









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

 



NO. PD-0943-11


MEGAN WINFREY, A.K.A. MEGAN WINFREY HAMMOND, Appellant


v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS

SAN JACINTO COUNTY



Johnson, J., delivered the opinion of the Court in which Price, Womack,
Keasler, Hervey, Cochran, and Alcalá, JJ., joined.  Keller, P.J., filed a dissenting
opinion.  Meyers, J., dissented. 

O P I N I O N


	In August 2004, Murray Burr, a man who worked at the local high school that appellant
attended, was found dead in his home with numerous stab wounds and multiple sharp- and blunt-force injuries.  Appellant was sixteen years old in 2004.  In 2007, after an investigation that included
dog-scent lineups, appellant and her father and brother were taken into custody and charged with the
murder.  Her indictment contained two counts: capital murder during the course of robbery and
conspiracy to commit capital murder.  Her father and brother were named as co-conspirators in the
conspiracy count.  A jury convicted appellant of both counts.  The trial court sentenced appellant to
life imprisonment for the capital-murder count and forty-five years' imprisonment for the conspiracy
count.  The court of appeals affirmed the convictions, with one justice dissenting.  Megan Winfrey
v. State, 338 S.W.3d 687, 689 (Tex. App.-Beaumont 2011). (1) We reverse the judgment of the court
of appeals and render acquittals on both counts.
Facts
	In August 2004, Murray Wayne Burr was found murdered in his home.  Evidence at trial
indicated that the victim had been stabbed or cut twenty-five times in the head and neck area and
three times in the torso and had also received multiple blunt-force trauma that produced a broken
right jaw and eye orbit.  No other injuries were noted by the assistant medical examiner.
	There was no evidence of forced entry into the victim's home.  A blood trail indicated that
the victim had been dragged from his living room into his bedroom, where his body was found, but
there was no indication of a violent struggle.  Shortly after the murder, family members reported that
the only item that they thought was missing from the victim's home was a Bible.  His wallet was in
the house, and except for the blood and the body, nothing in the home appeared to be disturbed. 
Some time later, a relative said that he thought that two guns were missing.
	Investigators collected hair, blood and DNA samples, a bloody footprint, and fingerprints
from various places in the house and a DNA swab from women's underwear that was found in
Burr's bedroom.  They also took a casting of a footprint in the front yard.  Hair samples recovered
from Burr's body contained a partial female DNA profile.  The DNA profiles that were developed
from the collected items either matched the victim or did not match any of at least nine individuals
who were questioned in regard to the murder.  No physical evidence connected appellant or her
family to the scene, nor were she or any member of her family connected to the property assumed
to be missing from Burr's home.  Megan Winfrey v. State, 338 S.W.3d at 689.  The only evidence
that purported to directly connect appellant to the crime scene was a "scent lineup" conducted by
Keith Pikett.
	At appellant's trial, before Deputy Pikett testified, Ranger Grover Huff testified that he had
witnessed the scent lineup for appellant's scent samples.  He noted that the grass was too high to see
the cans on the video of the lineup and that Deputy Pikett "is having me reposition the cans.  She [the
bloodhound] doesn't  react.  The wind had switched or something.  You could tell by the way the
grass was."  
	Deputy Pikett testified that, at the 2007 dog-scent lineups, the two dogs both alerted on
appellant's scent sample. (2)  Pikett indicated that the dog alerts reflected that the dogs alerted to her
scent being on Burr's clothes, indicating that appellant had had contact with Burr's clothing. (3)  	In August of 2004, appellant voluntarily consented to an interview with a Texas Ranger who
was investigating this murder and voluntarily provided buccal swabs, scent pads, and fingerprints
to him.  In August of 2006, pursuant to a court order, a deputy sheriff attempted to obtain a pubic-hair sample from appellant, but it was determined that she had shaved that morning; the deputy did
obtain such a sample thirty days later.  The deputy testified that appellant voluntarily consented when
the second request was made.  
	Appellant's ex-boyfriend, Jason King, who had dated her for six months after the murder,
testified that appellant had received information that a search warrant was going to be conducted for
her pubic hair and that she then shaved herself.  King also testified that, after the shaving incident,
when appellant received a phone call informing her that her brother had been arrested, she went to
see her ex-husband, Hammond, and spoke with him about having attended a concert together around
the time of the murder.  "King understood the conversation as an attempt to establish an alibi." (4)
Megan Winfrey, 338 S.W.3d at 695.  King also related that, while they were "partying and drinking,"
appellant had told him that going into Burr's home "was an easy lick," which he took to mean she
would get money.
	Karen Robertson, a teacher or teacher's assistant from appellant's high school, (5) testified that,
in the summer of 2004, she saw appellant approach Burr at school and ask him, "When are you going
to take me out and spend that money that you have?  We know you have that money hid [sic] at
home."  In the state's rebuttal, another teacher testified to overhearing appellant refer to Burr and say,
"Somebody should beat the shit out of him," although that teacher acknowledged that appellant then
apologized to the teacher and said she did not mean to have said that aloud and that she lived near
Burr and "was just tired of all his cats."  Other evidence showed, and appellant conceded, that on
occasion she and her brother visited Burr at his home, which was near their residence, on their way
to church.  She also testified that the Winfreys sometimes asked the victim to go to church with
them, but that he would decline.
	On direct appeal, appellant claimed that the evidence was legally and factually insufficient
to establish that she had committed the capital murder or the conspiracy to commit capital murder
and alternatively, that, based upon our holding in Richard Winfrey v. State, 323 S.W.3d 875, 876-78
(Tex. Crim. App. 2010), (6) the evidence was insufficient to establish that she had committed those two
offenses.
	In reviewing the sufficiency of the evidence to support the convictions, the court of appeals
set aside the dog-scent lineup evidence because such evidence was insufficient to establish
appellant's guilt beyond a reasonable doubt.  Megan Winfrey, 338 S.W.3d at 694.  After reviewing
all of the other evidence, including evidence at the crime scene, appellant's statements and conduct,
and an informant-inmate's testimony about appellant's father's purported statements while
incarcerated nearly two years after the murder, the court of appeals determined that the evidence
supports the jury's decision and thus affirmed the judgment.  Id., passim.  The court of appeals also
held that, with regard to appellant's conspiracy conviction, the fact that appellant's alleged co-conspirators (her father and her brother) were either acquitted of, or not charged with, conspiracy did
not bar her from being convicted of the conspiracy.  Id. at 698-99.
Capital Murder
	We granted review of appellant's two grounds.  Her first ground challenges the capital-murder conviction and asserts that the court of appeals's holding that the evidence was legally
sufficient to sustain that conviction conflicts with this Court's decision in Richard Winfrey  v. State,
323 S.W.3d 875, "with respect to the same evidence and with this Court's decision in Brooks v.
State, [323 S.W.3d 893 (Tex. Crim. App. 2010)], which requires rigorous and proper application of
Jackson v. Virginia's exacting standards."  Her second ground challenges the conspiracy conviction
and questions "the court of appeals'[s] holding, contrary to the dictates of §15.02(c)(2), Texas Penal
Code, that a conviction for conspiracy can be sustained even though the only other conspirators have
been acquitted." 
	Appellant asserts that, unless the canine scent lineup is treated as primary evidence, "there
is no evidence which implicates appellant in this murder either directly or by application of the law
of parties."  She argues that the majority opinion of the court of appeals conflicts with our decision
in Richard Winfrey, 323 S.W.3d 875, supra.  Appellant contends that "[i]t is inconceivable that the
jury did not convict on the basis of the scent lineups[,]" regardless of the court of appeals's attempt
to analyze the evidence wholly without regard to the dog-scent lineup.  She argues that the dog-scent
lineup evidence "is not sufficiently reliable to be accorded any weight, even a supporting role." 
	"[W]hen conducting a legal sufficiency review, this Court considers all evidence in the record
of the trial, whether it was admissible or inadmissible." Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999).  See also Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) ("When
conducting a sufficiency review, we consider all the evidence admitted, whether proper or
improper."); Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006) ("[A] reviewing court
is permitted to consider all evidence in the trial-court record, whether admissible or inadmissible,
when making a legal-sufficiency determination.").  Thus, regardless of whether the dog-scent lineup
evidence was properly admitted, such evidence is properly considered in a review of the sufficiency
of the evidence.  
	The court of appeals specifically stated that "the dog-scent lineup evidence is insufficient to
establish [appellant]'s guilt beyond a reasonable doubt, and we set it aside from our sufficiency
review" (7) and thus did not consider the dog-scent lineup evidence in its review of the sufficiency of
the evidence.  In its brief on discretionary review, the state does not assert that the court of appeals
erred in doing so.  We do observe that the dog-scent lineup evidence, with the dog alerting to
appellant's scent on Burr's clothing, simply indicates that appellant had had some contact with
Burr's clothing, although the timing, circumstances, and degree of that contact cannot be determined.
	We apply Jackson v. Virginia, 443 U.S. 307 (1979), as the standard for reviewing the
sufficiency of evidence.  "In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable inferences therefrom, a
rational fact finder could have found the essential elements of the crime beyond a reasonable doubt." 
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011), citing Jackson v. Virginia, 443 U.S.
at 318-19.  In Brooks, supra, we also determined that, when viewing the evidence in the light most
favorable to the verdict, "the reviewing court is required to defer to the jury's credibility and weight
determinations because the jury is the sole judge of the witnesses' credibility and the weight to be
given their testimony."  Brooks, 323 S.W.3d at 899, citing Jackson, supra at 319 and 326.  The court
of appeals properly noted that standard and that "[i]t is unnecessary for every fact to point directly
and independently to the guilt of the accused; it is enough if the finding of guilt is warranted by the
cumulative force of all the incriminating evidence."  Megan Winfrey, 338 S.W.3d at 694, citing
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
	In Richard Winfrey, supra, we discussed evidence that involves use of canines to differentiate
among human scents in order to identify a specific person in a lineup, i.e. human-scent
discrimination.  We ultimately held that, "when inculpatory evidence is obtained from a dog-scent
lineup, its role in the courtroom is merely supportive." Id. at 884.  We concluded that dog-scent
lineups, "when used alone or as primary evidence, are legally insufficient to support a conviction."
Id.  While a dog-scent lineup might have raised a "strong suspicion" of appellant's father's guilt,
standing alone it was insufficient to establish his guilt beyond a reasonable doubt.  Id. at 885. 
Appellant argues that this dog-scent lineup evidence is even less incriminatory of her, while the state
points to multiple evidentiary facts which it insists are sufficiently incriminatory, above and beyond
the dog-scent lineup evidence.  Thus we must review these additional evidentiary facts to determine
whether they are sufficient to prove appellant's guilt.
	Appellant asserts that the principle evidence cited by the court of appeals-her ex-boyfriend's
testimony that she called Burr an "easy lick," and the jailhouse informant's testimony that her father
told him that one of his kids was supposed to let him into Burr's house-does not implicate her in this
crime, nor does it place her at the scene at or near the time of the murder:  She contends that, when
"[v]iewed outside the tainted prism of the dog-scent evidence, these two pieces of weak
circumstantial evidence do not support a reasonable inference that appellant was involved in the
murder, knowledgeable about the murder, or even present at the time of the crime."  Appellant also
asserts that there was no testimony presented at trial that implicated her in the murder, there was no
physical evidence that connected her to the crime scene or Burr, but there was physical evidence,
including DNA, hair, and a footprint in Burr's blood, that did not match her or her family members
and for which the source could not be identified.  She suggests that nearly all of the evidence was
of the sort that she would have introduced, had the state not done so.
	Appellant acknowledges testimony that one of her teachers heard her say to Burr that she
knew he had money hidden at his home, but she notes that there was no evidence that money was
taken from Burr's home and points out that Burr's wallet was still at the residence, atop the washing
machine.  She also discounts the state's efforts to imply that there was money in Burr's missing
Bible.
	Appellant also questions the incriminating nature and sufficiency of testimony that her ex-boyfriend had heard her discuss with her ex-husband whether they were at a concert the night of the
murder.  She asserts that such a discussion establishes nothing more than investigation of a possible
alibi, for which any prudent person, upon learning of the possibility of being criminally charged,
would search his memory, and that of close friends and relatives, in order to determine his
whereabouts at the time a crime occurred and discover any witnesses who could support an alibi. 
Echoing the court of appeals's dissenting opinion, she suggests that "this was not in any sense
evidence of the creation of a false alibi." Appellant's brief at 38.
	Appellant questions the nature of the ex-boyfriend's testimony that she shaved her pubic area
after having learned that a search warrant had been issued to obtain a sample of her pubic hair.  She
points out that the boyfriend never claimed that she had not shaved that area previously, and the
undisputed facts show that she cooperated in the investigation "by voluntarily submitting to an
interview, and by providing scent exemplars, buccal swabs, and fingerprints[,]" and that she
subsequently provided the pubic-hair sample. Appellant's brief at 38.  Appellant also suggests that,
in light of her unchallenged testimony that she ordinarily shaved her pubic area, her ultimate
provision of the pubic-hair sample, and her earlier full cooperation in providing other samples that
would have been used to determine whether any of the forensic evidence from the crime scene
connected her to it-the same purpose as the pubic-hair sample-any speculation or conjecture
predicated upon her ex-boyfriend's testimony about the timing of the shaving "seems faint indeed."
	Appellant challenges the testimony of another of her teachers that she clenched her fist and
said that somebody should "beat the shit out of" Burr, purportedly because she was mad about his
cats.  She notes evidence indicating that she subsequently had friendly dealings with Burr and
suggests that, without context or timing, the incident described by this teacher warrants little weight,
even in an analysis that views the evidence in the light most favorable to the verdict.
	Appellant asserts that none of the circumstantial evidence, separately or cumulatively, rise
to a level beyond mere speculation and that "a criminal conviction may not properly rest upon
speculation and conjecture." She argues that "[t]he dog-scent lineups-represented to the jury as
scientifically authentic and essentially infallible-explain the verdicts here" and suggests that "[t]hose
verdicts do not comport with due process and should be set aside."
	The state acknowledges that "review of the evidence in this case begins with a strong
suspicion of [her] guilt." State's brief at 14.  Yet a strong suspicion of guilt does not equate with
legally sufficient evidence of guilt.  In discussing our opinion in the appeal of the conviction of
appellant's father, the state focuses upon whether the dog-scent evidence is corroborated, insists that
there is ample corroboration, and notes six items of corroborating evidence that it argues "connect
[appellant] directly to this brutal murder."  Yet in Richard Winfrey, supra, while acknowledging that
we, like the Supreme Court of Washington, "believe that '[t]he dangers inherent in the use of dog
tracking evidence can only be alleviated by the presence of corroborating evidence,'" (8) we simply
held that "when that inculpatory evidence is obtained from a dog-scent lineup, its role in the
courtroom is merely supportive." Richard Winfrey v. State, 323 S.W.3d at 884 (quoting State v.
Loucks, 98 Wash.2d 563, 567, 656 P.2d 480, 482 (1983)).  We specifically held "scent-discrimination lineups . . . to be separate and distinct from dog-scent tracking evidence." Id. at 883. 
We did not say that such dog-scent lineup evidence must be corroborated to be legally sufficient
evidence of guilt, but rather that such evidence "is merely supportive" of the remainder of the
evidence.  As merely supportive evidence, dog-scent lineup evidence cannot itself constitute
sufficient evidence of guilt.  The state acknowledges that the "issue of the admissibility of the dog
scent evidence was settled in her father's case and need not be reargued here." State's brief at 28. 
The state also recognizes that "[t]he same dog scent evidence is present in this case." State's brief
at 14.  Appellant acknowledges that "[i]n this case, no objection was made to the dog scent
evidence." Appellant's brief at 22.
	The state compares its suggestion of evidence corroborating the dog-scent evidence with the
statutory requirement of Texas Code of Criminal Procedure art. 38.14 that "[a] conviction may not
be had upon the testimony of an accomplice unless corroborated by other evidence tending to
connect the defendant with the offense committed."  "This rule is a 'statutorily imposed review and
is not derived from federal or state constitutional principles that define the legal and factual
sufficiency standards.'" Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008), quoting
Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007); Solomon v. State, 49 S.W.3d 356,
361 (Tex. Crim. App. 2001) ("The accomplice-witness rule is not based upon federal or state
constitutional notions of sufficiency.").  We do not use the accomplice-witness rule in evaluating the
sufficiency of evidence, including evidence derived from a dog-scent lineup.  We simply review all
of the evidence in the light most favorable to the verdict, and the dog-scent lineup evidence "is
merely supportive" of the remainder of the evidence. (9)
	In reviewing all of the evidence in the requisite light, we include the six items of
corroborating evidence that the state asserts connect appellant directly to the instant murder.  These
six items include: 1) testimony that appellant believed that Burr had money in his home, and she
wanted it; 2) appellant's father's jail cell-mate, Campbell, testified that appellant's father related
specific information about the murder, including that the father's children had let the father into the
house, that Burr had been stabbed repeatedly, and that guns had been stolen from the house,
whereupon law-enforcement officials, who had not known that guns were missing, then talked to
Burr's relatives and confirmed that guns were missing; 3) when appellant heard that her brother had
been arrested for the murder, she asked her boyfriend to take her to her ex-husband's house,
allegedly to discuss their daughter, but instead discussed only a possible alibi for the night of the
murder; 4) after her ex-husband was subpoenaed, appellant called his mother to find out if he was
going to testify; 5) when she learned that law-enforcement personnel had found a pubic hair at the
crime scene, appellant shaved herself, allegedly to prevent the taking of a sample of her pubic hair;
and 6) appellant told her boyfriend that she went to Burr's house because "it was an easy lick,"
which the boyfriend construed to mean appellant thought she would get money.
	The state also points to testimony that there was a drop of blood underneath and a drop on
top of the overturned vacuum cleaner in the closet and suggests that this allowed the trier of fact to
"draw the inference that these drops and their positioning could have occurred when the murderer
was in the closet taking the guns and looking for items to steal." (10)
	Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007).  While juries are permitted to draw multiple reasonable inferences as long
as each inference is supported by the evidence presented at trial, "juries are not permitted to come
to conclusions based on mere speculation or factually unsupported inferences or presumptions." Id.
at 15.  "[A]n inference is a conclusion reached by considering other facts and deducing a logical
consequence from them," while "[s]peculation is mere theorizing or guessing about the possible
meaning of facts and evidence presented."  Id. at 16.  "A conclusion reached by speculation . . . is
not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt." Id.
	The circumstantial evidence that the state presents as indicia of appellant's guilt of the
capital-murder offense appears more speculative than inferential as to appellant's guilt.  Campbell
testified that appellant's father told him that just one of his children allowed him to gain access to
Burr's house but did not say which one, nor did he indicate the time, circumstances, or manner in
which access to the house was gained.  Campbell also testified that he did not know appellant, had
never met her, that everything he was being asked was "hearsay to this trial[,]" and that he did not
"feel right today testifying against her."  When pressed by defense counsel, Campbell conceded that 
he "got the impression" that appellant's father was present during the murder, but stated, "Everything
that I am saying today is hearsay . . .."  Campbell also indicated that appellant's father's main
concern was that his kids were being framed for the murder and that he could not understand why
they were going after his kids.  While Campbell's testimony in this trial appears somewhat
incriminatory as to appellant's father, that testimony does not specifically inculpate appellant. 
Perhaps most tellingly, Campbell repeatedly asserted that, not only had appellant's father told him
things that only someone who had been present at the murder would know, but that he contacted law
enforcement only after appellant's father described how the victim's penis had been cut off and
"crammed into" the victim's mouth.  If that claim had been fact, it surely would have been noted by
the medical examiner, but was not; all injuries were to the victim's head, neck, back and left arm.
	The evidence of appellant's shaving of her pubic hair seems much less significant in light of
her unchallenged testimony that she regularly shaved it, her later provision of the requested sample,
and the determination that her hair did not match a hair recovered from the scene.  With regard to
appellant speaking with her ex-husband about having attended a concert around the time of the
murder, we do not perceive any indicia of guilt from simply discussing a possible alibi for the time
of the murder; alibi is a legitimate non-statutory defense.  We also fail to discern any particular
incrimination in appellant contacting her ex-husband's mother to determine whether he was going
to testify at trial.  Appellant's expression of knowledge that Burr had money in his home that she
wanted and that she went to his house because "it was an easy lick" does not reveal any action on
her part to actually kill Burr and take his money, and it is even less incriminatory when we consider
that the police investigation was unable to determine that any money had been taken from Burr
during the course of the murder. (11)  The state's suggestion of an appropriate inference (12) drawn from
blood drops on the vacuum cleaner supports no connection to appellant at all because the DNA of
those blood drops did not match any of the Winfreys.
	The record reflects that, in 2006, law enforcement contacted Burr's family about the
possibility that guns may have been taken.  Burr's brother-in-law, who had seen the guns in Burr's
possession several months before the murder and, approximately three to five months before the
murder, had seen one in Burr's home, confirmed that, after the murder the guns were not in Burr's
home and have never been located.  However, there was no evidence indicating when and under
what circumstances the gun or guns were removed from Burr's home, no evidence that appellant had
any involvement with the removal of the gun or guns from the home, or that the guns were removed
during the course of the murder.  Burr's sister testified that, when she walked through the house after
the murder, she noted that Burr's Bible was missing.  Her testimony does not in any way implicate
appellant in the removal of the Bible from Burr's home or prove that there had been money hidden
in it.
	Basing a finding of appellant's guilt on this evidence and all of the other evidence is, at best,
"mere theorizing or guessing" about appellant's possible guilt rather than a reasonable inference
based upon evidence and facts presented.  "A conclusion reached by speculation . . . is not
sufficiently based on facts or evidence to support a finding beyond a reasonable doubt."  Hooper v.
State, 214 S.W.3d at 16.  After reviewing all of the evidence in the light most favorable to the guilty
verdict, we hold that the evidence merely raises a suspicion of appellant's guilt and is legally
insufficient to support a conviction of capital murder beyond a reasonable doubt.  Accordingly we
sustain appellant's first ground for review.
Conspiracy to Commit Capital Murder
	On direct appeal, appellant argued that the evidence was insufficient to establish that she had
committed conspiracy to commit capital murder.  In this Court, appellant notes "that the conduct at
issue is an agreement.  It is the agreement that defines conspiracy." (13) Alternatively, she asserts that
§ 15.02(c)(2) does not permit conviction for conspiracy when the only other conspirators have been
acquitted and that the contrary holding by the court of appeals constitutes fundamental error. (14) 
	The state asserts that § 15.02(c)(2) was construed correctly.  It notes that two people have not
been acquitted, as the statute requires and argues that appellant is attempting to circumvent the first
element of the statute, § 15.02(c)(1)-that it is no defense to prosecution for criminal conspiracy that
"one or more of the coconspirators is not criminally responsible for the object offense[.]" (15) 
	We find that we do not need to address the proper interpretation of the statute in this case
because the record does not contain evidence on which a reasonable jury could find that appellant
agreed with one or both of the alleged co-conspirators that one or more of them would engage in
conduct that would constitute the alleged capital murder or that one or more of them performed an
overt act in pursuance of such an agreement.  Appellant addressed and argued the issue of agreement
in her brief to the court of appeals: "The State could not produce a single witness that was able to
produce any evidence [that] Appellant agreed with anyone to murder Murray Burr in the course of
a robbery." Appellant's brief on appeal at 33.  The state responded in its brief: "The agreement to
commit the crime may be inferred from the acts of the parties."  State's brief on appeal at 30.  And,
although the majority opinion did not explicitly address the agreement element, the dissenting
opinion in the court of appeals noted that the issue had been raised and, implicitly, overruled by the
majority: "A person commits the offense of conspiracy if, with intent that a felony be committed,
she agrees with one or more persons to engage in conduct that would constitute the offense, and she
performs an overt act in pursuance of the agreement. Tex. Penal Code Ann. § 15.02(a) (West 2003).
. . .  Moreover, there was no evidence, other than the scent lineup evidence, from which an
agreement between Winfrey and her brother or father to commit the crime could be inferred." 
Megan Winfrey, at 708-09 (Kreger, J., dissenting). Because the issue was raised (and rejected) in the
court below, it is properly before this Court. (16)

	Regardless of whether the acquittal of appellant's brother of conspiracy, combined with her
father's acquittal of the murder and the state's election not to indict him for conspiracy, constituted
a defense to the prosecution for the criminal conspiracy, the evidence in the record is insufficient to
sustain the agreement element of the conspiracy statute.  Appellant is thus entitled to the requested
relief regarding her criminal-conspiracy conviction.
	We reverse the judgment of the court of appeals and render a judgment of acquittal for each
offense. Burks v. United States, 437 U.S. 1, 18 (1978) (which required the remedy of appellate
acquittal on grounds of evidentiary insufficiency).

Delivered: February 27, 2013
Publish
1.  Appellant's father, also accused of this capital murder, was convicted of the lesser-included offense of
murder.  His conviction was affirmed by the court of appeals but, on discretionary review, we reversed his conviction
and entered a judgment of acquittal. Id. at 885. A jury acquitted appellant's brother of this same capital murder and
conspiracy.  Richard Winfrey v. State, 323 S.W.3d 875, 876, n.1 (Tex. Crim. App. 2010).
2.  An "alert" occurs when the dog matches a scent collected from the victim to the suspect's scent pad.
Richard Winfrey v. State, 323 S.W.3d at 877, n.3.  In this case, Deputy Pikett indicated that the dogs alert in different
manners. E.g.,"James Bond is going to turn 90 degrees if he finds the right can[,]" while "Quincy is going to turn
sideways and bark, and Clue is going to turn and jump on [Pikett]." V R.R. 74.  But ultimately Pikett makes the
decision as to whether a dog has alerted. V R.R. 75-76.
3.  We note that the time at which a scent was left on an item cannot be determined.
4.  It was established at trial that the concert that appellant and Hammond attended was on the day the
victim's body was discovered.  Appellant did not raise the concert as an alibi.
5.  At the time of trial, Robertson was employed as the Crime Victim Assistant Coordinator for the local
district attorney's office.
6.  The evidence was insufficient to support the murder conviction of appellant's father for killing the same
named victim that appellant was convicted of killing and conspiring to kill. Id.
7.  Megan Winfrey, 338 S.W.3d at 694.
8.  We note that dog-tracking is the activity performed by tracking dogs such as bloodhounds, often when
searching for persons who are missing or thought to be involved in a criminal act.  In those circumstances, the dog is
given a scent, and it then follows that scent, with humans following where the dog leads.  Dog-scent lineups are
activities performed by humans who use tracking dogs to match a known scent sample to an unknown scent sample.
9.  We again note that, since the court of appeals did not consider the dog-scent lineup evidence in its review
of the sufficiency of the evidence-it "set it aside from [its] sufficiency review"-and the state has not asserted that the
court of appeals erred in doing so, we do not consider the propriety of setting aside such evidence in reviewing the
sufficiency of the evidence.
10.  DNA from the blood did not link any of the Winfreys to the murder scene, nor was there any evidence
that connected any of them to the missing guns.
11.  When asked at trial if she understood Burr to have a lot of money, appellant stated, "No.  He was a
janitor."
12.  The state suggests that the blood drops allowed the trier of fact to "draw the inference that these drops
and their positioning could have occurred when the murderer was in the closet taking the guns and looking for items
to steal."  That inference may very well be an appropriate one, but it, without a DNA or other connection to
appellant, does not implicate her.
13.  Section 15.02(a) provides that a person commits criminal conspiracy if, with intent that a felony be
committed, 1) he agrees with one or more persons that they or one or more of them engage in conduct that would
constitute the offense; and 2) he or one or more of them performs an overt act in pursuance of the agreement.  Tex.
Penal Code § 15.02(a).
14.  Section 15.02(c)(2) provides, "It is no defense to prosecution for criminal conspiracy that: . . . (2) one or
more of the conspirators has been acquitted, so long as two or more coconspirators have not been acquitted."
Presumably, "two" includes the person on trial.  Without such a presumption, a conspiracy between only two persons
could result in one person being acquitted and the other convicted, resulting in a conspiracy of one.  Such a result is
barred.  Barber v. State, 764 S.W.2d 232, 234 (Tex. Crim. App. 1988) (In a § 15.02 criminal-conspiracy
prosecution, "[o]ne person acting alone cannot commit conspiracy.").  
15.  We observe that the state's briefing on this issue consists of one page of conclusory statements and
addresses only the meaning of the statute.  The only supporting authority is a citation to a 2010 opinion from the
Texas Supreme Court that holds that "[p]lain meaning is the dominant factor in applying a statute."  The state sets
out no evidence of an agreement, and we find none in the record.
16.  See, e.g., Benavidez v. State, 323 S.W.3d 179, 183 & n.20 (Tex. Crim. App. 2010) (in its discretionary-
review capacity, this Court reviews "decisions" of the courts of appeals; an issue that the lower court did not pass
upon is not ordinarily ripe for our review).

