                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00157-CR


CHARLES STOBAUGH                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

         FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

                                     ----------

                                   OPINION

                                     ----------

                                 I. INTRODUCTION

      A jury found Appellant Charles Stobaugh guilty of the offense of murder for

causing the death of Kathy Stobaugh and assessed his punishment at 25 years‘

confinement; the trial court sentenced him accordingly. The State contended at

trial that the murder occurred on December 29, 2004, the date that Kathy

disappeared. Charles perfected this appeal, raising six points. His first point

challenges the sufficiency of the evidence to support his conviction; he points out
that Kathy has never been located—dead or alive, either during the seven years

before his 2011 trial or since—and contends that no physical, forensic, or direct

evidence was presented at trial linking him to the alleged offense of murder.

That is, there is no body, no murder weapon, no witnesses, and no blood or DNA

evidence; there are no fibers or hairs or any type of forensic evidence

establishing that a murder occurred or linking Charles to a murder; and there is

no confession or directly incriminatory statement by Charles. Charles argues

that the circumstantial evidence presented by the State at trial is insufficient to

establish beyond a reasonable doubt that he acted with the requisite mens rea to

commit the offense of murder. Charles argues that insufficient evidence exists

that he committed any act directed toward Kathy on or about December 29,

2004, much less that, ―with intent to cause serious bodily injury to an individual,

namely Kathy Stobaugh, [he] commit[ted] an act clearly dangerous to human life

that caused the death of said Kathy Stobaugh, by manner and means unknown,‖

as alleged in the indictment, or that he intentionally or knowingly caused Kathy‘s

death by a manner and means unknown as alleged in the indictment. We hold

that, viewed in the light most favorable to State, the cumulative force of the

circumstantial evidence and any reasonable inferences from that evidence that

could be considered incriminating are insufficient to convince any rational

factfinder beyond a reasonable doubt that Charles acted with the requisite mens

rea necessary to support his conviction for murder.         Accordingly, we sustain

Charles‘s first point and render a judgment of acquittal.


                                         2
                          II. THE FACTS PRESENTED AT TRIAL1

                                     A. The Family

         Charles and Kathy married in 1984. Their daughter Charee was born in

1988, and their son Tommy was born in 1991. Before Tommy was born, the

family purchased a farm and approximately 105 acres of land just outside

Sanger, Texas. The farm was their home until Kathy left Charles in 2004. They

planted a family garden every summer.               They raised and harvested various

crops.       In addition to the family‘s house, there were several barns and

outbuildings on the farm and several pieces of large farm equipment.

         Kathy grew up in Gatesville and has two brothers, Mark Munday and Chris

Munday; Mark is the oldest, then Kathy, then Chris. Charles has two brothers:

Tim Stobaugh and Toby Stobaugh. Charles is the oldest, then Tim, then Toby.

The Stobaugh brothers grew up on a dairy farm in Cooke County; their mother

Helen still lived there at the time of trial.


         1
        The record contains a thirty-one-volume reporter‘s record, including
approximately 900 exhibits, and a fourteen-volume clerk‘s record that exceeds
2,100 pages. The record also includes eight DVDs. None of the DVDs were
transcribed by the court reporter. Three DVDs were played for the jury in toto—
State‘s Exhibits 15, 283, and 284; one DVD was excluded—Defendant‘s Exhibit
16; one DVD was not played for the jury—State‘s Exhibit 285; and, as discussed
in detail subsequently in this opinion, three DVDs—State‘s Exhibits 312, 313, and
314—contain ―clips‖ excerpted by the State from State‘s Exhibits 283, 284, and
285, respectively, and some, but not all, of the clips on each of these three DVDs
were played for the jury. Because the sufficiency of the evidence is challenged
on appeal, the undersigned author repeatedly listened to and watched the
admitted DVDs and the portions thereof that were played for the jury and
included their content in this opinion.


                                                3
              B. Charles and Kathy’s Marriage and Separations

      In 1989, after Charee was born, but before Tommy was born, Kathy filed

for divorce and left Charles. She did not tell Charles where she was going; she

lived with her brother Chris for a few days, stayed with her mother and father in

Gatesville for a few days, and then lived in Chilton in a rent house that was

owned by her brother Mark. Kathy and Charles reconciled, and later that year

Tommy was born.

      In 2002, Kathy worked at North Central Texas College (NCTC). She told

at least one co-worker, Toni Evans, that she was going to complete her college

degree, get a job, and divorce Charles.      Toni agreed that Kathy had been

planning the divorce for two years prior to leaving Charles in 2004. During the

next two years—prior to September 2004—Kathy graduated from college with a

degree in education,2 rented a house in Sanger, bought all new furniture for the

rent house, took half (approximately $39,000) of the money in the couple‘s bank

account, bought appliances for the rent house, filed for divorce, had Charles

served, moved into the rent house, and obtained a job as a kindergarten teacher

in Nocona.

      In connection with Kathy‘s filing for divorce, Charles was served with notice

of a hearing, an original petition, and a temporary restraining order. The hearing


      2
       The State called numerous witnesses and introduced into evidence
numerous exhibits establishing that Kathy was a top-notch student and made
excellent grades.


                                        4
never occurred because Kathy told her lawyer that she was going to try to work

out the terms of the divorce with Charles. Charles did not file an answer.

      After Kathy rented and furnished the house in Sanger, Charee—who could

drive—and Tommy traveled freely between the two households; they could

―show up anytime.‖ There was no court-ordered visitation schedule. The rent

house was less than a ten-minute drive from the farm.

      All through the summer of 2004, Charee never told anyone that her

parents were separated or getting a divorce. Charee testified that she did not

feel it was her place to say anything about it.

      Charee testified that, during a typical day in the summer of 2004, she and

Tommy would spend their days at the farm because there was more to do there.

Tommy had a dirt bike, there were three-wheelers to ride, and Tommy enjoyed

the farming activities. Charee and Tommy usually went to Kathy‘s rent house for

dinner and to spend the evenings because Kathy was a better cook than

Charles, because Kathy‘s house had cable and high-speed Internet service, and

because Charee and Tommy had big screen televisions in their bedrooms at

Kathy‘s house. Charles‘s house at the farm had only an old box television with

an antenna attached to it. Charee testified that she and Tommy also enjoyed

having pizza delivered at the rent house because the pizza places did not deliver

to the farm.

      In the fall of 2004, after Tommy‘s football season was over, the usual daily

schedule followed by Charee and Tommy was as follows: they would spend


                                          5
nights with Kathy; Kathy would leave for her work as a kindergarten teacher in

Nocona at about 6 a.m.; and Charee would get up later and drive herself and

Tommy to school. After school, Charee and Tommy would go to the farm, do

their homework, and ―mess around outside.‖ Charee said that she would drive

herself to the rent house later, after Kathy got home from work. Charles would

bring Tommy over to the rent house later—either before dinner or sometimes on

his way to his job as a machine operator on the night shift at Tetra Pak. Charee

said that Kathy often took Tommy—who was thirteen and could not drive yet—

out to the farm. Charee said that Kathy was out at the farm two to three times

per week. Linda Janoe, one of Kathy‘s closest friends and a former co-worker,

testified that Kathy allowed Tommy to go to the farm every day.

      Charee testified, and Charles said in his statements, that he never set foot

in Kathy‘s rent house because he believed that the restraining order served on

him with the divorce papers prohibited him from being anywhere near Kathy‘s

house.

      By September 2004, Kathy had taken no further action concerning the

divorce. That month, Kathy‘s attorney sent her a letter asking about the status of

the divorce because she had not heard from Kathy since June.                 Kathy

communicated with her lawyer the week after Christmas 2004 and indicated that

she wanted to finalize the divorce that week. Kathy went to her lawyer‘s office for

an appointment on December 28, 2004, and her lawyer explained that Kathy

needed to determine how she wanted to divide the assets and that they could


                                        6
then obtain a default judgment because Charles had not filed an answer. They

planned to meet at the courthouse on the morning of Thursday, December 30 to

obtain the default divorce judgment. Kathy communicated her proposed asset

division to her attorney‘s office on December 29, 2004, via an email sent at 11:17

a.m.

       Linda Janoe testified that she had spoken with Kathy on either Monday,

December 27 or Tuesday, December 28 and that Kathy had told her Charles had

finally agreed to the divorce. Kathy had called Linda and relayed to her the

conversation she had with Charles concerning the divorce: he was going to

agree to it and wanted to sell everything and split the money. Linda said that this

was a change of position by Charles because he had always indicated that he

wanted the land and did not want the divorce. Linda said that Kathy was not

excited about selling the land and wanted to keep it because Tommy loved the

farm. Kathy considered Charles‘s proposal to just sell everything and split the

money, and in a conversation with Linda on Wednesday, December 29, Kathy

told Linda that she had decided that she was going to do it a different way—she

would keep the land for Tommy and split everything else down the middle.

         C. Evidence that Kathy Was and Was Not Afraid of Charles

       Mark Munday testified that once in 1989 when Kathy was separated from

Charles and living in Mark‘s rent house in Chilton, she called Mark and asked

him to come over because Charles was coming to visit her. Mark said that Kathy

wanted him to be there while she talked with Charles because ―she was afraid of


                                        7
him.‖ While Mark was there, Charles and Kathy talked, and Charles left without

incident.

      Toni Campbell, a kindergarten teacher who taught at the same school as

Kathy and had known Kathy approximately three and one-half months prior to

Kathy‘s disappearance, testified that Kathy had expressed to her that she felt

very afraid of, very skittish of, and very uncomfortable with Charles. Toni had

never met Charles.

      Linda Janoe testified that based on one conversation she had with Kathy

about her marriage, Linda felt ―very afraid‖ for Kathy. Linda never met Charles

but once saw him across the room at a going-away luncheon held for Kathy

when she left her job at NCTC to return to school full-time.

      Keith Jones went to high school with Kathy. They stayed in touch on and

off through the years after high school. In 2004, they spoke occasionally via cell

phone. He said that Kathy told him she was not happy with the position that she

was in and that she was scared something might happen to her.

      Charee testified that up until Charles was served with the divorce papers,

he was unaware that Kathy had rented a house in Sanger. Before Charles was

served with the divorce papers, Kathy had already rented the house in Sanger,

she and Charee had already picked out furniture and things for the rent house,

and Charee had already been to the rent house. Before Kathy had Charles

served with the divorce papers, she moved the guns in the house at the farm to a

different location in the house. Kathy instructed Charee that if Charee was at the


                                         8
farm when Charles was served, Charee should take Tommy and go to the rent

house. Charee was at the farm when Charles was served. Charles became

angry and started yelling; Charee took Tommy and drove to the rent house.

Kathy later called Charee and told her to come back to the farm; at that point,

Kathy, Charee, and Tommy packed up the items they wanted to move from the

farm to the rent house.

      Charee, Kim Munday,3 and Linda Janoe all testified that Kathy continued to

go to the farm after she filed for divorce and moved into her rent house. Kim

explained that Kathy planted a garden every summer and canned fruits and

vegetables and made jams every year. Charee testified that while she lived in

the Sanger rent house with her mother, Kathy went to the farm two to three times

a week to take care of the garden and also to help with the farm‘s harvests.

During harvests, Kathy would usually drive the truck or the grain truck.

Concerning the garden, they all helped pick the corn, the blackeyed peas, the

tomatoes, and the beets. Kathy was the one who canned. In the summer of

2004, Kathy canned at the farm instead of taking all of the canning utensils back

to her rent house. Also at the end of the summer of 2004, Kathy, Charee, and

Tommy helped Charles put up the crops.

      The family spent the 2004 Fourth of July holiday together at the home of

Charles‘s mother, Helen Stobaugh.      And they celebrated Tommy‘s thirteenth


      3
       Kim Munday is the wife of Kathy‘s older brother Mark.


                                       9
birthday together in July 2004. A video taken at Tommy‘s birthday celebration

and played for the jury shows the family interacting amicably.

      Charee testified that she never saw Kathy act afraid of Charles and that

she never saw Charles hit Kathy. Charee said that one time, after Kathy slapped

Charles across the face, she saw Charles grab Kathy‘s arms, hold them down,

and then walk away. Charee said that Charles does not drink; she had never

seen him drink an alcoholic beverage, and he had never cursed in front of her.

      Linda Janoe and Charee testified that in the fall of 2004, after Kathy had

filed for divorce and moved into her rent house, she invited Charles to

accompany her, Charee, and Tommy to the State Fair—Kathy had received four

free tickets at school. The family attended the 2004 State Fair together and did

all of the ―usual things.‖

      Charles always maintained the family‘s automobiles; Charee and Linda

Janoe testified that, even after Kathy filed for divorce, Charles continued to

perform maintenance on Charee‘s and Kathy‘s vehicles, including changing the

oil in Kathy‘s car. Linda Janoe testified that Charles and Kathy were civil to one

another; Kathy had a key to the farm and would borrow Charles‘s tools.

      Charee testified that her mother would periodically go to the farm to

discuss the divorce with Charles. She said that this typically happened in the

evenings and that she and Tommy stayed at the Sanger rent house and did not

accompany their mother. Charee said that she assumed that her parents did not

want her and Tommy around while they talked about the divorce. Charee said


                                        10
that Kathy never expressed any concern about going to the farm. Charles never

changed the locks at the farm after Kathy moved out; Kathy and Charee came

and went from the farm as they pleased. Charles would frequently be there

when Kathy went to the farm.

                          D. Kathy’s Secret Videotape

      Kathy disappeared on December 29, 2004. Two months later, in February

2005, the Munday family collected and boxed up all of the things from Kathy‘s

rent house and put them in storage. Kathy‘s younger brother Chris testified that

they found Kathy‘s secretly recorded videotapes when they gathered up the

things in the rent house; he watched them and turned them over to the State in

April or May 2005. One of the videotapes, which was marked at trial as State‘s

Exhibit 15, was admitted into evidence at trial.4

      State‘s Exhibit 15 was recorded at the farm on the morning of April 10,

2004—a little over a month before Kathy filed for divorce5—after Charles came

home from his 11 p.m. to 7 a.m. shift at Tetra Pak. The video recorder was set



      4
       The other videotape secretly recorded by Kathy was marked at trial as
Defense Exhibit 16 and was excluded. Charles complains of the exclusion of this
videotape in his second point. Because we sustain Charles‘s first point and
render a judgment of acquittal, we need not reach his other points. See Tex. R.
App. P. 47.1 (requiring appellate court to address only issues necessary for
disposition of appeal).
      5
       Kathy scheduled and attended an initial consultation with her divorce
lawyer on May 24, 2004, and her original petition for divorce was filed on May 27,
2004.


                                         11
up with a view of Charles‘s chair at the kitchen table; the kitchen is visible in the

background.

      Chris said that he had watched the video and explained that it ―was like a

camcorder video that she [Kathy] had been recording‖ and showed ―Kathy and

Charles arguing.‖ Charee explained that the night before the events depicted in

the video, she had wrecked her car, so she was eavesdropping in on her parents‘

conversation to try to hear what her punishment would be. During the video, at

times when Charles was not present, Kathy picked up and moved the camcorder

to different locations and stopped and started it.

      The video was played for the jury.             After a discussion of Charee‘s

automobile accident, the video depicts Kathy bringing up a variety of complaints

to Charles with, as Charee testified, ―no transfer to another conversation.‖ Kathy

complained that Charles would not pay $400 to get ―my car‖ painted, but Charee

testified that Kathy‘s car was a white Lincoln Towncar, not the car she was

calling ―my car.‖   Kathy repeatedly asked Charles, ―Where have you been?

Where have you been?‖ She repeatedly stated, ―What about me, what about

me,‖ without connecting it to any issue or conversation. And she asked Charles,

―What‘s more important to you, money or family?‖ Charles responded, ―Family.‖

On the videotape, Kathy complained that she and Charee should not have to go

with Charles to pick up Charee‘s damaged car from a wrecker service because

Charles had not helped her pick up her chair or her grill; Charee testified that the

chair and grill had nothing to do with the conversation.


                                         12
      Charee testified that she had no idea why her mom would be videotaping

her dad. Charee said that she was sure her dad was not aware he was being

videotaped because he is a modest person and on the video he undresses down

to his underwear in preparation to go to sleep after working the 11 p.m. to 7 a.m.

shift at Tetra Pak. Kathy never told Charee that she was secretly recording

videos in the house.

     E. Kathy’s Boyfriend, High School Reunion, and Unknown Callers

      Kathy knew Rocky Underwood from high school. Through the years after

high school, Kathy maintained contact off and on with Rocky, who was, in 2004,

a funeral director in Haskell, Texas. In 2004, Rocky lived alone in a large rent

house in Haskell. Kathy and Rocky would talk and occasionally meet for lunch if

Rocky was in the area.

      After Kathy separated from Charles, she and Rocky talked and met a lot

and, according to Rocky, decided to ―carry the relationship a little farther.‖ During

the summer of 2004, they met in Graham and went to a restaurant and a hotel.

Two weeks before Kathy disappeared, on the weekend of December 5, 2004,

after completing a teacher workshop in Wichita Falls on Friday afternoon, Kathy

went to Haskell and stayed Friday and Saturday nights with Rocky.             Rocky

testified that their plan for the future of their relationship was to just see each

other when they could and see what happened.

      Kathy‘s cell phone records show that before she disappeared on the

evening of December 29, 2004, she called Rocky at 5:07 p.m. on December 28,


                                         13
2004, and the call lasted only one minute. She called him again at 5:32 p.m. on

December 28, 2004, and the call lasted two minutes. And she called Rocky a

third time at 7:39 p.m. on December 28, 2004, and the call lasted three minutes.

Rocky testified at trial that he did not remember the phone calls and did not

remember whether he responded. Four emails between Rocky and Kathy were

introduced into evidence. One was sexually explicit.

      Texas Ranger Tracey Murphree––who interviewed Charles after Kathy‘s

disappearance and was the State‘s primary witness at trial––was aware in 2005

of Kathy‘s sexual relationship with Rocky and was aware in 2005 that Kathy had

made three phone calls to Rocky on December 28, 2004, the evening before she

disappeared, but did not consider Rocky a suspect.

      After Charles was indicted in November 2009, Ranger Murphree and law

enforcement obtained employment records documenting Rocky‘s whereabouts

on December 29, 2004. At trial, the State questioned Rocky about records from

the funeral home, establishing that there was a viewing in Haskell at the funeral

home from 5:00 to 9:00 p.m. on December 29, 2004. Rocky testified that he was

in Haskell at the funeral home attending to that viewing on the evening of

December 29, 2004.

      None of Kathy‘s family, friends, or confidants, who were called as

witnesses by the State, knew of Kathy‘s intimate relationship with Rocky.6 Linda


      6
      Chris Munday, Debbie Stobaugh (Tim Stobaugh‘s wife), Kim Munday,
Toni Campbell (a teacher at Kathy‘s school), Linda Janoe, Keith Jones (Kathy‘s

                                       14
Janoe testified that in a conversation with Kathy on December 28 or 29, 2004,

she learned that an old high school boyfriend of Kathy‘s wanted to meet up with

her.

       Prior to November 2004, Kathy had helped locate and contact her former

high school classmates to invite them to their twenty-fifth high school reunion in

Gatesville. Kathy was in touch with a lot of her high school classmates during

this time. She stayed with her brother Mark and his wife Kim in Gatesville when

Kathy attended her high school reunion in November 2004. Kathy and Charles

had not lived together since May 2004, and Charles did not attend the reunion

with Kathy.    Linda Janoe testified that Kathy‘s high school reunion was in

November 2004, approximately one month before Kathy disappeared, and that

Kathy had reconnected with individuals at the reunion and had talked to a few old

boyfriends and to one in particular.

       Charee testified that when she was living with her mom at the rent house,

she frequently answered the house phone, a land-line. Charee said that there

were occasions when men called on the land-line asking for Kathy; Charee did

not recognize their voices. Charee would give the phone to Kathy, and Kathy

would usually take the phone into her bedroom to talk. Charee said she did not

think anything of this. She just thought Kathy wanted a private conversation.




high school friend), and Charee Stobaugh all testified that they were unaware
that Kathy was involved in an intimate relationship with Rocky.


                                       15
  F. Statements and Testimony about the Evening of December 29, 2004

      December 29, 2004 was a Wednesday. That Friday was December 31,

New Year‘s Eve; that Saturday was January 1, 2005. Nocona ISD was closed

that week for the Christmas holiday. Kathy drove her white Lincoln Towncar from

her rent house in Sanger to the farm on the evening of December 29; she called

Charee‘s cell phone at 9:17 p.m. that night, apparently on her way to the farm.

Charee did not answer, and Kathy did not leave a message. Although Kathy‘s

car was parked at the farm on the morning of Thursday, December 30, 2004, she

was not there.7 Kathy was never seen nor heard from again.

      There was no evidence of violence or of a struggle at the farm.         No

forensic evidence or direct evidence was ever located at the farm or anywhere

else indicating that a murder had occurred. Kathy‘s car was confiscated by law

enforcement, and the FBI ran tests on it; no forensic evidence that could be

related to a murder was found.      The other cars at the farm were likewise

processed by the FBI for forensic evidence that might be related to a murder, but

none was found.

      The following witnesses gave the following testimony, statements, or both

concerning the events that occurred on the evening of December 29, 2004.




      7
       The evidence established that Kathy‘s car had gas in it, would start, and
would run when it was left parked at the Stobaugh farm.


                                       16
                            1. Charee’s Statement

      Sixteen-year-old Charee went to the Sanger Police Department at 4:30

p.m. on January 3, 2005, to report her mother missing. She met with Sanger

Police Officer Josh Vest. Officer Vest generated a missing person report while

he spoke with Charee; Charee checked the box indicating that her mother was

missing under circumstances indicating that the disappearance was not

voluntary.   Charee made an oral statement to Officer Vest and later, at the

Stobaugh farm, made a hand-written statement.         Officer Vest testified that

Charee‘s verbal and written statements were consistent.

      Charee‘s written statement was made at 11:10 p.m. on January 3, 2005—

seven hours after she went to the Sanger Police Department to report her mother

missing. Charee indicated that on the evening of December 29, 2004, she went

to a friend‘s house to watch a movie. She got home around 1:30 a.m. on the

morning of December 30, 2004, and saw that her mom was not home; she woke

her little brother, Tommy, and asked him where their mother was. He said that

she had gone to their father‘s house to discuss the divorce. Charee said that she

went to bed, woke up at 7 a.m., and drove to her dad‘s house; she saw her

mom‘s car parked there, she assumed that her mom was there too, and she

drove back home to sleep some more. She returned to her dad‘s house at 9

a.m. and saw him standing outside. Her dad told her that Kathy had been there

the previous evening but had left; when he woke up, Kathy‘s car was parked in

the driveway but Kathy was not there. Charee wrote in her statement that her


                                       17
mom‘s friend Linda and her Aunt Kim had called her saying that they had tried to

call her mom but that their calls went straight to voice mail. Charee ended her

written statement saying that she figured her mom wanted time to cool off by

herself, that she did not think anything of it, and that she had called her mom‘s

cell phone periodically to try to reach her.

                                2. Tommy’s Statement

       Twelve-year-old Tommy made a written statement on January 4, 2005, at

12:12 a.m., about an hour after Charee wrote her statement. Tommy was at the

farm when Officer Vest had him write his statement. Tommy‘s statement is short,

so it is set forth in its entirety below:8

              My Dad had brought me to my moms [sic] house so he could
       talk to her about what the lawyer had to say about what was going to
       happen. I went in and sat down and she said hi and I said hi. Then
       I asked her if I could was [sic] the dog in the bathtub. Then the
       phone rang and she talked to my dad. Then wile [sic] I was in the
       bathroom with the dog my mom said I‘ll be back and I said bye.
       After the phone had rung she started to get some paper work out
       and started to hum. After that she left and came over here. The last
       time I saw her.

                             3. Officer Vest’s Testimony

       After Charee filed the missing person report with Officer Vest, he asked

Charee for the phone numbers of people to contact.         Charee gave him the

names of Linda Janoe, Toni Campbell, Mark Munday, Mr. and Mrs. Munday,

Chris Munday, and Charles. Officer Vest called and spoke with several of these

       8
         Tommy‘s statement contains some words that are marked through and
initialed by him; we have not included the marked out words.


                                             18
individuals, some of whom expressed concern for Kathy and said that she was

going through a divorce. Officer Vest decided that he needed to follow up on the

information he had received and to go talk to Charles. He radioed dispatch and

requested that a Denton County sheriff‘s deputy meet him at the Stobaugh farm

because it was located in unincorporated Denton County, not within Sanger‘s city

limits. He arrived at the farm around 6:30 to 7:00 p.m. on January 3, 2005, and

Denton County Sheriff‘s Deputy Gibbons met him at the Stobaugh farm.

      Officer Vest testified that he saw Kathy‘s car parked at the residence.

Charles seemed calm and ―didn‘t seem too excited about his wife not being

anywhere we could locate her.‖ Officer Vest recorded his interview of Charles

with his dash-mounted video camera and body microphone. He said that he tried

to end his conversation with Charles several times but that Charles kept ―going

into an explanation of what could have happened.‖

      After Officer Vest finished his recorded conversation with Charles, he got

into his patrol car and made two calls: one to Larry Kish, an investigator with the

Denton County Sheriff‘s Office, and one to Texas Ranger Tracey Murphree.

Officer Vest met with Investigator Kish and Ranger Murphree later in the evening

on January 3, 2005; they went to Kathy‘s rent house. Nothing in Kathy‘s rent

house indicated that she had left for more than a few minutes. The trio then went

back to the Stobaugh farm where Officer Vest obtained Charee‘s and Tommy‘s

written statements.




                                        19
      Because Charee had indicated in her statement that both Linda Janoe and

her Aunt Kim had called her to report that their calls to Kathy‘s cell phone were

going straight to voicemail, meaning that Kathy‘s cell phone battery must be

dead, Ranger Murphree obtained Kathy‘s cell phone code from Charee and

retrieved the missed calls from Kathy‘s phone. As Ranger Murphree listened to

the calls, he called them out to Officer Vest, who wrote them on a scrap of

paper.9   There was a saved call from Kathy‘s attorney‘s office canceling an

appointment on December 20 and rescheduling it to December 28. Then there

were the following missed calls in the following order: two calls from Charee, one

call from a realtor named Jennifer Hunter, a call from Kathy‘s mother—Jeanne

Munday, a call from Linda Janoe, another call from Jeanne Munday, two more

calls from Charee, another call from Linda Janoe, two more calls from Charee,

another call from Jeanne Munday, a call from Kim Munday, another call from

Charee, and a call from Toni Campbell.

      Around midnight on January 3, Officer Vest, Investigator Kish, Ranger

Murphree, and two or three Sanger police officers conducted a search for Kathy

at the Stobaugh farm. They searched for a couple of hours. They did not find

Kathy and did not find any evidence of any crime. The evening of January 3,

2005, was Officer Vest‘s last night of investigation on the case; Investigator Kish

and Ranger Murphree took over.


      9
       Officer Vest‘s handwritten list was admitted as State‘s Exhibit 315.


                                         20
                       4. Ranger Murphree’s Testimony

      Ranger Murphree testified that he became involved in the investigation of

Kathy‘s disappearance on January 3, 2005. Ranger Murphree met Investigator

Kish, Officer Vest, and Charee at Kathy‘s rent house. In Kathy‘s house, he did

not see any evidence that she had left for a long time; nothing appeared to be

missing, like her clothes, her makeup, or her toothbrush. The kitchen table was

cluttered with papers—―school teacher‖ items. He found a black organizer on the

kitchen table containing notes about Kathy and Charles‘s divorce proceedings.

One page indicated that Kathy was scheduled to meet with her lawyer on

December 28 to talk about a default judgment and another page had four

property division options with a box that could be checked by each choice. The

paper appeared to have been typed on a computer and printed off.          Ranger

Murphree pulled out this page and took it with him to question Charles with.

      Ranger Murphree decided that he wanted to talk to Charles himself, so he

drove back to the farm.    Charles had gone to work.      Ranger Murphree was

driving to Charles‘s place of employment at Tetra Pak when he received a call

that Charles had arrived home at the farm. Ranger Murphree and Investigator

Kish asked Charles if he would be willing to go to the Sanger police station and

make a statement. Charles agreed. Charles drove his car to the station, where

Ranger Murphree and Investigator Kish conducted a three-hour interview,

commencing at 1:02 a.m. and concluding at 3:58 a.m. on January 4, 2005.




                                       21
      Ranger Murphree and Investigator Kish later returned to the Stobaugh

farm to search for Kathy. Charee told them that she, Charles, and Tommy had

already searched and did not find anything. Ranger Murphree and Investigator

Kish also later returned to Kathy‘s rent house where they conducted a more

thorough search. Kathy had two computers at the house—one desktop and one

laptop.    Ranger Murphree and Investigator Kish did not confiscate Kathy‘s

computers.

      Ranger Murphree conceded that Kathy had never been found and that no

murder weapon had ever been located. But Ranger Murphree testified that he

came to his theory of the case as to how Kathy disappeared on January 3 or 4,

2005. During Ranger Murphree‘s testimony, he explained that the photos of the

Stobaugh farm, and specifically photos of the mud room, show a variety of items

that could be used as a ligature—belts, rope, sheets, pillowcases, and curtains.10

Ranger Murphree and the prosecutor performed a strangulation reenactment for

the jury; Ranger Murphree pretended to choke and strangle the prosecutor, who

―went uhhh,‖ went limp, and fell to the ground.11 Ranger Murphree testified that

      10
       State‘s Exhibits 194 and 197 are photos showing a small, horizontal,
wooden, 5-peg rail mounted to the wall in the mud room. Several belts are
hanging on it; the belt buckles are hanging on the pegs.
      11
          On cross-examination, Ranger Murphree testified:

             Q. You and [the prosecutor] did a reenactment, so to speak,
      in front of the jury on the strangulation. You recall that. Correct?

              A. I do.


                                        22
       Q. Fair to say that wasn‘t really reality that y‘all performed in
front of the jury?

      A. It was a possibility.

      Q. When you say ―a possibility,‖ that‘s a possibility of what?

      A. Of that‘s how he killed Katherine.

             ....

       Q. So, again, it‘s what you believe. I believe you testified to
that; well, I believe this is how it happened. Right?

      A. As far as the strangulation part?

      Q. Yes.

      A. I said I believe that‘s a possibility on how it could happen.

             ....

      Q. Do you have any evidence to support your theory of what
you believe?

      A. As far as strangulation?

      Q. Yes.

      A. There is no physical evidence, no.

      Q. No physical evidence, no forensic evidence. Right?

      A. Correct.

       Q. And let‘s talk about that. When you simulated a choking of
[the prosecutor], he went, uhh. Right?

      A. He did.

      Q. Now let‘s talk about reality. When someone‘s truly being
strangled to death, they‘re typically struggling, fighting for their life.
Right?


                                   23
         A. I would hope so.

      Q. They wouldn‘t just go uhh, limp, and fall straight down.
Correct?

         A. They very well could.

      Q. And in your experience -- I assume you‘ve worked
strangulation cases before.

         A. I have.

         Q. In your experience, there‘s typically a struggle. Right?

         A. Somewhat of one.

      Q. I mean, you‘d see scratch marks or claw marks on walls or
holes kicked in sheetrock.

         A. Not necessarily, no.

         Q. So there‘s different ways, different possibilities. Correct?

         A. Sure.

         Q. Well, let‘s talk about a consistent.

       When a person dies, their muscles relax, releasing bodily
fluids. Correct?

         A. Sometimes.

         Q. Most of the times?

         A. No. I wouldn‘t say most times, no.

      Q. In a strangulation case where somebody‘s air is cut off, a
person deceases that way, there‘s typically vomit from the air that‘s
been trapped, regurgitating. Is that correct?

         A. I‘ve seen cases like that and then cases where it‘s not
there.


                                     24
this strangulation reenactment was one of the possible ways Kathy was killed

and that ―there‘s just a multitude of ways of killing someone, endless amount of

ways, almost, with blood not being there.‖ Ranger Murphree testified that the

kitchen area of the Stobaugh farm house where Charles said Kathy was when

she became upset and left contained many hard, flat surfaces, including the floor,

where Kathy could have hit her head and not left any blood. In sum, Ranger

Murphree testified that the State was allowed to indict Charles for killing Kathy in

a manner and means unknown and that Ranger Murphree was not ―wedded‖ to

any particular possible manner of Kathy‘s death.

                            5. Charles’s Statements

      Charles made four statements concerning the events that occurred on the

evening of December 29, 2004. His first statement is the forty-seven minute

videotape recorded by Officer Vest‘s dash-cam and body microphone on January

3, 2005, at around 6:30 p.m. when Officer Vest went to investigate Kathy‘s



            Q. Well, all these body fluids would leave some DNA
      evidence at the crime scene. Correct?

            A. If in fact there were any, it may, yes.

              Q.    So your theory is you believe that there was a
      strangulation, but there just happened to be in this case no body
      fluids, no struggle, no vomit and there‘s just no evidence.

            A. There‘s a possibility of all those things taking place and not
      leaving anything behind.




                                        25
whereabouts based on the missing person report filed by Charee at 4:30 p.m.

that same day (the dash-cam video statement). The second statement is the

three-hour interview of Charles conducted by Ranger Murphree and Investigator

Larry Kish at the Sanger Police Department in the early morning hours on

January 4, 2005 (the Murphree/Kish statement or the Murphree/Kish interview).

The third statement made by Charles is a hand-written statement that he made

on March 3, 2005, to Mike Horton, a private investigator hired by Kathy‘s family,

the Mundays (the Horton written statement).        Mike Horton also recorded his

March 3, 2005 verbal interview of Charles, and that statement is the fourth

statement made by Charles concerning the events of the evening of December

29, 2004 (the Horton verbal statement).12

             a. The State’s presentation of Charles’s statements

      At trial the State did not initially present to the jury the complete version of

Charles‘s statements.     Instead, the State created ―clips‖ from the recorded

statements, isolating certain answers or phrases spoken by Charles.13 Defense


      12
        The entire recording of Horton‘s verbal interview with Charles (State‘s
Exhibit 285) was never played for the jury; only clips from this interview (State‘s
Exhibit 313) were played.
      13
        Ranger Murphree testified concerning this technique utilized by the State:

                   Q. Now, you and I have spent a considerable amount
            of time trying to put segments of his statement into topic order.
            Is that correct?

                   A. Yes, we have.


                                         26
counsel objected under the rule of optional completeness to the State showing

the jury various State-generated, isolated clips from Charles‘s statements.14 The

trial court overruled the objection.

      The State assigned topic captions to each clip that reflected the State‘s

perspective on the information conveyed on the clip and offered into evidence

exhibits listing the captions assigned to each clip. The State excerpted the forty-

seven-minute dash-cam video statement recorded by Officer Vest into sixteen

clips and offered a DVD with the sixteen clips on it into evidence as State‘s

Exhibit 314. The sixteen video clips vary in length, with the shortest being 7

seconds and the longest being 1 minute and 52 seconds. The State excerpted

the three-hour Murphree/Kish statement into fifty-five video clips and offered a

DVD with the fifty-five clips on it into evidence as State‘s Exhibit 312.          The


                    Q. Tell the jury what we‘ve done.

                    A. We‘ve taken -- it‘s my understanding that the
             statement has already been introduced. And we‘ve taken that
             statement, and different topics we‘d like to address are taken
             out of that interview just so we can discuss that one statement
             or that topic we‘re talking about.

                    Q. And the tape will be played for the jury in its entirety.
             Eventually we‘re going to let them see the whole thing
             running. Right? We just -- we tried to break it down into
             topics first for examination. Is that correct?

                    A. That‘s correct.
      14
        Defense counsel stated, ―I‘m going to object. We‘ve got a three-hour
conversation from 1:00 in the morning until 4:00 in the morning, and we‘re taking
bits and pieces and arranging them out of context.‖


                                         27
longest of these clips is 1 minute and 55 seconds; the shortest is 3 seconds. The

State excerpted the Horton verbal statement into nine video clips and offered a

DVD with the nine video clips into evidence as State‘s Exhibit 313. The longest

is 1 minute and 42 seconds; the shortest is 16 seconds. The State selected

certain clips contained on State‘s Exhibits 312, 313, and 314 to play for the jury;

all three of these DVDs that were admitted into evidence also contain clips that

were not played for the jury.15

      The DVDs containing the clips––that is, State‘s Exhibits 312, 313, and

314––also each include a PowerPoint on the DVD titled, respectively, ―Murphree

– categories.ppt,‖ ―Horton.ppt,‖ and ―Vest.ppt.‖ Each of these PowerPoints were

created by the State and contain a Denton County seal in the upper left-hand

corner of each PowerPoint slide. Each of the PowerPoints contains an initial

PowerPoint screen setting forth text boxes with captions created by the State of

what the State contends each clip shows, such as ―Convincing the children‖ or

―Assault 1989.‖ Each PowerPoint also contains some of the clips created by the

State from the pertinent statement; some of the PowerPoints contain clips not

presented at trial. The PowerPoints themselves were never published to the jury



      15
        For example, State‘s Exhibit 313 contains clips that the State created
from the Horton verbal statement that Charles made, and one of the clips, titled,
―Assault 1989.wmv,‖ was not played for the jury. Although neither the clip nor the
entire Horton verbal statement was played for the jury, during deliberations the
jury was free to view State‘s Exhibit 313 and to click on and watch the clip titled,
―Assault 1989.wmv.‖


                                        28
during trial. During closing argument, the prosecutor told the jury that if they

wanted to review the clips, they should play the PowerPoints.16

      During trial, the State did not play the various clips from Charles‘s

statements for the jury in the order that Charles made them during the

statements.    Most of the clips, especially the clips from the Murphree/Kish

statement, do not contain the question that Charles was asked; most of the clips

contain only Charles‘s answer to an unknown question. And many of the clips do

not contain Charles‘s entire answer; the clips cut off mid-sentence or before

Charles completes or further elaborates on his answer.17


      16
        The prosecutor during closing argument stated:

                     Now, so after he kills her, is there any evidence
              consistent with that? This is a guy who says on those tapes -
              - oh, before I forget, if you play the clips, you want to go to the
              thing that says PowerPoint. Now I‘ll ask Caroline if I‘m wrong,
              but I think you go to the one that says Power Point so you can
              play these clips. And I‘ve got little boxes, and you can read
              what the topics are.
      17
        For example, the State characterized Charles as a person who loved his
money and possessions. In support of this, the State played for the jury a clip
from the Murphree/Kish statement that the State titled, ―No Christmas
presents.wmv.‖ In the clip, Charles said, ―We never did buy each other anything
[for Christmas], the kids—.‖ Ranger Murphree interrupted Charles at that point,
and the clip cuts off shortly thereafter. But in the next sentence that Charles
spoke after the clip cut off, Charles said, ―What we always done for Christmas, I
went with the kids and picked out stuff for her from them and we‘d call it from the
kids and she‘d take the kids and they‘d get stuff for me and we‘d call it from the
kids.‖ Other clips that likewise cut off before Charles either completed his
answer or further explained his answer include: ―$ importance, not big
spender.wmv‖ and ―Kathy not walk.wmv.‖ One of the clips, titled, ―Don‘t drive car
in garage.wmv,‖ starts with Charles talking about an event that angered Kathy
immediately before she filed for divorce––the clip does not include a question.

                                          29
      The State then played various clips from Charles‘s statements for Officer

Vest and, primarily, for Ranger Murphree as they testified and asked them to

comment on what Charles had said in the clips, to comment on Charles‘s body

language in the clips, and to compare and contrast Charles‘s statements in the

different clips with one another.        Ranger Murphree testified that the

inconsistencies between statements by Charles in clips from the Murphree/Kish

statement, from the dash-cam statement, from the Horton verbal statement, and

from the three-paragraph Horton written statement meant that Charles was guilty

of murder. At the conclusion of Ranger Murphree‘s direct examination, which

spans almost three-hundred pages in the reporter‘s record, and after the jury had

already heard Ranger Murphree‘s compare-and-contrast-the-clips testimony, the

State played the entire three-hour Murphree/Kish statement for the jury.18

            b. The dash-cam-statement recorded by Officer Vest
                   at around 6:30 p.m. on January 3, 2005

      The State likewise did not play the interview between Officer Vest, Deputy

Gibbons, and Charles straight through for the jury. Instead, it appears that the

After the clip was played for the jury, Ranger Murphree testified that the answer
given by Charles on the clip was in response to a question Ranger Murphree had
asked. The full interview, however, does not contain the question Ranger
Murphree said that he had asked. We point out these problems with the clips
because the State urged the jury to draw inferences from the clips that are not
supported by the entirety of Charles‘s answer.
      18
        At the conclusion of Ranger Murphree‘s direct testimony, the prosecutor
stated, ―Judge, at this point we were going to play the full, long interview with
Tracy Murphree and Kish that we‘ve been playing clips from so the jury can see
the whole thing.‖


                                       30
State stopped and started the video—marked as State‘s Exhibit 283—repeatedly,

sometimes playing the same portion over more than once. While the video was

paused, Officer Vest gave a narrative of what he was doing at various points on

the video and of the identity of people appearing on the video.19 The video

reflects that Officer Vest arrived at the Stobaugh farm at 6:36 p.m. on January 3,

2005. Much of the dash-cam video statement is an audio recording only from

Officer Vest‘s body microphone; the video from the dash cam is focused in only

one place, showing people as they walk in front of the dash cam. The following

is a summary of the information on the DVD.

      The DVD shows Charles speaking freely to Officer Vest, telling him that

when he got up on Thursday morning, Kathy‘s car was parked in the driveway

―right there.‖ He said that ―of course we had to back it out of the way,‖ and so

―we backed it out right there, I did. I had to get a trailer out of the barn.‖ Charles

explained that Kathy came to his house on Wednesday night and left around 10

p.m., driving away in her car. Charles told Officer Vest that Kathy taught school

at Nocona and that she was off work for the Christmas holidays and was

      19
        The reporter‘s record identifies the DVD being played during Officer
Vest‘s trial testimony as State‘s Exhibit 314, which contains the clips created by
the State from Officer Vest‘s dash-cam video statement. But the prosecutor‘s
comment that the State would be playing a forty-seven-minute video along with
the questioning of Officer Vest reflected in the reporter‘s record, including the
prosecutor‘s comment that twelve minutes of silence was playing on the DVD,
indicates that, in fact, State‘s Exhibit 283––the entire forty-seven-minute
recording of Officer Vest‘s dash-cam video statement—was played, not State‘s
Exhibit 314. The State utilized the clips it created from the dash-cam video
statement in questioning Ranger Murphree.


                                         31
supposed to have taken her car to Muenster to be fixed because it was leaking

water. He said that he had called the shop and learned that Kathy had not tried

to make an appointment to get the car fixed.

      Charles told Officer Vest that Kathy had filed for divorce at the end of May

after she had obtained her teaching degree.       He explained that Kathy had

obtained a job teaching at Nocona. He said that in the past, Kathy had been

known to leave and be gone for an entire weekend with her cell phone off and

not want to be bothered; Charles said that this had happened twice before.

Officer Vest asked if Kathy had been living at the farm, and Charles explained

that she had moved out the past June. Officer Vest commented that Charles and

Kathy had been separated for a while; Charles responded that Kathy‘s filing for

divorce was as much of a surprise to him as it was to her family. Charles said

that a strange thing was that Kathy had a cell phone and paid her bill online so

that he could not see her cell phone records. He said there could be another

man involved.

      Charles discussed with Officer Vest the conversation that he had with

Kathy on the evening of December 29, 2004.         Charles said that Kathy had

explained how she wanted the property divided in the divorce. He said that

Kathy wanted half the land, wanted to be paid half the value of the farm

equipment, and wanted everything out of the house. Charles said that he had

asked Kathy whether, if he wanted to contest the way she wanted to divide the

property, he would have to get a lawyer and she said that he would. Charles


                                       32
said he told Kathy that even though he had previously said he was not going to

get a lawyer or contest it, he was going to contest it.       Kathy asked how he

wanted the property divided, and Charles said he wanted everything sold and

split down the middle. He said he did not want her coming back later and saying

that he had cheated her. Charles said he asked Kathy why she did not want to

sell everything and split it down the middle and that Kathy said that was not what

she wanted to do. Charles said that was what he wanted to do. Kathy said, ―You

know, you gotta always have your way,‖ and he replied that he just wanted it to

be fair. At that point, Kathy said, ―I am leaving, there ain‘t nobody gonna find me

and don‘t try look for me.‖ Charles explained that he said, ―Oh, you‘re going to

do one of them trips, huh.‖ And Kathy responded, ―No, I am leaving.‖ Charles

said he shut the door and went to bed. He saw her driving away down the

driveway.

      Charles said when he awoke the next morning, he ―saw her car parked

right here.‖ He explained that when Kathy had pulled up at the farm that night,

she had parked in a different place: ―She parked around here—so she did leave.‖

Charles said he did not think much about it. He summed up that ―we didn‘t really

get alarmed until this morning [Monday morning, January 3, 2005].‖ At that point,

Officer Vest moved away from Charles, and although Charles was still talking in

the background, his words are not discernable on the recording. When the body

microphone picked up Charles‘s voice again, he said, ―But that‘s kind of all of it in




                                         33
a nutshell. Neither one of us has ever laid a hand on each other. . . . My deal is

she has never left with somebody, she has always left in the car.‖

      Officer Vest asked Charles to ―hang out here‖ while he and Deputy

Gibbons looked at Kathy‘s car. He asked Charles where he had touched the car,

and Charles said that he had touched the steering wheel to move the car and the

driver‘s side door to see if water was leaking in, and it was. The video shows

Officer Vest and Deputy Gibbons examining Kathy‘s car; Officer Vest commented

that the car was immaculate.       There is twelve minutes of silence on the

recording; Officer Vest turned off his body microphone while he inspected

Kathy‘s car.

      After completing his inspection of the car, Officer Vest resumed his

conversation with Charles and asked whether Kathy had any best friends.

Charles said, ―That is who I am fixing to call here tonight: Linda Janoe.‖ Officer

Vest asked whether Charles had a phone number for Linda Janoe, and Charles

said that he did in the house and invited Officer Vest inside. As they entered the

house, Charles asked, ―Was y‘all out here last year when this woman got killed

down here?‖ Officer Vest responded that they were not and explained that the

only reason he was at the farm was because Kathy was a resident of Sanger and

a missing person report was filed in Sanger.

      Charles said, ―It‘s been about a year ago when that woman down here—

Marilyn, nice lady,‖ when Officer Vest stated, ―Yeah, I knew her, I know her son,

I‘m trying to think of his name.‖ Charles said, ―Lee and Robert, Junior.‖ And


                                       34
Officer Vest said, ―Robert. I‘ve known Robert for a long time.‖ Charles stated,

―See, first, though Robert‘s granddad lived right over here and he passed away in

November, and then the next month this woman got killed down here and I don‘t

think they‘ve ever found out anything.‖ Officer Vest responded, ―Not as far as I

know they haven‘t.‖

      Charles then located Linda Janoe‘s cell phone number and provided it to

Officer Vest. Charles explained how Kathy knew Linda Janoe and again said he

was going to call Linda ―tonight.‖ Officer Vest then attempted to wrap up the

interview, stating, ―If you hear of anything, if she comes and gets the car, let us

know so we can get it off the computer.‖ But Charles interjected, ―Y‘all haven‘t

had any reports of anybody being found or anything have you? It might be all for

nothing. I don‘t know what to tell you. If this was something new, I might have

jumped on it, but that woman called from school.‖ Officer Vest confirmed that

someone from Kathy‘s work had called. Charles said that the school had called

him about 10:30 that morning looking for Kathy; he was told that it was a teacher

workday. He said it was not a big deal, but stated, ―We haven‘t heard anything.

Her parents haven‘t heard anything.      You know, you just don‘t ever know.‖

Officer Vest then asked for the phone numbers for Kathy‘s parents and brother,

and Charles provided Officer Vest phone numbers for Kathy‘s mother, Jeanne

Munday, and her brother, Mark Munday. Charles explained that Chris Munday

had just moved and that Kathy did not have his new phone number written down

in the address book.


                                        35
      Officer Vest again tried to end the conversation, stating, ―Alright, if I hear

anything, I‘ll let you know.‖ Charles indicated that he was going to call ―this lady

right here, I‘m gonna call her—she works with her. Don‘t even know her last

name.‖ Officer Vest responded, ―Let me write that down too.‖ Officer Vest then

prepared to leave again, stating, ―Alright, if I hear anything I will let you know and

you let me know if you hear anything.‖ Charles asked, ―What number? Do I call

that same number?‖ Officer Vest said, ―That‘s my cell phone.‖ And Charles said,

―And you are—Officer Vest. Are you from around here?‖

      The conversation then turned to where Officer Vest grew up and had

worked, and Charles asked whether Officer Vest knew Jackie Norris, who

worked with Charles and is from Sanger. Charles said, ―Well, I appreciate you

coming out. I‘ll tell you one thing. I don‘t know what happens, as far as this

divorce thing; we know a woman, we went to church with a woman who went

back to school in her 40s like my wife did and she ended up in the hospital in a

nervous breakdown.‖ Charles then explained that Kathy really changed after

taking a psychology class, saying that a man always gets the better jobs, the

man always rules, and the man gets all the toys. After that class, Kathy said that

the pastor at their church was too dominating.        Charles told Officer Vest, ―It

seemed like ever since then, I don‘t know, I think that the nerves, I‘m not gonna

say that she was fixing to have a nervous breakdown, but I figured that after she

got out of school—[microphone breaking up]—she couldn‘t find a job, but then

she just substituted and she got pretty depressed about that, then she got this


                                         36
job at Nocona.‖ He continued, ―I don‘t know. It‘s like her brother told me tonight,

‗She kinda lived a private life.‘‖

      Officer Vest asked a few more questions before he left. He asked, ―What

do you think is going on?‖ Charles said, ―I don‘t know. That is what her brother

was asking me.‖ Officer Vest asked, ―What did she do for Christmas?‖ Charles

said, ―She went down there, I didn‘t go. And I asked her brother whether she

was acting differently and he said, ‗You know, she leads a private life and she

lets you know what she wants you to know.‘‖ Charles explained to Officer Vest,

―And I said, ‗Do you think she is more further distant from y‘all than what you

used to be?‘ And he said, ‗Oh I don‘t know.‘‖ Charles then said, ―But you know, I

got on her a few times about why she didn‘t let the cell phone bill go through the

mail.‖ Charles said he asked Kathy if she was trying to hide something by paying

the bill online. Charles speculated that he could have called AT&T to get the

bills, and Officer Vest said he could if his name was on the account. Charles

then said that he did not have a cell phone but that Kathy had gotten one for

herself and one for Charee.

      Charles then volunteered, ―There was nothing ever about finances, I‘ve

never had to borrow money or nothing.‖ Officer Vest asked how Kathy was doing

financially on her own since moving out in May. Charles explained that Kathy

took out half of the $80,000 that they had in the bank. Charles said that he had

told Mark earlier that night that because Kathy had half of the $80,000, ―she

ought to have plenty of money.‖ Charles denied that Kathy drank, said she was


                                        37
not on drugs, and had not been prescribed any drugs by a doctor that he knew

of. Officer Vest asked whether Kathy went to the doctor regularly, and Charles

said she did not.

       Charles told Officer Vest, ―I told her, you want out after all of these years, I

want to make it fair and square, I‘ve been waiting for you to come back but I‘m

going to get a lawyer, I am going to contest it and split it down the middle. It‘s the

only fair way.‖ Charles said, ―That‘s when she just turned around right by the

back door there and said, ‗You know, I‘m leaving and don‘t try to look for me. I‘m

going somewhere nobody is going to find me.‘‖ Charles explained, ―She could

have called somebody, got on a plane, there‘s been a thousand things go

through my head. I just hope nothing has happened to her.‖

       Finally, Charles concluded, ―That‘s about all I can tell you, that‘s all of it

that I can think of.‖

          c. The Kish/Murphree statement recorded at the Sanger
     Police Department from 1:02 a.m. to 3:58 a.m. on January 4, 200520

       20
         As previously mentioned, the parties did not request that the DVD
containing this interview—State‘s Exhibit 284—be transcribed by the court
reporter when it was played for the jury. The author of this opinion has detailed
the contents of this interview. The portions of the interview constituting a ―clip‖
excerpted by the State are underlined and set forth in context exactly verbatim to
show the question that preceded Charles‘s excerpted answer, as well as
Charles‘s full answer and explanation. The State did not utilize all of the fifty-five
clips contained on State‘s Exhibit 312; thirty-nine clips from State‘s Exhibit 312
were utilized. The clips not utilized during trial by the State are not underlined.
References to the location that the particular questioning appears on the DVD
(+/- ten seconds) are included as footnotes herein for the benefit of the parties in
pursuing further review of this decision and for the benefit of any court
subsequently reviewing this decision.


                                          38
        During the interview at the Sanger Police Department, Ranger Murphree

and Investigator Kish had Charles sit in a chair in a corner, facing outward, so

that Charles appeared on the video, but they did not. Ranger Murphree agreed

that he and Investigator Kish ―tag-teamed‖ Charles for three hours during the

interrogation.   On cross-examination, Ranger Murphree testified that he has

conducted thousands of interrogations. Ranger Murphree testified that it is an

interrogation technique to interview for a long period of time because the more

the person talks, the more information the interviewer is likely to obtain, and that

the interviewer is looking for inconsistencies. Ranger Murphree testified that he

intentionally put pressure on Charles during the interview and that he was trying

to wear Charles down and to create fatigue. According to Ranger Murphree, he

proposed different scenarios and different possible motivations to Charles to try

to get Charles to confess; the goal of the interrogation was a confession. Ranger

Murphree agreed that Charles did not confess, consistently denied any

involvement in Kathy‘s disappearance, and consistently denied knowing anything

about Kathy‘s whereabouts.

        The content of the three-hour interview is set forth below. The person

speaking is identified by ―M‖ for Ranger Murphree, ―K‖ for Investigator Kish, and

―C‖ for Charles. The trio entered the interrogation room, Charles shut the door,

everyone stated their name for the recording, and the interview began at 1:02

a.m.:



                                        39
            C: I don‘t know what y‘all think, but we didn‘t jump on this
      maybe as soon as we should have. But we just kept thinking she
      would come back.

             M: Tell me that story again about the divorce and everything
      like that.21

             C: She filed for divorce there at the end of May and moved out
      around the first of June. There hadn‘t been any arguments or
      anything of that nature whatsoever. So I told her, you know, I wasn‘t
      going to contest it or anything; just whenever she wanted to make
      the next move, that was alright with me. Because it kinda took me
      by a total surprise.22

             So, it rocked along all during the summer. I seen her at least
      once a month, if not more. I changed the oil in her car about once a
      month, every 3,000 miles. She wanted me to do that. And it just
      rocked along on up til now, while she was off for the holidays. I
      guess that‘s when she decided to go to the lawyer and go on
      through with it. And I asked her two or three times between the
      summer and Christmas, I ―told her I still loved her, if she would
      reconsider and come back home, I would be there for her.‖23 But
      she went ahead and made her mind up and told me how she wanted
      to divide everything up. And that‘s when she went to that lawyer on
      Tuesday. And I called her on Wednesday evening to see if she got
      everything set the way she wanted it. And she said yes. 24 I asked if
      she was going to tell me and she said she would rather come over
      and tell me in person. I said that was fine.25 She arrived about 9:30
      and was there probably about 30 minutes because the only thing

      21
       State‘s Exhibit 284 at 1:27.
      22
        State‘s Exhibit 284 at 2:11. The underlined words constitute the entirety
of the clip from State‘s Exhibit 312 that is titled, ―Divorce took me by
surprise.wmv.‖
      23
         State‘s Exhibit 284 at 2:57. The underlined words constitute the entirety
of the clip from State‘s Exhibit 312 that is titled, ―Still love her.wmv.‖
      24
       State‘s Exhibit 284 at 3:19.
      25
       State‘s Exhibit 284 at 3:26.


                                       40
      that was said was about the property division. She told me that she
      wanted half the land, money for half the machinery that we acquired
      during the marriage, and most everything out of the house.26 I
      asked her, ―Well, if I want to contest that, do I have to get a lawyer?‖
      And she said yes. Because I had told her earlier that I wasn‘t going
      to fight nothing. But then, after she told me the way she wanted to
      do it, I said no, I wanted to contest it. I was going to contest it if she
      didn‘t do it the way I wanted to do it.27 And she asked, ―Well, how do
      you want to do it?‖ I told her I wanted to sell everything and split it
      down the middle. And we‘ll just half it. And I think that‘s the most
      fair way and that way on down the road you won‘t be able to come
      back and think you maybe got been cheated.28 I could tell she got a
      little frustrated, and then she looked at me and said, ―Why does the
      man always have to try to win?‖ And I said, ―I‘m not trying to win, I‘m
      trying to do it the fairest way so we‘ll both be equal when we get out
      of this.‖29 And I said, ―You don‘t have to do anything if you want to
      just come back home.‖30 And she said, ―No, I‘ve made my mind up.‖
      So she got up and she said, ―Are you sure you want to contest it?‖
      And I said, ―That‘s the way I want to do it.‖ So right before she got to
      the back door to walk out she turned around and she just said, ―I‘m
      leaving.‖ And I said, ―Okay.‖ And she said, ―No, I mean I‘m leaving.‖
      And I said, ―What do you mean you‘re leaving?‖ And she said, ―I‘m
      leaving; don‘t try to look for me.‖ She said, ―I‘m leaving, I‘m going

      26
       State‘s Exhibit 284 at 3:58.
      27
       State‘s Exhibit 284 at 4:22.
      28
       State‘s Exhibit 284 at 4:40.
      29
         During the interrogation, Ranger Murphree spent a significant amount of
time questioning Charles about the value of the land and the property and
questioning why Kathy would not want to sell everything and split it down the
middle when she would end up with over half a million dollars that way. But at
trial, Ranger Murphree admitted that he had subsequently learned that Kathy had
told Linda Janoe on either Monday, December 27, 2004 or Tuesday, December
28, 2004—before Kathy visited with Charles at the farm on the evening of
December 29—that she did not want to sell the land because Tommy enjoyed it
so much and she wanted it for him.
      30
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Just come back home.wmv.‖


                                         41
     where no one can find me.‖31 And I just looked at her, and she
     turned around and walked out and shut the door. I saw the car go
     down the drive; I didn‘t see if she turned right or left. She left.32

            I got up the next morning probably about 8:30. Always go to
     the front—the kitchen is there on the north where I can see out33—
     fixed my coffee, and looked outside. You know, I didn‘t see that car
     sitting there cause it was pulled up pretty close to the garage.34 I
     guess I probably went outside an hour later and when I went around
     the garage there on the west that‘s when I saw it.35 I really didn‘t
     know what to think.36 I went back in the house. I looked around in
     there. I didn‘t see anything. I went back outside and looked around
     the car. I didn‘t touch anything.37 I didn‘t know what to think. But I
     saw the keys was in it lying on the floorboard. But her purse wasn‘t
     in there.

           M: Did she bring her purse in the house?

           C: No, she didn‘t. She didn‘t bring anything in the house.38

           M: Tell me about the living arrangements of your kids?




     31
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Kathy‘s final words.wmv.‖
     32
       State‘s Exhibit 284 at 6:00.
     33
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Got up, outside hour later.wmv.‖
     34
       State‘s Exhibit 284 at 6:31.
     35
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Car is close to garage.wmv.‖
     36
       State‘s Exhibit 284 at 6:47.
     37
       State‘s Exhibit 284 at 6:59.
     38
       State‘s Exhibit 284 at 7:43.


                                      42
       C: Just a mutual agreement they could both stay with me or
with her. My boy likes to stay with me more, because of being on
the farm and stuff. And that was fine with her. There was never any
arguments over that.39

      M: Now did you take him to town earlier?

      C: Yes, I did. That‘s when I come back I called her.

      M: Was she there when you dropped him off?

      C: Yes.

      M: Did you talk to her there?

      C: No, not at the house, I‘ve never been up to the front door at
the house.40

       [M:] Is there any reason why if she was at the house you didn‘t
just talk to her there?

      [C:] No, well, the only reason I took him, he‘d been with me
several nights after Christmas and he got some games to play on his
TV. And I asked him if he wanted to go home and play some of
those Nintendo games and he said yes, and I said, ―Well I don‘t
blame you. I may call mom and see what she found out.‖41 And she
could have told me over the phone, but she said she just wanted to
come out. But I guess she wanted to come out to see my reaction.

     [M:] Did you tell him he needed to go home because y‘all
needed to talk about the divorce?




39
 State‘s Exhibit 284 at 8:25.
40
 State‘s Exhibit 284 at 8:37.
41
 State‘s Exhibit 284 at 9:29.


                                 43
             [C:] I just told him we was going to talk. I told him that it really
      didn‘t matter. He may have took it that I really wanted him to, but it
      really didn‘t matter.42

            M: When you come around the corner and saw her car there
      did you look for her?

             C: Yes, I did.

             M: Where did you look?

             C: All over the place.

             [M:] What did you think she did?

            [C:] I was just bumfuzzled because it didn‘t make any sense.
      And the only thing that I could think of was the car, that car had been
      leaking water on the passenger side floorboard every time it rained
      and she was going to try to get that fixed or seen about while she
      was off during the holidays.43 But she never did or never brought it
      up. I asked her once about it earlier that week and she said, ―I really
      hadn‘t thought about it, but I need to get it fixed.‖ But I knew she
      hadn‘t got it fixed. So I thought if she brought that up here that don‘t
      add up or else she would have said something about it when she
      was up here earlier. So it didn‘t make no sense. It just flat didn‘t
      make any sense.

            But then I got to thinking she‘s got upset in the past and left a
      couple of times; she‘d be gone for the weekend, cell phone off, not
      want to be disturbed.

             M: How long ago was this?

             C: The last time was about probably less than two years ago.

             M: Where do you think she‘s at?

      42
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Why take Tommy.wmv.‖
      43
         State‘s Exhibit 284 at 10:54. The underlined words constitute the entirety
of the clip from State‘s Exhibit 312 that is titled, ―1st thought, fix car leaks.wmv.‖


                                          44
           C: I don‘t know.44 I think she is with somebody.

           M: Why do you think she would park her car at your house?

           C: I don‘t know. That‘s what‘s got me. [pause] Unless she
     planned on really staying away a long time or enough to really give
     us a scare or something and she just thought well she‘d leave that
     car there.45

           M: If you sold all of your stuff out there, how much money do
     you think that would be worth?46

             C: Quite a bit. Land and everything? I imagine you‘re looking
     at . . . I‘ve been told by a realtor out of Fort Worth that that place
     would bring about a million dollars.

           M: So, doing it your way, she‘s looking at $500,000.

           C: Yeah.

           M: And she knows that?.

            C: Oh, yeah. And another thing, she‘s not lacking for money
     right now.47 Because we had about $80,000 in the banking account,
     and when she moved out she told me that she took half of it, and I
     said, ―That‘s fine.‖ And she‘s been working, and she‘s not a big
     spender, so she‘s still got plenty of money.

            M: Let me ask you this. When the divorce was filed there was
     a restraining order too. Can you tell me why that was filed?



     44
       State‘s Exhibit 284 at 12:25.
     45
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Leave car to stay away a long time.wmv.‖
     46
       State‘s Exhibit 284 at 13:05.
     47
       State‘s Exhibit 284 at 14:05.


                                       45
           C: No I cannot. That‘s what got me. To tell you the truth I just
     broke down. I‘ve never laid a hand on her and that‘s why I‘ve never
     even went to the front door of her rent house. I never got out of the
     car.

           M: Was there a hearing on the 28th?

           C: No, I‘ve never received anything.48

           [M:] Did she talk to you about a default judgment—what that
     meant if you did not respond to her divorce? That she could get a
     default judgment and everything would go her way?

           [C:] She just said the other night that if I did not respond, and
     contest anything, that it would go––I took it that it would just go right
     on through her way.

           [M:] That‘s what she told you Wednesday?

           [C:] Yeah.49

           M: What about custody of the kids?50 What was y‘alls thinking
     on that?

           C: We never really discussed it, but she just said the other
     night probably that I would pay child support. Which I figured that.
     But I know my boy said that if mom left and that went through, he
     wanted to live with me, and I said well we‘d have to talk that out.51

          M: Who did she run off with? Was she seeing somebody?
     She have a boyfriend?



     48
       State‘s Exhibit 284 at 15:38.
     49
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Default judgment.wmv.‖
     50
       State‘s Exhibit 284 at 16:41.
     51
       State‘s Exhibit 284 at 17:28.


                                        46
            C: The only thing that‘s got me suspicious and I talked to one
     of her friends tonight that used to work with her at NTCT in Corinth, I
     asked her that same thing. She said, ―I don‘t know, I couldn‘t tell
     you.‖ But the only thing that‘s kinda had me suspicious, when she
     filed was that she never would let the cell phone bill come on
     through the mail. I don‘t have a cell phone. She‘s got one and my
     daughter‘s got one.52

           [M:] Do you know her cell phone number?

           [C:] Yes, I do.

           [M:] You tried calling her since this disappearance?

           [C:] Oh, yeah.

           [M:] Have you left messages for her?

           [C:] Yeah.53 She paid it online. And I tried to get into it one
     time before she moved out, and it‘s password protected. I never did
     call AT&T. And I asked her why she didn‘t send that bill through the
     mail and she said it is easier to pay it online.54

           [M:] How many times you tried to call her since she
     disappeared?

           [C:] Gosh, I don‘t know.

           [M:] You left her a lot of messages on her cell phone?

          [C:] Not really that many messages.         We just called; my
     daughter‘s called.55


     52
       State‘s Exhibit 284 at 19:22.
     53
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Charles says calls Kathy 1.wmv.‖
     54
       State‘s Exhibit 284 at 19:41.
     55
       State‘s Exhibit 284 at 20:32.


                                       47
           [M:] What did you tell her on the messages?

           [C:] Said once, we wanna know where you‘re at.56 As I said,
     we may have been a little late in callin‘, but we just kept thinking
     she‘d come home. And then I got to thinking you know she left that
     car there to show me I‘ve left like I said I was.

           M: At the very worst if things don‘t go her way, and they go
     your way, she would get half a million dollars.57 Did she say
     anything about looking for houses?58

           C: [Shook head.]

          M: Was there ever any mention that if you would buy her a
     house that would settle everything?

          C: On the start she did. On the start she said, ―Buy me a
     house.‖ I said, ―Where?‖ She said, ―I don‘t know, maybe I can build
     one out here.‖ And I said, ―Why would you divorce me and build a
     house out here by me?‖ That didn‘t make any sense to me.59

           M: Does she have family around here?

           C: No. She‘s from Gatesville.

           M: Does she have a brother in Fort Worth?

           C: Yes, Chris.

           M: Did you ever call him?




     56
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Charles says calls Kathy 2.wmv.‖
     57
       State‘s Exhibit 284 at 21:55.
     58
       State‘s Exhibit 284 at 22:04.
     59
       State‘s Exhibit 284 at 23:17.


                                       48
      C: I couldn‘t find his phone number.60 I just called the older
brother Mark; he lives in Gatesville.

      M: When did you call him?

      C: Today.

      M: You waited a whole week?

       C: That‘s what I am saying. Nobody from down there ever
called me. See she was supposed to go. That‘s what I told you we
kept thinking she would probably come back. But when she didn‘t
go to work this morning and the car was there today and the school
secretary called about 10-10:30. We said she‘s gone. She‘s
definitely gone somewhere.

      M: Where would she go?

       C: The last time she left she went to Granbury and got in a
hotel. She didn‘t want to be bothered.

      M: Do you think she would give up her job that she‘s worked
so hard for because she is mad at you?

         C: You wouldn‘t think so. That don‘t add up.61 Not unless she
thinks she is going to go ahead and end this and she‘s going to have
a little money and she can make it awhile on that.

     M: I talked to the kids, and they said it is not like her to go off
and not tell them where she is going.

      C: Not the kids.62

       M: Your voicemails and stuff she might not pay any attention
to, but your daughter‘s she would.


60
 State‘s Exhibit 284 at 23:35.
61
 State‘s Exhibit 284 at 25:04.
62
 State‘s Exhibit 284 at 25:36.


                                  49
            C: Right.63 I got real alarmed at first, and then I just thought,
     you know, I just didn‘t want to get everybody in a panic.64 I guess
     nowadays you just don‘t take no chances.65 With anything. But
     knowing her and the way she is, I just thought maybe she‘s trying to
     put a scare in everybody. But I can‘t see putting the kids in a scare
     like that.

           M: Charles, let me tell you where we‘re at.66 Basically, you‘re
     the last person to see her. She goes out to your house at night.
     Going through a divorce, she‘s fixin‘ to take half of what you have
     [Murphree lists items]. And you‘re out in the middle of nowhere;
     she‘s not going to walk away from there. She‘s not going to leave
     on foot. So if she left with someone, she had to pull back in that
     driveway in there, someone had to pull in there to get her, open
     doors, shut doors, and leave without you hearing anything.

           C: Yeah, and that very well could have happened.67

           M: What about your dog out there? Would he bark?

           C: No he don‘t bark. I sleep on the south end of the house,
     and I‘ve always, well here with the weather, I‘ve got my roaring fan
     going.68

           M: Let me tell you another thing. There‘s no voicemail
     messages from you on her cell phone. You haven‘t called one time
     since she disappeared.

           C: Well I dialed it several times.

     63
       State‘s Exhibit 284 at 25:46.
     64
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Charles alarmed at first.wmv.‖
     65
       State‘s Exhibit 284 at 26:02.
     66
       State‘s Exhibit 284 at 26:19.
     67
       State‘s Exhibit 284 at 27:20.
     68
       State‘s Exhibit 284 at 27:33.


                                        50
       M: That‘s not what you told me. You told me you left
messages.69 You told me you called her and you haven‘t. The only
time you got worried about her is when the police came out there to
talk to you.

       C: I guess I done hung the phone up. But I thought I said one
time, ―Where you at?‖70 How many times has it been called?

       M: It‘s been called a lot . . . . [Ranger Murphree lists the
individuals who called Kathy‘s cell phone.] I‘ve listened to the voice
messages, but you have not called her one time. Either one, you‘ve
made a mistake or you‘re lying to me.

      C: I‘m not lying.71

       M: Either she goes out there and . . . . Let me tell you what it
looks like from my point of view. You take your son and get him out
of the house, and she comes over there to talk about a divorce
where she is going to take half your stuff, that we‘ve talked to other
family members and stuff and you weren‘t real happy about that, the
prospect of losing your money and your place. And she‘s in the
middle of nowhere, and now she‘s disappeared off the face of the
earth.

      So here‘s the deal Charles, if something got out of control and
you snapped, that‘s one thing. But if you planned that thing out and
planned it for a long time. I don‘t think she‘s alive Charles.72

      C: You don‘t think so?

       M: No I don‘t. And I think you know that too. You were the
last one to see her alive.


69
 State‘s Exhibit 284 at 27:55.
70
 State‘s Exhibit 284 at 28:13.
71
 State‘s Exhibit 284 at 29:22.
72
 State‘s Exhibit 284 at 30:11.


                                  51
           C: Yes sir.

           M: So tell me what happened.

          C: I don‘t know. That is it. That is all I can tell you. 73 But I
     thought I did call her once.

            M: Charles you haven‘t called her. You haven‘t made one call
     to her phone.

           C: From the house.

           M: Listen Charles, I‘ve seen them. We got the records. Her
     brother knew the password. I‘ve been listening to your daughter
     bawling on the messages. So tell me what happened out there. If
     something went crazy. It‘s not making any sense Charles.

           C: Well that‘s all I can tell you.

           M: We‘ll find her. It‘s not looking good Charles.

           C: I know it‘s not. Cause I told mom tonight,74 whether she
     planned that to make it look like I‘m some bad guy75 or something.

           M: That doesn‘t make any sense—she‘d walk away from her
     kids and $500,000 to make you look like a bad guy.

           C: But she didn‘t want to do it that way.76

          M: She didn‘t want to do it your way. That‘s why she walked
     away?



     73
       State‘s Exhibit 284 at 30:38.
     74
       State‘s Exhibit 284 at 31:21.
     75
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―To make me look bad.wmv.‖
     76
       State‘s Exhibit 284 at 31:38.


                                         52
          C: No, because I told her I‘d get a lawyer. I‘ve never laid a
     hand on her. And we‘ve never had––

           [M:] You‘ve never laid a hand on her, ever? I know more than
     what you think I know.

             [C:] Well one time when I was leaving to go to work, and no
     tellin‘ what she told her, she grabbed me77 and I grabbed her like
     this, and I guess I squeezed her arms and it left some bruises on her
     arm and the kids was there and they saw that.78 But as far as a
     knock down drag out, no sir. And I have dialed that number from the
     house several times.79 I am devastated.

           M: You don‘t look devastated. You don‘t sound devastated.
     You‘re devastated enough to wait a week to call somebody. And
     you haven‘t called nobody. Somebody called you.

          C: I know something was wrong when she didn‘t show up for
     school, when the school secretary called.

          M: A while ago you thought she just went off somewhere, but
     now you think something‘s wrong.80 Which is it?

           C: I don‘t know if she is in a motel or not. What do you think?

           M: I‘m asking your opinion.

            C: I don‘t know. I wish I knew if she was in a motel or if she
     was in trouble. But I do know that she did not leave that car there
     and walk away.81 Somebody had to come in there.82 I‘m just saying
     in the past, she‘d get in those moods and have to get away.
     77
       State‘s Exhibit 284 at 32:11.
     78
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Domestic violence.wmv.‖
     79
       State‘s Exhibit 284 at 33:23.
     80
       State‘s Exhibit 284 at 33:58.
     81
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Kathy not walk.wmv.‖


                                         53
       M: So, she leaves your house and she is five minutes from her
house and she decides to meet with someone and she leaves her
car at your house.83 She won‘t answer her daughter‘s calls.

      C: Right. And did they find out if she picked up any clothes?

      M: No clothes. Her purse is gone, that‘s it.

     C: I do not know what to tell you. I can just tell you what has
happened in the past.

       M: And see I find it rather hard to believe too, that this thing is
so docile is what you are trying to tell me. You‘re out there talking
about divorce and half your shit disappearing and you‘re out there
talking, there‘s no harsh words and everything is all cordial.
Someone‘s been married twenty years and gonna lose half the stuff
they‘ve worked for, ain‘t nothing cordial about that. And you don‘t
know why. And you‘re telling me everything is all nice, no harsh
words; there had to be voices raised or something.84 And if
something happened and you snapped, that is one thing.

       C: No because I‘m nearly fifty years old. I‘m know I‘m
probably not going to live a long life, my dad died when he was sixty-
five. And what we‘ve accumulated, I wasn‘t going to fight it.

      [M:] That‘s not what I hear from everybody else I talked to;
everybody else says you‘re not going to let go of your money.
You‘re gonna fight for your money.

      [C:] She knows––and she‘s told her parents, that‘s all I live for
is my money.85 But she didn‘t spend much money, and we wasn‘t
big spenders.86


82
 State‘s Exhibit 284 at 34:34.
83
 State‘s Exhibit 284 at 34:56.
84
 State‘s Exhibit 284 at 36:04.
85
 State‘s Exhibit 284 at 36:38.


                                   54
           M: You said ―she knows‖ and she told her parents. Does that
      mean that all you care about is your money?

            C: No sir.

            M: You said that‘s what she knows, you didn‘t say that‘s what
      she thinks.87

           C: I know that‘s probably what she told her parents.88 We just,
      we saved; we wasn‘t big spenders.

             M: See, here‘s the problem I have. I‘m getting a divorce and
      it‘s amicable and it‘s fine and it‘s great and no one is yelling at
      anyone and I wake up and my wife‘s car is there and I‘m thinking
      something is wrong, I‘m calling the police. And you didn‘t call
      anybody, not even her.89 And now, all of a sudden the police show
      up, the school calls, and now all of a sudden you‘re concerned about
      her. Smooth, I‘m going to call; not smooth divorce, I‘m going to call
      because holy crap, they‘re gonna think I did something. You haven‘t
      done anything for a week Charles.

             C: I kept thinking she was coming back. I just didn‘t get that
      alarmed at first.90 If I hadn‘t of known, the way she does get
      sometimes, and what‘s happened in the past, I guess it would have
      been different, but I was more mad than worried. I told Charee, I‘m
      more mad than I am scared. That‘s the reason I didn‘t go right in
      there and call the cell phone.91 Her leaving that car setting there like
      that, she probably, most likely had to have left with somebody. She
      86
       State‘s Exhibit 284 at 36:52. The underlined words constitute the entirety
of the clip from State‘s Exhibit 312 that is titled, ―$ importance, not big
spender.wmv.‖
      87
       State‘s Exhibit 284 at 36:58.
      88
       State‘s Exhibit 284 at 37:05.
      89
       State‘s Exhibit 284 at 37:58.
      90
       State‘s Exhibit 284 at 38:58.
      91
       State‘s Exhibit 284 at 40:03.


                                        55
      had to leave with somebody. She didn‘t park that car there and walk
      off of that hill.92

            M: What‘d you do? You‘re mad. What‘d you do?

            C: I didn‘t do anything.

            M: Charles, I‘m going to find her.

             C: The gas man came that morning about 10 a.m., and I was
      out of it. I didn‘t know what to think. I don‘t know. I do not know.
      But I think she is with somebody. And I don‘t know why she wanted
      to do it that way except to get me riled up. Because she didn‘t get
      me riled up. And she could have told me over the phone, but she
      wanted to come out there to get me riled up. But I didn‘t get riled up;
      she got riled up. And it don‘t make no sense, but that is exactly what
      happened.93 If I was twenty or thirty years old, I might have more
      spunk to get hotheaded; but the way she always was, if I was going
      to go buy a piece of equipment or something, I would ask her, and
      then two or three days later she would come back and say, ―Why
      you do that? You shouldn‘t have done that.‖94

             And then the last thing that really upset her before she filed for
      divorce and I found out afterwards, but she told my sister-in-law. But
      my daughter had a wreck in this blue Lincoln car that we‘ve had
      since 1991. And when she got her driver‘s license, I give it to her,
      and she got in a wreck and tore the car up pretty good. We brought
      it home, and I asked her, ―Should I get it fixed?‖ And she said, ―I
      don‘t care.‖ And so I decided to fix it. I took it to Dulocks in
      Gainesville.95 And I fixed it. And then I brought it home. And of
      course I cancelled the insurance on it after the wreck. And I just told
      her no one is driving it for now. I didn‘t put the insurance back on it.
      It probably hasn‘t been drove fifty miles since then. It‘s sitting in the

      92
         State‘s Exhibit 284 at 40:01. The underlined words constitute the entirety
of the clip from State‘s Exhibit 312 that is titled, ―Kathy not walk off hill.wmv.‖
      93
        State‘s Exhibit 284 at 41:57.
      94
        State‘s Exhibit 284 at 43:11.
      95
        State‘s Exhibit 284 at 44:22.


                                         56
     garage.96 And I think that is what was eating on her when she filed
     for divorce. She told her sister-in-law that she couldn‘t understand
     why he got that car fixed and let it sit in the garage. She got
     steamed but didn‘t tell me that. She told her sister-in-law after she
     moved out.97

           K: You said she got riled up out there at the house. How was
     she acting?

           C: She -- just when she stood up and got kinda red faced.

           K: How do you act when you get riled up? Do you raise your
     voice? Different people act different ways.

           C: I guess I have raised my voice some. But I didn‘t that night
     because I said I‘m gonna contest it, I‘m gonna get a lawyer, and I
     want this done, split right down the middle.

           K: In the past, how long did she stay gone?

           C: Three days, and two days.98

            K: You know, she‘s got some pretty good friends that she talks
     to a lot. She‘s made no phone calls.99 Zero. There‘s no messages
     from you.

           C: I thought I said once, ―Where you at?‖

          K: The car was near the garage that morning, what did you
     do? You got a lot of buildings out there.

           C: Yeah, I got a hay barn, oat barn, kind of a shop.


     96
        The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Don‘t drive car in garage.wmv.‖
     97
       State‘s Exhibit 284 at 45:33.
     98
       State‘s Exhibit 284 at 46:43.
     99
       State‘s Exhibit 284 at 47:11.


                                       57
           K: So between the time you found her car and the gas man
      came around 10, what did you do?

            C: I just messing around, I guess.

             [M:] Charles, I have a hard time believing that she is going to
      be pissed off at you because you want to split the land up and split it
      all up even.100 The -- the options she has on this paper that she
      typed up, one is to sell everything and she is willing to do that. I find
      it hard to believe that she is going to be so mad at you when she
      took the time to type this up and one option is to sell all.

              [C:] She did not want to do it that night when she come out
      there because that is exactly what I said I wanted to do. But she
      said she did not want to split and that was after she went to the
      lawyer. She told me the option the way she wanted it after she went
      to the lawyer. And that was not selling all of it.101 She did not want
      to sell the land. I‘ve not seen anything she typed up.102

            M: Here‘s where we stand right now . . .

           C: This is when they filed the divorce and served me the
      papers.103

            M: It looks like she asks her lawyer what to do . . . because
      you wouldn‘t show up. And she typed this up to try to get an
      agreement, and the option was half of the market value. She is not
      going to walk away from $500,000. Here‘s the deal. I don‘t think
      she‘s alive. I‘ve done this for too long.

      100
        State‘s Exhibit 284 at 48:47.
      101
        State‘s Exhibit 284 at 50:52.
      102
         State‘s Exhibit 284 at 50:55. The underlined words constitute the
pertinent portion of the clip from State‘s Exhibit 312 that is titled, ―Options
document 1.wmv.‖ This is the longest of the clips, running one minute and fifty-
five seconds. The State used this clip in an effort to show that Charles had seen
Kathy‘s options document, so only that portion of the clip is set forth here
because of the clip‘s length.
      103
        State‘s Exhibit 284 at 51:23.


                                         58
            C: She‘s got to be.

              M: If when I find her, things got out of hand and some things
      happened that you wish hadn‘t a happened, that‘s one thing, but if
      this thing is premeditated out and planned, that‘s another thing.

             [C:] What does she got on there [The options sheet Murphree
      is reading from]?

             [M:] I told you Charles, options of division: option one––divide
      105 acres into two 52.5 parcels of land; that‘s one option she‘s
      willing to make.104 The other one, she wants the house and front
      and back yard and the front acreage with the tank, update the house
      as previous requests before moving in with access and privileges to
      all barns and equipment. Option three, half the market value of land
      and improvements and equipment, and option four, buy her a house
      worth between $200,000 and $300,000, and she will be satisfied.

           C: She did not want to sell it.       Don‘t ask me why, I don‘t
      know.105

            M: I‘m going to be talking to her lawyer in the morning. When
      her lawyer tells me, ―Oh yeah, she‘d be happy to take half of the
      value of everything,‖ that‘s going to blow your story up.106

             C: That is what she said. . . . I don‘t know why she didn‘t want
      to sell the whole thing and split it in half so it would just be equal to
      both of us.




      104
        State‘s Exhibit 312, clip titled, ―Options document 2.wmv.‖
      105
        State‘s Exhibit 284 at 53:53.
      106
        State‘s Exhibit 284 at 54:15. Ranger Murphree conceded on cross-
examination that, after he interviewed Charles, he found out that in fact Kathy did
not want to sell everything and split it down the middle; she wanted the land for
Tommy. Kathy‘s divorce lawyer also testified that Kathy did not want to sell the
land.


                                         59
            M: I understand from talking to some folks you didn‘t want this
      divorce, and you were fighting tooth and nail to keep her from
      leaving.

            [C:] That‘s right.107

              M: She gave you the ultimatum and she said this is the way it
      is -- it is going to be, it‘s over. Did it piss you off? It‘d piss me off.
      You have to see it from my point of view Charles. You‘re telling me
      you offered her a half a million dollars, and she got mad, walked out
      of that house, and drove off. And all of a sudden her car is back.
      And you are not concerned enough to call anybody.

            C: I was going to talk to her family today first.108

            M: After the school called you and the police showed up.

            C: I know it don‘t look good. But I‘m just saying, I hadn‘t heard
      anything from them. I finally got ahold of Mark on his cell phone. I
      told Charee to go to the house to get some phone numbers. Charee
      stopped by the police station to report her missing because I said I‘m
      gonna call Mark, then we‘re going to report her missing.109

             M: No one‘s heard from her after you talked to her, not her
      family, her children, not her friends.

             C: That don‘t make no sense. You gotta find her. You gotta
      find her.

            M: Where is she? Tell me where she‘s at. Let‘s get this over
      with. Where is she? You‘re gonna feel better. Tell me what
      happened if things got out of hand; I can understand that. Tell me
      where she‘s at.

            C: I do not know where she‘s at. I don‘t know where she‘s at.

      107
         The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Charles not want divorce.wmv.‖
      108
        State‘s Exhibit 284 at 57:18.
      109
        State‘s Exhibit 284 at 58:40.


                                         60
      K: Is she on your property out there Charles?

       C: No, at least I didn‘t see her. I walked it all. I walked all
over it.

       K: Let me just tell you my point of view. There is quite a few
deceptions in what you‘re saying. Knowing the court system, they
notify you when it‘s time to go to court. They have to; it‘s a legal
process.

      C: Nobody ever––

      K: Let me talk. There‘s some concerns of mine. This car
being there. You not taking any action. You saying you don‘t know
what you did between when you found the car and the gas guy
showed up, and now you‘re saying you walked all over the property;
I don‘t think you‘re being truthful with us. I think you‘re holding
something back.110 You‘re going through a really, really tough time.
This divorce is not an easy deal. I don‘t think you‘re being truthful
with us, but we will find her. And I think you know something that
you‘re not telling us. Now is the time to tell us. We‘re going to
search and search, and we‘re going to find her.

      C: I want you to find her.

      K: If there was voices raised in the house, if there was a
disagreement, now is the time to tell us.

      C: No, there was none of that.

      K: So, she just gets in her car and leaves, drives down the
driveway.

      C: Yes, sir.

      K: What did you do?

      C: I went on to bed.


110
  State‘s Exhibit 284 at 1:01:13.


                                    61
         K: Did your daughter call you the next day?

       C: She came up about the time the gas man was there or right
before. I said, ―Is mom down there?‖ And she said, ―No.‖ I looked
around there; she wasn‘t there. She did not park that car and walk
off of here. She had to leave with -- left with somebody.

         K: Is it normal to leave the keys in the car?

      C: Up there we do. The madder I got . . . I thought what is
this. I had just told her -- and did not get upset or anything -- I
wanted to split everything. It is enough money for me to get a
house. I want to split it half and half, and that‘s when I told her I was
going to contest it. And I think that when I told her that I was going
to contest it, that is when she got ruffled. And when I was thumbing
through those papers and saw that restraining order, I couldn‘t
believe it. I didn‘t read it; I just took it to mean that I had to stay
away from where she was living.111 Is that true?

         K: That‘s pretty much it.

         C: And that‘s why I never got out of the car when I went down
there.

      K: Here are some notes about the divorce in her writing. Her
lawyer told her they could get a default judgment for failure to
respond.

      C: She went to the lawyer on Tuesday; she told me she was
going to get it straight how she wanted it. And I said, ―Are you going
to     pretty      much      get   that      etched      in    stone?‖
And she said, ―Yes.‖

      K: Would you have a problem with us looking on your
property?

         C: No sir.112


111
  State‘s Exhibit 284 at 1:05.
112
  State‘s Exhibit 284 at 1:07:35.


                                     62
            M: Your house, your barns, your pickup?

            C: There‘s nothing there though.

           [K:] I just have a hard time with her walking away from the
      house—

           [C:] She didn‘t walk away113 from there. No, she didn‘t walk
      away from there; no, there‘s no way.114 What kinda calls has she
      made before?

            M: How did y‘all get along last Christmas, of ‗03?        How‘s
      things going then?

            C: I don‘t know.

            [M:] She made a few notes about it: Charles off for a week at
      Christmas, didn‘t do anything with us or the kids, Charles got upset,
      Charles didn‘t want anything for Christmas, did not want to buy me
      anything. Doesn‘t sound like a marriage where you‘d be shocked if
      somebody decided to file for divorce.

            [C:] We never did buy anything for each other, the kids—

            [M:] She is writing this stuff down.

             [C:] She was always writing stuff down like that and leaving
      notes in the house.115 What we always done for Christmas, I went
      with the kids and picked out stuff for her from them, and we‘d call it
      from the kids.116 And then she‘d take the kids and they‘d get stuff for
      me and we‘d call it from the kids.

      113
        State‘s Exhibit 284 at 1:08:04.
      114
         The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Kathy not walk away.wmv.‖
      115
         State‘s Exhibit 284 at 1:09:55. The underlined words constitute the
entirety of the clip from State‘s Exhibit 312 that is titled, ―No Christmas
presents.wmv.‖
      116
        State‘s Exhibit 284 at 1:10:12.


                                          63
        K: Did you look to see if her purse was in her car?

       C: I looked in backseat, in front, I opened the trunk, and that
was it.

        M: Did you work last Thursday through Sunday?

       C: No. I had to go in and get everything going today. The
plant closed, had to go in and start the equipment.

        M: Did you do anything to try to find her?

      C: I didn‘t leave no messages. I just figured she would come
back putting a scare in me to make me say, ―Hey, okay, we‘ll do it
your way.‖117

        M: Do you still think that? She would put her kids through
that?

        C: She wouldn‘t do that to the kids, not this long, no.

        M: So you think something‘s happened now?

      C: I think she‘s with somebody or something happened.118
She did not park that car there and walk off—

       M: Even if she was with somebody, she would probably call
her kids, huh?

        C: You would think so. I would think so.

        K: Unless somebody hurt her, right?

        C: Uh huh.

        M: You think that‘s possible?


117
  State‘s Exhibit 284 at 1:12:06.
118
  State‘s Exhibit 284 at 1:12:46.


                                    64
      C: It‘s looking that way, in my book.

      M: My book too.

       C: I mean, I‘ve never done anything against the law. I grew up
there out on that dairy, and we worked all of our life. And she used
to get pretty PO‘ed at me. I liked to work. I was like my dad; I didn‘t
really care to go anywhere. I wasn‘t real big on vacations. We‘d
take one vacation in the summer. And I wasn‘t a big spender, and
she wasn‘t a big spender.119

      M: Growing up, did you have money?

      C: Not really.

      M: Were you poor?

      C: We was pretty hard when I was little.

      M: You worked hard for your money?

      C: Yes.

       M: You‘re a good ol‘ Cooke County boy, got a million dollar
land, that‘s pretty damn good.

      C: That‘s why I wanted to split it equal.

      M: How much work did she do to get that land?

      C: She helped me, like what?

      M: She didn‘t have a job, did she?

      C: Yeah, she‘s always worked.

      M: Where‘d she work before?

      C: She‘s had several jobs before, at the college, and she
helped me out there on the farm.

119
  State‘s Exhibit 284 at 1:13:51.


                                    65
      M: You got any home place in Cooke County where you were
raised?

        C: Yes, where I was raised, about 350 acres.

      M: How much of that is yours? Is your mom still living? Does
your wife own some of that?

        C: Nothing was ever said about that.

        M: When was the last time you were on that land?

        C: New Year‘s Day, Saturday about 12:30.

        M: P.M.? During the day?

        C: Yes.

        M: How long did you stay?

        C: Till about 2.

        M: What did you do while you were there?

        C: Eat lunch. Kids went with.

      M: Didn‘t go up there any other times after Christmas till
today?

      C: [Shook head no.] I don‘t know. I was up there Christmas.
Take a load of round bales up there, I think the day after New
Year‘s. No, I took a load of ten round bales up there the day after
lunch on New Year‘s Day.

        M: How come didn‘t take the round bales with you when you
went?

      C: We didn‘t have time to get it loaded up, hooked up and
loaded up.




                                    66
      K: Where‘s that land at?120

      C: It‘s off Spring Creek Road off Wolf Sterring.

      M: What kind of lands is it out there?

      C: It‘s got a creek that runs through it. My property doesn‘t
have a creek or trees. It‘s all open land. My land where I grew up,
the home place, it‘s on both sides of Spring Creek Road, and it‘s got
a creek that runs through it.121

      K: How can you help us find your wife?

       C: I wish I knew. That is why I am asking you what kind of
calls she made before?

      M: To her friends, different people, nothing unusual. Charles,
I‘m going to ask you two things.122 I know you already gave us
permission to search your place. I‘m gonna search your house, your
vehicles there, your outbuildings there, and your land. You have any
problem with that.

      C: No, I sure don‘t.

      K: Are you nervous right now?

      C: Not really. But you‘re sitting there telling me you think I
done something with my wife.

      M: What would you be thinking if you were sitting in this chair
over here? Here‘s what I know.123 Here‘s what I know to be facts.
You‘re going through a divorce that you don‘t want. True?

      C: That‘s true.

120
  State‘s Exhibit 284 at 1:19:32.
121
  State‘s Exhibit 284 at 1:20:41.
122
  State‘s Exhibit 284 at 1:21:26.
123
  State‘s Exhibit 284 at 1:22:28.


                                    67
      M: I know that, at best, your divorce is in your own estimation
going to cost you about a half a million dollars. True?

      C: That‘s true.

      M: I know that you took your son into town who is usually with
you. True?

      C: Yes.

      M: I know that you didn‘t go up and talk to her or knock on the
door then or ask your son to tell her to come out to talk to her to ask
her those questions; you went home and called her. True?

      C: Yes, and I didn‘t ask her to come out there.124 I just called
to ask her to tell me on the phone—

      M: Regardless of how that conversation went, she came out to
your house, and there was only two people there. You and her.

      C: That‘s correct, yes.

      M: She leaves, and all of a sudden her vehicle ends up back
at your house.125 True?

      C: Yes.

     M: And you would agree with me that it‘s highly unlikely that
she would walk away from your house and walk anywhere.

      C: Yes.

     M: And five days have passed and you haven‘t contacted
anybody. True?

      C: That‘s true. And like I say, that‘s what I told Mark tonight—


124
  State‘s Exhibit 284 at 1:23:02.
125
  State‘s Exhibit 284 at 1:23:26.


                                    68
             [M:] So, with all of that, if all that is true, and you are sitting in
      this chair, what would you be thinking? If you were sitting in this
      chair right here, what would you be thinking?

            [C:] You probably be thinking hey, this guy here done
      something with his wife.126 And I thought that immediately when I
      saw that car sitting there; man, she is trying to make me look like I‘m
      some kind of a ----.127

           M: So you immediately thought when you saw that car that
      she was trying to get me on something?128

             C: Well no, no, but after I kinda calmed down from being mad,
      I kinda thought, boy this looks real good. But then I kept thinking,
      and I told the kids, ―No, she‘ll come home.‖ She just wants me to get
      the car fixed. That‘s just a hint for me to get that car fixed.129
      Because she wasn‘t going to get it fixed.

            M: So she‘s got a leaky window in her car; in order for to fix it,
      she is going to walk away, or leave with somebody, pick her up, and
      not call her kids or her family. That‘s your theory.

              C: Well, that‘s just what I was thinking right there at the very
      start.130 I didn‘t know what to think. And then after a couple of days
      went by, I thought, nah. Like I say, I was mad more than anything.
      Cause I knew she didn‘t, she didn‘t walk back to the house.

             [M:] I agree with you, not when she has a perfectly good car
      right there.

      126
         State‘s Exhibit 284 at 1:23:56.
      127
         State‘s Exhibit 284 at 1:24:13. The underlined words constitute the
entirety of the clip from State‘s Exhibit 312 that is titled, ―Car to make me look
bad guy.wmv.‖
      128
         State‘s Exhibit 284 at 1:24:15.
      129
          State‘s Exhibit 284 at 1:24:30. The underlined words constitute the
entirety of the clip from State‘s Exhibit 312 that is titled, ―Car hint to fix car.wmv.‖
      130
         State‘s Exhibit 284 at 1:24:49.


                                           69
            [C:] No, she didn‘t walk. No.131 That‘s all I know, that‘s all I
      can tell you.

            M: A couple more facts. Since she‘s been at your house she
      hasn‘t made one phone call. Highly unusual.

            C: Yeah, it is.132

            M: Charles, did you hurt or kill Katherine?

            C: No, I did not.

           M: You‘re not under arrest here. You drove up here in your
      own car.

            C: Yes sir.

            M: We haven‘t had any handcuffs on you or nothing like that.

           C: No sir, no sir.133 I mean, to me, my word oughta be good
      enough for y‘all in here right now.

              M: Well, unfortunately, I don‘t know you from Adam, Charles.
      Here‘s the deal: your wife‘s missing, she hadn‘t made any phone
      calls, she hadn‘t called her kids, she didn‘t show up for her job,
      you‘re going through a divorce, you‘re about to lose half a million
      dollars, and you‘re the last person to see her. And I‘m supposed to
      take your word that everything is kosher? Okay Charles, go home
      and go to bed and maybe she‘ll show up? Would I be doing my job
      if I did that?

            C: No, no you wouldn‘t.



      131
         The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Kathy did not walk away.wmv.‖
      132
        State‘s Exhibit 284 at 1:25:55.
      133
        State‘s Exhibit 284 at 1:26:14.


                                          70
           M: I damn sure wouldn‘t. All I got to go by is you‘re the last
      person to see her, and her car is at your house.

            C: I know that.

            M: She‘s divorcing you, and she is about to take you for half of
      everything you‘ve got.134

            C: I know that.

            M: People kill for a lot less.

            C: Oh gosh, I wouldn‘t kill for any amount of money.

            M: In a fit of rage sometimes there‘s no telling what people will
      do.

           C: That‘s why I just wanted to split everything half and half. I
      wanted to get rid of all of it.

            [M:] But according to you, that‘s not what she wanted.

            [C:] No, she didn‘t want to split it in half; I don‘t know why.

            [M:] But the papers we got off her computer shows that was
      an option.

             [C:] Yeah, I know, like I told him, I haven‘t seen those papers;
      I‘m just going by what she told me she told the lawyer. 135 She told
      me exactly what she wanted. She didn‘t bring no papers into the
      house. And I said, ―No, I want to split it down the middle and sell
      everything.‖

             M: When we get on her computer and show that she typed up
      those papers on the 28th, that‘s going to shoot down your story
      pretty good.


      134
        State‘s Exhibit 284 at 1:27:19.
      135
         The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Options document not seen.wmv.‖


                                             71
            C: I can only tell you what she told me. She told me exactly
      what she wanted: 55-acre tract, half of the machinery, most
      everything out of the house, and I would pay child support. 136 And I
      said no, I wanted to split it down the middle and sell everything.

              Because I had told her once, we was talking about it one time,
      I guess while I was changing the oil on the car, she asked me one of
      those times I was changing the oil would I ever sell all of it, and I
      said, ―Oh, probably not.‖ And she said, ―Nah, I don‘t want to sell
      it.‖137 And then I just, at the last I just thought you know, I am almost
      fifty years old, fixin‘ to be, and if you‘re not going to be here to help
      me, I don‘t need this place; let‘s just sell it all and split it. I‘ve
      worked, she‘s worked,138 she‘s helped me. And at my age, it‘s
      enough. I‘ve never had a lot of money. It‘s enough. I can go buy
      me a house. It‘s fair and equal. It‘s even Steven. I don‘t think I
      deserve any more than she deserves. I mean twenty years, we‘ve
      both worked and helped each other. And anybody married twenty
      years, that‘s hard to end it.

            K: And that‘s another reason to be honest with you what
      doesn‘t look good for you. Everything‘s kinda stacked against
      you.139

            C: I know that. But you gotta look at this, after twenty years,
      what would you say? Would you want to just say half and half after
      being married all those years? I‘m not the type after twenty years,
      stand up there and say, ―I‘m better than you.‖

               K: Honesty is the best policy to operate with. And that‘s how I
      do my job. And I can‘t imagine what you‘re going through. Twenty
      years of marriage for it just to be ended just like that. And it‘s over.
      It‘s in the court system. . . .


      136
        State‘s Exhibit 284 at 1:28:24.
      137
         The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Charles not want to sell land.wmv.‖
      138
        State‘s Exhibit 284 at 1:29:26.
      139
        State‘s Exhibit 284 at 1:30:47.


                                          72
             C: And I‘ve had all these months to realize that is going to be
      the end. I‘m a very particular person. I always took care of my
      vehicles very well.140 I worked at my job for twenty years. You can
      ask anybody down there. I do everything 150 percent. I‘m always
      there. I‘ve never got into it with anybody. I‘m an A number 1, I
      guess. They think a lot of me down there. And that‘s just the way I
      grew up. I grew up to be honest. I never been in -- got any kind of
      trouble other than a couple of speeding tickets back when I was a
      youngster.

            [M:] This dragged on through the summer. Did you think she
      might be coming back home? Changed her mind?

             [C:] Oh, I didn‘t really know.141 I didn‘t really know. Because I
      told her, you know, ―You need to come on back.‖ And I said, you
      know, because she was always wanting to do something to the
      house, to improve it.142 And I said, ―You come back, we‘ll just tear
      down that house and build a new one. You know, I always put you
      off and said, ‗Hey, I don‘t want to do a lot of stuff to the house 143
      when the kids are little, tear it up. You know, we‘ll wait til the kids
      are older, and we‘ll either remodel or we‘ll build a new house.‘‖ And
      I told her one time during the summer, you know, ―You just come
      back home.‖ I said, ―We‘ll remodel that house or just tear it down
      and build a new one and you can call all the shots.‖ And she said,
      ―You won‘t do it.‖144 And I said, ―Yes I will.‖ I said, ―Yes I will.‖ It
      wasn‘t like we never did have no money in the bank account; the
      money was always there. And she wouldn‘t ever spend it. And I‘d
      tell her, ―Hey, you can do this,‖ but she wouldn‘t do it.145

      140
        State‘s Exhibit 284 at 1:31:34.
      141
        State‘s Exhibit 284 at 1:32:30.
      142
        State‘s Exhibit 284 at 1:32:46.
      143
        State‘s Exhibit 284 at 1:32:54.
      144
        State‘s Exhibit 284 at 1:33:25.
      145
         State‘s Exhibit 284 at 1:33:53. The underlined words constitute the
entirety of the clip from State‘s Exhibit 312 that is titled, ―Charles wanted to
reconcile.wmv.‖


                                          73
       M: What‘s your zip code out at the house?

       C: 76266. [Ranger Murphree leaves the room.]

       K: You gotta see where we‘re coming from, okay.

       C: I see where you‘re coming from.

      K: . . . And if we‘re wrong, we‘ll be the first people to come to
you and say, ―Hey, here‘s your wife.‖ And if we‘re wrong, we‘ll
apologize to you. But I don‘t think we‘re wrong. Something is not
adding up.146

      C: I know what it looks. But I just kept thinking she‘s come
      147
back.    The reason I didn‘t get in a hurry about getting everybody
alarmed. I didn‘t want to get everybody alarmed. I just thought she
would come back.

       K: But now everybody is alarmed, pretty seriously alarmed.

       C: Yes, they are.148 And I‘m even more alarmed.

       K: Rightfully so, you probably oughtta be.

     C: But after she called this morning and she didn‘t go to
school and I got up and saw that car sitting out there, I said, man.

      K: But you saw the car sitting out there the day after you had
your talk, though, right?

      C: Yeah, but that didn‘t hit me as like a panic, like something
you know had happened to her. But when she didn‘t go to work, I
come more thinking maybe something did happen to her this
morning when she didn‘t go to work.


146
  State‘s Exhibit 284 at 1:34:55.
147
  State‘s Exhibit 284 at 1:35:00.
148
  State‘s Exhibit 284 at 1:35:10.


                                    74
      K: Do you normally come home from work after you get
there?149 Or do you stay for your whole shift? How does that work?
You work the first shift or the third shift? So are you a supervisor?

      C: No, I didn‘t take the supervisor‘s job; they wanted me to just
six months after I started.

      K: So is it normal for you to get things started and leave, come
back home?

      C: I can; like tonight, I just come back.150

      K: What made you come home tonight?

      C: I didn‘t want them kids, I knew they was upset.

       K: They‘re real upset. They think something‘s happened to
their momma. Been talking to your kids out there. They‘re upset;
they‘re hurt. . . . . Those kids know that something is going on.
They can sense it, just like we do. And it don‘t add up. It don‘t add
up.

      C: No, it don‘t.

      K: And that‘s what we‘re trying to get to the bottom of. I just
strongly believe that if she just ran off for a couple of days to get
away, she would have returned those calls on her voice mail. She
would have called her kids. Maybe not to you. She might not have
taken your calls.151 What is your boy, twelve or thirteen? And your
daughter, sixteen, she‘s fixing to be seventeen? The truth of the
matter is something has happened to her.

     C: And152 I just kept telling Charee, ―She‘ll come home; she‘ll
come home. This is -- this is -- either to get my attention or to scare
me.
149
  State‘s Exhibit 284 at 1:35:49.
150
  State‘s Exhibit 284 at 1:36:26.
151
  State‘s Exhibit 284 at 1:37:39.
152
  State‘s Exhibit 284 at 1:38:05.


                                    75
            [K:] I think we‘ve come to an agreement that is not the case
      now though is it?

            [C:] No.153

            M: Have you ever made the statement that you would kill
      yourself before you got a divorce?154

            C: Yeah, I did one time. She got all riled up there one time
      about saying one time there, ―I‘ll leave,‖ and I said if you ever left I‘d
      probably kill myself cause I couldn‘t live.155

            M: Was that before she left or during your talks, or was it
      recent?

             C: Well when she filed those papers on me that morning, I
      was fixing to go -- she knew I was going to have to go in the field to
      harvest. I was fixing to get on the combine, and I said, ―Well what do
      you want me to do? Kill myself?‖ She said, ―No, you won‘t do that.‖
      I said, ―Well, I just as well kill myself if you‘re going to leave here.‖
      But she got mad about something one other time,156 and I told her, I
      said, ―I‘d kill myself if you ever left here.‖

            M: So you told her that a couple of different times?

            C: Yeah.

            M: Were you serious about it?




      153
         The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Kept telling Charee she‘ll be back.wmv.‖
      154
        State‘s Exhibit 284 at 1:38:31.
      155
        State‘s Exhibit 284 at 1:39:00.
      156
        State‘s Exhibit 284 at 1:40:01.


                                          76
             C: Gosh, I‘d have to be crazy to kill myself or kill somebody
      else.157 I‘m not that kind of person. I think there‘s got to be
      something wrong with somebody to take their own life.

           M: Did you ever make the comment that if you got any
      paperwork you weren‘t going to sign it, as far as the divorce went?158

              C: I asked her was I going to get anything in the mail after she
      served me the papers, there probably a month or so after, and she
      said, ―I don‘t know.‖ I think she said she didn‘t know. But I
      remember, yeah, I remember I told her once, ―I ain‘t signing nothing.
      I ain‘t contesting nothing. I ain‘t getting a lawyer. Just take it on, if
      you got to take it on, just take it on.‖159

             M: Here‘s the big difference Charles; there‘s a big difference
      in, ―Hey, do whatever you got to do things are great, da, da, da,‖ and
      ―Hey, I‘m not signing anything.‖160 That‘s a defiant act. That‘s
      saying, ―I ain‘t signing anything; I‘m not going through with this
      divorce.‖ . . . . Were you in denial that a divorce would actually take
      place?

            C: One person can‘t stop a divorce; it‘s going to take place.

           M: Well you can damn sure slow it down. You can damn sure
      cause some heartache.

            C: I guess a person could.

            M: Right after she got a phone call from you at the house, she
      gathered up paperwork and heads out the door. Why would she
      bring any paperwork to you? She‘s going to show you what the
      lawyer said.

      157
        State‘s Exhibit 284 at 1:40:14.
      158
        State‘s Exhibit 284 at 1:40:30.
      159
         State‘s Exhibit 284 at 1:41:12. The underlined words constitute the
entirety of the clip from State‘s Exhibit 312 that is titled, ―I ain‘t signing
anything.wmv.‖
      160
        State‘s Exhibit 284 at 1:41:53.


                                          77
       C: That‘s about all there was to say. That‘s pretty much cut
and dried, exactly what I told you. Unless she wasn‘t telling me the
truth, but she didn‘t have no reason not to tell me the truth because
she‘d already been to the lawyer.

       M: When you got served with the citation on temporary
restraining order and there was a hearing, how come you didn‘t go
to the hearing?161

      C: I never did get no notice for a hearing.

      M: Says right here, temporary restraining order delivered on
6/2, and hearing is on 6/10.

       C: Never did get anything. Oh, I remember; she cancelled it.
She told me she cancelled it because I was in the field harvesting all
there for about three weeks straight.162 And she told me there was
supposed to be a hearing, and she cancelled it. I do remember that.
And I never did get anything or hear anything since.

       K: How can we resolve some of these inconsistencies? 163
These things are not adding up. And you say, ―Yeah, they are not
adding up.‖ How can you help us make those things add up? What
I‘m trying to say is it‘s not adding up to anyone in this room. And you
tell us, ―Yeah, it‘s not adding up.‖ How can we get to a common
denominator here?164 I really feel like you‘re holding something
back. Maybe you don‘t know how to tell us.

      C: No, I‘m not holding back anything; I‘m just worried.

      K: I am worried too.



161
  State‘s Exhibit 284 at 1:43:12.
162
  State‘s Exhibit 284 at 1:43:35.
163
  State‘s Exhibit 284 at 1:44:09.
164
  State‘s Exhibit 284 at 1:44:34.


                                    78
               C: She didn‘t walk away from that car.165

               K: What happened to her Charles?

             C: You‘re going to have to find out. You‘re going to have to
      find out. You‘re going to have to find her. Have you ever run on
      something like this? Could she be with somebody and just vanish
      like that?166

             K: Highly unlikely. Highly unlikely that she is going through
      this divorce and getting all her life in order and planning on getting a
      house. . . .

             Where your house is out there in the country is a distance
      back into town. Even your driveway to the next road is a pretty good
      jog back in there, you know? You yourself said she didn‘t walk back
      to that road. What was the weather that night? Do you remember
      what the weather was that night? On Wednesday.

               C: It wasn‘t raining.

            K: I don‘t remember what it was, but even if the weather was
      nice, somebody isn‘t going to walk down that road, just walk
      aimlessly down the road when they got their car just because their
      window is leaking.167 She‘s not going to leave it there on the day
      she comes to talk to you. I‘m just trying to come to some
      conclusions or something.     My conclusion is something has
      happened to that lady.168

           C: But she went, she left. She left because I saw the car go
      down the drive. But I don‘t know if she went to the left or the right.



      165
         The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Kathy not walk away 2.wmv.‖
      166
        State‘s Exhibit 284 at 1:46:04.
      167
            State‘s Exhibit 284 at 1:47:02.
      168
            State‘s Exhibit 284 at 1:47:11.


                                              79
      M: Did she come back? Did she come back? Did she come
back and knock on the door and try to talk to you?

      C: I don‘t know. I went to bed, and I was out.

     M: Did she come back Charles, and that‘s when the fight
happened?169

      C: I went to bed.

      M: Did she leave and come back, and that‘s when the yelling
and screaming started?

      C: I went to bed.170

      M: That‘s what happened, wasn‘t it Charles?

       C: No. I‘ll look you in the eye on that one. I went to bed. And
when I lay down, I‘m out. And normally when I am in the room with
that fan on, if she were here, she could tell you the thunderstorms
don‘t even wake me up.171 Cause I don‘t hear anything. But she‘s
not here. I know.

       But when she come back and parked that car there, I don‘t
know what happened. I don‘t know why it was parked there. I don‘t
know how she got away from there.172 But I know she didn‘t walk
away from there. She had to have gone with somebody. There was
no fight whatsoever.173 If I had known anything like this was going to
come about, anything like this, I would have had a tape recorder
going on.174 But there was no foul words used at all. There just was

169
  State‘s Exhibit 284 at 1:47:41.
170
  State‘s Exhibit 284 at 1:47:56.
171
  State‘s Exhibit 284 at 1:48:51.
172
  State‘s Exhibit 284 at 1:48:45.
173
  State‘s Exhibit 284 at 1:49:08.
174
  State‘s Exhibit 284 at 1:49:20.


                                    80
      not.175 That‘s all I can tell you. I do not know. And that splitting that
      land up, there‘s nothing wrong with anybody doing it that way.
      That‘s just the way I want to do it.176

            M: Apparently that‘s one of the ways she wanted to do it too.

            C: Well, that‘s not what she said was etched in stone from the
      lawyer.177 I‘m curious to see what you find out from the lawyer.

           M: Well, I‘m curious about that myself. I‘ll be finding that out
      around 8 a.m. in the morning, five hours from now.178

             C: Fifty-five acres, the machinery, half of that, half of the
      retirement, 401s, IRAs and her stuff out of the house. And she didn‘t
      bring no papers in. She didn‘t bring no papers in, that was, I mean
      that was exactly what she said. I mean, that‘s it.179 There was no
      need for her to bring any papers in; that is what she said, and I took
      her word for it.180

            K: When you left work tonight to come home, did you tell
      anyone? I mean is your machine still going? Or what‘s the deal with
      that?

            C: Yeah, I told my supervisor I was going to leave and go to
      the house.

            K: Is that normal for you to do that?



      175
        State‘s Exhibit 284 at 1:49:44.
      176
        State‘s Exhibit 284 at 1:50:00.
      177
        State‘s Exhibit 284 at 1:50:13.
      178
        State‘s Exhibit 284 at 1:50:20.
      179
         The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Kathy not bring papers in.wmv.‖
      180
        State‘s Exhibit 284 at 1:51:08.


                                          81
      C: No, I didn‘t give him no explanation, but as long as I‘ve
been there, that‘s -- that‘s fine.

         K: And did you plan on going back, or are you done for the
night?

         C: I don‘t have to go back.181

         K: But did you plan on going back is what I asked you.

      C: Well if I was just gonna be here an hour, I mighta gone
back. But I don‘t think I‘ll go back; I‘ll just go to the house.182

         K: Well did you know we was at your house when you left
work?

         C: No.

      K: Well, I guess I gotta ask you again. When you left work at
Tetra Pak to come home, did you plan on going back to work
tonight, or what was your plans?183      Why did you come home
         184
tonight?

         C: I called Charee‘s cell phone, and she didn‘t answer it.

         K: And that made you come home?

     C: And I thought -- I told my supervisor, ―I‘m gonna go to the
house.‖

      K: You didn‘t tell your supervisor your wife was missing or
nothing like that?



181
  State‘s Exhibit 284 at 1:51:44.
182
  State‘s Exhibit 284 at 1:51:53.
183
  State‘s Exhibit 284 at 1:52:12.
184
  State‘s Exhibit 284 at 1:52:30.


                                     82
     C: No. This is my first night back.185 Getting everything going
and everything back in there since everything‘d been down for the
weekend.

       K: So I guess we need to figure out on this going out to your
property and looking around. And I‘ve got a, here, it‘s a consent to
search form. And I know you verbally told us we could go out there
and everything. But I need to get this signed.186 Your address is [---
--] Metz Road?

        C: Yes.

       K: Is there lights out there in your barns and stuff? Probably
not, is there?

        C: Just the shop areas.187

       K: Trying to figure out the most reasonable way to handle this
situation. Lot of acreage to walk around and look across and
everything. How would you suggest we handle that? 188 You have
any ideas on that?

        C: I mean you want to come out now or in the daytime or
what?

       K: I want to do it as soon as possible because if your wife is
there, I want to show that, and if she is not, I want to show that. I
want to put some closure to this thing. Not only for me and for you
and for the Ranger, but for them kids out there. They need their
momma and their daddy. I looked your boy in the eyes, and he‘s
hurting. They know something is going on. They know you‘re
talking to us right now. And no telling what is going through their
mind. Well, I‘ll tell you what is going through my mind right now: I


185
  State‘s Exhibit 284 at 1:52:45.
186
  State‘s Exhibit 284 at 1:53:33.
187
  State‘s Exhibit 284 at 1:53:49.
188
  State‘s Exhibit 284 at 1:54:10.


                                     83
don‘t believe based on everything we‘ve talked about that you are
telling us the truth.189

      C: Well, I‘m sorry.

       K: Don‘t be sorry. I just don‘t believe you. I‘d love to find her
alive. But for right now, we just can‘t walk away from it.

      C: Yeah, I hear ya there.

      K: Let‘s get this resolved.

      C: Yes.

       K: I am asking you is there any special place we should look
or that she might be? Is she an outdoors person? Could she live off
the land for a few days?

      C: She probably could. She‘s pretty durable.

       K: Does she have a place she likes to go to get away? The
property in Cooke County? Is there any one place, any quiet place,
that she had that you knew of?

      C: She liked to go to the park in Gainesville.190

      K: If you were in our shoes, where would be the first place you
would look? If you was sitting here, where would you start looking?

      C: If I knew a place to look, I‘d done been there and looked.191

     K: Where would you start?          Your house, the park in
Gainesville, the place in Cooke County?




189
  State‘s Exhibit 284 at 1:55:50.
190
  State‘s Exhibit 284 at 1:57:58.
191
  State‘s Exhibit 284 at 1:58:15.


                                    84
      C: Well, I‘d start somewhere other than the place there
because she is not home. She is not there. She is not home. I
looked around there pretty good.

      K: What all did you look through?

      C: I didn‘t get up on the hay and look to the back of the barn. I
got round barrels stacked in there. I didn‘t physically get up on top
to look to the back of the barn around there to the edges or to the
very back.

      K: Has your wife ever threatened to kill herself?192

      C: She only said that one time, but it‘s been a long time ago.

      K: Did you believe her?

      C: No.

      K: So you don‘t think she‘d kill herself?

       C: No. Probably about like what she thought when I said that
time I‘d kill myself.

      K: So you‘ve looked around your property, but you didn‘t
actually look in the nooks and crannies of the hay.193

      C: No, I didn‘t get up on that hay. No, I didn‘t -- I didn‘t get up
on top.194

      K: Is that that big barn right by the house?

      C: No, that‘s on down.

      K: What is in that big barn by the house?


192
  State‘s Exhibit 284 at 1:59:38.
193
  State‘s Exhibit 284 at 1:59:51.
194
  State‘s Exhibit 284 at 2:00:01.


                                    85
      C: Right there where the car was parked? That‘s just a shop.
Combine, machinery, my pick up, and another car is in there, an old
antique truck. That‘s where I back my vehicles in and change the oil
and stuff. It‘s got a dirt floor with a square of concrete in the floor.
There‘s nothing in there.

      K: We‘ll look out there.195 . . . .

      C: And the old barn, I looked through there. It‘s got some old
granaries in it. It‘s the next barn out.

      K: And you‘re pretty much sure she‘s not on the property?

      C: I don‘t think so; no, I don‘t. I just hope she‘s alive.196

      K: Yes.

       C: I mean, you know, I‘m the kind of guy that when it comes to
this divorce here, I‘m not, I didn‘t think of it like trying to be a hog
with the money.

      K: And I believe you on that.

       C: Because I know the way I grew up, and I didn‘t have
nothing. And there‘s been several times that she wanted to do stuff
to the house, and I said, ―No, let‘s wait until the kids grow up, and we
can remodel it.‖ And we never did spend much. And that‘s why I
say I honestly say it needs to be divided half and half.

       M: Well, right now we‘ve got to get past that with -- before we
deal with the divorce situation. We have to find her either dead or
alive.

       M: You‘ve been sitting here talking to us for a while, do you
think she‘s dead or alive?

      [C:] Well, I‘m hoping she‘s alive.


195
  State‘s Exhibit 284 at 2:01:20.
196
  State‘s Exhibit 284 at 2:02:00.


                                    86
             [M:] What are you thinking? I know what you‘re hoping, we‘re
      all hoping.197 What are you thinking?

              [C:] Well if I thought she was dead when I saw that car parked
      there, I would have called probably immediately. But the first thing
      that come to my mind was you know is she pulling a prank on
      me?198 Because when before she walked out that door she said,
      ―I‘m leaving and you‘re not gonna find me.‖199 That‘s the first thing
      that come to my mind––is she playing a trick on me here? And then
      I started getting pretty PO‘ed.

            M: But now, what‘s your thought right now?

           C: Y‘all are the experts on this.        I can only tell you what
      happened.200

                M: I‘ve told you what I think. I‘ve been as honest as I can with
      you. You look at it from my point of view. I think she‘s dead. And
      you‘re the last person to see her. And I think you know what
      happened to her.201 I really do. I‘ve been doing this for a long time.
      I‘ll tell you right now, things got out of hand and there was a heat of
      the moment thing and damn it, I snapped and damn, I wish I could
      take it back, that‘s one thing.202 But if it was an ambush from the
      word go, a set up thing and premeditated murder, that‘s another
      thing. So I want to be perfectly clear to you if it was an accident, if
      something just snapped, and it couldn‘t be controlled, then I need to



      197
        State‘s Exhibit 284 at 1:23:27.
      198
            The underlined words—cutting off Charles‘s answer before his
―because‖ explanation—constitute the entirety of the clip from State‘s Exhibit 312
that is titled, ―Saw car, first thought was prank.wmv.‖
      199
        State‘s Exhibit 284 at 2:04:06.
      200
        State‘s Exhibit 284 at 2:04:40.
      201
        State‘s Exhibit 284 at 2:04:58.
      202
        State‘s Exhibit 284 at 2:04:50.


                                          87
know. Because that is a different thing than planning out a cold-
blooded murder.203

      C: I am not a murderer.

       M: Because we‘re going to find out what happened, and now
is the time to -- if that is what happened -- is to say it because if that
is what happened, and you don‘t tell me now, then I‘m going to have
to assume that you planned the thing from the word go and you set
up the meeting and you set up the deal, and you took your son over
there to get him out of the house. And that‘s what I‘m going to have
to assume because I‘m gonna find her. There‘s no doubt about it.

      C: I want you to find her.

      M: I‘m gonna find her.

      C: I want you to find her.

      M: And I don‘t think it is gonna be good when I find her. It is
not looking good. And when we do find her, could you have done
something that you don‘t know you did? Something you‘re blocking
out of your head? That‘s happened before. Could it be that you
blacked out or don‘t remember?

      C: No.

       M: Because I‘ll tell you this Charles, when I do find her, there
is going to be some evidence. You don‘t walk in this room without
leaving something behind that I can find, whether it be under a
microscope or whatever. And just so you do know, when I find her,
whoever did something to her, there is going to be something there.
There always is. No doubt about it.

      C: I‘m sure there is.204




203
  State‘s Exhibit 284 at 2:05:33.
204
  State‘s Exhibit 284 at 2:08:10.


                                    88
     M: And just for your information, with today‘s science, there‘s
gonna be something there, and we‘re going to march it back to
whoever did it.

      C: Let‘s hope she‘s alive.

      M: I don‘t think she is.

      C: I hope she is.205

      M: I don‘t think she is. I think she would have called her
daughter, called her boss, shown up for work; I think she‘s gonna
see that those kids are taken care of; she‘s not gonna miss New
Year‘s with those kids; she‘s not gonna miss their first day going
back to school.

[Silence]

      C: Did y‘all take the car to get it fingerprinted and
everything?206

       M: We‘re gonna do that. We‘ve got it. Do some of those
scientific tests we talked about. But I don‘t think anything happened
in the car.

       C: Are y‘all gonna bring it back when you‘re through with it?
Or is that my responsibility?

      M: We‘ll bring it back. I didn‘t see anything in the car.

      C: Y‘all got a restroom here.

      M: Sure.207

[Charles leaves room and then returns.]


205
  State‘s Exhibit 284 at 2:08:50.
206
  State‘s Exhibit 284 at 2:09:45.
207
  State‘s Exhibit 284 at 2:10:53.


                                    89
      M: Charles, I think your boy and your daughter deserve to
know what happened to their momma, don‘t you?208 Generally,
whether it is good or bad. I‘ve listened to the voice mail and your
daughter leaving messages bawling wanting to know what
happened. And your son, he is shaking out there seeing Texas
Rangers and police officers towing off his momma‘s car that he
hasn‘t seen in a week.209 I‘d sure want to know if something
happened to my momma. We‘re gonna find her.210 I‘m gonna ask
you again if you know where she‘s at.

      C: No, I don‘t know.

      M: You‘ve gotta tell me.

      C: I‘ve been with the kids day and night since this happened.

       M: Not Wednesday night you weren‘t. That‘s the one night
you took your boy into town and the one night you were out there by
yourself; that‘s the one night she came out there, and that‘s the one
night she disappeared.

      C: He was there the night before—

      M: I don‘t care. She was there and you were there and then
only you‘re there, so what happened to her?211

      C: I do not know.

      M: It‘s gonna be better off if you tell me what happened, where
she‘s at. We can get it done and get it taken care of.

      C: Believe me, I would tell you if I knew where she was.212

208
  State‘s Exhibit 284 at 2:13:58.
209
  State‘s Exhibit 284 at 2:14:12.
210
  State‘s Exhibit 284 at 2:14:42.
211
  State‘s Exhibit 284 at 2:15:53.
212
  State‘s Exhibit 284 at 2:16:01.


                                    90
       M: Charles, I don‘t believe you. Here‘s what I think happened.
I think you love her. I think you didn‘t want a divorce. I don‘t think
you‘re greedy; I don‘t think it had anything to do with money. I think
you loved her and wanted her back, and she wasn‘t having any part
of it. She was gonna leave you.213 And I think you snapped. I think
something went off in you that you didn‘t know you were capable of.
I think you hurt her and I think you panicked and I think you did
something with her. And I think you‘re wishing to God right now that
it didn‘t happen and I think you‘re just wishing God if I could take it
back I would cause I loved her and I didn‘t mean to hurt her, but it
happened thinking that you wish to God you could take it back.214
But now you don‘t know what to do. I‘ve seen your eyes right now.
Something happened, and you snapped. Charles, tell me what
happened.215

      C: Nothing happened. That was it. She walked out of there
and said, ―You‘re not gonna find me.‖

      M: Bullshit.

      C: But that wasn‘t enough to get upset over to me.216

       M: Bullshit. What got you upset was that she was leaving you
after twenty years of busting your ass and giving her everything. 217
You didn‘t want her to leave. And you didn‘t mean to hurt her. You
didn‘t plan it out there. Something happened and you snapped and
you hurt her and now you don‘t know what to do. But I‘m telling you
right now, I‘m gonna find her.

      C: I‘ve had seven months.


213
  State‘s Exhibit 284 at 2:16:24.
214
  State‘s Exhibit 284 at 2:16:58.
215
  State‘s Exhibit 284 at 2:17:13.
216
  State‘s Exhibit 284 at 27:14.
217
  State‘s Exhibit 284 at 2:17:22.


                                    91
             M: I‘m not worried about seven months. I‘m worried about one
      night.218 When it‘s coming down, seven months of limbo, not
      knowing what‘s gonna happen, not knowing maybe she is coming
      back, she‘s not pushing it, and now it‘s all coming down. And damn,
      over the Christmas holidays, she‘s going to a lawyer, she‘s got
      papers for you to sign, she got options for you to sign, and she is
      telling you it is over.219 All your hopes of her coming back is gone.
      And you‘re beggin‘ her to come back; you‘re asking her to come
      back, and she says, ―No, it‘s over,‖ and you snapped.220

             C: I know it looks that way, and I don‘t blame you for looking at
      me and saying what you‘re saying. But I think when somebody files
      for divorce, if they don‘t come back in the first few months, they‘re
      not coming back.

            M: You‘re going off on tangents Charles; I‘m talking about
      people dying, and you‘re talking about what people do when they get
      a divorce.221 I don‘t give a shit what people do when they get
      divorced.

            C: I‘m just saying, if she didn‘t come back in two months, she
      wasn‘t going to come back.222

           [K:] But didn‘t you tell us earlier though, you hoped she‘d
      come back, you wanted her to come back? You love her?

            [C:] I still love her, yes.223



      218
        State‘s Exhibit 284 at 2:17:57.
      219
        State‘s Exhibit 284 at 2:18:14.
      220
        State‘s Exhibit 284 at 2:18:48.
      221
        State‘s Exhibit 284 at 2:18:50.
      222
        State‘s Exhibit 284 at 2:18:58.
      223
         The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Charles still love Kathy.wmv.‖


                                             92
           K: You know who is going to suffer the worst out of all of this?
      Those kids.

            C: Yeah, if I would have done something to her, they would
      have suffered the most.

             K: They‘re going to suffer enough if we don‘t find her. You
      know what would hurt them even more? If we find her dead, and we
      find out that you‘re the one that done it to her. . . . That‘s gonna be
      the one that hurts them children. If I can say anything, forget about
      -- Charles, forget about your wife; think about your son there.
      Everyone out there has the same gut feeling. Something is wrong
      with this lady. I think you have the answer but you don‘t know how
      to share it with us— Every single thing you‘ve told us the truth
      about?

            [C:] Yes, except for the phone call, and I did not say—

             M: [interrupting] Except for the phone call,224 except for the
      grabbing of her. . . . You‘re cooperating, but I think you have a big ol‘
      burden on your chest that you don‘t know how to get it off . . . I just
      have a hard time believing it is a calm conversation. You‘ve gotten
      frustrated with us. I‘d probably be a little upset. . . .

            C: I don‘t know what else to tell you.

             M: Let me ask you this, do you think she is alive right now?
      After everything we‘ve talked about?225

            C: I hope she is.

            M: No, answer my question.

            C: I really honestly think she is.

            M: I‘m not asking you honestly; I‘m asking you straight up.


      224
         The underlined words constitute the entirety of the clip from State‘s
Exhibit 312 that is titled, ―Told truth except phone calls.wmv.‖
      225
        State‘s Exhibit 284 at 2:24:47.


                                          93
       C: It just depends on what happened. If she left with
somebody, I don‘t know. I just can‘t believe a woman would not call
the kids. I don‘t believe Kathy would not call the kids.

      M: And based on that, do you think think she‘s alive right now?

      C: I guess I‘d have to say no, but I don‘t want to think that.

       M: Do you know what hurt me earlier? That little boy standing
out there. Because I think he knows.226 Daddy knows something
happened to momma. I think deep down that boy knows something
is not right. We all know something is not right. 227 Living out there
with you Charles, he‘s heard you raise your voice and talk bad about
your wife.228 Maybe heard you say things that you wish you didn‘t
say in front of him.

      C: No, there wasn‘t none of that.229

      M: Like there wasn‘t any phone calls?

[Ranger Murphree leaves.]

      K: Charles, when you hauled that hay, the other day,230 do you
keep your hay buggy loaded, or is it a pretty big trailer?

      C: It is a big trailer.

       K: Were you out at 3 or 4 in the morning the other day on
Wednesday or Thursday night? There‘s a police officer saw a truck
and a trailer right up by your house the other night at 3 or 4 o‘clock
in the morning Wednesday or Thursday night. Was that you?


226
  State‘s Exhibit 284 at 2:25:57.
227
  State‘s Exhibit 284 at 2:26:22.
228
  State‘s Exhibit 284 at 2:26:22.
229
  State‘s Exhibit 284 at 2:26:54.
230
  State‘s Exhibit 284 at 2:27:17.


                                    94
      C: [Shook head no.]

        K: It wasn‘t?231 What would somebody be doing with a hay
trailer that time of morning? There‘s no reason for somebody to be
out. They don‘t haul hay that time of the morning, do ya?

      C: Somebody‘s trying to steal some hay or something.232

     K: But that wasn‘t you in your vehicle going back towards the
house?

      C: No.

       K: Well let me step out here and talk to the ranger about how
we‘re going to do the search.233 There‘s a lot of stuff to look into,
those out buildings and stuff. You get two or three people doing it,
it‘s going to take a while. So let me step out here and get that
resolved.

[Investigator Kish leaves the room, and Charles sits alone in room
for twenty-two minutes before Ranger Murphree and Investigator
Kish return.]

      M: Sorry about that Charles.234 [Ranger Murphree shows
Charles papers.] Charles, this is that consent to search to conduct a
complete search of the premises and property and outbuildings and
car and permission to take property and things from my house
without a search warrant. Sign here; you‘re giving us that consent.

[Charles signed.]235



231
  State‘s Exhibit 284 at 2:27:29.
232
  State‘s Exhibit 284 at 2:27:44.
233
  State‘s Exhibit 284 at 2:28:04.
234
  State‘s Exhibit 284 at 2:51:12.
235
  State‘s Exhibit 284 at 2:52:47.


                                    95
            K: We‘re still waiting on a phone call to get some extra people.
      I was a little bit concerned ‗bout the children; don‘t want to upset
      them. Anything to add, any questions of us?

             C: I can‘t think of any. Y‘all hit me pretty hard. But I don‘t
      blame you. I‘d been sitting there, I‘d probably been saying the same
      thing. I‘m getting sleepy.

             K: You usually work all night?

             C: Yeah, but I‘m moving around. Been a long day. You got a
      drink of water?236

      [The tape stops at 2:57:46.]

     d. The Horton Verbal Statement Recorded by Private Investigator
           Mike Horton on March 3, 2005 at the Stobaugh Farm

      Kathy‘s family hired private investigator Mike Horton in an effort to locate

Kathy. Approximately two months after Kathy disappeared and two months after

Charles made the Murphree/Kish statement, on March 3, 2005, Horton

interviewed Charles and asked him to write down in his own words what

happened on the evening of December 29, 2004. Charles agreed to talk to and

to cooperate with Horton and agreed to write a statement.

      While they were talking, Charles told Horton that he had used $5,000 from

Kathy‘s account to hire a private investigator to find her. Horton told Charles that

was illegal. Charles replied, ―It is?‖

      Horton did not testify at trial. During trial, the State did not play for the jury

the complete recording of Horton‘s interview of Charles; the complete Horton


      236
         State‘s Exhibit 284 at 2:55:30.


                                           96
recorded verbal interview was admitted as State‘s Exhibit 285. The State played

certain clips from this interview.

                 e. The Horton Written Statement Made by Charles
                       at Horton’s Request on March 3, 2005

      Horton requested that Charles write down in his own words what

happened on the evening of December 29, 2004; Charles agreed. Charles wrote

the following:

            Wed[.] 29, Tommy my son was with me all day until about
      7:00 p.m. I took him to Kathy[‘]s house to play nitendo [sic] games
      because he wanted to go. I called Kathy probably about 8:00 p.m.
      to get information about what she had decided on the splitting of
      property. I said, you can tell me over the phone, but she said she
      would rather come out. She got here about 9:30, left at 9:55 p.m.
      Saw car lights go down the drive way.

             We during this time she was here, discussed how she wanted
      to divide the property. She said she wanted 55 acres, 1/2 of the
      machinery cost, things out of the house she wanted, 1/2 of my 401K
      and 1/2 of the IRAs plus if there was to be child support, I would pay
      child support. And I told her Tommy might live with me. But that
      would be decided. We then talked about what she was going to do
      with her part of the land, and she said she probably would build a
      house out here. I told her it would cost alot to put a drive all the way
      down to the west end of the property. But I told her that if I wanted
      to contest what she wanted I would have to get a lawyer. And she
      said yes. I said I was going to contest what she wanted, because I
      wanted to sell everything. She seemed to be surprised and asked
      why, and I said I just wanted to be fair about everything and do it this
      way. She got up from the table and started walking toward the back
      door to leave and turned toward me and ask, why does the man
      always think he has to try to win? I said, still setting [sic] at the table,
      I wasn‘t trying to win, I wanted this done fair and get through with it.
      When Kathy got right at the back door and I couldn‘t see her, cause I
      was still in my chair, she said she was leaving and I said O.K., and
      she said again I[‘m] leaving and you might not see me again. I said,
      yeah, right, just kidding, and she left. I never went outside, stayed in
      house. Went to bed later.


                                          97
              Saw car lights go down driveway. Got up next morning
      approx. 7:30 a.m.-8:00 a.m. and saw car in drive way, up by or in
      front of garage. I panicked at first, went outside, keys in floorboard,
      no purse or anything else in car. I looked through the buildings,
      around them, around house, and on the property here close. I come
      back in, calmed down wondering who[m] she would have left with.
      Charee, my daughter came up about 9:00 a.m. I asked her if she
      knew anything or was Kathy at the house. And she said no. I told
      Charee that Kathy may have got a little upset the night before. I told
      Charee being Kathy had left before for these weekend get away
      trips, that maybe we shouldn‘t panic, Charee agreed.

              6. Events and Activities After December 29, 2004

      Kathy had planned to attend a ninetieth birthday party for her grandfather

on Sunday, January 2, 2005, in Gatesville. Kathy spoke with her brother Chris

on December 29 at 12:55 p.m. During an eight-minute cell-phone conversation,

she confirmed these plans with Chris. Kathy also told her mom, Jeanne Munday,

that she was planning to attend the birthday party. But neither Chris nor Jeanne

ended up attending the party. Because the two people who knew of Kathy‘s

plans did not attend the party, the Mundays were not worried by Kathy‘s absence

from the birthday party and did not alert Charles or Charee that Kathy had not

attended the party.

      The Stobaugh family held a New Year‘s Day get-together at Helen

Stobaugh‘s home in Cooke County. The entire Stobaugh family attended. Tim

Stobaugh, Charles‘s younger brother, testified that Charles was happy and

talkative and did not say anything about Kathy being missing. Tim said that he




                                        98
assumed at the time that Kathy must have gone to her mother‘s home on New

Year‘s Day because she was not there.

       After Kathy disappeared, eventually life went on for the Stobaugh family;

Charee and Tommy lived with Charles at the farm. Charee and Tommy, who

were sixteen and twelve at the time of Kathy‘s disappearance, both subsequently

graduated from high school. Both Charee and Tommy were over eighteen years

old at the time of trial. A little over a year after Kathy‘s disappearance, Charee

graduated salutatorian of her high school class. She attended Tarleton State

University, where she earned her bachelor‘s degree and obtained her teaching

certificate.

                         7. Charee’s Trial Testimony

       Charles was on vacation over the Christmas holidays in 2004; he took

vacation every year at Christmas.237 During the Christmas holidays, Kathy or

Charee would drop off Tommy at the farm sometime before noon; Charles would

typically drop off Tommy back at the rent house usually around dinnertime, about

6 or 7 p.m. Tommy would eat dinner at the rent house and enjoyed being there

at night because he had high-speed Internet, his own TV in his room with cable,

and a video game system with video games that he could play. Charles never

went inside the rent house.


       237
         In addition to Charee‘s testimony, Charles‘s records from Tetra Pak
were introduced into evidence, establishing that Charles took vacation every year
over Christmas.


                                        99
      Charee testified that on the morning of Wednesday, December 29, 2004,

she woke up at Kathy‘s house around noon; Kathy had already dropped off

Tommy at the farm.      Charles drove Tommy back to the rent house around

dinnertime that night. Charee left the rent house around 7 p.m. to go to a friend‘s

house to watch a movie. When she left, Tommy was playing video games.

      Charee arrived back at the rent house at approximately 1:30 a.m. Kathy

was not at home, so Charee woke Tommy and asked where Kathy was. Tommy

said that Kathy had gone to the farm to talk with Charles about the divorce.

Charee went to bed, woke up at 7 a.m., and drove to the farm. She saw Kathy‘s

car parked in the driveway and believed that Kathy was there and that everything

was okay, so she went back to the rent house and slept a few more hours.

      Charee returned to the farm around 9 a.m. on December 30 and saw

Charles outside headed toward the barn.        Charles indicated to Charee that

although Kathy‘s car was parked in the driveway, he had looked in the house and

in the barns and did not see Kathy. He asked Charee if Kathy was at the rent

house, and Charee said that she was not. Charee went back to the rent house to

pick up Tommy and then returned to the farm. Charee, Tommy, and Charles

looked in the house and in the other buildings on the farm for Kathy. Charee

noticed nothing out of the ordinary anywhere: no sign of a struggle and no sign of

Kathy.

      Charles told Charee that Kathy had come over to talk about the divorce,

that he had again said that he wanted to sell everything and split it down the


                                       100
middle to be sure it was all even, that Kathy did not want to agree to that, and

that she ended up leaving. Charles said he saw the tail lights of Kathy‘s car as

she drove away down the driveway. He went in, took a bath, and got ready for

bed.

       Charee testified that she thought Kathy must have left with someone. She

thought that maybe Kathy had become overwhelmed by the divorce and had

decided to go spend New Year‘s Eve weekend with someone. Charee testified

that she did not report Kathy missing right away because she knew Kathy had

been talking to men and she was worried that if Kathy came home on Sunday,

―she‘s going to be like, ‗What the heck?      Why did you report me missing?

Because I was just out having a weekend of fun,‘ or ‗I was out relieving stress

because I was overwhelmed because of the divorce.‘‖         Charee testified that

Kathy had left before to go away by herself. She recalled a teacher‘s workshop

in Wichita Falls when Kathy was gone until Sunday afternoon.

       Charee testified that she had tried to call Kathy from her cell phone and

from the land-line at the farm. She said Charles was standing there with her at

the farm when she called Kathy. Charee said she had left messages asking

Kathy where she was.

       Charee explained that Charles was very particular about their cars and that

no one parked on the concrete slab where Kathy‘s car was initially parked

because of the overhanging tree branches. When Kathy had not returned to get

her car by Friday, Charee suggested to Charles that they move Kathy‘s car out


                                       101
from under the tree, and Charles moved it straight back. Charee said Charles

later moved Kathy‘s car again to get it out of the way so that they could pull a

trailer through the driveway unimpeded to haul some hay.              Finally, law

enforcement towed Kathy‘s car away for forensic testing. Charee was present

each time Kathy‘s car was moved.

      Subsequently, a few weeks after Kathy disappeared, Charee and Jeff

Boykin took the computers from Kathy‘s house so that they could be sent by

Charles‘s attorney to an investigator to see if they contained any clues as to

Kathy‘s whereabouts.

      Charee testified that in 2008 and 2009, three to four years after her mother

had disappeared, the prosecutors in the courtroom at trial and two other

prosecutors or people with the District Attorney‘s Office had come to visit her at

Tarleton. The prosecutors did not, prior to either interview, show Charee the

written statement that she had previously made. Two days after their second

visit in 2009, Charles was indicted. Charee conceded that she had declined to

meet with the prosecutors after Charles was indicted. Charee eventually met

with prosecutors again briefly four days before trial.

      The State cross-examined Charee extensively for over 150 pages in the

reporter‘s record. The State questioned Charee on whether she remembered

telling Officer Vest at the Sanger Police Department on January 3, 2005, that

Charles did not know she was there. Charee said she did not remember making

that statement; and during trial, Officer Vest did not testify that Charee had told


                                        102
him that Charles did not know she was there. The State cross-examined Charee

on whether Toni Campbell had ―adamantly [told her she] need[ed] to go to the

police and told her, ―[I]f you don‘t, I will.‖     Charee testified that she just

remembered Toni offering to go with her to the police department.              The

prosecutor then asked, ―Would it surprise you to learn that Toni Campbell came

in here and told the jury she said that?‖ Toni Campbell testified at trial only that

she urged Charee to go to the police. The State contends on appeal that Charee

admitted on cross-examination that she drove out to the Stobaugh farm twice

during the early morning hours of December 30 and that Kathy‘s car was not

there. The record reflects, however, that Charee testified that she did not see

Kathy‘s car, despite the lighting at the farm, not that she said Kathy‘s car was not

there. On re-direct, Charee explained, utilizing pictures of the farm, that only two

lights exist out at the farm: one by the well house and one further away. The light

closer to where Kathy‘s car was parked, as demonstrated in the pictures, is

blocked by a building and by trees. And the second light is further away and not

bright enough to illuminate the area where Kathy‘s car was parked.           Charee

mostly testified on cross-examination either that she did not say what the

prosecutors claimed she said in their post-2005 interviews of her or that she did

not remember.     The State did not offer documents or statements refuting

Charee‘s testimony on these points.238 Charee testified that she remembered the

      238
       The following       exchange    is   representative   of   Charee‘s   cross-
examination:


                                        103
           Q.     And do you remember telling us––telling me that the
      reason that your dad wanted to get the computer was because he
      was afraid that it would have something on it that would be bad for
      him?

            Do you remember telling me that?

            A. No.

            Q. Do you remember specifically saying that he didn‘t know a
      lot about computers, that he didn‘t know what Kathy had on the
      computer, and he was afraid that there would be something on the
      computer that might be bad for him?

            Do you remember telling me that?

            A. No, I don‘t.

            Q. Did you tell me that?

            A. I don‘t remember telling you.

            Q. Is it possible that you told me that?

           A. The part about him not knowing computers, yes, but I don‘t
      know about the afraid part.

             Q. Is it possible that you told me that your dad did not want
      the Mundays or the police looking on the computer because he was
      afraid there would be something on there that would be bad for him?

            Did you tell me that?

            A. No. Because we sent the computers off to get analyzed.

We point this out because the prosecutor‘s questions of whether Charee made
various statements are not evidence of any fact, will not support an inference of
any fact, and are not included in our sufficiency analysis. See, e.g., Madden v.
State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007) (recognizing that the
questions posed by the attorney are not evidence) (citing Wells v. State, 730
S.W.2d 782, 786 (Tex. App.––Dallas 1987) (noting that ―remarks by counsel are
not evidence,‖ that ―[q]uestions put to a witness are not evidence,‖ and that ―[t]he

                                        104
events best six years earlier when she made her written statement on January 3,

2005, as well as when she spoke with Officer Vest at the Sanger Police

Department on January 3, 2005.

                                G. The Searches239

            1. December 30, 2004 Searches of the Farm by Charles,
                             Charee, and Tommy

      When Charee arrived at the farm at around 9 a.m. on December 30,

Charles told her that Kathy was not there; he had looked around for her. After

Charee picked up Tommy that morning, Charles, Charee, and Tommy searched

the farm for Kathy.

            2. January 3, 2005 Search of Kathy’s Car by Officer Vest

      As reflected in Officer Vest‘s dash-cam video, he conducted a search of

Kathy‘s car on Janary 3, 2005, when he went to the Stobaugh farm to talk to

Charles after Charee reported her mother missing.       Officer Vest‘s search of

Kathy‘s car revealed nothing.




answers and not the questions are determinative‖), pet. ref’d, 810 S.W.2d 179
(Tex. Crim. App. 1990)); Johnston v. State, 230 S.W.3d 450, 456 n.6 (Tex. App.–
–Fort Worth 2007, no pet.) (refusing to consider as evidence for sufficiency
review question by attorney because the question itself was not evidence).
      239
        Numerous searches were conducted for Kathy, several by the same
people on different dates. The record is confusing as to the exact number of
searches and the people involved in each of them; the list of searches here is not
exhaustive—the State‘s brief indicates that ―23 different searches [] were
conducted at various locations to find Kathy, but no forensic evidence has ever
been discovered.‖


                                       105
   3. January 4, 2005 Search by Ranger Murphree and Law Enforcement
 Officers and January 3, 2005 Confiscation of Kathy’s Car and Subsequent
                         Processing of Kathy’s Car

      At the conclusion of Charles‘s interview by Ranger Murphree and

Investigator Kish, at 3:58 a.m. on January 4, 2005, Ranger Murphree requested,

and Charles signed, a consent form authorizing law enforcement to search the

Stobaugh farm. Ranger Murphree accompanied a team of fifteen to twenty law

enforcement officers out to the farm that day, on January 4, to search. They

used four-wheelers and searched all of Charles‘s property, as well as some of

the adjoining properties. They searched all of the barns and outbuildings on the

property and also searched the house. Although they searched for a long time,

―several, several hours,‖ they found no evidence that a crime had been

committed. Ranger Murphree testified, ―[I]t‘s January. There‘s no crops in the

field. . . . We drove every acre back and forth with deputies on four-wheelers . . .

there was absolutely no evidence of Kathy anywhere on that property.‖

      Also on the morning of January 3, with Charles‘s consent, Ranger

Murphree took Kathy‘s car, and in due course, the FBI processed it for forensic

evidence. The report issued by the FBI indicates that ―[t]wo cadaver dogs were

utilized and no trained indication was observed.‖ Also, Kathy‘s car was sprayed

with Luminol to detect the presence of blood, and no blood was found in the

vehicle. Ranger Murphree testified that when a vehicle is processed, in addition

to using Luminol and cadaver dogs, the entire vehicle is searched everywhere for




                                        106
hairs, fibers, and DNA. The processing of Kathy‘s vehicle did not reveal the

presence of any of these items or substances.

             4. January 4, 2005 Search by Ranger Murphree of
                 Helen Stobaugh’s Farm in Cooke County

      On January 4, 2005, Ranger Murphree and other law enforcement

personnel obtained consent from Helen Stobaugh, Charles‘s mother, to search

her property. They searched her ―house, the buildings, everywhere.‖ Ranger

Murphree testified, ―We looked all over. We looked everywhere.‖ The search

revealed nothing.

 5. January 8, 2005 Search by the Stobaughs of Kathy and Charles’s Farm

      Tim Stobaugh testified that on Saturday, January 8, 2005, he and his wife

Debbie, Toby Stobaugh and his wife Keela, a cousin Billy Stobaugh, an aunt and

uncle Louis and Betty Hames, and some of Kathy‘s friends went to the farm to

conduct a search themselves. Tim said they asked Charles for permission to

search when they got to the farm, and he granted it. Charles told Tim that he

had already searched the farm, and he did not participate in their search. Tim

said that the group had no prior experience in conducting a search and that the

search was ―kind of unorganized.‖ They basically looked in the buildings on the

property and drove around on nearby roads looking for anything. They found

nothing.




                                     107
              6. January 14, 2005 Search by the FBI of the Farm
                       Pursuant to a Search Warrant

      On January 14, the FBI executed a search warrant at the farm. They

asked Charles to leave the premises while they searched, and he complied.

They brought an FBI mobile transportable crime scene lab—housed in an

eighteen-wheeler. They utilized canine units, cadaver dogs, and bloodhounds.

Ranger Murphree said that pursuant to the warrant, they could—and did—go

through Charles‘s underwear drawers and bathroom closets, virtually anything

they wanted to go through. According to Ranger Murphree, they combed every

inch of Charles‘s property.

      The return and inventory prepared by Ranger Murphree based on the

search warrant executed by the FBI at the Stobaugh farm on January 14, 2005,

indicates that the following were seized: two bed sheets, one mattress cover, one

pair of men‘s boots, and miscellaneous papers. The papers were taken from the

kitchen counter—an area cluttered with papers and other items.240 One of the

papers was taken from inside Charles‘s Bible, which was on the kitchen counter.

That paper lists six men and their relationship to Charles, lists two ministers, and

states that Charles‘s insurance and social security are good.       The other two

papers contain information on the type and quantity of oil Charles used in his

various pieces of farm equipment and vehicles.



      240
        The kitchen countertops are visible in various State‘s Exhibits.


                                        108
      Ranger Murphree testified that the seized items, except for the papers,

were sent to the Texas Department of Public Safety lab for testing. The bed

sheet and an electric blanket––which was accidently listed on the inventory as a

second bed sheet––as well as the pair of men‘s boots, were all taken from the

master bedroom of the Stobaugh home. The lab report from the DPS indicated

the following: no semen was detected on stains on the fitted sheet; a

presumptive test for the presence of semen was negative on stains on the

mattress pad and electric blanket; a presumptive test for blood was positive on a

stain on the electric blanket, but human origin testing was not performed on this

stain due to the limited sample size––meaning the stain was extremely small; a

presumptive test for the presence of blood was negative on stains on the boots;

no stains having the appearance of blood were detected on the fitted sheet or

mattress pad; and no hairs were detected on the boots.

      The other vehicles at the Stobaugh farm were processed by the FBI at the

farm on January 14, 2005, pursuant to the search warrant. They were processed

in the same way that Kathy‘s car was processed—with the use of Luminol and

cadaver dogs and by searching for hairs, fibers, and DNA. The processing of the

vehicles at the Stobaugh farm revealed nothing.

                 7. January 15, 2005 Search of the Farm by
                  the United Response Search and Rescue

      The day after the FBI searched the farm, volunteers with the United

Response Search and Rescue conducted a search of the farm. According to



                                      109
Ranger Murphree, the volunteers are ―trained in finding -- if you have a missing

child, a missing person, you‘re looking for a body, things of that nature, they

come out.‖ Dana Ames was in charge of the search at the Stobaugh farm.

      Ames testified that several years ago the cumulative number of searches

performed by United Response Search and Rescue had exceeded 150

searches; she said at that point, she stopped counting how many total searches

her organization had performed. Ames testified that ninety people searched the

Stobaugh farm on January 15 and 16, 2005. They utilized a ground team, an

ATV team, and an equestrian team, along with volunteers. Ames explained how

a search grid is created and executed and how that method was utilized in the

search of the Stobaugh farm.      They did not find Kathy‘s body, and nothing

suspicious was located.

      8. Other Searches of Neighboring Properties, Prior Residences,
      Gravel Pits, Creeks, an Abandoned Well, and Lake Ray Roberts

      One of the Stobaugh brothers reported seeing a raised area that he

thought could be a grave on some property that adjoined the Stobaugh farm.

Ranger Murphree obtained the neighbor‘s consent to enter the property and

examined the spot. It was a small open area with no grass. He had a DPS

helicopter fly over the area and take pictures; he ultimately got a search warrant

and dug up the area with a backhoe. He discovered nothing.

      For an entire day, the Lewisville Dive and Rescue Team searched nearby

gravel pits that were filled with water.   They found nothing.    They searched



                                       110
nearby stock ponds on neighboring property; they found nothing. They searched

an abandoned old well that someone had reported finding on neighboring

property. Again, they found nothing. Divers also searched Lake Ray Roberts

near an overhead bridge and found nothing.

             9. Search of Kathy and Charles’s Prior Residence
                by the United Response Search and Rescue

      The United Response Search and Rescue also conducted a search of the

residence owned and lived in by Kathy and Charles before they moved to the

farm. They found nothing.

         10. Second Search by the Stobaugh and Munday Families

      There was a second family search for Kathy. A combined group of the

Stobaugh and Munday families searched the Stobaugh farm. Charles did not

join in the search; he was moving hay or loading hay onto a trailer part of the

time that the group was searching. They found nothing.

              11. May 2005 Search at Helen Stobaugh’s Farm
                      Pursuant to a Search Warrant

      Ranger Murphree obtained a search warrant in May 2005 to search Helen

Stobaugh‘s farm for a clandestine grave. He brought in a back hoe to dig up an

area where the dirt looked like it had been overturned. Nothing was found.




                                      111
              12. June 2005 Search of Helen Stobaugh’s Farm
                  by the United Search and Rescue Team

      Dana Ames testified that the United Search and Rescue Team searched

Helen Stobaugh‘s farm in June 2005 with fifty people and with dogs. They found

nothing.

                       13. Searches by Kurt Beauchamp

      Kurt Beauchamp testified that he works for the Department of Homeland

Security in the Office of the Inspector General. Beauchamp testified that he was

a police officer before he became employed by Homeland Security.              He

previously was a Denton County Sheriff‘s Deputy and a commander of the

narcotics task force in Denton County. He explained that ―this is one of the few

places that has the benefit of being able to call me up and ask for this type of

information.‖ As a result of a request from the Denton County District Attorney‘s

Office, Beauchamp utilized all of the search resources and techniques available

to Homeland Security to conduct a ―global‖ search for Kathy. Beauchamp said

he used the same techniques that he would use if he were trying to locate a

terrorist. Ultimately, Beauchamp testified:

             Q. Is there any evidence that you have found in your
      investigation of the planet earth that Kathy Stobaugh existed at all
      after December 29, 2004?

            A. None.

            Q. None?

            A. No.



                                       112
             Q. Anywhere? Anytime? Anyplace?

             A. No.

             Q. Thank you.

                         III. SUFFICIENCY OF THE EVIDENCE

      In his first point, Charles argues that the evidence is insufficient to support

his conviction.   Charles does not challenge on appeal the sufficiency of the

evidence that Kathy is dead.241       He concedes that ―there is circumstantial

evidence of a potential motive on his part‖ and that ―the evidence showed he had

a potential opportunity to cause [Kathy‘s] death given that he freely admitted he

saw her on the night she disappeared and the circumstantial evidence was that

no one else has seen or heard from her since.‖ He argues, however, that no

rational juror could infer that he acted with the requisite mens rea to commit

murder and that ―[w]ithout any physical evidence, forensic evidence, or other

evidence to explain how or when she died, there are no actions from which [his]

intent can be inferred.‖ In short, Charles argues that the evidence is insufficient

to establish that ―with intent to cause serious bodily injury to an individual, namely

Kathy Stobaugh, [he] commit[ted] an act clearly dangerous to human life that

      241
          During oral argument, Charles‘s counsel explained that, being
intellectually honest, he could not argue that a rational finder of fact could not
have concluded beyond a reasonable doubt that Kathy was dead. But he
asserted that the evidence is insufficient to support an inference that Kathy
necessarily died from foul play as opposed to a freak accident or bizarre event.
Counsel contended that it was more likely that Kathy had died from some freak
accident or bizarre event than it was that Charles had killed Kathy without leaving
a shred of forensic evidence or a body behind.


                                         113
caused the death of said Kathy Stobaugh, by manner and means unknown‖ as

alleged in the indictment or that he intentionally or knowingly caused Kathy‘s

death by a manner and means unknown as alleged in the indictment.

                             A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

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

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). This standard gives full play to the responsibility of the trier of

fact to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.

2011).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364

S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon 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.


                                        114
Crim. App. 2011). We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

      The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Isassi, 330 S.W.3d at 638; Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007). In determining the sufficiency of the evidence to

show an appellant‘s intent, and faced with a record that supports conflicting

inferences, we ―must presume—even if it does not affirmatively appear in the

record—that the trier of fact resolved any such conflict in favor of the prosecution,

and must defer to that resolution.‖ Matson v. State, 819 S.W.2d 839, 846 (Tex.

Crim. App. 1991).

   B. The Circumstantial Evidence the State Contends is Incriminating242

    1. Ranger Murphree’s Testimony Concerning Charles’s Statements

      The evidence that the State asserts is incriminating consists predominately

of alleged contradictions in Charles‘s statements. As discussed previously, the

State brought out these contradictions primarily through the testimony of Ranger

Murphree by playing various clips from Charles‘s statements and having Ranger

      242
        The State‘s brief on appeal directly joins issue with Charles‘s contention
on appeal that the evidence is insufficient to show that he acted with the requisite
mens rea. The State‘s brief provides, ―Accordingly, the State will focus its
argument on the sufficiency of the evidence showing Appellant‘s intent to cause
the death of his wife or his intent to cause serious bodily injury while committing a
dangerous act that resulted in her death.‖


                                        115
Murphree comment on the alleged inconsistencies and other aspects of the clips.

Ranger   Murphree     conceded,    however,   that   despite   these   purported

inconsistencies, Charles was not arrested after he made the Murphree/Kish

statement on January 5, 2005; Charles was not arrested after Ranger Murphree,

Investigator Kish, and fifteen to twenty other law enforcement personnel

searched the Stobaugh farm on four-wheelers for hours on January 5, 2005;

Charles was not arrested after the FBI executed a search warrant with its mobile

crime scene unit at the Stobaugh farm on January 14, 2005; Charles was not

arrested when the lab results came back on the items seized by the FBI; and

Charles was not arrested after he made his verbal and written statements to

private investigator Mike Horton on March 3, 2005. Charles was not indicted until

almost five years later, on November 12, 2009; Ranger Murphree conceded that

nothing new had developed and that no new evidence had surfaced between

March 2005 and Charles‘s November 12, 2009 indictment.

      The State argues on appeal that Charles‘s ―many untruthful, conflicting, or

implausible statements to authorities and others, are circumstantial evidence of

guilt . . . from which the jury could have inferred Charles‘s intent.‖ The State

focuses on the following contradictions in Charles‘s statements and describes

and lists these statements as follows: Charles lying about leaving voice

messages on Kathy‘s cell phone after her disappearance; Charles giving

mutually exclusive ―first thoughts‖ about Kathy‘s disappearance; Charles giving

inconsistent statements about searching for Kathy before 9:00 a.m. on December


                                      116
30; Charles giving inconsistent statements about how he spotted Kathy‘s car on

the morning of December 30; Charles lying about how he hired a private

investigator; portions of Charles‘s statement allegedly being inconsistent with

Tommy‘s statement; Charles giving conflicting and different versions of his

location when Kathy made her ―you‘ll-never-see-me-again‖ statement; Charles

giving police an inaccurate version of a January 3, 2005 conversation he had

with one of Kathy‘s brothers; and Charles giving inconsistent statements about

whether he and Kathy had argued on the evening of December 29. 243         We

address below all of the evidence concerning each of the statements that the

State claims are untruthful, implausible, and contradictory and constitute

circumstantial evidence that ―with intent to cause serious bodily injury to an

individual, namely Kathy Stobaugh, [he] commit[ted] an act clearly dangerous to

human life that caused the death of said Kathy Stobaugh, by manner and means

unknown‖ as alleged in the indictment or that he intentionally or knowingly

caused Kathy‘s death by a manner and means unknown as alleged in the

indictment.

              a. Charles’s statement about leaving a phone message

      During the Murphree/Kish statement, Ranger Murphree asked whether

Charles knew Kathy‘s cell phone number and whether he had tried to call her

and had left messages. Charles answered, ―Oh, yeah.‖ Ranger Murphree then


      243
        The State‘s brief lists these items on pages 30 and 31.


                                      117
asked whether Charles had left many messages on Kathy‘s cell phone, and

Charles responded, ―Not really that many messages, we just called, my

daughter’s called.‖244   [Emphasis added.]      Later in the interview, Ranger

Murphree confronted Charles with the fact that there were no voice messages

from Charles on Kathy‘s cell phone. Charles said, ―Well I dialed it several times.‖

And Ranger Murphree responded, ―No, that‘s not what you told me. You told me

you left messages.‖ Charles explained, ―I guess I must have hung the phone up,

but I thought I said one time, ‗Where you at?‘‖245 Ranger Murphree said, ―You

don‘t have a cell phone, so either your work or your home are where you would

be calling her from, and those numbers are not on there [the cell phone records].

So either you made a mistake or you are lying to me.‖ Charles affirmed, ―I‘m not

lying to you,‖ and attempted to say that he thought he did leave a message for

Kathy once from the house phone.246 But Ranger Murphree interrupted, ―You

didn‘t call her one time Charles, her brother knew the password to her phone.‖

Later in the Murphree/Kish statement, Ranger Murphree asked Charles whether

he had been truthful about everything, and Charles said that he had, except for

leaving Kathy a cell phone message.




      244
        State‘s Exhibit 284 at 20:23.
      245
        State‘s Exhibit 284 at 20:27:52.
      246
        State‘s Exhibit 284 at 30:51.


                                        118
      Charee testified that between December 30, 2004, and January 3, 2005,

she called her mom‘s cell phone several times from the land-line at the farm; she

testified that her dad was standing next to her when she made the calls. Charee

also testified that it was a holiday weekend, her mom was off of work, and

Charee thought she might have gone out of town for New Year‘s.

      The State contends that Charles‘s failure to call Kathy‘s cell phone any

time between Thursday, December 30, 2004, and Monday evening, January 3,

2005, and lying about calling her cell phone support an inference that Charles

acted with the requisite mens rea to support his murder conviction.

             b. Charles’s statements about his “first thoughts”
                       when he saw Kathy’s vehicle

      Ranger Murphree testified that Charles gave disparate answers during the

Murphree/Kish interview concerning what his first thoughts were when he saw

Kathy‘s car in the driveway on the morning of December 30, 2004. According to

Ranger Murphree, ―[I]t can only be one first thought.‖ Seven of the clips created

by the State from the Murphree/Kish interview were played for the jury on this

issue. The clips were not played for the jury in the order they were made by

Charles in the actual interview, and most of the clips do not contain the question

asked to Charles.247 In most of the clips, however, Charles was not answering a



      247
         The clips from State‘s Exhibit 312 that were played for the jury during
Ranger Murphree‘s testimony quoted here are––in the order they were played for
the jury––the clips titled, ―1st thought, fix car leaks.wmv,‖ ―Car to make me look
bad guy.wmv,‖ ―Charles alarmed at first.wmv,‖ ―Saw the car thought it was a

                                       119
question as to what his first thought was; he was simply speculating on why

Kathy might have left her car parked at the farm.

      Ranger Murphree testified as follows:

            A. Your first thought is your first thought, whatever that is.

            Q. Or only thought or whatever.

            A. Your only thought.

            Q. And by his words, that changes.

            A. It does.

      (A portion of State‘s Exhibit 312[, the clip titled, ―1st thought, fix car
      leaks.wmv,‖] was published.)

            Q. ―Only thing I could think of.‖

            A. That‘s correct.

            Q. Not, ―a million thoughts came through my head and this is
      one of them.‖[248]

            A. ―The only thing I could think of was she wanted me to fix
      the car.‖

             Q. The woman that‘s going to default judgment him in 11-and-
      a-half hours –

            A. That‘s correct.

            Q. – would somehow leave her car at his house to fix a leak.

prank.wmv,‖ ―To make me look bad.wmv,‖ ―Leave car to stay away a long
time.wmv,‖ and ―Car hint to fix car.wmv.‖
      248
         But in the first statement Charles made—the dash-cam video statement
recorded by Officer Vest—Charles stated, ―She could have called somebody, got
on a plane, there‘s been a thousand things go through my head.‖


                                        120
      A. Yes.

      Q. In the middle of nowhere.

      A. Yes.

(A portion of State‘s Exhibit 312[, the clip titled, ―Car to make me
look bad guy.wmv,‖] was published.)

      Q. So when you bring up appearances, now he‘s –

      A. He has changed his immediate thought.

     Q. ―Immediately I thought she‘s trying to make me look like a
bad guy.‖

      A. Right.

      Q. What happened about the car fixing?

      A. That changed.

(A portion of State‘s Exhibit 312[, the clip titled, ―Charles alarmed at
first.wmv,‖] was published.)

      Q. When he says, ―I didn‘t want to get everybody in a panic,‖
does that alarm mean to you alarm for her safety? How do those
two –

       A. Well, it‘s hard to say because he‘s already said that she‘s
trying to make me look like a bad guy. So I‘m not sure whether the
alarm is for her or for himself. I do not know.

     Q. But when he says, I didn‘t want everybody else to panic,
why would they panic if he‘s referring to her setting him up?

      A. That‘s correct. They would not panic about that.

      Q. So if he‘s panicked for her safety, that‘s different than bad
guy, different than –

      A. Sure. To me, that‘s completely different – a different thing.


                                  121
(A portion of State‘s Exhibit 312[, the clip titled, ―Saw the car thought
it was a prank.wmv,‖] was published.)

      Q. Prank.

      A. Yes.

(A portion of State‘s Exhibit 312[, the clip titled, ―Leave car to stay
away a long time.wmv,‖] was published.)

      Q. Give us a scare.

      A. Scare.

(A portion of State‘s Exhibit 312[, the clip titled, ―To make me look
bad.wmv,‖] was published.)

      A. Once again, we‘re back to she‘s trying to make me look like
a bad guy.

(A portion of State‘s Exhibit 312[, the clip titled, ―Car hint to fix
car.wmv,‖] was published.)

      Q. So he‘s back to the car fixing.

      A. Correct.

      Q. That his ex-wife of 11-and-a-half hours –

      A. Yes.

      Q. – has abandoned her vehicle with her keys that look like
they could have her house keys and school keys on it.

      A. Yes.

      Q. In the middle of the country.

      A. Yes.

      Q. With her two kids alone at home.



                                  122
            A. Yes.

            Q. As a hint for him to fix a water leak.

            A. Yes.

      The State contends that Charles‘s differing statements about his initial

thoughts when he saw Kathy‘s car support an inference that Charles acted with

the requisite mens rea to support his murder conviction.

             c. Charles’s statements about searching for Kathy
                      on the morning of December 30

      During Ranger Murphree‘s testimony, the State played a clip for the jury

from the Murphree/Kish statement where Charles said that he got up the next

morning [December 30] about 8:30 a.m.249 Ranger Murphree then testified that

Charee consistently indicated that she had arrived at the farm at around 9:00

a.m. on December 30. The State then played a clip from the Murphree/Kish

interview where Ranger Murphree asked Charles, ―When you come around the

corner and saw her car there, did you look for her?‖ And Charles said, ―Yes, I

did.‖ Ranger Murphree asked, ―Where all did you look for her?‖ And Charles

said, ―I looked all over the place.‖250 Ranger Murphree was then asked:

             Q. Now, if he gets up at 8:30 and leisurely has a cup of coffee
      in the kitchen and Charee arrives 30 minutes later, is there any time
      for that?

      249
        State‘s Exhibit 312, the clip titled, ―Got up, outside hour later.wmv.‖ In
the Horton written statement, Charles wrote that he ―[g]ot up next morning
approx. 7:30 a.m. – 8:00 a.m.‖
      250
        State‘s Exhibit 312, the clip titled, ―I looked all over the place.wmv.‖


                                        123
            A. No.

            Q. You‘ve been out there.

            A. Yes.

            Q. He‘s got a lot of buildings.

            A. He does.

            Q. In two minutes can you look through all that?

            A. You cannot.

       The State contends that Charles did not have time to search all over the

farm before Charee arrived at 9:00 a.m. if he got up at 8:30 a.m. and leisurely

had a cup of coffee and that this supports an inference that Charles acted with

the requisite mens rea to support his murder conviction.

              d. Charles’s statements about seeing Kathy’s car

      Ranger Murphree testified that during the Murphree/Kish interview,

Charles said that on the morning of December 30 he woke up, went to the

kitchen, and, although he looked out the window, he did not see Kathy‘s car

because it was parked close to the garage. Charles said that about an hour

later, he went outside and saw Kathy‘s car. The State played a clip from the

Murphree/Kish interview where Charles said this.251 The State then had Ranger

Murphree read two sentences from Charles‘s written Horton statement where

Charles wrote, ―I got up the next morning and saw the car in the driveway, up by

      251
        State‘s Exhibit 312, clip titled, ―Car is close to the garage.wmv.‖


                                       124
or in front of the garage. I panicked at first, went outside, keys in floorboard.‖

The prosecutor proceeded to ask Ranger Murphree whether Charles‘s written

statement differed from Charles‘s statement on the clip from the Murphree/Kish

interview that he had just played for the jury. Ranger Murphree testified:

            A. It‘s the exact opposite of what we just heard.

            Q. And then later in the same statement he says, [―]I came
      back in[‖] -- I guess from when he says he went outside – [―]and
      calmed down.[‖]

            A. Yes.

            Q. Now, if Mr. Stobaugh is innocent, then he would be seeing
      the car for the first time when he got up. Is that fair?

            A. Yes.

              Q. Would you expect that to be a seminal or dramatic moment
      in his life?

            A. I would expect it to be, yes.

           Q. Would you expect it to be where he tells it in two polar
      opposite ways?

            A. I would not expect that, no.

           Q. Is that relevant to your investigation as to the guilt of Mr.
      Stobaugh?

            A. It is.

            Q. How?

            A. They both cannot be true. If we talk about a dramatic
      event, something that‘s very shocking to you, I would expect you to
      remember exactly how that went down.




                                        125
      The State points out the discrepancy between Charles‘s statement during

the three-hour Murphree/Kish interview that he did not see Kathy‘s car from the

kitchen window because it was parked close to the garage and saw it only after

he went outside and Charles‘s three-paragraph written Horton statement that he

saw the car in the driveway, up by or in front of the garage, and then went

outside after he saw the car. The State contends that this discrepancy supports

an inference that Charles acted with the requisite mens rea to support his murder

conviction.

 e. Charles’s statements concerning an options paper typed up by Kathy

      The State contends that Charles made contradictory statements about

whether he had ever seen a typed-up, four-property-division-options paper that

Ranger Murphree found in Kathy‘s black binder on her kitchen table in the rent

house; the State claimed at trial that Kathy had typed this four-property-division-

options paper on her computer.252       Charles consistently recited in all of his

statements that Kathy did not bring any papers into the house when she came to

the farm on the evening of December 29. The State played these clips for the

jury.253 Charles also consistently recited that Kathy went to the farm on Monday

night, December 27, before she had a 2:00 p.m. appointment with her lawyer on


      252
         The State offered no evidence at trial that Kathy had typed up this
paper.
      253
         State‘s Exhibit 312, clips titled, ―Kathy brings nothing in.wmv‖ and ―Kathy
not bring papers in.wmv.‖


                                        126
Tuesday, and wanted Charles to sign one of three options as to how the couple‘s

assets should be divided. Charles never denied seeing papers on Monday night.

Charles said he told Kathy on Monday night that he was not signing anything and

that she should just go to the lawyer and get it set the way she wanted it. The

State played these clips for the jury. 254

      The State asserted at trial and asserts on appeal that these two

documents—a three-options document that Charles admitted seeing on Monday

night and the four-options document that he claimed he had not seen—were the

same document and that Charles was lying about not having seen the four-

options document.255 The State also points out Keela Stobaugh‘s testimony that

Charles had told her that Kathy had ―the divorce papers‖256 when she came over

on December 29 and Tommy‘s written statement that Kathy had ―gotten out

some paperwork‖ before she left to go to the farm on December 29.

      The State contends that Charles lied about whether he had seen the four-

options document and lied about whether Kathy had brought papers into the

house at the farm with her on the evening of December 29, 2004, and that these



      254
         State‘s Exhibit 313, clip titled ―Kathy out here Monday.wmv.‖
      255
         The prosecutor asked Ranger Murphree, ―[W]hen she came out on
Monday, she did have most likely, that right there [the four-property-division-
options paper?]‖ And Ranger Murphree answered, ―Yes.‖
      256
         Kathy‘s divorce lawyer testified that she had not prepared or forwarded
to Kathy the final divorce decree prior to December 29.


                                             127
lies support an inference that Charles acted with the requisite mens rea to

support his murder conviction.

              f. Charles’s statement about hiring a private investigator

        During Charles‘s verbal statement to Horton, Charles said, ―We took

$5,000 dollars out of Kathy‘s account to put on a private investigator.‖ Horton

told Charles, ―That‘s as illegal as it can be.‖ Charles replied, ―It is?‖257 The State

played the clip from the Horton verbal statement recording this exchange for the

jury.

        Ranger Murphree testified that Charles‘s statement to Horton that he had

taken $5,000 from Kathy‘s account to hire a private investigator was not true

because there had been no activity on Kathy‘s bank account from December 29,

2004, through the time of trial. Ranger Murphree testified: ―There‘s only been a

little bit of interest accrued. Absolutely no withdrawals or no activity by anyone

other than some interest being gained on the account since she disappeared.‖

Ranger Murphree was asked:

                Q. Did he [Charles] hire a PI?

                A. I‘ve never been contacted by any PI hired by Charles Stobaugh.

                Q. Did he do it the way he said here?

                A. He definitely did not do it the way he said he did it.




        257
          State‘s Exhibit 313, the clip titled, ―Charles hires a PI with K‘s $.wmv.‖


                                           128
      The State contends that Charles lied about hiring a private investigator

with Kathy‘s money and that this lie supports an inference that Charles acted with

the requisite mens rea to support his murder conviction.

                 g. Charles’s statement of his reason for dropping
                            Tommy off at the rent house

      Charles took Tommy to Kathy‘s rent house around 7 p.m. on December

29. In the Murphree/Kish interview, Ranger Murphree asked Charles why he

took Tommy to Kathy‘s house. Charles said that Tommy had been at the farm

with him for several nights over the Christmas holidays and had received several

Nintendo games for Christmas so Charles had asked Tommy if he wanted to go

to the rent house to play the Nintendo games on his TV. And Tommy said,

―Yes.‖ Charles said that he told Tommy he did not blame him and that he might

―call mom and see what she found out.‖258       The State claims that Charles‘s

explanation for taking Tommy to Kathy‘s rent house on December 29 is

inconsistent with Tommy‘s written statement. Tommy wrote in his statement, ―My

Dad had brought me to my moms [sic] house so he could talk to her about what

the lawyer had to say about what was going to happen. I went in and sat down

and she said hi and I said hi. Then I asked her if I could was [sic] the dog in the

bathtub.‖

      The prosecutor then asked Ranger Murphree:



      258
        State‘s Exhibit 312, the clip titled, ―Why take Tommy.wmv.‖


                                       129
               Q. All right. Charles, did he say that it was because Tommy
         wanted to play Nintendo is the reason why he took Tommy back to
         Kathy‘s?

               A. He did.

                 Q. And if that was true, does it make Charles look like – less
         like I took Tommy home so we could be alone out here?

               A. That makes it look like it‘s Tommy‘s idea.

         The State contends that the alleged discrepancy between Charles‘s and

Tommy‘s explanations of why Charles took Tommy to Kathy‘s house supports an

inference that Charles acted with the requisite mens rea to support his murder

conviction.

                    h. Charles’s statements about Kathy’s last words

         The State argues that Charles gave inconsistent statements about where

he was when Kathy made her ―I‘m leaving‖ statement. Charles wrote in his

Horton written statement that he was sitting at the kitchen table, but he said in

the dash-cam video statement recorded by Officer Vest that he ―shut the door‖

and went to bed, which the State contends means that he was outside, not sitting

at the kitchen table. As set forth above, in his written Horton statement Charles

wrote:

         She got up from the table and started walking toward the back door
         to leave and turned toward me and ask, why does the man always
         think he has to try to win? I said, still setting at the table, I wasn‘t
         trying to win, I wanted this done fair and get through with it. When
         Kathy got right at the back door and I couldn‘t see her, cause I was
         still in my chair, she said she was leaving and I said O.K., and she
         said again I[‗m] leaving and you might not see me again. I said,



                                           130
      yeah, right, just kidding, and she left. I never went outside, stayed in
      house.

[Emphasis added.] In the dash-cam video statement recorded by Officer Vest, in

a clip played for the jury, Charles stated, ―She said, ‗I‘m leaving.‘ I shut the door.

I went in and took a bath and went to bed.‖259 The State established that if Kathy

made her ―I‘m leaving‖ statement at the back door while Charles was sitting at

the table, that would mean that they could not see each other when Kathy made

her statement. The prosecutor then asked Ranger Murphree:

             Q. Where if something happened at the back door, if she in
      fact went somewhere where she‘s never seen again ever, two
      months later [in the Horton written statement] we‘re making the
      point, I didn‘t get out of my chair.

             A. That‘s correct.

             Q. I‘m still sitting at the table.

             A. That‘s right.

      The State contended at trial that this discrepancy in where Charles said he

was when Kathy made her ―I‘m leaving‖ statement means that Charles was in

fact outside and supports an inference that Charles acted with the requisite mens

rea to support his murder conviction.

             i. Charles’s statement concerning his conversation
                    with Mark Munday on January 3, 2005

      Phone records from Mark Munday––Kathy‘s older brother––showed that

Charles called Mark‘s home phone number at 5:37 p.m. and again at 5:39 p.m.

      259
         State‘s Exhibit 314, the clip titled, ―The back door 1.wmv.‖


                                           131
on Monday, January 3, 2005, and that Charles then called Mark‘s cell phone at

5:51 p.m. on January 3, 2005, and talked to Mark for eighteen minutes. During

the dash-cam video statement recorded by Officer Vest––made within an hour

after Charles‘s eighteen-minute conversation with Mark Munday––Charles stated

that during this call, he asked Mark whether Kathy was acting differently or

seemed more distant from the Mundays than she used to be. 260 During Mark‘s

trial testimony, the State played this excerpt from the dash-cam video statement

and then asked Mark whether Charles ―gave an accurate description of [their]

phone conversation?‖     Mark answered, ―No.‖       On cross-examination, Mark

agreed that he was in Lowe‘s when he was talking to Charles for eighteen

minutes and agreed that he did not remember the specifics of everything they

talked about because ―it‘s been six years ago.‖

      The State contends that Charles‘s statement to Officer Vest that he had

asked Mark whether Kathy had been acting differently or seemed more distant

from them than she used to be and Mark‘s testimony that Charles did not

accurately portray their conversation supports an inference that Charles acted

with the requisite mens rea to support his murder conviction.

                 j. Charles’s statements concerning whether
                   he and Kathy had argued on December 29

      The State asserts that Charles gave inconsistent statements about

whether he and Kathy had argued on the evening of December 29. Charles

      260
        State‘s Exhibit 283 at 35:00.


                                        132
repeatedly stated that Kathy became angry, upset, red-faced, or flustered but

that he did not. Keela Stobaugh testified, however, that Charles characterized

the December 29 meeting as a ―casual conversation, not heated.‖

      The State contends that the alleged discrepancies in the way Charles

characterized the December 29 conversation between him and Kathy supports

an inference that Charles acted with the requisite mens rea to support his murder

conviction.

     2. Other Testimony and Evidence Concerning Charles’s Conduct
                        After Kathy Disappeared

      The State argues that, in addition to the above circumstantial evidence of

the requisite mens rea provided by Charles‘s statements, his ―questionable

behavior in the aftermath of Kathy‘s disappearance also could have contributed

to the jury‘s inference of [his] intent.‖ The State describes and lists these actions

as follows: Charles did not attempt to call Kathy after the evening of December

29; Charles did not attempt to go to court on December 30 to contest Kathy‘s

division of property and did not attempt to learn whether he was divorced on that

date as Kathy had planned; Charles had a surprisingly calm and relaxed

demeanor about the disappearance of his wife in interviews with police; Charles

had his friend take Kathy‘s computers out of her house even though he knew

police were investigating her disappearance; Charles asked his brother-in-law, a

police officer, about whether a cell phone could be tracked across the border;

Charles acted very strange toward a brother-in-law the day after Kathy‘s



                                        133
disappearance, as though he anticipated he would be suspected in her

disappearance; Charles did not participate in any of the organized searches for

Kathy; Charles did not tell anyone in either family that Kathy had disappeared

until after Charee reported her missing to police in the late afternoon of January

3, 2005, even though he knew something was definitely wrong that morning;

Charles did not accompany Charee to the police station, and the jury could

rationally infer that Charee did not tell Charles she was going to the police

station, knowing he would be opposed; Charles moved Kathy‘s car under less-

than-clear circumstances, and his explanation likely conflicted with Charee‘s; and

Charles maintained that he took Kathy‘s computers to get them forensically

analyzed, but no forensic analysis was done.261 We set forth below all of the

evidence concerning each of Charles‘s behaviors in the aftermath of Kathy‘s

disappearance that the State asserts are questionable and constitute

circumstantial evidence that ―with intent to cause serious bodily injury to an

individual, namely Kathy Stobaugh, [he] commit[ted] an act clearly dangerous to

human life that caused the death of said Kathy Stobaugh, by manner and means

unknown‖ as alleged in the indictment or that Charles intentionally or knowingly

caused Kathy‘s death by a manner and means unknown as alleged in the

indictment.




      261
        The State‘s brief lists these items on pages 31 and 32.


                                       134
                          a. Charles’s failure to call Kathy

      Charles did not own a cell phone. During trial, the State proved that only

long distance calls show up on phone records from a land-line and that Charles

did not make any long distance calls from the land-line at his home before Kathy

was reported missing by Charee. The State pointed out that all of Kathy‘s family

are ―Gatesville people‖––which would be a long distance call from the farm––and

that Charles did not call any of Kathy‘s family to try to determine where she was

prior to the time Charee reported Kathy missing. The prosecutor asked Ranger

Murphree at trial:

             Q. Now, in some divorces, a potential ex-spouse could be so
      indifferent that he doesn‘t call.

             A. Sure.

              Q. Does Charles relate to us that he was indifferent, or that
      he still loved her and he wanted her to come home and he loves her
      now and he wanted to reconcile and all those things?

             A. I believe indifferent is the only one he left off.

             Q. Does he say, I still love her?

             A. He did.

             Q. Just come on home.

             A. Absolutely.

             Q. You need to come on home.

             A. Yes.

             Q. Didn‘t want the divorce.



                                         135
            A. That‘s right.

            Q. So is there any shred of evidence from him where he says,
      [ ]
      ― I was so indifferent I didn‘t want to pick up the phone?[‖]

            A. No.

           Q. So what is the only explanation left when he doesn‘t leave
      a message?

            A. Like he said in his interview, he knows she‘s not answering
      that phone. She‘s dead.262

During closing argument, the State argued,

           My wife that I‘ve loved for 20 years that says you‘ll never see
      me again, her car is in the driveway and she ain‘t there and I call
      nobody. Well that‘s ridiculous. I call nobody.

            And every time I‘m asked, I throw out every possible
      explanation I can: Panic, anger, fear, setup, bumfuzzled, didn‘t
      know. Whatever it is, every one of them is a phone call.

             What did you do you witch? You left Tommy alone.
             Honey, where are you?
             What are you trying to do, set me up?
             Every one of them is a phone call.
             Under those circumstances that he lays out, the only
      reasonable explanation for not calling is because he doesn‘t need to
      call because he knows where she is because she‘s where he put
      her. Okay?

      The State contends that Charles‘s failure to call Kathy‘s cell phone any

time between Thursday, December 30, 2004, and Monday evening, January 3,

2005, as argued in closing argument, supports an inference that Charles acted

with the requisite mens rea to support his murder conviction.

      262
        Charles‘s Murphree/Kish interview, set forth above, does not contain
such a statement by Charles.


                                       136
               b. Charles did not go to court on December 30
                    to contest Kathy’s property division

      Kathy‘s divorce lawyer testified at trial that she was going to meet Kathy at

the courthouse on the morning of Thursday, December 30 to obtain a default

divorce judgment.   No particular hearing time is set forth in the record, and

because Charles did not file an answer, Kathy‘s lawyer testified that she did not

provided him with notice of a hearing date or time or with any papers in the

proceeding.   Charles stated in the Murphree/Kish interview that he had not

received notice of any court proceedings.263

      The State argued at trial and argues on appeal that the fact that Charles

did not show up at the courthouse on December 30 at 8:30 a.m. to contest the

default judgment and the fact that he did not immediately hire a divorce lawyer

means that Charles knew that Kathy was dead.            Kathy‘s divorce attorney,

however, did not testify that a hearing was set at 8:30 a.m. on December 30.

She testified only that she and Kathy were going to meet at the courthouse on

the morning of December 30 to obtain the default judgment. No evidence exists

in the record of an 8:30 hearing time. Charles did hire a divorce lawyer, and he

filed an answer on January 24, 2005.

      Ranger Murphree was asked:

             Q. Did you – did Charles – do we have any evidence in your
      investigation that he got a lawyer and they came up to the
      courthouse the next morning to try to stop this default judgment?

      263
        State‘s Exhibit 284 at 1:43:12.


                                          137
            A. He said he didn‘t.

            Q. Do we have any evidence that he called to find out from
      any person, hey, am I divorced?

            A. He did not. No evidence of that.

                  ....

            Q. Does that make any sense to you?

            A. It doesn‘t make sense.

            Q. Why?

            A. The entire argument is about him going to contest this
      divorce. That‘s why she walks out the door and said, [―]I‘m leaving
      and you‘re never going to see me again.[‖] She‘s mad because he
      won‘t do it her way.

             Well that‘s not the time for her to be mad. The time for her to
      be mad is if she‘s standing in the courtroom and he shows up and
      then he contests it. She knows she is going to get what she wants
      at 8:30 in the morning. As far as Charles knows, at 8:30 in the
      morning, she‘s getting what she wants and we‘re divorced. But he‘s
      not standing in the courtroom at 9:00 a.m. waiting for a judge or
      hollering, hey, that‘s not the way I want to do it.

      The State contends that Charles‘s failure to appear in court the morning of

December 30 to contest the no-answer default judgment and his failure to hire an

attorney for twenty-five days, until January 24, 2005, support an inference that

Charles acted with the requisite mens rea to support his murder conviction.

                             c. Charles was calm

      Many of the State‘s witnesses testified that Charles seemed calm and not

upset in the aftermath of Kathy‘s disappearance. Ranger Murphree agreed that



                                        138
―[t]here was a lot of testimony that [Charles] didn‘t get all excited and didn‘t do

this and didn‘t do that when Kathy was missing, but he [Charles] didn‘t get

excited during the interrogation either.‖ Ranger Murphree agreed that ―[t]hat‘s

just his personality.‖

      The State contends that Charles‘s calm demeanor during his interviews

and in the aftermath of Kathy‘s disappearance supports an inference that Charles

acted with the requisite mens rea to support his murder conviction.

                d. Charles acted strangely to his brother-in-law

      Chris Munday, Kathy‘s younger brother, testified that sometime on the

evening of Monday, January 3, 2005, he learned that Kathy was missing and

spoke with police.       Because he was the family member that lived closest to

Kathy, he went out to the Stobaugh farm on the morning of Tuesday, January 4.

Chris said that he knocked on the door and that no one answered. As he was

getting ready to leave, Charles answered the door.        Chris said that Charles

initially opened the door widely but then closed it to a crack just big enough for

them to talk through when he saw who was at the door. Chris said that he asked

Charles what was going on and where Kathy was; Charles said he did not know

what was going on and wished that he knew where Kathy was. Charles did not

ask any questions of Chris, and Chris left.

      The State contends that this behavior by Charles on the morning of

January 4, 2005, was strange and showed that he anticipated that he would be a

suspect in Kathy‘s disappearance.             Charles was at the Sanger Police


                                        139
Department being interviewed by Ranger Murphree and Investigator Kish until

4:00 a.m. on January 4, 2005, and the interview reflects that Charles understood

at that time that he was a suspect in Kathy‘s disappearance.

      The State contends that Charles‘s behavior toward his brother-in-law on

the morning of January 4, 2005, supports an inference that Charles acted with

the requisite mens rea to support his murder conviction.

      e. Charles asked a follow-up question about tracking a cell phone

      Chris Munday testified that on the evening of Thursday, January 6, the

Munday family––Mr. and Mrs. Munday, Mark Munday and his wife Kim, and

Chris and his wife Keela––had a ―sit down‖ meeting with Charles, Charee, and

Tommy at the Stobaugh farm. He said the meeting was very tense. Chris said

that Charles told his story of what had happened: that Kathy had come over and

had become angry ―because he said he was going to sell everything off and give

her half‖; that Kathy had asked why the man always had to be right; that Kathy

had said no one would see her again; and that Kathy had left. Chris testified that

Charee and Tommy then told the family their stories of what had happened; their

stories were consistent with the statements that they provided to police. At some

point, either Charee or Charles asked Chris, who is a police officer, ―if anybody

could track a cell phone.‖    Chris decided to bluff, ―yanked [his] phone apart,

pulled out [his] SIM card,‖ and said, ―Well, if this is in the phone, you can track it

anywhere, no matter what.‖ At that point, Charee said that Kathy‘s phone was

just like hers; Charee got her phone out and took the SIM card out of her phone.


                                         140
Chris said that at this juncture, Charles asked, ―Even across the border?‖ Chris

took this to mean across the Oklahoma border.

      The State contends that Charles‘s questions about whether a cell phone

could be tracked, including across a border, support an inference that Charles

acted with the requisite mens rea to support his murder conviction.

                f. Charles failed to participate in the searches

      According to the Murphree/Kish statement, Charles searched the farm

twice for Kathy on the morning of December 30, 2004—once before Charee

arrived at around 9:00 a.m. and again shortly after that with Charee and Tommy

after Charee had picked up Tommy and arrived back at the farm. It is undisputed

that Charles did not participate in any other searches of the Stobaugh farm.

Chris Munday said that Charles did not participate in searches. Tim Stobaugh

thought that Charles, Charee, and Tommy should have participated in the

searches; Charles was on a tractor moving hay during one of the searches.

Each of the State‘s witnesses conceded, however, that Charles had consented to

allow them to search his property, that Charles had already searched his

property, that Texas Rangers had searched his property, that Denton County

investigators had searched his property, and that in January there were no tall

crops on the Stobaugh farm and visibility across the entire property was good,

making it unlikely that the prior searches had missed something.

      The State consistently emphasized Charles‘s failure to participate in the

searches of the Stobaugh farm. In closing argument, the State argued:


                                       141
             And when his family comes out, his family, Tim, Debbie, Louis,
      Toby, he doesn‘t look. I want you to try to think about that. He‘s laid
      up in the house with two teenagers, not five-year olds. A 13-year old
      boy, man-child, and a 16-year old girl who‘s about to be 17. And
      they sit in that house while their uncles and aunts look for their mom,
      and he don‘t come out. There ain‘t no TV, no lawyers, no cops. It‘s
      his brother and his sister-in-law and his cousins, and he won‘t come
      out to search.

           Why? Because that‘s who he is. He‘s done with her. She‘s
      been put in her place literally and figuratively.

             People don‘t do that. I couldn‘t–I can‘t imagine being in there
      with your children that are that age while your Uncle Rick and Ryan
      is looking for her. Good God Almighty. Go look. But he doesn‘t,
      ever.

      The State argues on appeal that Charles‘s failure to join in the family

searches and other searches of the farm supports an inference that Charles

acted with the requisite mens rea to support his murder conviction.

            g. Charles did not tell anyone that Kathy was missing
                     until Charee reported her missing

      The evidence at trial established that after Charles found Kathy‘s car on

the morning of December 30, he did not call anyone or tell anyone that Kathy had

disappeared until after Charee reported Kathy missing at around 4:30 p.m. on

January 3, 2005. Although Charles said in the Murphree/Kish statement that he

became concerned or panicked after the Nocona school secretary called him at

around 10:00 a.m. on January 3, 2005, and told him that Kathy had not reported

to work that morning for a teacher workday, he still did not call anyone until after

Charee reported Kathy missing.




                                        142
      The State contends that Charles‘s failure to call anyone after Kathy

disappeared until Charee reported Kathy missing supports an inference that

Charles acted with the requisite mens rea to support his murder conviction.

      h. Charles did not accompany Charee to the police department

      The record establishes that Charles did not accompany sixteen––almost-

seventeen––year-old Charee to the Sanger Police Department to report Kathy

missing. Differing explanations exist in the record as to why Charles did not

accompany Charee.

      In the Murphree/Kish statement, the following dialogue occurred between

Charles and Ranger Murphree:

            C: I was going to talk to her family today first.264

            M: After the school called you and the police showed up.

            C: I know it don‘t look good. But I‘m just saying, I hadn‘t heard
      anything from them, I finally got ahold of Mark on his cell phone, I
      told Charee to go to the house to get some phone numbers, Charee
      stopped by the police station to report her missing because I said,
      ―I‘m gonna call Mark; then we‘re going to report her missing.‖265

      Charee testified that she reported Kathy missing on January 3, 2005. She

testified that she had a conversation with her dad and her brother about reporting

Kathy missing. Charee said that she volunteered to report Kathy missing and

also explained that they ―knew that [police] were going to need to search both


      264
        State‘s Exhibit 284 at 57:18.
      265
        State‘s Exhibit 284 at 58:40.


                                        143
places‖ and that she was the only one with keys to Kathy‘s house.              She

conceded on cross-examination that Charles had the keys to Kathy‘s car that had

been left in her car parked at the farm; those keys contained a house key.

      Concerning his meeting with Charee at the Sanger Police Department at

approximately 4:30 p.m. on January 3, 2005, Officer Vest testified:

             A. She was wanting to report her mom that had been missing
      for quite a few days. I believe it was five at the time. She had tried
      to have contact with her mother and had no response from her.

            Q. Was she alone?

            A. Yes, she was.

            Q. How old was Ms. Charee Stobaugh?

            A. 16.

            Q. 16-year old girl.

            A. Uh-huh.

            Q. Her dad wasn‘t with her?

            A. No.

            Q. Is that unusual?

            A. Yes.

            Q. Why? How?

            A. Yes, it is, if there‘s a dad and a mother still married
      together. These days, sometimes that‘s not the case.




                                       144
      The State contends that Charles‘s failure to accompany Charee to the

Sanger Police Department to report Kathy missing supports an inference that

Charles acted with the requisite mens rea to support his murder conviction.

                          i. Charles moved Kathy’s car

      Ranger Murphree testified that Charles ―never says why‖ he had to back

Kathy‘s car out of the way the first time. He testified:

             Q. You‘ve been out there.

             A. I have.

             Q. Is there any physical physics, you know, world [sic] reason
      that you‘d need to move her [Kathy‘s] white car to get into any of his
      other outbuildings?

             A. No.

             Q. So from the neutral evidence, the fact that the car [the blue
      one in the garage] isn‘t driven, the fact that the junk is junk, the fact
      that the barns are way over yonder, is there any reason he had to
      back her car out of the way that we can see?

             A. I could think of none except one.

             Q. What‘s that?

             A. To get her body out of the garage.

           Q. Because if he killed her back by the back door there,
      where is her body?

            A. It‘s in the garage or in the – just the inside of the door of
      the house.

      The State then played a clip for the jury from the January 3, 2005 dash-

cam video statement where Charles told Officer Vest, ―And when I got up



                                         145
Thursday morning, that car was sitting right here, of course, I had to back it out of

the way, so we backed it out right there, I did. And I had to get a trailer out of the

barn and I parked it right there. And it hadn‘t been touched.‖266 After the State

played this clip, the prosecutor and Ranger Murphree had the following

exchange:

             Q. ―We.‖

             A. ―We‖ and then ―I.‖

             Q. They‘ve been married 20 years.

             A. They have.

             Q. It would be hard to break that attachment even if he‘s –

             A. I believe so.

      Charee testified that on Friday, December 31 she suggested to Charles

that they move Kathy‘s car because a tree overhangs the spot where Kathy‘s car

was parked and drops sap and bird poop and sometimes branches. Charee said

that Charles agreed and that she was standing there while Charles backed

Kathy‘s car straight back, out from under the tree. Pictures of the farm show the

large tree overhanging the drive. Charee said that she also was there when

Charles moved Kathy‘s car a second time. Charee testified, ―We had to haul

some hay somewhere, and the way—where the car was parked, it was in the




      266
         State‘s Exhibit 314, the clip titled, ―Had to back it out of the way.wmv.‖


                                         146
way of getting the truck out of the barn. And also whenever we went to hook up

the trailer and pull back through the drive, it would have been in the way.‖

      The State contends that Charles‘s moving Kathy‘s car supports an

inference that Charles acted with the requisite mens rea to support his murder

conviction.

              j. Charles took Kathy’s computers for forensic analysis
                           but did not have them analyzed

      Kathy had two computers at her rent house—one computer tower and one

laptop. After law enforcement had twice searched Kathy‘s rent house and did not

confiscate Kathy‘s computers, a friend of Charles‘s, Jeff Boykin, accompanied

Charee to the rent house to obtain Kathy‘s computers. Charee testified that she

and Charles wanted to turn the computers over to Charles‘s attorney to send

them off to be analyzed to see if there were any clues regarding Kathy‘s

whereabouts. Law enforcement requested that the computers be returned to

them, they were, and testing established that the hard drives had not been

scrubbed or altered in anyway; the seal on the back of Kathy‘s computer tower

had not been broken.

      Ranger Murphree was asked:

            Q. Did your investigation uncover that he had sent one of his
      buddies over there [to Kathy‘s house] with his daughter to take stuff
      [computers] out of her house after the investigation began?

               A. Yes.

           (A portion of State‘s Exhibit 313[, the clip titled, ―Moving
      computers, Boykin.wmv,‖] was published.)


                                        147
      Q. Just happened to be over there one day and said, hey, go
over to my wife‘s house and get her computers out of there.

      This – the timing of this is – this is after the investigation
begins. Is that correct?

      A. That‘s correct.

      Q. Before her family can get down there.

      A. That‘s correct.

      Q. So between the time he meets Vest and then you and
before the Mundays can get into town. Right?

      A. Yes.

      Q. He sent Jeff Boykin out there to take stuff out of her house.

      A. Yes.

      Q. You eventually got them back.

      A. Yes.

      Q. Tell the jury about that.

       A. We learned the information. I contacted Jeff Boykin. And
actually one computer had been stored at his house they were able
to get, and then there was another computer, I believe, that was
given to an attorney. And they‘d sent it off, and it took me a while to
get that one back.

       Q. So is that relevant to your investigation of someone being
– trying to hide something or being totally innocent?

       A. To me, it makes absolutely no sense why he would do that
unless – either trying to hide something or afraid something is on
there.




                                 148
      The State argues that the fact that Charles said he retrieved the computers

from Kathy‘s house to give to his attorney for forensic testing, which was contrary

to evidence at trial showing that the computers had not been forensically

analyzed, supports an inference that Charles acted with the requisite mens rea to

support his murder conviction.

         3. Other Clips and Testimony Elicited by the State at Trial

      Although not mentioned by the State in its appellate brief, the State elicited

the following testimony at trial and argued that it constituted circumstantial

evidence that Charles murdered Kathy.

     a. The oil change information and the list found in Charles’s Bible

      Ranger Murphree testified that the papers seized from the kitchen counter

at the Stobaugh farm on January 14, 2005, pursuant to the search warrant

executed by the FBI show that Charles was contemplating suicide. The papers

seized from the countertop on January 14, 2005, consist of two sheets of paper

containing handwritten lists and information on the type and quantity of oil

Charles used in his various pieces of farm equipment and vehicles as well as a

sheet of paper taken from inside Charles‘s Bible, which was on the kitchen

countertop, listing six men and their relationship to Charles, naming two

ministers, and stating that his insurance and social security were good. Ranger

Murphree testified:

           Q. Now, you talked to a lot of people about Charles and the
      way he is with his money and his equipment, things like that.



                                       149
       A. I have.

       Q. And is he incredibly meticulous about his stuff?

      A. There‘s no doubt. I saw it firsthand in the search warrant,
the way his equipment is taken care of and vehicles. Very
meticulous.

       Q. So we found these notes. What do these notes appear to
be to you?

       A. These are -- to me, these are instructions. These are
instructions to someone about changing the oil on just about every
piece of equipment he has on the farm: His ‗89 Mercury, his ‗89
Lincoln, ‗87 Mercury, his 2000 pickup, 3020 tractor, 4440 tractor.
Everything -- everything from the lawn mower to his welder, he has
detailed instructions on the type of oil -- how many quarts of oil and
what kind of oil to use. Once again, he‘s got his lawn mower, the
push mower, his tiller, the three-wheeler, the motorcycle, detailed
instructions on how to do all of that.

       Q. Knowing Charles as you do, why do you think there are
instructions to somebody?

      A. They‘re not for him. Charles knows this equipment like the
back of his hand. There‘s no doubt in my mind. He‘s a farmer. I‘ve
been raised around farmers my entire life. They know their
equipment. They know when things are due. They know when
maintenance is needed to be done on it. These are instructions to
someone else.

       Q. And does our third document also reinforce that idea to
you?

       A. It does. What this document meant to me then and means
to me now -- if you have Doug Hammond, a close friend; Billy
Stobaugh, cousin; Jerry Stobaugh, cousin; Jeff Boykin -- J. Boykin is
Jeff Boykin -- a good friend; Moose, a good man; Mark Munday, a
good man. It appeared to me that day and today -- if you count
those names, there are six names there. You look under that, you
have the names of two ministers. You look under that and you have
notations about his insurance at work is good, his Social Security is
good. What this means to me is these are pallbearers. These are


                                 150
      preachers. This is telling someone my insurance is good; my Social
      Security‘s good. This is who I want at my funeral. This is who I want
      to preach my funeral. By the way, I want you to take care of my
      equipment, and this is how you do it. In my opinion, Charles
      Stobaugh is contemplating suicide.

                   ....

           Q. Okay. And so this [the papers] is picked up on the 14th of
      January, ‘05.

            A. Yes.

             Q. And the police have been out there speaking to him on the
      3rd of January of ‘05.

            A. That‘s correct.

            Q. So there‘s two weeks in between.

            A. That‘s right.

      This testimony makes it seem that Charles wrote down the oil change

information and the list of six individuals, two ministers, and his insurance

information during the two-week time period after he spoke to police on January

3 and before the FBI executed the search warrant on January 14. The papers

were admitted into evidence and they are not dated; they do not indicate on what

date Charles wrote down this information. No evidence exists in the record as to

the date Charles prepared these papers; they could have been ten years old or

ten days old.

      At trial, the State contended that Charles‘s list of types and quantities of oil

used in his vehicles and equipment and the piece of paper found in Charles‘s

Bible listing six men, naming two ministers, and noting that his insurance is good


                                        151
supports an inference that Charles was going to commit suicide because he had

acted with the requisite mens rea to support his murder conviction.

              b. Charles’s use of time in his written statement

      Ranger Murphree testified that Charles‘s ―use of time‖ in the written

statement he made to Horton establishes that a ―significant event‖ happened at

9:55 p.m. on December 29. Ranger Murphree testified:

             Q. What do you notice about the use of time when Charles
      writes about time?

             A. Well, I notice in these particularly, in the beginning and the
      ones on the bottom, he uses time like I would use or what I would
      think a normal person would use: It‘s about 7:00 p.m.; probably
      about 8:00 p.m.; she got here about 9:30; approximately 7:30 to
      8:00; about 9:00 a.m. I would expect that. I would use that; you
      would use that; everybody would use that. One that concerns me,
      she left at 9:55 p.m. That‘s ―about 10:00.‖ What that tells me and
      what I believe to be true is that‘s a significant time for him.
      Something happened at 9:55 p.m. Something happened where
      that‘s a visual reference, I believe. And that‘s the only time that we
      don‘t have a rounded-off number. That‘s the only time we‘re not
      7:30 to 8:00; we‘re not 7:00; we‘re not 8:00. I never say, I got there
      about 9:55 p.m. I got there about 10:00. And so that stands out to
      me.

             Q. And would that time be precisely in the time that he has
      told us that she arrived and so she would be at his residence when
      they were discussing the divorce?

            A. What‘s even more significant at that time, that‘s the time he
      says she leaves. The only time that‘s like that is the time she
      leaves. What I believe is that‘s when a significant event happened.

            Q. Now, the time frame where she‘s killed --

            A. Yes.

            Q. -- is the 29th of December of 2004.


                                        152
            A. Right.

      The State contended at trial that because Charles used a specific time––

9:55 p.m.––as the time that Kathy left the farm on the evening of December 29,

but used a general time, about 9:00 p.m. and about 9:30 p.m., as the time he

called her and the time she arrived at the farm, something significant happened

at 9:55 p.m., which supports an inference that the significant thing that happened

was that ―with the intent to cause serious bodily injury to an individual, namely

Kathy Stobaugh, [he] committ[ed] an act clearly dangerous to human life that

caused the death of Kathy Stobaugh, by a manner and means unknown‖ as

alleged in the indictment or that he intentionally or knowingly caused Kathy‘s

death by a manner and means unknown as alleged in the indictment; that is, that

Charles acted with the requisite mens rea to support his murder conviction.

                        c. Charles’s concern with money

      The State contended at trial that Charles murdered Kathy to avoid losing

half of his money and possessions in the divorce. Ranger Murphree testified:

            Q. And tell us about what your investigation revealed to you.

             A. Talking with family, talking with his family, her family, the
      picture I‘ve got of Charles Stobaugh is that he is monetarily driven,
      he‘s possession driven, and that he doesn‘t want – he likes to make
      a lot of money but he doesn‘t like to spend a lot of money and he
      doesn‘t like anybody else spending his money.

           Q. Now, we‘re going to see him talk on these topics, about
      money and how much money. Right?

            A. Correct.



                                       153
           Q. When we hear Charles Stobaugh‘s own words, do they
      match what your investigation has revealed to you?

             A. Yes.

             Q. Exactly?

             A. Yes.

      (A portion of State‘s Exhibit 312[, the clip titled, ―$ importance, not

      big spenders.wmv,‖] was published.)

             Q. ―She knows.‖

             A. That‘s what he says, yes.

             Q. That I --

             A. ―All I live for is my money.‖267

            Q. So I don‘t want to sign, I‘m fighting tooth and nail, and I
      love my money.

             A. Correct.

      (A portion of State‘s Exhibit 312[, the clip titled, ―No Christmas

      presents.wmv,‖] was published.)

             Q.   Didn‘t buy his wife Christmas because he didn‘t want

      anything.

             A. Correct.

             Q. How long have you been married?

      267
         In the very next question after this clip, which is cut off and not contained
on the clip, Ranger Murphree asked Charles, ―You said ‗she knows‘ and she told
her parents. Does that mean that all you care about is your money?‖ And
Charles answered, ―No sir.‖


                                         154
      A. About eight years.

      Q. Would that work for you?

      A. No.

      Q. You‘ve got four kids in eight years?

      A. Yes, sir.

      Q. All right.

On cross-examination, Ranger Murphree testified:

      Q. No offense, Charles, but Charles isn‘t the fastest motor in
the garage, is he?

      A. That‘s correct.

      Q. He doesn‘t have a college degree.

      A. Not to my knowledge.

      Q. But he‘s a dang hard worker.

      A I believe that.

      Q. Manages his money well.

      A. I believe that.

       Q. Let‘s touch on that a minute. Because you brought that up
in your testimony earlier, that he liked to make a lot of money but he
didn‘t like to spend money.

      A. Correct.

      Q. Does that make a person a bad person?

      A. No.




                                 155
             Q. I thought that‘s the implication there. But it doesn‘t make a
        person a criminal, correct, just because they make money and save
        money?

              A. No, it does not.

        Likewise, members of Charles‘s family testified that he was thrifty and did

not like to spend money. The State contended at trial that Charles loved money

and loved his possessions and property and that this evidence supports an

inference that Charles acted with the requisite mens rea to support his murder

conviction.

   d. Charles’s statements that Kathy would not walk off without her car

        The State played five clips from the Murphree/Kish statement concerning

Charles‘s opinion on whether Kathy might have walked away on foot from the

farm.    The DVD of the entire Murphree/Kish interview shows that Ranger

Murphree, not Charles, was the first to express an opinion that Kathy did not walk

away from her car and leave the farm on foot; Ranger Murphree brought up his

opinion that it did not make sense that the Stobaugh farm was ―out in the middle

of nowhere‖ and that Kathy would leave a car that had gas and was drivable to

walk on foot away from the farm. At trial, Ranger Murphree was questioned and

testified as follows:

             Q. And did Charles Stobaugh weigh in on the issue of
        whether or not Kathy could have walked away?

              A. He did several times.

              Q. Go ahead.



                                         156
      (A portion of State‘s Exhibit 312 was published.)

            Q. Crystal clear?

            A. Crystal clear.

            Q. And the next?

      (A portion of State‘s Exhibit 312 was published.)

            A. Very clear -- sorry.

            Q. You can talk.

           A. Very clear she didn‘t. She did not walk away from that
      house.

            Q. That body language and posture is dismissive of that idea.

            A. It is.

      (A portion of State‘s Exhibit 312 was published.)

            A. Once again, very clear.

      (A portion of State‘s Exhibit 312 was published.)

            A. Once again.

            Q. Now, if he killed her and took her somewhere, she didn‘t
      walk away, did she?

            A. That‘s absolutely correct.

      (A portion of State‘s Exhibit 312 was published.)

            A. Once again, five times during the interview at the minimum
      he agreed she did not walk away from there. [268]


      268
         The five clips played here for the jury from the DVD admitted as State‘s
Exhibit 312 are titled, ―Kathy did not walk away.wmv,‖ ―Kathy not walk away
2.wmv,‖ ―Kathy not walk away.wmv,‖ ―Kathy not walk off hill.wmv,‖ and ―Kathy not

                                       157
      At trial, the State argued that Charles‘s repeated statements that Kathy did

not walk away from her car support an inference that Charles acted with the

requisite mens rea to support his murder conviction.

                                  C. Analysis

              1. Challenge to the Mens Rea Element of Murder

      Charles‘s first point challenges the sufficiency of the evidence to support a

finding by a trier of fact beyond a reasonable doubt that he acted with the

requisite mens rea necessary to support his conviction for murder. Applying the

standard of review set forth previously herein, we view all of the circumstantial

evidence in this case in the light most favorable to the State and determine

whether based on the cumulative force of all of the circumstantial evidence and

the reasonable inferences from that evidence, any rational factfinder could have

found beyond a reasonable doubt the essential element of mens rea. Accord

Gross v. State, 380 S.W.3d 181, 185 (Tex. Crim. App. 2012).

      The mens rea element of the offense of murder––as charged in the

indictment here––required proof that ―with intent to cause serious bodily injury to

an individual, namely Kathy Stobaugh, [Charles] commit[ted] an act clearly

dangerous to human life that caused the death of said Kathy Stobaugh, by

manner and means unknown‖ or that Charles intentionally or knowingly caused


walk.wmv.‖ We are unable to determine the order in which these clips were
played.


                                       158
Kathy’s death by a manner and means unknown. [Emphasis added.] See Tex.

Penal Code Ann. § 19.02(b)(2), (b)(1) (West 2011).          Although penal code

sections 19.02(b)(2) and (b)(1) differ in their descriptions of the mental state

required for culpability, jurors are not required to agree on the defendant‘s

specific mental state; rather, they need only agree that the defendant possessed

one of the alternate mental states that satisfy the element of intent under the

statute. See, e.g., Jefferson v. State, 189 S.W.3d 305, 313 (Tex. Crim. App.),

cert. denied, 549 U.S. 957 (2006); see also Yost v. State, 222 S.W.3d 865, 877–

78 (Tex. App.––Houston [14th Dist.] 2007, pet. ref‘d).     Murder is a ―result of

conduct‖ offense, which requires that the culpable mental state relate to the

result of the conduct, i.e., the causing of the death. See, e.g., Cavazos v. State,

382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Roberts v. State, 273 S.W.3d 322,

328–29 (Tex. Crim. App. 2008).

         2. Circumstantial Evidence, Inferences, and Proof of Intent

      Circumstantial evidence alone can be sufficient to establish guilt. Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).          And while juries are

permitted to draw multiple reasonable inferences as long as each inference is

supported by the evidence presented at trial, juries are not permitted to come to

conclusions based on mere speculation or factually unsupported inferences or

presumptions. See, e.g., Megan Winfrey v. State, 393 S.W.3d 763, 771 (Tex.

Crim. App. 2013). ―‗[A]n inference is a conclusion reached by considering other

facts and deducing a logical consequence from them,‘ while ‗[s]peculation is


                                       159
mere theorizing or guessing about the possible meaning of facts and evidence

presented.‘‖ Id. (quoting Hooper, 214 S.W.3d at 16). ―A conclusion reached by

speculation . . . is not sufficiently based on facts or evidence to support a finding

beyond a reasonable doubt.‖ Id. (quoting Hooper, 214 S.W.3d at 16). If the

evidence presented 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) (brackets in original). In circumstantial

evidence cases, it is unnecessary for every fact to point directly and

independently to the defendant‘s guilt; it is enough if the finding of guilt is

warranted by the cumulative force of all of the incriminating circumstances.

Megan Winfrey, 393 S.W.3d at 778; Temple v. State, 390 S.W.3d 341, 359 (Tex.

Crim. App. 2013).

      A requisite culpable mental state, mens rea, is almost always proved by

circumstantial evidence. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim.

App. 1991), cert. denied, 504 U.S. 974 (1992). A defendant‘s overt acts are

generally reliable circumstantial evidence of one‘s intent. See Laster v. State,

275 S.W.3d 512, 524 (Tex. Crim. App. 2009). Likewise, the specific intent to kill

may be inferred from the use of a deadly weapon. See, e.g., Cavazos, 382

S.W.3d at 384. An intent to kill may also be inferred from the wounds inflicted or

from an autopsy on the body. See, e.g., Ex parte Henderson, 384 S.W.3d 833,

838 (Tex. Crim. App. 2012) (Cochran, J., concurring) (noting that ―[t]he State‘s

primary evidence to prove that applicant intended to kill Brandon consisted of the


                                        160
circumstantial evidence produced by the autopsy [of Brandon]‖); see also Louis

v. State, 393 S.W.3d 246, 251 (Tex. Crim. App. 2012) (holding that ―jury could

not have inferred from the totality of the circumstantial evidence viewed in a light

most favorable to its verdict that appellant intended to cause the death of child‖).

                      3. Application to the Present Facts

      Recapping all of the evidence and reasonable inferences from the

evidence in the light most favorable to the State: Charles did not want a divorce;

Charles loved money and his property; on the evening of December 29, Charles

knew that Kathy was going to obtain a default judgment and would be awarded

half of his property and possessions; on the evening of December 29, Charles

dropped off Tommy at Kathy‘s house, went back to the farm, and called Kathy;

after Kathy spoke with Charles on the phone, she started humming and gathered

up some paperwork; Kathy drove to the farm and arrived about 9:30 p.m. on

December 29; Kathy had a conversation with Charles at the farm on the evening

of December 29; Kathy has never been seen or heard from again; Kathy‘s car

was parked at the farm on the morning of December 30; Charles moved Kathy‘s

car twice; Charles lied about making calls to and leaving a message for Kathy

between December 30 and January 3; Charles lied about hiring a private

detective with Kathy‘s money; Charles did not participate in searches of the farm;

Charles acted strangely toward Chris Munday and mischaracterized a phone

conversation that he had with Mark Munday; Charles asked a question and a

follow-up question about tracking a cell phone and whether it could be traced


                                        161
across the border; Charles took Kathy‘s computers, gave one to his attorney, but

did not present forensic analysis at trial although Charee said that she and

Charles gave the computer to his attorney for forensic testing; Charles was calm;

Charles did not go with Charee to report Kathy missing; Charles‘s stated times

about when he got up on December 29 and when and where he searched for

Kathy that morning are too close to be possible when considered with Charee‘s

testimony about when she arrived at the farm; Charles did not call anyone or tell

anyone Kathy was missing until after Charee reported her missing; Charles did

not go to court on December 30 to contest the divorce or to try to find out if the

divorce had gone through; and Charles gave inconsistent statements concerning

where he was when Kathy said her final words, concerning his initial thoughts

when he saw Kathy‘s car, and concerning whether he had seen a four-property-

division-options paper.   Charee was the only defense witness at the guilt-

innocence phase of trial. Eliminating––in deference to the factfinder‘s ability to

make credibility determinations––every explanation that Charee provided for

some of Charles‘s statements and conduct, these recited facts constitute the

evidence that the State contends is incriminating.

      This evidence, along with the other evidence, viewed in the light most

favorable to the State supports a reasonable inference that Kathy is dead and

certainly establishes that Charles possessed a possible motive and a definite

opportunity to kill Kathy. This evidence viewed in the light most favorable to the

State likewise establishes that Charles lied about certain events surrounding


                                       162
Kathy‘s disappearance––calling Kathy‘s cell phone and leaving a message and

hiring a private investigator with Kathy‘s money—and that Charles‘s conduct after

December 29 was suspicious. But the question is whether the cumulative force

of the facts in the record before us support a deduction by any rational finder of

fact of the logical consequence or conclusion that ―with intent to cause serious

bodily injury to an individual, namely Kathy Stobaugh, [Charles] commit[ted] an

act clearly dangerous to human life that caused the death of said Kathy

Stobaugh, by manner and means unknown‖ or that Charles intentionally or

knowingly caused Kathy’s death by a manner and means unknown. [Emphasis

added.] See Megan Winfrey, 393 S.W.3d at 771 (explaining that an inference is

a conclusion reached by considering other facts and deducing a logical

consequence from them).

      Viewing all of the evidence in the light most favorable to the State, no facts

exist in the record before us that Charles committed any specific act directed at

Kathy.   The State conceded in closing argument at trial that no facts exist

concerning what act Charles purportedly committed against Kathy.            In final

closing argument, the prosecutor summed up the evidence of the State‘s position

on how Charles killed Kathy:

             So when and where? She goes out there at about 9:00 at
      night on the 29th to talk to a man that absolutely does not want to be
      divorced.

            Now, I don‘t know how the confusion came about with their
      presentation, but I don‘t have to prove this guy‘s the biggest money
      miser in the world to kill. My friends, people kill when you back them


                                       163
up all the time. And you don‘t have to be the biggest woman chaser
in the world to kill or the biggest drug addict in the world to kill or the
biggest miser in the world to kill. You‘ve just got to look like that guy
and be like that guy.

      Because Susan [the other prosecutor] is right, of course. If
you think about how much we work to maintain our families, how
much love. He never gave them his time. I don‘t know why he‘s that
way. Maybe his momma raised him that way. But at some point as
a man looking at another man who‘s 50 years old, I don‘t give a
dang why you‘re that way, Charles. Maybe it‘s not your fault. But
here you are. And if I was a woman, I bet it‘s just a peach to be
married to him. So she‘s had enough.

       But he‘s exactly the man that kills you when you back him into
a corner about the only thing he‘s ever given any attention to, which
is his house on the hill. That‘s when they kill you. That‘s why they
kill you.

       People that are like that, in my many, many murder trials,
they‘re always like that. . . . It‘s his fault for being so inattentive.
And here he is at the most critical moment of his entire life, and he
kills her at that instant, probably about 9:55.

     Now I want to be clear that, despite what Derrell [defense
counsel] says, we‘re not in any way—Can I have a thingamajig?
You know what that means. Right?

       We’re not wedded to one example of what Tracy [Murphree]
and I showed you. We’re giving you a for-instance. There’s no set
of circumstances on this earth that we’re saying that this only
occurred at these steps. That’s not what we’re saying. It could
happen anywhere in here. Anywhere. I don’t know. It has to be
almost certainly here because this is the life of the house and the
center of the house. But I’m not wedded to the stairs at all.

      They could be arguing by the table and he jumps on her here.
She could be headed for the door and he jumps on her as she’s
going out. She could be in the garage and he jumps on her here.
She could be on the back sidewalk because, man, there ain’t
nothing behind them. I don’t care how many lights you got. When
there ain’t nobody there, it don’t matter. There’s just nothing but dirt
back there forever. Anywhere in any way. That’s our theory, is


                                   164
      manner and means unknown, not some narrow – that’s a for-
      instance example.

            There are many, many ways to take human life without leaving
      large blood spatters all over the place. And by the time of the
      search, he‘s had 17 days before the dogs come out to clean or
      anything else.[269] Mr. Clean. Right? Mr. Clean. That‘s a long time.
      Long time.

            Anywhere in any way is our theory.

[Emphasis added.]

      The State is certainly entitled to indict a defendant and to charge the jury

that the manner and means of how the offense was committed is unknown. See,

e.g., Moulton v. State, 395 S.W.3d 804, 811–12 (Tex. Crim. App. 2013)

(Cochran, J., concurring).270 The State here was entitled to indict, seek a jury

charge, and argue to the jury that the manner and means of the alleged murder

by Charles was unknown; we point out this argument by the State simply to show

that no facts exist in the record concerning Charles‘s conduct––any act by

Charles directed towards Kathy––from which the jury could have logically

inferred that Charles possessed the requisite mens rea to support a conviction

for murder. See Megan Winfrey, 393 S.W.3d at 771.




      269
        The record establishes that the numerous searches of the Stobaugh
farm began on January 4, 2005. The FBI search warrant was executed on
January 14, 2005.
      270
       The term ―manner and means‖ refers to the actus reus of the crime.
Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim. App. 2012) (op. on reh‘g).


                                      165
      The record before us likewise contains no evidence that a deadly weapon

was used: no deadly-weapon facts exist from which the jury could infer Charles‘s

intent. Accord Cavazos, 382 S.W.3d at 384. And Kathy‘s body has never been

found and no autopsy has been performed, so no evidence exists concerning the

types of injuries purportedly inflicted upon Kathy from which the jury could infer

Charles‘s intent. Accord Louis, 393 S.W.3d at 251; see also, e.g., Patrick v.

State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (explaining that intent to

bring about the victim‘s death could be inferred from entry into victim‘s home with

a butcher knife, victim‘s slashed throat, and victim‘s broken ribs, bruises,

lacerations, and age of eighty years old), cert. denied, 517 U.S. 1106 (1996).

      Although motive and opportunity are not elements of murder and are not

alone sufficient to prove identity, they are circumstances indicative of guilt.

Temple, 390 S.W.3d at 360; see also Merritt v. State, 368 S.W.3d 516, 526 (Tex.

Crim. App. 2012). Evidence of motive helps link a defendant to wrongful conduct

or is supportive of other evidence of such conduct. Hacker v. State, 389 S.W.3d

860, 870–71 (Tex. Crim. App. 2013).          The same is true of evidence of

opportunity. Id. But without evidence that wrongful conduct has occurred, there

is nothing for motive and opportunity evidence to link the defendant to. Id. The

court of criminal appeals explained in Hacker:

      If, for example, John has a motive for murdering Mary, but there is
      no evidence that Mary is dead (much less evidence that her death
      was a homicide), then John‘s motive is meaningless. His motive
      alone does not establish that a murder occurred, and the motive
      cannot link John to a murder without evidence that there was a


                                       166
      murder. Motive alone is not even some evidence of a murder that
      could be used to revoke John‘s probation.

Id. at 871.   Here, as in Hacker, no evidence exists that wrongful conduct

occurred. See id. Here, although an inference exists that Kathy is dead, there is

no evidence that her death was a murder––there is no body, no murder weapon,

no witnesses, no blood or DNA evidence; there are no fibers, hairs, or any type

of forensic evidence establishing that a murder occurred; and there is no

confession or directly incriminatory statement by Charles. Although the evidence

viewed in the light most favorable to the State does establish a possible motive

for Charles to kill Kathy and a definite opportunity to do so, Charles‘s motive and

opportunity to murder cannot alone establish that a murder has occurred, cannot

link Charles to a murder without evidence that there was a murder, and certainly

cannot establish the mens rea for murder. See id. In the absence of evidence of

a murder, Charles‘s motive for murder and opportunity to murder are

meaningless. See id.

      We next examine the two lies made by Charles and the inconsistent

statements made by Charles that the State relies upon as incriminating

circumstantial evidence that Charles murdered Kathy with the requisite mens rea.

The two lies are that Charles lied about calling Kathy‘s cell phone and leaving a

message between December 29, 2004 and January 3, 2005, and that Charles

lied about hiring a private investigator with $5,000 of Kathy‘s money.         The

inconsistent statements are that Charles gave mutually exclusive ―first thoughts‖



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about Kathy‘s disappearance; Charles gave inconsistent statements about

searching for Kathy before 9:00 a.m. on December 30; Charles gave inconsistent

statements about how he spotted Kathy‘s car on the morning of December 30;

portions of Charles‘s statement were inconsistent with Tommy‘s statement;

Charles gave conflicting and different versions of his location when Kathy made

her ―I‘m leaving‖ statement; Charles gave police an inaccurate version of a

conversation he had with one of Kathy‘s brothers on January 3, 2005; and

Charles gave inconsistent statements about whether he and Kathy had argued

on the evening of December 29.

      When the commission of a crime is established by evidence other than the

giving of false testimony, the concealing of evidence, or the making of false

statements, then evidence of false testimony, concealing evidence, or false

statements may be considered as affirmative evidence of guilt. Id. at 870–71.

That is, once the commission of a crime is established, attempts to conceal

incriminating evidence, the making of inconsistent statements, and the giving of

implausible explanations to authorities may be considered as evidence linking

the defendant to the crime that has been established. See Guevara v. State, 152

S.W.3d 45, 50 (Tex. Crim. App. 2004) (holding that husband‘s inconsistent

statements linked him to the murder of his wife committed by his mistress). But,

as with evidence of motive and opportunity, the utterance of false statements or

inconsistent statements is, by itself, not sufficient to support an inference that the




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commission of a separate crime or wrongful conduct has occurred. Hacker, 389

S.W.3d at 870–71.

      Because no evidence exists in the record before us that a murder has

occurred, Charles‘s utterance of false statements or inconsistent statements

does not, by itself, create an inference that a murder or any wrongful conduct has

occurred. See id. The State here urged the jury to draw the inference prohibited

in Hacker––that is, to infer that a murder had occurred from Charles‘s lies and

inconsistent statements.     As in Hacker, because none of the evidence

established that the offense (in Hacker, prohibited contact; here, murder) had

occurred, all of the rest of the State‘s circumstantial evidence that ―was perhaps

suspicious‖ but did not establish the commission of the offense, was mere

―suspicion linked to other suspicion.” Id. at 874. In short, neither Charles‘s lies

nor his inconsistent statements support as a logical deduction therefrom that a

murder occurred, that Charles committed the actus reas of murder, or that

Charles possessed the requisite mens rea to support his murder conviction––that

is, that ―with intent to cause serious bodily injury to an individual, namely Kathy

Stobaugh, [he] commit[ted] an act clearly dangerous to human life that caused

the death of said Kathy Stobaugh, by manner and means unknown‖ or that

Charles intentionally or knowingly caused Kathy’s death. [Emphasis added.]

      Moreover, Charles‘s lies and inconsistent statements are not on such

topics or of such a nature that they are capable of supporting an inference of

mens rea for murder. The fact that Charles lied about calling Kathy or lied about


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hiring a private investigator with $5,000 of Kathy‘s money does not support as a

reasonable deduction therefrom the logical consequence or conclusion that

Charles possessed the intent to cause serious bodily injury to Kathy that resulted

in Kathy‘s death or that he intentionally or knowingly killed Kathy. See Megan

Winfrey, 393 S.W.3d at 771 (recognizing that an inference is ―a conclusion

reached by considering other facts and deducing a logical consequence from

them‖). Lying about these facts does not support an inference of mens rea for

murder. Accord id. Likewise, the fact that Charles gave inconsistent statements

about where he was when he saw Kathy‘s car on the morning of December 29 or

what his ―first thoughts‖ were when he saw her car—or any of the other

inconsistencies in Charles‘s statements brought out by the State through Ranger

Murphree‘s compare-and-contrast-the-clips testimony––do not support as a

reasonable deduction therefrom the logical consequence or conclusion that

Charles possessed the intent to cause serious bodily injury to Kathy by

committing an act clearly dangerous to human life that resulted in her death or

that he intentionally or knowingly killed Kathy. See id. Charles‘s mens rea for

the offense of murder simply cannot—especially in the absence of evidence of

the occurrence of a murder—be inferred from the evidence of Charles‘s lies and

inconsistent statements. See id. In summary, the jury could draw a conclusion

from Charles‘s lies and inconsistent statements that Charles possessed the

mens rea necessary for the offense of murder only through theorizing or

guessing as to the meaning of these facts, which is speculation, and a conclusion


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reached by speculation will not support a finding beyond a reasonable doubt.

See id.

      We next examine the evidence concerning Charles‘s actions after

December 29 that the State contends is incriminating. This conduct as set forth

in the State‘s brief is as follows: Charles did not attempt to call Kathy after the

evening of December 29; Charles did not attempt to go to court on December 30

to contest Kathy‘s division of property and did not attempt to learn whether he

was divorced on that date as Kathy had planned; Charles had a surprisingly calm

and relaxed demeanor about the disappearance of his wife in interviews with

police; Charles had his friend take Kathy‘s computers out of her house even

though he knew police were investigating her disappearance; Charles asked his

brother-in-law, a police officer, about whether a cell phone could be tracked and

whether it could be tracked across the border; Charles acted very strange toward

a brother-in-law on the morning of January 4, 2005; Charles did not participate in

any of the organized searches for Kathy; Charles did not tell anyone in either

family that Kathy had disappeared until after his sixteen-year-old daughter

Charee reported her missing to police in the late afternoon of January 3, 2005,

even though he knew something was definitely wrong that morning; Charles did

not accompany Charee to the police station; Charles moved Kathy‘s car; and

Charles maintained that he took Kathy‘s computers to get them forensically

analyzed, but no forensic analysis was done.




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      As mentioned, it is true that intent may be inferred from the acts and

conduct of the accused. See Merritt, 368 S.W.3d at 526; Guevara, 152 S.W.3d

at 50; Patrick, 906 S.W.2d at 487; Lozano v. State, 359 S.W.3d 790, 814 (Tex.

App.—Fort Worth 2012, pet. ref‘d). As with Charles‘s words, however, none of

Charles‘s post-December 29 actions proved by the State, either individually or

cumulatively, support as a reasonable deduction therefrom the logical

consequence or conclusion that Charles possessed the intent to cause serious

bodily injury to Kathy by committing an act clearly dangerous to human life that

resulted in her death or that he intentionally or knowingly killed Kathy. None of

Charles‘s actions are probative of the mens rea element of the offense of murder.

The conclusion that Charles possessed the mens rea for the offense of murder

was simply theorizing or guessing by the jury as to the meaning of Charles‘s

post-December 29 suspicious conduct, not a logical deduction from that conduct.

See Megan Winfrey, 393 S.W.3d at 771; see also Hacker, 389 S.W.3d at 874

(recognizing that without proof of wrongful conduct ―all of this evidence was mere

‗suspicion linked to other suspicion‘‖); Richard Winfrey, 323 S.W.3d at 882

(holding that evidence giving rise to only a suspicion of guilt, even a strong one,

is insufficient to support a conviction); cf. Patrick, 906 S.W.2d at 487 (holding

evidence sufficient to support mens rea for murder).

      Finally, even if—based on the cumulative force of all of the circumstantial

evidence presented by the State and detailed above of Charles‘s lies,

inconsistent statements, and suspicious post-December 29 conduct—the jury


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could have logically deduced a conclusion that something happened to Kathy at

the farm on the night of December 29, 2004, and also could have logically

deduced that Charles was responsible for that something and that the something

caused Kathy‘s death, no facts or evidence exist from which the jury could––

based on these inferences and the surrounding circumstances––also logically

have deduced that while that something was occurring, Charles possessed the

requisite mens rea for the offense of murder. Cf. Hooper, 214 S.W.3d at 16

(utilizing a hypothetical to explain multiple reasonable inferences from the same

set of facts). In other words, the circumstantial evidence, even if it supports an

inference that Charles did something to Kathy and that Kathy died as a result of

that something, nonetheless wholly fails to provide the jury with any facts from

which the jury could also reasonably infer that the mens rea Charles possessed

when he did that something to Kathy was the mens rea for murder, as opposed

to some other mens rea, such as the mens rea for manslaughter. See Cavazos,

382 S.W.3d at 384 (explaining that causing death while consciously disregarding

a risk that death will occur is the mens rea for manslaughter and that this is a

less culpable mes rea than the mens rea for murder––either by intending to

cause serious bodily injury resulting in a death or by intentionally or knowingly

causing a death). The jury‘s finding in this case that Charles, with the requisite

mens rea, committed an act clearly dangerous to human life that resulted in

Kathy‘s death or intentionally or knowingly caused Kathy‘s death is based on




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speculation and cannot support a finding of guilt beyond a reasonable doubt.

See Megan Winfrey, 393 S.W.3d at 771.

        We note that the present facts are distinguishable from the facts in

Temple, a case where the court of criminal appeals recently found the evidence

sufficient to support a jury‘s finding that a husband was guilty of murdering his

wife.    390 S.W.3d at 341.      The issue in Temple was the identity of the

perpetrator. The wife was found by the husband shot in the back of her head

with a 12-gauge shotgun while she kneeled in the bedroom closet. Although no

direct evidence existed linking the husband to his wife‘s murder, the court of

criminal appeals noted that motive and opportunity are circumstances indicative

of guilt. Id. at 360. The court pointed out that the husband was having an affair,

indicated to a friend that he ―didn‘t know‖ whether he would leave his wife for his

mistress, and spent the weekend with his mistress and lied to his wife about it;

that the husband‘s whereabouts were unaccounted for twice for approximately

eighteen to thirty-three minutes; a window on the back door was broken, and

police testified that because of where the glass was located, it appeared that the

door had been open when the windowpane was broken; the house had been

―staged‖ to look like a burglary; a burglary was unlikely while the neighborhood

was bustling at 4:30 p.m.; the husband and his brothers owned and used

numerous shotguns––including a 12-gauge shotgun; the husband lacked

emotion after finding his wife shot in the back of the head; shortly after the wife‘s

murder, the husband resumed his affair; the husband confronted and threatened


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two people who testified before the grand jury; and he later followed these same

two people in his car and told them to ―keep your damn mouth shut.” Id.

      Here, there is no body; there is no evidence that Charles had a mistress or

remarried after Kathy‘s disappearance; there is no evidence of staging a crime

scene; there is no evidence that Charles possessed the type of weapon used in

the murder; and although Charles appeared calm, unlike Temple, he did not

claim that he had just discovered his wife murdered. Further, Charles did not

threaten witnesses or tell them to keep their mouths shut. Charles cooperated

with police, gave consent to search to anyone who asked to search his property,

and made oral and written statements to anyone who asked him for an oral or

written statement. And in Temple, there was evidence of wrongful conduct—the

wife‘s body contained a wound to the back of the head from a 12-gauge shotgun

round. Consequently, in Temple, unlike here, there was evidence of wrongful

conduct, and evidence of the husband‘s motive and opportunity helped to link the

husband to the wrongful conduct. The facts of Temple distinguish that case from

the present case.

      We have thoroughly reviewed all of the evidence. Although we necessarily

detailed each piece of evidence in our opinion to ascertain exactly the nature of

that piece of evidence––sometimes this was difficult because of the extensive

use of the video clips––and although we categorized the evidence in accordance

with its presentation in the State‘s brief, we make it clear here that our sufficiency

review encompassed the cumulative force of all of the circumstantial evidence


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and the reasonable inferences supportable from that evidence viewed in the light

most favorable to the State. Because, viewing all of the circumstantial evidence

and any reasonable inferences from that evidence in the light most favorable to

the State, the cumulative force of all of the circumstantial evidence and any

reasonable inferences from that evidence are insufficient to convince any rational

factfinder beyond a reasonable doubt that Charles acted with the requisite mens

rea necessary to support his conviction for murder, we hold that the evidence is

insufficient to establish the mens rea element of murder.

      We sustain Charles‘s first point.

                                 V. CONCLUSION

      Having sustained Charles‘s first point challenging the sufficiency of the

evidence to support his conviction, we reverse the trial court‘s judgment and

render a judgment of acquittal. See Tex. R. App. P. 43.2(c), 51.2(d); Greene v.

Massey, 437 U.S. 19, 24–25, 98 S. Ct. 2151, 2154–55 (1978); Burks v. United

States, 437 U.S. 1, 16–18, 98 S. Ct. 2141, 2150–51 (1978); Megan Winfrey, 393

S.W.3d at 774.


                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

PUBLISH

DELIVERED: January 23, 2014



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