                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                                NO. 2-07-389-CR


LESTER W INNINGHAM, JR.                                               APPELLANT

                                          V.

THE STATE OF TEXAS                                                          STATE


                                     ------------

         FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                     ------------

      OPINION ON PETITIONS FOR DISCRETIONARY REVIEW

                                     ------------

      Pursuant to rule of appellate procedure 50, we have reconsidered our

previous opinion upon reviewing Appellant Lester W inningham, Jr.’s and the State’s

petitions for discretionary review. See Tex. R. App. P. 50. W e withdraw our July 1,

2010 opinion and judgment, and we substitute the following primarily to comport with

the court of criminal appeals’s recent opinion in Brooks v. State, which was handed

down after our original opinion issued. See No. PD-0210-09, 2010 W L 3894613, at

*8, *14 (Tex. Crim. App. Oct. 6, 2010).
                                   I. INTRODUCTION

      A jury found W inningham guilty of murder and sentenced him to life

imprisonment.     The trial court entered judgment accordingly.         In two points,

Winningham contends that the evidence is legally and factually insufficient to support

his conviction.   Because we hold that the evidence is sufficient to support

W inningham’s conviction, we will affirm the trial court’s judgment.

                                   II. B ACKGROUND

      At roughly 6:30 a.m. on Friday, July 22, 2005, when mechanic Craig Bayer

arrived for work in Muenster, Texas, he saw a “heavy column of smoke” drifting into

the air in the field behind the shop where he worked. Bayer said that he initially did

not “think much of it,” believing that the smoke emanated from a truck that someone

had started. But as Bayer got closer to his shop, the smoke became more visible.

Bayer noticed fire and began to believe that someone was burning trash at the

business next door. Bayer described the flames as “six to eight feet tall [with] black

smoke coming off of it.” He looked for a water hose with the intent of putting the fire

out but did not find one. W hen Bayer came within ten to fifteen feet of the fire, which

had died down by then to a few feet high, he became certain it was not trash that

was burning. At first, Bayer did not believe what he was seeing. He thought that he

was seeing a “mannequin,” but then he noticed that the “toenails were painted and

[pantyhose were] around the feet” of the body in the fire. Bayer called 9-1-1 and




                                           2
chose not to attempt to extinguish the fire. Roughly five minutes later, the Muenster

fire chief arrived. At that time, by Bayer’s account, the fire was out.

      County officials called Texas Ranger Tracy Murphree to investigate. At trial,

Murphree described the scene:

      It was obviously a burned body of a white female, pretty much burnt
      beyond recognition. It appeared that the body, previously to being
      burned, was wrapped in some sort of blue tarp. Really unable to
      determine an age or anything because of the extensive burns. Also
      there, I saw a receipt from [an] Academy store in Arlington and a plastic
      bag that appeared to have [once] held a rope. Also noticed that on the
      receipt, there was a listing for a rope that was purchased on the receipt.
      As Murphree said, he found a July 2, 2005 receipt from an Academy Sports

store in Arlington, Texas, listing two items: a “10 X 16 POLY TARP” and a “1/4" X

50FT POLYG” rope. Murphree also found a partial footprint and a tire track. Plaster

casts were made. Murphree testified that because of the nature of the gravel road

and the highly trafficked area where the footprint and tire track were found, there

“wouldn’t be much to compare [the molds to].” Murphree said that the female body

had “a pretty obvious gunshot wound to about the midline section of the back.” At

that time, Murphree said, the body was still unidentified. The following Tuesday, July

26, 2005, Murphree received a call informing him that, through dental records, the

body had been identified as the body of Deborah Houchin.

      Assisted by the Arlington Police Department, Murphree went to Houchin’s

home to further investigate, where he encountered another gruesome scene. The

house was disheveled. Murphree saw blood-smeared eyeglasses in the kitchen,



                                          3
blood drops near the home’s computer, and a bloodied bullet that had been “spent.”

Murphree also observed blood smeared “through the kitchen, through the extra living

area, through the laundry room, and into the garage.” Murphree said, “One of the

things that also caught my eye was a -- a drawer was open with a bag of dog food

just ripped open in the drawer and a big bowl about half full now that had water in

it laying in the kitchen floor.” Murphree said that another thing that “first” caught his

eye was a path of bleach stains along each step on the stairs. At the end of the path,

Murphree found an “eyeglass chain that was laying at the foot of the stairs.”

      Murphree said that because he concluded there were no signs of forced entry,

no valuables missing from the house, signs that the assailant attempted to clean up

something with bleach, and what appeared to Murphree as someone who cared

about the dogs having fed them before fleeing, he believed this was not a “stranger-

on-stranger” murder. Murphree also said that the manner in which Houchin’s body

was found further solidified his belief that Houchin had been murdered by someone

she knew.

      Murphree learned that Houchin was a fifty-six-year-old therapist who had lived

in Arlington, Texas, and was associated with a group of other therapists who ran a

therapy clinic in Arlington. The W ednesday and Thursday after Houchin’s body was

found, Murphree went to the clinic to interview Houchin’s coworkers. He determined

that the last time her coworkers had seen Houchin alive was at approximately 11:00

p.m. on Thursday, July 21, 2005. Houchin’s coworkers and other investigators


                                           4
informed Murphree that Houchin was not expected to be at work on Friday, the day

her body was found.      But her absence the following Monday had caused her

coworkers to file a missing persons report. Murphree also learned that Houchin and

W inningham, in addition to being coworkers, had previously been romantically

involved.

      Through talking to coworkers, Murphree learned that Houchin and

W inningham were once engaged but later broke off their engagement—ostensibly

because Houchin had asked W inningham for a prenuptial agreement. Murphree

also learned that the couple had what was described as a “yo-yo” relationship where

at times they were together and at other times they were not. Based on this

information, Murphree said that W inningham was naturally a person he would want

to interview regarding Houchin’s murder.

      Murphree testified that when he and another investigator visited the clinic

during their investigation, the other investigator pointed out peculiar markings on

W inningham’s vehicle:

      My attention was drawn to vertical scratches just to the right side of the
      license plate. I could see inside those scratches a -- a light blue --
      some sort of transfer that was very significant to me [because] the color
      of the transfer in those scratches was the same color as the tarp that
      [Houchin] had been wrapped in when her body was burned.

Murphree said that the color was inconsistent with the vehicle’s interior and exterior.

Murphree had W inningham’s vehicle impounded.




                                          5
         Murphree said that the interior of the trunk “was pretty [pristine].” By contrast,

Murphree said that the interior of the passenger compartment was “[p]retty much in

disarray, like somebody had been living in it.”

         According to Murphree, when investigators conducted a search of

W inningham’s car, there was “a wad of cash of $13,000,” a folded piece of paper

with thirteen $100 bills, and another folded piece of paper with three $100 bills.

Investigators also discovered a small amount of Houchin’s blood and dog hair in the

trunk.

         Murphree also looked at W inningham’s banking and credit card transactions

during his investigation. Murphree testified that on July 28, 2005, W inningham

withdrew $20,000 cash from his checking account. W inningham also wrote a check

to the district court of Tarrant County in the amount investigators recognized as the

cost of applying for a passport. Based on this information, Murphree interviewed the

administrative passport clerk in Arlington regarding W inningham’s application for an

expedited passport on July 22, 2005—the same day Houchin’s body was

discovered. Murphree said that Winningham’s credit card statements also confirmed

“a charge for $1,089.32 to British Airways.”

         Murphree said that his team also conducted a search of W inningham’s

apartment. There investigators discovered a couple of “good size[d] bags” behind

a bureau in W inningham’s apartment with an Academy logo on them. Murphree

testified that a tarp would have fit into one of the bags.


                                             6
      Murphree testified that based on the information he gathered during his

investigation, his theory of the crime was:

      I know they’ve been romantically involved. I know from witnesses that
      even though they’d had fights in the past, this one was particularly
      vicious and to the point that [Houchin] was inconsolable, in tears. I
      think that she was beginning to get her life together. She was
      beginning to try to start seeing other people. I think that she threw that
      in [W inningham’s] face and let him know that she was going on with her
      life, and I think that he shot her.

      ...

      Then I think he drags her body through the house, puts her body in the
      trunk of his car, and either cleans up then or takes her there, sets her
      body on fire. And then the next day or two, comes back and cleans up.

      ...

      I think [the significance of the tarp and Academy receipt was that he
      purchased a tarp and then] he wrapped her in the tarp to seal her body
      and to keep blood and bodily fluids from leaking out. And when he drug
      her out of the trunk with the tarp, he set her on fire with the tarp
      wrapped around [her and the blue marks on W inningham’s car were the
      result of] either dragging her in or dragging her out [of the car] or both.

      ...

      [And w]hen he finds out I’m coming to talk to him, he immediately
      cancels all his appointments, withdraws $20,000, and leaves the state.
      It’s my theory he was going to run at that point and, for some reason,
      decided not to.

      Murphree conceded that in addition to withdrawing the $20,000, W inningham

also wrote checks to cover his health club membership and electric bill after Houchin

was murdered. Murphree also conceded that the check written for the passport was

not written on the day Houchin’s body was found; rather, the check was written on


                                          7
the following Monday. But Murphree qualified that he had learned through his

investigation that W inningham was told he could not get an expedited passport

without an itinerary. Murphree also testified that W inningham had left a substantial

remaining balance in his checking account.

      Murphree disclosed that no attempts were made to compare DNA found at

Houchin’s home to W inningham and that he was unaware if any attempts were

made to take fingerprint lifts from the crime scene. Murphree revealed that he

learned during his investigation that Houchin “had plans for the night that she was

killed [but] she changed those plans[.]”      In addition to Murphree, a number of

Houchin’s family members and coworkers testified.         Several investigators and

W inningham himself also testified.

      A.     Marlene Wallem

      Marlene W allem, Houchin’s sister who lives in Arlington, W ashington, testified

that W inningham had known Houchin for roughly a year and a half prior to her death.

W allem said that Houchin met W inningham in June 2003 through an online dating

service and that he moved in with Houchin “relatively shortly after they started

dating.” According to W allem, Houchin and W inningham traveled to W ashington to

visit her over the Christmas 2004 holidays.         She said that during the trip,

W inningham proposed to Houchin and that Houchin accepted. W allem said that a

few days after the proposal, she “caught [Houchin] alone, and . . . asked her if she

was going to have a prenuptial agreement.” W allem recalled that Houchin told her


                                          8
that when she approached W inningham about a prenuptial agreement, he became

so angry that he would no longer “touch or kiss her after that.” W allem said that

shortly after the couple returned to Texas, the engagement was off.

        W allem testified that W inningham moved out of Houchin’s house but later

moved back in and that they were not getting married but rather it was “just going to

be one day at a time, to see how it went.” But she said Houchin again told him to

leave and that W inningham moved out. W allem also testified that it was Houchin

who helped W inningham finish school and establish a practice at the clinic where

Houchin worked. W allem said that Houchin believed that W inningham, after their

latest breakup, was living in the office, sleeping on a couch at night. W allem said

that Houchin relayed to her that she had confronted W inningham about living in the

office and that W inningham had glared at her and stormed out. Houchin, about a

month     before   her   murder,    told   W allem   something     that   she   found

frightening: “[W allem], you know, if anything ever happens to me, make sure the

police talk to [W inningham], look at [W inningham].”

        W allem said that after Houchin caught W inningham living in the office,

Houchin’s dog disappeared in late June 2005. W allem believed that W inningham

had done something to the dog and that after the dog had disappeared, W inningham

and Houchin’s relationship continued to erode and that the two were “fighting in the

office all the time.” W allem said that her sister told her that, “he would act normal

in front of everybody else, but when it was the two of them, he would be -- he would


                                           9
just glare at her or say mean things.“ W allem testified that W inningham called her

the Tuesday after Houchin’s body was found and told her he was sorry that Houchin

was missing, but that he also asked what the police had determined. W allem

testified that, “And at that time, I -- I didn’t want to talk to him anymore. I -- I just felt

like he was trying to get information out of me, and I really didn’t know anything.”

       B.     Dr. Robert Mims

       Dr. Robert Mims, a psychiatrist who had been friends with Houchin for over

eleven years and worked with both Houchin and W inningham, also testified that

Houchin had helped W inningham establish his practice at the clinic. Mims said that

he knew of Houchin and W inningham’s romantic relationship but was initially

surprised that they were engaged. Mims said that because of other commitments,

he only worked at the clinic part-time and that W inningham shared his office. Mims

testified that he learned the couple were no longer engaged because he asked

W inningham about the engagement. According to Mims, W inningham responded

that the engagement had ended because of “something to do with Deborah and

money, but he was vague.”           Mims said that Houchin later told him that the

engagement dissolved over Houchin’s desire to have a prenuptial agreement. He

said that the couple’s tumultuous relationship created “an air of tension in the office.”

       Mims said that Houchin and W inningham got into a heated argument at the

clinic on the evening of Thursday, July 21, 2005. Mims stated that W inningham

wanted the clinic’s secretary and part-time receptionist, Teresa Singh, fired and that


                                             10
this was a point of contention between Houchin and W inningham. He said that

W inningham was also upset that Mims did not want to form a partnership and that

W inningham blamed this on Houchin. By Mims’s account, after the argument ended,

Houchin was particularly upset.

      Mims said that a coworker contacted him on Monday, July 25, 2005, about

Houchin’s absence from the office. The coworker told Mims that she had tried to

contact Houchin all weekend to no avail and that Houchin had not shown up for her

Monday morning appointments. Mims recalled that it was at this time that someone

from the clinic contacted the police about Houchin.

      Mims testified that he came to the office on Tuesday, July 26, 2005, after

learning that the police had found Houchin’s home in disarray and her dogs

unattended. He said that he had also been informed that a body had been found in

Muenster. Mims said that while everyone in the office was generally distraught and

upset, Winningham’s demeanor was appreciably different. Mims also testified that

he was unaware of where W inningham lived during the months preceding Houchin’s

death but that he later learned that W inningham in fact lived in the apartments

across the parking lot from the clinic.

      C.     Larry Kish

      Larry Kish, an investigator with the Denton County Sheriff’s office, testified that

he assisted the investigation regarding the discovery of Houchin’s body the morning

of July 22, 2005. Kish testified about the Academy receipt he and Murphree had


                                          11
collected near the body. Similar to Murphree’s account, Kish relayed how the receipt

identified the issuing store as being located in Arlington, Texas, with the store’s

number printed on it. The purchase date on the receipt was July 2, 2005, and two

purchased items were listed—a tarp and a rope. Packaging for a rope was also

found near the body. Kish said that these two items were processed but that no

fingerprints were found. Kish also said that Houchin’s body had been burned along

with a blue tarp. Kish said that what looked to be a footprint was found near

Houchin’s body. Kish said that he took a cast of the possible print but that “it was

very vague.” Kish admitted that no one compared the print to anyone’s shoes. Kish

said he took a cast of what appeared to be a tire print, but that casting was also

never compared to anyone’s vehicle, including W inningham’s car.

      Kish said that when he visited the clinic, he was able to observe W inningham’s

vehicle in the parking lot. According to Kish:

      On the rear of the vehicle, I did a visual inspection of the vehicle,
      walked around it. And on the bumper, the back of the bumper, the
      passenger side of the bumper, there [were] some scratches on it, and
      there [were] some blue fibers actually imbedded into the plastic part of
      the bumper.

      D.     Dr. Jill Ervin

      Dr. Jill Ervin, a medical examiner at the office of the Dallas County Medical

Examiner in the Southwestern Institute of Forensic Sciences in Dallas County,

testified that Houchin’s body was identified through dental records after she

examined it. She said that Houchin’s body had “almost 100 percent burns over the


                                         12
entire surface of the body.” In addition to charred fragments of clothing and jewelry

on the body, Ervin said that there was also “some molten blue material that was

consistent with a tarp.” She also stated that the clothing fragments consisted of a

“charred bra on her body” and “charred stockings on her right foot and leg.”

      According to Ervin, x-rays revealed a bullet in Houchin’s corpse. Ervin said

she found evidence of three different gunshot wounds on the body—two in the lower

back and one in the back of the right ribcage. Ervin opined that the bullet to the

ribcage caused a fatal wound and that Houchin would have died within a half-hour

of the infliction of the wound. Ervin said that Houchin was not alive at the time she

was set on fire. She also testified that in order to burn a human body, a source of

fuel would be necessary.

      E.     Bruce Tinch

      Bruce Tinch, owner of the building that housed the clinic and husband of one

of the clinic’s counselors—Amy Tinch 1 —testified at trial. Tinch said that his wife and

Houchin were friends and that they had known each other roughly twenty-five years.

Tinch met W inningham through Houchin. By Tinch’s account, Houchin had brought

W inningham into the clinic’s practice and “introduced him into the business part.”

Tinch said he watched Houchin and W inningham’s relationship evolve from an

“elation, idyllic form into basically a train wreck catastrophe.” He said that during the



      1
        The record does not indicate why, but neither the State nor W inningham
called Amy Tinch to testify at trial.

                                           13
months leading up to Houchin’s death, there were several “public arguments, public

feuding, anger.” Tinch testified that the point in time that the relationship went from

“joy of an engagement . . . into a tailspin” occurred after Houchin requested a

prenuptial agreement. According to Tinch, the fighting was so bad that “the police

were called to [the] office one day to break up a fight.”

      Tinch explained that one night in February 2005, when his wife Amy was in

bed sick, Houchin unexpectedly arrived at his house pounding on the door. He said

she had the look of “disheveled frightened terror.” He said that Houchin told him, “I

know Amy’s sick. I just got to come over. W e’ve got to talk. W e’ve just got to talk.”

Tinch described how he tried to calm Houchin down and how she said things like

“[W inningham] isn’t the person that we thought he was” and “I need you to know --

I need someone to know that if anything ever happens to me, it’s [W inningham].”

Tinch said that Houchin explained that while she had a lot of money, W inningham

had none. Houchin showed him paperwork that she had brought with her indicating

that W inningham had borrowed money without paying it back. He also said that

Houchin said, “‘I think he’s trying to get my money’” and she referred to the

prenuptial agreement.      Tinch said that Houchin relayed that the prenuptial

agreement was a key issue in the decline of their relationship. Tinch explained that

Houchin said she had kicked W inningham out of her house, changed the locks, and

acquired a gun. Tinch suggested to her that they go to the police, but she allegedly

replied, “No, I can take care of myself.”


                                            14
      Tinch explained how, after the breakup, Houchin had resumed Internet dating

and had gone around the office “touting it around . . . that she had 400 hits.” Tinch

said that “someone said that [W inningham] had gotten very angry about that.”

      Tinch also described how on Monday, July 25, 2005, his wife had called him

several times, worried that Houchin had not arrived for work. Compelled by her

insistence, Tinch said that he went to check Houchin’s house and that the police

were already there performing a welfare check. At the request of the police, Tinch

agreed to care for Houchin’s dogs. Tinch also described what happened at the

office on Tuesday, July 26, 2005. He said that a group gathered at the office and

“everyone shared the same sentiment except one, and that was [W inningham].”

Tinch said that while everyone else was “tense [and] anxious,” W inningham was

emotionless.

      Tinch also said that on W ednesday, July 27, 2005, W inningham had an odd

conversation with him. Tinch recalled that W inningham was making statements like,

“You know . . . I’m over her” and, “She’s been calling me, and I’m over her. . . . I

found somebody else, and I’m not interested . . . in her anymore.” Tinch said that

W inningham appeared defensive about his relationship with Houchin and also said,

“[Houchin] was so proud that she had gotten 400 hits on the new dating service . . .

I don’t care about her.” Tinch said that W inningham struck him as “hugely, horrificly

odd” when he told him that he had called Houchin’s sister over the weekend and told

her that Houchin had been murdered. Tinch said that this specifically caught his


                                         15
attention because they did not know Houchin had been murdered until Tuesday and

W inningham specifically said he had called Houchin’s sister over the weekend.

Tinch averred that the conversation alarmed him enough that he informed one of the

Texas Rangers what W inningham had said.

      Tinch said that W inningham’s behavior was so odd that he asked W inningham

to leave the clinic. Tinch testified that W inningham wore shorts when he removed

his things from the office a couple of weeks later, and Tinch noticed that

W inningham had what appeared to be fresh wounds on his shin as though a “scab

had been taken off.”

      Tinch also recalled that prior to Houchin’s murder, he had approached

W inningham about where he lived because Houchin had informed him that

W inningham might be living in the office. Tinch said that W inningham told him he

was living in Grand Prairie but that he learned later from investigators that

W inningham lived in the apartment “over the fence from the office.” Tinch said that

despite being only “40 seconds” from the office, W inningham would still drive his car

to work. Tinch testified that it was very clear to him that W inningham did not want

anyone to know where he lived.

      F.     Alisa Sample

      Alisa Sample, who did insurance billing, testified that she had worked with

Houchin for a number of years. Specifically, Sample had handled billing statements

for Houchin for the two years prior to her murder and for W inningham since


                                         16
sometime in 2004.      Sample averred that she had a very good rapport with

W inningham. Sample, who worked mostly from home, said that Houchin’s normal

routine was to fax her Thursday “day sheets” to Sample on Sundays because

Houchin did not work on Fridays. According to Sample, W inningham sent his day

sheets each night.

      Sample said that W inningham was prompt and routine about his billing

because it was very important to him.         Sample testified that the first time

W inningham failed to submit his day sheets to her was the evening of Thursday, July

21, 2005—the night before Houchin’s body was found in Muenster. Sample said she

called W inningham on his cell phone that night somewhere between 10:30 p.m. and

11 p.m. She said she left a message but that W inningham did not return her call

that night. Sample said that W inningham contacted her on Friday to inform her that

he would be faxing his day sheets for both Thursday and Friday but that he did not

send them to her until Sunday. She said that this was very unusual. Sample also

averred that W inningham told her on Sunday he had seen a patient on Saturday and

that she should bill out on that patient. Sample said that this too was unusual

because W inningham did not routinely see patients on Saturdays.

      Like others in the clinic, Sample testified that between the time Houchin was

thought to be missing and the time her body was identified, everyone else in the

clinic was “trying to sort things out and figure things out” but that W inningham was




                                         17
not participating. Sample said that his not participating struck her as odd. Sample

testified that she found one particular exchange with W inningham chilling:

         After I spoke with the morgue and I hung up the phone and told Amy
         Tinch that we needed to get the dental records, I came forward to
         [W inningham] and told him that they thought [Houchin] had been
         murdered. And at that time, he stood right beside me, and he asked
         how we figured this -- you know, how did we come about this. And his
         expression was, oh, that’s -- that’s horrible, how would you find that out.
         And that’s when I went on to tell him that I felt like doors were opening
         up, and I was -- you know, one question to another, asked another
         one, and led to one phone call and the next phone call and the next
         phone call. And he made the comment to me as he was leaving, he
         was just real -- just stood there like in shock basically, and you could
         see the expression on his face, and that’s when he tapped on my
         shoulder, because [W inningham] and I have always worked well
         together and said, ‘W ell, aren’t you a real smart one.’

         Sample recalled that after the Arlington Police Department came to the office,

W inningham’s behavior concerning his appointments became unusual and erratic:

“He blocked off times, took off, canceled patients . . . just [said,] ‘I’m leaving. I’ll be

back.’ . . . [a]nd he was all day long marking out [appointments] . . . That wasn’t like

[W inningham] at all.” She described his behavior as “very unusual.” Sample was

also surprised to learn where W inningham lived. She said that no one knew he lived

so close because “he drove his car like normal to work as if he lived somewhere

else.”

         G.    Teresa Singh

         Teresa Singh, who worked with Houchin for more than fourteen years and

served as the clinic’s manager and insurance verifier, testified that the general mood



                                             18
at the clinic on the Monday and Tuesday after Houchin disappeared was one of

confusion. She also testified that she had visited Houchin’s home the weekend

before she was murdered and that she had witnessed the stairs to the second story

and there was nothing unusual about the carpet on the stairs at that time. Singh

said that Houchin had told her that she was expecting a call the Thursday night

before her body was found. Singh stated that she did not remember the individual’s

name but that it was not W inningham.

      H.     Gwen James

      Gwen James testified that she started working as one of the clinic’s

receptionists roughly three months before Houchin’s murder. One of her primary

duties was to keep W inningham’s schedule. She said that W inningham was often

“pretty much booked solid” and that he normally saw his first patient at 8:15 a.m.

Initially, James testified that W inningham called her at approximately 8:15 a.m. on

Friday, July 22, 2005—the morning Houchin’s body was found—to inform her that

he would be late. James testified that W inningham had an 8:15 a.m. appointment

that morning and that he ultimately arrived “just a few minutes late.” But after

reviewing W inningham’s appointment book, James altered her testimony and said

that W inningham called her at 8:30 a.m. on Friday to inform her that he would be late

and that W inningham was in fact “on time for his [9:15 a.m.] appointment.”

      Defense counsel asked James when W inningham’s “usual” time to arrive in

the mornings was. James said that he would usually arrive by 8:15 a.m. Citing her


                                         19
statement to investigators, defense counsel asked whether she had reported to the

police that W inningham had arrived at his usual time. James answered in the

affirmative. But when defense counsel asked James to clarify, she again said that

W inningham called her between 8:15 a.m. and 8:30 a.m. Friday morning to inform

her he would be late and that he arrived sometime between 9:10 a.m. and 9:20 a.m.

James admitted that she never mentioned W inningham’s alleged Friday-morning

phone call to investigators.

      James testified that on the following Monday, W inningham called her again

and asked her to reschedule his morning appointments because he had errands to

run. She said that the phone call was unusual because it was made to her cell

phone, she had already been in the office for thirty minutes, W inningham normally

kept his appointments, and he had never called her cell phone before. She testified

that during the week after Houchin’s murder, it became routine for W inningham to

cancel or reschedule appointments. James recalled that after W inningham had

been asked to leave the clinic, he came to pick up mail and told her that he knew he

was a suspect in Houchin’s murder.

      I.     Byron Stewart

      Detective Byron Stewart of the Arlington Police Department’s homicide unit

testified that after Houchin was reported missing, he assisted during a welfare check

of Houchin’s home. Stewart described Houchin’s home:




                                         20
       The house was in a state of disarray, in my opinion, as far as couch
       pillows thrown on the floor, clothing on the floor. It appeared that dogs
       had urinated and defecated throughout the house. I did see a purse
       along with a cell phone and keys and a wallet with credit cards in it on
       the kitchen table. It was -- there was a chewed-up shoe, woman’s
       shoe, on the floor, things of that nature.

       Stewart explained that because he was performing a missing person’s welfare

check, he was initially focused on finding Houchin. He said that he remained in the

house for roughly ten to fifteen minutes, surveying the house, looking for indications

of Houchin’s whereabouts. During his search, Stewart noticed a computer running.

He said that he touched the spacebar and the computer displayed an internet dating

site. According to Stewart, as he left the home, Tinch arrived and explained that he

believed that Houchin’s body had been discovered. Stewart said, “[s]o we locked

up the house, and we followed [Tinch] to [the clinic], and that’s when we met with the

entire . . . staff at this particular location.”

       W hile there, Stewart learned that W inningham was not at the meeting.

Stewart also learned that Winningham and Houchin had previously had a romantic

relationship and that their breakup had caused tension in the office. Stewart said he

asked someone to have W inningham come to the meeting. By this time, Stewart

had learned the gruesome details regarding the state of Houchin’s body. He said

that he purposely explained the body in “somewhat graphic [detail] because [he]

wanted to see kind of the reaction [he] was going to get from everyone in the room

. . . they all kind of gasped, you know, and started showing emotions, but [he]



                                              21
purposefully looked at [W inningham], and he showed no emotion at that time.”

Stewart explained that based on his experiences speaking with “family members,

loved ones, fiances, ex and present [about murder victims],” W inningham’s behavior

was “not typical of a person who probably just got the news that his former fiancee

was found murdered.”           Stewart said that he then gave his business card to

W inningham, “I made a point to point out my e-mail to him and my numbers to him,

and I also made a point to told -- asked him to call me if he needed anything from me

at all.”

           Stewart said that W inningham did in fact e-mail and inform Stewart that he

would be traveling to Germany. The e-mail explained that W inningham would be

leaving on August 9, 2005, and returning August 16, 2005. Stewart averred that

W inningham’s e-mail was odd because “he had no emotions and didn’t offer to help

in any kind of way when” he had previously explained at the clinic that the body

found in Muenster was believed to be Houchin’s. Stewart said that after reading

W inningham’s e-mail, he believed W inningham was going to flee the country but that

he agreed that W inningham was free to travel abroad because there was not an

existing warrant for his arrest.

           J.    Cary Treff

           Cary Treff, Houchin’s brother who lives in California, testified at trial as well.

Treff said that he had initially been informed by Amy Tinch that Houchin did not

come to work on Monday. Later, Tinch informed Treff that it was Houchin’s body


                                               22
that was found in Muenster. Although Treff knew of W inningham, he testified that

the first time he met him in person was when he traveled to Arlington after Houchin’s

body was found. Treff said that he met Winningham at the clinic—where Treff had

gone to meet up with Bruce Tinch. W inningham gave Treff his business card and

said to call him if he ever “wanted to talk about [Houchin].”          After Treff and

W inningham had both attended Houchin’s memorial service, Treff said that the two

had arranged to meet the next day in W inningham’s office because Treff “felt a

desire to talk to him before [Treff] left town.”

      According to Treff, after making small talk, Treff asked W inningham, “if he had

any idea who could have killed [his] sister?” Treff said that W inningham then

“completely lost his composure.” Treff recalled that “He could not look me in the

eyes anymore. He was looking down and sideways . . . He stumbled with his

words.” Treff confronted W inningham about him not wanting to talk to the police

without an attorney:     “I asked him, ‘W hy?       W hy won’t you talk to the police?

Everybody else has in this clinic.’” Allegedly, W inningham responded, “W ell, under

these circumstances, I think it’s appropriate that I have an attorney.” Treff pressed

further asking, “W hat circumstances?”             Then Treff said he directly asked

W inningham, “[D]id you kill my sister, [Houchin]?” And W inningham’s response was

only that he had “dated her” but was not that he had loved her, been engaged to her,

and lived with her. Treff testified that the conversation left him with a definite

impression:


                                           23
      I knew he was a witness or a potential candidate that could have done
      this, but based on him losing his composure to my question of do you
      know who could have done this, I believed he did it at that point. I
      believed he was the person that killed my sister.

      K.     Brent Chambers

      Brent Chambers, an FBI special agent and crime scene investigator, testified

that he assisted the Texas Rangers’ investigation; specifically, Chambers led the

team responsible for collecting evidence at Houchin’s home after it was determined

she had been murdered. After giving a basic description of Houchin’s house,

including its layout, Chambers testified about the condition of Houchin’s house.

According to Chambers, blood and bleach stains indicated that Houchin’s body was

dragged from the upstairs office, down the stairs, through the kitchen, and into the

garage.

      Chambers found bloodied eyeglasses in the living room. He also found an

eyeglass chain at the bottom of the stairs.      In the office near the computer,

Chambers found a “spent round, a bullet, [with] what appeared to have blood on it,

on the floor.” In the bedroom, Chambers found a .357 revolver in the nightstand.

      On cross-examination, Chambers testified that there was a broken window

that had been boarded up in one of the rooms and that was not the result of either

the investigation or the welfare check. Chambers also testified that a cigarette butt

and beer can were found near the garage of Houchin’s house and collected as

evidence. Although Chambers testified that they were collected because “[they



                                         24
m]ight have evidentiary value,” he did not elaborate on whatever became of these

items.

         L.    Jamie Becker

         Jamie Becker, a firearms and tool mark examiner for the Tarrant County

Medical Examiner’s Office, testified that she examined both bullets found during the

investigation—the one found in Houchin’s body and the one found in the office of

[Houchin’s] home. Becker said that both bullets were fired from the same gun, a

“.38-caliber class” weapon. Becker said, however, that the bullets were not fired

from the gun found in Houchin’s home.

         M.    Monica Seagate

         Monica Seagate, an FBI special agent and crime scene investigator, testified

that she conducted the investigation of W inningham’s apartment. Seagate said that

she found an Academy bag “kind of balled up and pushed down towards the floor

behind [W inningham’s] armoire and the wall.”       Inside the bag, Seagate found

another torn Academy bag containing rope. W hen asked why she collected these

items, Seagate said, “Anytime you find rope wrapped up and hidden in a bag behind

an armoire, between the wall and a dresser smashed down to the floor, it’s a little bit

suspicious.” She also said that she collected a pair of W inningham’s shoes.

         N.    Michael Hillman

         FBI special agent Michael Hillman testified that he forensically processed

W inningham’s car. During processing, Hillman took photographs of W inningham’s

                                          25
car which were introduced into evidence. He specifically testified about scratches

found on the back bumper and “blue filament” lifted from the grooves of the

scratches. Hillman also said that there was a contrast between the condition of the

interior of the car and the interior of the trunk.

      By Hillman’s account, “W hen you compare the condition of the trunk to the

condition of the passenger compartment, the trunk was very clean. The passenger

compartment was disheveled, had a lot of personal articles scattered throughout.”

Hillman described that there were two trunk liners—a permanent liner and a removal

plastic liner that lies on top of the permanent-cloth liner. Regarding the removable

liner, Hillman said that it was “a plastic kind of drop mat that you can buy –

sometimes cars come with it; sometimes it’s an aftermarket product -- that you can

put into the car. And if you spill a plant or if you’re transporting potting soil back

there, it kind of pops out, easier to clean the interior of the trunk.” Hillman testified

about a portion of the cloth liner that had “a presumptive hit for blood” on it. He sent

the liners for further testing. Hillman found a flashlight and plastic bag containing a

funnel in the trunk. He also found a plastic packaging for gloves in the passenger

floorboard, $1600, and a folder containing passport information.

      O.     Carolyn Van Winkle

      Carolyn Van W inkle, a forensic scientist for the Tarrant County Medical

Examiner’s Office, testified that she analyzed some of the items found in

W inningham’s car. Specifically, Van W inkle testified about blood stains found in


                                           26
W inningham’s trunk. In addition to a number of identified “weak[]” blood stains, Van

W inkle said that there was a small distinct stain of blood—approximately .5

centimeters in diameter—found on the outer cloth liner of the trunk. She said that

the blood had “actually soaked through to the other side” of the outer cloth liner.

After comparing the DNA profile from the distinct stain of blood found in

W inningham’s trunk to the DNA profile from a known sample of Houchin’s blood,

Van W inkle testified that the two were “certainly consistent” with each other and that

the blood in the trunk tested positive for Houchin’s blood. According to Van W inkle,

the blood from Winningham’s trunk “was the same as [Houchin’s] profile” “at all the

different 13 locations” for verifying DNA consistency. Van W inkle said that there was

no way to determine how long the blood had been in the trunk, but because it had

soaked through the liner, she averred that the blood was in liquid form when it was

exposed to the trunk’s interior. Furthermore, Van W inkle said that because DNA

material begins to immediately degrade once it is left, the blood would not have been

years old; at most, it could have possibly been months old.

      Van W inkle also testified to the biological material found on the bullet

recovered from Houchin’s home. Van W inkle said that “barring any identical sibling

contributor,” the biological material found on the bullet came from Houchin.

      P.     Stephanie Parrot

      Stephanie Parrot, an administrative passport clerk for the Tarrant County

District Clerk’s Office, testified that during July 2005 she was working in the Arlington


                                           27
subcourthouse verifying passport applicants’ documentation. She said that normally

a passport application takes six weeks to process but that applicants can expedite

the process and receive their passports in as little as two weeks. Parrot recalled that

W inningham came in to apply for an expedited passport on Friday, July 22, 2005.

She remembered W inningham specifically because he came in “very late in the day,

and I only remember that because we close at 4:30, and I was ready to leave for the

day when he came in.” She also remembered that although W inningham wanted “to

leave in less than 14 days,” he did not have “proof that he needed to leave the

country” so quickly. In sum, Parrot testified that she did not process W inningham’s

request for a passport because he “didn’t have everything he needed on that day.”

She said that W inningham returned on Tuesday, July 26, 2005, still wanting an

expedited passport, but that this time he had proper documentation.             W hen

W inningham returned with an itinerary, W inningham filled out an application.

According to the application, W inningham wanted to travel to Germany, Italy, and

Switzerland, leaving August 9, 2005. Parrot identified W inningham, as he sat in the

courtroom, as the person who came in on both Friday, July 22, 2005, and Tuesday,

July 26, 2005.

      Q.     Brad Harmon

      Texas Ranger Brad Harmon testified that he was called in to investigate when

Houchin’s body was found but not yet identified. Specifically, he investigated the

Academy receipt. Harmon testified that the information from the receipt led him to


                                          28
an Academy sporting goods store located within ten miles of the clinic and

W inningham’s apartment. Because the store did not have surveillance cameras and

because the clerk who had handled the transaction regarding the receipt did not

remember the transaction, Harmon was unable to initially place W inningham at the

Academy store.

      During the investigation, Harmon accompanied Murphree and Kish during

their initial visit to the clinic. Harmon said that while outside the clinic, Kish pointed

out the scratches with blue material located on W inningham’s bumper. Harmon

described the scratches as vertical and containing “blue transfer material.”

      Based on his knowledge of the blue tarp found on Houchin’s body and the

blue material found on W inningham’s car, Harmon purchased a blue tarp from the

Academy store in Arlington. Consistent with the Academy receipt, the tarp Harmon

purchased was ten-by-sixteen feet. Harmon testified that the size of the tarp would

have allowed a person to wrap Houchin’s body inside it after she was shot and killed.

W ith Harmon’s assistance, the State demonstrated that the tarp fit within the

Academy bag that investigators found behind W inningham’s armoire. On cross-

examination, Harmon admitted that, other than that found on the bumper, no

remnants of anything resembling a blue tarp were found in Houchin’s home or

anywhere else in W inningham’s car.

      Harmon said that W inningham, through his attorney, contacted him on August

3, 2005, about meeting and discussing Houchin’s case. Harmon testified that they


                                           29
obtained a search warrant for W inningham’s car while en route to the attorney’s

office. During their interview, Harmon observed W inningham and said that when he

was asked about Academy, a tarp, and rope, W inningham “was surprised, kind of

shocked. A -- you could see a definite change in his demeanor.” Harmon found

W inningham’s reaction significant.      After being questioned about Academy,

W inningham admitted that he had been to the Academy store that Harmon had

investigated.   W hen asked what he had purchased, W inningham said he had

purchased socks.

      Harmon also said that prior to Houchin’s funeral, investigators were able to

use cellular technology to trace W inningham’s cell phone.          They learned that

W inningham had traveled to New Mexico after investigators initially visited the clinic

but that he had returned for Houchin’s funeral.

      R.     Patricia Eddings

      Patricia Eddings, senior trace analyst for the Tarrant County Medical

Examiners’ crime lab, testified that she compared the blue material lifted from

W inningham’s bumper with a control tarp and debris from the tarp that was burned

around Houchin’s body.       W hen asked to describe the materials lifted from

W inningham’s bumper, Eddings referred to them as “smears.” W hen asked why she

referred to them this way she said:

      W ell, I think that more accurately depicts what it does look like. It looks
      like a material that had some force behind it that actually impacted the
      surface of this bumper and then went across the area in a linear


                                          30
      direction. It’s not like -- because all -- all of [the transfers], as you look
      at them, are more heavily concentrated kind of toward the center, like
      it didn’t have as much force at first, but then the middle point is where
      the greatest point of impact was, transferring most material, then it was
      coming off with lesser material on the edges.

Eddings said that she performed visual, microscopic, and spectrometry examinations

of the material found in the lifts taken from W inningham’s bumper.              Eddings

concluded that the material from the lifts was the same material and color and had

the same spectral patterns as the control tarp and the debris found on Houchin’s

body. She also stated that the control tarp and debris had “the [same] ability to form

a film when force is applied to them” and smeared upon a surface as the material

found in the lifts. Eddings admitted that “this [was] the first time [she] had done a

comparison with this type of plastic on the back of a car” during her over thirty years

of experience. And Eddings also said that she was unaware of the amount of force

that would be required to smear the tarp material onto a car’s bumper. Eddings said

that her office had determined that the rope found on Houchin’s body and the rope

found in W inningham’s apartment were not the same rope. She also testifed that

some of the hair found in W inningham’s trunk was dog hair and the other hair was

brown body hair of Caucasian origin.

      S.     Steve Stockdale

      Steve Stockdale testified for the defense. Stockdale said that he participated

in online dating and that he had exchanged e-mails with Houchin. According to




                                           31
Stockdale, he and Houchin had two brief phone conversations—one of which

occurred on July 21, 2005.

      T.     George Baab

      The defense also called George Baab, another witness who had met Houchin

through online dating. Baab said that he and Houchin originally had planned to meet

in person for the first time the evening of Friday, July 22, 2005, but Houchin called

on July 21 during the day and canceled stating, “There’s something I thought I had

cleared up, but it’s not, and we’ll have to postpone and reschedule.” She asked him

to call her again over the weekend to reschedule. Baab said that he tried to call her

on the weekend but could not get in touch with her.

      U.     Amy Jaggers

      Amy Jaggers testified that she met W inningham on an Internet dating site in

June 2003. Jaggers declined to categorize her relationship with W inningham as

dating but said that in addition to eating out and “just visit[ing] in [her] home or at a

restaurant or something,” she also took the opportunity to learn from W inningham

and help him score psychological tests. She recalled that W inningham called her

just after midnight of July 22, 2005, for a brief phone conversation. She said she did

not know where he was, but he told her that he had just been running—an activity

she said he enjoyed.

      Jaggers said that she traveled to Munich, Germany, on August 9, 2005, to see

her brother, who had given her and her daughter tickets. According to Jaggers, she

                                           32
had planned to go since Christmas 2004 and told W inningham of her plans in

January 2005. She said that she invited Winningham to join them. Jaggers invited

W inningham again in May 2005, but W inningham said he was unsure if he could go.

She said that W inningham did not make arrangements initially, but then, on

Saturday, July 23, 2005—the Saturday after Houchin was murdered—W inningham

saw her passport and asked when she was going. After informing him again that

she was going August 9, she again asked if he wanted to go along, and he said,

“W ell, I don’t know. I doubt that I can get tickets this late.” She said that they started

looking for tickets Saturday night. Jaggers said that she asked whether his passport

was current and that it was then that W inningham indicated he was going to have

to get his passport renewed.

       V.     Sonny Brownlee

       Sonny Brownlee, a private investigator for the defense, testified that he met

with Craig Bayer where Bayer had found Houchin’s body in Muenster. Brownlee

testified that when he returned, he drove from that location to the clinic in Arlington.

He drove the same route again on a Friday morning and left at 6:30 a.m.—roughly

the same time of day Bayer discovered Houchin’s body. Brownlee said that while

driving the speed limit, the trip took him one hour forty-five minutes and that the

distance between where Houchin’s body was found and the clinic was ninety miles.

Brownlee also said that he was aware that W inningham’s first appointment on

Friday, July 22, 2005, was scheduled for 9:15 a.m.


                                            33
      W.     Lester Winningham, Jr.

      W inningham testified at trial. He acknowledged that he and Houchin had been

engaged but stated that he did not kill her. He told how he and Houchin had met

through an online dating service. According to W inningham, after the two had dated,

he moved in with her. And he stated that after living together for roughly nine

months, he proposed to her at her sister’s house in W ashington over Christmas.

W inningham said that during the time he lived with Houchin, he had moved out three

times before ultimately moving out for good on April 15, 2005. W inningham said that

he was not bothered by Houchin’s request for a prenuptial agreement; rather, the

relationship ended because of “conflicts we had at the office.”

      Although claiming that he did not owe her money, W inningham said he did

write checks to Houchin to help her with her mortgage—specifically citing a check

written to her for over $1,000 in early July. But he later testified that he was

mistaken about why he had written her the check and that it was in fact for business

expenses. He said that even though he saw her a lot at work, he didn’t have much

contact with Houchin outside of work after their final breakup on April 15.

      W inningham explained that the reason others did not know where he lived

was intentional because Houchin “and I were having a lot of problems. I felt like it

was best that she [and the others] not know where I lived, because I felt like she

would initiate contact . . . that she might stop by, and I was -- I didn’t want that to

happen.” W inningham said that he did have an argument with Houchin on July 21,


                                          34
2005, over staff-related matters. He testified that after the argument, he drove back

to his apartment. Two hours later, W inningham called Amy Jaggers because he had

“some tests that needed to be scored. I was getting behind. She had helped me

before.”

      W inningham said that he first learned of Houchin’s disappearance the Monday

following her murder—July 25, 2005.       By W inningham’s account, no one was

concerned on Friday that Houchin might be missing because she did not work

Fridays. His testimony was that even though his first appointment was set for 9:15

a.m. on Friday, July 22, 2005, he arrived for work “about 8:10 or 8:15.” W inningham

denied ever going to the passport office that Friday. After his appointment book and

progress notes were admitted into evidence, W inningham testified that he could not

have been at the passport office because he had a 4:15 p.m. appointment on Friday,

July 22, and he took progress notes of the patient he counseled. He explained that

he had gone to the passport office twice on Tuesday because he lacked his itinerary,

and that Parrot “was just a little confused.” W hen pressed by the prosecutor to

explain at what times he went on Tuesday, he could not remember exact times but

said that he “went to [his] apartment and got the itinerary . . . and then went back.”

W inningham admitted that his appointment book did not always reflect reality,

because even though his appointment book indicated he had a confirmed

appointment for July 28, 2005, at 9:15 a.m., he was in fact withdrawing $20,000 cash

from his checking account at about that time on that date.


                                         35
      W inningham also disputed testimony that he called Houchin’s sister over the

weekend before authorities had learned that it was Houchin’s body found in

Muenster.      W inningham    testified   that his phone     records—admitted      into

evidence—demonstrated that he made a call to Houchin’s sister on Tuesday, July

26, but that no calls had been made to her previously. Again referring to his cell

phone records, W inningham said that he also never called the clinic on Friday

morning to inform the receptionist he would be late. W inningham’s phone records

corroborated his testimony.

      W inningham said that he planned to travel to Germany in August 2005 and

purchased his ticket on Sunday, July 24, 2005. But he said that he did not apply for

a passport until the Monday after he purchased his ticket. He said that he informed

investigators about his intention to travel as a “courtesy” in case they wanted to talk

to him. W hen asked whether he took the trip to Germany, W inningham said, “W ell,

I had decided that since I had been arrested, probably wouldn’t be a good idea to go

to Germany.”

      W inningham explained his reasoning for securing an attorney before he was

arrested:

      W ell, I felt that under the circumstances, I -- [Houchin] was -- had been
      murdered. I knew that I had a previous relationship with her, I knew
      that we were having conflict in the office, and I knew that I was in my
      apartment that Thursday night, the 21st. I was by myself. And I
      thought it would be a good idea, before I talked to the police, that I get
      an attorney.



                                          36
       Pertaining to his large cash withdrawal, W inningham said that he took $20,000

cash out of his account to obtain a lawyer. W inningham told how he joined a fitness

club on July 23, 2005, and even wrote a check for membership fees. He also

recalled that he wrote checks for his electric bill, fees for a birth certificate, and credit

union fees after Houchin had been murdered. W inningham testified that the birth

certificate was obtained in relation to his pursuit of a passport. W inningham’s

explanation for why he withdrew cash for an attorney, as opposed to writing a check

like he did for the other expenses, was, “I didn’t know if [an attorney would] take a

check [or] if they wanted cash. I don’t know how lawyers work in murder cases.”

       According to W inningham, he traveled to New Mexico by himself because he

felt the need to get away. He said he returned when he learned when Houchin’s

funeral would be held. W inningham said that he had no idea how Houchin’s blood

got into his trunk or how the blue material made its way onto his bumper.

W inningham admitted that Houchin’s dogs had previously taken rides in his car, but

he denied they were ever in the trunk. He said that he never saw blue material or

scratches on his bumper and testified that he had filed a sworn statement that Texas

Ranger Murphree and investigator Kish’s observations of the alleged material were

“blatantly false.” W inningham said that he canceled appointments in the days

following Houchin’s murder because he was shocked and could not concentrate

after learning what had happened.




                                             37
      W inningham also discussed e-mails Houchin sent him where she indicated

that she was sorry about their tumultuous relationship and that she wanted things

to be calm between them. In the e-mails, Houchin expressed that she wanted to see

him and was willing to have an intimate relationship without commitment.

W inningham said he told her he was in another relationship.

      After closing arguments, the jury deliberated for approximately four hours and

then returned a verdict of guilty. A punishment trial followed, and the trial court

sentenced W inningham to life imprisonment. This appeal followed.

                                   III. D ISCUSSION

      In two points, W inningham challenges the legal and factual sufficiency of the

evidence to support the jury’s verdict that he murdered Houchin. A person is guilty

of murder if he (1) intentionally or knowingly causes the death of another, or

(2) intends to cause serious bodily injury and commits an act clearly dangerous to

human life that causes the death of an individual. See Tex. Pen. Code Ann. § 19.02

(Vernon 2003).    The court of criminal appeals recently held that there is “no

meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and

the Clewis factual-sufficiency standard” and that the Jackson v. Virginia standard is

the “only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense that the State is

required to prove beyond a reasonable doubt. All other cases to the contrary,

including Clewis, are overruled.” Brooks, No. PD-0210-09, 2010 W L 3894613, at *8,


                                         38
*14. Accordingly, we will apply the same standard of review to both of W inningham’s

sufficiency complaints.

       A.     Standard of Review

       In reviewing the sufficiency of the evidence to support a conviction, we view

all of the evidence in the light most favorable to the prosecution in order to determine

whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App. 2007).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,

235 S.W .3d at 778. The trier of fact is the sole judge of the weight and credibility of

the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.

State, 270 S.W .3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075

(2009). Thus, we may not re-evaluate the weight and credibility of the evidence and

substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W .3d 735,

740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.” Hooper v. State, 214 S.W .3d 9, 16–17 (Tex. Crim. App.

2007). W e must presume that the factfinder resolved any conflicting inferences in


                                             39
favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Clayton, 235 S.W .3d at 778.

      The sufficiency of the evidence should be measured by the elements of the

offense as defined by the hypothetically correct jury charge for the case, not the

charge actually given. Hardy v. State, 281 S.W .3d 414, 421 (Tex. Crim. App. 2009);

Malik v. State, 953 S.W .2d 234, 240 (Tex. Crim. App. 1997). Such a charge would

be one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried. Gollihar v. State, 46 S.W .3d

243, 253 (Tex. Crim. App. 2001); Malik, 953 S.W .2d at 240. W e may not, however,

affirm a conviction based on legal or factual grounds that were not submitted to the

jury. Malik, 953 S.W .2d at 238 n.3. The law as authorized by the indictment means

the statutory elements of the charged offense as modified by the factual details and

legal theories contained in the charging instrument. See Curry v. State, 30 S.W .3d

394, 404 (Tex. Crim. App. 2000). The standard of review is the same for direct and

circumstantial evidence cases; circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor. Clayton, 235 S.W .3d at 778; Hooper,

214 S.W .3d at 13.

B.    The Evidence is Sufficient to Support Winningham’s Conviction

      Viewing the evidence in the light most favorable to the verdict, the record

demonstrates that Houchin was killed in her home office—medical examiners


                                         40
testified that the bullet found in Houchin’s home office contained Houchin’s DNA,

and x-rays revealed a bullet lodged in Houchin’s body; additionally, a firearm expert

testified that both bullets were fired from the same gun. From there, Houchin was

dragged down the stairs, through the kitchen, and into the garage. Then, Houchin’s

body—wrapped in a tarp—was transported to Muenster where her body and the tarp

were purposely burned.        The State provided evidence that the inside of

W inningham’s trunk contained dog hair, human hair, and Houchin’s blood. Blue

material was smeared into scratch-like grooves of W inningham’s bumper—indicating

that a blue object forcefully contacted the bumper.            Also, the interior of

W inningham’s car was in disarray, in contrast to the pristine condition of his trunk.

The jury could have reasonably inferred that Houchin’s body was once in

W inningham’s trunk, wrapped in a blue tarp, and that the blue smear marks were

caused by her body being placed in or pulled out of his trunk. The jury could have

also inferred that W inningham cleaned his trunk to hide evidence that he disposed

of Houchin’s body after placing her in his trunk. The record also demonstrates that

Houchin was murdered after a tumultuous relationship with W inningham and shortly

after a heated public feud.    Testimony at trial indicated that W inningham was

particularly upset with Houchin about both their work and private relationships. A

receipt from an Academy sporting goods store was found near Houchin’s remains,

tying the tarp that her body was placed in to an Academy store in Arlington.

W inningham lived within ten miles of the store where the tarp was purchased.


                                         41
      Out of his normal routine, W inningham failed to submit his pay sheets to the

clinic’s insurance billing assistant the night Houchin was murdered; and he called the

clinic’s receptionist on Friday morning, informing her that he would be late. The jury

could have reasonably inferred that W inningham’s varied conduct on the night of

Houchin’s murder and the day following meant that he had murdered Houchin the

night before and was driving back from Muenster after disposing of her body Friday

morning.

      After Houchin was murdered, Winningham attempted to obtain an expedited

passport before anyone at the clinic knew Houchin was missing. After being denied

a passport because he lacked an itinerary, W inningham decided that he would

accompany Jaggers during her travels to Germany—despite having twice-previously

declined to accompany her. After buying tickets, he returned, itinerary in hand, and

again attempted to obtain an expedited passport. W inningham also withdrew a large

amount of cash shortly after Houchin was murdered.             The jury could have

reasonably inferred that W inningham was planning to flee the country even before

Houchin’s coworkers knew she had disappeared. See Gosch v. State, 829 S.W .2d

775, 783 (Tex. Crim. App. 1991) (holding that evidence of withdrawing cash with

intent to flee country probative of intent to murder), cert. denied, 509 U.S. 922

(1993). The jury could have further determined that W inningham demonstrated a

consciousness of guilt and that he was lying when he testified that he did not call the

office the morning of Houchin’s murder and did not attempt to obtain a passport that


                                          42
same Friday, when other witnesses testified to the contrary. See Couchman v.

State, 3 S.W .3d 155, 163–64 (Tex. App.—Fort W orth 1999, pet ref’d) (reasoning

that a jury can infer that a defendant demonstrated a “consciousness of guilt” by

lying about events surrounding the alleged crime); see also Wright v. West, 505 U.S.

277, 296, 112 S. Ct. 2482, 2492 (1992) (reasoning that the jury could disbelieve

defendant’s uncorroborated and confused testimony” and that the jury “was further

entitled to consider whatever it concluded to be perjured testimony as affirmative

evidence of guilt”); Padilla v. State, --- S.W .3d ---, 2010 W L 3894785, *4 (Tex. Crim.

App. Oct. 06, 2010) (“A rational trier of fact could also consider such untruthful

statements by appellant, in connection with the other circumstances of the case, as

affirmative evidence of appellant’s guilt.”) Viewing the evidence in the light most

favorable to the jury’s verdict, we hold that a rational trier of fact could have found

that the testimony of the witnesses and other evidence at trial were sufficient to

establish the elements of murder beyond a reasonable doubt. See Jackson, 443

U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W .3d at 778; see also Tex. Penal

Code Ann. § 19.02(b)(1)–(2) (listing elements of murder). Accordingly, we hold that

the evidence is sufficient to support W inningham’s conviction and overrule both of

his points.




                                          43
                                 IV. C ONCLUSION

       Having overruled both of W inningham’s points, we affirm the trial court’s

judgment. W inningham’s motion for setting bail is now moot; accordingly, the motion

for bail is denied.




                                             BILL MEIER
                                             JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: October 21, 2010




                                        44
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                  NO. 2-07-389-CR


LESTER W INNINGHAM, JR.                                                  APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


                                      ------------

         FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                    DISSENTING OPINION ON
             PETITIONS FOR DISCRETIONARY REVIEW

                                      ------------

      On original submission, I joined the majority’s holdings that the jury’s verdict

is clearly wrong because the evidentiary scale tips radically toward a negative finding

that Appellant Lester W inningham, Jr. either intentionally or knowingly caused the

death of Deborah Houchin; that the verdict is contrary to the law and the evidence;

and that, based on the record before us, Appellant’s conviction is clearly wrong and
manifestly unjust. I dissented from the majority’s holding that the evidence is

nonetheless sufficient to support Appellant’s conviction under Jackson v. Virginia.1

      More than twenty years ago, the Texas Court of Criminal Appeals announced,

             Adherence to the no evidence standard is now, and has been for
      the last decade, expressly forbidden by Jackson. It is no longer
      permissible to merely quote the Jackson standard and then to turn
      around and apply the Thompson no evidence standard as we have
      historically done. Therefore, we expressly overrule that part of Combs
      that relied upon the no evidence language quoted from Banks to denote
      the incorrect standard of review for sufficiency of the evidence three
      years after Jackson. To recapitulate, the test as delineated in Jackson
      requires us, as the reviewing court, to determine whether after viewing
      the evidence in the light most favorable to the prosecution, any rational
      trier of fact could have found the essential elements of the crime
      beyond a reasonable doubt.

             W e must take each case and review the entire body of evidence
      to determine whether the State has proven beyond a reasonable doubt
      each and every element of the alleged crime and not just a plausible
      explanation of the crime.2

      Clearly, although we view the evidence in the light most favorable to the

prosecution, we are mandated to consider not exclusively the evidence supporting

the verdict but the entire body of evidence to determine whether the State has

proven each and every element of the offense beyond a reasonable doubt. It is not

sufficient that the State provide just a plausible explanation of the crime.



      1
           443 U.S. 307, 99 S. Ct. 2781 (1979).
      2
        Butler v. State, 769 S.W .2d 234, 239 (Tex. Crim. App. 1989) (citations and
quotations omitted), overruled on other grounds by Geesa v. State, 820 S.W .2d 154,
161 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28
S.W .3d 570, 571 (Tex. Crim. App. 2000).

                                          2
      In the case now before this court, the State proved a plausible explanation of

Houchin’s murder, but I could not on original submission and cannot now glean from

the record the evidence that would allow a rational trier of fact to conclude that the

State proved each and every element of the murder by shooting with a firearm

beyond a reasonable doubt.

      Because this is a circumstantial evidence case, I believe we must look at the

historic development of circumstantial evidence law in this state. For scores of

years, our courts recognized that

      [a] conviction on circumstantial evidence cannot be sustained if the
      circumstances proven do not exclude every other reasonable
      hypothesis except that of the guilt of the accused; and proof amounting
      only to a strong suspicion or mere probability is insufficient.3

      In 1983, the Texas Court of Criminal Appeals announced in Hankins v. State

that juries should no longer be instructed on a separate circumstantial standard.4

This shift was based on the fact that direct and circumstantial evidence are equally

probative.5 But after its decision in Hankins, the Texas Court of Criminal Appeals

reiterated in Carlsen,

      By the nature of circumstantial evidence, in order to determine it
      rationally establishes guilt beyond a reasonable doubt, a process of
      elimination must be used. Illustrative is Taylor v. State. W e there cited


      3
        Brock v. State, 162 Tex. Crim. 339, 285 S.W .2d 745, 747 (Tex. Crim. App.
1956), overruled by Geesa, 820 S.W .2d at 161.
      4
           646 S.W .2d 191, 197 (Tex. Crim. App. 1983).
      5
           Id. at 199.

                                          3
      the Jackson “standard for review;” in actually assessing the evidence,
      no method other than a process of eliminating the guilt of others under
      the evidence could be fashioned to effectively conclude the evidence
      rationally established Taylor’s guilt beyond a reasonable doubt. Stated
      in the converse, if the evidence supports an inference other than the
      guilt of the appellant, a finding of guilt beyond a reasonable doubt is not
      a rational finding.6

The concurrence in Carlsen agreed with the majority that

      [l]ogic dictates that if there is a “reasonable hypothes[i]s” other than the
      guilt of the accused, then it cannot be said that the guilt has been
      shown “beyond a reasonable doubt.” In Hankins v. State, we
      recognized that direct and circumstantial evidence were to be treated
      with equal dignity. Thus, any effort to weave into the standard of
      appellate review any exception or difference or special treatment for
      one type of evidence or the other will fail for lack of logic.7

The Texas Court of Criminal Appeals continued to struggle with this issue and

concluded on rehearing in Freeman v. State,

             Moreover, scrutiny of the analysis suggested in the motions for
      rehearing (that the focus of our inquiry should be on “any evidence
      which could rationally support the verdict”) reveals it to be functionally
      indistinguishable from that specifically rejected by the Supreme Court
      in Jackson as violative of the Fourteenth Amendment.

             Finally, as the motions for rehearing persuasively argue, this
      Court’s opinions have never held the circumstantial evidence analysis
      constitutes a different standard for review from that to be ultimately
      applied in direct evidence cases. If the State’s evidence supports an
      inference other than a finding of the essential elements of the crime,
      then no trier of fact could rationally find the accused guilty beyond a



      6
        Carlsen v. State, 654 S.W .2d 444, 449 (Tex. Crim. App. 1983) (op. on
reh’g) (citations omitted), overruled by Geesa, 820 S.W .2d at 161, overruled on
other grounds by Paulson, 28 S.W .3d at 571.
      7
           Id. at 450 (McCormick, J., concurring).

                                           4
      reasonable doubt—and this is true irrespective of the character of the
      evidence.

             In sum, we are convinced there are no better analytical
      guidelines for assaying whether a rational trier of fact could have found
      the essential elements of the crime beyond a reasonable doubt in any
      given conviction had upon circumstantial evidence than those we
      currently employ.8

In a footnote, the opinion on rehearing acknowledged,

            It is true that some opinions of the Court have quoted language
      apparently originating from the pen of an author or editor of Texas
      Jurisprudence to the effect that in circumstantial evidence cases an
      appellate court will “review the evidence in light of the presumption that
      the accused is innocent[.]”

            Literally and technically inaccurate, the statement is revealed as
      a writer’s attempt to convey the notion that the State’s burden of
      adducing proof beyond a reasonable doubt is but a conceptual corollary
      of the presumption of innocence, and a failure to produce that
      evidentiary quantum operates to absolve the appellant.9

The Texas Court of Criminal Appeals then revisited the circumstantial evidence

issue in Geesa, reversing its holding in the Carlsen line of cases but recognizing the

problems the reversal created:

      As Judge Clinton succinctly put it, “the accused is stripped of the
      benefit of a charge on circumstantial evidence and then loses the
      protection of a definition on reasonable doubt.”10




      8
        Freeman v. State, 654 S.W .2d 450, 456–57 (Tex. Crim. App. 1983) (op.
on reh’g) (citations and footnote omitted), overruled by Geesa, 820 S.W .2d at 161.
      9
           Id. at 456 n.*.
      10
            Geesa, 820 S.W .2d at 161.

                                          5
      The Geesa court attempted to correct the new problem by providing a

definition of beyond a reasonable doubt,11 but the Geesa instruction did not resolve

the problem of an analytical construct for appellate review in a case where there was

some evidence supporting the jury’s verdict, but the verdict was clearly wrong.

Rather than return to the old circumstantial evidence construct, the Texas Court of

Criminal Appeals imported a factual sufficiency review in Clewis v. State.12

      Giving lip service to the clear warning in Jackson that no appellate court

should ever apply a no-evidence standard of review,13 and having adopted a factual

sufficiency review similar to the civil factual sufficiency review, appellate courts

appear to have been willing to hold jury determinations legally sufficient if there was

any evidence whatsoever to support the verdict. That is, appellate courts in practice

were applying a no-evidence standard of legal sufficiency because they could fall

back on a factual sufficiency review to overturn unsupported verdicts, yet give the

State another chance to convict the accused. That is, even though the evidence to

support conviction was insufficient, or, stated another way, the prosecution had failed

to sustain its burden of proof, the appellate courts could remand the case for retrial

by holding that the evidence was factually, as opposed to legally, insufficient.



      11
            Id. at 162.
      12
         922 S.W .2d 126, 129 (Tex. Crim. App. 1996), overruled by Brooks v.
State, No. PD-0210-09, 2010 W L 3894613, at *1, *14 (Tex. Crim. App. Oct. 6, 2010).
      13
            443 U.S. at 319, 99 S. Ct. at 2789.

                                           6
      In 2000, the Texas Court of Criminal Appeals reversed the Geesa requirement

of a jury instruction on the definitions of “beyond a reasonable doubt” and

“reasonable doubt.”14 But the factual sufficiency review survived until October 6,

2010, when the Texas Court of Criminal Appeals recognized in Brooks that the legal

and factual sufficiency standards “have become essentially the same standard and

that there is no meaningful distinction between them” and held that the Jackson

standard is the only standard that appellate courts should apply in determining the

sufficiency of the evidence to support an accused’s conviction.15

      If the prosecution fails to prove an essential element of the offense charged

in the indictment and presented in the jury charge, the prosecution fails to sustain

its burden under the Jackson standard. Further, if an eyewitness identifies A as the

culprit, but a videotape shows that the offender is B, a jury who convicts A does not

act rationally.16 Under the old Clewis standard, reversal would be required because

the evidence was factually insufficient, but the case would be remanded for a new




      14
            See Paulson, 28 S.W .3d at 573.
      15
            2010 W L 3894613, at *1.
      16
            Id. at *11.

                                         7
trial.17 Neither Jackson nor double jeopardy protections permit retrial.18 Again,

Jackson prohibits a no-evidence standard of review.

      In the case now before this court, the majority previously determined that no

rational trier of fact could have found that the prosecution proved beyond a

reasonable doubt that Appellant committed each and every element of murder by

shooting Houchin with a firearm. Respectfully, I believe the majority applied a no-

evidence standard in determining that the evidence was legally sufficient in its

original opinion. Now, the majority conscientiously remains consistent by holding the

evidence sufficient. I believe that this holding is at odds with an analysis of the facts

under Jackson.

      The Brooks court did not mandate that appellate courts abandon a factual

analysis of the evidence. Rather, the Brooks court reminded us that the Jackson

standard is consistent with “constitutional and statutory mandates” that appellate

courts review both “questions of law” and “questions of fact.”19 To comply with

Jackson, we must view all the evidence, but we must view that evidence in the light

most favorable to the prosecution and determine whether the evidence is sufficient

to permit a rational trier of fact to find the prosecution proved beyond a reasonable


      17
            See id. at *10.
      18
         Id. at *8 (citing Greene v. Massey, 437 U.S. 19, 24–25, 98 S. Ct. 2151,
2154–55 (1978); Burks v. United States, 437 U.S. 1, 16–18, 98 S. Ct. 2141, 2150–51
(1978)).
      19
            Id. at *13.

                                           8
doubt that the accused committed each and every element of the offense alleged.

The majority previously held that the verdict shocks the conscience because it is

clearly wrong and manifestly unjust. The justification for the conflict in the majority’s

previous conclusions is the change in vantage point formerly required by factual and

legal sufficiency reviews. But a verdict that shocks the conscience and is clearly

wrong and manifestly unjust cannot be salvaged by viewing the evidence, or

absence thereof, from a different perspective.

      In the first week of April 2004, Appellant moved in with Houchin in Arlington,

Texas. Houchin and Appellant had disagreements, and Appellant moved out three

times before he left the final time on April 15, 2005. Houchin changed the locks on

her doors.   W hile they lived together, but before April 15, 2005, they became

engaged but broke off the engagement, and Houchin complained to others when she

became angry with Appellant.

      Bruce Tinch’s very dramatic testimony of Houchin’s visit to his house, which

he described as the “apex of horrificness,” recounted events that occurred in

February 2005, well before April 15. In fact, after Houchin’s dramatic, late-night visit

to Tinch’s house, Houchin and Appellant reconciled, and Appellant moved back into

Houchin’s house. Houchin’s body was found July 22, 2005, more than three months

after they broke up and Appellant moved out.

      Other than disagreements in the office, the record does not reflect any

personal interaction between Appellant and Houchin after April 15. In the office,


                                           9
Houchin and Appellant argued over whether to hire a full-time or a part-time

secretary, whether to fire an employee who had not locked the medication cabinet,

and whether Appellant was doing his share of work in the office.

      After their final breakup in April 2005, Houchin announced that she had posted

her profile on an online dating service again and had gotten over 400 hits. Tinch

testified that Appellant was not angry about Houchin’s online dating and that he was

actually indifferent about it. Indeed, Appellant had developed a relationship with

another woman. Tinch also testified that Appellant was socially inept.

      The last two people known to have seen Houchin alive were Robert Mims, a

coworker, and Amy Tinch, Bruce Tinch’s wife. Houchin and Appellant had argued

at work on the evening of July 21, 2005, a Thursday, and Mims and Amy had gone

with Houchin to her car after Appellant left. Mims described the argument as one

like a divorced couple would have, with each party pushing the other’s buttons and

saying that the other needed counseling. Mims said that the argument seemed

more hostile than he had been expecting, but was just verbal sparring, and neither

Appellant nor Houchin had made any threats. Mims testified that he had told

Houchin that, over the years, “some chaos in the office setting . . . seem[ed] to follow

[her].” Mims testified that he left Houchin around 10:50 p.m.

      The record reflects speculation that Appellant could have murdered Houchin,

but what is the evidence, circumstantial or otherwise, that he actually murdered

Houchin? I know that we are not supposed to consider what evidence is missing in


                                          10
determining that the evidence is insufficient,20 but surely there must be some

evidence beyond suspicion and speculation to convict someone of murder.

      The State argued that a receipt showing that a rope and a tarp were

purchased at an Academy store in Arlington on July 2, 2005 was found at the scene

of the fire in Muenster. The State argued that this receipt was significant because

Appellant lived less than ten miles from that store. But there is no evidence that

Appellant is the person who made the purchase. There is no evidence that Houchin

did not make the purchase. She also lived in Arlington, and their office was in

Arlington. The total land area of Arlington is 99.5 square miles.21 W here in Arlington

could any of its approximately 370,450 inhabitants live without being within ten miles

of the Academy store? 22 Is it the State’s theory that on July 2, Appellant planned to

kill Houchin in her home on July 21 or 22 and was so well organized that he

purchased the tarp and rope in preparation, yet he was so disorganized that he left

the receipt at the scene of the fire? He prepared so well that on July 21 or 22 he

took the tarp and the rope to her home, as well as the receipt that he managed to




      20
        See Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App. 2007) (“Our
review of ‘all of the evidence’ includes evidence that was properly and improperly
admitted.”) (emphasis added).
      21
          City Facts and Figures: Get to Know Our City, http://www.arlingtontx.gov/
cityfacts.html (last visited October 19, 2010).
      22
            See id.

                                          11
leave at the scene in Muenster, yet left the bag that he carried them in at home for

the police to find?

        The majority assumes that Houchin was wrapped in a blue tarp that was tied

together with rope before she was put into the trunk of Appellant’s car. But there is

no evidence of that. The theory was created by the prosecution to explain blue

marks that appear on the bumper of Appellant’s car, but not on the edge of the trunk,

the gasket, or anywhere inside the trunk. The theory was also created to explain

how there could be blood smears on the floor inside Houchin’s house and on her

garage floor where police investigators concluded the body had been dragged, but

no such blood smears or hairs from Houchin’s body anywhere inside or outside of

Appellant’s car. Although Pat Eddings, senior trace analyst with the Tarrant County

Medical Examiner’s Office, testified that the blue fibers appeared to have been put

on the bumper by force, no one could testify how much force would have been

required. She admitted that hundreds of thousands of items would leave the same

blue marks as the tarp. For example, she could not exclude plastic brushes on a car

wash.

        So what was the evidence that Appellant intentionally or knowingly caused the

death of Houchin by shooting her with a firearm?

•       They had been engaged and lived together. W hen she was angry, Houchin
        told people to tell the police to look at Appellant if anything happened to her.




                                           12
•   Appellant and Houchin had argued at the office on the last night that she was
    seen. The argument was over whether to write up an employee who had
    failed to lock the medication cabinet.

•   Appellant had some empty Academy bags in his house. He had some natural
    fiber rope, but it was not the same kind of rope as that contained in the bag
    found in Muenster at the fire site.

•   Appellant made a call from his cell phone in Arlington, where he lived and
    worked, on the night that police suspect Houchin was killed.

•   Appellant did not turn in his day sheets for billing on Thursday, as was his
    custom, but waited until Sunday.

•   Appellant called the receptionist on Friday morning to say that he would arrive
    at work late, although he testified that he made no such call, his cell phone
    records reflected no such call, and he arrived on time.

•   Hillman testified that there were two trunk liners—a permanent liner and a
    removable plastic liner that lies on top of the permanent-cloth liner. A spot of
    Houchin’s blood was found on the permanent liner in Appellant’s car’s trunk,
    although there was no way to tell how long it had been there and, presumably,
    it was underneath the plastic liner. Blue marks appeared on the bumper of
    Appellant’s car.

•   The police testified that there was no forced entry into Houchin’s house.

•   The police testified that an opened bag of dog food in the kitchen proved that
    the killer was concerned about the welfare of Houchin’s dogs, so it must have
    been Appellant who killed Houchin because he must have known the dogs.

•   Appellant did not seem sorry enough that Houchin was dead.

•   Tinch claimed that Appellant called Houchin’s sister on the weekend to speak
    of Houchin’s death before the body was identified, although Houchin’s sister
    and telephone records showed that he called only after Houchin’s body had
    been identified.

•   Appellant got an expedited passport after Houchin was killed but before her
    body was identified, bought a round-trip ticket to Germany, withdrew $20,000
    from his bank account, paid his electric bill, paid his health club bill, and left


                                        13
      money in his bank account. After Houchin’s body was identified, he contacted
      the police to tell them that he was going to Germany.

      The State argued that a circumstance supporting Appellant’s conviction was

the fact that he had planned to go to Germany but did not go and instead attended

Houchin’s funeral. I note that Mims, one of the last two people to see Houchin alive,

did leave the country, however, and did not attend Houchin’s funeral.

      The medical examiner determined that Houchin had been shot three times.

A projectile with Houchin’s blood on it was found in her house. It was not fired from

her gun. No evidence connects Appellant to any firearm. Nothing in the record

indicates that Appellant owned a firearm, had ever owned or possessed a firearm,

or had access to a firearm. Nothing places Appellant in or near Houchin’s house

after she left the office Thursday night.

      Is this sufficient evidence to justify a rational jury’s concluding that the State

had proved each and every element of the offense of murder beyond a reasonable

doubt under the Jackson standard? 23 That is, looking at the evidence in the light

most favorable to the prosecution, is the evidence sufficient to prove to a rational jury

beyond a reasonable doubt that Appellant intentionally or knowingly caused the

death of Houchin by shooting her with a firearm? The majority believes it is. I

cannot agree.




      23
            See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

                                            14
      A rational jury must consider the evidence as a whole, and not just the

evidence that may possibly imply guilt. That is, a rational jury considers all the

evidence, and even though a reviewing court must view the evidence in the light

most favorable to the prosecution, we must nevertheless view all the evidence, not

just that evidence favorable to the prosecution.24

      For example, Tinch testified that Appellant called Houchin’s sister to tell her

of Houchin’s death sometime during the weekend after the murder but before her

body was identified. That could be considered evidence supporting the conviction.

But Houchin’s sister testified that Appellant called her after the body was identified,

and the telephone records support her testimony. Under Brooks, the jury could not

rationally ignore the telephone records in favor of Tinch’s testimony.25

      W hat about evidence that is mere speculation or supposition? The police

assumed, speculated, or supposed that the killer, rather than Houchin or the dogs

themselves, ripped open a bag of dog food and that this meant that whoever killed

Houchin cared about the dogs, and therefore must have known them, and therefore

must have lived in the house with them, and therefore must have been Appellant.

Do we assume that a rational jury gave weight to this evidence, which is

unsupported by anything other than speculation?




      24
            Id. at 319, 99 S. Ct. at 2789.
      25
            See 2010 W L 3894613, at *11.

                                              15
      On the last night that she was seen by coworkers, Houchin had plans to meet

for the first time with someone she had met through an online dating service. He

said that she had canceled the meeting because there was something she thought

she had taken care of that she had to do that night. The record does not reflect that

the police found an e-mail or a record of a telephone call supporting his claim that

she had canceled their meeting. Nothing in the record suggests that Houchin

planned to meet with Appellant that night. Houchin did not leave the office until

10:50 p.m. W as the matter that she had previously thought resolved the reason that

she stayed at work so late? If Houchin did indeed cancel her meeting with the man

she met online, nothing in the record suggests that the unresolved issue involved

Appellant. Indeed, a beer can and a cigarette butt were found beside the driveway.

The police never tested them for fingerprints or DNA. Nor was there any evidence

in the record that Appellant smoked.

      The record also reflects that when Texas Ranger Tracy Murphree applied for

search warrants and the arrest warrant for Appellant, Murphree stated that Appellant

had made a cell call on the night that Houchin disappeared and that the call was

made from a location “in close proximity to her house.” At trial, however, Murphree

admitted that he could only tell that the call had been made somewhere in Arlington,

but not which cell tower handled the call or how close to Houchin’s house the cell

phone was when the call was made. Of course, Appellant lived and worked in

Arlington, and records would reflect that any calls he made from his home or office


                                         16
were made from Arlington. The record also reflects that Appellant called Amy

Jaggers, his girlfriend at the time, on the night that Houchin was killed.

      The police further concluded that the killer had to be someone Houchin knew

because there was no forced entry. W hat is the evidence that the doors or windows

were locked before the shooting? There is no evidence that Appellant had a key

because Houchin had changed her locks after he moved out. A broken window had

been boarded over, but the police entered the home through it.           W hat is the

evidence that no one else previously entered the home through the same broken

window? Police discovered blood on or near Houchin’s computer, indicating that

she was at or near her computer at some point during the murder. W as she working

on her computer when she was talking to her murderer, or was she surprised while

she was working on her computer?

      The majority and the prosecution rely on the fact that the body appeared to

have been dragged to the entrance of the garage, where the blood smears stop,

suggesting that Appellant’s car was waiting in the garage. But photographs show

Houchin’s car parked in the center of the garage, leaving no room for any other car.

Her car keys were in plain view in the house. There is no evidence that the police

ever examined her car to determine whether it had been used to transport her body.

W as Houchin’s car used to transport her body, or did the murderer carry her body

outside the garage to a waiting car? It seems suspect that the blood trail ends in

Houchin’s garage, but there is no evidence that Houchin’s car was ever moved so


                                         17
that another vehicle, ostensibly Appellant’s, could have been used to transport

Houchin’s body, and no evidence that Houchin’s car was so used.

      If the weight of Houchin’s body was sufficient to cause the blue tarp to smear

onto the bumper, why are there no blue smears on the plastic lining inside

Appellant’s car? W hat is the evidence that Appellant and no one else purchased a

blue tarp? W hat is the evidence that the murderer bought the tarp rather than

merely using whatever was available to dispose of the body?

      Indeed, if the killer had driven Appellant’s car and if there was no indication

that he ever cleaned the interior of his car, there would be some evidence. The

State theorized that the killer dragged the bleeding body through the house, based

on the blood evidence in the house, yet there was no blood anywhere in the

passenger compartment of Appellant’s car. The police found a footprint in dog feces

in the house, a footprint which the record does not show any attempt by the police

to match.   Yet no one testified that the police found any evidence of feces in

Appellant’s car. And even though the State’s theory was that Houchin was killed in

her home, there was also no evidence that the killer left personal items behind or

attempted to clean himself at Houchin’s house. Finally, even though the State

depended largely on the presence of a blue material found in scratches on the

bumper of Appellant’s car, there was no blue material inside his trunk, nor was any

evidence of a blue tarp-like material found in Houchin’s house or garage. The

person who moved the body either dragged it across the garage floor or carried it to


                                        18
whatever car was used to transport it. W here are the blue smears from dragging the

tarp-wrapped body across the garage floor?         W hy is there no blood transfer

anywhere inside the passenger compartment of Appellant’s car?

      Additionally, regardless of what time Appellant arrived at work on Friday, there

is no evidence that he looked disheveled, smelled of accelerant, or had blood on

him. No evidence of bloody clothing or instrumentalities of the crime—other than

potentially the Academy bag—was found in his car or at his apartment.

Furthermore, despite testimony that Appellant called Houchin’s sister over the

weekend, phone records objectively demonstrate that he did not call Houchin’s sister

until Tuesday—after everyone at the clinic had learned of Houchin’s murder.

      The majority states that the passenger compartment of Appellant’s car was

messy but that the trunk was “pristine,” containing blood and dog hairs and brown

human hairs. Although the blood was underneath the plastic liner, it is unclear

where the hairs were located in this “pristine” environment. The State proved that

Appellant’s car could plausibly have been used to transport Houchin’s body

somewhere. The State also proved that Houchin could have bled onto the trunk liner

underneath the plastic liner at any time in the previous months.

      But Appellant was neither charged with nor convicted of tampering with

evidence. He was not convicted as a party to the offense of murder. He was

charged and convicted of intentionally or knowingly committing murder by

intentionally or knowingly firing a firearm. There is no evidence to suggest who fired


                                         19
the shots that killed Houchin, that the person who killed her was the person who

transported the body, that Appellant’s car was in Muenster on the day that the body

was burned, that Appellant’s car had transported any accelerant or that Appellant

had handled any accelerant, that Appellant ever possessed or fired a firearm, or that

Appellant had any connection to the burning of Houchin’s body.

      Murphree testified that the killer knew and was concerned about the dogs and

must have torn open the dog food bag. This conclusion is no more than speculation.

In Winfrey v. State,26 the evidence of guilt was not that W infrey and the dog had a

prior relationship but that dogs alerted to W infrey’s scent allegedly present on the

clothing worn by the murder victim at his death. The Texas Court of Criminal

Appeals held that although dog-scent identification evidence may raise a strong

suspicion of a suspect’s guilt, standing alone it is insufficient to establish a person’s

guilt beyond a reasonable doubt.27 The Texas Court of Criminal Appeals thereby

cast grave doubt on the reliability of such testimony.28

      The Jackson court made clear that we are not to use a “no evidence” standard

in determining the sufficiency of the evidence to support a conviction.29 The Jackson

court also made clear that the “no evidence” standard is inadequate to protect


      26
            No. PD-987-09, 2010 W L 3656064 (Tex. Crim. App. Sept. 22, 2010).
      27
            Id. at *5.
      28
            See id.
      29
            443 U.S. at 320, 99 S. Ct. at 2789.

                                           20
against misapplication of the constitutional standard of reasonable doubt: “[A] mere

modicum of evidence may satisfy a ‘no evidence’ standard” because any evidence

that is relevant and has any tendency to make the existence of an element of a crime

slightly more probable than it would be without the evidence could be deemed a

mere modicum, but “it could not seriously be argued that such a ‘modicum’ of

evidence could by itself rationally support a conviction beyond a reasonable doubt.”30

      Respectfully, reviewing the entire body of evidence, I would hold that the State

has not proved beyond a reasonable doubt each and every element of the murder

of Houchin but merely a plausible explanation of the crime. W hen this evidence is

viewed in the light most favorable to the prosecution, no rational trier of fact could

have found, from the evidence as opposed to mere conjecture and speculation, the

essential elements of the crime beyond a reasonable doubt under the test mandated

by Jackson. I therefore respectfully dissent from the majority’s holding that the

evidence is sufficient to support Appellant’s conviction under the Jackson standard.




                                               LEE ANN DAUPHINOT
                                               JUSTICE

PUBLISH

DELIVERED: October 21, 2010



      30
            Id., 99 S. Ct. at 2789–90.

                                          21
