                                                           FILED IN COURT OF APPEALS
                                                             12th Court of Appeals District




            IN THE COURT OF CRIMINAL APPEALS
                                     OF TEXAS

                                     NO. PD-1214-11




                           JASON THAD PAYNE, Appellant

                                             v.




                                THE STATE OF TEXAS


        ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE TWELFTH COURT OF APPEALS
                                    WOOD COUNTY


     KEASLER, J., delivered the opinion of the Court, in which Keller, P.J, PRICE,
Womack, Johnson, Hervey, Cochran, and Alcala, JJ., join. Cochran, J., filed a
concurring opinion. MEYERS, J., filed a dissenting opinion.

                                      OPINION


       In an unpublished opinion, the Twelfth Court of Appeals held that Jason Payne's

capital murder conviction was supported by legally sufficient evidence, and that several
erroneously admitted victim statements were harmless.1 While we agree the evidence was
legally sufficient to support Payne's conviction, we remand this case for anew trial because

       1 Payne v. State, No. 12-10-00027-CR, 2011 WL 1662856, *5 (Tex. App.—Tyler,
April 29, 2011) (not designated for publication).
                                                                                   PAYNE—2


the court ofappeals erred in concluding that the admission ofthe statements was harmless.
                         I. Factual and Procedural Background

       At 9:09 a.m. on December 11, 2007, Payne called 911 from his house, told the

operator that his wife and step-son had been shot and requested help. The Wood County
Sheriffs Deputies who responded encountered Payne with his daughter standing on the
driveway leading to his house. Upon searching the house, Lieutenant Miles Tucker found
Payne's wife, Nichole, lying dead in her bed with agunshot wound to her head. He noticed
the strong smell of gunpowder in the room, and that Nichole's body was warm to the touch.
Lt. Tucker subsequently found Payne's teenage stepson, Austin Taylor Wage,2 dead in his
bedroom. He had been shot in the face—and based on Lt. Tucker's observation of the

stippling on Austin's face—at relatively close range. Austin's cold, stiff body was found
lying back on his bed, with his feet on the floor, and arifle standing upright between his legs.
Lt. Tucker did not smell gunpowder in Austin's room, nor did he observe blood or brain

matter on the ceiling or wall in Austin's room as he did where Nichole was found.
       No signs ofstruggle or forced entry into the home were noticed at the scene. Ashell
casing, which was forensically determined to have been fired from the rifle resting against
Austin, was found on the floor ofAustin's room near his body. Another was located in the
rifle. Abadly mutilated projectile was found upon removal ofAustin's body. The projectile



       2 The record frequently refers to this victim as "Taylor." But the court ofappeals's
opinion used the name "Austin." For consistency, we do as well.
                                                                                  PAYNE—3


was unable to be forensically analyzed, but was consistent with the rifle's gauge. The

officers also discovered clothes, including a man's coat, in the clothes dryerwhich were still

warm when they searched the scene. The officers also searched Payne's truck parked just

outside the house. There, they found a white wash cloth which contained bright red, fresh

blood. Upon a broader search of the property, officers discovered two large holes in a

wooded area some distance from the house, which witnesses described as resembling graves

that were mechanically or physicallydug. However,otherthan testimonythatthe holes were

noticed in late November 2007, the State presented no additional evidence concerning the

holes.


         Laterthat day, officers interviewed Payne, whodenied anyinvolvement inthe deaths.

The interview was video recorded and shown to the jury. He explained to the officers that

he left home with his five-year-old son and his two-year-old daughter around 8:00 a.m,

dropped his son off at school, and then returned home. As he pulled into the driveway, he

claimed he turned around to head into town to get pigeon feed for Nichole's bird business

because they ran out. They made it about half way to town when his daughter said she

wanted to go to the park. Payne stated that, before going to the park, he thought he should

inform Nichole of their plan to do so, and he returned home around 8:15 a.m. But instead

of goinginside the house to speak to Nichole, Payne said he andhis daughter went to throw

acorns into the creekontheir property. Aftertheywere done playingby the creek, Payneand

his daughter went to check on the birds. He claimed they then went into the house to ask
                                                                                   PAYNE-


Nichole where the bird seed was located when he discovered the bodies of Nichole and
Austin. He did not check to see if either were alive or breathing, nor did he touch them or

try to wake them. He recognized the rifle near Austin's body as his ".30-30" that he kept in
the hall closet. Payne stated he and Nichole had a"fallout" the night before, but claimed that
it was over "little stuff." He maintained that he and Nichole did not have any marital or
financial problems. He acknowledged receiving approximately $300,000 from apersonal
injury settlement, though he stated that after seven or eight months very little ofit remained.
       Through witness testimony and documentary evidence, the State attempted to show
the Paynes' poor financial situation. With the settlement proceeds, the Paynes made
substantial purchases, including ahome without amortgage and three cars. At the time of
Nichole's death, the couple's bank records indicated that their account was overdrawn in
excess of$200. Payne's unemployment due to his injuries and the Paynes' reliance on a
thirteen-percent loan from an attorney caused Nichole to become depressed, for which she
sought medical treatment and was prescribed an anti-depressant. Also, Payne attempted to
sell his fishing boat in ahurried manner. Payne told the buyer that he wanted to sell his boat
in asingle day so he could allegedly buy another boat. He sold it for $13,000, which was
$5,000 less than his outstanding loan on the boat. When the buyer returned afew days later
to finish the paperwork necessary for the sale, he did not see any boat on the property.
Additionally, in the few months before her death, Nicole began sending her ex-husband
postcards telling him that the couple needed money.
                                                                                  PAYNE—5


       When Nichole and Payne purchased auto and home insurance, the staff at the

insurance agent's officeasked themif theywould also liketo purchase life insurance. They

were initially interested. In June 2007, a month or so after the solicitation, Nichole and

Payne each applied for individual $250,000 life insurance policies with riders for their

children. However, after the policies' premiums were calculated approximately fifteen

percent higher than previously quoted for Nichole and significantly higher for Payne, the

Paynes chose only to secure a $100,000 lifeinsurance policy for Nichole with $10,000 riders

for the children whichnamed JasonPayne as theprimary beneficiary. Following the deaths

of Nichole and Austin, the insurance agent submitted a claim to State Farm on his own

initiative. When asked to give a recorded statement about the deaths, Payne refused andwas

consequently unable to collect on the policy.

       Thejuryalso heard testimony thatNichole and Payne'smarriage was notahappy one.

Nichole's father testified that Payne did not want Nichole to have contact with her family.

Nichole's ex-boyfriend testified that Nichole called him approximately two months before

her death andexpressed thather marriage caused her to be "as unhappy as sheeverhad been

in her life" and that she was planning on getting a divorce. Sarah Hawthorne, Nichole's

sister-in-law and best friend, recalled discussing the marital relationship with her in August

2007. Nichole told her that she wanted a divorce and that Payne had threatened to burn her

alive in the house. According to Hawthorne, Nichole was upset and "begged me ... to

avenge herif something happened to her." After thevisit, Hawthorne and Nichole frequently
                                                                                 PAYNE—6


spoke about Nichole's relationship with Payne. At times, Nichole would call Hawthorne
from the closet or from the back of their property, away from their house. Hawthorne last

spoke to Nichole the night before her death. Nichole was upset, and again repeated that she

wanted a divorce and that Payne had threatened to kill her.

       The forensic testing on therecovered items atthe scene did not affirmatively establish

the perpetrator's identity. No identifiable finger prints or smudges were found on the rifle

orthe shell casings. No blood was found on the clothes collected from the dryer. According

tothe forensic expert, machine washing does not typically remove all forensically detectable

blood. Although no gunshot residue was detected on Payne's hands, residue was detected

on the back ofNichole's left hand and a singleparticlewas detected on the back of Austin's

right hand. DNA testing confirmed that the blood found on the wash cloth was Nichole's
and the clothes Austin was wearing contained only his blood, not Nichole's.

       Dr. Keith Pinckard, the medical examiner who performed the autopsy on Nichole's

body and supervised Austin's autopsy, testified that Nichole's cause ofdeath was a gunshot
wound to the back of the head. The gaping exit wound was consistent with that caused by

a high-powered rifle fired at close range. The manner ofdeath was identified as homicide
or, as described by Dr. Pinckard, "death by the hands ofanother." Dr. Pinckard testified that

Austin's cause ofdeath was a gunshot wound to the face, with the entry point being his upper

lip and the exit wound located on the back ofhis head toward the right side. The path ofthe

bullet was front to back, upwards, and slightly left to right. The presence of soot and
                                                                                  PAYNE—7


stippling on Austin's face indicated that the gun was fired at a relatively close range. Dr.

Pinckard listed Austin's manner of death as undetermined because the nature of the wound

and the estimated range of fire raised the question of whether it would have been possible

for Austin to position and fire the rifle himself. Noting the intermediate range from which

the wound was inflicted, Dr. Pinckard could not rule out suicide.

       Whether Austin shot Nichole and then committed suicide was a significant defensive

issue attrial. More specifically, the issue evolved into whether itwas physically possible for

Austin to have committed suicide using theriflefound atthescene. TheState introduced the

testimony of several witnesses who attested to Austin's reputation for being peaceful and

nonviolent. But both sides devoted considerable expert testimony to the subject, with each

party's experts contesting the opposing experts' testing protocols and ultimate conclusions.

During his investigation, Lt. Tucker sought the assistance of Noel Martin, a crime scene

investigator with the Smith County Sheriffs Office, to give his assessment ofwhat likely

occurred at the scene. Martin concluded that Austin committed suicide and was probably

responsible for Nichole's death. However, Lt. Tucker had reservations about Martin's

opinion. Noting several inconsistencies with that conclusion, including the nature of

Austin's wound which indicated a non-contact wound, his experience that suicides typically

involve contact wounds, no visible blowback blood found on Austin's clothing, and no

apparent blood spatter on the walls or ceiling ofAustin's room, Lt. Tucker believed that the

scene had been staged to look like a murder-suicide. He sought additional assistance from
                                                                                   PAYNE—8


Tom Bevel, a crime-scene reconstructionist, and Richard Ernest, a firearms expert.

       Bevel testified that the lack ofblood on Austin's finger, his pants, and the floor nearby

was inconsistent with the theory that Austin committed suicide. In reviewing the crime scene
photographs, Bevel did not observe any of the forward spatter that would have originated
from the exit wound, and the amount ofblood found on Austin's hand was greater than the
small amount he would have expected from blowback or blood spatter from the entry wound.
The positioning of the gun when discovered, in his opinion, was inconsistent with having
been being fired at a45-degree angle because the significant recoil ofthe rifle would have
caused the gun to "kick outward" against the hard surface found in Austin's room. Bevel
further testified that, based on the lack ofblood in one location and lack ofblood in the
carpet and on Austin's lower extremities, he would not expect the rifle to have been found
resting against the top of Austin's hand.
       Through his test firing ofthe rifle and his observations ofthe soot and the spread of
gunpowder particles from the rifle when fired led Bevel to concluded that the rifle was eight
to ten inches from Austin's face when fired. Bevel also concluded that positioning the rifle
in a manner consistent with the trajectory of the bullet and holding the rifle no closer than
eight inches from the face, it would have been very difficult for Austin to fire the rifle using
his hand to manipulate the trigger based on his arm length. In his opinion, it would have
been impossible for Austin to fire the rifle in this manner holding the rifle beyond eight
inches. Further, the mechanical function of the rifle, namely having to press the safety and
                                                                                     PAYNE—9


pull the trigger to fire the rifle, added to the difficulty offiring from this eight- to ten-inch
range. Bevel discounted the theory that Austin could have fired the weapon using his toe to
depress the trigger. In previous cases where Bevel concluded this type of firing occurred,
he witnessed an indentation in the sock of the person caused by placing a toe in the trigger

guard. Bevel did not see any indentation in Austin's socks in the photographs taken at the
scene. Lastly, Bevel concluded that the evidence was more consistent with the theory that
Payne shot Nichole and Austin. He referred to the lack ofevidence suggesting athird party's
presence in the house, the fact that there were no signs of a struggle or forced entry, the
temperature differences between the bodies, and the strong smell ofgunpowder in Nichole's
room and the absence of it in Austin's room.

       Richard Ernest, the State's firearm expert, concluded that the muzzle-to-target

distance was twelve inches, plus or minus two inches. He further opined that, based on the
length ofthe rifle, the trigger location, and the muzzle-to-target distance, for Austin to have
fired the riflehe would havehadto holdthebarrel while working the safety leverandtrigger

with both feet or use along device not found at the scene. While stopping short ofclaiming

that itwould be impossible, he testified that itwas unlikely that Austin shot himself.
       Testifying for the defense, Noel Martin agreed with the State's witnesses that Nichole
was shot in the head with the recovered rifle from a distance of less than an inch away while

asleep in her bed. With respect to Austin, Martin testified that not only was it physically
possible for Austin to shoot himself with the rifle, but that Austin's death was indeed a
                                                                                    PAYNE—10


suicide. When Austin shot himself, Martin believed he was seated on the bed, holding the
rifle with his right hand at or near the muzzle with the rifle's butt end resting on the floor and
the rifle positioned at a45-degree angle. And from his testing ofthe rifle, he opined that it
was possible for Austin to fire the rifle while positioning the muzzle four to eight inches
(plus or minus two inches) away from his face. Even though he believed Austin used his
hands to fire the rifle, Martin concluded that he could have used his foot and held the rifle
up to twenty inches away from his face. In his opinion, the rifle's safety mechanism did not
require a lot ofpressure and was easily defeated.
       Martin based his suicide conclusion on finding atomized blood on the carpet located

in front of Austin's body, the soot pattern found on Austin's face indicating an upward
trajectory, and ablood stain on Austin's thigh that appeared to strike his leg at a90-degree
angle, which is consistent with Martin's theory ofhow Austin was positioned at the time the
gun was fired. Martin took issue with the State's theory that the scene was staged. First, he
noted that the blood found on the rifle and the lack ofblood in other places was consistent
with the way the rifle was found and that it was not moved. Second, he testified that it is
impossible to tell where arifle will end up after being fired. Third, he claimed that it was not
possible that Austin was shot in another location because the high-velocity blood spatter
found on his hand would be impossible to stage.

        Ed Hueske, Payne's firearms expert, also concluded that Austin shot himselfwith the
rifle while seated on the bed with his feet on the floor, but believed the muzzle-to-target
                                                                                 PAYNE—11


distance was between four and ten inches. From his dry-fire testing of the rifle, he too

concluded that Austin would have been able to fire the rifle manually or with his toe.

Because a foot falling tothe floor could straighten out a wrinkle or crease in a sock, Hueske

opined that the lack of a visible crease or wrinkle in Austin's sock did not rule out the

possibility that Austin fired the rifle with his toe.

       The jury convicted Payne of capital murder, and because the State did not seek the

death penalty, he was sentenced to life imprisonment. He appealed, arguing that the evidence
was legally insufficient to support his conviction and that he was harmed by the trial court's

erroneous admission of several hearsay statements admitted through Sarah Hawthorne's

testimony. We granted review of these two issues which the court of appeals resolved

against him.

                                     n. Legal Sufficiency

       In finding the evidence sufficient, the court of appeals dismissed the State's

circumstantial evidence and focused exclusively on the forensic evidence both sides

presented. The court further focused its legal-sufficiency analysis on whether ajury could
have concluded that Austin did not shoot himself. After reviewing the forensic evidence, the

court determined that Payne's theory was implausible ifnot impossible. Itfound compelling

the State's expert testimony about the position of Austin's body which rebutted Payne's

theory of the shootings. The court stated:

               Taking this forensic evidence together, and viewing it in a light
                                                                                 PAYNE—12


       favorable tothe verdict, we hold that a rational jury could have concluded that
       Austin did nottake hisown life. That determination flows fairly directly tothe
       conclusion that Appellant is the person who shot Nichole and Austin. There
       were other possibilities: Austin could have shot Nichole and Appellant shot
       Austin, or an unknown third party could have shot Austin or Nichole. But
       once the jury concluded that Austin did not shoot himself, the conclusion that
       Appellant shot them both is reasonable.3

       While we agree with the court of appeals's judgment that the evidence is legally
sufficient, we find the analysis it used in arriving at its conclusion improper. The court of
appeals discounted the value of the State's circumstantial evidence when it found, for
instance, that "[fjhe blood on the rag is not bright red, many married couples have life
insurance, the evidence is inconclusive as to whether the family was in any financial distress,
and [Payne's] denial of marital issues is neither surprising nor as unequivocal as the State
suggests it was."4 By disregarding this evidence's potential probative value, the court of
appeals injected an inappropriate "divide-and-conquer" approach into its analysis and failed
to consider all of the evidence presented at trial.5 After finding that the circumstantial
evidence was alone insufficient to support the verdict, the court ofappeals framed the legal-

sufficiency issue as "whether the jury could have concluded that the forensic evidence
showed that Austin did not shoot himself."6 Framing the issue inthis manner to incorporate



       3 Payne, 2011 WL 1662856, at *5.

       4 Id.

       5 See Merrittv. State, 368 S.W.3d 516, 527 (Tex. Crim. App. 2012).

       6 Payne, 2011 WL 1662856, at *5.
                                                                                  PAYNE—13


a defensive theory is reminiscent of the reasonable alternative hypothesis test long since

abandoned.7 "[Tjhe relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier offact could have found the essential elements

ofthe crime beyond a reasonable doubt."8 Applying this standard to the offense charged in

this case, the question is whether any rational jury could have found that Payne intentionally

or knowingly caused the deaths ofNichole and Austin during the same criminal transaction.9

       While we agree with the court of appeals's description of Payne's trial as "a contest

between two narratives"10 toldprimarily through theirrespective experts' testimony, aproper

legal-sufficiency analysis does not permit areviewing court to evaluate the evidence based
on which theory it views as more compelling. The proper standard accounts for the

factfinder's duty—the jury in this case— "to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts."1' Therefore,
in analyzing legal sufficiency, we "determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence when viewed




       7 See Laster v. State, 275 S.W.3d 512, 520-21, 522-23 (Tex. Crim. App. 2009).

      8 Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted).
      9 See TEX. Penal Code § 19.03(a)(7)(A) (West 2006).

       10 Payne, 2011 WL 1662856, at *3.

       11 Jackson, 443 U.S. at 319.
                                                                               PAYNE—14


in the light most favorable to the verdict »12

       "Our review of 'all of the evidence' includes evidence that was properly and

improperly admitted."13 When the record supports conflicting inferences, we presume that
the factfinder resolved the conflicts in favor ofthe prosecution and therefore defer to that
determination.14 Direct and circumstantial evidence are treated equally: "Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt."15

       In viewing the evidence in the light most favorable to the jury's verdict, we find the
evidence is sufficient to sustain Payne's conviction. It was uncontested that there were no
signs of struggle or forced entry into the home and that the injuries Nichole and Austin
suffered were caused by or were consistent with Payne's rifle that was found standing
between Austin's legs.

       In his recorded interview with law enforcement, Payne made several inculpatory
statements. Further, these statements demonstrate an attempt to conceal incriminating




        12 Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
        13 Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001).

        14 Jackson, 443 U.S. at 326.

        15 Hooper, 214 S.W.3d at 13.
                                                                                PAYNE—15


evidence and contain implausible explanations ofhis conduct on the day ofthe murders.1
First, Payne's recounting of the time line of the morning's events indicated that he had the

opportunity to shoot Nichole and Austin that morning. According to Payne, he returned

home from dropping his son off at school around 8:15 a.m. However, he did not call the

police toreport the shooting until 9:09 a.m. When hediscovered the bodies, he did not check

to see if they were alive or attempt to revive them.

            Second, as the State asserted in its closing argument, Payne's explanation of his

conduct thatmorning was "illogical." Payne's explanations asto why hefirst turned around

to head into town for birdseed and then turned around again to tell Nichole that they were

going to the park were undermined by what he later did when he returned home. When he

finally returned home, he did not attempt totell Nichole that they were going tothe park, and

when he entered the house, he did so only to ask Nichole where the birdseed was located,

even though he claimed that they were out.

        Third, basedon other admittedevidence, thejury couldrationallyconcludethat Payne

was purposely dishonest about his marital relationship and the couple's financial condition.

Notonly was thejuryable to make an adverse credibility determination, there was evidence

to permit ajury to conclude that Payne had a motive and the intent to commit the crime in



        16 See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (stating that
"[a]ttempts to conceal incriminating evidence, inconsistent statements, and implausible
explanations to the police are probative ofwrongful conduct and are also circumstances of
guilt.").
                                                                                 PAYNE—16


that their marital relationship was unhappy, he made previous threats to kill Nichole, and they
were experiencing financial distress. The jury heard from witnesses who stated that Payne
did not want Nichole to have contact with her family, that Nichole told them she was very

unhappy in her marriage, that Payne had previously threatened to kill her, and that Nichole
told Hawthorne that she should "avenge" her death should anything happen to her.
According to Payne, he and Nichole had an argument the night before her death. Also on the
night before her death, Nichole repeated her desire to obtain adivorce and claimed that
Payne threatened to kill her.

       Payne's admission ofthe dwindling settlementproceeds, the overdrawn bank account,
the hurried sale ofhis boat at a loss, Payne's unemployment, postcards from Nichole to her
ex-husband asking for money, and the meager income from Nichole's bird business is
sufficient evidence from which a jury could conclude that the family was experiencing
financial pressure. While he was the beneficiary on Nichole's life insurance policy secured
approximately six months before her death, it was Payne's refusal to give arecorded phone
call concerning Nichole's and Austin's death that prevented him from collecting on
Nichole's insurance policy. Ajuror could properly infer that Payne's unwillingness to give
the insurance company arecorded statement suggested Payne's involvement in the deaths,
especially in light of the on-going police investigation which identified him as apotential
suspect.

       Despite conflicting expert testimony, the jury also could have reasonably concluded
                                                                                  PAYNE—17


that the scene was staged to look like a murder-suicide. The State's experts concluded that

the scene was staged when considering the position ofthe rifle found near Austin, the nature

of Austin's wound, the type of weapon used, and the minimal amount and nature of the

biological material found near Austin. Even though witnesses noted alternative explanations
were possible, the lack offingerprints on the recovered rifle was also consistent with the
State's theory that the weapon was wiped off before being placed in Austin's lap. Had
Austin fired the rifle, the State's forensic expert testified, he would have expected to find

Austin's fingerprints or some indication that the weapon had been handled. As described
previously, there was extensive, albeit conflicting, expert testimony concerning the muzzle-
to-target distance and whether itwas physically possible for Austin to fire the rifle from that
calculated distance. However, the resolution of conflicting witness testimony is rightly

within the province of the jury; we cannot sit as the proverbial "thirteenth juror."17 When
confronted with conflicting theories and testimony, we defer to the jury's determination and

conclude that the jury must have resolved these conflicts in favor of its verdict.

       While each piece ofevidence lacks sufficiency when viewed in isolation, the totality

ofthe evidence, coupled with the reasonable inferences drawn from that evidence, is legally

sufficient to support Payne's capital murder conviction.

                     III. Nichole's Statements and Harmless Error




       17 Brooks v. State, 323 S.W.3d 893, 899-902 (Tex. Crim. App. 2010).
                                                                                  PAYNE—18


         The court ofappeals found the following portions of Sarah Hawthorne's testimony

were inadmissible hearsay and erroneously admitted: (1) on the night before her murder,

Nichole said that Payne threatened to kill her; (2) Nichole stated that Payne threatened to kill
her in the past; and (3) Nichole stated that Payne threatened to burn her alive in the house and
begged Hawthorne to "avenge" her death should anything happen to her.18 Finding these
errors harmless, the court of appeals stated that "the only plausible conclusion about the

evidence is that the jury concluded that Austin could not have shot himself based on the
physical evidence. In that context, the verdict rests on very substantial grounds and the
admission ofNichole's hearsay statements had little or no effect on the verdict."19

         Payne maintains that, while itapplied the correct harm analysis, the court ofappeals
erred initsconclusion that theadmitted statements were harmless. Inits reply brief, the State

claims that Payne failed to preserve this issue for appeal and, alternatively, the court of
appeals incorrectly held that admitting these portions of Hawthorne's testimony was
erroneous. However, the State did not raise these claims ina cross-petition for discretionary

review therefore these issues are notbefore us for review.20 Although error preservation is

       18 Payne, 2011 WL 1662856, at *7-8 (concluding that the statements were hearsay
and did not satisfy the exception found in Texas Rule ofEvidence 803(3) ("Then Existing
Mental, Emotional, or Physical Condition")).

         19 Id. at *8.

         20 See Batiste v. State, 888 S.W.2d 9, 10 n.l (Tex. Crim. App. 1994); Haughton v.
State, 805 S.W.2d 405,407 n.4 (Tex. Crim. App.1990); Keith v. State, 782 S.W.2d 861, 863
n.4 (Tex. Crim. App. 1989); Wilson v. State, 772 S.W.2d 118, 120. n.3 (Tex. Crim. App.
1989).
                                                                               . PAYNE—19


asystemic requirement that adiscretionary review court may address on its own motion if
warranted by the circumstances, we find no occasion to review the issue in this case in light
ofthe court ofappeals's finding that the error was properly preserved.21 Because we granted
review only to address the court ofappeals's harm analysis on this issue, we assume, without
deciding, that the admission ofthese statements was error.

       Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must
disregard anon-constitutional error that does not affect acriminal defendant's "substantial
rights."22 Asubstantial right is affected when the error had asubstantial and injurious effect
or influence in determining the jury's verdict.23 Ifthe improperly admitted evidence did not
influence the jury or had but aslight effect upon its deliberations, such non-constitutional
error is harmless.24 The question is not whether there was sufficient evidence to support the
verdict without the erroneously admitted evidence.25 Instead, we must examine the entire



        « See Jones v. State, 942 S.W.2d 1, 2n.l (Tex. Crim. App. 1997); Payne, 2011 WL
 1662856, at *6, n.4.
        22 TEX RAPP PRO 44 2(b) ("Other errors. Any other error, defect, irregularity, or
 variance that does not affect substantial rights must be disregarded."); see Garcia v. State,
 mSTw 3d 921,927 (Tex. Crim. App. 2004) (applying Texas Rule ofAppellate Procedure
 44.2(b) to improperly admitted statements from deceased victim).
        23   Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010).
        24 Id.

        25   See Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003).
                                                                                 PAYNE—20

                                                                                      26
record and calculate the probable impact ofthe error upon the rest ofthe evidence

       We disagree with both the court of appeals's harmless error analysis and its
conclusion. Like its legal-sufficiency analysis, the court ofappeals improperly focused on
the jury's rejection of Payne's defensive theory that Austin shot himself and failed to
evaluate the entire record. While the totality ofthe evidence is legally sufficient to sustain
Payne's capital murder conviction, itwas certainly not overwhelming. Thejury's verdict was
primarily supportedby the cumulation ofarguably weak circumstantial evidence. There were
no eyewitnesses; nor was there forensic or direct evidence clearly linking Payne to the deaths.
In the absence ofdirect evidence, establishing Payne's motive to kill Nichole was a critical
component ofthe State's case. Hawthorne's testimony that Payne threatened to kill Nichole
in the past, that Nichole asked her to "avenge" her should anything happen, and that Payne
again threatened Nichole's life the night before her death were among the most inculpatory
pieces of the State's evidence.

       This testimony was not merely cumulative ofNichole's fear ofPayne, herunhappiness
in her marriage, and her desire to divorce him; it forcefully established Payne's motive and
intent to murder Nichole in a manner other evidence adduced at trial, including Nichole's
other statements, could not. Without the admitted statements, the State's motive and intent
theory relied upon the Paynes' unhappy marriage and Payne's desire to remedy his dire
financial condition with the proceeds ofNichole's life insurance policy. Unlike the argument

       25 Coble, 330 S.W.3d at 280.
                                                                               PAYNE—21


that the marriage was an unhappy one, the life insurance theory has ambiguous support in the

record. While the jury could have rationally inferred that Payne's desire for the insurance

proceeds was the motive for Nichole's murder, the inference is not aparticularly strong one.

Payne did not seek out life insurance for himself and Nichole; itwas obtained in response to

asolicitation seven oreight months before Nichole'smurder. Upon hearing about the deaths,

the insurance agent submitted the claim on his own initiative. There is no evidence that

Payne ever made a claim on Nichole's policy or that Payne asked the agent to submit the
claim on his behalf. Payne's refusal to give the insurance company a recorded statement

alone does not prove that he murdered Nichole for the insurance proceeds.

       Nichole's statements that Payne had threatened tokill herdirectly established Payne's

motive unlike the State's other theories which required the jury to infer it. Further,

Hawthorne's powerful testimony that Nichole asked her to avenge her ifsomething happened
to her in essence allowed Nichole to testify "from the grave" and relay her beliefthat, if

something were to happen, Payne would be responsible. Perhaps these statements would be
less compelling had they been made by someone other than the victim or ifPayne had been
charged with a different offense. However, Payne's repeated threats to kill Nichole—one
ofwhich was quite specific as to how he would kill her and another which occurred the night
before herdeath—and Nichole's request for vengeance played directly toanissue before the

jUIy—whether Payne intentionally or knowingly caused Nichole's death. Although it did not
belabor Nichole's statements, the State incorporated them intoits closing argument andthey
                                                                                PAYNE—22


significantlysupplementedits explanation as to whyPaynekilledNichole. These statements

most likely had a telling effect upon the jury.

       In light of the absence of direct evidence linking Payne to the deaths combined with

the statements' indelible character, it is likely that these statements influenced the jury's

assessment of the State's circumstantial evidence, the inferences drawn from that

circumstantial evidence, and its resolution ofthe considerable amount of conflicting "battle

of the experts"-type testimony in the State's favor. We therefore cannot conclude that

Hawthorne's testimony did not influence the jury or had but a slight effect upon its

deliberations.


                                      IV. Conclusion


       We affirm the court of appeals's judgment that the evidence is legally sufficient to

sustain Payne's capital murder conviction. However, we find thatthe courtof appeals erred

in holding the admission of the statements harmless. Accordingly, we reverse the court of

appeals's judgment and remand to the trial court for a new trial.




DATE DELIVERED: February 27, 2013


DO NOT PUBLISH
            IN THE COURT OF CRIMINAL APPEALS
                                     OF TEXAS

                                     NO. PD-1214-11




                           JASON THAD PAYNE, Appellant

                                             v.



                                THE STATE OF TEXAS


        ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE TWELFTH COURT OF APPEALS
                                   WOOD COUNTY


       COCHRAN, J., filed a concurring opinion.

                                      OPINION


       I join the majority opinion. I write separately only to elaborate on why the error in

admitting Nichole Payne's out-of-court statements toher best friend, Sarah Hawthorne, was

harmful. Sarah's testimony that Nichole (1) told her that appellant had threatened to kill

Nichole the night before she was shot; (2) had previously told Sarah that appellant
"threatened to bum her alive in the house"; and (3) "begged" Sarah "to avenge her if

something happened to her" was inadmissible hearsay. The only issue before us is whether
                                                          Payne     Concurring Opinion   Page 2

that testimony could be considered harmless.
       Awitness who testifies to what the murder victim said before her death frequently
gives extraordinarily powerful testimony: The jury hears the victim's Cassandra-like voice
rising from the grave predicting her own death, detailing past abuses, and pointing the finger
ofblame at the defendant. The problem in this case was that the jury heard the voice ofwhat
the defense called the "avenging angel" of Sarah Hawthorne,1 not the words from Nichole
herself. Nichole cannot now be asked about her words and their context. This is an example
of classic inadmissible hearsay.

       The court of appeals was correct in concluding that this case hinged upon which
theory, defense or State, the jury believed. According to the defense theory, Austin,
appellant's stepson, killed his mother, Nichole, and then shot himself. According to the
State's theory, appellant shot and killed them both. Each theory was supported by
circumstantial evidence, neither was established by direct evidence.

       To prove its theory, the State relied on evidence ofappellant's motive to kill Nichole

       1The defense argued,
               The only thing we have to say that was alie was the State's avenging
       angel, Sarah Hawthorne, who came to tell all ofthese things that-he's going to
       burn her in the house, she has to hide in the closet to make a phone call. It's
       almost anightmare scene over there according to Sarah Hawthorne, but,
       again-and this time, it's Nichole's actions that are speaking so loudly that we
       can't hear Sarah Hawthorne.
Defense counsel argued that Nichole had her own car, she had her own business, she came and
went freely, and other witnesses had testified that this was anormal household. According to the
defense the State was asking the jury to believe awoman who "in her almost hysterical state said
that she'had vowed to avenge Nichole's death," implying that Sarah Hawthorne had "imagined"
false words into the dead woman's mouth.
                                                          Payne     Concurring Opinion     Page 3

and the lack ofany motive for Austin to kill either his mother or himself. Thus, evidence that
Nichole told her best friend that appellant had previously threatened to kill her-and had done
so on more than one occasion-was extremely powerful evidence in support ofthe State's

theory. It was powerful, but it was also highly prejudicial. Courts rarely conclude that such
hearsay "statements from the grave" by the murder victim are harmless error.2

       2See, e.g. Jones v. State, 515 S.W.2d 126, 129 (Tex. Crim. App. 1974) (out-of-court
statement by murder victim, defendant's husband, three years before killing that he believed
defendant was unfaithful to him was inadmissible to show deceased's state ofmind and was
prejudicial error); Dorsey v. State, 24 S.W.3d 921, 928 (Tex. App,-Beaumont 2000, no pet.)
(witness's testimony that murder victim said she was thinking of leaving the defendant-her
husband-and wanted the name ofa divorce lawyer was admissible under Rule 803(3) because it
showed her future intent to leave defendant, but testimony that the victim had said that if
anything "strange happened to me, like acar crash," it meant that the defendant had killed her
was an inadmissible statement ofpast belief; additional out-of-court statements by the deceased
victim that the defendant had held her down on the bed with a knife to her throat, had held a gun
to her head, and had put agun in her mouth were inadmissible because they were memories of
past events; in this circumstantial-evidence case, in which the State wove "a story of abuse and
fear," the error was harmful); Barnum v. State, 7S.W.3d 782, 789-91 (Tex. App.-Amarillo 1999,
pet. refd) (trial court reversibly erred in admitting awriting signed by the deceased which,
among other things, stated that she believed that the defendant was planning on murdering her to
collect the proceeds of her life insurance); Vann v. State, 853 S.W.2d 243, 249-50 (Tex.
App.-Corpus Christi 1993, pet. refd) (manslaughter victim's out-of-court statement that he
"wouldn't be surprised if[defendant-his wife] was waiting for me at home with agun and shot
me" was inadmissible under Rule 803(3) and harmful error); see also Crow v. State, No. 07-00-
0144-CR, 2001 WL 883006, at *7-8 (Tex. App.-Amarillo Aug. 7, 2001, pet. refd) (not
designated for publication) (reversible error to admit deceased victim's out-of-court statements
that defendant had given her ablack eye and busted lip in a circumstantial-evidence murder case
in which defense was that deceased was the first aggressor); Camm v. State, 908 N.E.2d 215,
225-28 (Ind. 2009) (reversible error to admit murder victim's out-of-court statement that she
expected her husband-the defendant-home about 7:30 on the evening she and her children were
murdered because evidence ofdefendant's alibi was conflicting and wife's statement was critical
in placing defendant at home when murder occurred); People v. Smelley, 775 N.W.2d 350, 358-
59 (Mich. Ct. App. 2009) (reversible error to admit murder victim's out-of-court statements that
defendant was after him and trying to kill him when only admissible evidence linking defendant
to murder was witness who testified he heard shots being fired as defendant's car passed in the
opposite direction), vacated in part on other grounds, 776 N.W.2d 310 (Mich. 2010); Blair v.
Commonwealth, 144 S.W.3d 801, 805-06 (Ky. 2004) (reversible error in murder case to admit
                                                      Payne Concurring Opinion Page 4
     In this case, the circumstantial evidence was not overwhelming, and Sarah
Hawthorne's testimony was not cumnlative of other, similar testimony. Furthermore, the
State emphasized the inadmissible testimony dnring its summation ofthe evidence. Close
to the beginning ofhis closing argument, the prosecutor noted that appellant had lied to the
officers when he told mem that his marriage was good. Then he explained how the jury
knew that was a lie:

       We knowin"
       tad£en  one1thing  that Nichole
                    ofhf;life.         Payne getadivorce,
                               She wantedto   was unhappy,matthis
                                                            the mostDefendanthad
                                                                     unhappy she
       teeateKd to kin her and threatened to bum her alive in her own house Do
       was the day before this Defendant killed Nichole Payne and Austin Taylor
        Wages DM you see how emotional that young lady was? Absolutely almost
        on the verge of crying.

 From there, the prosecutor talked about the couple's financial problems and other
  ircumstantial evidence of appellant's motive to murder Nichole.
 cir


        During his final argument, the prosecutor again brought up Nichole's out-of-court


 work and did not need to wait for check because that tea monys.pp
 m0neyfound  in <*^~-™£S$£S£g££*t
 Crowe v. Commonwealth, 38 b.W.Jd i /*, :><" «* W
                                                                       o admit out-of-
                                                  ' v.fnrp , ._ Ae;.ih to divorce
 court telephone  statement  made by«*•£»•*«£*££ttn    ct  c^onwas  based
 attorney's secretary that victim wanted to ^°*T*? SSSib testimony was
  on circumstantial evidence, evidence was not overwhelming, an •-



  choked her until she was unconscious).
                                                       Payne    Concurring Opinion       Page 5

statements in commenting on appellant's lack of credibility:

               He lied that day [to the police]. He said he had a good marital
       relationship. And Nichole had told several people she wanted a divorce, she
       wasafraid, she hadto have conversations withher family from a closet orshe
       had to get out ofthe house to have a conversation, that she feared him, that if
       something happened to her, that her family was to avenge her[.]

       Given the circumstantial nature of this case,the power of Nichole's "words from the

grave," and the State's emphasis on Sarah's testimony about Nichole's out-of-court
statements, I agree that the error in admitting those statements cannot be considered
harmless. They were devastating to the defense theory ofthe case, and they formed the core

of the State's theory concerning appellant's motive to kill his wife and stepson.



Filed: February 27, 2013
Do Not Publish
          IN THE COURT OF CRIMINAL APPEALS

                                   NO. PD-1214-11



                          JASON THAD PAYNE, Appellant



                               THE STATE OF TEXAS

        O^^PET^ANrslSrrTONF^RDLSCR^                                    REVIEW
                  FROM THE TWELFTH COURT OF APPEALS
                                   WOOD r-nTTivrTV



             MEYERS, J., filed a dissenting opinion.

                               T»TSSENTTNft OPINION

      The majority reverses after concluding that the court of appeals erred in
determining that the admission of several erroneously admitted victim statements was
harmless. Idisagree with this conclusion. After examining the court ofappeals opinion, I
agree that the admission ofthe statements was harmless error, and feel that the analysis
conducted by the court ofappeals is more accurate than the analysis conducted by the
                                                                        Payne Dissent-Page 2

majority. There is no way arational trier of fact would have reached adifferent result had
the error not occurred.1

       With these comments, I respectfully dissent.

                                                         Meyers, J.




Filed: February 27, 2013
Do Not Publish




      lTillman v. State, 376 S.W.3d 188 (Tex. App.-Houston [14th Dist.] 2012]
