Affirmed and Memorandum Opinion filed July 26, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NOS. 14-15-00398-CR
                                    14-15-00399-CR
                                    14-15-00400-CR

                         SANDRA F. BERRY, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 185th District Court
                             Harris County, Texas
               Trial Court Cause Nos. 1462610, 1462961, 1462962

                  MEMORANDUM OPINION
      In two issues, appellant Sandra Berry appeals her convictions for murder,
arson, and tampering with evidence, complaining: (1) the evidence presented at
trial was legally insufficient to establish her guilt of each of the offenses, and (2)
the trial court erred in admitting a portion of a video wherein appellant invoked her
right to counsel. We affirm.
                                I.    Background

      On April 28, 2014, the Houston Fire Department responded to a report of a
burning vehicle in a vacant field located in Harris County, Texas. After
extinguishing the fire, firefighters found Houston Edwards’ body in the SUV. He
was found face-down in the back seat under an air mattress with a gunshot wound
to the head. His body was significantly burned. A medical examiner at the Harris
County Institute of Forensic Sciences determined that Edwards was killed by a
close-range gunshot wound to the head. The medical examiner also determined
that, although Edwards’ body sustained extensive burn damage, all of his burns
occurred post mortem. Several containers of ignitable liquids were found at the
scene, and investigators determined that the SUV was set aflame using an ignitable
liquid. Investigators also found pools of Edwards’ blood near the field entrance and
inside the vehicle, which caused investigators to conclude that Edwards was killed
somewhere else and transported to the location where his body was found.

      Investigators additionally reviewed security videos from several nearby
businesses. The videos revealed a black Lexus sedan driving with the SUV towards
the crime scene. Officers observed that, at the time the SUV was set on fire, the
Lexus circled the block with its headlights off. The video later showed a figure
running from the blaze to the Lexus. Based on the surveillance videos, officers
concluded that two people were involved.

      Edwards and appellant lived together and held themselves out as common-
law husband and wife. Two months prior to his death, Edwards purchased a life
insurance policy, naming appellant as the beneficiary. Witnesses testified that
appellant began making inquiries about the policy shortly after Edwards’ dead
body was discovered. Also, witnesses testified that before Edwards’ death,
appellant said she was tired of his “messing with her son”; that, if she killed him,
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no one would know; and that she attempted to acquire a gun.

      After learning appellant had possession of the keys for a black Lexus owned
by Edwards and similar to the one depicted in the video footage, a Houston Police
Department homicide investigator interviewed appellant. During the course of that
interview, appellant stated that she had not left her apartment at all during the
evening of April 27 and that neither she nor anyone else had used the Lexis sedan
that evening; however, records for appellant’s and her son’s cell phones showed
that both phones were active in the same general area where Edwards’ body was
found.1 At a second interview with investigators, appellant initially suggested that
someone else had used her telephone and driven her Lexus. Later, appellant said
she was forced by another party to go for a ride, though she could not identify the
other party. During the interview, appellant also admitted to having a burn on her
leg, which she attributed to running into a barbeque pit. An arson investigator,
however, reviewed pictures of appellant’s burns and determined that they were
third-degree burns, which are consistent with prolonged exposure to high
temperatures; thus, he concluded, appellant’s burns were not caused by running
into a barbeque pit.

                             II.     Sufficiency of the Evidence

      A.        Standard of Review

      In her first issue, appellant contends the evidence was legally insufficient to
support her convictions for murder, arson, and tampering with evidence, because
the State failed to put on any “direct evidence to prove that appellant was the
perpetrator . . . of any of the crimes.” In reviewing the sufficiency of the evidence,
we consider all of the evidence in the light most favorable to the verdict and

      1
          At trial, an expert witness analyzed the cell phone data to reach this conclusion.

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determine, based on that evidence and any reasonable inferences therefrom,
whether any rational factfinder could have found the elements of the offense
beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We do not sit as
thirteenth juror and may not substitute our judgment for that of the factfinder by
reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). Rather, we defer to the factfinder to fairly
resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences
from basic facts to ultimate facts. Id. This standard applies equally to both
circumstantial and direct evidence. Id. Each fact need not point directly and
independently to appellant’s guilt, as long as the cumulative effect of all
incriminating facts is sufficient to support the conviction. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).

      B.     Murder

      As charged in this case, in order to convict appellant of murder, the State
was required to prove that appellant either intentionally or knowingly caused
Edwards’ death, or intentionally caused serious bodily injury to Edwards by
shooting him with a firearm, an act clearly dangerous to human life. See Tex. Penal
Code § 19.02(b)(1). Appellant argues principally that only circumstantial evidence
was presented at trial to substantiate her conviction for murder; however, even for
an offense as serious as murder, “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.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). In cases where the available evidence is circumstantial in nature, “it is
not necessary that every fact and circumstance ‘point directly and independently to
the defendant’s guilt; it is enough if the conclusion is warranted by the combined

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and cumulative force of all the incriminating circumstances.’” Temple v. State, 390
S.W.3d 341, 359–60 (Tex. Crim. App. 2013) (quoting Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993)).

      Here, the circumstantial evidence presented by the State included cell phone
records, which placed appellant and her son in the area of the burned vehicle at the
time of the incident; video evidence, which showed a black Lexus sedan (similar to
one used by appellant) circling the block near where Edwards’ body was
discovered and someone running from the scene of the burning vehicle; the
presence of a substantial burn on appellant’s leg, which the State contended could
have been caused by high temperatures such as those produced by a burning
vehicle but not by brief contact with a barbeque pit; several inconsistent statements
made by appellant to investigators; and several statements appellant made to
witnesses about killing Edwards and her attempt to secure a gun before the murder,
which served to demonstrate motive and intent. Additionally, the jury was able to
observe appellant’s shifting explanations during the videotaped interviews with
officers.

      Having reviewed the record in the light most favorable to the verdict, we
hold the jury rationally could have found appellant guilty of murder beyond a
reasonable doubt. See Ford v. State, 444 S.W.3d 171, 181 (Tex. App.—San
Antonio 2014) (detailing circumstantial evidence supporting defendant’s murder
conviction), aff’d, 477 S.W.3d 321 (Tex. Crim. App. 2015). The combined and
cumulative force of the incriminating circumstances presented by the State point
toward appellant’s guilt. See Temple, 390 S.W.3d at 359–60.

      C.     Arson

      Appellant similarly argues that mere circumstantial evidence was presented
at trial to substantiate her conviction for arson. In order to convict appellant of
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arson, the State was required to prove that appellant unlawfully started a fire by
igniting a flammable liquid with the intent to destroy or damage a vehicle owned
by Edwards and knowing either that the vehicle was within the Houston city limits
or had within it property belonging to another. See Tex. Penal Code §
28.02(a)(2)(A), (E).

      At trial, the State presented evidence regarding the location where the SUV
was found burning and evidence indicating that the fire was the result of an
intentional act. Specifically, evidence reflected that containers of ignitable fluids
were discovered around the vehicle. Furthermore, the State presented cell phone
records, indicating appellant was in the area at the time of the event; video
evidence, showing a black Lexus sedan like the one appellant used circling the
block and someone running from the scene of the burning vehicle; testimony
appellant had discussed killing Edwards, whose body was found in the rear of the
burned SUV; and evidence appellant had likely endured contact with high
temperatures like those associated with a burning car. Additionally, the State
introduced photographs of the vehicle as it was found showing a considerable
amount of property inside the SUV as well as Edwards himself, who is wearing
clothes in the photographs. The photographs further show downtown Houston
nearby in the background. Having reviewed the record in the light most favorable
to the verdict, we hold the jury rationally could have found appellant guilty of
arson as charged.

      D.     Tampering with Evidence

      Finally, appellant argues no direct evidence was presented that she tampered
with evidence. In order to convict appellant of evidence tampering, the State was
required to prove that appellant unlawfully altered, destroyed or concealed a
human corpse, knowing a murder had been committed, with the intent to impair its

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availability as evidence. See Tex. Penal Code § 37.09. The jury could well have
considered all of the evidence discussed above concerning the convictions for
murder and arson in concluding that appellant endeavored to conceal proof of her
crime. Having reviewed the record in the light most favorable to the verdict, we
hold the jury rationally could have found appellant guilty of tampering with
evidence beyond a reasonable doubt. Accordingly, we overrule appellant’s first
issue.

                              III.   Motion to Suppress

         In her second issue, appellant contends that the trial court erred in denying
her motion to suppress a portion of her recorded statement to police wherein she
contends she invoked her right to counsel. The videotape in question actually
contained two separate references to an attorney. The trial court agreed to exclude
the second reference, in which appellant specifically requested to speak to an
attorney. The first reference came in an exchange with an investigator. Appellant
began, “I think I need a . . .” before trailing off and not finishing the sentence.
Then she said, “I don’t know if I should be talking with someone or talking with a
lawyer or what or . . . . I just don’t know right now.” The investigator replied,
“That’s up to you.” Appellant then said, “I don’t know. I really don’t,” and the
interview continued for several more minutes before appellant made a definitive
request to speak to a lawyer.

         We review the trial court’s denial of a motion to suppress evidence for an
abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App.
2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). When
we review a trial court’s denial of a motion to suppress, we give “almost total
deference to a trial court’s express or implied determination of historical facts” and
review de novo the court’s application of the law to the facts. Id. We view the

                                           7
evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007). The trial court is the “sole trier of fact and
judge of the credibility of the witnesses and the weight to be given to their
testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The
trial court may choose to believe or disbelieve any part or all of a witness’s
testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). We sustain
the trial court’s ruling only if it is reasonably supported by the record and correct
on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857
(Tex. Crim. App. 2003).

      Under the Fifth Amendment to the United States Constitution, among the
rights the police must advise a suspect whom they have arrested is the right to have
counsel present during any police-initiated interrogation. State v. Gobert, 275
S.W.3d 888, 892 (Tex. Crim. App. 2009). Once a suspect invokes her Fifth
Amendment right to counsel, interrogation must cease until counsel has been
provided or the suspect herself reinitiates a dialogue. Id. Not every mention of a
lawyer, however, constitutes an invocation of the right to counsel; an ambiguous or
equivocal statement does not even require officers to halt the interrogation or even
seek clarification. Id. Whether a particular mention of a lawyer constitutes a clear
invocation depends upon the contents of the statement itself and the totality of the
surrounding circumstances. The test is objective in nature, i.e., “the suspect must
articulate [a] desire to have counsel present sufficiently clearly that a reasonable
police officer in the circumstances would understand the statement to be a request
for an attorney.” Id. at 892-93 (quoting Davis v. United States, 512 U.S. 452, 458-
59 (1994)).

      Here, appellant’s statement clearly indicated she was wondering whether she
should speak to lawyer but had not yet decided to ask for one. The investigator

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even reassured appellant that the decision was up to her, to which she responded
she really did not know at that point. It was not until a few minutes later that
appellant actually requested counsel. Even assuming that the Fifth Amendment
applied at the time of appellant’s statement, this exchange did not constitute a clear
invocation of the right to counsel but was at best an ambiguous and equivocal
statement.2 See, e.g., Morrow v. State, No. 03–13–00175–CR, 2015 WL 1216956,
at *4-5 (Tex. App.—Austin March 13, 2015, no pet.) (mem. op., not designated for
publication) (holding defendant’s statement, “I don’t know if I need an attorney or
not,” was not an unequivocal invocation of the Fifth Amendment right). We
conclude that a reasonable officer would not have understood appellant’s statement
as a request for an attorney. Accordingly, the trial court did not err in denying that
portion of appellant’s motion to suppress, and we overrule her second issue.

       We affirm the judgment of the trial court.




                                                   /s/ Martha Hill Jamison
                                                       Justice



Panel consists of Justices Boyce, Christopher, and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).




       2
        The State additionally points out that appellant was not under arrest at the time of her
statement.

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