                            NUMBER 13-06-00563-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


MARIE A. REILLY,                                                             Appellant,

                                           v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 226th District Court
                          of Bexar County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

      A jury found appellant, Marie A. Reilly, guilty of murder and sentenced her to twenty

years’ imprisonment. See TEX . PENAL CODE ANN . §§ 19.02, 12.32 (Vernon 2003). By two

issues, Reilly challenges the legal and factual sufficiency of the evidence supporting her

conviction. We affirm.
                                       I. BACKGROUND

       On the morning of Monday, April 17, 1989, the San Antonio Police Department

received a call regarding the murder of Jayne Hays, a seventy-five-year-old retiree. When

police arrived at Jayne’s apartment, they discovered Jayne’s bloody body laying face-up

on the kitchen floor; a pillow covered her face and there were flowers in the kitchen trash

can. The apartment was in order except for the master bedroom. In the master bedroom

the window was open; the screen to the window was on top of some bushes outside of the

bedroom. The dresser, which sat below the window, was away from the wall, and the

dresser had a shoe print on top of it. Investigators searched the apartment for fingerprints.

They also identified DNA on several items, including a Buddha statue, which was found in

the living room, and a kitchen rag. However, no suspect was immediately charged.

       In 2003, the cold-case homicide division reopened the case. In 2005, Reilly,

Jayne’s former cleaning lady, was indicted on a single count of murder. The indictment

alleged that Reilly caused Jayne’s death by striking her with a statue and an unknown

object. Reilly, who was born in 1928, pleaded not guilty to the indictment; the case was

tried to a jury. Forensic experts, police officers, Jayne’s family and neighbors, Reilly, and

Reilly’s acquaintances testified at trial.

A.     Forensic Evidence

       Vincent Dimaio, M.D., the chief medical examiner for Bexar County, testified about

the autopsy report that his office prepared. According to the report, Jayne sustained fifteen

wounds shortly before her death, which included: defensive wounds on her forearms, a

broken nose, a depressed skull fracture, and numerous lacerations to her head and face.


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Dimaio testified that the lacerations were caused by a linear object and that the depressed

skull fracture was caused by a different object. He opined that a sixty-year-old woman,

such as Reilly, was capable of causing the wounds. Dimaio also opined that Jayne might

have known the murderer because a pillow was placed over her face, and a murderer who

knows the victim sometimes covers the victim’s face because the murderer does not want

to see what was done.

       Erin Reat, a forensic scientist, testified about the results of genetic tests that he

conducted on the Buddha statue, a kitchen rag, and other items found in Jayne’s

apartment. Reat compared genetic material found on those items to Jayne’s and Rielly’s

DNA. According to the test results, the kitchen rag tested positive for blood and also tested

positive for Jayne’s and Reilly’s DNA. Reat could not, however, specify whether the DNA

came from the blood on the rag or other sources. The test results also showed that there

were some “genetic markers which were foreign to both [Jayne and Reilly] on a swabbing

from the Buddha statue.”

B.     Law Enforcement Testimony

       Jimmy Porter, a detective in the evidence unit when Jayne was murdered, helped

process the crime scene by drawing a diagram of Jayne’s apartment. He testified that a

brass clock and a Buddha statue both had blood on them and were found in the living

room. Detective Porter testified that police officers had “mixed feelings” about whether the

apartment had been burglarized. Some evidence technicians felt that the apartment had

been burglarized, but others felt that it was made to look like a burglary.

       George Saidler, a police officer in the cold-case division, testified about his

investigation. Officer Saidler reviewed the case file and spoke to Detective Ernest Tavitas,

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who was the detective-in-charge of the case in 1989. Detective Tavitas had interviewed

Reilly and provided Officer Saidler with a tape recording of his interview. Officer Saidler

determined that Reilly had been a main suspect in the case from the beginning of the

investigation. He located Reilly’s whereabouts and, with the help of other police officers,

obtained a DNA sample from Reilly.

       Alvin Brown II, a detective at the time of the murder, testified that Detective Tavitas

assigned him to locate Reilly and obtain her fingerprints and a photograph of her. On April

20, 1989, Detective Brown reviewed the case file and staked-out Reilly’s home. When

Reilly left her home in a car, Detective Brown followed her, witnessed her make a traffic

violation, and called for a uniformed police officer to initiate a traffic stop. During the traffic

stop, Detective Brown approached Reilly and she told him, “I didn’t kill her.” Reilly also told

him that:

       She—she indicated to me that she was—people had said she was a suspect
       but she said she wasn't, she hadn't done it. And at that time, I noticed that
       she had her finger on her right hand, I think it was her middle finger, was
       bandaged and had a splint on it and I asked her what had happened. And
       she indicated that she had slammed it in a car door and then she produced
       a handwritten note from—I think that name was Keller, a Ms. Keller, that
       supposedly said that she had witnessed the Defendant slam her finger in the
       car door. And I obviously thought that was really strange.

       She told me that she had been treated at Brooke Army Medical Center for
       the injuries and she last saw the complainant on April the 12th and there was
       no problem between the two of them.

Detective Brown further testified that Reilly recalled taking flowers to Jayne a few days

before the murder.

C.     Keller’s Testimony




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          Paulette Keller, a teacher, testified that Reilly was her cleaning lady around the

same time that Jayne was murdered. Keller further testified that on Sunday, April 16,

1989, Reilly called between 9:00 p.m. and 10:00 p.m. to advise her that she had taken

soup to Keller’s house, but that she hurt her finger on the car door and had not dropped

off the soup. Reilly went to clean Keller’s house the next day but she could not clean

everything because of her injured finger. On Thursday of that week, Reilly called Keller at

6:30 in the morning, asking for a note explaining that she had injured her finger on Sunday.

Keller refused to provide Reilly with a note because she did not witness Reilly injure her

finger.

D.        Scott’s, Pamela’s, and Laird’s Testimony

          Scott Hays, Jayne’s son, testified that Reilly was his mother’s cleaning lady but that

Jayne had fired her.        Shortly after the firing, Jayne received a letter threatening a

defamation lawsuit from an attorney who represented Reilly. The letter states:

          I have been retained by Marie Reilly to consider filing a defamation of
          character lawsuit against you. Marie Reilly has related to me that she
          believes you have unjustly accused her of stealing a sum of money from your
          house.

          Ms. Reilly feels deeply hurt by this accusation, and quite naturally feels very
          bitter because she is convinced that it is unjust. Additionally, Marie Reilly
          has worked for, and does work for some of the most prominent members of
          the San Antonio community in the capacity of a domestic, and prides herself
          upon an excellent reputation.

          Please know that in the event false accusations continue to be made against
          Marie Reilly to other persons, Ms. Reilly has instructed this office to
          immediately file a lawsuit for defamation.

Scott opined that once Jayne fired Reilly, she would not have rehired her because “once




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[Jayne] did something, it’s set in stone.”

       Pamela Hays, Jayne’s daughter-in-law at the time of the murder, testified that Jayne

told her that she fired Reilly because she suspected that Reilly pried open a lockbox and

stole $800. Jayne confronted Reilly about the missing money, but Reilly denied the

accusation. Pamela further testified that on April 16, 1989, she visited Jayne, left her

young daughter with Jayne, and went to the grocery store to buy Jayne groceries. When

Pamela returned, Jayne seemed scared and told Pamela that she had changed the locks.

Pamela also testified that:

       [Jayne] didn’t tell me the exact day, but she told me that a few days before
       I had been there, that Marie had come over and that she had like—I don’t
       think she used the word pushed, but she came into her apartment and she
       was demanding to see her letter. She wanted to go make a copy of it, the
       letter that was sent from the attorney’s office, and she also wanted to see the
       lockbox. And Jayne said that she refused to let her take the letter, said it
       wasn’t going to leave her apartment, and she said she wasn’t going to show
       her the lockbox.

       Catherine Laird, Jayne’s apartment manager, testified that everyone at the

apartment complex was friendly, that everyone got along, and that there had never been

a burglary at the complex. She testified that, on the Thursday before the murder, Jayne

called her and requested a lock change. The next morning, Tony Cruz, the apartment

maintenance man, changed the locks on Jayne’s apartment. On Monday, April 17, Laird

received a phone call from one of Jayne’s neighbors who was concerned because she had

not seen Jayne. Laird then went to Jayne’s apartment, and she asked Cruz to inspect it.

Cruz discovered Jayne’s body, and the police were called.

E.     Defense Witnesses

       Reilly called two of Jayne’s neighbors to testify about Jayne’s interactions with an


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unidentified man at the apartment complex shortly before the murder. Helen Vacek

testified that she saw Jayne arguing with a homeless man by the apartment’s dumpster.

Janice Hollingsworth testified that on April 16, 1989, she also saw Jayne arguing with a

homeless man near her apartment.

       Reilly testified that she did not murder Jayne and that she was not physically

capable of murdering Jayne because of an automobile accident she had in 1988. She

testified that she hurt her finger while taking some soup to Keller.            During cross-

examination, Reilly testified that she had visited Jayne on the Friday before the murder to

take her to a doctor’s appointment. When Reilly arrived, Jayne told her that she had

already been to the doctor, but she asked Reilly to clean the apartment. Reilly obliged and

cleaned Jayne’s apartment. While Reilly was cleaning, she testified that she cut her finger

on the blinds and used a kitchen rag to stop the bleeding. When asked by the State to

explain why she had never mentioned cutting her finger at Jayne’s apartment during the

initial investigation in 1989, Reilly responded, “I don’t recognize, I don’t think so.”

       Cindy Baltimore, Reilly’s daughter, testified that she and Reilly had been involved

in an automobile accident on April 4, 1984, and Reilly was injured in the accident because

she was not wearing her seatbelt. Baltimore also testified that Reilly returned home

complaining about a hurt finger on Sunday, April 16, 1989.

       The jury convicted Reilly of murder in the first degree and sentenced her to twenty

years’ imprisonment. This appeal followed.

                                  II. STANDARDS OF REVIEW

       By two issues, Reilly contends that the evidence is legally and factually insufficient



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to support her conviction. In a legal sufficiency review, we consider the entire trial record

to determine whether, viewing the evidence in the light most favorable to the verdict, a

rational jury could have found the accused guilty of all essential elements of the offense

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979);

Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In conducting our

review of the legal sufficiency of the evidence, we do not reevaluate the weight and

credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz

v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). In circumstantial evidence cases,

it is unnecessary for every fact to point directly and independently to appellant’s guilt; it is

enough if the conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.

1993) (citing Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983)).

       When conducting a factual-sufficiency review, we view all of the evidence in a

neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the

verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and

manifestly unjust or (2) the verdict is against the great weight and preponderance of the

evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first

prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly

unjust” simply because, on the quantum of evidence admitted, we would have voted to

acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 416 (Tex. Crim. App.

2006). Under the second prong of Johnson, we cannot declare that a conflict in the

evidence justifies a new trial simply because we disagree with the jury’s resolution of that




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conflict. Id. Before finding that evidence is factually insufficient to support a verdict under

the second prong of Johnson, we must be able to say, with some objective basis in the

record, that the great weight and preponderance of the evidence contradicts the jury’s

verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence

that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99

S.W.3d 600, 603 (Tex. Crim. App. 2003).

       “Appellate courts should afford almost complete deference to a jury’s decision when

that decision is based upon an evaluation of credibility.” Lancon v. State, 253 S.W.3d 699,

705 (Tex. Crim. App. 2008). “The jury is in the best position to judge the credibility of a

witness because it is present to hear the testimony, as opposed to an appellate court who

relies on the cold record.” Id. The jury may choose to believe some testimony and

disbelieve other testimony. Id. at 707.

                                       III. DISCUSSION

       A person commits murder if the person (1) intends to cause serious bodily injury and

(2) commits an act clearly dangerous to human life that (3) causes the death of an

individual. TEX . PENAL CODE ANN . § 19.02(b)(2). Here, the State alleged that Reilly struck

and killed Jayne with a statue and an unknown object.             In challenging the factual

sufficiency of the evidence, Reilly argues that the only way the jury could convict her was

through speculation. We disagree.

       The Texas Court of Criminal Appeals has explained that juries are “permitted to

draw multiple reasonable inferences as long as each inference is supported by the

evidence presented at trial.” Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).



                                              9
In this case, the inferences that the jury made to conclude that Reilly murdered Jayne are

reasonable and supported by the evidence. Pamela testified, without objection, that Jayne

fired Reilly for stealing. Reilly’s attorney sent Jayne a letter threatening a defamation

lawsuit if she did not stop alleging that Reilly stole from her. Pamela further testified that

Jayne seemed scared only a few days before her murder because Reilly had visited and

wanted to see the letter and the lockbox. Laird testified that Jayne changed the locks on

her apartment around the same time that Reilly had visited Jayne. Dimaio testified that a

murderer who knows the victim sometimes covers the victim’s face because the murderer

does not want to see what was done. Jayne was found with a pillow over her face. Reilly

injured her finger at approximately the same time that Jayne was murdered, and she

telephoned Keller at 6:30 in the morning with a request for a letter to explain the injury.

And finally, during a traffic stop, Detective Brown approached Reilly, and she volunteered,

“I didn’t kill her.”

        It is clear that Jayne fired Reilly because she suspected that Reilly was stealing from

her. The jury could have reasonably inferred that Jayne thought Reilly was dangerous

because Pamela testified that Reilly scared Jayne on one occasion. Additionally, the jury

could have reasonably inferred that Reilly injured herself during the murder and sought an

alibi from Keller. Thus, the record contains some evidence of motive and means. Reilly’s

first issue, which challenges the legal sufficiency of the evidence supporting her conviction,

is overruled.

        By her second issue, Reilly challenges the factual sufficiency of the evidence by

arguing that the jury convicted her because of inconsistencies in her testimony, which can



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be explained by her age. She does not cite, however, any authority for this argument. See

TEX . R. APP. P. 38.1(i) (providing that the brief must contain a clear and concise argument

for the contentions made, with appropriate citations to authorities). In any event, we defer

to the jury’s assessment of a witness’s credibility. Lancon, 253 S.W.3d at 705. Evaluating

the evidence in a neutral light, favoring neither party, we cannot say that the guilty verdict

is clearly wrong and manifestly unjust, or that the evidence in support of the judgment is

outweighed by the great weight and preponderance of the contrary evidence. See Watson,

204 S.W.3d at 414-15.

                                      IV. CONCLUSION

       The judgment of the trial court is affirmed.


                                                  ________________________
                                                  ROGELIO VALDEZ
                                                  Chief Justice

Do not publish. TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 13th day of November, 2008.




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