Opinion filed August 11, 2016




                                       In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-14-00129-CR
                                    __________

                    LANNY MARVIN BUSH, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 42nd District Court
                                Coleman County, Texas
                            Trial Court Cause No. 2602

                      MEMORANDUM OPINION
      The jury convicted Lanny Marvin Bush of capital murder for the kidnapping
and murder of Michele Monique Reiter. The court assessed Appellant’s punishment
at confinement for life without parole and sentenced Appellant accordingly.
Because we hold that there is insufficient evidence to support a conviction for capital
murder based on kidnapping, we reverse. However, because we find that the
evidence is sufficient to support the lesser included offense of murder, we remand
this cause to the trial court to reform the judgment to reflect a conviction of murder
and to conduct a new trial as to punishment only.
      Reiter lived with her roommate, Denise “Denny” Worrell, in Brownwood.
Reiter did not come home one night after she left for a dinner that she had planned
with someone whom Reiter believed was a friend from school. Police later found
Reiter buried in a shallow grave in Coleman County.
      Appellant presents three issues for our review. In Appellant’s third issue, he
argues that the trial court erred when it denied his motion to suppress as it related to
a video recording of his police interrogation. We review a trial court’s ruling on a
motion to suppress for an abuse of discretion, applying a bifurcated standard of
review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The
bifurcated standard requires that we give great deference to the trial court’s findings
of historical facts supported by the record and to mixed questions of law and fact
that turn on an evaluation of credibility and demeanor. Herrera v. State, 241 S.W.3d
520, 526–27 (Tex. Crim. App. 2007). However, we review de novo the trial court’s
determination of the law and its application of law to facts that do not turn on an
evaluation of credibility and demeanor. Id. at 527; Davila v. State, 4 S.W.3d 844,
847–48 (Tex. App.––Eastland 1999, no pet.). We view the evidence in the light
most favorable to the trial court’s ruling. Carmouche v. State, 10 S.W.3d 323, 327
(Tex. Crim. App. 2000).
      Custodial interrogation is “questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his freedom of
action in any significant way.” Miranda v. Arizona, 384 U.S. at 436, 444 (1966).
The defendant bears the initial burden of proving that the statement is the product of




                                           2
custodial interrogation. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App.
2009). “[B]eing the ‘focus’ of an investigation does not necessarily render a person
‘in custody’ for purposes of receiving Miranda warnings or those required under
article 38.22 of the Code of Criminal Procedure.” Id. at 293. There are four general
situations that may constitute custody for purposes of Miranda and Article 38.22:
(1) the accused is physically deprived of his freedom of action in a significant way;
(2) a police officer tells the accused he is not free to leave; (3) police officers create
a situation that would lead a reasonable person to believe that his freedom of
movement has been significantly restricted; and (4) there is probable cause to arrest
the accused, and police officers do not tell him that he is free to leave. Id. at 294.
Nevertheless, we consider the totality of the circumstances surrounding an
interrogation to determine whether the person was in custody during the
interrogation. See Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996)
(“The determination of custody must be made on an ad hoc basis, after considering
all of the (objective) circumstances.”); see also Blain v. State, No. 11-12-00212-CR,
2013 WL 4052540, at *2 (Tex. App.––Eastland Aug. 8, 2013, no pet.) (mem. op.,
not designated for publication).
      We have reviewed the video recording as presented to the jury. When
Appellant first arrived in the interview room, Ranger Hanna and Appellant had a
short, casual conversation. When Ranger Crawford came into the room, Ranger
Hanna began to explain why Appellant was present and the expectations of the
interview. The conversation proceeded as follows:
             RANGER HANNA: You didn’t want to, I mean, you didn’t want
      to talk to, to [officers with the Brownwood Police Department], but
      you’re are okay with talking with us.

             APPELLANT: Yea, I’m okay with that.



                                            3
             RANGER HANNA: In fact, you’ve driven down here on your
      own.

             APPELLANT: Right.

            RANGER HANNA: Alright, and you understand right now we’re
      not telling you you’re under arrest, you’re . . . not going to be free to,
      to leave right now. So this is like a voluntary interview is what we want
      to be clear on. You agree with that?

             APPELLANT: Yes, Sir.

Appellant argues that the statement that Appellant was not free to leave shows that
the interview was custodial. Appellant further argues that, because the rangers failed
to Mirandize Appellant prior to the start of this questioning, the trial court erred
when it denied Appellant’s motion to suppress.          However, we disagree that
Ranger Hanna ever told Appellant that he was not free to leave.             Although
Ranger Hanna stumbled on his words, he expressed to Appellant that (1) he was not
telling Appellant that he was under arrest and (2) he was not telling Appellant that
he was not free to leave.
      Even if Ranger Hanna told Appellant that he was not free to leave, several
facts indicate that this video recorded interview was not custodial. First, Appellant
requested to meet with the rangers. Second, Appellant drove himself and came with
his girlfriend to the police station. Additionally, at the time that Ranger Hanna
allegedly told Appellant that he was not free to leave, Ranger Hanna was quickly
going over the voluntary aspect of the interview. This portion of the interview was
less than thirty seconds. The entire conversation between the rangers and Appellant
indicated that they all believed that Appellant was free to leave at any point during
the interview. The rangers requested consent to search Appellant’s laptop, cell



                                          4
phone, and pickup. When the rangers discussed whether Appellant would consent
to a search of these items, Appellant became concerned with whether the rangers
would have time to search his pickup prior to work the next day. The rangers offered
to provide him with transportation to work and to help him load his tools into the
substitute vehicle. This conversation indicates that the rangers, as well as Appellant,
believed that he was free to leave and could return to work the next day.
      Moreover, Appellant asked to speak to his girlfriend to discuss the situation
regarding his pickup. The rangers permitted Appellant’s girlfriend to enter the
interview room, discuss the situation with him, leave, and wait for Appellant in
another room.
      Appellant also argues that he requested an attorney and that the rangers
ignored this request. A request for an attorney must be unambiguous. Dowthitt, 931
S.W.2d at 257. When Appellant first questioned his need for an attorney, Appellant
was not talking to the rangers. Rather, Appellant and his girlfriend were discussing
the possibility that he needed to talk to an attorney about the consent to search his
pickup. This was not a specific, unambiguous request for an attorney. See id.
      Finally, when Appellant did unambiguously request an attorney, the rangers
ended all questioning and permitted Appellant to leave the interview room and the
station. However, by the time that Appellant had made it outside the station, the
rangers had decided to place him under arrest for online impersonation. At this time,
the rangers read Appellant his Miranda rights, and Appellant voluntarily waived
those rights. All these factors weigh against a determination that the initial portion
of Appellant’s interview was custodial. We find that the trial court did not err when
it denied Appellant’s motion to suppress. We overrule Appellant’s third issue.




                                          5
      In Appellant’s first issue, he argues that the evidence is factually insufficient
to show that he was the person who committed the murder. In Appellant’s second
issue, he argues that the evidence is legally insufficient to support a conviction for
capital murder because there is insufficient evidence of kidnapping. Under Brooks v.
State, we no longer complete separate factual and legal sufficiency reviews.
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337
S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). We review the
sufficiency of the evidence, whether denominated as a legal or as a factual
sufficiency claim, under the standard of review set forth in Jackson v. Virginia, 443
U.S. 307 (1979). Brooks, 323 S.W.3d at 912; Polk, 337 S.W.3d at 288–89. Under
the Jackson standard, we examine all the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and any reasonable inferences
from it, any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). In our review, we will give deference to
the duty of the factfinder to resolve credibility issues and to weigh the evidence.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
      Under Section 19.03(a)(2) of the Texas Penal Code, a person commits capital
murder if “the person intentionally commits the murder in the course of committing
or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault,
arson, obstruction or retaliation, or terroristic threat.” TEX. PENAL CODE ANN.
§ 19.03(a)(2) (West Supp. 2015). The State charged Appellant with intentionally
causing the death of Reiter while in the course of committing or attempting to
commit the offense of kidnapping.




                                          6
      Appellant and Reiter were romantically involved for approximately five years
prior to her death. When Reiter ended her relationship with Appellant, she cut off
almost all communication with him, but he continued to call and text her often.
Appellant created a Facebook page under the name “Rocky Switzer” so that he could
continue to communicate with Reiter by pretending to be someone with whom Reiter
had previously gone to school. Reiter began to communicate with “Rocky Switzer”
about relationships, including her former relationship with Appellant. At that time,
Reiter was dating a married man, William Kemper Croft. Reiter agreed to have
dinner with “Rocky Switzer.” Reiter and “Rocky Switzer” planned to meet at 8:30
on the night she went missing. After they had made plans to meet, but before the
scheduled meeting time, Appellant told Croft’s wife about her husband’s
relationship with Reiter. Croft’s extramarital affair with Reiter ultimately caused
Croft and his wife to get a divorce.
      Reiter told Worrell about her date with “Rocky Switzer,” and Worrell testified
that Reiter was looking forward to meeting with him. Worrell last saw Reiter at
approximately 6:15 on the night she went missing. At around 7:56 that night,
Worrell received the following text message from Reiter’s phone: “Rock[y] called
and is here early going to meet him will be home late.” Worrell testified that this
text message was strange because it was lengthy, because it was not typed in the
style that Reiter typically communicated, because “Rocky” was not much earlier
than planned, and because she already knew Reiter would be late. Worrell further
testified that the conversation was strange because Reiter did not respond to
Worrell’s reply message. Worrell explained that she replied to the text and that she
expected Reiter to respond back because Reiter was the type of person that had to




                                         7
have the last word in a conversation. During Appellant’s interview, Appellant
admitted that he sent the text message to Worrell from Reiter’s phone.
       Reiter and Worrell had an agreement that, if Worrell did not hear from Reiter
for a length of time, Worrell was to contact the police. When Reiter was not home
by the next morning, Worrell reported her missing. Worrell testified that Reiter
would not have met Appellant in a private location. Additionally, Yolanda Nino,
Reiter’s coworker, testified that Reiter was scared of Appellant. Appellant told
Ranger Hanna and Ranger Crawford that Reiter wanted to meet him in a location
that was not too public or too private. The police began to investigate, and Worrell
called Appellant to see if he had any information on Reiter’s whereabouts.
       Appellant told Worrell that he had not seen Reiter, and he denied any
knowledge of her whereabouts.          Worrell and Appellant continued to have
conversations through text messages about the investigation and what had happened
to Reiter. At one point, in an effort to explain why he had caused difficulties for
Reiter, Appellant told Worrell that “he just wanted to hurt [Reiter] as bad as she hurt
him.” Further, through a text message, Appellant told Worrell that he knew Reiter
was alive and that she would come home when it all died down. After Reiter’s
disappearance, Appellant asked Worrell if he could look at Reiter’s wardrobe to see
if she took clothes with her. When Worrell told Appellant that the police had sealed
the room, he asked if the police believed she had been abducted. Additionally,
Worrell testified that prior to Reiter’s disappearance, Appellant left Reiter a
voicemail in which he said that bad people would put drugs in her drink and hurt
her.
       Phone records showed that, at 6:15 on the night that Reiter went missing, her
phone was near her home, and Appellant’s phone was at the Bert Massey Sports




                                          8
Complex. At 6:17 p.m., there was a phone call between Reiter and Appellant that
lasted for approximately three minutes. At approximately 6:30 that night, both
Appellant’s and Reiter’s phones were at the sports complex, the location where
Reiter’s car was later found. The phone records further showed that, around
6:40 p.m., both phones were on a back road that ran south from Brown County to
Santa Anna in Coleman County. Near 7:00 that night, cell tower records revealed
that the phones were in the Bangs area, a path that continued along the back road
toward Santa Anna. The records showed that the phones then reached the location
where Reiter’s body was found. In fact, these phone records were the means by
which Reiter’s body was found.
      The phone logs further showed that Appellant’s phone left the location of
Reiter’s burial site and returned to his home on the night Reiter went missing.
However, Reiter’s phone stopped communicating with phone towers at 8:55 on the
night she went missing. The next morning, Appellant’s phone communicated with
phone towers within several miles of Reiter’s burial site. Around this same time,
Reiter’s phone briefly communicated with towers near her burial site and then did
not communicate with any towers again. Her phone was never located.
      Reiter’s car was found in the sports complex parking lot. There were no signs
of a struggle in or near the vehicle. Reiter’s unclothed body was found in a shallow
grave under a bridge. According to the record, this location was concealed from the
view of persons driving on the highway. Due to the decomposition of the body, the
medical examiner, Dr. Marc Krouse, could not determine Reiter’s cause of death.
There were no stab wounds, no gunshot wounds, no evidence of natural disease, no
evidence of strangulation, and no evidence of injury.       Based on the autopsy,




                                         9
Dr. Krouse could not rule out death by asphyxiation by snubbing or overlay, and he
noted that there was strong evidence of foul play.
      Before Reiter’s disappearance, Appellant often called and often sent text
messages to Reiter. According to what Appellant told the rangers, there was a time
period after Reiter’s disappearance when Appellant possessed her phone; Appellant
made only a few calls to Reiter’s phone during that time.
      Ranger Hanna and Ranger Crawford interviewed Appellant before Reiter’s
body had been found. At first, Appellant told the police that he did not see Reiter
on the day that she went missing. He admitted that he created “Rocky Switzer” and
that the two had agreed to meet the night that Reiter went missing. However, he told
the Rangers that the purpose of this meeting was for Reiter to get “stood up” by
“Rocky Switzer.” Later in the interview, Appellant admitted to meeting with Reiter
on the date that she went missing, but before Reiter was scheduled to meet “Rocky
Switzer.” At one point in the interview, Appellant stated that he had had sex with
Reiter that day and that they had talked about getting back together.
      The record shows that a shovel was used at the burial site to move dirt onto
Reiter’s body. When the police searched Appellant’s pickup, they found a shovel in
the bed of his pickup. The record indicates that this was not something Appellant
normally carried in his pickup. Ranger Hanna testified that the shovel was not
swabbed and tested because it had rained since Reiter’s disappearance. He explained
that, because the shovel was in the bed of the pickup, he believed that any biological
evidence would have been removed due to the rain. Ranger Hanna further testified
that refrigerant was found in Appellant’s pickup and that refrigerant can cause an
individual to die by asphyxiation.




                                         10
      A search of Appellant’s computer showed internet searches for information
on drugs that can knock a person out. The searches included information on natural
and over-the-counter “knockout drops.” Appellant also searched for where the heart
and the lungs were located in the human body. He searched for “[B]rownwood
[T]exas police blotter” and “Missing Person Protocol.” He further searched for
information on how one could know whether someone was cheating on him and how
to get over a breakup.
      Appellant’s daughter, Jennifer High, testified that Appellant contacted her on
the night of Reiter’s disappearance. During their conversation, Appellant stated that
Reiter was missing and that her car was at the sports complex. This conversation
occurred prior to the phone call that Worrell made to Appellant in which she told
him that Reiter was missing.
      Further, Appellant’s nephew, Marvin Don Thompson, testified that, prior to
Reiter’s disappearance, Appellant asked Thompson which family member possessed
a .32 caliber gun that had previously belonged to Thompson’s late grandfather. On
the day of Reiter’s disappearance, Appellant purchased .32 caliber ammunition.
      We first determine whether the State proved kidnapping––the aggravating
element of capital murder as charged in this case. See PENAL § 19.03(a)(2). “A
person commits the offense of kidnapping by intentionally or knowingly restricting
a person’s movements, by either moving the person from one place to another or
confining the person, without consent.” Swearingen v. State, 101 S.W.3d 89, 95
(Tex. Crim. App. 2003) (citing PENAL §§ 20.01(1)(A), (2)(A) & (B), 20.03(a)). This
restriction of movement can be accomplished by force, intimidation, or coercion, so
as to substantially interfere with the person’s liberty. Id. The act or acts must be
done with the intent to prevent the person’s liberation by either secreting or holding




                                         11
her in a place where she is not likely to be found or using or threatening to use deadly
force. Id. Deadly force is “force intended or known by the person acting to cause,
or in the manner of its use or intended use is capable of causing death or serious
bodily injury.” Id. “The offense of kidnapping is complete when the restraint is
accomplished and there is evidence that the defendant intended to restrain the victim
by either secretion or the use or threat to use deadly force.” Id. (citing Mason v.
State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995)).
       The State argues that the following evidence is sufficient to show kidnapping:
Reiter is dead; Reiter’s body and car were found in remote locations; the route along
which Appellant’s and Reiter’s phones were traced ran to the burial site and went
through rural, remote locations; the autopsy noted a suggestion of foul play;
asphyxiation by snubbing or overlay or death from exposure to refrigerant could not
be ruled out; Appellant purchased .32 caliber ammunition and may have had access
to a .32 caliber weapon; Appellant used the word “abduction” when talking about
Reiter’s disappearance with Worrell; Appellant left Reiter a voicemail in which he
said that other individuals would “put drugs in her drink”; Reiter would not have
willingly gone to a rural location; and there is no evidence that Reiter was murdered
where her car was found. We disagree that this evidence shows that Appellant
kidnapped Reiter.
      The record does not provide the time or date of Reiter’s death. The record
does not indicate whether Reiter was alive at the time that phone records show that
her phone and Appellant’s phone signals left the sports complex on the night she
went missing. Although the State argues that Reiter would not go with Appellant to
a rural location—her burial site, the evidence shows that Reiter met with Appellant
in a remote location—the sports complex. There is no evidence that the meeting at




                                          12
the sports complex was against Reiter’s will. Likewise, the record does not indicate
whether Reiter left the sports complex willingly with Appellant or whether Reiter
was even still alive when she left the sports complex. In addition, although the State
argues that there is no evidence that Reiter was killed at the sports complex, there is
also no evidence that Reiter was killed at the burial site or in Appellant’s vehicle.
Thus, without evidence that Reiter was moved from one place to another or confined
without consent prior to her death, a rational juror could not believe beyond a
reasonable doubt that Appellant kidnapped Reiter from the sports complex. But cf.
Valdez v. State, No. 08-10-00331-CR, 2012 WL 4928905, at *1–2, 7–9 (Tex. App.—
El Paso Oct. 17, 2012, pet. ref’d) (not designated for publication) (explaining that
victim’s voluntary accompaniment with defendant to his house did not preclude the
possibility that a kidnapping subsequently occurred and holding that the evidence
was sufficient to support the kidnapping element of a capital murder conviction
where victim told police that she had been held against her will).
      Additionally, a rational juror could not believe beyond a reasonable doubt that
Appellant attempted to kidnap Reiter. A person commits attempted kidnapping
when, with the specific intent to commit kidnapping, “he does an act amounting to
more than mere preparation that tends but fails to effect the commission of the
offense intended.” PENAL § 15.01(a) (West 2011). The State argues that the
following evidence indicates that Appellant attempted to kidnap Reiter: Appellant
searched for knockout drugs or drops, how to get over a breakup, and how to know
whether Reiter was cheating; Appellant left Reiter a voicemail that indicated that
other people would put drugs in her drink; Appellant created a fake Facebook page
to keep in contact with Reiter; and on the day of Reiter’s disappearance, Appellant
purchased ammunition for the same caliber gun to which he may have had access.




                                          13
      Our review of the evidence does not show that Appellant completed an act
amounting to more than mere preparation as required by the Penal Code. See id.
From our review of the computer forensic documents, it appears that the internet
searches for knockout drugs are from July, two months prior to Reiter’s
disappearance. Moreover, there is no evidence that Appellant purchased, made, or
obtained these drugs. Appellant purchased .32 caliber ammunition, but the record
does not indicate that Appellant actually obtained the gun that he had mentioned to
his nephew. Although the evidence shows that Appellant, as “Rocky,” was to meet
Reiter later for dinner, he, not as “Rocky” but as himself, met her at the sports
complex two hours earlier than the scheduled meeting time. Therefore, the planned
date never occurred. Even if internet research, purchasing ammunition for a gun that
the evidence does not show that Appellant possessed, and setting up a meeting in a
public parking lot indicates that Appellant wanted to kidnap Reiter, these acts do not
go beyond mere preparation.
      The evidence also does not support the State’s theory that Appellant lured
Reiter to a location from which he could kidnap her either by posing as “Rocky” or
by promising that he would return her property. As we have discussed, the meeting
with “Rocky” never occurred; thus, the planning of that meeting did not amount to
an act beyond mere preparation.
      At trial, the State also argued that Appellant lured Reiter to the sports complex
by deception in that he told her that he was going to give some of her belongings
back to her when he had no intention of returning her things.                Although
Ranger Hanna testified that Appellant admitted during the interview that he did not
have the computer with him on the day that Reiter went missing, the computer was
not the only item that Appellant told police he was trying to return to Reiter.




                                          14
Appellant also told police that he was going to return a jacket, a camera, and a “chip”
or SIM card for a cell phone. In his interview, Appellant told Ranger Hanna that he
did not take the computer with him on the day that he was supposed to meet Reiter.
He said that he never carried it with him and that he always left it at the house.
Appellant did not tell Ranger Hanna that he left the other items at his house or that
he otherwise did not have them with him on the day Reiter went missing. We have
found no other evidence in the record that indicates that Appellant did not have the
items with him. There is also no evidence of what Appellant told Reiter in the three-
minute conversation prior to the time that Reiter met Appellant at the sports
complex. Therefore, the record does not support the State’s argument to the jury
that Appellant lured Reiter to the sports complex by deception. But cf. Martinez v.
State, No. 03-00-00581-CR, 2001 WL 223259, at *3 (Tex. App.—Austin Mar. 8,
2001, pet. ref’d) (not designated for publication) (holding that evidence was
sufficient to support the kidnapping element of a capital murder conviction where
the record showed that defendant lured the victim into the car under false pretenses
by telling the victim that he needed her to help pick up a friend’s car that did not
exist).
          We hold that the evidence is insufficient to show that Appellant kidnapped or
attempted to kidnap Reiter. Thus, the evidence is insufficient to support Appellant’s
conviction for capital murder. We sustain Appellant’s second issue.
          Because we have found that the evidence is insufficient to support
Appellant’s conviction for capital murder as charged in the indictment, we must now
decide whether the conviction should be reformed to reflect a conviction for a lesser
included offense. See Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App.
2014). A conviction should be reformed when (1) every element necessary to prove




                                            15
the lesser included offense was found when the appellant was convicted of the
greater offense and (2) the evidence is sufficient to support a conviction for the lesser
included offense. Id. First-degree murder is a lesser included offense of capital
murder, and the jury necessarily found that Appellant intentionally or knowingly
killed Reiter when it convicted him of the capital murder of Reiter. See PENAL
§§ 19.02, 19.03. Therefore, we will review the evidence to determine whether it is
sufficient to support a conviction for murder. See Thornton, 425 S.W.3d at 300, 307.
      Appellant argues in his first issue that the evidence is factually insufficient to
show that he is the person that murdered Reiter. Although we are no longer
reviewing Appellant’s argument as it relates to the capital murder, we believe his
argument also applies to our consideration of the lesser included offense of first-
degree murder. However, as we have stated, we will review Appellant’s challenge
to the factual sufficiency of the evidence as a challenge to the legal sufficiency of
the evidence. See Brooks, 323 S.W.3d at 912; Polk, 337 S.W.3d at 288–89.
      Appellant specifically argues that Croft, the married man whom Reiter was
dating at the time of her death, had the motive to kidnap and murder Reiter; that
there was no eyewitness testimony, fingerprint evidence, or DNA evidence linking
Appellant to Reiter’s murder; and that there was no evidence of a murder weapon or
cause of death, much less any evidence to link Appellant to a weapon. Even though
we agree with Appellant’s assertions regarding a lack of forensic evidence linking
Appellant to the murder, we do not agree that other evidence, including
circumstantial evidence, is insufficient to link Appellant to Reiter’s murder.
      The evidence shows that Appellant had the opportunity to murder Reiter. His
phone and her phone were in the same locations throughout the evening of her
disappearance, and the last place for which her phone provided location data was the




                                           16
location where her body was found. The records indicate that Appellant’s phone
signal showed a return to his home in San Angelo between 11:00 p.m. and midnight
that night but that Reiter’s phone did not communicate again with any towers after
8:55 p.m. The next morning, Appellant’s phone communicated with phone towers
within several miles of Reiter’s burial site. Around this same time, Reiter’s phone
briefly communicated with towers near her burial site and then did not communicate
with any towers again. Thus, the record supports a reasonable inference that
Appellant was the last person to see Reiter alive and that Appellant returned to
Reiter’s burial site the next morning. In addition, Detective Brian Tompkins of the
Brownwood Police Department testified that he ruled out Croft as a potential suspect
because the cell phone records showed that Appellant’s and Reiter’s phones were in
the same locations throughout the night of her disappearance.
      Further, Appellant had a difficult time dealing with his breakup with Reiter.
This difficulty was evident from his conversations with Reiter as “Rocky Switzer”
and his internet searches that included how to get over a breakup. “Rocky” told
Reiter multiple times that he was having a hard time getting over his most recent ex-
girlfriend. And Appellant told Worrell that he wanted to hurt Reiter as bad as she
hurt him.
      Finally, although Dr. Krouse could not determine Reiter’s cause of death, he
did determine that, based on the circumstances surrounding her death, there was
strong evidence of foul play. Dr. Krouse also testified that he could not rule out
asphyxiation. Ranger Hanna testified that refrigerant was found in Appellant’s
pickup and that it could cause death by asphyxiation. From this evidence, we find
that a rational jury could have found beyond a reasonable doubt that Appellant




                                         17
murdered Reiter. See Jackson, 443 U.S. at 319; Isassi, 330 S.W.3d at 638. We
overrule Appellant’s first issue.
      Appellant’s judgment of conviction for capital murder is reversed. We
remand this cause to the trial court to reform the judgment to reflect a conviction for
the offense of murder and to conduct a new trial as to punishment only. See
Thornton, 425 S.W.3d at 300, 307.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


August 11, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                          18
