense
evidenc e of the cre ation of a false alibi.” Appellant’ s brief a t 38. Appellant questions the nature of the ex-boy friend’ s testimony that she shaved her pubic are a
afte r having lear

ned that a sear ch war

rant had been issued to obtain a sample of her pubic hair. She points out that the boy friend never cla i m ed t h at she had not shaved that are a previously , and the undisputed fa ct s s how that she cooper ated in the investiga tion “by voluntarily submitt ing to an interview, and by providing scent exemplars, bucca l swabs, and fing erp ri n t s [ , ] ” and that she subsequently provided the pubic-ha ir sample. Appellant’s brief at 38. Appellant also sug g ests that,10

in light of her unchalleng ed testimony that she ordinarily shaved her pubic are a, her ultimate provision of the pubic-ha ir sample, and her ear lier full cooper ation in providing other samples that
would have been used to deter mine whether any of the fore nsic evidenc e from t h e cr i m e scene

connec ted her to it–the same purpose as t h e pubic-ha ir sample–any specula tion or conjec ture predic ated upon her ex-boy friend’ s testimony about the timing of the shaving “see ms faint indeed.” Appellant challeng es the testimony of another of her teac hers that she clenc hed her fist and
said that somebody

should “bea t the shit out of” Bur r, purpor tedly beca use she wa s mad about his

cats. She notes evidenc e indicating that she subsequently had fr i en d ly dealing s with Bur r and

sug g ests that, without context or timing, the incident descr ibed by this teac her war rants littl e weig ht,
even in a n analy sis that views the evidenc e in the lig ht most favorable to the verdic t. Appellant asser

ts that none of the c ircumstantial evidenc e, sepa rate ly or cumulatively , rise

to a level bey ond mere specula tion and that “a criminal conviction may not proper ly rest upon specula tion and conjec tur e.” She arg ues that “[t] he dog -sce nt lineups–repr esente d to the jury as
scientifica lly authentic and essentially infallible–explain the ve r d ic ts h e r e ” a n d s u g g e sts that “[t] hose
verdic ts do not comport with due proce ss and should be set aside .”
The state acknow ledg es that “re view of t he evidenc e in this case beg ins with a strong suspicion of [her] g uilt.” State’s bri ef at 14. Yet a strong suspicion of g uilt does not equate with leg ally sufficie nt evidenc e of g uilt. I n discussing our opinion in the appea l o f t h e conviction of appellant’ s fathe r, the state focuse s upon whether the dog -sce nt evidenc e is corr oborate d, insists that
there is a mple corr oboration, and notes six items of corr oborating evidenc e that it a rg ues “conne ct [appellant] direc tly to this brutal murder.” Yet in Richard W infrey , supra , while acknow ledg ing that we, like the Supre me Court of W ashing ton, “believe that ‘[t] he dange rs i nhere nt in the use of dog11

trac king evidenc e can only be alleviated by the prese nce of corr oborating ev i d en ce ,’” we simply 8
held that “whe n that inculpatory evidenc e is obtained from a dog -sce nt lineup, its role in the

courtroom i s m er el y supportive.” Richard W infrey v. State , 323 S.W .3d at 884 (quoting State v.
Loucks , 98 W ash.2d 563, 567, 656 P.2d 480, 482 (1983))

. We specific ally held “sce ntdiscrimination lineups

. . . to be separ ate and distinct from dog -sce nt trac king evidenc e.” Id

. at 883.
We di d not say that such dog -sce nt lineup evidenc e must be corr oborate d to be leg ally sufficie nt
evidenc e of g uilt, but rathe r that such evidenc e “is mere ly supportive” of the re mainder of the
evidenc e. As mere ly supportive eviden ce , dog -sce nt lineup evidenc e cannot itself constitute
sufficie nt e vidence of g uilt. The state ac knowledg es that the “issue of the admissibili ty of the dog

scent evidenc e was settled in her f ather ’s ca se and ne ed not be r ear g ued her e.” State’ s brief a t 28.
The state a lso recog nizes that “[t ]he same dog scent e vidence is present in this case .” State’s br ief

at 14. Appella n t ac k n o wl edg es that “[i] n this case , no objection was made to the dog scent
evidenc e.” A

ppellant’s brie f at 22.
The state compar es its sug g estion of evidenc e corr oborating the dog -sce nt evidenc e with the
statutory require ment of Texas Code of Criminal Procedur e art. 38.14 that “[a] conviction may not
be had upon the testimony of an acc omplice unles s co rr oborate d by other evidenc e tending to

connec t the defe ndant with the offe nse committed.” “This rule is a ‘statutorily imposed revie w and
is not derive d from fede ral or state constitutional principles that define the leg al and fac tual

s u ff i cienc y standards.’ ” Malone v. State , 253 S.W .3d 253, 257 (Tex. Crim. App. 2008), qu o t i n g

W e n o t e t h a t d o g - t r a c k i n g i s t h e a c t i v i t y p e r f o r m e d b y t r a c k i n g d o g s s u c h a s b l o o d h o u n d s , o f t e n w h e n 8

s e a r c h i n g f

o r p e r s o n s w h o a r e m i s s i n g o r t h o u g h t t o b e i n v o l v e d i n a c r i m i n a l a c t

. I n t h o s e c i r c u m s t a n c e s , t h e d o g i s g i v e n a s c e n t , a n d i t t h e n f o l l o w s t h a t s c e n t , w i t h h u m a n s f o l l o w i n g w h e r e t h e d o g l e a d s
. D o g - s c e n t l i n e u p s a r e a c t i v i t i e s p e r f

o r m e d b y h u m a n s w h o u s e t r a c k i n g d o g s t o m a t c h a k n o w n s c e n t s a m p l e t o a n u n k n o w n s c e n t s a m p l e
.12

Druery v. St ate , 225 S.W

. 3 d 491, 498 (Tex. Crim. App. 2007); Solomon v. Stat e , 49 S.W .3d 356,
361 (Tex. Crim. App. 2 0 0 1) (“The acc omplice-witness rule is not based upon fede ral or state
constitutional notions of sufficie ncy .”). We do not use the acc omplice-witness rule in evalua ting the
sufficie ncy of evidenc e, including evidenc e derive d from a dog -sce nt lineup. We simply revie w all
of the evidenc e in the light mos t fa vorable to the verdic t, and the dog -sce nt lineup evidenc e “is

mere ly supportive” of

the re mainder of

the evidenc e. 9

I n revie wing all of the evidenc e in the requisite light, we include the s i x i t em s of

corr oborating evidenc e that the state asser ts connec t appellant direc tly to the instant murder. These
six items include: 1) testimony that appel lant believed that Bur r had money in his home, and she
wanted it; 2) appellant’ s fathe r’s jail cell-ma te, Campbell, testif i ed that appellant’ s fathe r rela ted specific information about the murder, including that the fathe r’s children had let the fathe r into the house, that Bur r h ad b een stabbed repe atedly , and that g uns had been stolen from the house,
wher eupon law-e nforc ement officia ls, who had not known that g uns wer e missing, then talked to
Bur r’s rela tives and confirme d that g uns wer e missing; 3) when appellant hear d that her brother had
been arr ested for the murder, she as k ed her boy friend to take her to her ex-husband’s house, alleg edly to discuss their daug hter, but instead discussed only a possible alibi for the night of the murder; 4) afte r her

ex-husband was subpoena ed, appe llant called his mother to find out if he was

g oing to testify ; 5) when she lear ned that law-e nforc ement personne l ha d found a pubic hair a t the
crime scene , appellant shaved herse lf, alleg edly to preve nt the taking of a sample of her pubic hair;

W e a g a i n n o t e t h a t , s i n c e t h e c o u r t o f a p p e a l s d i d n o t c o n s i d e r t h e d o g - s c e n t l i n e u p e v i d e n c e i n i t s r e v i e w 9

o f t h e s u f

f i c i e n c y o f t h e e v i d e n c e

– i t “ s e t i t a s i d e f r o m [ i t s ] s u f

f i c i e n c y r e v i e w ”

– a n d t h e s t a t e h a s n o t a s s e r t e d t h a t t h e c o u r t o f a p p e a l s e r r e d i n d o i n g s o , w e d o n o t c o n s i d e r t h e p r o p r i e t y o f s e t t i n g a s i d e s u c h e v i d e n c e i n r e v i e w i n g t h e s u f f i c i e n c y o f t h e e v i d e n c e
.13

and 6) appellant told her boy friend that she went to Bur r’s house beca

use “i t wa s an easy lick,” which the boy friend c onstrued to mean a ppellant thoug ht she would g et money

. The state a lso points t o testimony that there was a

drop of blood undernea th and a drop on
top of the overturne d vacuum clea ner in the closet and sug g ests that this allowed the trier of fac t to
“dra w the infe renc e that these drops and their positioni ng could have occur red w hen the murde rer
was in the c loset taking the g uns and looking for items to steal.” 1 0
Circumstantial evidenc e is as probative as d i re ct evidenc e in establishing g uilt, and
circ umstantial evidenc e alone can be sufficie nt to establish g uilt. Hooper v. State , 214 S.W .3d 9, 13 (Tex. Crim. App. 2007). Whil e juries are permitted to draw multipl e rea sonable infere nces as long

as ea ch infe renc e is supported by the evidenc e pre sented a t trial, “juries a re not pe rmitted to come

to conclusions based on mere specula tion or fac tually unsupported infere nces or presumptions.” Id

.
at 15. “[A]n infere nce is a conclus i on rea ched by considering other fac ts and deducing a logic al

conseque nce from them , ” whi le “[s] pecula tion is mere theorizing or g uessing about the possible meaning of facts and evidence presente d.” Id . at 16. “A c onclusion rea ched by specula tion . . . is not sufficiently

based on f

acts or e vidence to support a finding bey ond a re asonable doubt.” Id

. The circ umsta n t i al ev i d ence that the state prese nts as indicia of appellant’ s g uilt of the capital- murder offe nse appea rs more specula tive than infere ntial a s to appellant’ s g uilt. Campbell
testified t hat appe llant’s fathe r told him that just one of his childre n allowed him to g ain ac cess to
Bur r’s house but did not say which one, nor di d he indi cate the time, circ umstances, or manner in
which acc ess to the house was g ained. Campbell also testified that he did not know appellant, had

D N A f r o m t h e b l o o d d i d n o t l i n k a n y o f t h e W i n f r e y s t o t h e m u r d e r s c e n e , n o r w a s t h e r e a n y e v i d e n c e 1 0
t h a t c o n n e c t e d a n y o f t h e m t o t h e m i s s i n g g u n s
.14

never met her, that ever

y thing he was being asked w as “he arsa y to this t rial[,] ” and tha t he did not
“fe el rig ht today testify ing ag ainst her.” When presse d by defe nse counsel, Campbell conce ded that
he “g ot the impression” that appellant’ s fathe r w a s p r e s ent during the murder, but stated, “Eve ry thing
that I am say ing today is hear say
. . ..” Campbell also indicated that appellant’ s fath er ’s main

conce rn wa s that his kids were be ing f rame d for the murder and t hat he c ould not understand why they wer e g oing afte r his kids. Whil e Campbell’s testimony in this trial appea rs somewhat incriminatory as to appellant’ s fathe r, that testimony does not specific ally inculpate ap p ellant. Perhaps most telling ly , Campbell repe atedly asser ted that, not only had appellant’ s fathe r told him things that only someone who had been prese nt at the murder would know, but that he contac ted law
enfor ceme nt only afte r appel l an t ’s fa t her descr ibed how the victim’s penis had been cut off and
“cr ammed into” the victim’s mouth. I f that claim had been fac t, it surely would have been noted by
the medica l examiner, but was not; all injuries were to the victim’s head, ne ck, bac k and lef t arm.
The evidenc e of appellant’ s shaving of her pubic hair seems much less signific ant in light of
her unchalleng ed testimony that she reg ularly shaved it, her later provision of the reque sted sample,
and the deter

mination that her ha ir did not match a ha ir rec overe d from the scene
. Wit h reg ard to appellant speaking with her ex- h usband about having attended a conce rt around the time of the murder, we do not perc eive any indicia of g uilt from simply discussing a possible alibi for the time
of the murder; alibi is a leg itimate non-statutory defe nse. We also fail to dis ce rn an y p ar t icular
incrimination in appellant contac ting her ex-husband’s mother to de termine whether he was g oing

to testify at t rial. Ap p el l an t ’s expression of knowledge that Bur r had money in his home t hat s he
wanted and t hat s he went to his house because “it was an easy lick” does not reve al any action on
her part to actua lly kill Bur r and take his money , and it is even less incriminatory when we consider15

that the police investigat i o n was unable to deter mine that any money had been taken from Bur r during the course of the murder. The state’s sug g estion of an appropr iate infere nce draw n from 1 1 1 2
blood dr ops on the vacuum c leane r supports no conne ction to appellant at a ll because the DNA of those blood drops did not match any of the Winfrey s.
The rec ord ref

lects that, in 2006, law enfor ceme nt contac ted Bur r’s family about the possibili ty that g uns may have been taken. Bur r’s brother- in-law, who had seen the g uns in Bur r’s possession sever al m o nths befor e the murder and, approximately three to five months befor e the murder, had seen one in Bur r’s home, confirme d that, afte r the murder the g uns wer e not in Bur r’s
home and have never been located. Ho wever, there was no evidenc e indicating when and under
what circ umstances the g un or g uns wer e remove d from Bur r’s home, no evidenc e that appellant had

any involvement with the remova l of the g un or g uns from the home, or that the g uns wer e remove d during the course of the murder. Bur r’s sister testified that, when she walked throug h the house afte r
the murder, she noted that Bur r’s Bible was missing. Her testimony does not in any way implicate appellant in the remova l of the Bible from Bur r’s home or prove that there had been money hidden
in it.

Ba sing a finding of appellant’ s g uilt on this evidenc e and all of the other evidenc e is, at best,
“mer e theorizing or g uessing ” about appellant’ s pos s ible g uilt rathe r than a rea sonable infere nce
based upon evidenc e and fac ts prese nted. “A conclusion rea ched b y s p ec u l at i on
. . . is not

W h e n a s k e d a t t r i a l i f s h e u n d e r s t o o d B u r r t o h a v e a l o t o f m o n e y , a p p e l l a n t s t a t e d , “ N o
. H e w a s a 1 1 j a n i t o r
. ”

T h e s t a t e s u g g e s t s t h a t t h e b l o o d d r o p s a l l o w e d t h e t r i e r o f f a c t t o “ d r a w t h e i n f

e r e n c e t h a t t h e s e d r o p s 1 2

a n d t h e i r p o s i t i o n i n g c o u l d h a v e o c c u r r e d w h e n t h e m u r d e r e r w a s i n t h e c l o s e t t a k i n g t h e g u n s a n d l o o k i n g f o r i t e m s t o s t e a l

. ” T h a t i n f

e r e n c e m a y v e r y w e l l b e a n a p p r o p r i a t e o n e , b u t i t , w i t h o u t a D N A o r o t h e r c o n n e c t i o n t o a p p e l l a n t , d o e s n o t i m p l i c a t e h e r
.16

sufficie ntly based on fac ts or evidenc e to support a finding bey ond a rea sonable doubt.” Hooper v.
State , 214 S.W .3d at 16. After revie wing all of the evidenc e in the light most favor able to the g uilty
verdic t, we hold that the evidenc e mere ly raises a suspicion of ap pellant’s g uilt and is leg ally
insufficient to suppor

t a conviction of ca

pital murder be y ond a rea sonable doubt. Acc ording ly we sustain appellant’s f

irst gr ound for r eview. Conspi racy t o Com m it Capital Murder
On direc t appea l, appellant arg ued that the evidenc e was insufficient to establish that she had
committed conspirac y to commit capital murder. I n this Court, appellant notes “that the conduct at
issue is an ag ree ment. I t is the ag ree ment that define s conspirac y .” Alterna tively , she asser ts that 1 3 § 15.02(c) (2) does not permit conviction for conspirac y when the only other conspirator s have been acquitted a

nd that the contra

ry holding by

the cour t of appe als constitutes fundamenta l error

. 1 4
The state asser

ts that § 15.02(c) (2) was construed corr ectly

. I t notes that two people have not
been acquitted, as the statute require s and arg ues that appellant is attempting to circ umvent the first
element of the statute, § 15.02(c) (1)–that it is no defe nse to prosec ution for criminal conspirac y that
“one or more of the coconspirators is not criminally responsible for

the object of

fense [.] ” 1 5

S e c t i o n 1 5

. 0 2 ( a ) p r o v i d e s t h a t a p e r s o n c o m m i t s c r i m i n a l c o n s p i r a c y i f , w i t h i n t e n t t h a t a f

e l o n y b e 1 3

c o m m i t t e d , 1 ) h e a g r e e s w i t h o n e o r m o r e p e r s o n s t h a t t h e y o r o n e o r m o r e o f t h e m e n g a g e i n c o n d u c t t h a t w o u l d
c o n s t i t u t e t h e o f

f e n s e ; a n d 2 ) h e o r o n e o r m o r e o f t h e m p e r f o r m s a n o v e r t a c t i n p u r s u a n c e o f t h e a g r e e m e n t

. T E X

. P E N A L C O D E § 1 5

. 0 2 ( a )

.

S e c t i o n 1 5

. 0 2 ( c ) ( 2 ) p r o v i d e s , “ I t i s n o d e f e n s e t o p r o s e c u t i o n f

o r c r i m i n a l c o n s p i r a c y t h a t :
. . . ( 2 ) o n e o r 1 4

m o r e o f t h e c o n s p i r a t o r s h a s b e e n a c q u i t t e d , s o l o n g a s t w o o r m o r e c o c o n s p i r a t o r s h a v e n o t b e e n a c q u i t t e d

. ” P r e s u m a b l y , “ t w o ” i n c l u d e s t h e p e r s o n o n t r i a l

. W i t h o u t s u c h a p r e s u m p t i o n , a c o n s p i r a c y b e t w e e n o n l y t w o p e r s o n s c o u l d r e s u l t i n o n e p e r s o n b e i n g a c q u i t t e d a n d t h e o t h e r c o n v i c t e d , r e s u l t i n g i n a c o n s p i r a c y o f o n e
. S u c h a r e s u l t i s b a r r e d

. B a r b e r v

. S t a t e , 7 6 4 S

. W

. 2 d 2 3 2 , 2 3 4 ( T e x
. C r i m
. A p p
. 1 9 8 8 ) ( I n a § 1 5

. 0 2 c r i m i n a l

- c o n s p i r a c y p r o s e c u t i o n , “ [ o ] n e p e r s o n a c t i n g a l o n e c a n n o t c o m m i t c o n s p i r a c y
. ” )

.

W e o b s e r v e t h a t t h e s t a t e ’ s b r i e f i n g o n t h i s i s s u e c o n s i s t s o f o n e p a g e o f c o n c l u s o r y s t a t e m e n t s a n d 1 5

a d d r e s s e s o n l y t h e m e a n i n g o f t h e s t a t u t e
. T h e o n l y s u p p o r t i n g a u t h o r i t y i s a c i t a t i o n t o a 2 0 1 0 o p i n i o n f r o m t h e T e x a s S u p r e m e C o u r t t h a t h o l d s t h a t “ [ p ] l a i n m e a n i n g i s t h e d o m i n a n t f a c t o r i n a p p l y i n g a s t a t u t e
. ” T h e s t a t e s e t s17

We find that we do not need to addre ss th e proper interpre tation of the statute in this case
beca use the re cord doe s not contain evidenc e on which a reasonable jury could find that appe llant

agr eed with one or both of the alleg ed co-c onspirators that one or more of them would en gage i n
conduct that would constitute the alleg ed capital murder or that one or more of them perf ormed an

overt act in pursuanc e of such an ag ree ment. Appellant addre ssed and arg ued the issue of ag ree ment
in her brief to the court of appeals: “The State could not produce a si ng le wit ness t hat was able to produce any evidenc e [t hat] Appellant ag ree d with a ny one to mur der Murra

y Bur r in the course of a robbery .” Appe llant’s brief on appea l at 33. The state responde d in its brief: “The ag ree ment to
commit the crime may be inferr ed from the acts of the parties.” State’s brief on appea l at 30. And, althoug h the majority opinion did not expli citly addre ss the ag ree m en t element, the dissenting opinion in the court of appea ls noted that the issue had been raised and, implicitl y , overr uled by the majority : “A person commi ts the off en s e o f conspiracy if, with intent that a felony be commit ted,
she ag ree s with one or more persons to eng ag e in conduct that would constitute the offe nse, and she perf orms an overt act in pursuanc e of the ag ree ment. Tex. Penal Code Ann. § 15.02(a) (West 2003).

. . . Moreove r, there was no evidenc e, other than the scent lineup evidenc e, from whi ch an
ag ree ment betwee n Winfrey and her brother or fathe r to commit the crime could be infer re d

. ” Megan W infrey , at 708-09 (Kre g er, J ., dissenting)

. Be cause the issue was raised (and reje cted) in the
court be low, it is properly befor e this Court. 1 6

o u t n o e v i d e n c e o f a n a g r e e m e n t , a n d w e f i n d n o n e i n t h e r e c o r d

.
S e e , e

. g

. , B e n a v i d e z v

. S t a t e , 3 2 3 S

. W

. 3 d 1 7 9 , 1 8 3 & n
. 2 0 ( T e x
. C r i m
. A p p
. 2 0 1 0 ) ( i n i t s d i s c r e t i o n a r y 1 6

r e v i e w c a p a c i t y , t h i s C o u r t r e v i e w s “ d e c i s i o n s ” o f t h e c o u r t s o f a p p e a l s ; a n i s s u e t h a t t h e l o w e r c o u r t d i d n o t p a s s u p o n i s n o t o r d i n a r i l y r i p e f o r o u r r e v i e w )

.18

Reg ardle ss of whether the acquittal of appellant’ s brother of conspirac y , combined with her
fathe r’s acquittal of the murder and the state’s elec tion not to indict him for conspirac y , constituted

a defe nse to the prosec ution for the criminal conspirac y , the evidenc e in the rec ord is insufficient to
sustain the ag ree ment element of the conspirac y statute. Appellant is thus entitled to the reque sted
relief reg arding her c riminal-conspira cy conviction.

We reve rse the judgme nt of the court of appea ls and rende r a judgme nt of acquittal for eac h
offe nse. Burks v. Un i t ed States , 437 U.S. 1, 18 (1978) (which require d the reme dy of appellate acquittal on g rounds of e videntiary insufficienc y

).

Deliver ed: Fe bruar

y 27, 2013 Publis h