Opinion filed January 14 , 20 2 1



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 9

- 00 005

- C R

__________
CHARLES EDWARD NEWMAN , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 3 5 0 th District Court

Taylor County , Texas Trial Court Cause No. 13399

- D

M E M O R A N D U M O P I N I O N
The State charged Charles Edward Newman by indictment with one count of
murder and two counts of tampering with a witness. The jury convicted Appellant
of all three count s and assessed punishment for the murder conviction at life imprisonment in the Institutional Division of the Texas Department of Criminal
Justice and a fine of $ 10,000 . The jury assessed Appellant’s punishment at imprisonment for sixty years for each of the tampering

- with

- a

- witness conviction s ,2

and the jury also assessed a fine of $ 8 ,000 for each of the tamperi ng cases. The trial court sentenced Appellant accordingly , and it ordered that the sentences were to run concurrently

. We affirm.
In four issues on appeal , Appellant challeng es (1) the sufficiency of the
evidence to support the murder conviction, (2) the sufficiency of the evidence to support the witness tampering convictions, (3) the trial court’s denial of a hearing
on his m otion for n ew t rial, and (4) the admission , over a spousal privilege objection,
of a recorded conver sation between Appellant and his wife. On May 18 , 2016, Justin White found the body of his ex

- girlfriend, Kendra Kep p ler , in her Abilene home

. No one had seen or heard from Kep p ler for several days , and White went to check on her. White entered the house with his own key
and discovered a body on the bed in Keppler’s room. The body showed signs of
trauma to the face and was in a state of decomposition , but White was able to identify
it as Kep p ler because of a naval piercing. After he discover ed Kep p ler’s body, White immediately left the house and called the police. Detective Paul Martinez, of the Abilene Police Department (APD) , was the
lead detective on the case and went to Keppler’s home

. B ecause the body was already in a state of decomposi tion , investigators did not immediately know the
cause of death or suspect foul play. However, Detective Martinez attended the autopsy and learned that Kep p ler had been shot. Dr

. Tasha Greenberg , the deputy
medical examiner who performed the autopsy, concluded that the cause of death was a gunshot wound to the head. Dr

. Greenberg could not determine the precise time of death, but she estimated that it was up to five days prior to the time that W hite
discovered the body. After Detective Martinez learn ed that Kep p ler had suffered a gunshot wound, he returned to the scene to look for a shell casing. He located a casing under the bed.3

Detective John Wilson was assigned to conduct interviews with suspects and community members

. He interviewed White briefly at the scene and again at the
law enforcement center. Among other things, White told Detective Wilson that Appellant was Keppler’s boyfriend. Detective Wilson interviewed Appellant at the
law enforcement center on the evening that the body was found . Detective Wilson
recorded the interview. During the interview, Appellant denied that he was in a romantic relationship wit h Keppler. On the evening that White discovered Keppler ’s body
, l aw enforcement
conducted a search for her vehicle because it was missing from the scene

. Keppler
drove a white Hyundai

. As we will detail later in this opinion, Appellant was in possession of Keppler’s vehicle at times relevant to the murder. During his first interview,
A ppellant told Detective Wilson that he had Keppler ’s vehicle because she had
loaned it to him so that h e could look for new housing

. However, several witnesses
testified that Keppler did not let anyone borrow her vehicle

. For example, White testified that Keppler was “protective” of her vehicle and only let him drive it once or twice for a short trip. An thony Sapp, Keppler’s roommate and good friend , testified that Keppler was “stingy” with her vehicle and did not loan it out. Carol Price, who had a “mother

- daughter relationship” with Keppler, testified that Keppler

was “very proud of [her vehicle ]” and did not allow Price to drive it

. During the recorded interview with Detective Wilson, Appellant stated that
he had been to Keppler’s house to at tempt to return the vehicle on May 15 , but no

one respond ed when he knock ed on the door. Appellant further said that he returned
to the house on May 16 to look for Keppler. In the May 18 interview, w hen asked
when he last entered Keppler’s house , Appellant told Detective Wilson that he wen t inside the house “today

. ” Appellant informed Detective Wilson that he went to the
house that day and opened the back door, which was unlocked, but that he came4

right back out and shut the door

. When asked whether he smelled anything when he entered the house, Appellant responded that there was a strong odor but that he had
assumed the odor was from the dog. Appellant first said that he did not find Keppler’s body , but later during the same inter view , he admitted that he had entered Keppler’s home and had found Keppler’s body in her room. The next day, May 19, Detective Wilson received a tip that a check had been
drawn on Keppler’s account on May 18
, the day that White discovered Keppler’s body. A bank employee had heard about Keppler’s death on the news and
remembered that Keppler, or someone posing as Keppler, had withdrawn money from Keppler’s account

. The withdra wal was payable to Appellant. Later that day,

t he fraud department of the APD obtained a warrant for Appellant’s arrest on a fraud charge. When detectives searched Appellant’s house, the y found notes that
contained Keppler’s identifying information , including her name, date of birth, Social Security number, and telephone numbers

— all information that would be needed to withdraw money from Keppler’s account

. After l aw enforcement officers arrested Appellant on the fraud warrant , Detectives Wilson and Martinez interviewed Appellant a second time. During the
second interview, Detectives Wilson and Martinez questioned Appellant about the
contents of his cell phone ; Appellant had voluntarily provided the cell phone during
his first interview. The data extraction from Appellant’s cell phone showed that he had attempted to log into Keppler’s bank account in the days immediately before her body was
found. The first attempt was made at 2:22 a.m. on May 16. Appellant visited the bank website again on May 17 at 6:59 p.m., 11:53 p.m., and 11:56 p.m. Bank records indicate that $200 was withdrawn from Keppler’s account on May 18 at 1:40 p.m.
That was the withdrawal that resulted in Appellant’s arrest for fraud.5

D uring the second interview, Detectives Wilson and Martinez attempted to create a timeline of events for Appellant’s whereabouts on the day that Keppler’s body was found

. Appellant did not provide precise times, but he stated that he went

to a meeting with his parole officer that morning at 8 :00 a

. m

. He left his parole meeting and returned to his house around 10:30 a.m. He left his house and went to Keppler’s house around 1 1:30 a

. m

. He stayed at Keppler’s house for a short time
and went back to his house . When Appellant returned to his house, he h ad his wife , Rachell Newman, impersonate Keppler on the phone t o withdraw money from Keppler’s account

. During the second interview, A ppellant repeatedly denied that
he had had his wife call the bank to withdraw funds from Keppler’s account

. But Appellant eventually admitted that his wife made the phone call; separately, s he also
admitted it

. Also, in the second interview, Appellant told the detectives that he did not have an account in his name at Keppler’s bank. He originally said that the $200 that
he withdrew was “dope money” from drugs that he and Keppler had sold together. However, a t trial, Appellant testified that the funds that he withdrew from Keppler’s
account were his and that Keppler maintained the account for him to use at will. When asked why he let the detectives believe that the money was for drugs, Appellant said that he “just didn’t tell [the detectives]” the truth during the second
interview

. As to why other people held money for him, Appellant testified that , because he owed back child support, the Texas Attorney General had placed a hold on his
bank accounts

. Therefore, he asked other people to hold money for him to avoid garnishment. Alicia Curiel, the mother of one o f Appellant’s children, testified that she sometimes held money for Appellant in an account under her name. Amy Sue Mitchell, Appellant ’ s on

- again and off

- again girlfriend, also testified that she sometimes held money in an account for Appellant.6

As a part of the investigation, law enforcement officials obtained a data
extraction from Appellant ’s cell phone . The extraction contained records of
numerous messages sent to Keppler in the three days before Keppler’s body was
found. On May 15 , Appellan t texted Keppler five times asking her where she was, what she was doing, and why she had not called or texted. On May 16 , Appellant

sent a message in which he wrote that he was worried about her ; he ask ed her to call
him. Appellant did not text Keppler on May 17. However, o n May 18 at 1:09 p.m. , Appellant sent two messages to Keppler telling her that he would report her missing to the police if she did not reach out and contact him. Appellant sent those messages
even thou gh, according to Appellant’s admissions to Detectives Martinez and Wilson, he already knew that Keppler was dead because he had been in her house and had seen her dead body. Appellant’s final text to Keppler was sent at 7:05 p.m. on May 18 , more than seve n hours after he went to her house and saw her body. As part of the investigation, Detective Martinez obtained data extract ions
from two cell phones that were found with Keppler’s body. The extraction reports
reflected that Keppler’s last phone ca lls were made at 8:01 a.m. and 10:01 a.m. on May 14. Keppler’s last text message s w ere sent at 10:35 a.m. and 11:38 a.m. on May 14. Unfortunately, n ot all the data could be extracted from the phones

. However, the State admit ted a video recording of the physical phone . The video depicted the phone screen as Detective Martinez scroll ed through Keppler’s text
messages

. The video recording show ed messages between Keppler and Appellant on May 12, two days before Keppler sent her last communications by phone. In the messages, Appellant and Keppler appear to be arguing about money. Their texts beg an late in the evening on May 12 and continue d in to the early morning hours of May 13. In the messages , Appellant informed Keppler that he was “dead broke” and7

“flooded with bills” but that she will “get back what [she has] put forward” when he
has it. Keppler replied in one of the text messages to Appellant that she had been

“ stupid enough to believe [he] was different.” Appellan t t old Keppler that she was “special” to him and that he love d her. On the morning of May 14, Keppler ask ed Appellant if she c ould “ come see [him]

. ” When Appellant decline d to see her, s he

sen t a message at 9:20 a.m. in which she opined that , if Appellant loved her, he
would be with her “period point blank.” Keppler’s phone showed a final outgoing phone call to Appellant at 10:16 a

. m

. on May 14. The content of these messages was retrieved only from Keppler’s phones. The content of the same messages had been erased from Appellant’s phone. But beginning on May 15, the content of the messages sent by Appellant to Keppler after she wa s dead match ed those reflected in the extraction reports from both Appellant’s phone and Keppler’s phones.
Detective Martinez also extracted Appellant’s call history from his cell phone and assigned other detectives to follow up on calls made between May 14 and May 18. Detective Jeff Cowan , another investigator on the case, identified Romeo
Ross as one of the people who m Appellant contacted during that time frame

. Ross
testified t hat detectives from the APD contacted him to question him about a potential murder weapon. R oss said that he once sold crack cocaine to Appellant in the alley behind Keppler’s house . A few days later , Appellant contacted Ross and
wanted to sell Ross a pistol. Ultimately , Appellant traded money and a .380 Cobra pistol to Ross for crack cocaine. Ross testified that Appellant was driving a white

car when they ma d e the exchange. Although Ross did not remember the exact date
that he and Appellant made the exchange, he testified that it was around May 15

. H e remembered the date because it was at the end of his girlfriend ’ s pay period. Shortly after Ross acquired the pistol from Appellant, he sold it to his uncle. Ross helped the detectives contact his family members , and the pistol was eventually8

turned over to the police

. Forensic s cientist and certified firearms expert Alexis Moser performed an analysis on the pistol , ca rtridges, and bullet fragment from Keppler’s body

. The pistol and the bullet fragment were a match. The serial number
on the pistol matched a weapon that Keppler had purchased earlier that month

— it
was her pistol

. Appellant testified that he trade d the pistol to Ross for crack cocaine

. Appellant also testified that he knew that Keppler had a pistol because he went with her when she purchased it. When asked how he came to possess the pistol , h e said
that he found it in his wife’s purse and decided to sell it , in part, because of his status
as a convicted felon. Anthony Devon Evans, Appellant’s cousin, testified that Appellant called him to “vent” when Appellant found the pistol in Rachell’s purse.
Detective Martinez , who monitored more than 5,000 of Appellant’s jail calls,
testified that the first time that anyone mentioned the pistol had been found in Rachell’s purse was in May 2018, immediately before Appellant’s case was first set
for trial

. Detective Martinez also checked Appellant’s paw n recor ds as part of the investigation because it appeared that Appellant had returned to Keppler’s residence
several times before White discovered her body

. Detective Martinez testified that APD uses a system called Leads Online for pawnshop s to log new ly recei ved
merchandise so that law enforcement personnel can cross

- reference the data to look
for stolen items. Appellant ’s Leads Online records showed that he pawned a radar
detector and a pair of Versace sunglasses on May 16; a car audio kicker and car audio speaker s on May 17 ; and a “bookshelf ster e o with speakers” on May 18.
D etectives recovered the sunglasses, which White identified as Keppler ’ s

. Appellant denied that the sunglasses were Keppler’s ; he said they were his wife’s. Throughout the investigation, Detective Martinez interviewed several people who told him that a man named “Gorilla” had recently pulled a gun on Keppler9

during a dispute. White told the detectives in his initial interview that , if anyone had
h armed Keppler , it was probably Robert Jones, a / k / a “Gorilla.” Rhiana Walker, Keppler’s friend, testified that she had witnessed the incident and had heard Gorilla tell Keppler , “ [Y] our days are numbered, bitch.” During his first interview, Appellant also told Detective Wilson the story about Gorilla. Price also testified that Gorilla had pulled a gun on Keppler and that the incident caused Keppler to buy a gun for protection. Detective Martinez testified that they were never able to locate Gorilla but that they found no other evidenc e that link ed him to Keppler’s murder.
Detective Cowan received a tip that Priscilla Montez might have information about the case, and he interview ed Montez on May 20. Although Detective Cowan did not know it when he first contacted Montez, he came to believe that Appellant
and Montez had a romantic relationship. Detective Cowan described Montez as “standoffish” and “very emotional ” and said that s he appeared “torn” about her loyalty to Appellant. At trial, Montez testified that she and Appellant were in a romantic relationship. They had plans together on May 14, but Appellant ne ither contacted
her n or met her as planned

. W h en Appellant did not show up as planned , Montez
texted him repeatedly. Montez testified that , whe n A ppellant finally replied on May 15 , he said that something had come up and that “there were some things that he needed to handle.” Because it was unusual for Appellant to ignore Montez, she was worried about him and drove by his house on the evening of May 16

. Monte z dr o ve by in the evening becau se she knew that Appellant had an ankle monitor as a
condition of his parole and was required to be home by 7:00 p.m. When she drove by his house that evening , s he saw a white vehicle in Appellant’s drivewa y. Montez did not hear from Appellant again until May 17 when he asked her to
come to his house to talk. When Montez went to Appellant’s house
, he was in an emotionally stressed state. Appellant told Montez that something had happened and10

that “he had killed her .” A ppellant never told Montez who “her” was
, and she did

no t press the subject with him. She did ask Appellant about the white vehicle , and
he told her that a friend had let him borrow it

. Montez also testified that Appellant
told Montez that he had returne d to the place where he had killed “her” to take the
vehicle back and to get some of “ his ” things to pawn

. Montez remembered that Appellant had said that he had pawned a speaker

. In her statement , Montez also
refer red to “some electronic items.” Montez did not ask Appellant for more details, but while she was with him, he continued to repeat that he had “killed her.” Appellant also told Montez that “ he r ” body was where he “left her” and that things were “fixing to blo w up.” Montez stayed at Appellant’s house for a couple of hours before Appellant drove her home
in the white vehicle

. On the drive to Montez’s house, Appellant stopped at a convenience store. Appellant went inside the store , and Montez stayed behind in the vehicle. While Appellant was in the convenience store, Montez looked through the glove compartment ; she found an insurance card with Keppler’s name

. Montez testified
that , after she found the insurance card, she believed Keppler was the “her” that Appellant had been talking about. When Montez got home, she told her roommate
about what had happened. Soon there after, Detective Co w an contacted Montez for

an in terview. At trial, Appellant said that Montez’s statement was false and that he
had never confessed to her or anyone else

. Three months later, on August 23 at 2:04 p.m. , Detective Martinez received a phone call from Montez ; she ask ed to “recant” her statement. Detective Martinez thought it was suspicious for Montez to ask to “recant” her statement because “regular people don’t use that type of language.” He checked Appellant’s jail
records and noted that Appellant’s attorney at the time had visited Appellant at11

1:00 p.m. on the same day. At 3:52 p.m. on the same day , Rachell Newman also
called Detective Martinez and ask ed to recant her statement. Although Montez indicated that she wanted to recant her statement , she never formally did so. She testified that she d id not want to believe that Appellant was guilty and that her belief was one of the reasons that she wanted to recant her

statement. Montez testified that she was hurt at the time she gave her statement
because Detective Cowan had suggested that Appellant had a romantic relationship with Keppler

. However, Montez testified that her statement was true and voluntary, even though she was hurt and confused at the time

. She further testified that no one
told her to try to recant her statemen t.
Montez also testified that she love d Appellant and that she did not want to participate in the tr ial , but she was subpo enaed. Appellant cal led Montez frequently , and they maintain ed a romantic relationship even though he was incarcerated. The State introduced four phone calls between Montez and Appellant where
the two discuss ed options for Montez to avoid a subpoena. Montez testified that she
kn ew that all jail c alls we re recorded. In one of the calls, Appellant suggest ed that
Montez leave town to take care of one of his children so that she could possibly avoid the subpoena. In another call, Appellant br ought up other ways that Montez

c ould avoid a subpoena

. A ppellant explain ed that , if Montez ignore d the subpoena,
she w ould only receive jail time or a fine and that , if she received a fine, he would “take care of it.” Montez testified that she understood Appellant to mean he would pay any potential fine for her. Montez testified that she obeyed the subpoena because she wanted to do the right thing and wanted to avoid any further trouble and
involvement. Appellant disputed that he was encouraging Montez to avoid the subpoena

. In reference to the conversation where in Appellant suggest ed that Montez leave to
take care of his child ren , Montez explained that she was staying with a friend and12

housing was difficult for her. Montez told Appellant that “they” had gone to CPS
and that her friend had lost visitation r ights with her children because Montez was staying with her. Appellant testified that he wanted to find a place for Montez because she had nowhere else to go and that “I’ll take care of it ” referr ed to the
situation with CPS. During the investigation, Detective Martinez received two letters with
additional information about th is case. The first letter was from Jeron Davis , who was being held in the Taylor County Jail

. Detective Martinez went to the jail to interview Davis, wh o said that he had been contacted by Aretha Richardson in February 2016 . Davis said that Aretha had ask ed him to kill Keppler. However, Davis was incarcerated at the time of Keppler’s death

. At trial, Davis testified that he had met Keppler a couple of times . He believed that she and Johnny Richardson were dating. He said that Areth a, Johnny’s wife, offered him money to “handle” the situation. Detective Martinez testified that Davis mentioned that he and Appellant were in adjacent cells and that they had spoken
about the case briefly. Davis denied that he had spoken to Appellant about the case. Davis did confirm that he was in an adjacent cell to Appellant, but he said that he spoke to Detective Martinez before he and Appellant were placed in adjacent cells

. Detective Martinez received a second jail letter from Saul Raul Solis in May
2016

. In the letter, Solis claimed that he went to purchase meth amphetamine from Keppler between 7 :30 and 8:00 p.m. on May 13

. In his letter, Solis gave a detailed description of the interior of Keppler’s house as seen from the outside doorstep.
Solis also said in t he letter that he knocked on the door of Keppler’s house and that a “white male in his early 30’s [sic] to mid 30’s [sic] ” with a “ [ s ] ilv er or [ c ] hrome pistol in his waist” answered the door. Solis went on to describe his interaction with the white male, who purportedly told Solis that Keppler did not want to see anyone

.13

In the letter, Solis sa id that Keppler stuck her head around a doorway and ask ed what
Solis wa nted to purchase ; Solis provide d the details of the drug transaction

. Solis w as transferred to several different facilities during his incarceration , and Detective Martinez was not able to interview him unt il December 2016

. When
he did finally get interview ed , Solis confirmed the contents of the letter. However, in January 2017, Solis contacted Detective Martinez to change his story.
Detective Martinez interviewed Solis again in June 2017 , and Solis denied the truth
of the contents of the letter

. At trial, Solis testified that he had never been to Keppler’s house and that he had never purchased drugs from her

. He said that he wrote the letter because Appellant approached him and asked if he would be willing to “help him out” in exchange for $1,000.
Solis accepted the offer and agreed to draft a letter on behalf of Appellant. He testified that he and Appellant stayed up late to discuss the layout of the house and
other details to include i n the letter. He further testified that other members of his
cell block contributed to the letter . Rumors were circulating to the effect that Keppler had robbed someone from the Aryan Brotherhood , or another Aryan gang,
and Appellant and Solis thought it would be helpful to include a white male with a
gun in the fabricated story

. Solis said that he made “two or three” copies of the
letter : one each for the detective , Appellant, and Appellant’s attorne y

. Solis never received the $1,000 that App ellant promised him

. He testified that
he probably would not have agreed to draft the letter without the promise of payment. When asked why he stood by the contents of the letter at his first interview with Detective Martinez, Solis testified that he was hopeful that Appellant would still come through on the promise to deposit the funds in to his account

. However, after some time had passed, Solis decided that he could not live with the lies in the letter , and he contacted Detective Martinez to tell the t ruth.14

Appellant testified that he knew Solis while they were in the Taylor County Jail, but he disputed that he told Solis what to write in the letter. He testified that he did not speak about his case while he was in jail and that Solis had approached him independently and started a conversation about Keppler. Appellant’s version of Solis’s involvement is that Solis first described the events that later were in cluded
in the letter and then Appellant asked Solis if he would be willing to write down his experience to help Appellant out. Appellant testified that Solis was hesitant to get
involved and that that is why Appellant offered Solis $100 , not $1,00 0, to write the
letter. Appellant denie d that he offered Solis $1,000. Appellant stated that Solis showed him the letter but that he did not proof, edit, or otherwise approve of the
letter. At trial, Appellant testified that he and his wife Rachell were separated and going through a divorce

. Appellant testified that he still calls his wife but that they do not speak on a regular basis and their calls frequently end badly

. H e testified that
he was “not in love with her” and did not want to be with her. The trial court
admitted , over a spousal privilege objection, a recorded phone call , offered as impeachment evidence, between Appellant and Rachell

. Before the recording was offered, Appellant testified that he understood that all of his jail phone calls were subject to monitoring and recording.
In the recording , Appellant and Rachell express ed their love and affection for
each other , and Appellant ask ed Rachell if she want ed to be together. Rachell and Appellant both sa id that they want ed to make their marriage work. Appellant also

t old Rachell that the State was starting to subpoena people for the upcoming trial,
and Rachell respond ed , “ [G] ood luck finding me.” When asked whether Appellant was surprised that the State failed to locate Rachell, Appellant responded that “ [ a ] lot of things don’t surprise [him] no more.”15

In his first and second issues on appeal , Appellant argues that his convictio ns for murder and witness tampering are not supported by sufficient evidence. We review a challenge to the sufficiency of the evidence under the standard of review
set forth in Jackson v. Virginia , 443 U.S. 307 (1979)

. Brooks v

. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) ; Polk v. State , 337 S.W.3d 286, 288

– 89 (Tex. App.

— Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in t h e light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. Jackson , 443 U.S. at 319. When conducting a sufficiency review, w e consider all of the evidence admitted at trial, including evidence that may have been imprope rly admitted. Winfrey v

. State , 39 3 S.W. 3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sol e judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks , 323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve conflicts i n the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson , 443 U.S. at 319; Clayton , 235 S.W.3d at 778. When the record supports conflicting inferences , we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
to that de termination. Jackson , 443 U.S. at 326; Clayton , 235 S.W.3d at 778. It is not necessary that the e vidence directly prove s a defendant’s guilt; direct
and circumstantial evidence are bo th probative of guilt, and we review all of the
evidence to determine the “combined and cumulative force.” Hooper v. State , 214
S.W.3d 9 , 13 (Tex. Crim. App. 2007) (quoting Johnson v. State , 87 1 S.W.2d 183 , 186 (Tex. Crim. App. 199 3 ))

. Circumstantial evidence alone is sufficient to establish guilt, and the standard of review is the same for both direct and circumstantial
evidence cases. Guevara v. State , 152 S.W.3d 45, 49 (Tex. C r im. App

. 2004).16

The jury convicted Appellant of murder , as alleged in paragraph one of the
indictment , by intentionally or knowingly causing the death of Kep p ler. See T EX

. P EN AL C ODE A NN

. § 19.02(b)(1) (West 2019 )

. Appellant contends in his first issue on appeal that the State failed to prove that he possessed the required intent for the
murder conviction because the State produced no direct evidence of intent

. We disagree. Mental culpability is a question of fact to be determined by the jury from all
the facts and circumstances. Walter v. State , 5 81 S.W.3d 957, 972 (Tex. App.

— Eastland 2019 , pet. ref’d). B ecause it is impossible to read the mind of the accused, proof of a c ulpable mental state is infer red from the circumstances surrounding a defendant’s “acts, words, and conduct.” Nisbett v. State , 552 S.W.3d 2 4 4, 267 (Tex. Crim. App. 2018) (quoting Hernandez v. State , 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) ) . We look to events occurring before, during, and after the offense.
Guevara , 152 S.W.3d at 49. A defendant’s motive, any attempts to conceal the body,
inconsistent statements or improbable explanations to law enforcement, and the extent of the victim’s injuries are circumstantial evidence from which a jury can infer a defendant’s intent. Nisbett , 552 S.W.3d at 267. Further, the specific intent to cause death can be inferred from the use of a deadly weapon, such as the firearm
used here. Jones v. State , 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) ; see P ENAL § 1.07(17)(A) (West Supp. 2020) (defining a firearm as a per se deadly weapon)

. Just as a jury may infer intent, it may also infer guilt from circumstantial
evidence. Guevara , 152 S.W.3d at 49. For example, acts by the defendant, such as an attempt to tamper with a witness, constitute evidence of a “consciousness of guilt.” Wilson v. State , 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). Courts have also found that a defendant’s use of a missing person ’s financial assets is also circumstantial evidence of guilt. Nisbett , 55 2 S.W.3d at 267 (finding that a check forged after a victim’s disappearance was some circumstantial evidence of guilt).17

Here, the jury could have reasonably infer red fr om the overwhelming circumstantial evidence that Appellant possessed the requisite intent to kill Keppler. Although Keppler’s exact time of death is unknown, we do know that her last communications by phone were made on the morning of May 14. The jury he ard evidence that Appellant and Keppler had an argument about money on May 12 and 13, shortly before her estimated time of death. Appellant deleted the messages from his own phone, but the d etectives recovered them from Keppler’s phone. Appellant’s behavi or after the estimated time of death provides further
circumstantial evidence of intent

. Appellant used Keppler ’ s car , pawned her personal property, and access ed her bank account after the two argued about money

. Based on Appellant’s actions immediately before and after Keppler’s estimated time of death, a jury could logically conclude that he acted with the required intent

. Further, a jury could have inferred intent and guilt from Appellant’s inconsistent statements throug hout the investigation. Appellant gave varied

accounts of when he returned to and entered Keppler’s house between May 12 and May 18. He first told detectives that he never discovered Keppler’s body, but he later admitted that he did find her body. Appel lant also made inconsistent statements
about why he accessed Keppler’s bank account

. First, Appellant said that part of the
money in the account was his from joint drug deals with Keppler , but he later said that the money was all his and that Keppler was just holding the money for him. Text message data on Appellant’s phone was also inconsistent with the
statements he made to the investigating detectives. He continued to send text

message s to Keppler even after , according to his own admission, he had discovered her body and knew that she was dead

. Based on all of Appellant’s inconsistent statements and attempts to mislead detectives, a ju r y could have reasonably infer red
that he was attem pting to manufacture an alibi so that the police would not connect
him to the murder.18

In addition to the evidence of motive and inconsistent statements, other evidence was presented that suggested that Appellant continued to attempt to manufacture an alibi and mislead the investigation even after he was arrested. Solis testified that Appellant solicited his help to write a letter t hat would provide Appellant with an alibi . Solis explicitly stated in his letter that he saw Ke ppler alive between 7:30 and 8:00 p.m. on May 13

— after Appellant’s electronically monitored parole curfew. Additionally , Solis’ s letter implicated a n unknown third party, the “white male” from the Aryan Brotherhood. The letter from Davis implicated anoth er party entirely

. Although Appellant disputed his involvement with both letters, we assume that the jury resolved the conflicting testimony in the State’s favor. Other evidence further implicated Appellant in Keppler’s murder. Appellant
traded the murder weapon for crack cocaine on or about May 15 , the day after Keppler sent her last messages . Appellant admitted to Montez that he had “killed her.” Although Montez did not know who “her” was, a jury could have rationally
infer red that Appellant was referring to Keppler based on the ample circumstantial
evidence in the case. Even though Appellant dispute d how he came to possess the murder weapon and that he made any admission to Montez, we assume that the jury
also resolved t he conflicting testi mony in the State’s favor. The jury could also have infer red a “consciousness of guilt” from Appellant’s attempts to tamper with witnesses in the case. Although the tampering charges are
discussed separately below, t he State produced evidence that Appellant suggested to
Montez that she relocate to avoid service and that Appellant offered to “take care
of ” any potential fines that Montez might be assessed should she ignore a subpoena to testify against him

. The State also produced evidence that key witnesses, Montez
and Rachell , attempted to recant their statement s after Appellant and his first attorney met before Appellant’s first trial. These interactions with wi tn esses are19

circumstantial evidence from which a jury could determine Appellant’s
“con sciousness of guilt.” In light of the abundant circumstantial evidence against Appellant, viewed in the light most favorable to the verdict, we hold that sufficient evidence exists to support Appellant’s murder conviction. We overrule Appellant’s first issue on appeal

. Appellant also claims that the evidence is insufficient to support his
convictions for witness tampering. A person commits the offense of tampering with
a witnes s if, “with intent to influence the witness, he offers , con fers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding

. . . ( 3) to elude legal process summoning him to testify or supply evidence [or] (4) t o absent himself from an official proceeding to which he h as been legally summoned.”
P ENAL § 36.05(a)(3), (4) (West 2016)

. The j ury convicted Appellant under both of
these theories of tampering : that he offered Montez a benefit to (1) avoid a subpoena and (2) ignore an existing subpoena. The Penal Code defines “benefi t” as “anything reasonably regarded as pecuniary gain or pecuniary advantage.” Id. § 36.01(3). The purpose of the statute “has been interpreted broadly to prohibit corruption of the judicial process.” Arnold v. State , 68 S.W. 3d 93, 98 (Tex. App.

— Dallas 2001 , pet. ref’d). Appellant argues that, although he offered to pay the fine for Montez should
she ignore the subpoena, payment of a fine does not confer a benefit because she will not experience a net gain

. We disagree. The st atute broadly defines benefit as anything that provides pecuniary , or monetary, gain or advantage. The offer to pay
a fine falls squarely within the plain meaning of the language of the statute. See Mosley v. State , 983 S.W.2d 249, 256 (Tex. Crim. App. 1 998) (stating that courts interpret statutes by giving words their plain meaning).20

Here, the State produced evidence that Appellant offered to “take care of” potential fines for Montez if she avoided future summons es or failed to appear in response to a served summons

. Montez testified that she understood “take care of” to mean that Appellant would pay fines for her

. Appellant also offered Montez a place to stay with the mother of one of his children to avoid a subpoena

. Although
the address of the house was not recorded in the call, Montez testified that she and Appellant talked about her relocating and other ways to avoid future subpoenas. She
said that the recorde d call was the only time that they had ever made concrete plans

. Because Montez also testified that she was in between housing and needed a place to stay , a jury could have reasonably conclude d that the offer to find Montez a place to stay so that she could avoid a future subpoena would confer a benefit or advantage. Accordingly, we find that sufficient evidence exists for Appellant’s witness

tampering convictions. We overrule Appellant’s seco nd issue on appeal

. In Appellant ’ s third issue , he argues that the trial court erred when it den ied
his request for a hearing on his motion for new trial. However, the parties dispute
whether Appellant requested a hearing , there by preserving the error for our review

. Appellant contends that he timely filed a motion for new trial and properly presented a proposed order in which he request ed a hearing. The State argues that , because Appellant did not request a hearing in his motion for new trial , the proposed order
filed on November 27, 2018 , in which Appellant did request a hearing, was an untimely amendment that was not properly presented to the trial court

. We agree with the State that Appellant failed to preserve the issue for review. A defendant may file a motion for new trial no later than thirty days after the trial court imposes sentence in open court. T EX

. R. A PP

. P . 21.4(a). Here, t he trial

court imp osed the sentence s on October 23, 20 18 , and Appellant’s 30

- day window closed on November 22, 2018. However, in 2018, the Thanksgiving holiday
occurred on November 22 and 23, which extended the window for timely filing to21

Monday, November 26. See T EX

. G OV ’ T C ODE A NN

. § 662.003(a) (8), (b)(6) (West
2012 ) (listing Thanksgiving D ay and the following Friday as holidays). Therefore, Appellant timely filed his motion for new trial on November 26, 2018

. A motion for new trial must be “presented” to the trial court within ten days of being filed. T EX

. R. A PP

. P. 21.6. The purpose of presentment is to put the trial

court on actual notice that the moving party desires “the judge to take some action,
such a s making a ruling or holding a hearing, on his motion for new trial.”
Gardner v. State , 306 S.W.3d 274, 305 (Tex. Crim. App. 2009). The movant has
the burden of presentment, which “must be apparent from the record.” Id. ; see also Carranza v. State , 960 S.W.2d 76, 79 (Tex. Crim. App. 1998 )

. The movant can show presentment with “the judge’s signature or notation on the motion or proposed order, or an entry on the docket sheet showing presentment or setting a hearing date.” Gardner , 306 S.W.3d at 305

. Although p resentment can be shown in many ways, c ounsel’s statement that a motion was presented is not
sufficient to show that the trial court had actual notice of the request for a hearing. Rodriguez v. State , 425 S.W.3d 655, 663 (Tex. App.

— Houston [14th Dist.] 2014 , no pet

. ) ; see also Bearnth v

. State , 361 S.W.3d 135, 145 (Tex. App.

— Houston [1st Dist.] 2011, p e t. ref’d) (“ W e cannot conclude that the presentment requirement was satisfied where the record shows only defense counsel’s statement that the motion had been presented, but does not indicate that counsel in fact communicated the

reques t for a hearing in a timely manner to a person capable of acting on it.”). Likewise, an uncorroborated affidavit by def ense counsel in which counsel states that counsel discussed a motion or request for a hearing with the trial court is insufficient to show presentment absent other evidence in the record. See Perez v.
State , 429 S. W .3d 639, 644 (Tex. Crim. App. 2014). The record must contain some
evidence that the defendant or his counsel took “steps to obtain a setting or attempted to get a ruling on a request for a hearing.” Id.22

Appellant argues that the “Certificate of Presentme nt” (Certificate) filed by Appellant’s c ounsel shows that the request for a hearing was timely presented to the
trial court. However, the Certificate states that the proposed order, in which Appellant requested a hearing, was filed with the trial court on November 27, 2018.
T he Certificate further contains a state ment that counsel “informed” the trial court that Appellant “desired a hearing.” Even assuming for the sake of argument that the
conversation counsel refers to took place , the conversation did not take place on the record, and uncorroborated affidavits by c ounsel are insufficient to show presentment. Likewise, the docket sheet does not contain any notations or settings after the final day of trial. Therefore, w e can not say on this record that Appellant met his burden to present his request for a hearing on the motion for new trial

. Because Appellant did not give the trial court actual notice of his desire for a hearing on the motion, he failed to preserve his complaint for review. As such, we do not reach the question of whether the trial court abused its discretion when it did

not hold a hearing on Appellant’s motion for new trial . We overrule Appellant’s
third issue on appeal

. In Appellant’s fourth issue on appeal , he argues that the trial court erred when
it admitt ed, over a Rule 504 spousal privilege objection, recorded conversations
between himself and his wife

. See T EX

. R. E VID . 504. A spouse who is incarcerated, Appellant argues, h as “ no choice but to communicate via monitored communications, and so the privilege should apply.” However, Appellant does not
cite , and we have not found , any authority to support that proposition. We review a trial court’s decision to admit evidence under an abuse of
discretion standard. Wall v. State , 184 S.W.3d 730, 743 (Tex. Crim. App. 2006);
Walker v. State , 406 S.W.3d 590, 593 (Tex. App.

— Eastland 2013 , pet. ref’d). A
court abuses its discretion if its decision lies outside the zone of reasonable disagreement. Cantu v. State , 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). We23

disregard nonconstitutional errors that do not affect substantial rights. T EX

. R.
A PP

. P. 44.2(b). A substantial right is affe cted when the error has a substantial effect or influence on the jury’s verdict. Casey v. State , 215 S. W.3d 870, 885 (Tex. Crim. App. 2007).
Rule 504 of t he Texas Rules of Evidence provide s married persons with the privilege to refuse to disclose , and to prevent disclosure of , a “ confidential
communication ” made to t h e person’s spouse while they were married. T EX

. R.
E VID . 504(a)(2). The rule further define s “ confidential ” communication as a
communication made “privately to the person’s spouse” that is “not intend [ ed for] disclosure to any other person.” Id. 504 ( a)(1).

“ The United States Supreme Court has held ‘ that society is not pr epared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell.’” State v. Scheineman , 77 S.W.3d 810, 812 (Tex. Crim. App. 2002) (quoting Hudson v. Palmer , 468 U.S. 517, 52 6 (1984)). Although the Texas Court of Criminal Appeals has not addressed spousal privilege in this context, the
court has addressed whether a person has a right to privacy , or a reasonable expectation of privacy , while incarcerated. In Scheineman , the court considered
whether a prisoner had an expectation of privacy in relation to a conversation that
he had with his codefendant while incarcerated . One of the factors that the court
considered was the absence of “oral assurances of privacy.” Id. at 813. Ultimately , the court found that t he “[ l ] oss of privacy is an inherent incident of confinement. ”
Id. (citing Hudson , 468 U.S. at 528 ). Although Appellant claims that he had a subjective expectation of privacy because of his spousal relationship, he had no reasonable expectation of privacy

. Appellant made more than 5,000 calls during his incarceration before trial. At trial, Appellant testified that he was aware of the preamble on all outgoing jail calls in
which it was stated that all calls are subject to monitoring and recording

. Therefore,24

Appellant could not have reasonably expected that his conversations were made “privately” to his spouse as required under Rule 504(a) (1), (2). Appellant’s argument that his only option to communicate with his spouse is equally unavailing in light of the inherent loss of privacy associated with confinement. Because we find
that the recorded conversations were not private, and therefore not privileged, the
trial court did not abuse its discretion when it adm itt ed the recordings. We overrule
A ppellant ’ s fourth issue on appeal

. We affirm the judgment s of the trial court.

JIM R. WRIGHT
SENIOR CHIEF JUSTICE

January 14 , 20 2 1 Do not publish. See T EX

. R. A PP

. P . 47.2(b).
Panel consists of: Bailey , C.J., Trotter, J., and Wright, S.C.J. 1

Wil l iams , J., not participating

.

1 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.