                                                                                      ACCEPTED
                                                                                  03-14-00734-CR
                                                                                          7792859
                                                                       THIRD COURT OF APPEALS
               N O . 03-14-00734-CR                                               AUSTIN, TEXAS
                                                                           11/12/2015 10:01:29 AM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
          I N T H E C O U R T O F APPEALS

     O F T H E T H I R D D I S T R I C T OF TEXAS              FILED IN
                                                        3rd COURT OF APPEALS
                                                            AUSTIN, TEXAS
                                                       11/12/2015 10:01:29 AM
            B R U C E W A Y N E HARKEY,                   JEFFREY D. KYLE
                                                                Clerk
                                       Appellant

                             V.


              T H E STATE O F TEXAS
                                 Appellee


           Appeal i n Cause N o . 5731 i n the
33^^ Judicial District Court o f San Saba County, Texas



               Brief   For        Appellee


                        OFFICE O F D I S T R I C T A T T O R N E Y
                        3 3 ^ and 424^^ J U D I C I A L D I S T R I C T S
                        Wiley B. McAfee, District Attorney
                        P. O. Box 725, Llano, Texas 78643
                        Telephone             Telecopier
                        (325) 247-5755       (325) 247-5274
                         g.bunyard@co.llano.tx.us

                        By: Gary W . Bunyard
                           Assistant District Attorney
                           State Bar N o . 03353500
                           A T T O R N E Y FOR APPELLEE

                 November 12, 2015

              Oral Argument Requested
                             Identity Of The Parties


Trial Court

      Honorable J. Allan Garrett
      33"'^ Judicial District
      Burnet County Courthouse Annex (North)
      1701 East Polk St., Suite 74
      Burnet, T X 78611



State/Appellee

      Wiley "Sonny" McAfee                  (Pre-trial and Trial Counsel)
      District Attorney
      1701 E. Polk, Suite 24
      Burnet, Texas 78611
      (512) 756 - 5449
      State Bar N o . 13318020

      Anthony J. "Tony" Dodson              (Pre-trial and Trial Counsel)
      Assistant District Attorney
      P. O . Box 725
      Llano, Texas 78643
      (325) 247-5755
      State Bar N o . 05927200

      Peter Keim                            (Trial Counsel)
      Assistant District Attorney
      1701 E. Polk, Suite 24
      Burnet, Texas 78611
      (512) 756 - 5449
      State Bar N o . 15532500




                                       ii
     Gary W . Bunyard                        (Appellate Counsel)
     Assistant District Attorney
     P. O. Box 725
     Llano, Texas 78643
     (325) 247-5755
     State Bar N o . 03353500
     g.bunyard@co.llano.tx.us




Appellant

      Donald Rudolph "Rudy" Taylor           (Pre-trial [7/8/2013] Counsel)
      P.O. Box 1045
      Edin, Texas 76837
      State Bar N o . 24039498

      Richard D . Davis                      (Pre-trial and Trial Counsel)
      P.O. Box 398
      Burnet, T X 78611
      State Bar N o . 05537100

      T o m m y Adams                        (Pre-trial and Trial Counsel)
      1901 Vincent
      Brownwood, Texas 76801
      State Bar N o . 00885200

     Barton Thomas Vana                     (Pre-trial and Trial Counsel)
     101 Highway 281 N o r t h , Suite 205C
     Marble Falls, Texas 78654
     State Bar N o . 24084441

     Richard D . Davis                       (Appellate Counsel)
     P.O. Box 398
     Burnet, T X 78611
     State Bar N o . 05537100
     rdd@austin.twcbc.com

                                       iii
Keith S. Hampton                  (Appellate Counsel)
1103 Nueces Street
Austin, T X 78701
State Bar N o . 08873230
keithshampton@gmail.com

Bruce Wayne Harkey                (Appellant)
T D C J #01924278
SID #04505208
Allan B . Polunsky U n i t
3872 F M 350 South
Livingston, T X 77351




                             iv
                                Table   Of       Contents

                                                            Page

Index o f Authorities                                              vii

Statement o f the Case                                              1

Statement on Oral Argument                                           1

Response to Issues Presented                                         2

Statement o f the Facts                                              3

Summary o f the Argument - Response to Issue N o . 1                 9

   The record contains corroborating evidence o f an
   incriminating nature that tends to connect Appellant
   to the murder o f Karen Johnson.

Summary o f the Argument - Response to Issue N o . 2                 9

   The record contains corroborating evidence o f an
   incriminating nature that tends to connect Appellant
   to the murder o f Bonnie Harkey.

Argument on Response to Issue N o . 1 and Issue N o . 2

   1.1 and 2.1   Principals of Law                                 11

   1.2 and 2.2   Applicable Facts                                   14

   1.3 and 2.3 Discussion and Conclusion                           24



                                             V
Summary o f the Argument - Response to Issue N o . 3                        30

  Admission o f extraneous acts o f bad conduct was proper
  because the acts o f bad conduct were material and relevant
  to show Appellant's continuing scheme, motive, intent
  to engage i n a conspiracy, and i n rebuttal o f Appellant's defenses.

Argument on Response to Issue N o . 3

   3.1   Principals of Law                                                  31

   3.2 Applicable Facts                                                     35

   3.3 Discussion and Conclusion                                            40

Summary o f the Argument - Response to Issue N o . 4                        45

   The State is not required to adhere to a ritualistic form to
   comply w i t h T R E Rule 404(b). A copy o f a statement
   referencing the extraneous bad act is sufficient to provide
   notice under the rule. I n addition this evidence was i n
   fact same transaction contextual evidence.

Argument on Response to Issue N o . 4

   4.1   Principals of Law                                                 46

   4.2 Applicable Facts.                                                   49

   4.3 Discussion and Conclusion                                           53

Prayer for Relief.                                                         56

Certificate o f Word Count,                                                56

Certificate o f Service                                                    57


                                          vi
                                 Index   Of         Authorities


Case Law                                                           Page

Attwood V. State, 509 S.W.2d 342 (Tex. C r i m . App. 1974)....             12

Bass V. State, 270 S.W.3d 557 (Tex. C r i m . App. 2008)                     33

Bryant v. State, All S.W.2d 66 (Tex. C r i m . App. 1971)                   32

Dalrymple p. State, 366 S.W.2d 576 (Tex. C r i m . App. 1963).               11

Grayson v. State, 481 S.W.2d 859 (Tex. C r i m . App. 1972)....              32

Hayden v. State, 66 S.W.3d 269 (Tex. C r i m . App. 2001)                    46

Hernandez v. State, 176 S.W.3d 821

    (Tex. C r i m . App. 2005)                                               47

Holkday v. State, 709 S.W.2d 194 (Tex. C r i m . App. 1986)...            12, 13

Holmes v. State, 70 Tex. C r i m . 423, 157 S.W. 487 (1913)                 12

Jones V. State, 481 S.W.2d 900 (Tex. C r i m . App. 1972)                   32

Luquis V. State, 72 S.W.3d 355 (Tex. C r i m . App. 2002)                   34

Mann v. State, 718 S.W.2d 741 (Tex. C r i m . App. 1986)                    49

Mayes v. State, 816 S.W.2d 79 (Tex. C r i m . App. 1991)                     48

Mitchell V. State, 650 S.W.2d 801 (Tex. C r i m . App. 1983),
   cert. den. 464 U.S. 1073, 79 L . Ed. 2d 221, 104 S. Ct. 985.           11, 12
Montgomery v. State, 810 S.W.2d 372 (Tex. C r i m . App.
    1991)(opinion on rehearing)                                   31,32,33, 34

                                              vii
Montoya v. State, 810 S.W.2d 160 (Tex. C r i m . App. 1989),

   cert, denied, 112 S.Ct. 426,116 L.Ed.2d 446 (1991)              14

Paulus V. State, 633 S.W.2d 827(Tex. C r i m . App. 1982)          12

Perkins v. State, 450 S.W.2d 855 (Tex. C r i m . App. 1970)        12

Pitts V. State, 916 S.W.2d 507 (Tex. C r i m . App. 1996)          46

P(ywen V. State, 63 S.W.3d 435 (Tex. C r i m . App, 2001)          33

Reed V. State, lAA S.W.2d 112 (Tex. C r i m . App. 1988)           13

Reynolds v. State, 489 S.W.2d 866 (Tex. C r i m . App. 1972)....   12
Rogers v. State, 461 S.W.2d 399 (Tex. C r i m . App. 1970)         12

Rose V. State, 752 S.W.2d 529 (Tex. C r i m . App. 1987)

   (plurality opinion)                                             34

Sauceda v. State, 129 S.W.3d 116 (Tex. C r i m . App. 2004)        49

Simmons p. State, 282 S.W.3d 504 (Tex. C r i m . App. 2009)        13

Smith p. State, 332 S.W.3d 425 (Tex. C r i m . App. 2011)          13

Swarh p. State, 125 S.W.3d 672 (Tex. App.—Houston
    Ist Dist.] 2003, pet. dism'd)                                  49
Washburn P. State, 167 Tex. C r i m . 125, 318 S.W.2d 627, 634
  (Tex. C r i m . App. 1958)                                       11

Worthy p. State, 312 S.W.3d 34 (Tex. C r i m . App. 2010)          48




                                           viii
Constitutions

None cited




Statutes/Rules

Tex. Penal Code Sec. 7.02 (b)                     14

Tex. R. App. Proc. Rule 38.1(d)                    1

Tex. R. App. Proc. Rule 44.2(b)                   47

Tex. R. App. Pro. Rule 81(b)(2)                   33

Tex. R. Evid. Rule 401                            31

Tex. R. Evid. Rule 403                            34

Tex. R. Evid. Rule 404 (a)                        30

Tex. R. Evid. Rule 404 (b)             33, 46, 47, 48




Treatises/Publications

Tex.Jur.2d Evidence, § 195                        32




                                  ix
                        statement         Of The       Case

   Appellant has adequately described the Statement o f the Case under the

provisions o f Rule 38.1(d) Tex. R. App. Proc.




                       Statement      on Oral       Argument

   The undersigned requests Oral Argument.         While the undersigned does not

believe that Oral Argument w i l l be beneficial for this case for the reason that the

issues are straight forward and lack any novel or complex nuances, Appellant has

requested Oral Argument. Should the Court believe that Oral Argument w i l l assist

the Court i n any way, the undersigned w i l l gladly accommodate the Court.




                                          1
                  R e s p o n s e To Issues        Presented

Response T o Issue One:      The record contains corroborating evidence o f an

incriminating nature that tends to connect Appellant to the murder of Karen

Johnson.




Response T o Issue Two:      The record contains corroborating evidence o f an

incriminating nature that tends to connect Appellant to the murder of Bonnie

Harkey.




Response to Issue Three:     Admission of extraneous acts of bad conduct was

proper because the acts o f bad conduct were material and relevant to show

Appellant's continuing scheme, motive, intent to engage i n a conspiracy, and

in rebuttal of Appellant's defenses.




Response to Issue Four:      The State is not required to adhere to a ritualistic

form to comply w i t h T R E Rule 404(b). A copy o f a statement referencing

the extraneous bad act is sufficient to provide notice under the rule. I n

addition this evidence was i n fact same transaction contextual evidence.



                                       2
                        statement          Of The        Facts

   Appellant has not fully described the facts o f this case.

   Victim, Bonnie Harkey, and her predeceased husband, Riley Harkey, had

acquired a substantial and well known pecan farm, most o f which was owned by

Riley prior to his marriage to Bonnie. RR Vol. 7 Page 65. Riley Harkey had two

sons by a prior marriage, John Harkey and Bruce Harkey (Appellant). RR V o l . 7

Page 65.   Bonnie Harkey had one predeceased daughter, Connie Ballinger. RR

Vol. 7 Page 66.      Connie Ballinger had one adopted son, Carl Pressley (co-

defendant). RR Vol. 7 Page 66. The W i l l o f Riley Harkey provided for a Life Estate

to Bonnie Harkey to the entire pecan estate. RR Vol. 7 Page 79. The W i l l further

provided that upon the death o f Bonnie Harkey, as to one portion o f the pecan

estate, the Prichard Orchard, a Life Estate would then pass to Connie Ballenger w i t h

a remainder to Carl Pressley while as to the other portion o f the pecan estate, the

Harkeyville Orchard and the Home Place Orchard, a Life Estate w o u l d then pass

to John Harkey and Appellant w i t h a remainder to the children o f John and

Appellant. RR Vol. 7 Pages 92 - 94; RR Vol. 13 State's Exhibit 8.

   Following the death o f her husband, Bonnie Harkey began to suffer from

dementia to the point that a guardianship o f her person and o f her estate was



                                           3
established. RR V o l . 7 Page 63. Connie Ballenger was first appointed as guardian

o f the person and o f the estate o f Bonnie Harkey.    RR Vol, 7 Page 62.    I n 2011

Connie Ballenger died and Barrel Spinks was appointed as temporary successor as

guardian o f the person and o f the estate. RR V o l . 7 Page 62.   Because o f Bonnie

Harkey's dementia,     she required the services o f three care givers rotating on a 24

hour a day basis. RR Vol. 7 Page 136.

   U p o n his appointment Darrel Spinks refused to approve a proposed sale o f i n

excess o f 65 acres o f one section o f the farm that John Harkey and Appellant wanted

sold. RR Vol. 7 Pages 74 - 75, 77 - 80.        Later, i n August 2011, Darrell Spinks

became permanent guardian o f the estate o f Bonnie Harkey while BettyJohnson was

appointed as permanent guardian o f the person o f Bonnie Harkey. RR Vol. 7 Pages

85 - 87. W i t h terms then modified, Darrell Spinks at this point approved the sale

by John Harkey and Appellant o f approximately 88 acres o f the Home Place

Orchard to a third party w i t h John and Bruce receiving the sales proceeds.      RR

Vol. 7 Pages 9 0 - 9 1 . The remaining portion o f the Home Place Orchard, including

the residence, became the permanent separate property o f Bonnie by agreement o f

the parties involved. RR Vol. 7 Page 80.

   Also i n August 2011 Carl Pressley sold his future interest i n the Prichard

Orchard to John Harkey and Appellant for $70,000. RR Vol. 7 Pages 95 - 96, 232.

                                           4
Just prior to this sale, Appellant was negotiating w i t h famed actor T o m m y Lee Jones

to sell the Prichard Orchard for close to $600,000.          RR V o l . 7 Pages 97 - 99.

However, Darrell Spinks refused to relinquish Bonnie Harkey's Life Estate i n the

Prichard Orchard and this anticipated sale did not occur. RR V o l . 7 Pages 99 - 103.

The contractual closing o f this sale was to be April 12, 2012. RR Vol. 7 Page 111.

   D u r i n g this period where Darrell Spinks was guardian o f the estate o f Bonnie

Harkey, Appellant was frequently complaining about the manner i n which Spinks

was running the farm, being outright hostile to Spinks. RR Vol. 7 Pages 109 - 110.

Appellant complained that Spinks was interfering w i t h Appellant's legacy.          RR

Vol. 7 Page 110. Appellant would often refer to the pecan orchards as his estate and

his trees. RR Vol. 7 Page 133.

   Appellant has held a dislike o f Bonnie Harkey from the time that she married

Riley Harkey. RR Vol. 13 State's Exhibit 108 (See State's Exhibit 109 Pages 117 -

118). Appellant has told various persons who were acquainted w i t h Appellant but

not otherwise confidants, things like:

   1. "....he wished the bitch was dead where he could get his part and go to
      Belize." RR Vol. 9 Page 56.

   2. " O n one hand he would say that he did care for Bonnie Harkey, and then i n
      reverse o f that he would turn around and say that he couldn't stand her, and
      he hated her, and she needed to die." RR Vol. 10 Page 19.


                                            5
   3. "The most anger that I saw that was i n reference to the land. I t was his land.
      It was i n his family. I t wasn't the Pressleys' land. I t wasn't Bonnie's land."
      R R V o l . 10 Page 24.

   4. "He said that he was ready to take control o f his property." " That she needed
      to die, or that she needed to be out o f her right mind." RR Vol. 10 Pages 38 -
      39.

   5. "He called her an old bitch and said he couldn't believe the old bitch didn't
      have the decency to die." R R V o l . 10 Page 56.

   6. " I could have pushed her o f f o f a riverbank and nobody would have even
      known anything. I could have dropped a pecan tree on her, for God's sake."
      and " I used to go into her bedroom and check on her. She'd be laying up i n
      bed. (Snoring noise) You know, all I had to do was put a pillow over her face
      and she was gone." R R V o l . 13 State's Exhibit 112 (refer to State's exhibit 113
      for transcript).



   About a week prior to March 26, 2012, Appellant instructed co-defendant Carl

Pressley that the use o f a pillow to suffocate Bonnie Harkey would make sure that

no fingerprints or evidence was left after the murder.       RR Vol. 7 Page 226. O n

Friday, March 23, 2012, Appellant paid co-defendant, Carl Pressley, $100, w i t h

more to be deposited into Pressley's bank account, to k i l l Bonnie Harkey. RR

V o l . 7 Page 210.   Appellant wanted the murder to be committed during that

weekend. R R V o l . 7 Page 211.

   Pressley went to the residence o f Bonnie Harkey on March 25, 2012. RR

V o l . 7 Page 215. Pressley entered the residence through a window and hid. RR


                                           6
Vol. 7 Page 216. Pressley sent his wife a text and then his wife rang the door bell.

RR V o l . 7 Page 220.    When the door bell rang Pressley began making his way

toward the door.     RR Vol. 7 Page 222.         Pressley went past Bonnie Harkey and

attacked Bonnie's caretaker, Karen Johnson.         RR Vol. 7 Page 223 - 224.          Once

Karen Johnson was dead, Pressley went into Bonnie Harkey's bedroom to get a

pillow w i t h the intent to suffocate Bonnie Harkey. RR Vol. 7 Page 226. Pressley

walked Bonnie Harkey to her bedroom, asked her to pray w i t h him, and then placed

the pillow over Bonnie Harkey's face. RR V o l . 7 Pages 227 - 228.

   Pressley was interrupted at which time he walked Bonnie Harkey to the garage

and placed her into the car.      RR V o l . 7 Pages 228 - 230.     Pressley and his wife,

Lillian King, drove Bonnie Harkey to Hilltop Lakes near Normangee i n Leon

County, where Pressley and King were living.          RR Vol. 7 Page 236. After taking

Bonnie Harkey to the park's community restroom, Pressley walked Bonnie down

to the creek bed. RR Vol. 7 Pages 237 - 238. There Pressley hit Bonnie i n the head

and then held her head down i n the mud until she drowned. RR Vol. 7 Page 239.

Pressley covered the body w i t h leaves and then burned his clothing and the seat

cover from the car. RR Vol. 7 Page 240.

   D u r i n g the time o f the murders, Appellant was i n Fort W o r t h w i t h his brother

because Appellant did not want to directly participate. RR Vol. 7 Pages 240 - 241.

                                             7
   The day after the murders, Pressley and King returned to San Saba at the request

o f Sheriff Brown. RR V o l . 7 Pages 250 - 251.   U p o n arrival Pressley promptly

confessed to the murders o f Bonnie Harkey and Karen Johnson and included i n his

statement Appellant's participation. RR Vol. 7 Pages 251 - 254.




                                        8
                      Summary       Of The Argument          on
               Response       to Issue No. 1 and Issue No. 2

   T h e record contains corroborating evidence o f an incriminating

   nature that tends to connect Appellant to the murder o f K a r e n

   Johnson.




   T h e record contains corroborating evidence o f an incriminating

   nature that tends to connect Appellant to the murder o f Bonnie

   Harkey.




   Appellant complains that there is no evidence i n the record that corroborates any

o f the accomplice witness testimony and tends to connect Appellant to the murder

o f either Karen Johnson or Bonnie Harkey. Appellant does not dispute the evidence

that Carl Pressley, w i t h the assistance o f Lillian King, murdered ICaren Johnson and

then kidnapped Bonnie Harkey, drove her to Leon County, and held her head i n the

mud until she drowned.        The State's theory at trial was that Appellant aided,

assisted, encouraged and otherwise conspired w i t h Carl Pressley to murder Bonnie

Harkey and that Appellant knew or should have known that the care giver on duty

would have been murdered during the course o f the attempted murder and

                                           9
subsequent kidnapping and murder o f Bonnie Harkey. The record does contain

independent evidence o f Appellant's hatred o f Bonnie Harkey both before and after

the murders. Appellant's monetary payment to Carl Pressley shortly before the

murders, Appellant's unusual comments shortly before the murders to several mere

acquaintances that he was leaving town for the weekend. Appellant's odd phone call

to the Sheriffs Office the day before the murders stating that he was i n Fort W o r t h

and requesting a welfare check, Appellant's description o f his conversation w i t h John

Harkey about hoping Bonnie Harkey was found floating face down i n a river,

Appellant's knowledge that Bonnie Harkey required the assistance o f a full-time

caretaker, and the proximity o f the murders i n time as compared to the proposed

date o f closing on the sale o f land to T o m m y Lee Jones.




                                            10
       Argument      On Response      to Issue No. 1 and Issue No. 2

1,1 and 2.1    Principals of Law

   The test as to the sufficiency o f the corroboration is to eliminate from

consideration the evidence o f the accomplice witness and then to examine the

evidence o f other witnesses w i t h the view to ascertain i f there be inculpatory

evidence, that is evidence o f incriminating character which tends to connect the

defendant w i t h the commission o f the offense. I f there is such evidence, the

corroboration is sufficient; otherwise, it is not. Dalrympk v. State, 366 S.W.2d 576

(Tex. C r i m . App. 1963).

   I n applying the test o f the sufficiency o f the corroboration, each case must be

considered o n its o w n facts and circumstances.   Mitchell v. State, 650 S.W.2d 801,

807 (Tex. C r i m . App. 1983), cert. den. 464 U.S. 1073, 79 L. Ed. 2d 221, 104 S. Ct.

985.

   A l l the facts and circumstances i n evidence may be looked to as furnishing the

corroboration necessary. Washburn v. State, 167 Tex. C r i m . 125, 318 S.W.2d 627,

634 (Tex. C r i m . App. 1958).

   The combined cumulative weight o f the incriminating evidence furnished by the

non-accomplice witnesses which tends to connect the accused w i t h the commission



                                         11
o f the offense suppUes the test. Perkins v. State, 450 S.W.2d 855 (Tex. C r i m . App.

1970).

   It is not necessary that the corroboration directly link the accused to the crime or

be sufficient i n itself to establish guilt. Attwood v. State, 509 S.W.2d 342 (Tex. C r i m .

App. 1974).

   Insignificant circumstances sometimes afford most satisfactory evidence o f guilt

and corroboration o f accomplice witness testimony. Holmes v. State, 70 Tex. C r i m .

423, 157 S.W. 487 (1913); Paulus v. State, 633 S.W.2d 827, 844 (Tex. C r i m . App.

1982).

   Evidence w h i c h merely goes to show motive or opportunity o f the accused to

commit the crime is insufficient alone to corroborate the accomplice witness.              It

may, however, be considered i n connection w i t h other evidence tending to connect

the accused w i t h the crime. Paulus v. State, 633 S.W.2d 827, 846 (Tex. C r i m . App.

1982); Mitchell v. State, 650 S.W.2d 801, 808 (Tex. C r i m . App. 1983), cert. den. 464

U.S. 1073, 79 L. Ed. 2d 221,104 S. Ct. 985; Reynolds v. State, 489 S.W.2d 866 (Tex.

C r i m . App. 1972); Rogers v. State, 461 S.W.2d 399 (Tex. C r i m . App. 1970).

   The State is not required to present corroborating evidence to prove any specific

element o f the charge, only to present corroborating evidence that tends to connect

the accused w i t h that offense.   Holladay v. State, 709 S.W.2d 194 (Tex. C r i m . App.

                                             12
1986).    As to whether the evidence adduced is sufficient to corroborate the

testimony o f the accomplice witness, such must, o f course, be decided on an ad hoc

basis. Holladay, supra at 200.

   When reviewing the sufficiency o f non-accomplice evidence under Tex. Code

C r i m . Proc. A n n . art. 38.14, an appellate court decides whether the inculpatory

evidence tends to connect the accused to the commission o f the offense. Smith v.

State, 332 S.W.3d 425, 442 (Tex. C r i m . App. 2011). The direct or circumstantial

non-accomplice evidence is sufficient corroboration i f it shows that rational jurors

could have found that it sufficiently tended to connect the accused to the offense.

Smith, supra at 442; Simmons v. State, 282 S.W.3d 504, 508 (Tex. C r i m . App. 2009);

Reed v. State, lAA S.W.2d 112, 126 (Tex. C r i m . App. 1988).      When there are

conflicting views o f the evidence—one that tends to connect the accused to the

offense and one that does not—the reviewing court w i l l defer to the fact finder's

resolution o f the evidence. Smith, supra at 442; Simmons, supra at 508.     I t is not

appropriate for appellate courts to independently construe the non-accomplice

evidence. Smith, supra at 442; Simmons, supra at 509.

   A defendant's attitude and behavior, both before and after the crime, can be

considered as an independent circumstance that tends to connect the defendant to

the crime. Smith, supra at 445.

                                         13
   If, i n the attempt to carry out a conspiracy to commit one felony, another felony

is committed by one o f the conspirators, all conspirators are guilty o f the felony

actually committed, though having no intent to commit it, i f the offense was

committed i n furtherance o f the unlawful purpose and was one that should have

been anticipated as a result o f the carrying out o f the conspiracy. Tex. Penal Code

Sec. 7.02 (b).

   Such theories o f culpability may be appropriately applied i n a capital murder

setting. Montoya v. State. 810 S.W.2d 160, 165 (Tex. C r i m . App. 1989), cert,

denied, 112 S.Ct. 426,116 L.Ed.2d 446 (1991).




1,2 and 2.2      Applicable Facts

   Appellant does not dispute the fact that Carl Pressley and Lillian K i n g killed

Karen Johnson and Bonnie Harkey or the manner and means i n which each were

murdered. RR Vol. 7 Pages 191, 252; RR Vol. 8 Pages 3 3 - 3 7 . A t issue is whether

the record contains any evidence that corroborates the testimony o f Carl Pressley

and/or Lillian King and such evidence is o f an incriminating nature and tends to

connect Appellant to either or both murders.

   The record contains substantial evidence o f Appellant's hatred for his step-

mother. Appellant told Texas Ranger De La Garza that Appellant's father married

                                         14
Bonnie Harkey approximately 5 weeks after his divorce from Appellant's mother.

RR V o l . 13 State's Exhibit 108; State's Exhibit 109 Pages 117-118. A month later,

when Appellant was 11 years old, Bonnie told Appellant's father that i f he did not

get rid o f Appellant Bonnie was going back to Waco. RR Vol. 13 State's Exhibit 108;

State's Exhibit 109 Page 118.     Appellant held a great deal o f resentment against

Bonnie Harkey. RR Vol. 13 State's Exhibit 108; State's Exhibit 109 Page 118; RR

Vol. 10 Page 56 (He called her an old bitch and said he couldn't believe the old bitch

didn't have the decency to die.); RR Vol. 8 Page 76; RR Vol. 8 Pages 52 - 55 (And

he said that Bonnie Harkey was taking care o f the (Appellant's) child, the child was

dead — or the child was taken to the hospital and was found to be deceased. A n d he

told me it was from the child basically choking on its food because Bonnie did not

take care o f the child the way she was supposed to.); RR Vol. 7 Page 64 (He came

into the kitchen i n the auction and told me he wanted me to put Bonnie i n a nursing

home because he wanted he and his wife to move i n the house.); RR V o l . 9 Page 56

(And I don't even know how the conversation started or where we were, but he

made the comment that — something had come up about Bonnie, and he said he

wished the bitch was dead where he could get his part and go to Belize.); RR

Vol. 7 Page 194 (He said he was tired — pretty much tired o f dealing w i t h her. Said

he just wished the old bitch would die.)(I then said something to h i m about that I

                                          15
thought that was inappropriate or the wrong thing to say, and he totally apologized.

He said, 'You just don't understand. That lady killed my son, and she's ruining my

inheritance."); RR Vol. 7 Page 89 (Bruce often referred to Bonnie as a whore and

prostitute.).

   Collateral to Appellant's overall hatred o f Bonnie Harkey, a substantial amount

o f evidence was developed that Appellant was o f the opinion that Bonnie Harkey was

not entitled to the Harkey Estate that was developed by his father, Riley, and that the

Estate belonged to h i m .      RR Vol. 7 Page 110 (Yeah, he called it his legacy.);

(Appellant felt like Bonnie Harkey and Darrell Spinks were standing i n the way o f

his legacy); RR V o l . 7 Page 133 (Just constantly being threatened about litigation,

'You're devaluing the estate. You're k i l l i n g my trees."); RR V o l . 10 Page 24 (The

most anger that I saw that was i n reference to the land. I t was his land. I t was i n his

family. I t wasn't the Pressleys' land. I t wasn't Bonnie's land.); RR Vol. 10 Pages 38 -

39 (He said that he was ready to take control o f his property) (That she needed to die,

or that she needed to be out o f her right mind.).

   For quite some time Appellant was feuding w i t h Darrell Spinks, the Guardian o f

the Estate o f Bonnie Harkey, over the management o f the pecan orchards as well as

Appellant's efforts to have two sections o f the orchards sold w i t h the proceeds to go

to Appellant and his brother, John Harkey.        This included a dispute over Darrell

                                            16
spinks initially refusing to approve the sale o f a 65.94 acre tract because the majority

o f the sales proceeds was to go to Appellant and John Harkey. RR Vol. 7 Pages 73 -

75. Appellant and his brother, John, threatened o n numerous occasions to sue

Bonnie Harkey for "back rents and basically threatened to sue her for monies

derived from that property.        The grazing leases, farming leases, they were

threatening to sue her for that over all those years that she had managed the

property." RR Vol. 7 Page 79.       A t one point Appellant attempted to secure the

services o f Jason Sandlin to beat Spinks up to prevent Spinks from testifying i n

court. RR Vol. 9 Page 110. Appellant offered Sandlin a new Harley Davidson

motorcycle for this service. RR Vol. 9 Pages 112 - 113.

   O n March 23, 2012, the Friday before the death o f Bonnie Harkey , Appellant

paid Carl Pressley $100 i n cash, w i t h more to be transferred into Pressley's account,

to k i l l Bonnie Harkey. RR Vol. 7 Page 210. O n March 22, 2012, the day before

this payment, Lorretta Waller, the mother o f Lillian King, drove Pressley and King

to Appellant's house. RR V o l . 9 Pages 63 - 64. Appellant brought Pressley back to

Lorretta Waller's house.     RR V o l . 9 Page 65.    D u r i n g this period M s . Waller

overheard Pressley talking on the phone saying that he needed $100 and later talking

on the phone saying that he needed $250 i f the other person o f the conversation

wanted something done.      RR Vol. 9 Page 68. A few minutes after the first phone

                                           17
call Appellant came over to Lorretta Waller's house at which time Pressley went out

to meet w i t h Appellant and then returned w i t h $100. RR Vol. 9 Pages 69 - 70. This

transaction occurred on the Friday preceding the death o f Bonnie Harkey.          RR

Vol. 9 Page 70. The phone call involving the $250 occurred either o n that Friday

evening or on Saturday. RR Vol. 9 Pages 70 - 73. San Saba County Deputy John

Wilkerson testified that the bank records o f Appellant and Jennifer Harkey,

previously admitted as State's Exhibit 37, showed that a withdrawal o f $200 was

made from that account on Friday, March 23, 2012. RR Vol. 8 Pages 77, 79 - 80.

Deputy Wilkerson interviewed Appellant who acknowledged giving Pressley $100

on March 23, 2012. RR Vol. 8 Page 80.

   The record further shows that Appellant, according to his bank account, was

running low on funds and had very little income during the months leading up to

the murders w i t h the exception o f one deposit o f $100,000 i n August 2011.    RR

Vol. 8 Pages 77 - 79; RR Vol. 13 State's Exhibit 37. This large deposit occurred on

August 5, 2011, when Appellant and his brother, John, sold a parcel o f 22.32 acres

to Triple M Catde Company and a parcel o f 65.94 acres to John and Carol Martin.

RR Vol. 13 State's Exhibit 11; State's Exhibit 12. Appellant and John acquired these

parcels from the Harkey Estate as part o f a mediated settlement agreement w i t h

Darrell Spinks. RR Vol. 7 Page 85.

                                          18
   Following this acquisition and sale, Appellant and John coerced Pressley into

selling them his future remainderman interest i n the Prichard Orchard for $15,000

down. RR Vol. 7 Pages 93 - 96; Vol. 13 State's Exhibit 108; State's Exhibit 109 Pages

244 - 245.     The $15,000 down payment was comprised o f $7,500 each from

Appellant and John, the cash being paid out o f the funds received from the sale o f

the 22.32 acre tract and the 65.94 acre tract, w i t h an unsecured promise o f additional

payments o f $10,000 per year for five years, the total purchase price being $70,000.

RR Vol. 7 Page 96; Vol. 13 State's Exhibit 108; State's Exhibit 109 Page 243. A t the

same time. Appellant and John were negotiating w i t h famed actor T o m m y Lee Jones

to sell the Prichard Orchard for $576,000. RR V o l . 7 Page 50; Pages 100 - 101. The

contractual closing date for the sale to T o m m y Lee Jones was for April 23,2012. RR

Vol. 13 State's Exhibit 13.

   Carl Pressley testified that Appellant wanted the murder o f Bonnie Harkey to

occur on the weekend o f M a r c h 28,2012. RR V o l . 7 Page 211. O n March 1,2012,

Appellant placed an order for specialty caps w i t h San Saba Printing. RR Vol. 9

Page 34. O n March 23, 2012, Appellant went to San Saba Printing and asked for

one o f the caps to be completed that day stating that he was going to a golf

tournament i n Dallas that weekend. RR Vol. 9 Page 35. Appellant told the general

manager o f San Saba Printing, Jack Vaughn, that he was going to leave early

                                           19
Saturday morning, and he wouldn't be back i n until late Sunday night or maybe

even Monday morning before he was in. RR V o l . 9 Page 38. M r . Vaughn thought

it was odd that Appellant stated this twice, like Appellant was trying to stress it. RR

Vol. 9 Page 39. M r . Vaughn testified, " I couldn't understand w h y it was ~ it was

almost humorous that it was ~ that he was stating so strongly he was going to be

gone from Saturday morning early until late Sunday night at least." "He stressed 'all

weekend'"; "that's why I stressed 'all weekend.'" "He stressed so much he was going

to be gone all weekend long." RR Vol. 9 Page 39 - 40. M r . Vaughn testified that

M r . Harkey's interactions on that day were different from the previous time that M r .

Harkey conducted business w i t h San Saba Printing.       RR Vol. 9 Page 43.      Mr.

Vaughn thought this to be so odd that he mentioned to his wife several hours later

and then contacted the Sheriffs Office when he had heard about the murders. RR

Vol. 9 Pages 44 - 47.

   O n Wednesday, March 21, 2012, Appellant brought a trailer to the tractor repair

shop belonging to T o m m y Johnson requesting that M r . Johnson "wire up" the

trailer so it can be used to haul wood to a barbeque place. RR V o l . 10 Page 53. The

wiring j o b o n the trailer was completed on Thursday but Appellant's pickup was

needed to complete the wiring j o b .      RR Vol. 10 Page 54. O n Friday, when

Appellant returned. Appellant was dressed up nice stating that he was behind

                                          20
schedule and needed to get out o f town. RR Vol. 10 Page 58. Appellant also told

several people at the shop, including M r . Johnson, that he was going to Fort W o r t h

to play golf w i t h his brother as he sometimes does.      RR Vol. 10 Pages 56 - 57.

Appellant repeated this multiple times and i n the exact language each time. RR V o l .

10 Pages 56 - 57. Appellant also told M r . Johnson, referring to Bonnie Harkey, he

"couldn't believe the old bitch didn't have the decency to die." RR Vol. 10 Page 56.

      While at the repair shop on Friday after lunch, M r . Johnson overheard Appellant

making a phone call to someone checking on a job. RR Vol. 10 Page 58. Following

the testimony o f M r . Johnson, the State called Louann Turner who is i n charge o f

senior citizen's centers for nine counties. RR V o l . 10 Page 73. O n March 5,2012,

Appellant applied for a j o b i n the San Saba senior citizen's center. RR Vol. 10 Page

74.     O n that date Appellant brought the application to M s . Turner's office and

visited w i t h her. RR Vol. 10 Page 74. A t that time M s . Turner informed Appellant

that she was going to hire someone w i t h i n the next week. RR V o l . 10 Page 76. O n

Friday, March 23, 2012, Appellant called M s . Turner's office after hours and left a

voice message stating it was Friday and that he was going to be out o f town until

probably Monday i n case she needed to get hold o f him. RR Vol. 10 Pages 77 - 79.

      The j u r y heard evidence from Jason Sandlin that on Saturday night, the day prior

to the murder, Carl Pressley called Sandlin's phone and left a recording that stated

                                            21
that Bonnie Harkey was dead.        RR V o l . 9 Page 115.   Sandlin i n turn phoned

Appellant to express Sandlin's condolences for the death o f Appellant's mother. RR

V o l . 9 Page 116.   Appellant seemed surprised at this news and told Sandlin that

Appellant was going to call the sheriffs department to have them do a welfare check.

RR V o l . 9 Page 117.   I n Appellant's statement to Ranger De La Garza Appellant

stated on this topic:

   " I ' m the guy that called the sheriffs office last Saturday night and said,
   "Something's not right. I just got a phone message that said that Bonnie Harkey's
   dead." "We've got no, no, no way o f doing what" — "Can you check? What — I ' m
   smelling a rat here, guys. Okay. I ' m not here. I can't go look and see. Get off your
   dead ass and go look." They wouldn't go look. They said, "Oh, no. U h . We'll call
   the sheriff" "Please do. W i l l you call me back?" 'Well, M r . Harkey, we won't
   promise anything."

RR V o l . 13 State's Exhibit 108; Exhibit 109 Pages 126 - 127.

   D u r i n g the trial, evidence was admitted i n which Appellant made statements to

Texas Ranger Andres De La Garza describing how he and his brother John were

talking, after being told by authorities that Bonnie Harkey was missing but before

being told she was deceased, about hoping Bonnie Harkey was sitting on the river

bank somewhere and hoping that she would be found floating face down i n the

river. RR Vol. 13 State's Exhibit 108; State's Exhibit 109 Pages 238 - 239.

   Also admitted were phone records o f Appellant and Carl Pressley. RR Vol. 13

State's Exhibit 66; RR Vol. 9 Pages 157,159. I n his testimony, Pressley testified that

                                          22
he called Appellant around 6:00 p.m., a time after Pressley had kidnapped Bonnie

Harkey but before her death. The cell phone records show a call from Pressley's cell

phone to Appellant's cell phone at 6:12 p.m. during which the parties talked for 2:04

minutes. RR Vol. 13 State's Exhibit 66.        Around dusk Pressley walked Bonnie

Harkey to the creek where he struck her on the head and then held her face i n the

mud until she was dead. RR Vol. 7 Pages 238 - 239. The cell phone records show

a call from Pressley's cell phone to Appellant's cell phone at 8:55 p.m. for a duration

o f 36 seconds. RR Vol. 13 State's Exhibit 66.

   Appellant also stated to Ranger De La Garza " I used to go into her bedroom and

check on her. She'd be laying up i n bed. (Snoring noise) You know, all I had to do

was put a pillow over her face and she was gone." RR Vol. 13 State's Exhibit 108;

State's Exhibit 109 Page 266.

   I n regard to Karen Johnson, Appellant told Ranger De La Garza that Bonnie

Harkey suffered from dementia. RR Vol. 13 State's Exhibit 108; State's Exhibit 109

Page 245. Appellant further stated that Bonnie Harkey had a guardian.              RR

Vol. 13 State's Exhibit 108; State's Exhibit 109 Pages 253 - 254.      Darrell Spinks

testified that he was appointed as guardian o f the estate o f Bonnie Harkey i n March

2011. RR Vol. 7 Page 62. Connie Ballenger was the guardian o f the person and o f

the estate o f Bonnie Harkey prior to the appointment o f Spinks. RR V o l . 7 Page 73.

                                          23
The reason for this appointment was that Bonnie suffered from dementia and

required 24-hour care givers at the house. RR Vol. 7 Page 63. Betty A n n Johnson

was appointed as the guardian o f the person o f Bonnie Harkey i n March 2011. RR

Vol. 7 Page 86. Appellant had participated i n mediation proceedings related to the

Estate o f Bonnie Harkey. RR Vol. 7 Pages 73 - 74.       For a short time Appellant was

employed to work on the Harkey pecan farm. RR Vol. 7 Page 104.

   Darrell Spinks testified that Bonnie Harkey had three care givers who worked to

care for her on a rotating shift covering 24 hours each day, seven days a weeL         RR

V o l . 7 Page 136.   Appellant had various arguments w i t h Spinks over Bonnie not

being put i n a nursing home. RR Vol. 7 Pages 136 - 137. One o f the reasons cited

by Appellant for placing Bonnie i n a nursing home was that she was not getting the

care that she needed at home w i t h the care givers. RR Vol. 7 Pages 136 - 137.

   Carl Pressley testified that Appellant was aware that a care giver would be present

and instructed Pressley to "kill everybody".     RR Vol. 7 Pages 214 - 215.




1.3 and 2.3 Discussion and Conclusion

   I n this case the j u r y had ample evidence w i t h which they could, i f they believed

the evidence and made reasonable deductions therefrom, come to the conclusion

that Appellant believed that the Harkey Estate should be his, that Bonnie Harkey

                                            24
had no legitimate claim to any part o f the Harkey Estate, and that Appellant's

financial situation was dwindling. A rational j u r y could decide from this Appellant's

motive and state o f mind.

   Evidence was admitted that a rational j u r y could believe corroborated the

testimony o f Carl Pressley and Lillian King that amounted to a combination o f

suspicious circumstances. A rational j u r y could conclude that Appellant's statement

to Ranger De La Garza that had Appellant wanted to kill Bonnie Harkey all he

would have had to do would "put a pillow over her face and she was gone"

corroborated Carl Pressley's testimony that Appellant had instructed Pressley that

using a pillow to kill Bonnie would not leave fingerprints and thereby, setting aside

all accomplice witness testimony, is incriminating i n nature and tends to connect

Appellant to the crime. The same would apply to Appellant's statement to Ranger

De La Garza that, after receiving news o f Bonnie's disappearance but before

receiving news that Bonnie's body had been found. Appellant and his brother, John,

had talked about hoping Bonnie would be found sitting on a riverbank and hoping

Bonnie would be found floating face down i n a river.

   From common experience, a rational j u r y could conclude that dusk, being the

time Pressley walked Bonnie to the creek, i n March would be prior to 8:55 p.m.

The testimony o f Pressley as to the phone call to Appellant at about 6:00 p.m. is

                                          25
corroborated by the cell phone records. From this a rational j u r y could deduce that

Pressley and Appellant had a short discussion about what to do when Pressley

arrived w i t h Bonnie Flarkey at the RV park i n Leon County. Following the murder

o f Bonnie Harkey, a rational j u r y could conclude that Pressley informed Appellant

at 8:55 p.m. that the murder had been accomplished.        Therefore a rational j u r y

could conclude that Appellant had prior knowledge o f where and how Bonnie

Harkey was murdered. Such evidence corroborated Carl Pressley's testimony that

Appellant aided, assisted, encouraged, and conspired w i t h Pressley to murder Bonnie

Harkey.    Such evidence, setting aside all accomplice witness testimony, is o f an

incriminating nature and tends to connect Appellant to the crime.

   I n addition a rational j u r y could conclude that Loretta Waller's testimony o f

overhearing Carl Pressley talking on the telephone about needing $100, and Carl

Pressley promptly having $100, and San Saba Sheriffs Investigator John Wilkerson's

testimony and the bank records exhibit showing that Appellant withdrew $200 on

March ly^, and Appellant's statement to Ranger De La Garza that Appellant did give

Carl Pressley $100 on March IJ^        could, as a combination, corroborate Carl

Pressley's testimony that Appellant paid Pressley $100 as partial compensation to kill

Bonnie Harkey. This evidence, setting aside all accomplice witness testimony, is

o f an incriminating nature and tends to connect Appellant to the crime.

                                         26
   Further, a rational j u r y could conclude from the testimony o f Jack Vaughn,

T o m m y Johnson, and Louann Turner that Appellant was deliberately stressing to

these witnesses that he was leaving San Saba for the weekend i n order to establish

his alibi and, as such, corroborated the testimony o f Carl Pressley that Appellant had

wanted Bonnie Harkey killed during that weekend.         Setting aside all accomplice

witness testimony, this evidence is o f an incriminating nature and tends to connect

Appellant to the crime.

   A rational j u r y could conclude from Appellant's acknowledged phone call to the

San Saba Sheriffs Office on the night before the murder, that Appellant was using

this as an opportunity to further establish his alibi for the anticipated murder.    A

rational j u r y could also conclude that because Appellant considered Bonnie Harkey

as an impediment to his ability to gain control over the estate. Appellant would be

more likely to have driven the short distance from Fort W o r t h to San Saba i n order

to begin taking immediate possession and control o f his legacy had he really believed

that Bonnie was actually dead from natural causes. This evidence, setting aside all

accomplice witness testimony, is o f an incriminating nature and tends to connect

Appellant to the crime.

   A rational j u r y could also compare the closing date (April 12, 2012) on the

proposed contract to sell the Prichard Orchard to famed actor T o m m y Lee Jones

                                          27
w i t h the date o f the murder o f Bonnie Harkey (March 25,2012) and determine that

the date on the contract further corroborated the testimony o f Carl Pressley that

Appellant wanted Bonnie killed on that particular weekend. This evidence, setting

aside all accomplice witness testimony, is o f an incriminating nature and tends to

connect Appellant to the crime.

   As to the issue o f the death o f Karen Johnson, the record establishes that

Appellant clearly knew the mental condition o f Bonnie Harkey and her need for

around-the-clock care over a long period o f time.      The evidence showed that

Appellant was at or near Bonnie's house off and on for years. Appellant applied to

be appointed as Bonnie's guardian after the death o f Connie Ballanger. Appellant

made claims against Bonnie's estate, eventually becoming successful i n acquiring

tide to a portion o f the pecan farm which Appellant then promptly sold. Appellant

even described to Ranger De La Garza that Bonnie needed to be placed i n a nursing

home because the care givers were not giving Bonnie proper care. A rational j u r y

could conclude that this evidence, as a combination, showed that Appellant

anticipated that someone other than Bonnie Harkey would be present when Pressley

was to arrive to kill Bonnie and that Appellant was aware that anyone present at that

time would likely be seriously injured or killed.     A rational j u r y could thereby

conclude that this evidence corroborated the testimony o f Carl Pressley that

                                         28
Appellant had instructed Pressley to "kill everybody". This evidence, setting aside

all accomplice witness testimony, is o f an incriminating nature and tends to connect

Appellant to the crime.

   I n summary the combined cumulative weight o f the incriminating evidence

furnished by the non-accomplice witnesses and exhibits which is both incriminating

and tends to connect Appellant w i t h the commission o f the offenses gave the j u r y

a better understanding o f the true nature o f Appellant's motive. Appellant's

statements made to law enforcement and acquaintances. Appellant's efforts to

establish his alibi, and Appellant's statement to Pat Pierce regarding his hiring o f

another person to kill Bonnie Harkey.

   For these reasons the relief requested by Appellant i n his Issue N o . 1 and his

Issue N o . 2 should be denied and the trial court's judgment o f conviction and

sentence be affirmed.




                                          29
                      Summary       Of The Argument         on
                          Response       to Issue No. 3


   Admission o f extraneous acts o f bad conduct was proper because the

   acts o f bad conduct were material and relevant to show Appellant's

   continuing scheme, motive, intent to engage i n a conspiracy, and i n

   rebuttal o f Appellant's defenses.




   Appellant complains that the trial court erred i n admitting evidence o f prior

extraneous offenses and bad acts committed by Appellant and that such offenses and

bad acts merely went to establish character and conformity i n violation o f Tex. R.

Evid. Rule 404 (a).    However, this evidence was offered and admitted for the

limited purpose o f proving Appellant's scheme and Appellant's intent to engage i n

a conspiracy w i t h Carl Pressley and Lillian King to murder Bonnie Harkey.        In

other instances such evidence was offered and admitted for the limited purpose o f

rebutting Appellant's defensive theories. I n each instance the trial court instructed

the j u r y on consideration o f the evidence only for the purposes stated by the trial

court.




                                          30
                   Argument       On Response         to Issue No. 3

3,1      Principals of Law

       Evidence is relevant i f (a) it has any tendency to make a fact more or less

probable than it w^ould be vsrithout the evidence; and (b) the fact is o f consequence

i n determining the action. Tex. R. Evid. Rule 401.

      The adversarial system assigns the question o f relevance to the trial judge, on the

assumption that he has the best vantage from which to decide. Montgomery v. State,

810 S.W.2d 372, 391 (Tex. C r i m . App. 1991)(opinion on rehearing). Determining

the relevance o f any given item o f evidence to any given lawsuit is not exclusively a

function o f rule and logic. Id. The trial court must rely i n large part upon its o w n

observations and experiences o f the world, as exemplary o f common observation and

experience, and reason from there i n deciding whether proffered evidence has "any

tendency to make the existence o f any fact o f consequence to the determination o f

the action more probable or less probable than it would be without the evidence."

Id.; Tex. R. Evid. Rule 401.

      Appellate courts uphold the trial court's ruling on appeal absent an "abuse o f

discretion." Id. That is to say, as long as the trial court's ruling was at least w i t h i n

the zone o f reasonable disagreement, the appellate court w i l l not intercede. Id.



                                             31
      I n the trial o f a person accused o f a particular crime, it is a general rule that

evidence o f previous or subsequent commission o f other crimes, not connected w i t h

that for which he is on trial, is not admissible.      Grayson v. State, 481 S.W.2d 859

(Tex. C r i m . App. 1972). I t has been consistently held that an accused is entitled to

be tried on the accusation made i n the State's pleading and not on some collateral

crime, or for being a criminal gtntvdWy. Jones v. State, 481 S.W.2d 900 (Tex. C r i m .

App. 1972).       However, this general rule has well recognized exceptions and i n

certain classes o f cases extraneous offenses may be shown as part o f the "res gestae",

or as reflecting upon the mental processes or mental attitude o f the accused, where

intent, malice or guilty knowledge is an essential element o f the crime for which the

defendant is on trial, or as throwing light upon the motive inducing the commission

o f the crime, or to prove identity o f the defendant, where identity is an issue, and

more especially, where such extraneous offenses have been executed according to

a system or method, and it is shown that the accused committed other such offenses

and, i n so doing, followed the same plan or method as is shown to have been

followed i n the commission o f the crime charged i n the indictment. Bryant v. State,

All    S.W.2d 66 (Tex. C r i m . App. 1971); Grayson v. State, 481 S.W.2d at 862;

Tex.Jur.2d Evidence, § 195.




                                             32
   Defensive evidence and even a representation i n opening statements, can open

the door to the admission o f extraneous-offense evidence rebut the defensive theory

presented by the defense.    Bass v. State, 270 S.W.3d 557 (Tex. C r i m . App. 2008);

Powell V. State, 63 S.W.3d 435, 438-40 (Tex. C r i m . App. 2001).

   Where the appellate court can say w i t h confidence that by no reasonable

perception o f common experience can it be concluded that proffered evidence has

a tendency to make the existence o f a fact o f consequence more or less probable than

it would otherwise be, then it can be said the trial court abused its discretion to

admit that evidence.   Montgomery v. State, 810 S.W.2d at 391. Where the trial court

erred to admit the proffered evidence, the reviewing court should then proceed to

determine harmfulness under Tex. R. App. Pro. Rule 81(b)(2). Id.

   Whether objected-to evidence o f "other crimes, wrongs, or acts" has relevance

apart from character conformity, as required by Rule 404(b) is also a question for the

trial court. Id.; Tex. R. Evid. Rule 404 (b). The trial judge must conclude that the

evidence tends i n logic and common experience to serve some purpose other than

character conformity to make the existence o f a fact o f consequence more or less

probable than it would be without the evidence. Id. A n appellate court owes no less

deference to the trial judge i n making this judgment than it affords h i m i n making

any other relevancy call. Id.

                                         33
   A reviewing court also measures the trial court's ruling whether to exclude

evidence o f "other crimes, wrongs, or acts" under Rule 403 by an abuse o f discretion

standard. Id.; Tex. R. Evid. Rule 403.

   The court may exclude relevant evidence i f its probative value is substantially

outweighed by a danger o f one or more o f the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, or needlessly presenting cumulative

evidence. Tex. R. Evid. Rule 403.

   Where relevant criteria, viewed as objectively as possible, lead to the conclusion

that the danger o f unfair prejudice substantially outweighed the probative value o f

the proffered evidence, the trial court w i l l have erred i n failing to exclude it.

Montgomery, supra at 392.

   The reviewing court w i l l assume that the j u r y would follow the instruction o f the

trial court as given, and it w i l l not reverse i n the absence o f evidence that the j u r y

was actually confused by the charge. See Rose v. State, 752 S.W.2d 529, 554 (Tex.

C r i m . App. 1987)(plurality opinion); Luquis v. State, 72 S.W.3d 355,366 - 367 (Tex.

C r i m . App. 2002).




                                             34
3.2     Applicable Facts

      The primary theory o f the State's case at trial was that Appellant conspired w i t h

Carl Pressley to murder Bonnie Harkey. RR Vol. 7 Pages 33, 55; Vol. 8 Pages 46,

208; Vol. 9 Pages 11-19,152; Vol. 10 Pages 66 - 67,120 - 140; Vol. 12 Pages 12,22,

57 - 58. The motive for the murder o f Bonnie Harkey was to gain control o f the

Harkey Estate. RR Vol. 7 Page 24; Page 194 ('You just don't understand. That lady

killed m y son, and she's ruining m y inheritance."); V o l . 9 Page 56 (....he said he

wished the bitch was dead where he could get his part and go to Belize.) Vol. 10

Page 24 (The most anger that I saw that was i n reference to the land. I t was his land.

It was i n his family. I t wasn't the Pressleys' land. I t wasn't Bonnie's land.). Karen

Johnson was murdered because she discovered Carl Pressley i n the Harkey home

as he was attempting to murder Bonnie. RR Vol. 7 Pages 214 - 215; 219 - 224.

      Approximately two months prior to trial. Appellant initiated a conversation w i t h

fellow inmate, Pat Pierce, regarding the fact that a number o f people needed killing.

RR Vol. 10 Pages 85 - 88. According to Appellant, San Saba County Sheriff Steve

Boyd and Justice o f the Peace Les Dawson had threatened Appellant's wife and that

was a killing offense to Appellant. RR V o l . 10 Page 88. Also, J i m Childress and

D i c k Miller were dividing up Appellant's property. RR V o l . 10 Page 88. Appellant

offered Pierce a motorcycle i f Pierce would kill Sheriff Boyd, Justice o f the Peace

                                             35
Dawson J i m Childress, and D i c k Miller. RR Vol. 10 Page 8 9 - 9 1 . The trial court

instructed the jury:

   "Ladies and gentlemen o f the jury, when it comes to any evidence o f any
   other offense that's alleged that this defendant might have committed,
   through this witness, you're only to consider that testimony i f you believe it
   beyond a reasonable doubt. A n d then i f you do believe it beyond a reasonable
   doubt, you're to consider it only for the following purposes: As evidence o f a
   continuing scheme, as evidence o f motive, or as evidence o f intent to engage
   in a conspiracy, and for no other reasons at that point."

R R V o l . 10 Page 87.

   Also the trial court admitted testimony o f David Rube, a former co-worker, that

i n 2003 Appellant wanted Rube to kill Appellant's then wife, Kami Harkey. RR Vol.

10 Page 156 - 157.        Appellant drove Rube to Austin and pointed out Kami's

apartment and other places that Rube could shoot Kami. RR V o l . 10 Pages 157 -

158. Appellant wanted Rube to make a silencer for a firearm to assist i n the murder

o f Kami. RR Vol. 10 Pages 159 - 160. Appellant also discussed w i t h Rube about

Rube murdering Appellant's ex-wife who lives i n Oklahoma. R R V o l . 10 Page 160.

Appellant stated that i n both murders Appellant wanted to create an alibi for himself

R R V o l . 10 Pages 160 - 161. Appellant wanted Kami killed because Appellant might

lose custody o f their child to her and he wanted his ex-wife killed because she had

wronged h i m i n their divorce. RR Vol. 10 Page 162. I n response to Appellant's

objection to this testimony the trial court instructed the j u r y as follows:

                                           36
   "And ladies and gendemen o f the jury, you may consider the evidence o f
   other offenses alleged to have been committed by the defendant only i f you
   believe that they are true beyond a reasonable doubt. A n d then that
   consideration must be limited to considering scheme, intent to engage i n
   conspiracy, or you may consider it for rebuttal o f defensive theories, and only
   those matters only, okay? So as we go forward, keep that instruction i n mind."

R R V o l . 10 Pages 155- 156.

   H a n k Powell, a former employee o f Appellant, testified that Appellant came to

h i m i n 2003 looking for a silencer for a .22 caliber rifle.   RR Vol. 10 Page 174.

Powell reported this to law enforcement and was contacted by Texas Ranger Matt

Linderman.      RR Vol. 10 Pages 175 - 176. W i t h equipment provided by Ranger

Linderman a recording was made o f Appellant describing how a lawn mower

muffler could be adapted into a silencer for a weapon.           RR V o l . 10 Page 179.

Appellant gave Powell a lawn mower muffler and a rifle for the purpose o f Powell

converting the muffler into a silencer for the rifle. RR Vol. 10 Page 180. Powell i n

turn gave the rifle and the muffler to Ranger Linderman who sent them to a facility

i n West Virginia to be made into a silencer attached to the rifle.    RR V o l . 10 Page

180. Appellant told Powell that he would be "long gone" when the rifle was being

used. RR V o l . 10 Page 180. I n response to Appellant's objection to this testimony

the trial court instructed the j u r y as follows:




                                             37
   "Ladies and gendemen, you can consider evidence o f any other offense alleged
   to have been committed by the defendant only i f you think it is true beyond
   a reasonable doubt. That consideration is limited to the scheme, intent to
   engage i n conspiracy, or for rebuttal o f defensive theories only, so please keep
   that i n mind as we continue w i t h this witness and for the prior testimony o f
   this witness."

R R V o l . 10 Pages 178-179.

   Texas Ranger Matt Linderman testified that he received the rifle and muffler

provided by Appellant and sent them to a firearms lab in Washington D C to be made

into a silencer for the rifle.   RR Vol. 10 Page 184. The finished product was then

given to Hank Powell to give to Appellant. RR V o l . 10 Page 185. Appellant was

then arrested for unlawful possession o f the silencer.    RR V o l . 10 Page 186.   The

only objection made by Appellant was that this testimony was repetitive to that o f

Hank Powell. RR Vol. 10 Page 181.

   I n the Court's Charge the trial court instructed the j u r y as follows:

   "The Defendant is on trial solely on the charges contained i n the indictment.
   You are instructed that i f there is any testimony or evidence before you i n this
   case regarding the Defendant having committed acts or participated i n
   transactions other than the transactions or acts alleged against the Defendant
   i n the indictment i n this case, you cannot consider such other acts or
   transactions, i f any, for any purpose against the Defendant unless you find and
   believe beyond a reasonable doubt that the Defendant committed such other
   acts or participated i n such other transactions, i f any; and even then you may
   only consider the same for the purpose o f a) rebutting a defensive theory, b)
   establishing the Defendant's intent to enter into a conspiracy w i t h CARL
   W A D E PRESSLEY or L I L L L ^ N K I N G to commit the offense or offenses
   alleged i n the indictment, or c) establishing the Defendant's motive or

                                           38
   scheme, i f they do, and for no other purpose. Y o u are further instructed that
   you may not consider other acts or transactions, i f any, as any evidence o f the
   Defendant's character i n order to show that the Defendant acted i n
   conformity therewith."

CR Vol. 1 Page 179 Paragraph 5.

   This was further emphasized by the prosecutor during closing argument when

M r . McAfee stated:

   "Counsel also told you that when he went into those extraneous offenses we
   want you to fmd h i m guilty for some reason other than his guilt. N o , we don't.
   I n fact, I want to stress that. We don't want you to fmd h i m guilty because o f
   those other things. You can't do that, and we can't urge you to, and we don't want
   you to fmd h i m guilty because o f that.

   'We want you to fmd h i m guilty because he is guilty."

R R V o l . 12 Page 56.

       D u r i n g Ranger De La Garza's interview w i t h Appellant, Appellant described

how Appellant talked Pressley into selling his future interest to Appellant and John

by telling Pressley that Appellant intended to "....slap a lien against your

grandmother's estate. Carl, it's called devaluing the assets o f the remainders." " I

said, "It's going to be as much for your benefit as it is for my and John's benefit,

more so for his kids and everybody else. "Carl, it has to go through the probate first.

Hell, that could take years." RR Vol. 13 State's Exhibit 108; Exhibit 109 Page 124.




                                           39
      I n cross-examination o f State's witness, T o m m yJohnson, the following exchange

occurred:

      (Mr. Davis) A n d now whenever people are i n the tractor supply place visiting,
      you talk about weather, right?

      (Mr. Johnson) Yes, sir.

      (Mr. Davis) A n d you talk about politics?

      (Mr. Johnson) Yes, sir.

      (Mr. Davis) A n d people express negative opinions about politicians, don't they?

      (Mr. Johnson) Yes.

      (Mr. Davis) A n d bad things they wish would happen to them, don't they?

      (Mr. Johnson) Yes.

R R V o l . 10 Pages 6 4 - 6 5 .




3,3     Discussion and Conclusion

      The case being considered by the jury, that o f the murder o f Bonnie Harkey and

o f Karen Johnson, was one involving a conspiracy between Appellant, Carl Pressley,

and Lillian King. Appellant was shown as the person who planned the murder o f

Bonnie Harkey and who recruited Pressley into putting Appellant's plan into play.


                                            40
The motive o f Appellant for this murder was to gain possession and control over the

entire Harkey pecan estate which Appellant believed to be his inheritance and his

legacy. Once Applicant had secured his inheritance, Applicant planned to move to

Belize.

   The evidence that Appellant had tried to recruit David Rube to kill Appellant's

then wife, Kami, demonstrated a similarity to the present case i n that Appellant

sought to murder a family member i n order to gain control over something that the

victim had.     I n the case o f Kami it was control over their child.   I n the case o f

Bonnie Harkey it was control over the Harkey estate.

   The evidence that Appellant had tried to recruit David Rube to kill Appellant's

ex-wife who lived i n Oklahoma demonstrated a similarity to the present case i n that

Appellant sought to harm another i n retaliation for a wrong Appellant was done to

him.      I n the case o f the ex-wife it was an unspecified wrong done to Appellant

during the divorce.      I n the present case it was wrongs done to Appellant and

Appellant's inheritance by Darrell Spinks for which Appellant attempted to recruit

Jason Sandlin to "put the hurt on" Spinks.

   Another similarity between the plan to have Kami and the ex-wife murdered and

the plan to have Bonnie Harkey murdered is the element o f creating an alibi for each

o f the murders.    The details o f the alibis planned for the murders o f Kami and the

                                           41
ex-wife were not specified beyond being "long gone", however, the alibi Appellant

created for the murder o f Bonnie Harkey, and the collateral murder o f Karen

Johnson, was being i n Fort W o r t h playing golf w i t h Appellant's brother, John

Harkey.

   The evidence admitted o f Appellant acquiring a rifle and lawnmower muffler and

then asking David Rube to make the muffler into a silencer and then fit the silencer

onto the rifle which is to be used as the weapon to murder Kami demonstrated the

similarity o f the amount o f detail Appellant put into the planning o f the intended

murders.   I n the case o f Bonnie Harkey, Appellant threatened Pressley w i t h filing

liens against the estate which would devalue the Harkey estate and tie it up i n

probate for years i f Pressley did not sell Pressley's future interest i n the Prichard

Orchard to Appellant and John Harkey. While this was occurring Appellant was

negotiating the sale o f the same property to famed actor T o m m y Lee Jones. This

sale was planned to close on April 12, 2012. Yet before this could happen Bonnie

Harkey had to die.

   Once Pressley sold his interest i n the Prichard Orchard Appellant instructed

Pressley on the use o f a pillow to murder Bonnie Harkey as a means o f leaving no

fingerprints as evidence and pressed Pressley to have the murder done during that

weekend i n March 2012. As the date o f the planned murder approached. Appellant,

                                          42
to create his alibi, went to various businesses to announce his plans to be i n Fort

W o r t h over the weekend. Appellant also left a voicemail message w i t h the same

message to a prospective employer even though it was long past the date Appellant

had been told that the position would be filled.

   The testimony o f Pat Pierce describing Appellant's solicitation o f Pierce to kill

D i c k Miller and J i m Childress i n exchange for a motorcycle was another

demonstration o f Appellant's motive to control his inheritance as Appellant believed

each were "stealing" his land.

   Pierce also described Appellant's solicitation o f Pierce to kill San Saba County

Sheriff Steve Boyd and San Saba County Justice o f the Peace Les Dawson because

Sheriff Boyd and Justice o f the Peace Dawson were pressuring Appellant's wife for

information about Appellant's involvement i n the murders o f Bonnie Harkey and

Karen Johnson.     This evidence was offered and admitted to show Appellant's

consciousness o f guilt as a reasonable j u r y could interpret this testimony as

Appellant's attempt to prevent his present wife from giving evidence against

Appellant i n the same way that Carl Pressley and Lillian King did.

   Further, this evidence o f extraneous offenses was admissible to rebut the

defensive theory that, much like the idea that people make idle talk about wanting

bad things to happen to politicians. Appellant's more recent statements about

                                         43
wishing Bonnie Harkey would be dead and the collateral talk that related to that

issue was mere idle talk.

   One fmal point on this issue, it should be noted that the trial court instructed the

jury, not just once or twice, but many times on the limitations placed on them i n

consideration o f the extraneous matters.      Then the limitation instruction was

included i n the Court's Charge. There is nothing i n this record to suggest that the

j u r y did not understand or follow the trial court's limitation instructions when

considering the extraneous matters admitted into evidence.          This was further

stressed by the prosecutor i n his closing argument. The only one at trial suggesting

to the j u r y that they are being asked to punish Appellant for his prior bad acts was

Appellant's o w n trial counsel.

   For these reasons the relief requested by Appellant by his Issue N o . 3 should be

denied and the judgment and sentence rendered against Appellant be affirmed.




                                          44
                      Summary      Of The Argument         on
                          Response      to Issue No. 4



   T h e State is not required to adhere to a ritualistic form to comply

   w i t h T R E R u l e 404(b).   A copy of a statement referencing the

   extraneous bad act is sufficient to provide notice under the rule. I n

   addition this evidence was in fact same transaction contextual

   evidence.




   Appellant complains that the trial court erred i n admitting testimony from Pat

Pierce that Appellant stated Appellant offered a motorcycle to a guy from East Texas

to kill Bonnie Harkey because the prosecution had not given Appellant prior notice

o f its intent to offer such evidence. However Appellant did receive discovery that

included a copy o f a "tape" o f Pat Pierce's statement i n which this transaction is

described w i t h the exception o f identifying Bonnie Harkey as the target.   T o the

extent that the identity o f the person to be killed was Bonnie Harkey, Appellant

failed to show how he would have changed his trial strategy or presented his defense

differently i n any way and therefore failed to show how he was truly surprised or

harmed i n this regard.



                                         45
                  Argument       On Response         to Issue No. 4

4A      Principals of Law

     Rule 404(b) allows admission o f certain extraneous offenses, provided that: "upon

timely request by the accused i n a criminal case, reasonable notice is given i n

advance o f trial o f intent to introduce i n the State's case-in-chief such evidence other

than that arising i n the same transaction." Tex. R. Evid. Rule 404(b); Hayden v.

State, 66 S.W.3d 269, 271 (Tex. C r i m . App. 2001).

     Rule 404(b) does not set forth a formalistic method for conveying notice and

does not require a writing. Hayden, supra at 273 fn. 16. While the State should not

be permitted to engage i n gamesmanship by finding creative ways to convey "notice"

without really informing the defense o f its intent to introduce extraneous offenses,

the defense should not be permitted to engage i n gamesmanship by claiming the

notice it received was insufficient when the defense did i n fact have actual notice o f

the State's intent to introduce the extraneous offenses i n question. Id.

     A reviewing court accepts as true factual assertions made by counsel at trial which

could have been, but were not, disputed by opposing counsel. Pitts v. State, 916

S.W.2d 507, 510 (Tex. C r i m . App. 1996).




                                            46
   The purpose o f the Rule 404(b) (Tex. R. Evid.) notice provision o f preventing

surprise is a valid consideration i n conducting a Rule 44.2(b) (Tex. R. App. Proc.)

harm analysis. Hernandez v. State, 176 S.W.3d 821, 826 (Tex. C r i m . App. 2005).

   When an appellate court determines that a jury's verdict was substantially

influenced by the improper admission o f substantively inadmissible Tex. R. Evid.

404(b) evidence, that influence on the jury's verdict w i l l always be "injurious" since

there was no proper purpose for the j u r y to consider the evidence.     But, this is not

the case when substantively admissible Rule 404(b) evidence is improperly admitted

because o f the State's failure to comply w i t h the Rule 404(b) notice provision.

Under these circumstances, the error i n admitting this evidence may have had a

substantial effect or influence on the jury's verdict, but it cannot be said that this

effect or influence was "injurious" i f the defendant was not surprised by the

evidence. Hernandez, supra at 825.

    Where the State has provided a defendant copies o f recorded statements

describing extraneous acts yet the State did not provide a formalized notice o f intent

to use said extraneous acts at trial, it strains credulity to think that the defendant was

not on notice that the State intended to use the recorded statements as a part o f its

evidence or that he had not prepared to defend against their use. Hernandez, supra

at 826.

                                           47
   Where evidence constitutes same transaction contextual evidence, notice under

T R E Rule 404(b) is not required. Worthy v. State, 312 S.W.3d 34 (Tex. C r i m . App.

2010).

   Background evidence, once called 'res gestae' o f the offense, has also come to

refer to other offenses indivisibly connected w i t h the offense charged, and not only

general background evidence which is helpful to the jury's understanding. Mayes

V. State, 816 S.W.2d 79, 86 (Tex. C r i m . App. 1991). The court further recognized

that the broadening o f the term res gestae led to confusion as to what exactly

constitutes res gestae evidence. Id. ("Furthermore, the absence o f jurisprudence on

the infrequently litigated subject o f background evidence has also created an

analytical void, confusing the distinction between other offenses connected w i t h a

primary offense, and general background evidence."). Therefore, the court took the

opportunity to distinguish between background evidence and evidence o f "other

offenses connected w i t h a primary offense," which the court referred to as "same

transaction" contextual evidence. Id. at 86.

   Although a trial court must still perform a balancing test to see i f the same

transaction contextual evidence's probative value is substantially outweighed by its

prejudicial effect, the prejudicial nature o f contextual evidence rarely renders such

evidence inadmissible, as long as it sets the stage for the jury's comprehension o f the

                                          48
whole criminal transaction. Mann v. State, 718 S.W.2d 741, 744 (Tex. C r i m . App.

1986); Swarh v. State, 125 S.W.3d 672, 681 (Tex. A p p . - H o u s t o n [1st Dist.] 2003,

pet. dism'd).

      I f a ruling was correct on any theory o f law applicable to the case, i n light o f what

was before the trial court at the time the ruling was made, then the reviewing court

must uphold the judgment. Sauceda v. State, 129 S.W.3d 116,120 (Tex. C r i m . App.

2004).




4.2     Applicable Facts

      I n describing at trial statements made by Appellant while awaiting trial, fellow jail

inmate Pat Pierce testified that Appellant not only offered Pierce a motorcycle to kill

various people but that Appellant also stated that he had offered a motorcycle to a

guy i n East Texas to do a j o b for h i m .        RR V o l . 10 Pages 91 - 92. T o this the

following occurred before the bench:

         "MR. A D A M S (Defendant): Judge, there's another issue about a notice issue
      on this extraneous offense. Somebody else is going to kill somebody else. I don't
      have any notice o f that extraneous offense. So obviously you're talking about -

          "MR. M C A F E E (Prosecutor): Y o u do. Y o u have notice o f it. I gave a
      transcript as well as the tape o f this. You don't have to officially notice extraneous
      offenses. This is context for this extraneous -




                                               49
   " T H E C O U R T : Here's what we're going to do, okay? A n d I thought we had
an agreement before. It was agreed by M r . Davis. The instruction's been given.
You were going to object 404, and it was going to be overruled. N o w , do I need
to make an instruction every single time? Is that what you want?

    " M R . A D A M S (Defendant): I'm just trying to preserve our record. I'll do
what the Court directs me to do, but I just ~ I mean my deal is, is that the
running objection to this — this extraneous that's coming i n now, I didn't expect
it. And, you know, I don't mean to disrupt the proceedings, but I ' m just trying to
do the best I can and preserve the record."

    " T H E C O U R T : Well, for the record w i t h y'all's agreement, I ' m going to reply
when you ask for the instruction, to — I ' m just going to remind them to refer
them back to the previous instruction just so the record is clear so that that
instruction is the only one that's been given to them and that they're going to be
reminded o f it each time. So I don't mind you doing that to preserve your record,
as long as we have that agreement that that's the instruction.

   " M R . A D A M S (Defendant): I understand that.

   " T H E C O U R T : Is that okay?

   " M R . A D A M S (Defendant): Yes, sir.

   " T H E C O U R T : Okay.

   " M R . M C A F E E (Prosecutor): A n d this 404(b) information, whether it's
contextual to the entire notice, but they've been given the transcript, they've been
given the tape o f this — no, excuse me — the transcript o f this interview. That
provided the notice i n plenty o f time.

   " T H E C O U R T : A n d that specific objection when he came to the bench was
   overruled so...

   " M R . A D A M S : Thank you.




                                          50
(Return to open court)

"Q      (By M r . Mcafee) M r . Pierce?

"A      Yes, sir.

"Q      What did he say about that guy w i t h the motorcycle? What did he say
        about the offer o f the motorcycle, the guy from East Texas?

"A      The guy went to jail before he got to come down here.

"Q      A n d what was he offering that motorcycle to h i m for?

"A      T o come down take care o f Bonnie Harkey for h i m .

"Q      Bonnie Harkey? D i d he specifically say Bonnie Harkey?

"A      Yes, sir.

   " M R . A D A M S (Defendant): Okay, Judge, I ' m sorry. I ' m going to object and
ask for a curative instruction to the j u r y as far as Bonnie Harkey goes. That's a
notice issue. Under 404.

   " M R . M C A F E E (Prosecutor): Well, that w o u l d be an admission by party
opponent about the case-in-chief I t has nothing to do w i t h 404(b).

     " T H E C O U R T : I ' m going to overrule the objection.

"Q      (By M r . Mcafee) N o w , M r . Pierce, I do want to ask - I want to clarify
        something. N o w , you remember talking to Jack Schumacher, the
        investigator w i t h my office, before, did you not?

"A      Yes, sir.

"Q      A n d I believe that i n that ~ i n fact, the court reporter took down your
        statement, didn't she?


                                          51
   "A      Yes, sir.

   "Q      A n d I believe i n that statement, i f I ' m incorrect, that you said he wanted
           somebody w i t h a motorcycle to come over and kill somebody, commit a
           murder for h i m .

        " M R . A D A M S (Defendant): Objection, Your Honor. That's leading.

        " T H E C O U R T : Sustained.

        " M R . A D A M S : Ask for a curative instruction.

        " T H E C O U R T : There's been no response so it's sustained.

   "Q      (By M r . Mcafee) D i d you tell M r . Schumacher that you said he — or
           somebody from East Texas on a motorcycle was supposed to come over
           and commit a murder for him?

   "A      Yes, sir.

   "Q      Okay. Is it also clear that you didn't say Bonnie Harkey then?

   "A      N o t at that time.

   "Q      Okay, sir. But today you recall that's what he was talking about?

   "A      Yes, sir."

R R V o l 10 Pages 9 2 - 9 6 .




                                             52
4,3     Discussion and Conclusion

      The record shows that Appellant's initial objection was that the State had not

given notice to Appellant o f the intent to use Pierce's description o f Appellant stating

that he had offered a motorcycle to a guy i n East Texas to kill someone else. This

was countered by the Prosecutor's statement that Appellant's counsel had been

provided a copy o f both the recording o f the pre-trial interview o f Pierce and the

transcript thereof. I n as much as Appellant's counsel did not assert that what the

Prosecutor stated was not true, the Prosecutor's statement that Appellant's counsel

did i n fact receive a copy o f the recording and the transcript wherein Pierce

described that Appellant told Pierce that Appellant         wanted somebody w i t h a

motorcycle to come over and kill somebody, commit a murder for h i m is presumed

to be true.    T o this point the State was not obligated to provide Appellant w i t h a

ritualistic form o f notice so long as reasonable notice was given.

      However, Pierce then continued his testimony wherein he stated that Appellant

had told Pierce that Appellant had offered a motorcycle to a guy from East Texas to

come down and take care o f Bonnie Harkey for h i m .          T o this Appellant's trial

counsel objected that counsel had received no prior notice that the witness w o u l d

identify Bonnie Harkey as the intended victim o f the guy from East Texas.

Although the trial court overruled this objection, appellant failed to even attempt to

                                           53
make any showing o f how his defense strategy might have been different had the

State explicitly notified h i m that it intended to offer at trial evidence that Bonnie

Harkey was the intended victim, or how his defense was "injuriously" affected by the

State's failure to provide reasonable notice o f the identity o f the intended victim.

   A t the same time, a continued reading o f the testimony shows that the Prosecutor

was also surprised by this revelation o f Pierce that Bonnie Harkey was the intended

target o f the East Texas hitman.   Beyond this point. Appellant has failed to show

harm for the lack o f notice. I t is clear that Appellant had adequate notice that Pierce

would testify that Appellant told Pierce that Appellant had offered a motorcycle to

a guy i n East Texas to come kill someone. I t is clear that Appellant's trial counsel

had a large amount o f pre-trial discovery wherein Appellant made multiple

statements around the same time period to various persons that Appellant wanted

Bonnie Harkey to die. The only difference between the information contained i n

the notice and the testimony was that the someone i n this instance was Bonnie

Harkey. Even here. Appellant made no showing to the trial court that had Appellant

known o f the identity being Bonnie Harkey the trial strategy would have been

different or that any specific witness would have been brought to court to rebut the

testimony or that Appellant's trial counsel could or would have done anything

differently.

                                           54
   Further, this testimony was i n fact i n the nature o f same transaction context.

Appellant was describing to Pierce how Appellant had started the series o f events that

ultimately lead to the murder o f Bonnie Harkey by hiring the president o f a biker

club from East Texas to come i n and do the murder yet this person ended up i n jail

before he could do the j o b . A reasonable j u r y could conclude from the evidence

that when the initial plan did not come to fruition then Appellant turned to Plan B

and recruited Pressley to do the deed, which Pressley did. As such, this testimony

is not an extraneous bad act requiring notice under Rule 404(b).

   For these reasons the relief requested i n Appellant's Issue N o . 4 should be denied

and the judgment o f conviction and sentence be affirmed.




                                          55
                             PRAYER FOR RELIEF

   WHEREFORE, PREMISES C O N S I D E R E D , Appellee prays the Court deny

Appellant's appeal and affirm the judgment o f the trial court-

                                       Respectfully submitted,

                                       OFFICE O F D I S T R I C T A T T O R N E Y
                                       3?>^'' and 424'^ J U D I C I A L D I S T R I C T S
                                       Wiley B. McAfee, District Attorney
                                       P. O . Box 725
                                       Llano, Texas 78643
                                       Telephone              Telecopier
                                       (325) 247-5755        (325) 247-5274




                                          Assistant District Attorney
                                          State Bar N o . 03353500
                                          g.bunyard@co.llano.tx.us
                                          A T T O R N E Y FOR APPELLEE




                     CERTIFICATE OFWORD COUNT

   This is to certify that the pertinent portion o f this brief contains 12,074 words
printed i n Aldine401BT 14 font, including footnotes being in Aldine401BT 12 font,
according to the WordPerfect™ X 7 word count tool.




                                         56
                          CERTIFICATE OF SERVICE

      This is to certify that a true copy o f the above and foregoing instrument, together
w i t h this proof o f service hereof, has been forwarded on the 12th day o f November
2015, to Richard Davis, Attorney for Appellant, by email and by EServe.




                                                Assistant District Attorney




                                           57
