             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00107-CR
     ___________________________

  MARK PHELPS ANDREWS, Appellant

                     V.

         THE STATE OF TEXAS


On Appeal from Criminal District Court No. 1
           Tarrant County, Texas
        Trial Court No. 1441741D


 Before Sudderth, C.J.; Gabriel and Kerr, JJ.
  Memorandum Opinion by Justice Kerr
                           MEMORANDUM OPINION

      A jury found appellant Mark Phelps Andrews guilty of murdering his wife,

Doris,1 and assessed his punishment at life imprisonment. See Tex. Penal Code Ann.

§ 19.02(b)(1), (2). After the trial court sentenced Andrews, he appealed, contending in

one issue that the evidence is insufficient to support his conviction. We affirm.

                                   The Indictment

      The State alleged that Andrews, on or about January 8, 2016, intentionally or

knowingly caused Doris’s death by striking her with a hammer. See id. § 19.02(b)(1). In

the alternative, the State alleged in another paragraph that on or about the same date,

Andrews intentionally committed an act with the intent to cause Doris serious bodily

injury and that was clearly dangerous to human life, namely, he struck her with a

hammer and caused her death. See id. § 19.02(b)(2).

                                 Andrews’s Argument

      Andrews does not dispute that someone bludgeoned his wife to death with a

hammer while she was asleep in her bed. Rather, he disputes whether the evidence

shows that he was that person.

      According to Andrews, the evidence does nothing more than raise a suspicion,

and as he correctly notes, even a strong suspicion falls short of proving guilt. See


      1
        For clarity, in this opinion we will use “Andrews” to refer to the appellant but
first names in referring to Doris Andrews and to housemates and trial witnesses Don
and Amy Skaggs.


                                           2
Winfrey v. State, 393 S.W.3d 763, 769 (Tex. Crim. App. 2013). He concedes, though,

that the suspicion emanates from his having both the motive and the opportunity to

murder Doris:

          • he had many debts;

          • Doris had named him the beneficiary of her life insurance; and

          • he and Doris lived together.

But, Andrews argues, many indebted persons are their spouses’ beneficiaries; this does

not prove that beneficiaries are murderers. Certainly, factfinders may consider motive

and opportunity, but in Andrews’s view, motive and opportunity—without more—

are not enough to prove guilt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim.

App. 2013). Beyond motive and opportunity, Andrews contends that the remaining

evidence permitted the jurors to do no more than speculate that he murdered his wife.

Although juries may draw multiple reasonable inferences if evidence supports them,

juries may not reach conclusions based on mere speculation, inferences, or

presumptions lacking factual support. See Winfrey, 393 S.W.3d at 771.

                                Standard of Review

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict



                                           3
to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full

play to the factfinder’s responsibility 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; Queeman, 520 S.W.3d at 622.

      The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an

evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and

credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at

622. Instead, we determine whether the necessary inferences are reasonable based on

the evidence’s cumulative force when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency

review must not engage in a ‘divide and conquer’ strategy but must consider the

cumulative force of all the evidence.”). We must presume that the factfinder resolved

any conflicting inferences in favor of the verdict, and we must defer to that resolution.

Murray, 457 S.W.3d at 448–49.

      Circumstantial evidence is as probative as direct evidence in establishing guilt,

and indeed circumstantial evidence alone can establish guilt. Winfrey, 393 S.W.3d at

771; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). An inference is a

                                            4
conclusion reached by considering other facts and deducing logical consequences

from them, while speculation is mere theorizing or guessing about the meaning of

facts and evidence presented. Winfrey, 393 S.W.3d at 771; Hooper, 214 S.W.3d at 16. A

conclusion reached by speculating is not sufficiently based on facts or evidence to

support a finding beyond a reasonable doubt. Winfrey, 393 S.W.3d at 771; Hooper,

214 S.W.3d at 16.

                                     Discussion

      For the reasons given below, viewing the evidence in the light most favorable

to the verdict, we hold that the evidence sufficed to show circumstantially that

Andrews bludgeoned his wife to death with a hammer. See Queeman, 520 S.W.3d at

622. And we further hold that evidence supports the inferences that the jury needed

to draw in making such a finding. See Winfrey, 393 S.W.3d at 771.

   A. Background

      As of January 2016, Amy and Don Skaggs had been living slightly more than

four months with Andrews, Doris, and the Andrewses’ 9-year-old special-needs

daughter, K.J. Don and Andrews had worked together at a trucking company, but

health reasons—Paget’s disease, gout, and back problems—later prevented Don from

working. Part of the living arrangement was that Andrews would pay Amy to cook,

clean, and help care for K.J.

      Completing the household were three dogs—Diesel, Sparky, and Tanker—that

barked loudly at strangers. One witness described the dogs’ barks as “high-pitched”

                                          5
and “yippee”—the sort that made good burglar alarms. Diesel would even bite. At

night, Diesel would sleep on Doris’s pillow near her head, and Sparky would find a

comfortable spot along Doris’s legs.

      Nightly routines were not unique to the dogs. Andrews would leave around

3:00 a.m. every morning to drive to a casino and return around 8:00 a.m. or

sometimes later. Since leaving his trucking-company job in 2015, Andrews had

become a self-proclaimed professional gambler. In June 2015, Andrews won—after

taxes—a jackpot of about $200,000 playing Texas Hold ’Em poker.

   B. The Murder

      On January 8, 2016, Andrews deviated from his routine.

      At 4:30 a.m. while both Amy and Don were sound asleep, Andrews threw open

their bedroom door, slammed it into the wall, and screamed for them to call 9-1-1,

while two of the dogs launched themselves onto the Skaggses’ bed.

      Amy testified that she did not know what was going on and thought perhaps

the house was on fire or that a car had wrecked near their house. Whatever had

happened, she remembered that the dogs had neither barked nor raised any other

commotion.

      Don called 9-1-1 while Amy followed Andrews, who had run back toward the

Andrewses’ bedroom. Entering that bedroom, Amy saw Andrews standing beside

Doris and screaming her name into her face. Blood was under Doris’s nose and had

pooled on her chest. A comforter covered Doris from the waist down.

                                         6
        Amy left the bedroom to find Don and told him, “[I]t’s Doris. There’s blood

everywhere.” After that, Amy went into K.J.’s room and found her awake. From

there, Amy went to the living room, where the morning took yet another unexpected

turn.

        Andrews came out of his bedroom with a gun and pointed it at Amy’s face. She

described the look on Andrews’s face as “deranged” and added, “I was scared.”

        Next, Andrews swung the gun and stuck it in Don’s face. Don thought that if

he had entered the Andrewses’ bedroom, he would have been Andrews’s next victim.

As it was, Don felt that the only reason Andrews had not shot him was because Don

was still on the phone with 9-1-1.

        Asserting that someone was still in the house, Andrews then began going room

to room. Amy described how Andrews checked an empty bedroom, the Skaggses’

bedroom, and even the water-heater closet, but she noted that the one bedroom left

unchecked was K.J.’s.

        Meanwhile, the 9-1-1 operator repeatedly asked Don if Doris was breathing.

Amy commented, “Of course, I knew she wasn’t, but they wanted [someone] to

verify,” so she went back to the Andrewses’ bedroom and saw Andrews on top of

Doris doing chest compressions. From what Amy had seen earlier, she knew that

chest compressions would not help.

        But this time Amy saw something else in the Andrewses’ bedroom—a hammer

on the rug beside the bed. After Amy screamed that there was a hammer on the floor,

                                          7
Andrews “got this really, you know, shocked look on his face” with an open mouth

and wide eyes. Amy found the hammer’s placement odd: “It was just too perfect. It

was right in the center of the rug.” She agreed at trial that its placement was

“obvious.”

      After the hammer’s discovery, Amy and Don returned to their bedroom, where

Don finished getting dressed, and then they went to the living room. Don kept asking

the 9-1-1 operator where the police were and was assured that they were just outside.

Around this time, Amy noticed that someone had opened the safe that was in the

living room. As one of the responding officers observed, the living-room safe was

between two large easy chairs and appeared to function as furniture—an end table—

because it had various items, such as two remotes, on top of it. According to Amy,

Andrews responded dramatically to this new development, too:

      Q. Okay. And did you say anything to Mr. Andrews?

      A. Yeah. I said, Mark, the safe is open. And he had the same shock
      expression, very overly dramatic, you know. You know, like, I can’t
      believe it.

      Q. Wide eyes, open mouth?

      A. Yes.

      Q. Overly dramatic?

      A. Yes, sir.

Amy thought that Andrews later told the police that the safe contained $135,000.




                                          8
      After the police had arrived, one of the dogs tried to bite an officer’s leg, and

the officer had to repeatedly shake the dog loose from his pants. Don put the dogs in

the back room. At trial, Don explained that the dogs were “not good with people. So

with the police there, they were in a state of aggression.” Only after the police arrived

did Don recall having a problem with the dogs’ behavior. Later, when animal control

came to remove the dogs, the dogs were described as “extremely loud” and very

agitated. One of the dogs was so aggressive that animal control resorted to using a

catch pole to remove it.

      When the paramedic arrived, he attempted no life-saving procedures because

protocols did not require any efforts deemed meaningless. Summarizing what he had

seen, the paramedic said, “She was pulseless. She was not breathing,” and he noted

“large amounts of blood to her face, her chest, the bedding and the pillow around

her” as well as “about a 3-inch laceration to the left side of her—of her head, which

looked to [him] to be some exposed skull.”

      The fire marshal who had been called to the scene to help investigate also

agreed that “it [was] plainly obvious” that Doris was dead. He described seeing

“significant traumatic injuries to her head and neck, upper chest area.”

      Amy characterized Andrews as “wailing” loudly but shedding no tears. One of

the responding officers also described Andrews as sobbing but tearless and noted that

his behavior alternated between wailing and normal.



                                           9
   C. Additional Information

      1. Andrews said and did things that presaged the murder.

      Amy remembered Andrews saying in December 2015, “I just feel like Doris is

going to die before the end of the year.” Only days before Doris’s January 8,

2016 murder, Andrews ran a search on his phone for funeral costs.

      2. Andrews had abused Doris.

      An acquaintance at a church in Arizona that the Andrewses had formerly

attended (and at which Andrews and Doris had been interim youth pastors) testified

that Doris once confided to her that Andrews had been verbally and emotionally

abusive and was becoming physically abusive. Doris showed this acquaintance a

bruised eye covered over with make-up, and Doris lifted her shirt to reveal two red

marks on her rib area. Doris also told the acquaintance that she was reluctant to leave

Andrews because she had just adopted a young girl (K.J.) and because Doris was still

raising two daughters from a previous marriage. Doris also confided that she was

frightened of how Andrews might respond. Andrews claimed to have had a military

background, to know how to kill people, and to know how to make people disappear.

Although aware that Andrews had assaulted Doris, the acquaintance acknowledged

not going to the police because she too was afraid. She admitted that fearing a fellow

church member seemed odd.

      Shortly before Doris was murdered, she was at a hair salon when Andrews

called and berated her about spending money. The hairstylist commented, “She was

                                          10
trying to not . . . draw attention to herself, but it was kind of hard—you know, I’m

sure y’all have seen in the salon we stand kind of close together. So it was obvious

what was going on.” Doris became emotional, cried, and wanted to leave.

      3. The evidence did not support a burglary.

      Law enforcement found no signs of forced entry into the house. Doris’s cell

phone was still on the nightstand next to her bed, and her wallet was at the foot of the

bed on a stool. Andrews’s wallet was on top of the open living-room safe, which

showed no signs of forced entry.

      Andrews and his father knew the safe’s combination. Andrews’s father

assumed but did not know definitively that Doris knew the combination too.

Although Amy likewise did not know if Doris knew the combination, Don assumed

that she did. According to the lead detective, Andrews claimed that only he and Doris

knew the safe’s combination.

      Don acknowledged that the only time he saw someone open the safe, Andrews

was that person, and the reason Andrews opened it was to change the combination

from six numbers to three. Don always assumed that the safe contained money, but

when Andrews opened it to change the combination, it looked empty to Don.

      Amy did not believe Andrews’s claim that the safe contained $135,000. At the

time, money was tight in the household. Andrews had initially paid Amy regularly for

helping with K.J., but he paid her erratically toward the end.



                                           11
       4. The Andrewses’ finances were in disarray, and Doris’s life-insurance
          policies offered an attractive financial lifeline.

       A forensic financial analyst reviewed the Andrewses’ financial records and

testified that they lived “outside of their means of what they were earning already

before they won the [Texas Hold ‘Em] jackpot. And when they won the jackpot, they

ran through it fairly quickly, and they did not spend it wisely.” She noted that the

Andrewses were in “dire straits,” were “getting calls from collectors,” and “had no

money to pay bills.”

       Debt appeared to explain Andrews’s transition from trucking-company

employee to professional gambler. In October 2015, just four months after Andrews’s

big win at the poker table, the Internal Revenue Service filed a $60,000 tax lien against

him along with a wage levy against his employer. That same month, Andrews left his

job.

       Leaving his job gave rise to a financial dispute between Andrews and his

former employer. The employer claimed that Andrews had quit, but Andrews asserted

that he had been fired and sought unemployment benefits. In the end, the Texas

Workforce Commission found that Andrews had quit and denied him any benefits.

       Other evidence showed that starting in November 2015 and running through

early January 2016, Andrews scammed $9,600 out of a couple that he and Doris had

gone to church with. Andrews told them that he was an investment broker and could

get them a 20% return on their money in just eight days. Admitting having no clue



                                           12
what normal stock-market returns might be, the church friend simply relied on and

trusted Andrews.

      In late November 2015, Andrews refinanced his Lexus (apparently without

Doris’s knowledge and definitely without her signature), and in mid-December, he

pawned two guns for $500. The financial analyst observed at trial that people who

pawn items generally do so “[b]ecause they’re broke.” Later in December 2015,

Andrews redeemed the two guns—that is, he paid off the loan and accrued interest

and got the guns back.

      Both before and after Andrews quit his job, he gambled frequently. An

investigator responsible for overseeing the Winstar Casino in Thackerville, Oklahoma,

testified that the casino’s records showed that in the six months preceding January 6,

2016, Andrews had made 80 trips to the casino and had a net loss of $63,680. And in

September 2015, Andrews and Doris had travelled to Las Vegas, where Andrews lost

$10,539.99.

      Amid his financial woes, the evidence showed that Andrews was Doris’s life-

insurance beneficiary and that $258,917.81 in insurance benefits had been

interpleaded into the court registry. Doris had a second life insurance policy for

$100,000 naming Andrews as her beneficiary, but those proceeds had not been

interpleaded.




                                         13
         5. The hammer belonged to Andrews, who kept it in a locked shed, but
            law enforcement found the shed unlocked.

         Don recognized the hammer that Amy spotted lying conspicuously on the rug

next to Doris’s bed because he and Andrews had used it to fix the fence only a day or

two before Doris’s murder. Don remembered handing the hammer to Andrews and

remembered Andrews’s putting it back in the shed, which was normally locked at

night.

         But a detective on scene discovered that the shed was not locked. Looped

through the U-shaped staple fastened to the doorframe was an opened padlock, and

the accompanying hasp—fastened to the door—was swung open. The shed door

showed no signs of forced entry.

         6. Andrews had Doris’s blood on him.

         Law enforcement found blood on Andrews’s clothing—on his jeans, on the

inside of his right boot, across his shirt, and on the back of his sleeve. The police also

found Doris’s blood in the master bathroom, on a towel in the master bathroom, in

the hallway, and in the kitchen. Her blood was also on the hammer.

         7. Doris’s murderer delivered powerful and numerous blows, something
            Don was not physically capable of.

         The medical examiner testified that Doris died from multiple penetrating blunt-

force injuries primarily to the head but also to the neck and hand. The blows to the

head penetrated the brain and the frontal sinus cavity, and the blow to the neck went

into the trachea. The blow to the trachea would have prevented Doris from calling for


                                           14
help: air would have escaped, blood would have filled her airway and prevented any

air from moving across the vocal chords, and many of the muscles that help control

speech had been damaged. Because a hammer’s head end and claw end each leave

distinct injuries, the medical examiner could tell that the claw end had caused Doris’s

injuries. The wounds were extremely deep and would have “almost always” caused

immediate loss of consciousness and, “fairly quickly” after that, death. The blows

required a great deal of force from someone strong and fit; the medical examiner

would not expect someone who was feeble and in ill health to deliver them.

      The lead detective had seen Don’s physical condition and did not think that

Don was physically capable of inflicting Doris’s injuries. But Andrews was.

      The detective also commented, “[T]here are almost no defensive wounds on

Mrs. Andrews at all. She did not put up really any kind of fight at all, which [indicates]

that she was sleeping when this occurred.” The autopsy photographs show that Doris

had one gash and another cut on the top of her right wrist and numerous smaller cuts

just below the knuckles on the top of her right hand; because she was lying on her

back, her right hand was on the side of the bed closest to her attacker.

      8. The lead detective interviewed Andrews; the detective’s evidentiary
         observations and Andrews’s explanations did not match.

      The lead detective interviewed Andrews before a warrant was later issued for

his arrest. Andrews asserted that he had left the house around 2:15 a.m. and

discovered that he had left money behind at the house, so at 3:54 a.m. he texted Doris



                                           15
that he was on his way back. Other evidence showed that Andrews rarely texted Doris

between 3:00 and 4:00 a.m., having done so only four times in the last three years and

nine months, including the text sent the morning of Doris’s murder. His 3:54 a.m.

message had not been opened, meaning Doris had not read it.

      Andrews’s claim of having left at 2:15 a.m. troubled the detective. Because the

distance Andrews supposedly drove would take only 25 to 30 minutes with the light

early-morning traffic, the detective thought it was odd that Andrews did not send the

text until nearly two hours later.2 At 4:16 a.m., video from a RaceTrac convenience

store located about five minutes from the Andrewses’ house captured Andrews

purchasing gasoline and a few minutes later—at 4:19 a.m.—two packs of cigarettes.

      Andrews told the detective that after getting back home, he initially went into

the bedroom to turn off Doris’s cell-phone alarm. But two things about this assertion

puzzled the lead detective:

   • Andrews ostensibly managed to enter the bedroom and turn off the cell phone
     beside the bed without tripping over the hammer that was placed on the floor
     directly in his path; and


      2
        The medical examiner and the detective could not determine when the murder
occurred. One officer who responded to the scene thought that the blood had already
started to coagulate; this indicated to him that the assault occurred earlier in the
morning or the prior evening. And the detective opined that if Andrews had
performed CPR on Doris, he would have expected more blood on the bathroom
towel and on Andrews. Whether the detective attributed this to the blood’s having
already coagulated is not clear. At the very least, the detective expressed difficulty
reconciling what Andrews had told him with what the physical evidence was telling
him.


                                         16
      • cell phones normally illuminate when their alarms go off, so if Doris’s cell
        phone had illuminated, Andrews should have seen her injuries then.

Crime-scene photographs showed that the cell phone also had blood on it.

         Andrews maintained that he did not discover his wife’s injuries until after he

had returned to the bedroom a second time to use the restroom and had turned on

the bathroom lights. But once again the detective noted that the physical evidence and

Andrews’s story did not harmonize very well because the bathroom light switch had

blood on it. Crime-scene photos show the light switch still in the “on” position,

suggesting that Andrews had blood on his hands when he turned the bathroom lights

on.

         Next, Andrews claimed to have tried to use Doris’s cell phone to call 9-1-1, but

the detective noted that her cell phone was neatly placed on the bedside table and was

still attached to charging cords. In his opinion, he would expect someone calling or

trying to call 9-1-1 to yank those cords from the phone.

         Then there was the issue of whether Andrews had gone near the safe that

morning, something he made a point of specifically denying even though another

detective had found Andrews’s wallet on top of the safe.

         Another concern for the lead detective was that the bathroom showed signs of

someone washing blood off, but Andrews attributed that to his going back into the

master bathroom after performing CPR on Doris.




                                            17
      Finally, the 9-1-1 call came in at 4:37 a.m.—18 minutes after Andrews bought

cigarettes at the RaceTrac at 4:19 a.m. Because the RaceTrac was only five minutes

away from the Andrewses’ house, Andrews could have spent at least ten minutes in

the house before having Don call 9-1-1. On the RaceTrac video, the lead investigator

acknowledged not being able to see any blood on Andrews.

      9. Andrews had unexplained injuries to his arm and head; the lead
         detective offered one possible explanation.

      Andrews had a small scrape, laceration, or scratch on the back of his head

behind his right ear and a small laceration on his left forearm. How Andrews incurred

these injuries was not clear. The detective postulated one theory: when an attacker

whips a hammer back, the hammer might strike the attacker’s own head. Andrews was

right handed, and the injury was behind his right ear.

      10. Andrews: a teller of tall tales.

      Outside the jury’s presence, Amy stated her belief that Andrews killed Doris.

When asked why, she answered, “Probably because everything he ever told us was a

lie. Everything.”

      Amy did not speak so bluntly before the jury, but her testimony describing

Andrews’s over-dramatic reaction to seeing the hammer and the open safe

communicated her skepticism.3


      Her implicit message could well have been, “The [gentleman] doth protest too
      3

much, methinks.” William Shakespeare, Hamlet act 3, sc. 2.


                                             18
      The jury heard other testimony painting Andrews as someone who

exaggerated, embellished, and fabricated. According to witnesses, Andrews had

variously claimed that

          • he owned a car dealership;

          • he owned an RV dealership;

          • he managed an RV dealership;

          • he owned or partially owned a trucking company;

          • he was in the special forces while in the military;

          • he had been an Army Ranger and had been deployed to Afghanistan and
            Iraq where he performed several secret missions that he could not talk
            about;

          • he had been shot several times while in the special forces;

          • he had performed a tracheotomy on himself while in the military;

          • he had been called about the Twin Towers attack;4

          • he had survived testicular, lung, throat, and bone cancer;

          • he owned yachts and liked big boats;

          • he had won and lost millions;

          • he had attended but had not finished vet school at Texas A & M;


      4
       The witness who recounted the Twin Towers story commented, “[Andrews
told one story] about the Twin Towers that—you know, there was questionable things
about the Twin Towers, and that he had gotten a phone call about that. And when I
heard that, that was really out there for me, so—but I didn’t think anything of it.”


                                          19
          • his parents owned a cattle ranch; and

          • he was a youth minister and associate pastor at a church.

      But the jury heard evidence that the Andrewses rented the house they lived in,

that Andrews had worked as a driver and, later, as a dispatcher at a trucking company,

and that Andrews and Doris had served as unpaid youth pastors for an interim period

when their church had no youth pastor.

      When Andrews’s father testified, he was asked about being a cattle rancher and

responded, “I wouldn’t call myself a rancher, no,” adding that he had “like four

cows.”5




      5
        When evaluating sufficiency, we consider only the evidence and testimony that
the jury had before it when determining guilt. See Carballo v. State, 303 S.W.3d 742,
746 n.3 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Barfield v. State,
63 S.W.3d 446, 450 (Tex. Crim. App. 2001)). During the punishment trial, the jury
learned the truth about Andrews’s military career. He served in the Air Force for two
years, four months, and 17 days from October 16, 1989, until March 2, 1992, which
corresponded to Operation Desert Storm but which preceded by about ten years the
September 11, 2001 attacks and their aftermath. Andrews was an aircraft-maintenance
specialist stationed at Scott Air Force Base in Illinois and was never an officer. He
received two awards—one for joining the Air Force during wartime, and another for
completing boot camp. He received no commendations for having served overseas or
for having been shot. When asked if Andrews’s records showed that he had served in
special ops or black ops, with the CIA or the Long-Range Reconnaissance Patrol, or
as an Army Ranger or a Green Beret, the State’s witness responded, “All of [his
records] are showing zero. He participated in none of that.” Andrews received a
general discharge under honorable conditions. Under “Narrative reason for
separation,” his discharge certificate states, “Misconduct—pattern [of] conduct
prejudicial to good order and discipline,” which meant that “he got in trouble and
didn’t do his job.”

                                         20
                                       Discussion

        We conclude that the jury’s verdict does not reflect speculation but, instead,

rational inferences from various pieces of circumstantial evidence. Whoever murdered

Doris

           • was no stranger to the three dogs,

           • could access the shed without force and find the hammer stored inside,

           • could access the house without force, and

           • had the physical strength to commit the offense.

Andrews met all these criteria; no one else did.

        Prominent too were Andrews’s efforts to construct evidentiary facades.

Attempts to suppress or fabricate evidence are admissible against a defendant to show

that the defendant was conscious of his guilt and that he was guilty as charged. See

Rodriguez v. State, 577 S.W.2d 491, 492 (Tex. Crim. App. [Panel Op.] 1979); Brown v.

State, 51 S.W.2d 616, 620 (Tex. Crim. App. 1932) (op. on reh’g); see also Johnson v. State,

583 S.W.2d 399, 409 (Tex. Crim. App. [Panel Op.] 1979); Garza v. State, 358 S.W.2d

622, 623 (Tex. Crim. App. 1962); Johnson v. State, 208 S.W.3d 478, 500 (Tex. App.—

Austin 2006, pet. ref’d); Bryan v. State, 990 S.W.2d 924, 928 (Tex. App.—Beaumont

1999, no pet.); Miranda v. State, 813 S.W.2d 724, 733 (Tex. App.—San Antonio 1991,

pet. ref’d). Viewing the evidence in the light most favorable to the verdict, the jury




                                            21
could have found that Andrews went to great lengths to stage various putatively

exculpatory scenarios.

      For example, the open safe suggested a burglary gone horribly wrong.

Although Andrews claimed that there had been $135,000 in the safe, other evidence

suggested that he was lying:

          • Andrews was scamming church acquaintances for cash;

          • he had refinanced his Lexus;

          • he was no longer paying Amy consistently;

          • debt collectors were calling;

          • less than a week before Doris’s death, he became upset when she went
            to a hairstylist; and

          • he had recently pawned his guns.

A reasonable inference from this evidence was that Andrews’s actions indicated

someone who was cash-strapped and not someone who had $135,000 secreted in a

living-room safe.

      Additionally, other evidence belied a burglary. If a burglar had entered the

house, the dogs would have barked. They did not.6 But assuming a burglar had



      6
        Sherlock Holmes fans will immediately call to mind “The Adventure of Silver
Blaze,” a story in The Memoirs of Sherlock Holmes collection, in which Holmes deduces
that the presumed murderer was someone well-known to the stable dog past which a
famous race horse had been led in the night with no fuss from the dog:


                                            22
successfully gotten past the dogs and had successfully cracked the combination to the

safe, the burglar would have had no reason to kill Doris in her sleep. And—for

argument’s sake—if a burglar had killed Doris, the burglar inexplicably neglected to

take her phone and wallet. Further, if the burglar had needed Doris to open the safe,

killing her in her sleep would have defeated that purpose, and the idea that Doris was

alive to give a burglar the safe’s combination but then went back to sleep only to then

be murdered makes no sense.


              Colonel Ross still wore an expression which showed the poor
       opinion which he had formed of my companion’s ability, but I saw by
       the inspector’s face that his attention had been keenly aroused.
              “You consider that to be important?” he asked.
              “Exceedingly so.”
              “Is there any point to which you would wish to draw my
       attention?”
              “To the curious incident of the dog in the night-time.”
              “The dog did nothing in the night-time.”
              “That was the curious incident,” remarked Sherlock Holmes.

Sir Arthur Conan Doyle, The Adventure of Silver Blaze, 12–13, dfw-
sherlock.org/uploads/3/7/3/8/37380505/1892_december_the_adventure_of_silver
_blaze.pdf (last visited 10/28/19).

       And from this fact, Holmes

       had grasped the significance of the silence of the dog, for one true
       inference invariably suggests others. The . . . incident had shown [him]
       that a dog was kept in the stables, and yet, though someone had been in
       and had fetched out a horse, [the dog] had not barked enough to arouse
       the two lads in the loft. Obviously the midnight visitor was someone
       whom the dog knew well.

Id. at 15.


                                          23
      In short, the jury could have reasonably concluded that Andrews staged the

open-safe-and-burglary scenario to mislead the police during the investigation that

would inevitably follow Doris’s murder.

      Another example from which the jury could have concluded that Andrews had

set-designed the evidence was the hammer. Someone had left it where others would

certainly find it, even though murderers generally try to dispose of incriminating

evidence such as murder weapons. See generally Ex parte Garner, No. 10-18-00129-CR,

2018 WL 3469834, at *3 (Tex. App.—Waco July 18, 2018, no pet.) (mem. op., not

designated for publication); Arochi v. State, No. 05-16-01208-CR, 2018 WL 3372919, at

*13 (Tex. App.—Dallas July 11, 2018, pet. ref’d) (mem. op., not designated for

publication); Reeves v. State, 969 S.W.2d 471, 486 (Tex. App.—Waco 1998, pet. ref’d).

Presumably Andrews did not intend to incriminate himself, and whether he intended

to incriminate Don or some hapless and nameless burglar is not clear. But for our

sufficiency-review purposes, the hammer incriminated Andrews:

         • it was his hammer that was used to kill Doris;

         • Andrews kept the hammer in a shed that he normally locked at night;

         • someone entered the shed and took the hammer without having to use
           force; and

         • the shed’s padlock was found unlocked and the hasp on the door was
           swung to its open position.




                                          24
Because it was Andrews’s shed and padlock, a jury could have reasonably inferred that

Andrews had the key to the padlock and that he was the person who had entered the

shed and retrieved the hammer.

      Next, the jury could have reasonably inferred that Andrews’s hyper-wrought

search for an intruder was further fabrication intended to mislead. Significantly,

Andrews checked the water-heater closet but not his young special-needs daughter’s

bedroom. A rational juror could have reasonably concluded that

          • if Andrews truly believed that a dangerous intruder was in the house,
            K.J.’s bedroom should have been the first place he checked;

          • Andrews’s not checking his daughter’s bedroom showed that he knew
            she was safe because he knew all along that there was no intruder; and

          • checking the water-heater closet was melodrama.

      Andrews’s hunt for the intruder also featured pointing his gun at both Amy

and Don. But for his being on the phone with 9-1-1, Don was persuaded that

Andrews would have shot him. To the extent that Andrews was purportedly searching

for intruders, neither Amy nor Don fit that definition.

      Why Andrews threatened Amy and Don with a gun is unclear. Whatever the

reason, for our purposes the only question is whether a jury could have reasonably

concluded that Andrews intended this conduct as another red herring of some sort.

On this record, the answer is yes.

      Another example of apparent misdirection was Andrews’s attempt to revive

Doris with chest compressions. Amy, the fire marshal, and the paramedic all testified

                                          25
that Doris was obviously dead, a fact confirmed by crime-scene photographs admitted

at trial. Despite that, Andrews administered chest compressions. Jurors could have

reasonably concluded that these actions served a disingenuous purpose too.

      Andrews had to account for how his wife’s blood ended up on his shirt, jeans,

and boots, and why her blood was also in the master bathroom and on the bathroom

towel. Under these circumstances, a reasonable jury could infer that Andrews

performed the chest compressions not to try to save Doris’s life but rather to easily

explain the blood on his clothing. Such a ploy would also explain why Doris’s blood

was in the bathroom and on the bathroom towel—after performing the chest

compressions, Andrews went to the bathroom to clean himself up.

      Finally, Andrews’s 3:54 a.m. text informing Doris that he was coming home—

when he rarely texted her in the early morning hours—and his fortuitous appearance

on the RaceTrac video at 4:16 a.m. and again at 4:19 a.m. could have struck the jury as

more examples of Andrews’s attempting to fabricate an alibi. When coupled with his

other apparent efforts to deceive and deflect, such seemingly calculated attempts to

fabricate evidence could allow a jury to reasonably infer Andrews’s guilt.

      We presume that the factfinder resolved any conflicting inferences in the

verdict’s favor, and we defer to those resolutions. See Murray, 457 S.W.3d at 448–49.

Here, the Andrewses were in dire financial straits. The proceeds from Doris’s life-

insurance policies were sizeable, and Andrews was the named beneficiary. The

evidence showed more than mere motive and opportunity; it also pointed to how

                                          26
Andrews brutally murdered his wife and how he planned to get away with it. His

efforts to fabricate favorable evidence did more to incriminate than to exonerate. See

Rodriguez, 577 S.W.2d at 492; Brown, 51 S.W.2d at 620.

      Viewing all the evidence in the light most favorable to the verdict, then, we

hold that a rational factfinder could have found beyond a reasonable doubt that, in

the language of the indictment, Andrews intentionally or knowingly caused Doris’s

death by striking her with a hammer or, alternatively, that Andrews intentionally

committed an act with the intent to cause Doris serious bodily injury and that was

clearly dangerous to human life, namely, he struck her with a hammer and caused her

death. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.

      We overrule Andrews’s sufficiency challenge and affirm the trial court’s

judgment.




                                                      /s/ Elizabeth Kerr
                                                      Elizabeth Kerr
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 7, 2019




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