                                                                            PD-0172-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                         Transmitted 3/25/2015 1:30:13 PM
                                                           Accepted 3/25/2015 3:04:24 PM
                          No. PD-0172-15                                     ABEL ACOSTA
                                                                                     CLERK

     TO THE COURT OF CRIMINAL APPEALS OF TEXAS

                        NORMA JEAN CLARK
                            Appellant

                                 v.

                       THE STATE OF TEXAS,
                             Appellee

  ______________________________________________________

         PETITION FOR DISCRETIONARY REVIEW
  ______________________________________________________


 On Petition For Discretionary Review from the First Court of Appeals
Cause No. 01-13-00373-CR, affirming the judgment in Cause No. 1295757
         from the 228th District Court of Harris County, Texas.
  ______________________________________________________



                                      ALEXANDER BUNIN
                                      Chief Public Defender
                                      Harris County, Texas

                                      SARAH V. WOOD
 March 25, 2015
                                      Assistant Public Defender
                                      Harris County, Texas
                                      Texas Bar Number 24048898
                                      1201 Franklin, 13th Floor
                                      Houston, Texas 77002
                                      Phone: (713) 368-0016
                                      Fax: (713) 368-9278
                                      Sarah.Wood@pdo.hctx.net

                                      Counsel for Appellant
                     IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                                  Norma Jean Clark

TRIAL PROSECUTORS:                          Donna Logan
                                            Katherine McDaniel
                                            Assistant District Attorneys
                                            Harris County, Texas
                                            1201 Franklin, Suite 600
                                            Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:                   E. Dee McWilliams
                                            Neal Davis, III
                                            440 Louisiana, Suite 200
                                            Houston, Texas 77002

PRESIDING JUDGE:                            Hon. Marc Carter
                                            228th District Court
                                            Harris County, Texas
                                            1201 Franklin, 16th floor
                                            Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL:                  Sarah V. Wood
                                            Assistant Public Defender
                                            Harris County, Texas
                                            1201 Franklin, 13th Floor
                                            Houston, Texas 77002




                                    ii
                                                   TABLE OF CONTENTS
Identity of Parties and Counsel ............................................................................................ ii
Table of Contents ................................................................................................................. iii
Index of Authorities ............................................................................................................. iv
Statement Regarding Oral Argument................................................................................... v
Statement of the Case ............................................................................................................ v
Statement of Procedural History ......................................................................................... v
Grounds For Review .............................................................................................................. v
Argument ................................................................................................................................. 1
  Reasons for Review ............................................................................................................. 1
  Factual Background............................................................................................................. 2
  Ground Number One......................................................................................................... 8
                In reviewing deficient performance, is a court limited to considering
                only the strategy that counsel articulated when he testified at a
                motion for new trial hearing—or can his actions be justified based on
                any plausible strategy that the court can conceive?

      a. Overview ...................................................................................................................... 8
      b. The Court’s InApplicable Law ................................................................................... 9
      c. The Court’s Background .......................................................................................... 10
      d. The Court’s Analysis ................................................................................................. 11
  Ground Number Two....................................................................................................... 15
                The court of appeals erred in holding the evidence sufficient where
                the finding of guilt was necessarily based on speculation.

Prayer for Relief .................................................................................................................... 18
Certificate of Service and Compliance .............................................................................. 18
Appendix ............................................................................................................................... 19


                                                                    iii
                                             INDEX OF AUTHORITIES



Cases

Anderson v. State, 193 S.W.3d 34 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) ..... 14

Clark v. State, 01-13-00373-CR, 2015 WL 162257 (Tex. App.—Houston [1st Dist.] Jan.

  13, 2015, no. pet. h.). ..................................................................................................passim

Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001). ..................................................... 14

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)........................................................ 15

Rabb v. State, 434 S.W.3d 613 (Tex. Crim. App. 2014) ...................................................... 17

Richard Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010). .................................... 16

Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003). ................................................ 13

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ................................................... 14

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013). ................................................. 16




                                                               iv
                    STATEMENT REGARDING ORAL ARGUMENT
      Appellant requests oral argument as it may aid the Court since the analysis of

this case depends upon a detailed review of the record in an interesting case.

                              STATEMENT OF THE CASE

      Pursuant to a “cold case” investigation, Ms. Clark was indicted on May 16, 2011

for the murder of her late husband, alleged to have occurred twenty-four years earlier

in 1987 (C.R. at 17 ). She pleaded not guilty and, after a jury trial lasting for over two

weeks, was convicted and ultimately sentenced to twenty-five years in prison (C.R. at

228). Counsel on appeal filed a motion for new trial and at a hearing admitted items

of evidence that the jury had not seen (C.R. at 217).

                       STATEMENT OF PROCEDURAL HISTORY

      The First Court of Appeals affirmed the trial court’s judgment in an

unpublished opinion. Clark v. State, 01-13-00373-CR, 2015 WL 162257 (Tex. App.—

Houston [1st Dist.] Jan. 13, 2015, no. pet. h.). No motion for rehearing was filed.

                               GROUNDS FOR REVIEW

          1. In reviewing deficient performance, is a court limited to
             considering only the strategy that counsel articulated when he
             testified at a motion for new trial hearing—or can his actions be
             justified based on any plausible strategy that the court can
             conceive?
          2. The court of appeals erred in holding the evidence sufficient
             where the finding of guilt was necessarily based on speculation.




                                            v
                                      ARGUMENT


Reasons for Review

1.      The court below held that counsel’s failure to introduce a powerfully

     exculpatory death threat against the victim made days before his murder could have

     been based on a reasonable strategy even though it was never articulated by counsel

     at the motion for new trial hearing. Caselaw already establishes that if counsel has

     not had an opportunity to articulate his strategy, a reviewing court may speculate

     on any plausible strategy in order to justify his actions. However, counsel cannot

     find authority explicitly stating the converse—that a reviewing court may not

     speculate where counsel has already articulated his strategy. Specifically, is a

     reviewing court limited to considering counsel’s stated strategy even though others

     may exist?

        In this way, the First Court of Appeals has decided an important question of

     law in a way that conflicts—by implication—with other decisions and it has

     decided an important question of law that has not been, but should be, settled by

     the Court of Criminal Appeals.



2.      By finding the evidence sufficient, the court of appeals has so far departed

     from the accepted course of proceedings as to call for this Court’s supervisory

     power.


                                            1
Factual Background
       On April 22, 1987, Ed Clark was murdered, shot while asleep in bed. At the

time, police had suspicions about his wife, Norma Clark, who was the only person

home at the time of the shooting, sleeping in an upstairs bedroom. A grand jury

investigation occurred, but no charges were brought (6 R.R. at 15). Ms. Clark lived a

quiet life for the next quarter of a century (10 R.R. at 17).




                                      Mr. and Mrs. Clark

       Then in 2010, the investigation reopened when a forensic examiner observed a

pattern of microscopic spots on Mrs. Clark’s nightgown that resembled blood spatter.

As the court of appeals noted, further testing revealed that only one microscopic spot

on the nightgown tested positive for blood and its source could not be identified.

Clark v. State, 01-13-00373-CR, 2015 WL 162257, at 4 (Tex. App.—Houston [1st

Dist.] Jan. 13, 2015, no. pet. h.).

       Nevertheless, the stains were characterized at trial by the prosecution as “blood


                                              2
spatter” due to the “mist” pattern. However, it was also revealed that the method for

testing for gunshot residue in 1987 required the nightgown to have been “misted”

with chemicals. (5 R.R. at 67). The unidentified microscopic staining on the

nightgown was the only new information used to pursue charges against the sixty-

seven-year old woman with no criminal history.

      A two-week long trial revealed largely undisputed evidence that could paint a

picture of either guilt or innocence depending upon who held the brush. No

“smoking gun” ever developed. Memories were so ravaged by the passage of twenty-

five years that inconsistencies were far too many to list. The court of appeals’ opinion

lays out the most convincing possible argument for guilt. But for each fact the court

found incriminating, there generally existed another undisputed fact suggesting

innocent circumstances.

      For instance, the court of appeals noted that at the time of the shooting, “the

alarm, which Clark routinely set, did not go off.” Clark, at 7. However, the court fails

to mention that State’s witnesses testified that Mr. Clark always complained that

“Norma never sets the alarm, or she would turn it off and never set it.” (6 R.R. at 74,

113). Also, it was undisputed that Mr. Clark had been assaulted in the home a few

months prior by an unknown male intruder (not Norma) who also somehow entered

the house without breaking-in. (5 R.R. at 196).

      The court of appeals recited that upon fleeing to the neighbor’s house after the

shooting, “appellant spent 30 to 45 minutes in the bathroom.” However, Norma was

                                           3
in the bathroom vomiting due to shock and illness. (6 R.R. at 78).

      The court also observed, “Appellant claimed to have run through the woods

after she heard shots, but when she appeared at the [neighbors’] house, her gown and

feet were both clean.” This fact was trumpeted a major point of guilt at trial.

However, the significance was never clear. Obviously, she could have cleaned up

during her time in the bathroom. Or a trail could have existed through the woods

which would have kept her from becoming noticeably dirty. Police in 1987 never even

walked into those woods to investigate (3 R.R. at 215-16). A video was made by

previous defense counsel back in 1987 showing a relatively clear path. It was never

introduced at trial, but was admitted at the motion for new trial hearing. (MNT at

Court’s Exhibit #10).

      The court noted that after fleeing to the neighbor’s house, “appellant signed a

consent-to-search form, but was otherwise uncooperative.” However, not only did she

sign a consent form, she also described what occurred, answered the officer’s

questions, and agreed to come to the station later. The officer later admitted that his

use of the word “uncooperative” was just “speculation.” (3 R.R. at 222-23).

      The court remarked that “appellant went to the bank the same day as the

murder to withdraw funds.” In a vacuum, this fact may appear incriminating.

However, the same State’s witness who testified about driving her to the bank stated

that she went at his own insistence. He told Norma that she needed to get to the bank

quickly “because usually when people die, or get killed, the banks lock up all your

                                           4
stuff.” (9 R.R. at 228).

       The court stated Norma told her friend “that she was afraid the police would

blame her for the murder…’” However, this same friend testified that she urged

Norma to call an attorney, telling her, “You always want to talk to an attorney when

something like this happens… Because a spouse is the first one they think did it.” (6

R.R. at 137).

       The court observed that Norma told people that “she could not take a GSR

test because she had been firing a gun at home, even though she was supposed to

have been home from work because she was sick.” However, State’s witnesses also

testified that Mr. Clark had recently insisted that Norma learn to shoot a gun due to

threats against his life and fears for their safety. (8 R.R. at 238-39). And it is unclear

how being home sick from work would necessarily be inconsistent with having target

practice in the backyard.

       Moreover, as the court of appeals remarked, Norma went to the hospital and

therefore did not meet officers at the station later that day as agreed. However,

hospital records and the testimony of other State’s witnesses confirmed that she was

quite ill. (State’s Exhibit 73; 6 R.R. at 76-77).

       Furthermore, the court noted that the GSR tests performed in 2010 found two

particles of GSR on the nightgown, stating that the “examiner described this as an

inconclusive result because 1 in 10,000 people would have gunshot residue on them if

they had not fired a weapon.” This is actually a misstatement by the court because the

                                               5
testimony was that 1 in 10,000 people would have 2 particles of GSR discovered by

one test. In this case, they performed two separate tests and found one particle each

time. Additionally, GSR is “highly transferrable,” the Clarks lived in a high GSR

environment because they had lots of guns, and the nightgown was handled by

numerous police officers and kept in police evidence over the decades. (6 R.R. at 217).

Also, the clothing was submitted twice for GSR testing in 1987 and the test results

were negative (5 R.R. at 114). And of course, if she were home sick having target

practice, she may have done so in her nightgown.

      While the court of appeals stated that Mr. Clark was shot with his own gun, it

was not clear at trial. Witnesses believed Mr. Clark owned a gun similar to the .38 left

at the scene, but police did not find any other ammunition for a .38 inside the house

(3 R.R. at 128; 5 R.R. at 199; 8 R.R. at 77). It was not until 2010 that police found it

was registered to a man named Michael Todaro who had been in jail in Houston not

long after the murder and was never investigated (5 R.R. at 176, 221-22; 8 R.R. at 77).




                                    Michael Todaro



                                           6
       It was undisputed that Mr. Clark actually had a whole series of mysterious

death threats (not from his wife) prior to his murder. In 1983 his home was severely

vandalized. Witnesses confirmed that the interior of the home was “destroyed” and a

note made from magazine letters said “what goes around comes around m__f__” (5

R.R. at 246; 7 R.R. at 56; 8 R.R. at 63). The damage was so meticulous that holes were

drilled into the refrigerator.




       A few months before his murder, Mr. Clark was the victim of an unusual

assault where someone made an unforced entry into the house and beat him over the

head while he was asleep on the couch (5 R.R. at 196). Norma called the police (3

R.R. at 241).

       Then just days before Mr. Clark was murdered, an unknown male called and

left an extremely frightening message on his answering machine, stating in a slow,

serious voice, “I’m going to kill you. I know where you live. Tonight.” (MNT at

Court’s Exhibit 13). The jury never got to hear this recording due to trial counsel’s

errors, discussed below.


                                          7
      The court of appeals mentioned that a State’s witness informed the jury about

the message. However, she told the jury that it did not sound threatening and that she

heard laughter (6 R.R. at 61). This testimony was untrue and gave the jury a

completely false impression. If the court of appeals had listened to the recording,

they would have concluded that the threat was deathly serious. (MNT at Court’s

Exhibit 13). Police never investigated these incidents in relation to the murder.

      Other circumstantial evidence described by the court of appeals can be

clarified with additional undisputed facts from trial or easily chalked up to faulty,

twenty-five-year-old memories.

Ground Number One
          On a claim of ineffective assistance, may a reviewing court speculate
          that trial counsel’s actions could have been based on any plausible
          strategy that the court can imagine—even where counsel testified to
          an unreasonable strategy at a motion for new trial hearing.?
   a. Overview

      Just days before Mr. Clark was murdered, a death threat was left on his

answering machine. In the most serious, creepy tone you can imagine, a male voice

uttered the words, “I’m going to kill you. I know where you live. Tonight.” (MNT at

Court’s Exhibit 13). Remarkably, former counsel Rick Brass collected this tape in 1987

and then carefully preserved it for twenty-five years. The tape appears to be an

exculpatory windfall. However, trial counsel never introduced the recording at trial.

      At the motion for new trial hearing, trial counsel explained that he decided not



                                            8
introduce the tape because Rick Brass’s testimony to authenticate it would “vitiate the

attorney/client privilege.” (MNT at 39). The court of appeals agreed with appellant

that Brass’s testimony could not vitiate the privilege. Logically therefore, counsel’s

stated concern did not constitute a valid strategy.

       However, the court of appeals disregarded trial counsel’s “vitiation”

explanation and instead speculated that he must have actually possessed another

unstated strategy regarding “related communications.” As a matter of law, Brass’s

testimony would have waived privilege within the narrow scope of “communications

related to the recovery of the audiotape.” Therefore, the court speculated, counsel

could have actually feared revealing those “related communications”—even though

counsel never actually mentioned it.

       If counsel testifies to a one strategy, but another plausible strategy may exist,

may a reviewing court rely upon it to justify counsel’s actions?

   b. The Court’s InApplicable Law

       The court of appeals’ opinion is largely written as if they were not aware that a

hearing on the motion for new trial had occurred. The section entitled “Ineffective

Assistance of Counsel” begins on page eight with a recitation of “Applicable Law”

that is actually not applicable.

   We cannot speculate beyond the record provided, so any allegation of
   ineffectiveness must be firmly founded in the record, and the record must
   affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d
   808, 813 (Tex. Crim. App. 1999); see Anderson v. State, 193 S.W.3d 34, 39 (Tex.
   App.–Houston [1st Dist.] 2006, pet. ref'd). Because the record is usually

                                            9
   underdeveloped, direct appeal is often an inappropriate forum in which to
   bring this type of claim. Rylander v. State, 101 S.W.3d 107, 110–11
   (Tex.Crim.App.2003). The necessary record is best developed in a hearing on a
   motion for new trial or by application for a writ of habeas corpus. See Jackson v.
   State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).
These cases upon which the court purportedly based its reasoning are scarcely

relevant in this case because an extensive hearing on a motion for new trial did occur.

The record was developed. Inexplicably, the court’s “Applicable Law” section then

concludes:

   “Failure to object to admissible evidence does not constitute ineffective
   assistance of counsel.” Lee v. State, 29 S.W.3d 570, 579–80 (Tex. App.–Dallas
   2000, no pet.); see also Ex parte Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App.
   2012) (“The failure to object to proper questions and admissible testimony ... is
   not ineffective assistance.”).
The law regarding a failure to object is likewise inapplicable to this case because it was

not an issue. By admittedly basing its analysis on irrelevant law, the court’s holding is

called into doubt.

   c. The Court’s Background

      In its section entitled “Background,” the court unreasonably downplayed the

importance of the tape, stating, “It is undisputed that the existence of the audiotaped

threat was known to the jury through the testimony of other witnesses…”

      While it was true that the jury knew a tape existed, they were completely

misinformed about its nature. The State’s witness testified, “It sounded like someone

young, like a teenager. And I could hear laughing” and it “just didn’t sound

threatening to me.” (6 R.R. at 62-63). This is completely false. If the court of appeals


                                           10
had listened to the tape, they would have known it sounded serious and frightening—

with no hint of laughter. A listener’s visceral reaction to the tape should not be

understated.

   d. The Court’s Analysis

      The court of appeals agreed with appellant that “Brass’s testimony as to chain

of custody would not be a blanket waiver of attorney-client privilege…” Clark, at 11.

Trial counsel’s stated concern that privilege would be “vitiated” was therefore legally

unfounded.

      However, the court concluded that the decision not to introduce the tape was

actually because counsel did not want to risk opening the door to those

communications related to the recovery of the tape.

      Even though we agree that Brass’s testimony as to chain of custody
      would not be a blanket waiver of attorney-client privilege, and would
      only be a waiver as to communications related to the recovery of the
      audiotape or the creation of the videotape, we do not know what those
      related communications might have included had Brass been subject to
      cross-examination. As such, trial counsel had a strategic purpose in not
      calling Brass, as he testified in the motion for new trial hearing. Trial
      counsel's decision not to call Brass and risk opening up testimony to
      those related communications was a question of strategy, and his
      decision not to call appellant's former attorney in these circumstances
      does not fall below reasonably effective assistance.

Clark, at 11. Although the court did at least acknowledge that a motion for new trial


                                          11
hearing occurred, it is incorrect to imply that counsel raised any concern about

“related communications.” In explaining his reasoning at the motion for new trial,

counsel stated:

 “In my mind, the important aspect of it was—we were arguing about whether or
   not what effective [sic] Mr. Brass’ testimony would be, would that—would that
   vitiate the attorney/client privilege.” (MNT at 39).

 “I think that Mr. Brass’ testimony regarding that would have vitiated
   attorney/client privilege.” (MNT at 46).

 “State took the position that if I called Mr. Brass to the stand to lay that predicate
   in order to introduce that tape that that would vitiate the attorney/client privilege
   that existed between Mr. Brass and Ms. Clark.” (MNT at 37).

 “[Ms. Clark] did not want to give up that attorney/client relationship.” (MNT at
   38).

 “And it was my opinion that should we use Mr. Brass to authenticate that, that
   would have vitiated the attorney/client privilege.” (MNT at 40-41).

Trial counsel did not mention any concern about revealing communications related to

the recovery of the tape—only fear that a full waiver would result.

      The court of appeals complained that “we do not know what those related

communications might have included had Brass been subject to cross-examination.”

Clark, at 11. But Brass was subject to cross-examination and he did testify about

“related communications.”



                                           12
       First, appellate counsel asked him questions to authenticate the tape. Brass

testified:

       Norma had told me about its existence. At some point in time, I believe
       it was the same day I was there, but it could have been a different day,
       I’m not really sure. She told me that there was a message that threatened
       Ed’s life and was left on their answering machine. And so at some point
       in time I had her take me to the answering machine. I listened to the
       message, and I retrieved the cassette tape from the machine and kept it
       in my possessions.

(MNT at 19). The same prosecutors who litigated the trial also litigated the hearing on

the motion for new trial, and they cross-examined Rick Brass at that hearing after he

authenticated the tape. They were even allowed to question Brass freely, as privilege

was in fact vitiated at the hearing on the motion for new trial. (MNT at 26). Brass was

questioned about why Norma didn’t testify at the grand jury and other privileged

matters. None of Brass’s answers turned out to be damaging. The court’s concern that

“we do not know what those related communications might have included had Brass

been subject to cross-examination” is unfounded since he was cross-examined.

       In the cases cited by the court of appeals, trial counsel was never “afforded an

opportunity to explain his actions.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.

App. 2003). Those cases held that “in the absence of a record reference concerning

counsel’s reasoning, we must generally presume that appellant’s trial counsel had a

plausible reason for his actions.” Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—


                                          13
Houston [1st Dist.] 2006, pet. ref'd) (citing Thompson v. State, 9 S.W.3d 808, 814 (Tex.

Crim. App. 1999)).

       Following this reasoning, the court held in this case that trial counsel “could

have” had a “plausible reason” for failing to introduce the death threat. The court

concluded, “[N]ot calling Brass to testify about the collection of the audiotape or the

making of the videotape1 could have been sound trial strategy because doing so

would have subjected him to cross-examination on any related communications

relayed to him by appellant. Clark, at 11 (emphasis added).

       “[I]n the absence of evidence of counsel’s reasons for the challenged conduct,

an appellate court commonly will assume a strategic motivation if any can possibly be

imagined…” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Appellant

contends that such imagination is inapplicable where counsel has been afforded an

opportunity to explain his actions and the court is therefore limited to considering his

stated explanation.




1 The court of appeals also erred by applying the same incorrect analysis to counsel’s failure
to introduce the video walk-through of the woods, but for simplicity’s sake only the
audiotape is addressed here at length.

                                              14
Ground Number Two
          The court of appeals erred in holding the evidence sufficient where
          the finding of guilt was necessarily based on speculation.
      “The fact finder is…prohibited from drawing conclusions based on speculation

or mere theorizing about the possible meaning of the facts.” Rabb v. State, 434 S.W.3d

613, 617 (Tex. Crim. App. 2014). Each incriminating fact in this case is necessarily

based on speculation. The weakness of the evidence is actually highlighted by the

court of appeals’ opinion which is strained to be written in the light most favorable to

conviction.

      In Hooper v. State, this Court explained the difference between inferences and

speculation:

      A woman is seen standing in an office holding a smoking gun. There is a
      body with a gunshot wound on the floor near her. Based on these two
      facts, it is reasonable to infer that the woman shot the gun (she is
      holding the gun, and it is still smoking). Is it also reasonable to infer that
      she shot the person on the floor? To make that determination, other
      factors must be taken into consideration. If she is the only person in the
      room with a smoking gun, then it is reasonable to infer that she shot the
      person on the floor. But, if there are other people with smoking guns in
      the room, absent other evidence of her guilt, it is not reasonable to infer
      that she was the shooter.

Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007). In this case, Norma had no

smoking gun, but others like Michael Todaro and those involved in the assault and

death threats went uninvestigated.

      As this Court has noted, “It is the obligation and responsibility of appellate



                                           15
courts to ensure that the evidence presented actually supports a conclusion that the

defendant committed the crime that was charged.” Williams v. State, 235 S.W.3d 742,

750 (Tex. Crim. App. 2007). Furthermore, “if the evidence at trial raises only a

suspicion of guilt, even a strong one, then that evidence is insufficient to convict.”

Richard Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010). In this case, the

inconclusive forensic evidence and the conjecture about Ms. Clark’s behavior do not

rise above mere speculation.

      In Megan Winfrey v. State, this Court was asked to decide whether the evidence

of murder was sufficient when the record consisted of weak circumstantial evidence

in combination with scientific evidence consisting of a dog-scent lineup. Megan

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013). The situation in Megan Winfrey

is analogous to this case because the State rested on inconclusive scientific evidence in

conjunction with weak circumstantial evidence to convict Ms. Clark. The Court in

Megan Winfrey reasoned that unless the dog-scent lineup could be considered

“primary” evidence of guilt, then it would not be sufficient to corroborate the

additional circumstantial evidence beyond a reasonable doubt. Id. at 767. Due to the

inherent limitations of dog-scent lineups, the Court held that it was of too little value

to be considered primary evidence of guilt and acquitted the defendant because the

additional evidence was only speculative. Likewise, in this case the evidence that the

State wished to characterize as “blood spatter” is too weak to be considered primary

evidence of guilt because it was—in fact—not blood spatter.

                                           16
      Similarly, in Rabb v. State, this Court held that where the evidence showed a

plastic bag was swallowed, “a determination on whether it was intact or destroyed

after passing through Appellant's stomach would be based purely on speculation.”

Rabb v. State, 434 S.W.3d 613, 617 (Tex. Crim. App. 2014).

      In this case, a determination about whether unidentified stains on the

nightgown were Mr. Clark’s blood would be pure speculation. A determination about

whether the two particles of GSR came from the gun that shot Mr. Clark or from

decades in a police evidence room or from her home’s “high GSR environment”

would be sheer speculation. A determination on why Norma’s feet were not dirty

would be pure speculation. A determination on why she went to the hospital would be

sheer speculation. A determination on why she spent half an hour in the bathroom

would be speculation. Therefore, as in Winfrey, the speculative forensic evidence

coupled with speculative circumstantial evidence is likewise insufficient to prove guilt

beyond a reasonable doubt.




                                          17
                                   PRAYER FOR RELIEF
       For the reasons stated above, the Appellant prays that this Court grant her

petition, review the case, and hold that the Court of Appeals erred by affirming the

trial court’s judgment of guilt.


                                               Respectfully submitted,

                                               ALEXANDER BUNIN
                                               Chief Public Defender
                                               Harris County Texas


                                               /s/ Sarah V. Wood
                                               SARAH V. WOOD
                                               Assistant Public Defender
                                               Harris County Texas
                                               1201 Franklin, 13th Floor
                                               Houston Texas 77002
                                               (713) 368-0016 (phone)
                                               (713) 368-9278 (fax)
                                               State Bar Number 24048898




                    CERTIFICATE OF SERVICE AND COMPLIANCE
       This is to certify that a copy of the foregoing petition for discretionary review
has been served on the District Attorney of Harris County, Texas, by the efile service
and to the State Prosecuting Attorney and that this petition has 4,193 words according
to the computer program used to draft it.

                                               /s/ Sarah V. Wood
                                               SARAH V. WOOD


                                          18
                                               APPENDIX

                                               2015 WL 162257
                                Only the Westlaw citation is currently available.

              SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
                                    MEMORANDUM OPINION
                             DO NOT PUBLISH. TEX.R.APP. P. 47.2(B).
                                     Court of Appeals of Texas,
                                        Houston (1st Dist.

                                     Norma Jean Clark, Appellant
                                                    v.
                                      The State of Texas, Appellee
                          NO. 01–13–00373–CR | Opinion issued January 13, 2015

On Appeal from the 228th District Court, Harris County, Texas, Trial Court Case No. 1295757

Attorneys and Law Firms
Sarah V. Wood, for Norma Jean Clark.

Devon Anderson, Jessica A. Caird, Alan Curry, for The State of Texas.

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




                                          MEMORANDUM OPINION

Sherry Radack, Chief Justice
*1 A jury found appellant, Norma Jean Clark, guilty of murder and assessed punishment at 25 years’ confinement.
In five points of error, appellant contends (1) the evidence is insufficient to support her conviction, (2) her trial
counsel made an error amounting to ineffective assistance of counsel, (3) the trial court erred in admitting certain
scientific testimony, (4) the trial court erred in admitting speculative testimony, and (5) the trial court erred in
overruling defense counsel’s objections to improper argument at closing. We affirm.




                                                BACKGROUND
On April 22, 1987, Edmund Clark was murdered, shot while sleeping in his own bed. At the time, police suspected
appellant, his wife, but no charges were ever brought against her. In 2008, during a review of cold cases in Harris
County, a forensic examiner saw what he thought looked like microscopic blood spatter on appellant’s nightgown,
so the case was reopened. Appellant was extradited from Tennessee where she had been living, charged with Clark’s
murder, and ultimately convicted. The following is a summary of the evidence presented at trial.



The immediate aftermath of the murder
Around 4 a.m. on the morning of the murder, Judith Manack was awaked by a banging on the door that led from her


                                                        19
backyard to her bedroom. Judith’s husband looked out and said, “My God, I think it’s Norma.” Appellant was the
Manacks’ neighbor and lived behind them through some dense woods. The Manacks let appellant in the house, and
she kept saying, “Oh, my God, oh, my God. I heard shots. I heard shots.” Judith’s husband called the police.

Appellant was shaking and said she was going to throw up, so Judith showed her to the master bathroom, where she
was sick. When she left the bathroom 30 to 45 minutes later, the Manacks called appellant’s daughter, Tammy, and
appellant then explained what had happened. She told them that she had been sleeping upstairs in a spare bedroom
when she heard gunshots. Appellant said that she ran down the stairs, tried to get out the kitchen door, but it was
locked, so she fled through the garage. Appellant told the Manacks that she had run through the woods to reach their
house, but her nightgown and feet were clean.

When Tammy arrived at the Manacks’ home, appellant hugged her, which Judith Manack found strange because
appellant had been complaining that she had arm pain and could not use her arm just moments before. Appellant
told Judith that she was afraid the police would blame her for the murder, to which Judith replied, “You don’t have
anything to worry about, you know, if you weren’t shooting a gun.” Judith was surprised when appellant told her
that she had, in fact, been shooting a gun because Clark wanted her to learn how to shoot. Judith thought it was odd
that appellant would have been out shooting a gun because she had missed work with bronchitis. While she was at
the Manacks’ with appellant, Tammy pulled out a piece of paper with three names—two doctors and one attorney.
Appellant later called her doctor from Judith’s house.

*2 The police responded to the call and went first to appellant’s home. The front door was locked, but they found a
door leading into the garage ajar, so they went in the house and began searching each room. In the master bedroom,
they found Edmund Clark shot to death in his bed. He had been sleeping on his stomach with the blankets tucked in
and pulled up around him, and had suffered a gunshot wound to the back and another to the head. No one had been
sleeping next to him, but a bed upstairs had been slept in. No one else was in the house and no alarm had gone off,
even though the house had an alarm system. There were no signs of robbery. Appellant later told Judith that she had
gone out to feed the dog and had forgotten to set the alarm when she came back in.

A crime scene officer processed the crime scene and recovered a Charter Arms undercover .38 caliber revolver with
three live rounds and two spent cartridges in it, which was sitting on the chest of drawers near Clark’s body. At trial,
Clark’s son identified the revolver as his father’s gun, which they had used for target practice. Police later
determined that the gun was registered to a Michael Todaro. There were also 28 shotgun shells on the chest of
drawers and a shotgun leaning next to it. A .25 caliber Beretta pistol was recovered from a nearby drawer in a
nightstand. The officer also took possession of the sheets, comforter, and pillowcase from Clark’s bed. By the time
of trial, the comforter had been lost.

Detective A. Rossi was assigned to investigate the case, so he went to the Manacks’ house to meet with appellant.
Rossi testified that appellant was very reluctant to talk with him, though she did sign a consent-to-search form so
that the police could search her home. Rossi noted that appellant was wearing a blue nightgown, and, even though
she claimed to have traveled through the woods to the Manacks’ home, the gown was clean. Appellant agreed to
come to the police station to give a statement after she had changed clothes. However, appellant never showed up.
When she left the Manacks’ house, Judith thought appellant was going home to change and then going to the police
station. Instead, appellant soon returned to Judith’s house with her nightgown, which she asked Judith to wash
because she was going to be too busy taking care of things and her washer was broken. Judith did not wash the
garment, but instead folded it up and later turned it over to police.

The afternoon of the murder, Clark’s friend, Paul Parris, came by and drove appellant to the bank “because usually
when people die, or get killed, the banks lock up all your stuff.”

Later that day, Rick Brass, appellant’s attorney, called Detective Rossi and they discussed appellant coming in to
give a statement. When they never showed up, Rossi learned that appellant had been admitted to the hospital, so he
went there to speak with her the next day. Tammy, who was at the hospital with appellant, would not let Rossi in the
room, but then came back out and said appellant wanted to talk to him, but not about the case. Rossi would have
liked to have tested appellant’s hands for gunshot residue [GSR], but he testified that “she wasn’t very cooperative,”
and she had already showered. Rossi later obtained a grand jury subpoena in an effort to obtain appellant’s
statement, but appellant never appeared before the grand jury.


                                                          20
The relationship between appellant and the deceased
Several witnesses testified about the relationship between appellant and Clark. John Baff worked at the same
company as Clark, and the two were friends. The night of the murder, Clark went to Baff s house, where the two
discussed appellant’s and Clark’s relationship. Clark was unhappy with the relationship and the financial strain it
was placing on him. He felt that appellant’s antique business was placing a financial burden on the marriage. Clark
also had issues with appellant’s son, Mark, and had banned him from their house. While Clark was visiting Baff, he
called and left appellant a voice mail. He told Baff that he intended to divorce appellant. Baff testified that “[Clark]
kind of indicated to me that he was going home to lay it on the line, pursue what he had told me he was going to
do.”

*3 Judith Manack also testified about the relationship between appellant and Clark. Judith testified that appellant
seemed to be jealous of the time that Clark spent with his children. She was also unhappy that Clark would not give
her more money and told Judith that he verbally abused her. Judith believed that Clark was mean because of
appellant’s complaints, but her own observations were that Clark was considered and even-tempered. A week before
the murder, appellant told Judith that she had received information that Clark was moving property into his own
name. She told Judith that her divorce from her first husband had left her penniless and that she “would be damned
if she would go through another one and end up with nothing.” Appellant “didn’t want to be stuck with nothing
again in the divorce if [Clark] divorced her.” During the same conversation, appellant told Judith about a “plumber
with Mafia ties from Florida” that she believed was threatening Clark. However, she did not seem very worried
about Clark, but was more concerned with him moving property into his own name. Judith also testified that she
visited appellant in the hospital the day after the murder and was surprised to find out that appellant had already had
Clark’s body cremated.

Dr. G. Aubert, a chiropractor and appellant’s boss, testified that appellant told him she needed to work because she
was a cancer patient and was receiving chemotherapy treatments that precluded her from working full-time.
Appellant worked for Aubert for approximately one month before the murder. She told Aubert that appellant was a
“tightwad” and would not give her money that she needed for groceries. She “was always complaining about Ed,
what a bad guy Ed was, how miserable she was.” One day Aubert wrote a note to cheer appellant up that said,
“Sorry about Ed.” The note was found in appellant’s house after the murder. Appellant had also told Aubert about
having heard that Clark was transferring assets in anticipating of filing for divorce. She also mentioned that Clark
was having an affair.

On the morning of the murder, appellant called Aubert and told him about the murder. He offered to help her
financially, and she told him that she had an attorney who had told her that police wanted to check her for gunshot
residue. Appellant told Aubert she could not allow such a test because she did have gunshot residue on her hands as
she had recently fired a gun at target practice. Aubert found it odd that appellant would be shooting target practice
because she had been off work sick. Appellant also asked Aubert whether he could find a doctor to admit her to the
hospital. She later told him that her own doctor had had her admitted. It was Aubert’s impression that appellant was
admitted to the hospital to avoid giving a statement or having gunshot residue tests performed. Five days after the
murder, appellant asked to borrow $10,000 from Aubert. She claimed she was broke because she spent $3,000 to
have the Ed’s body cremated. Aubert declined to loan her the money.



Forensic testing in 1987
Reports showed that the long nightgown, a robe, and a short nightgown were submitted to the DPS laboratory in
April 1987 for GSR analysis. Back then analysts used the Griess method, which required that the garments be
treated with a chemical before the analyst laid a piece of photo paper on it and applied a hot iron to the paper in
hopes of transferring the phosphates from the gunpowder primer onto the photographic paper. The Griess method
used harsh chemicals likely to be destructive of any blood, and the heat from the iron could also destroy biological
material. Analysts applied the chemical in a non-uniform manner so some parts became more saturated than others
with the chemicals. The cuffs of the nightgown then went to the Harris County Forensics Center in May 1987 for
more GSR testing, but the results were inconclusive. In 1987, the technology did not produce any physical evidence



                                                          21
to establish that appellant committed the murder. The homicide investigator saw some blood spatter on the
comforter, but he saw no visible spatter on appellant’s clothing. Although never excluded as a suspect, police did not
charge her at the time of the murder.



Forensic testing in 2008
*4 In 2008, the Harris County Sheriff’s Office Cold Case Squad renewed the investigation into Clark’s murder.
Another investigator working with the squad requested appellant’s nightgown to search for biological material, and
he reviewed the old forensic reports. That investigator had training and experience in blood impact spatter evidence.
He first viewed the gown with his naked eye and then with a microscope. A gunshot wound may cause high velocity
impact spatter, consisting of fine mist particles that cannot be seen by the naked eye. Those particles usually travel
less than four feet before falling onto the surface beneath them. The resulting particles are one millimeter or less.
The microscope the analyst used to search for the particles which would not have been available to the Harris
County Sheriff’s Office employees in 1987. It magnified the nightgown, he photographed it, and he saw what
looked like blood on the gown’s fibers. The pattern was consistent with high velocity impact spatter (HVIS) which
was traveling with enough force to penetrate the fibers. A head wound is likely to produce a HVIS because when the
weapon is fired the pressure from the bullet penetrating the skull, along with the gasses from the gun, force blood
and biological material out of the wound. Consistent with this explanation, the officer noticed a bone fragment in the
bedding crime scene photos. Ultimately, he found roughly 100 or more microscopic stains on the gown that
appeared consistent with blood stains. If blood, the HVIS was consistent with appellant’s nightgown being within
four feet of the shooting. The officer attempted to review the comforter for similar stains, but could not locate it. The
officer tested one spot on the gown with a presumptive chemical test for blood and it reacted positively. He then sent
the gown to the Harris County Institute for Forensic Science for additional testing.

The State had an additional blood spatter analyst testify to his analysis of the stains. He explained the differences in
pattern between an exit wound from a gunshot and back spatter. He also had expertise in forensic photography, and
he documented his review of the gown with photographs also identifying a mist spatter on it. Using a particular
wavelength, some of the stain fluoresced inconsistent with blood, but possibly explained by chemicals used on the
garment. However, others stains absorbed light consistent with a blood stain. He concluded that if one of the stains
was confirmed as blood, the consistency of the pattern with the remaining stains was sufficient to call it a bloodstain
pattern.

The second analyst saw only 55 stains, but accounted for the difference by assuming dried blood can flake off of
fabric as it is moved, packaged, and reviewed. The largest microscopic stain he reviewed later flaked off. He also
considered the bone fragment documented in the crime scene photographs as evidence of blow-back from the head
wound.

A DNA analyst from the Harris County Institute of Forensic Sciences tested some of the stains on the nightgown
and bedding. DNA testing was not available in Harris County in 1987, and earlier testing and environmental
conditions may affect her ability to recover DNA. She tested the dark stains that had reacted presumptively positive
for blood, but her confirmatory testing using Hematrace confirmed only one spot as blood. Although sensitive, the
Hematrace test still requires a sufficient amount of blood or it has a negative result. Hematrace tests for human
blood, but also shows positive for upper primate blood and ferret blood. She tested eight spots from different areas,
all with negative results. The one positive test came from the front of the nightgown. When the analyst tested a
cutting from the large blood-like circle on the sheet after a presumptive positive test, it also tested negative on the
confirmatory test. None of the stains on the bed sheet taken from above the back wound tested positive for human
blood after 26 years in storage and past testing. Over time, storage conditions can degrade the hemoglobin that the
tests identify. Testing on the nightgown found no detectable DNA. The nightgown also underwent additional GSR
analysis at the Harris County Institute for Forensic Sciences. The Director of Physical Evidence explained the
changes to GSR analysis since 1987. The 1987 test used an atomic absorption analysis, which was a technique for
analyzing whether there was barium, lead, and antimony, but the analysis required a bulk recovery. Now they test
using S.E.M testing, which seeks only the individual particles. GSR is easily transferable affecting the ability to
collect it. The director’s testing of the nightgown and packaging in 2011 revealed nine lead particles, but only one
characteristic of GSR. He found one particle with lead, barium, and antimony, classifying the result as inconclusive.
Standards considered one particle insufficient to establish the garment’s presence for a weapon’s discharge because



                                                          22
it could result from accidental secondary contact. He retested and found a second particle, but a positive test requires
three for reasonable scientific certainty that the garment was present for a firearm’s discharge. Studies showed that
the statistical probability of having a single GSR particle on a person is 1 in 81 people, but the probability of two is
1 in 10,000 people, and the probability of having three particles is 1 in 1,000,000. The particles are easily dislodged,
and the Griess method of testing done on the gown could cause an even greater loss.

*5 A firearms examiner tested the Charter Arms revolver, which fired +P rounds holding more gunpowder than
average ammunition to push the projectile out of the barrel of the weapon with greater force. Consistent with the
1987 analysis, the Charter Arms revolver fired the two casings recovered from it.

An assistant medical examiner reviewed the autopsy performed on Clark. He had stippling on the head wound,
indicating the shot came from fairly close range, usually not more than 18 inches. A .38 caliber bullet was recovered
from the front left side of Clark’s brain. The discharge came from directly behind his head on the left side. The head
wound would have been fatal, but Clark could have had some involuntary body movement afterwards because the
bullet did not sever the brainstem. He had a second entrance wound to the left side of his back. The holes in the
bedding were consistent with the wound positions on Clark’s body. No stippling was visible on the wound inflicted
through the comforter, but photographs showed a substance consistent with gunpowder on the comforter, which was
also consistent with the weapon firing from 18 inches or less.



Defensive theory about other threats against Clark’s life
The defensive theory at trial was that someone else had been threatening Clark and was the murderer, not appellant.
In support of this theory, appellant sought to have admitted an audiotape of a message that a male voice left on her
answering machine shortly before Clark’s murder on which someone threatened Clark’s life. The tape had been
recovered by appellant’s attorney at the time, Rick Brass, and kept in his office for decades. However, unable to
authenticate the tape through Brass’s testimony without risking the waiver of the attorney-client privilege, defense
counsel chose not to admit it at trial. There was testimony, however, about the tape. Judith Manack testified that
appellant asked her to listen to it, which she did. Judith believed that the person on the tape was appellant’s son,
Mark, who had been kicked out of the house.

There was evidence of two prior threatening incidents involving the Clarks. In 1983, four years before the murder,
the Clarks’ house was vandalized. While Clark and appellant were out at dinner, someone came in the house, spray-
painted everywhere, ripped a picture of Clark, and left a threatening note made of cut out letters.

Then, in 1986, about six months before the murder, Clark was assaulted while he slept on the sofa in his home.
According to his friend, John Baff, Clark “woke up and saw some kind of a shadow, or something standing behind
him, or at the end of the couch. When he came to he was hit over the head.” As a result of the attack by the unknown
assailant, Clark had to get stitches. Baff thought appellant might have been the attacker and asked Clark about it, but
Clark thought appellant’s son, Mark, had done it.

There was also the suggestion that a plumbing contractor from Miami, Billy Salyers, might have had a dispute with
Clark. Thus, the State called Salyers, who admitted that, a few days before the murder, he had threatened Clark’s life
after Clark fired him from a job in Miami. Salyers said that he later apologized, and Clark let Salyers take his tools,
which Clark had been holding, and leave. Salyers testified that he talked to police shortly after the murder and told
them that he was in Florida at the time. Salyers denied knowing Mike Todaro, the registered owner of the revolver
found at the scene of the crime.




                                        SUFFICIENCY OF THE EVIDENCE
*6 In her first issue, appellant argues that the evidence is insufficient to support her conviction because the State’s
case consists of 1) inconclusive evidence and 2) speculation that Ms. Clark told lies. Essentially, appellant asserts
that the State’s evidence is speculative and cannot rise to the level of proof beyond a reasonable doubt.




                                                          23
Standard of review and applicable law
We review a challenge to the legal sufficiency of the evidence under the standard enunciated in Jackson v.
Virginia, 443 U.S. 307, 318–20, 99 S.Ct. 2781, 2788–89 (1979). See Ervin v. State, 331 S.W.3d
49, 52–56 (Tex.App.–Houston [1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d
893, 894–913 (Tex.Crim.App.2010)). Under the Jackson standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder
could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See
Jackson, 443 U.S. at 317–19, 99 S.Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517
(Tex.Crim.App.2009). Evidence is insufficient under this standard in four circumstances: (1) the record contains
no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative
of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged
do not constitute the criminal offense charged. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S.Ct. at
2786, 2789 & n.11; Laster, 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750
(Tex.Crim.App.2007).

The sufficiency-of-the-evidence standard gives full play to the responsibility of the factfinder to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See
Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778
(Tex.Crim.App.2007); see also Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App.2008) (stating jury
is sole judge of credibility of witnesses and weight to give their testimony). An appellate court presumes that the
factfinder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; see also Clayton, 235
S.W.3d at 778 (reviewing court must “presume that the factfinder resolved the conflicts in favor of the prosecution
and therefore defer to that determination”).

In viewing the record, direct and circumstantial evidence are treated equally; circumstantial evidence is as probative
as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Clayton, 235 S.W.3d at 778. In determining the sufficiency of the evidence, a reviewing court
examines “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.” Id. (quoting Hooper v. State, 214 S.W.3d 9,
16–17 (Tex.Crim.App.2007)). Finally, the “cumulative force” of all the circumstantial evidence can be sufficient
for a jury to find the accused guilty beyond a reasonable doubt, even if every fact does not “point directly and
independently to the guilt of the accused.” See Powell v. State, 194 S.W.3d 503, 507
(Tex.Crim.App.2006).

*7 A person commits murder if she intentionally or knowingly causes the death of another person or intends to cause
serious bodily injury and commits an act clearly dangerous to human life that causes the death of another. TEX.
PENAL CODE § 19.02(b)(1),(2) (Vernon 2011).



Analysis
Appellant, pointing to only five pieces of evidence—the spot of blood, the gunshot residue, the run through the
woods at night, the shooting of a gun and going to the hospital while sick, and allegations that appellant had
cancer—argues that the evidence of her guilt is legally insufficient. However, we must determine whether the
necessary inferences are reasonable based on the cumulative force of the evidence when viewed in the light most
favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.Crim.App.2011).

Here, appellant, admittedly, was home when Clark was murdered while sleeping in his own bed. There was no
forced entry into the home and no indication of a robbery. The alarm, which Clark routinely set, did not go off.
Clark was shot with a gun that witnesses identified as his own. The murderer left the gun at the murder scene.



                                                          24
Appellant claimed to have run through the woods after she heard shots, but when she appeared at the Manacks’
house, her gown and feet were both clean. When she fled her house, appellant went through the garage, even though
it was not the closest exit to the bedroom in which she had been sleeping.

At the Manacks’ house, appellant spent 30 to 45 minutes in the bathroom before sitting down and telling them what
had happened and calling her daughter. When police arrived, appellant signed a consent-to-search form, but was
otherwise uncooperative. Even though she promised police that she would come by the office later in the day to
provide a statement, appellant never showed up. She went home, changed clothes, and tried to get her boss to have
one of his doctor friends admit her to the hospital. She then took her nightclothes to the Manacks’ home and asked
Judith to wash them because her washer was broken. Appellant went to the bank the same day as the murder to
withdraw funds. That same day, her own doctor had her admitted to the hospital. When police showed up the
question her there, they were unable to do a GSR test because appellant had already showered. Appellant had told
both Judith Manack and Dr. Aubert that she could not take a GSR test because she had been firing a gun at home,
even though she was supposed to have been home from work because she was sick. When Judith Manack visited
appellant in the hospital shortly after the murder, Judith was shocked because appellant had already had Clark’s
body cremated. Appellant did not attend the memorial service that Clark’s boss held, nor did she hold her own
service.

There was also evidence that appellant was aware that Clark was having an affair and was preparing to leave her.
John Baff testified that on the night of the murder, it was his impression that Clark intended to go home and ask
appellant for a divorce. Appellant had told Judith that she was aware that Clark had been moving property into his
own name that that she “didn’t want to be stuck with nothing again in the divorce if [Ed] divorced her.” Although
motive and opportunity are not elements of murder and are not sufficient to prove identity, they are circumstances
indicative of guilt. Clayton, 235 S.W.3d at 781 (stating that motive “may be a circumstance that is indicative of
guilt.”); Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App.2004).

*8 The forensic evidence also provided evidentiary support for appellant’s conviction. Even though nothing was
seen on appellant’s gown in 1987, when it was re-examined years later, a forensic examiner, using a microscope that
was not available in 1987, saw what he felt was high velocity impact spatter. While only one spot of the high
velocity impact spatter tested conclusively positive for blood, the jury could have reasonably concluded that, in the
years between the murder and the reopening of the case, the hemoglobin in the other spots had degraded. There was
expert testimony that hemoglobin would degrade over time and under certain conditions, and the jury was aware that
the bed sheet that was covering Clark’s body at the time he was shot also tested negative for blood even though
photographs showed Clark’s body lying on the undisputedly blood-soaked sheet at the time of the murder. And,
even though no GSR was found on appellant’s gown in 1987, when new, more sensitive tests were performed on the
gown when the case was reopened, examiners found two particles of gunshot residue on the front of the gown. The
examiner described this as an inconclusive result because 1 in 10,000 people would have gunshot residue on them if
they had not fired a weapon rather than the 1 in 1 million required for a conclusive result.

Having viewed the evidence in the light most favorable to the verdict, we hold that the evidence is sufficient to
support appellant’s conviction. The jury was able to assess the credibility and demeanor of the witnesses who
testified at trial. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Hooper, 214 S.W.3d at 16–17. The jury
also decides what weight to give expert opinions. See Bearnth v. State, 361 S.W.3d 135, 140 (Tex.App.–
Houston [1st Dist.] 2011, pet. ref’d). The jury inferred from the circumstantial evidence, coupled with
the forensic evidence, that appellant was guilty of the murder of her husband. “This was not a determination so
outrageous that no rational trier of fact could agree.” Wirth v. State, 361 S.W.3d 694, 698
(Tex.Crim.App.2012).

We overrule appellant’s first issue on appeal.




                                INEFFECTIVE ASSISTANCE OF COUNSEL
In her second issue, appellant argues that the trial counsel was ineffective because he failed to introduce (1) a



                                                        25
recording of a voice-mail death threat against Clark and (2) a video of the woods between the Clark and Manack
residences taken right after the murder. Appellant asserts that “there is a reasonable probability that the evidence that
defense counsel failed to offer would have affected the outcome of the trial.”



Standard of review and applicable law
To show ineffective assistance of counsel, a defendant must demonstrate both (1) that her counsel’s performance fell
below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 687–88, 694, 104 S.Ct. 2052, 2064, 2068, (1984); Andrews v. State, 159 S.W.3d 98,
101–02 (Tex.Crim.App.2005). A defendant has the burden to establish both of these prongs by a preponderance
of the evidence, and a failure to make either showing defeats an ineffectiveness claim. Mitchell v. State, 68
S.W.3d 640, 642 (Tex.Crim.App.2002). We presume that counsel’s conduct falls within the wide range of
reasonable professional assistance, and we will find counsel’s performance deficient only if the conduct is so
outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101.

We cannot speculate beyond the record provided, so any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d
808, 813 (Tex.Crim.App.1999); see Anderson v. State, 193 S.W.3d 34, 39 (Tex.App.–Houston [1st
Dist.] 2006, pet. ref’d). Because the record is usually underdeveloped, direct appeal is often an
inappropriate forum in which to bring this type of claim. Rylander v. State, 101 S.W.3d 107, 110–11
(Tex.Crim.App.2003). The necessary record is best developed in a hearing on a motion for new trial or by
application for a writ of habeas corpus. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App.1998).

*9 “An attorney’s failure to investigate or present witnesses will be a basis for establishing ineffective assistance of
counsel only where it is shown that the witnesses would have been available and that the presentation of the
evidence would have benefitted appellant.” Pinkston v. State, 744 S.W.2d 329, 332 (Tex.App.–Houston
[1st Dist.] 1988, no pet.) (citing Coble v. State, 501 S.W.2d 344 (Tex.Crim.App.1973)). “Failure to
object to admissible evidence does not constitute ineffective assistance of counsel.” Lee v. State, 29 S.W.3d
570, 579–80 (Tex.App.–Dallas 2000, no pet.); see also Ex parte Jimenez, 364 S.W.3d 866, 887
(Tex.Crim.App.2012) (“The failure to object to proper questions and admissible testimony ... is not ineffective
assistance.”).



Background
At trial, appellant sought to introduce a tape of a threat made against Clark made by a male, which was left on
appellant’s answering machine near the time of the murder. Appellant planned to call her attorney at the time of
Clark’s death, Rick Brass, to testify that he recovered the tape from the answering machine and kept it in his
possession until the case was reopened, at which time he gave it to defense counsel. It is undisputed that the
existence of the audiotaped threat was known to the jury through the testimony of other witnesses, but the jury never
actually heard the tape because defense counsel decided not to introduce it. Defense counsel was concerned that
calling Brass to authenticate the tape might waive attorney-client privilege and open him up to cross-examination on
other privileged matters. When the issue was discussed at trial, the following exchange took place:

  [Defense Counsel]: Judge, we have been talking about the audio cassette tape threatening message, the
  threatening message—

  [Trial Court]: Yes.

  [Defense Counsel]: —that Judy Manack testified about hearing it.

  [Trial Court]: Okay.



                                                          26
[Defense Counsel]: We haven’t introduced that through anybody yet. The reason for that is chain of custody and
all of that. What we would like to do is put Rick Brass on to introduce it, to lay the predicate to introduce it. Rick
was hired. He was the lawyer. He went to the Clarks’ house. He retrieved—back then, he took that tape out of the
answering machine, and he kept it—

[Trial Court]: Okay. So, he’s had custody of it?

[Defense Counsel]: —all these years. And he gave it to us. And that’s the purpose for which I was trying to call
him.

[Trial Court]: Right.

[Defense Counsel]: [The Prosecutor] is of the opinion that that would breach the attorney/client privilege. If that’s
the case—if the Court would rule that, I would not call Rick Brass.

[Trial Court]: No, it’s for chain of custody.

[Defense Counsel]: That’s my opinion, and that is—

[The Prosecutor]: You don’t want to hear my response?

[Trial Court]: Well, I will.

[The Prosecutor]: Okay. Well, my position is, Judge, that the way that Rick Brass knew where the tape was, the
way that he obtained access into the house to retrieve the tape is based on communications with his client. And,
so, the questions necessarily call into—call into question communications that were the product of attorney/client
communications, or attorney/client privilege.

[Trial Court]: Okay. Yeah, that’s different, I think.

[Defense Counsel]: It has to be privileged communication, and those were not privileged communications.

[Trial Court]: Wait a minute. I think that’s different. I think that’s different. Because what you’re—you’re not
trying to get into any kind of privileged information. What you want to know is how did he know about the tape,
and how did he come into custody of the tape. And I think that goes along with chain of custody. But if you’re—if
you’re going to go into anything like, you know, any private discussions that she may have had, as long as they go
to the chain of custody with the tape—you see what I’m saying?

*10 [The Prosecutor]: I do understand. There’s also communications that she disclosed to other individuals, that
we’ve heard testimony in this case that pertain to communications between her and her lawyer. So, it would be
my position that she’s waived the attorney/client privilege with respect to those communications because she has
shared those communications with other individuals that are not her attorney. And, so, it would be my position
that I can then ask her attorney about the comments that she—

[Trial Court]: Okay. I understand. What say the defense?

[Defense Counsel]: Judge, my response to that is, I know that the State has had people testify that they heard it.
We dispute that completely.

[Trial Court]: That they heard what?

[Defense Counsel]: That they heard any conversation between Norma and Rick Brass. I don’t know that—

[Defense Counsel]: I think the only information—let me stop. The only information that I know of, that I’ve
heard—I don’t think I’ve heard anything about any communications that she had with Rick Brass, other than have
him—if there were recommendations, or whatever, to get an attorney, or that she had an attorney previously, an
attorney regarding divorce, an attorney regarding the criminal case. And all of that is in front of the jury. Okay?
And there was audio—or the tape that was introduced that says that she had an attorney, and that she was advised



                                                        27
  by her attorney not to testify. If that’s what you believe is a breach of attorney/client privilege—

  [The Prosecutor]: I’m not necessarily saying the entire privilege. I’m asking that I be allowed to cross-examine
  this witness concerning the statements that the defendant made to other individuals concerning his advice, his
  instructions, his—the things that he was telling her to do or not to do.

  [Trial Court]: What individual statements? What statements?

  [The Prosecutor]: Well, we’ve got the statement where he told her not to give a statement to the police. He told
  her not to go downtown because they would test her hands for gunshot residue, that he told her not to testify in
  front of the grand jury. Let me make sure I remember all of them. That he was—it was—he was attempting to get
  her admitted to a hospital, or that it was—

  [Trial Court]: Who—she made those statements to other people?

  [The Prosecutor]: Dr. Aubert testified that she told him that her lawyer was trying to get her admitted to a
  hospital.

  [Trial Court]: Okay. Yeah, but who called Dr. Aubert as a witness?

  [The Prosecutor]: Well, I did.

  [Trial Court]: Okay. That’s the problem.

  [The Prosecutor]: But the waiver is the fact that she made those statements to him. That’s what waives the
  privilege as to that communication. It’s not whether or not I called the witness that spoke about them, I don’t
  think.

  [Defense Counsel]: Well, I disagree because if I tell somebody that I’ve been advised by a lawyer to take the Fifth
  Amendment, that doesn’t mean that my conversations with my lawyer are now—

  [The Prosecutor]: And I don’t want to get into all of the conversations with the lawyer. I want—

  [Defense Counsel]: Judge, I will short-circuit it. I’m not going to call Rick Brass. It’s too touchy of a question.

  [Trial Court]: Well—

  [Defense Counsel]: It’s okay, Judge.

  [Trial Court]: That’s the only chain of custody.

  [Defense Counsel]: I’ve been instructed not to waive attorney/client by my client, and I don’t want to—I don’t
  want to do something that’s going to run the risk of that possibly coming in. I will not call Rick Brass.

  *11 [Trial Court]: Well, then, that resolves it. Okay.



Analysis
Appellant contends that defense counsel was ineffective for deciding not to call Rick Brass to establish a chain of
custody for admission of the audiotape because “[i]t is clear from this exchange that the trial court was inclined to
allow Rick Brass’s testimony for chain of custody on the tape only, without considering it a blanket waiver of
privilege.”

Appellant also contends trial counsel was ineffective for failing to introduce a video, in which appellant conducted a
“walk-through of what happened” with Brass near the time of the shooting. The video showed the path appellant
claimed to have taken through the woods to the Manacks’ house. This video, like the audiotape from the answering
machine, was kept by Brass for over two decades.



                                                           28
Appellant relies on Cameron v. State, 241 S.W.3d 15, 17 (Tex.Crim.App.2007), in which the defendant
wished to call his former attorney to testify that he had seen two different police reports in the State’s file. The trial
court would not allow the attorney to testify without a blanker waiver of the attorney client privilege. Id. On appeal,
the court held that the defendant’s privilege was waived only “to the extent that it dealt with the notes relating to the
State’s file.” Id. at 21.

“[I]f the client uses the lawyer to prove [a] matter that [the lawyer] would only have learned in the course of his
employment[,] this again should be considered a waiver as to related privileged communications.” 1 MCCORMICK ON
EVID., § 93 (7th ed.) (citing 8 WIGMORE, EVIDENCE § 2327 (McNaughton rev.1961)). Even though we
agree that Brass’s testimony as to chain of custody would not be a blanket waiver of attorney-client privilege, and
would only be a waiver as to communications related to the recovery of the audiotape or the creation of the
videotape, we do not know what those related communications might have included had Brass been subject to cross-
examination. As such, trial counsel had a strategic purpose in not calling Brass, as he testified in the motion for new
trial hearing. Trial counsel’s decision not to call Brass and risk opening up testimony to those related
communications was a question of strategy, and his decision not to call appellant’s former attorney in these
circumstances does not fall below reasonably effective assistance.

Appellant also contends that the audiotape and videotape could have been introduced without Brass’s testimony
through the ancient documents exception to the hearsay rule, which provides that “[s]tatements in a document in
existence twenty years or more the authenticity of which is established,” “are not excluded by the hearsay rule,
even though the declarant is available as a witness[.]” TEX.R. EVID. 803(16) (emphasis added). The obvious
problem with this assertion is that Brass’s testimony was necessary to establish the authenticity of the tapes.
Nevertheless, appellant argues that, despite the language of Rule 803(16) requiring authentication for an exception
to the hearsay rule, no authentication was required because of Rule 901(b)(8), which provides that the authentication
requirement is satisfied if there is “[e]vidence that a document or data compilation, in any form, (A) is in such
condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely
be, and (C) has been in existence twenty years or more at the time it is offered.” TEX.R. EVID. 901(b)(8). Again,
however, Brass’s testimony would have been necessary at trial to show that the requirements of 901(b)(8) had been
met before the tapes could have been admitted. As we stated earlier, not calling Brass to testify about the collection
of the audiotape or the making of the videotape could have been sound trial strategy because doing so would have
subjected him to cross-examination on any related communications relayed to him by appellant.

*12 For these reasons, we overrule appellant’s second issue on appeal.




                                  ADMITTING SCIENTIFIC TESTIMONY
In her third and fourth issues on appeal, appellant contends the trial court erred in admitting scientific evidence
regarding (1) inconclusive GSR tests and (2) negative findings for blood. Appellant argues that the evidence was
“speculative,” which we construe as a challenge to the relevancy of the challenged evidence.



Standard of review and applicable law
A trial court’s determination of a witness’s qualification as an expert and its decision to exclude expert testimony are
reviewed for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). If
the trial court’s ruling lies within the zone of reasonable disagreement, the trial court’s ruling will be upheld. Id.

Rule 702 of the Texas Rules of Evidence provides that “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, training, or education may testify thereto in the form of an opinion or otherwise.”
TEX.R. EVID. 702. The proponent of expert testimony must show by clear and convincing proof that the evidence
he seeks to introduce is sufficiently (1) relevant and (2) reliable to assist the trier of fact in accurately understanding



                                                           29
otherwise pertinent facts of the case. See Weatherred, 15 S.W.3d at 542.

The standard for relevance is whether the scientific principles “will assist the trier of fact” and are “sufficiently tied”
to the pertinent facts of the case. Jordan v. State, 928 S.W.2d 550, 555 (Tex.Crim.App.1996). The expert
must make an effort to tie pertinent facts of the case to the scientific principles that are the subject of his testimony.
Id. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury....” TEX.R. EVID. 403.



Evidence of probabilities relating to inconclusive GSR results
In her third issue, appellant asserts that the trial court erred in admitting scientific testimony regarding probabilities
in inconclusive GSR results. At trial, Dr. William Davis, an expert on GSR, testified that he tested appellant’s blue
nightgown, which she had worn on the morning of the murder for the presence of GSR. The first time he tested it, he
found one particle of GSR. He then retested a broader area and found a second particle of GSR. Davis testified that
his laboratory required three particles of GSR before he could conclusively testify that the GSR was a primary
deposit rather than a secondary deposit. When Davis attempted to testify about the statistical probabilities of two
particles, appellant objected, at which time the trial court conducted a voir dire outside the presence of the jury.
Davis explained that three particles were considered conclusive for GSR because the likelihood of three particles of
GSR on a person who had not fired a gun was 1 in 1 million. For two particles of GSR, the statistical probability was
1 in 10,000; for one particle of GSR; the statistical probability was 1 in 81. When asked about the basis of this
conclusion, Davis explained that he relied on a published study in which police officers on desk duty, who had not
fired their weapons in 30 days, were sampled. Davis pointed out that the officers in the study were in a GSR
environment, so the application of its statistics to people that were not in a GSR environment was very favorable.
Defense counsel asked Davis to look at the photos of appellant’s home, which contained three guns and
ammunitions, and determine whether that would be a GSR environment, to which appellant replied that it likely
would be so. Davis testified that he could not establish a baseline for GSR in GSR environments because he would
“have to consider every possible environment.” Instead, he relied on the study, which was conducted in a GSR
environment [police officers at work who had not filed their weapons in 30 days] and applied it to people who had
not fired a gun in non-GSR environments, “which is very favorable to the person that has never fired a gun.”
Defense counsel then argued at trial, as does counsel on appeal, that it was error to allow Davis’s testimony because
Davis was not able to testify about the likelihood of GSR particles in appellant’s home. The trial court then
permitted the testimony. During cross-examination, defense counsel questioned Davis extensively about how the
probabilities of an accidental transfer of GSR could be different from the statistics quoted if the samples were taken
from a GSR environment like appellant’s home.



Analysis
*13 Appellant argues that, because Davis “testified that he could not apply the statistics to people in GSR
environments and he also testified that the Clark home was a GSR environment, it was error to allow his testimony
over objection.”

We first consider whether the scientific testimony regarding the statistical probabilities would “assist the trier of
fact” in this case. See Jordan, 928 S.W.2d at 555. Here, Davis testified that his GSR tests were “inconclusive.”
The statistical analysis was relevant to help the jury understand what a “conclusive” test was and the meaning of an
“inconclusive” test. As Davis explained, a conclusive test required three particles of GSR from the item sampled.
Only 1 in 1 million people would have three particles of GSR on their clothes if they had not fired a gun. The 1 in 1
million statistic was the point at which Davis’s laboratory felt comfortable describing a GSR test as conclusive.
However, Davis’s testimony also explained that a GSR test that was not conclusive did not mean that no GSR
residue was present; to the contrary, an inconclusive result could still be a positive detection of GSR, just at levels
beneath the 1 in 1 million described as “conclusive.” As the number of GSR particles recovered dropped, the
likelihood that they were deposited as the result of a primary transfer also dropped. At two particles of GSR—the
amount recovered from appellant’s nightgown—the statistical probability of an accidental or secondary transfer was
1 in 10,000, an amount Davis and his laboratory were unwilling to describe as conclusive. However, the statistical
information was helpful to assist the trier of fact in determining what was meant by an “inconclusive” GSR test.


                                                           30
We next consider whether the evidence was “sufficiently tied” to the pertinent facts of the case. Jordan, 928
S.W.2d at 555. Appellant argues that the statistical evidence was not tied to the facts of the present case because
Davis could not testify about the amount of GSR that might have been present in appellant’s home due to the
presence of three guns and some ammunition. Thus, appellant argues, the statistical evidence could not be applied to
appellant because it assumed a person that had not fired a gun in a non-GSR environment.

The Court of Criminal Appeals has elaborated on what is required in such a review.

  InJordan v. State, [928 S.W.2d 550 (Tex.Crim.App.1996) ] we specifically addressed the “fit” aspect of
  the relevance inquiry. There, the proffered expert “answered questions about the specific facts of the case and
  how they might be affected by the factors he testified to,” “stated his opinion about the reliability of the
  eyewitness identifications,” and “identified facts in the case that he believed impacted those identifications.” Id.
  at 556. However, the expert “did not testify about several factors that might have affected the reliability of the
  eyewitness identifications”; nor did he “interview the witnesses or examine certain pieces of evidence.” Id. at
  555–56. We held that, although the expert “did not testify as to every conceivable factor that might affect the
  reliability of eyewitness identification present,” his testimony “was sufficiently tied to the facts to meet the simple
  requirement that it be ‘helpful’ to the jury on the issue of eye witness reliability.” Id. at 556. We explained that
  the question under Rule 702 is “not whether there are some facts in the case that the expert failed to take into
  account, but whether the expert’s testimony took into account enough of the pertinent facts to be of assistance to
  the trier of fact on a fact in issue.” Id. Further, we noted that the expert’s failure to account for some facts “is a
  matter of weight and credibility, not admissibility.” Id.

*14 Tillman v. State, 354 S.W.3d 425, 438 (Tex.Crim.App.2011) (footnote omitted).

Davis’s testimony makes clear that it was based on a sampling of police officers at work, albeit officers who had not
fired their weapons within 30 days. Such a sampling, Davis explained, was actually taken from a GSR environment
[officers on duty who had not fired weapons], and applied to people in non-GSR environments who had not fired
weapons. Such a sampling would be “very favorable to the person who has never fired a gun.” In other words, if 1 in
10,000 officers on duty in a GSR environment had two particles though not having fired a gun, people in no-GSR
environments who had not fired a gun should also have 2 particles or less of GSR. The trial court could have
reasonably decided that appellant’s home with three guns and some ammunition, though not a no-GSR environment,
was sufficiently similar to the workplace of the police officers sampled to “sufficiently tie” the study Davis relied on
to the facts of appellant’s case and be helpful to the jury. That Davis did not, or could not, take into account the
specific amount of GSR in appellant’s home goes to the weight of his testimony, not its admissibility.

Accordingly, we overrule appellant’s third issue on appeal.



Evidence regarding negative blood tests on the deceased’s sheets
In her fourth issue, appellant argues that the trial court erred in admitting speculative testimony regarding the
comparison of negative blood tests on the sheet with results on the nightgown. At trial, Katie Welch, assistant
director of the Harris County Institute of Forensic Sciences–Forensic Genetics Laboratory, testified about blood tests
that she performed on appellant’s nightgown and the deceased’s bed sheets. On appellant’s nightgown, Welch
initially tested some visible orange stains, which were negative for blood. She then tested eight microscopic stains
that Detective Rossi had identified as possible high velocity blood spatter. Using a Hematrace test, Welch found that
one of the microscopic stains was identifiable as blood. She was not, however, to obtain any DNA from any of the
stains.

During Welch’s testimony, but before she testified about her testing of the decedent’s bed sheet, defense counsel
objected, stating, “I would ask ... that the Court grant a motion in limine that the State and the witness not be
allowed to enter into any discussion of false negatives, or anything that relates to that, or make any—or any
statements that a negative result is anything other than a negative result[.]” After noting that there were some
circumstances “where it’s legitimate to explain a negative result[,]” the trial court declined to grant defense



                                                          31
counsel’s motion in limine requiring that defense counsel object when objectionable testimony was offered. At
which point, defense counsel stated, “My objection would be any discussion of the false negatives, any explanation
for a false negative at all from this witness I think is irrelevant, and if it’s not irrelevant, then it’s 403, and it’s
improper expert witness testimony.”

*15 Welch then testified that she tested five areas from the large stain on the sheet taken from the bed where Clark
was shot. One area was both presumptively negative1 for blood, and the Hematrace test used to confirm the presence
of blood was also negative. The other four areas on the sheet tested presumptively positive for blood, but the
Hematrace tests could not confirm the presence of blood.

Welch later explained that the Hematrace test detects the presence of the hemoglobin protein in blood, and that
“hemoglobin can degrade over time.”



Analysis
Appellant contends that Welch’s testimony was speculative because “[t]he analyst in this case testified over
objection that apparent blood stains on a sheet tested negative for blood when they appeared to be blood and so a
falsely negative result is to be inferred both on the sheet and the nightgown.” However, we disagree with appellant’s
assessment of Welch’s testimony.

Welch never testified that the negative results on the nightgown were false negative results. In fact, when invited to
do so by defense counsel, Welch actually refused to speculate.

  [Defense Counsel]: Do you intend for the jury to understand your testimony to be that the seven negative tests that
  you got on Hematrace [on the nightgown] really might have been blood anyway? Is that what you intend for them
  to understand from your testimony?

  [Welch]: That is possible, yes.

  [Defense Counsel]: That’s what you want them to understand?

  [Welch]: I would like them to understand that the result that I got for those Hematrace tests were negative. But I’d
  like for them to understand what the meaning of a negative result is.

  [Defense Counsel]: Let’s talk about that from your point as—from your perspective as a scientist. You wouldn’t
  tell the DA’s office that you got a positive result, would you?

  [Welch]: I’m sorry, I don’t quite understand.

  [Defense Counsel]: Let me ask it this way. Can you say within a reasonable degree of medical or scientific
  certainty that those are false negative, that those were really blood?

  [Welch]: I don’t—I got a negative result. I don’t know whether they were a false negative.

  [Defense Counsel]: I object that’s nonresponsive.

  [Trial Court]: It’s overruled.

  [Defense Counsel]: I want you to answer my question within—you’re an expert witness in this area, correct?

  [Welch]: I am.

  [Defense Counsel]: Within a reasonable degree of scientific certainty, are you telling this jury that those were
  false negatives when they came up negative for blood?

  [Welch]: I’m not telling the jury that they were false negatives. The results were negative. I don’t know why the
  results—I don’t know the reason for the negative results.


                                                          32
  [Defense Counsel]: Is it possible that the reason for the negative results is because they aren’t blood?

  [Welch]: It’s absolutely possible.

  ****

  [Defense Counsel]: Can you tell the jury that there’s no blood on that [nightgown]?

  [Welch]: I can tell the jury that that one spot was Hematrace positive, and the Hematrace test is positive for blood.
  We do not say human blood for the reasons of the possibility of upper primates and ferrets.

  [Defense Counsel]: So, there is one microscopic spot of some kind of blood. You don’t know if it’s transfer, you
  don’t know if it’s—versus high velocity?

  *16 [Welch]: That’s correct.

Despite appellant’s assertions to the contrary, Welch did not speculate that the negative results for blood on
appellant’s nightgown were false negatives. She clearly confined her testimony to (1) the results of the tests on the
nightgown, (2) the results of the tests on the stained sheet, and (3) an explanation that hemoglobin can degrade over
times. The trial court could have reasonably concluded that all three items of testimony “w[ould] assist the trier of
fact” and were “sufficiently tied” to the pertinent facts of the case. Jordan, 928 S.W.2d at 555. If indeed the jury
reached the conclusion that the negative tests on the nightgown were false negatives due to degradation of
hemoglobin, such an inference was reasonably supported by the evidence presented.

We overrule issue four.




                                               CLOSING ARGUMENT
In her fifth issue, appellant argues that the trial court erred in overruling defense counsel’s objections to improper
argument at closing. Appellant asserts that the State injected harmful, prejudicial facts into the record that appellant
had lied about having cancer.



Standard of review and applicable law
We review claims of improper jury argument for an abuse of disctetion. Powell v. State, 63 S.W.3d 435, 438
(Tex.Crim.App.2001). Permissible jury argument generally falls into one of four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a
plea for law enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex.Crim.App.2010); Cannady v.
State, 11 S.W.3d 205, 213 (Tex.Crim.App.2000). Remarks of counsel during closing argument must be
considered in the context in which they appear. Gaddis v. State,                           753 S.W.2d 396, 398
(Tex.Crim.App.1988). Counsel is allowed wide latitude without limitation in drawing inferences from the
evidence, so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Id.



Background regarding jury argument
During argument, the State argued as follows:

  [Prosecutor]: Don’t convict her because she’s a liar. Convict her because she’s a killer, but the lies tell you that
  she did it. Why lie about something like cancer? I don’t know. But how horrible, how horrible—

  [Defense Counsel]: Judge, I’m going to object. That’s arguing outside the record.

  [Trial Court]: It’s overruled.


                                                          33
  [Prosecutor]: How horrible to lie about something like a disease like that. How horrible to use that to manipulate
  Dr. Aubert into giving her a job.

  [Defense Counsel]: Judge, I’m objecting to that being outside the record. No witness ever testified to that at all.

  [Trial Court]: Overruled. I let you argue your case. I will let the State argue their case. You may proceed.

Appellant also complains that the prosecutor injected facts outside the record when she told the jury, “Ed was the
love of [appellant’s] life, yet she cremated him before his son could say goodbye. What sense does that make?”
Appellant argues that “the only purpose [these] argument[s] serve[d] is to inflame the jury and goad them into a
conviction based on something beside the evidence.”



Analysis
*17 The State responds that both arguments were reasonable summations of the evidence and reasonable inferences
drawn from it. We agree with the State.

During the re-cross examination of the State’s witness, Dr. Aubert, appellant’s boss, the following exchange took
place:

  [Prosecutor]: All right. Did she also tell you something about her medical condition that made you feel sympathy
  for her?

  [Dr. Aubert]: She told me that she had—when she came to work, one of the interviews—I don’t know whether it
  was the February lunch, or I interviewed her briefly the day she came to work. One of those times, she told me
  that she was a cancer patient and she was not able to work, although she had a master’s degree in a medical-
  related field. And I don’t remember what it was. She could not hold a job, regular full-time job because it
  interfered with her therapy for her cancer at M.D. Anderson Hospital.

  [Prosecutor]: Can you recall what kind of cancer it was that she told you that she had?

  [Dr. Albert]: She said she had bone cancer and it had metastasized to the lumbar region, is what she told me.

Further, appellant’s medical records, which were admitted at trial, showed no history of cancer. Thus, the prosecutor
had an evidentiary basis upon which to ask the jury to infer that appellant had lied about having cancer.

Regarding the argument about cremating Clark before his children could say goodbye—that too was supported by
the evidence admitted at trial. The record shows that appellant was cremated within three days of the murder. When
appellant’s neighbor, Mrs. Manack, was questioned about Clark’s cremation, the following exchange took place:

  [Defense Counsel]: Okay. And in regards to the testimony that you gave about—and you seemed to be a little
  upset about this—that Ed had been cremated by the time you’d gone to the hospital to visit Norma. And you don’t
  know what day that was, right?

  [Judith Manack]: No, I don’t remember what day it was.

  [Defense Counsel]: Okay. Do you have any—

  [Judith Manack]: But it only had been a few days, two or three days.

  [Defense Counsel]: Okay. Do you have any knowledge about what Ed’s wishes were if he were to die?

  [Judith Manack]: A. No, I don’t.

  [Defense Counsel]: So, you don’t know that he may have wanted to be cremated if he died?

  [Prosecutor]: Calls for speculation.



                                                          34
    [Trial Court]: It’s overruled.

    [Judith Manack]: I don’t know.

    [Defense Counsel]: Is that possible?

    [Judith Manack]: I guess, yes.

    [Defense Counsel]: And if that were possible, it wouldn’t be unusual?

    [Judith Manack]: I guess what bothered me is he was a murder victim, and I didn’t think that they did that that
    quickly until they made all their investigation.

    [Defense Counsel]: Okay. And certainly—

    [Judith Manack]: And I thought his children would be upset.

    [Defense Counsel]: I’m sorry?

    [Judith Manack]: I thought his children would be upset. I didn’t know if they didn’t get to see him in a casket, I
    just thought his children would be upset.

There was also evidence that Clark was cremated, and that appellant did not have a service for him. There was also
evidence that Clark’s boss, Neil Block, did have a service, but appellant did not attend. And, Neil Block, not
appellant, was the person who had informed appellant’s ex-wife and children that their father had been murdered.

*18 From the evidence about how quickly Clark’s body was cremated, and that appellant did not have a service for
him or contact his ex-wife and children about his death, a reasonable deduction from the evidence would be that the
body was cremated before Clark’s son could say goodbye.

Because both arguments complained of on appeal were summations of and reasonable deductions from the evidence,
the trial court did not err in overruling appellant’s objections to the State’s closing arguments.

We overrule appellant’s fifth issue on appeal.




                                                     CONCLUSION
We affirm the trial court’s judgment.


Footnotes

1        Welch testified that the Phenophthalein test is a preliminary test, which can determine whether the sample is presumptive for
         blood. That test is followed by the Hematrace test, which can confirm the presence of human or higher primate blood.



End of Document                                                        © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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