                                                                            PD-0138&0139-17
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                 Transmitted 3/27/2017 2:35:13 PM
                                                                   Accepted 3/28/2017 3:08:01 PM
                                                                                   ABEL ACOSTA
                           CAUSE NO. PD-0138-17                                            CLERK
                           CAUSE NO. PD-0139-17
                             ______________

             THE COURT OF CRIMINAL APPEALS OF TEXAS
                          ______________

                 MICHELE MARIE WILLIAMS, Petitioner

                                      VS.

                    THE STATE OF TEXAS, Respondent
                            ______________

  On Appeal from the Court of Appeals for the Second District of Texas at Fort
                                    Worth
              (Court of Appeals Cause Number 02-14-00413-CR)
      On Appeal from the 396th District Court of Tarrant County, Texas
                      (Trial Court Cause No. 1266846D)

  On Appeal from the Court of Appeals for the Second District of Texas at Fort
                                    Worth
              (Court of Appeals Cause Number 02-14-00414-CR)
      On Appeal from the 396th District Court of Tarrant County, Texas
                      (Trial Court Cause No. 1266847D)

                               ______________

                PETITION FOR DISCRETIONARY REVIEW
                           ______________


Mike Berger
Attorney at Law
State Bar No. 02191900
Office (817) 338-1500
Fax (817) 338-1505                                      March 28, 2017
Attorney for Petitioner



                                       i
                            Identity of Parties and Counsel

Parties to the Appeal:

The State of Texas

Michele Marie Williams Jr.

Names and Addresses of Trial Counsel:

The Hon. Cody Cofer
Attorney at Law
111 N. Houston, No. 222
Fort Worth, Texas 76102

The Hon. A. Clay Graham
Attorney at Law
5719 Airport Freeway
Fort Worth, Texas

The Hon. Jack Strickland
The Hon. Sheila Wynn
Assistant Criminal D.A.’s
401 W. Belknap
Fort Worth, Texas 76119

Names and Addresses of Appellate Counsel:

The Hon. Mike Berger
Attorney at Law
933 W. Weatherford St. #200
Fort Worth, Texas 76102

The Hon. Debra Windsor
Assistant Criminal D.A.
401 W. Belknap
Fort Worth, Texas 76119



                                          ii
The Hon. Stacey M. Soule’
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711

                             Table of Contents


Identity of Parties and Counsel……………………………………………… ii, iii

Appendix ……………………………………………………………………..                      iii

Table of Contents…………………………………………………………….                  iii

Index of Authorities…………………………………………………………                  iv

Rules, Codes, Constitutions and Statutes …………………………………..    v

Statement Regarding Oral Argument…………………………………………          vi

Statement of the Case…………………………………………………………                vii

Statement of Procedural History……………………………………………… viii

References to the Record……………………………………………………… 1, 2

Grounds for Review…………………………………………………………….                  2

Reasons for Review……………………………………………………………                   2

First Ground of Review (Restated) …………………………………………….        3

Prayer for Relief ………………………………………………………………                 11

Certificate of Service ………………………………………………………….             12

Certificate of Compliance ……………………………………………………..           13




                                    iii
                                  Appendix

               Court of Appeals’ December 22nd, 2016 Opinion

 Court of Appeals’ January 26th, 2017 Order Denying Appellant’s Motion for En
                 Banc Consideration and Motion for Rehearing


                             Index of Authorities

           RULES, CODES, CONSTITUTIONS AND STATUTES

Cases

Dowthitt v. State,
931 S.W.2d 244(Tex.Crim. App. 1996)……………………………………. 4, 5 , 8

Ervin v. State,
333 S.W.3d 187 (Tex. App. - Houston [1st Dist.] 2010)…………………..                  9

Estrada v. State,
313 S.W.3d 274 (Tex. Crim. App. 2010), cert. denied,
562 U.S. 1142 (2011)……………………………………………………….                                  4

Gardner v. State,
306 S.W.3d 274 (Tex.Crim.App.2009)……………………………………..                              9

Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)………………………              7, 10

Montejo v. Louisiana,
556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009)……………………                    7

Pecina v. State,
361 S.W.3d 68 (Tex.Crim.App. - 2012)…………………………………….                             7

Stansbury v. California,
511 U.S. 318, 114 S. Ct. 1526 (1994)………………………………………                         4



                                      iv
State v. Howard,
378 S.W.3d 535 (Tex. App. - Fort Worth 2012, pet. ref’d)…………………              6

Wilson v. State,
442 S.W.3d 779 (Tex. App. - Fort Worth 2014, pet. ref’d), cert. denied,
136 S. Ct. 86 (2015)…………………………………………………………                                4, 10


Rules

TEX.R.APP.P 66.3(b)……………………………………………………….                                    2

TEX.R.APP.P 66.3(c)……………………………………………………….                                    2

TEX.R.APP.P. 66.3(e)……………………………………………………....                                 2

Statutes

TEX.PEN.CODE. §19.02 (b)(1)……………………………………………..                             vii

TEX.PEN.CODE. §37.09……………………………………………………                                    vii

U.S. CONST. amend. V…………………………………………………….                                    7




                                      v
                Statement Regarding Oral Argument

Oral argument is waived.




                               vi
                              Statement of the Case



      The Appellant was indicted on June 26th, 2012 in Cause Number 1266846D

alleging a charge of murder pursuant to TEX.PEN.CODE. §19.02 (b)(1), (CR 1 at

8-9), and in Cause Number 1266847, alleging a charge of Tampering with Physical

Evidence pursuant to TEX.PEN.CODE. §37.09. (CR 1 at 6-7).        On September

22nd, 2014 the case was called to a jury trial. (CR 1 at 9). The jury returned a

verdict of guilty in Cause Number 1266846D and Count Two of Cause Number

1266847D on September 29th, 2014, and sentenced the Appellant to 60 and 10

years’ incarceration respectively in the Institutional Division of the Texas

Department of Corrections. (CR 1 at 276-277, CR 1 at 85-86). Notice of Appeal

was filed on September 30th, 2014, and a motion for a new trial was filed on

October 15th, 2014. (CR 1 at 282, 302, CR 1 at 91, 107).




                                        vii
                            Statement of Procedural History

      (1) On December 22nd, 2016, the Second Court of Appeals affirmed

Petitioner’s convictions.

      (2) Petitioner filed a Motion for En Banc Reconsideration and a Motion for

Rehearing on January 6th, 2017. The Second Court of Appeals denied both the

Petitioner’s Motion for En Banc Reconsideration and a Motion for Rehearing on

January 26th, 2017.




                                          viii
                            CAUSE NO. PD-0138-17
                            CAUSE NO. PD-0139-17
                              ______________

              THE COURT OF CRIMINAL APPEALS OF TEXAS
                           ______________

                 MICHELE MARIE WILLIAMS, Petitioner

                                      VS.

                    THE STATE OF TEXAS, Respondent
                            ______________

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

      Petitioner, Michele Marie Williams, respectfully submits this petition for

discretionary review in the above styled and numbered causes.

                           References to the Record

      References to the Clerk’s Record in 02-14-00413-CR and 02-14-00414-CR

are designated as “(CR 413/page number or CR 414/page number).” This is the

appeal of both convictions. This appeal addresses the issue concerning the Keller

Police Department’s detention and interrogation of the Appellant at the police

station minutes after the murder of her husband, and the continued questioning

after she had requested the assistance of a lawyer. References to the Reporter’s

Record are designated as “(RR volume number (1-12)/page number).” Because

the two appeals are related, the court can use the records from both. Guzman v.




                                        1
State, 732 S.W.2d 683, 686 n.2 (Tex. App. - Corpus Christi 1987, no pet.) (per

curiam).


                           GROUNDS FOR REVIEW

                             First Ground of Review

The Court of Appeals erred in concluding that that the trial court did not abuse its
  discretion in finding that the Petitioner was never taken into custody, and that
  the Keller Police Department were not obligated to accede to the Petitioner’s
                    request for counsel during her interrogation.


                           REASONS FOR REVIEW

      Regarding law enforcement’s refusal to permit the Petitioner to speak to an

attorney during her interrogation, the Petitioner argues that an important question

of state law should be conclusively settled by this Court. TEX.R.APP.P 66.3(b).

Petitioner believes that the lower court’s interpretation of the applicability of a

federal case is in conflict with the Court of Criminal Appeals. TEX.R.APP.P

66.3(c). Finally, the petitioner contends the court of appeals has so far departed

from the accepted and usual course of judicial proceedings, or so far sanctioned

such a departure by a lower court, as to call for an exercise of the Court of

Criminal Appeals’ power of supervision. TEX.R.APP.P. 66.3(f).




                                         2
                         First Ground of Review (Restated)


The Court of Appeals erred in concluding that that the trial court did not abuse its
  discretion in finding that the Petitioner was never taken into custody, and that
  the Keller Police Department were not obligated to accede to the Petitioner’s
                    request for counsel during her interrogation.

      The Petitioner is requesting that this court review the lower court’s finding

that she was never taken into custody nor did she have the right to request the

advice of counsel. The Petitioner’s argument is that for all intents and purposes,

she was in fact in custody or transitioned into custody from the moment she was

“asked” to accompany police officers to the Keller Police Station. The second part

of this argument suggests that the lower court reached the disturbing conclusion

that suspects are not permitted to request the services of an attorney if they are not

“objectively” in custody.

      Petitioner disputes the lower court’s finding that she had “she had

voluntarily agreed to accompany Sergeant McGrew and Officer Todd to the police

station” (Mem.Opin. p.20). This conclusion is reached however on the faulty

premise that an “agreement” to accompany law enforcement to the police station

can be described as “voluntary” when there is no reasonable alternative, especially

when that agreement to accompany police is under a cloud of suspicion that has

not yet been communicated to the suspect.




                                          3
      The background to this agreement needs to be reiterated. As was emphasized

in the Petitioner’s brief, police officers had taken her cell phone, her car keys and

her purse, and she could not return to her home as it was a crime scene. Her

agreement therefore to accompany the police officers looks less like a choice and

more akin to a submission to the authority of law enforcement. But even assuming

that her agreement to accompany police to the station house was not initially

coercive on its face, there is still the troubling circumstance that once she arrived at

the station she was not told she could leave and she was not permitted to call an

attorney.

      The lower court first conducted an analysis which correctly tracked the case

law but arguably failed to consider the context of the Petitioner’s trip to the station

house or what occurred there once she arrived:

       “Custodial interrogation occurs when law enforcement officers question a
person after taking him into custody or depriving him of his freedom of action in
any significant way. Wilson v. State, 442 S.W.3d 779, 784 (Tex. App. - Fort
Worth 2014, pet. ref’d), cert. denied, 136 S. Ct. 86 (2015). A court must examine
all of the circumstances surrounding the interrogation when determining whether
someone is in custody; however, the ultimate inquiry is simply whether there was a
formal arrest or restraint on the freedom of movement of the degree associated
with a formal arrest. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526,
1529 (1994); Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App. 2010), cert.
denied, 562 U.S. 1142 (2011); Dowthitt v. State, 931 S.W.2d 244, 254-55
(Tex.Crim. App. 1996).

       Four scenarios wherein a person might be deemed in custody are:
       (1) when the person is physically deprived of his freedom of action in any
significant way, (2) when a law enforcement officer tells the person he cannot
leave, (3) when law enforcement officers create a situation that would lead a

                                           4
reasonable person to believe his freedom of movement has been significantly
restricted, and (4) when there is probable cause to arrest and law enforcement
officers do not tell the person he is free to leave. Dowthitt, 931 S.W.2d at 255.”
(Mem.Opin. p.18-19).

      The Petitioner’s claim argues that all of the four conditions that suggest that

a person might be deemed in custody were to one degree or another met in this

case. Petitioner’s position here is that scenario one and three are overwhelmingly

in favor of the proposition that she was in custody. Although the case law is clear

that the reasonable person/objective standard determines whether or not custody

has attached, the lower court’s general analysis focused solely on the Petitioner’s

status in terms of a literal deprivation of freedom – ie. the suspect is “patted down,

handcuffed or otherwise restrained”. Petitioner would argue that lower court’s

interpretation of the term custody is overly narrow in the sense that a suspect, if not

beaten, handcuffed and bound to a chair, could never in a true sense be constrained

of her freedom. The language in Dowthitt qualifies the deprivation of freedom with

the phrase “in any significant way”, or as a “restraint on the freedom of movement

of the degree associated with a formal arrest”. This phrase is important because the

circumstances leading up to the Petitioner’s transportation to the station house

were not truly voluntary. More pertinent is the illusion that suspects are expected

to hew to a “reasonable” perception of what constitutes custody as opposed to the

“subjective” and therefore invalid perception of their own circumstance.



                                          5
       One of the first things that happened in this investigation was that the

Petitioner’s cell phone was confiscated by a uniformed officer. McGrew told the

Petitioner that it had been taken from her because there was blood on it, but no

evidence emerged at trial to actually bolster that claim. The salient factor was that

her phone was confiscated en route to the station house and her ability to instantly

communicate with the outside world (and an attorney) was terminated. Without

dwelling on the specifics, the pivotal assertion of the Petitioner argument is

reflected on the videotaped interrogation when the Petitioner is granted a bathroom

break. This is crucial to the Petitioner’s argument because the lower court asserted

that she was free to leave the station at any time.

      “Although she was free to walk out of the police station and the officers
would have had to allow her to leave unimpeded, the police officers were not
obligated to accede to any request for a lawyer at the time she suggested she might
need a lawyer. At that point, because the record reflects she was free to leave,
even if she had unambiguously requested counsel, Sergeant McGrew could have
ignored her request and proceeded. See State v. Howard, 378 S.W.3d 535, 540-41
(Tex. App. - Fort Worth 2012, pet. ref’d). (Mem.Op. p.27).

       The court’s logic is quite disturbing. The lower court states that she was free

to walk out of the station unimpeded1 and that Sergeant McGrew could have

ignored her request for an attorney and proceeded with the interview – something

__________________________________________________________________
1
  “After Sergeant McGrew leaves the room, Appellant appears to mumble sobbingly, “I just want
to leave.” Officer Todd and Appellant then have a muted conversation about numbers they can
call to have someone pick Appellant up. Appellant laments that she does not know where she
can go, and Officer Todd tells Appellant that she cannot go home right now.” (Mem.Op. p.22).
The court then explains the context of that interaction.


                                             6
which the court fails to appreciate that he did anyway. Moreover, the court’s

language states that her request for counsel was not unambiguous, implying that it

was not clear enough anyway to have stopped the interview. In this sense, the

lower court’s opinion suggests that even if it was unambiguous, McGrew could

have “ignored her request” because she was free to leave.

       “Thus, in Montejo, the Supreme Court stated that, under its Fifth
Amendment jurisprudence, “a defendant who does not want to speak to the police
without counsel present need only say as much when he is first approached and
given the Miranda warnings.” And if he does invoke his Fifth Amendment right to
counsel, “not only must the immediate contact [by police] end, but ‘ badgering’ by
later requests is prohibited.” Pecina v. State, 361 S.W.3d 68, 76 (Tex.Crim.App. -
2012).

      But what if McGrew deliberately withheld the Miranda warnings? If the

interrogating officer consciously decides not to read the Miranda warnings under

the correct assumption that it could halt the proceedings, the suspect’s right to

counsel is summarily denied because the officer has delayed the warning and as the

lower court has decided, “she is free to walk out of the building”. The problem is

that the Petitioner did not know that she had that right, McGrew knew that she did

not know her rights (he hadn’t told her after all), and the lower court concluded

that she was never at any time, in any sense, in custody. Simply put however, the

lower court’s assertion that she was free to leave is not only wrong, it is belied by

the video recording in which Officer Todd accompanies her to the bathroom. If she

was not free to take a bathroom break (or to change into a different set of clothes)


                                         7
without an officer with her at all times, why would the Petitioner have felt free to

leave the station? The Dowthitt case specifically and pointedly references this

scenario:

       “Moreover, law enforcement agents apparently ignored two requests by
appellant to see his wife. While these actions may have merely been oversights, as
Hidalgo and appellant became caught up in conversation (and later in addressing a
potential medical emergency), they also constitute circumstances to be considered.
The fact that appellant was accompanied during restroom breaks, although given
an innocuous explanation, is also to be considered. (emphasis added), Dowthitt v.
State, 931 S.W.2d 244, 256 (1996).

      The Petitioner couldn’t take a bathroom break or change clothes without an

officer present much less have the right to call an attorney, but she was supposed to

know that she could walk out of the station house?

      Scenario four also supports the Petitioner’s claims that there was probable

cause to arrest her and Sergeant McGrew did not tell her she could leave. The

lower court actually describes and places an ongoing timeline on the probable

cause that had emerged at the outset of the interrogation:

       “For approximately the next hour and fifty minutes, Sergeant McGrew
communicates to Appellant that the information that he is getting from the officers
at the scene does not support what she had told him and that, based upon his
experience, one of two things happened. Sergeant McGrew tells Appellant that
either Gregory committed suicide and she tried to cover it up or that she killed
Gregory.” (Mem.Opin. p.18-19).

      Sergeant McGrew knew from the first glance at the crime scene that the

weapon had been moved and that crime scene had been disturbed. McGrew also

had the Petitioner tested for gunshot residue on her hands upon her arrival at the

                                          8
stationhouse, and had her change into different clothing taken from her residence

by another officer. McGrew therefore himself established the indicia for probable

cause for an arrest for tampering with the evidence and did not tell the Petitioner

that she was free to leave the station.

       “He denied telling her she was not free to leave, but he also denied expressly
telling her she was free to leave.” (Mem.Opin. p.21).

      In plain English this means that he didn’t say she could go, and he didn’t say

she could leave. In other words, would a reasonable person in the Petitioner’s

situation taken that as a cue to stay or march out? This kind of ambiguity should

not favor the State. If she had a right to leave, then McGrew had an obligation to

tell her. But this is the detective who shouted over her request for a lawyer and

kept the interrogation going long after she had invoked the right to counsel.

McGrew needed her to keep talking and for her to understand that he was in total

control of the situation.

       “The fourth category applies only when the officer’s knowledge of probable
cause is communicated to the suspect or by the suspect to the officer; even then
custody is established only “if the manifestation of probable cause, combined with
other circumstances, would lead a reasonable person to believe that he is under
restraint to the degree associated with an arrest.” Gardner, 306 S.W.3d at 295 n.
48. Ervin v. State, 333 S.W.3d 187, 205 (Tex. App. - Houston [1st Dist.] 2010).

      Petitioner’s argument is overall based on the cumulative actions of the

Keller Police Department, specifically the testimony that the McGrew knew from

minute of the investigation that the placement of the weapon ruled out a suicide if


                                          9
the crime scene had been untouched, and made tampering with the evidence

absolutely conclusive if a suicide had in fact taken place. McGrew actions in

taking the Petitioner to the stationhouse in conjunction with his line of questioning

are clear proof that he had the necessary probable cause for an arrest for tampering

with evidence and that he deliberately withheld that fact so that he could adhere to

the legal fiction that she was still a “witness” or a “victim”. As is mentioned in the

Seibert case, McGrew’s tactics were text book examples of avoiding giving the

Petitioner her Miranda rights until after a confession had been obtained, a charade

that Justice Meier called a “rhetorical circumvention of Miranda and its progeny.”

Wilson v. State, 442 S.W.3d 779, 788 (Tex.App. - Fort Worth 2014).




                                         10
                                        Prayer



      Wherefore, premises considered, Petitioner prays that the Court grant his

petition for discretionary review, order additional briefing, reverse the court of

appeals’ judgment and:      (1) remand the cause for a new trial in both cause

numbers; (2) suppress the videotape interrogation in its entirety or after the point in

which requests an attorney; and/or (4) remand the cause to the court of appeals for

further proceedings consistent with this Court’s opinion. Petitioner further prays

for all other relief to which she may be entitled.



                                               Respectfully submitted,

                                               /s/ Mike Berger
                                               michaelidf@aol.com
                                               933 Weatherford #200
                                               Fort Worth, Texas 76102
                                               817/338-1500
                                               817/338-1505 (fax)
                                               SBOT # 02191900




                                          11
                                Certificate of Service

      I certify a true and correct copy of this Petition was sent on March 27th,
2017, by first class U. S. Mail, postage prepaid, to:

      Stacey M. Soule’
      State Prosecuting Attorney
      P.O. Box 12405
      Austin, Texas 78711.

      Debra Windsor, ADA
      Appellate Section
      District Attorney’s Office
      401 West Belknap
      Fort Worth, Texas 76196

     I certify the original and ten true and correct copies of this Petition were sent
on March 27th, 2017, by first class Mail, postage prepaid, to:

      Court of Criminal Appeals of Texas
      Capital Station
      201 W. 14th St. - P.O. Box 12308
      Austin, TX 78711


                                              /s/ Mike Berger
                                              michaelidf@aol.com
                                              933 Weatherford #200
                                              Fort Worth, Texas 76102
                                              817/338-1500
                                              817/338-1505 (fax)
                                              SBOT # 02191900




                                         12
                            Certificate of Compliance


      I hereby certify that the above-referenced Petition for Discretionary Review

is in compliance with TEX.R.APP.P. 9 (i)(2)(d) in that it is 2,669 words long (as

per Microsoft Word®).




                                       13
                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-14-00413-CR

Michele Marie Williams                    §   From the 396th District Court

                                          §   of Tarrant County (1266846D)

v.                                        §   December 22, 2016

                                          §   Opinion by Justice Gardner

The State of Texas                        §   (p)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       By _/s/ Anne Gardner__________________
                                          Justice Anne Gardner
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00413-CR
                              NO. 02-14-00414-CR


MICHELE MARIE WILLIAMS                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


                                     ----------

           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                  TRIAL COURT NO. 1266846D, 1266847D

                                     ----------

                                   OPINION

                                     ----------

      A jury found Appellant Michele Marie Williams guilty of murder and

assessed her punishment at sixty years’ incarceration in the penitentiary.1 Tex.

Penal Code Ann. § 19.02(b)(1) (West 2011).        In a companion case, the jury

found Appellant guilty of tampering with physical evidence and assessed her


      1
          Trial court cause number 1266846D (02-14-00413-CR).
punishment at ten years’ incarceration in the penitentiary.2 Id. § 37.09 (West

Supp. 2016). The trial court sentenced Appellant accordingly and ordered the

sentences to run concurrently. In three points, Appellant contends that (1) the

trial court erred in admitting her oral and written statements into evidence, (2) the

guilty verdict for murder was not supported by the evidence, and (3) the trial court

violated her right to confrontation by allowing a medical examiner to testify

regarding an autopsy that the medical examiner did not personally perform. We

affirm.

                             STATEMENT OF FACTS

                Gregory Williams Looks Forward to His Dream House

      In the fall of 2011, Gregory Williams lived on Jacob Lane in Keller, Texas,

with Appellant (his wife) and their four-year-old daughter, M.W. Their house was

inside a gated community.

      In late September 2011, Gregory’s mother described him as tired from

working long hours but otherwise “peppy” and “energetic.” She further described

Gregory as “very happy,” “bubbly,” and “excited” about the new house they were

buying. Gregory was trying to design a built-in aquarium and a swimming pool

just for their daughter. Gregory’s mother described the new house as “kind of his

dream house.”




      2
          Trial court cause number 1266847D (02-14-00414-CR).


                                         2
     Gregory Is Shot and Killed; Appellant Calls 9-1-1 Regarding an Intruder

      On October 13, 2011, around 4:40 a.m., the Keller police received a 9-1-1

dispatch to go to the Williamses’ home regarding an intruder who had shot a

woman’s husband and who was still in the home. The police had an Opticom

device that enabled them to get past the gates.

      When the police arrived, they saw Appellant on the front porch distraught,

crying, and talking on her cellular telephone.    She had a large contusion or

swelling on her face that was starting to bruise. Appellant informed the officers

that her husband was in the bedroom and their daughter was on the couch in the

living room. She told the police that the intruder had run out the back door.

Appellant described the intruder as a male in dark clothing.

      Concerned that a threat could still be inside, three officers entered the

house to make sure no one was still there. They found Gregory in the master

bedroom. He was lying on the bed under the covers with blood on his head;

blood was also on the floor. The bedroom television was blaring so loudly that

one of the officers commented that he did not even attempt to talk over it; the

officer found that very odd. The police observed a gun, shell casings, and a

large wrench in close proximity to one another by the back door of the master

bedroom that led to the backyard. Appellant told the police that the intruder ran

out that door.

      Still concerned about a possible threat, the police searched the backyard,

which was enclosed by a fence. The police found no evidence of an intruder in


                                        3
the backyard. The door leading from the family room to the backyard was slightly

ajar. In the backyard, the police noted that there were no broken windows or

doors. The locks on the gates were not disturbed. The area outside the fenced

area showed no signs of forced entry or attempted forced entry.

      After searching the house, the police concluded there was no intruder still

there. The police found M.W. asleep on a couch in the living room.

      Appellant and M.W. went to an ambulance parked down the street.

Appellant received an icepack for the contusion on her face.

                          The Police Process the Scene

      One of the officers began processing the crime scene on the assumption

that an intruder had entered the residence. He first inspected the outside of the

residence and did not notice any damage or anything of an evidentiary nature.

Within the area enclosed by the fencing, however, he discovered a flathead

screwdriver on the ground a few feet from the master bedroom door leading to

the backyard and scratch marks on the outside of that door, indicating the use of

a tool to attempt entry into the house. He also collected a plastic bottle of Clorox

wipes that he believed had been used to alter the crime scene. The officer

explained that disinfecting wipes would destroy any DNA evidence and

fingerprints. The Clorox wipes could have been used to wipe down the firearm

recovered at the scene and to remove any traces of DNA and fingerprints. He

also testified that the flathead screwdriver blade matched the marks found on

one of the doors leading to the backyard of the house. However, the damage to


                                         4
the doorframe was superficial; both the deadbolt and the doorknob were still

functional. If someone had tried to pry open the door using the screwdriver, it did

not work. It was also possible someone simply tried to alter the crime scene.

      The canine officers from both Bedford and Keller responded. The canine

searches produced no evidence of any intruder.

      The police also went door to door in the neighborhood to determine if any

of the Williamses’ neighbors had seen anything suspicious. Their efforts turned

up no information or evidence of any intruder.

The Police Interview Appellant; She Asserts Gregory Committed Suicide and She
      Tampered with the Scene to Show He Was Killed During a Burglary

      Sergeant John McGrew asked Appellant if she would accompany him to

the Keller police station for an interview so that the police could get a better

understanding of what had occurred and more information about the intruder.

Sergeant McGrew testified that Appellant was cooperative and willing to continue

the interview. He described her as in pain and as having an ice pack on her

face, but he denied that she appeared woozy.          Sergeant McGrew did not

consider her to be a suspect. If he had, he said he would have searched her and

placed her in handcuffs.

      Sergeant McGrew drove Appellant and Officer Bethany Todd to the police

station, where they went to an interview room. Pursuant to normal procedure,

Appellant changed her clothes so that the police could test them to see if the




                                        5
intruder had transferred any evidence to them. Sergeant McGrew also swabbed

Appellant’s hands to check for gunshot residue or blowback.

      Sergeant McGrew and Officer Todd explained the interview process to

Appellant.     Including bathroom and refreshment breaks, the interview lasted

about five hours. The officers did not threaten Appellant during the interview and

never indicated that she was not free to leave; Sergeant McGrew testified that if

Appellant had asked to leave, she would have been permitted to leave.

Appellant did not, however, ever request to leave the interview.

      During her interview, Appellant admitted tampering with the crime scene.

Sergeant McGrew asked Appellant to write out a statement in her own words and

advised her of her Miranda3 rights.      The form on which Appellant wrote her

statement contains a recitation of the Miranda rights, and she signed the form.

Sergeant McGrew left the interview room while she wrote her statement.

      Appellant’s statement reads as follows:

      I went to sleep at 1:00 a.m.[,] and Gregg was still awake. He just
      took at least 3 Tylenol PM. About 3:00 a.m.[,] [M.W.] came to our
      room. I got up and [lay] down on the couch with her. Gregg was still
      awake. I asked him if he needed anything[,] and he said[,] “[J]ust to
      be left alone. I don't feel good.” I fell asleep on the couch with
      [M.W.] and was [awakened] by a [gunshot] sound after 4 a.m. I ran
      to the bedroom and saw Gregg had shot himself in the head. I
      panicked and wanted to protect [M.W.] from ever knowing her daddy
      killed himself and started to clean things up. First[,] I wiped his right
      hand with Clorox wipes and dried it with a blanket and toilet paper,
      then wiped the gun with the blanket and toilet paper and moved the
      gun to the floor by the back door, opened the back door[,] and called

      3
          See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).


                                          6
      911—hoping to save his life and make it appear as a burglary. Then
      I went to the laundry room, got a screwdriver[,] and pried a little on
      the back door by my office and left it ajar. Then I grabbed the
      wrench[,] which was in the laundry room[,] and hit my right cheek to
      bruise it so it would appear as if I startled the [burglar]. I dropped it
      by the door in the bedroom and tossed the screwdriver out the door
      by the woodpile. I flushed all the toilet paper and Clorox wipes down
      the toilet. This entire time [M.W.] was still asleep. I didn't want his
      children to ever know he killed himself.

Sergeant McGrew testified that Appellant’s suicide story negated her intruder

story and that her statement acknowledged that she tampered with the crime

scene.    After finishing her statement and interview, Appellant left the police

station with a friend.

                 Gregory Had a Negative Attitude Toward Suicide

      Gregory’s mother testified that Gregory’s best friend, Brynn Fletcher,

committed suicide in 2010. Fletcher was also the husband of Gregory’s sister

and the father of their three children. Gregory’s mother said that Gregory was

very angry about Fletcher’s suicide and called it a “chicken . . . way to go.”

Gregory told his mother that Fletcher’s suicide had ruined his family.

    Appellant Never Arranges a Funeral for Gregory and Does Not Attend the
                      Funeral Gregory’s Family Arranged

      Gregory’s mother said she kept thinking that Appellant would call her to tell

her what had happened to her son, but Appellant never contacted her. Gregory’s

mother said that she and her family waited to see what arrangements Appellant

would make for his funeral services, but when they heard nothing from Appellant,




                                         7
they went ahead and arranged funeral services on their own. Appellant did not

attend the funeral.

Appellant Has Conversations with Her Son, Andrew, Regarding His Brother and
                Gregory’s Ex-Wife that Cause Him Concern

      On October 14, 2011—the day after Gregory’s death—Appellant told her

son, Andrew, that someone had broken into the house, hit her, and shot Gregory.

She claimed that the police would not let her leave the police station until she

admitted shooting Gregory or admitted Gregory’s death was a suicide. She told

Andrew that she made up the suicide story just so the police would release her.

Andrew testified that he continued to believe her intruder story for several months

and still believed it in June 2012 when he was called as a witness before the

grand jury.

      Andrew described Appellant’s emotions during the two weeks following

Gregory’s death as “a big rollercoaster.” He said, “Some days she would be

crying hard. Other days she would be laughing.”

      Andrew said that several weeks after Gregory’s death, he, his brother, and

his sister’s boyfriend went to the house to clean up the blood that was still in the

carpet while Appellant packed up things in the kitchen. While there, Appellant

pulled him outside and told him that Kathy Williams (Gregory’s former wife) had

been talking to the media, so Appellant asked him to “call some friends and have

them frame Kathy.”      He described Appellant’s demeanor when making the

request as “[v]ery calm.” Specifically, she wanted some of his friends to pick up



                                         8
an extra-large sweater, wear the sweater, fire a pistol into the sweater close

enough to ensure gunpowder residue got on the sweater, break into Kathy’s car

in a manner that did not reveal it had been broken into, hide the sweater under

the seat, and call 9-1-1 and leave an anonymous tip that would lead the police to

search her car and find the sweater. Appellant insisted that she did not want

Andrew to do it himself because she did not want him to get caught. Andrew

said he was shocked at her request, but he attributed it to her having a mental

breakdown. He told her he would take care of it, but he never called anyone. A

week or two later, Appellant approached him and told him that since he had not

taken care of the matter, she would figure it out on her own. She told him that

she had gone to Wal-Mart and purchased two sweaters, an extra-large one and

one her size. She explained that by buying one her size, she was able to pick up

the extra-large one without leaving her DNA on it.

      Later Andrew became concerned that Appellant was trying to put the

blame of Gregory’s death on his brother, Lee, so in January 2013, he called an

investigator in the Tarrant County District Attorney’s office to tell him about how

Appellant had asked him to frame someone else. Andrew explained that in early

2012 Appellant and Lee had had an argument, and the next day Appellant asked

him if he thought it was possible that Lee had killed Gregory. Andrew said that

she was not joking and was serious, but he just attributed it to another mental

breakdown, ignored it, and moved on.




                                        9
      When the detectives met with him, he told them about the various

explanations Appellant had given regarding Gregory’s death—an intruder did it,

Kathy did it, or Lee possibly did it. Andrew told the detectives too how Appellant

had also mentioned that Gregory had shown signs of contemplating suicide and

had told him about how, a few days before Gregory’s death, she had found the

cars warm in the garage as if someone had left them running with the garage

door closed. Appellant also told Andrew of a fight she and Gregory had on the

night of his death and accused Gregory of throwing a tool at her face and

causing a bruise.

                         Appellant Appears on 48 Hours

      Appellant appeared on the television program 48 Hours. Six short clips

from her interview on 48 Hours were played to the jury. In the first one, she told

48 Hours that the intruder ran out the front door. In the second, she asserted

that it was possible that a relative shot Gregory. In the third, she maintained that

Gregory wanted a dominant woman, that Gregory wanted to be submissive at

home because he was so dominant outside the home, and that whoever killed

him was jealous and angry but not necessarily from the world in which Gregory

was dominant. In the fourth, when confronted with the lack of any evidence of an

intruder, she contended that the investigators were awful and missed a lot of

evidence. In the fifth, with her voice cracking, she lamented how the real shooter

was letting her take the blame. In the sixth, she explained how she thought the




                                        10
intruder came into the house with his own gun but—for reasons she could not

explain—used Gregory’s gun that he kept under the nightstand next to the bed.

                    Gregory’s Life Was Insured for $800,000

      Gregory carried three separate life insurance policies.        One was a

$150,000 policy with the Gerber Life Insurance Company, acquired in August

2011, with M.W. named as the beneficiary. This policy had a suicide clause that

negated the payment of any benefits if the insured committed suicide within two

years of obtaining the policy. On the “Claimant’s Statement,” Appellant identified

Gregory’s cause of death as “Stated as Homicide.”

      The second was a $150,000 policy with the Garden Life Insurance

Company acquired in May 2008 with Appellant designated as the beneficiary. It

also had a two-year suicide clause.

      The third was a $500,000 policy with Pavonia (formerly Household Life

Insurance) acquired in January 2009 with Appellant designated as the

beneficiary. Like the others, it had a two-year suicide clause.

                Medical Examiners Conclude Murder, Not Suicide

      Dr. Lloyd White conducted the autopsy on Gregory. As per Tarrant County

Medical Examiner’s Office protocol, Chief Medical Examiner Nizam Peerwani

and the other deputy medical examiners peer-reviewed his autopsy.             The

examiners all concurred that the cause of Gregory’s death was a gunshot wound

to the head and that the manner of his death was a homicide.




                                        11
      Dr. White was no longer employed by the Tarrant County Medical

Examiner’s Office at the time of trial. His autopsy report was not introduced or

admitted into evidence.

                                The DNA Analyst

      Constance Patton, a DNA analyst, examined the handgun for the presence

of blood; the hope was that the presence of blood from the blowback might

indicate the distance of the shooting. She tested the gun barrel’s inside, the gun

barrel’s outside, and the underneath part of the gun’s frame. All her tests came

back negative for blood.

 Firearm Examiner Determines the Gun Was More Than Six Inches Away from
                       Gregory’s Head When Fired

      Jamie Becker, a firearm and tool mark examiner, found no gunpowder

residue on the comforter or blanket from Gregory’s bed. She found gunshot

residue on the pillowcases but no evidence of soot or burning. Becker explained

that pillows were often used in an attempt to silence or muffle gunfire, so she

looked for holes, burning, singeing, ripping, or tearing, but she did not find any

signs of close-range firing. However, Becker also checked for stippling; stippling

occurs when gunpowder strikes the skin, imbeds itself in the skin, and causes a

slight abrasion. The slight abrasion cannot be wiped off or transferred. Stippling

suggests the shooting distance was from an intermediate range. On the basis of

stippling documented during the autopsy and, thereafter, range testing conducted

using the firearm and ammunition similar to that identified in the case, Becker



                                       12
was able to identify stippling patterns. Becker concluded that the gun muzzle

was further than six inches but closer than twenty-four inches when fired. The

gun barrel was five inches in length.

      Trace Examiner Finds Gunshot Residue on the Cuffs and Sleeves of
                             Appellant’s Jacket

      Vicki Hall, the trace examiner, did not find any characteristics of gunshot

residue on the swabs from Appellant’s hands. Its absence meant that Appellant

did not fire the gun, the weapon involved was not one that left significant

amounts of residue, or Appellant wiped or washed her hands before the sample

was taken.     Hall explained that even when gunshot residue is found on

someone’s hands, its presence does not indicate with certainty that the person

fired a gun; rather, it could mean a number of things, such as the person fired the

gun, the person’s hands were near the gun when it was fired, or the person

handled a firearm or a firearm component.

      Gregory had gunshot residue on his hands. Therefore, this meant that he

fired a firearm, his hands were close to a firearm at the time the firearm

discharged, or he came in contact with a firearm or firearm component.

      Hall also found gunshot residue on both cuffs and sleeves of Appellant’s

jacket. This meant that she was either wearing the jacket when she fired the

gun, she was close to the gun when it discharged, she handled a firearm or

firearm component, or she wiped the gun onto the jacket in some way.




                                        13
                        No Fingerprints on the Gun or Tools

      William Walker, the fingerprints examiner, found no fingerprints on the gun

or the wrench usable for comparison or identification purposes. He found no

fingerprints at all on the screwdriver.

                                 Financial Concerns

      Appellant was the bookkeeper for the Williamses.          A forensic financial

analyst testified that she saw indications of mismanagement—the type she saw

frequently in economic crimes. A certified public accountant testified that the

Williamses’ finances were grossly mismanaged and that they “tended to be living

beyond their means.”

                                    FIRST POINT

     Whether the Trial Court Erred by Admitting Appellant’s Oral and Written
                                   Statements

      In her first point, Appellant contends that the trial court erred in admitting

her oral and written statements into evidence in violation of (1) her constitutional

rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United

States Constitution, (2) her constitutional rights under section 9 of article I of the

Texas constitution, and (3) article 38.23 of the Texas Code of Criminal

Procedure. See U.S. Const. amends. IV, V, VI, XIV; Tex. Const. art. I, § 9; Tex.

Code Crim. Proc. Ann. art. 38.23 (West 2005). She argues that she was a

suspect in her husband’s death from the very outset and that the assertion of the



                                          14
police that she was a witness or a victim was nothing more than a charade and

defies logic. She maintains that she was in custody from the moment the police

took her to the stationhouse.

      Additionally, even if Appellant was not in custody, she asserts that she

requested an attorney at roughly 8:36 a.m., long before she admitted to

tampering with the evidence and before she asserted that her husband had

committed suicide.    Appellant contends this rendered her oral and written

statements after she requested counsel inadmissible.

      The trial court made the following oral findings regarding the custody issue:

            THE COURT: Okay. The Court will find that on August [sic]
      the 13th of 2011, Sergeant McGrew and Officer Walsh/Todd
      responded to 1410 Jacob Avenue in the city of Keller, approximately
      6:30 a.m.

             At that point, Officer Todd, having arrived first, made some of
      the initial contact with [Appellant] who was receiving medical
      attention. As Sergeant McGrew responded, he also made contact
      with [Appellant] who was receiving medical attention.

            And [Appellant] was then driven to the Keller Police
      Department by Sergeant McGrew and Officer Todd in Sergeant
      McGrew’s car [and] was placed into an interview room. She was not
      a suspect at the time nor was [she] under arrest.

            And that continued until—up until the point that Sergeant
      McGrew then believed that there had been a crime committed, at
      which point he read [Appellant] her Miranda warnings. However,
      she did not wish to terminate the interview and continued on.

            At all points—at all times the suspect—[Appellant] was free to
      leave, was not under arrest, and as seen on . . . State’s Pretrial 7,
      there were specific references that she was free to leave and people
      would be coming to get her. Sergeant McGrew specifically states,
      you are going home here today.


                                        15
            So the Court will find that [Appellant] was not in custody for
      the purposes of custodial interrogation as referred to as Article—
      under 38.22 of the Code of Criminal Procedure, and I will deny the
      motion to suppress.

The trial court did not make oral findings regarding whether Appellant invoked the

right to counsel.

                                 Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.


                                          16
2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818.

      When the record is silent on the reasons for the trial court’s ruling, or when

there are no explicit fact findings and neither party timely requested findings and

conclusions from the trial court, we imply the necessary fact findings that would

support the trial court’s ruling if the evidence, viewed in the light most favorable

to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253

S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then

review the trial court’s legal ruling de novo unless the implied fact findings

supported by the record are also dispositive of the legal ruling.        Kelly, 204

S.W.3d at 819.


                                        17
      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

                                     Custody

      The United States Constitution commands that no person “shall be

compelled in any criminal case to be a witness against himself.” U.S. Const.

amend V. Constitutional and statutory protections are triggered when a person

undergoes custodial interrogation. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612;

Herrera v. State, 241 S.W.3d 520, 525–26 (Tex. Crim. App. 2007); Tex. Code

Crim. Proc. art. 38.22 (West Supp. 2016).        “Custodial interrogation” is the

“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, 384 U.S. at 444, 86 S. Ct. at 1612; Herrera, 241 S.W.3d at 525.

Article 38.22 of the code of criminal procedure also prohibits the use of

statements that result from a custodial interrogation without compliance with its

procedural safeguards. See Tex. Code Crim. Pro. Ann. art. 38.22.

      Custodial interrogation occurs when law enforcement officers question a

person after taking him into custody or depriving him of his freedom of action in

any significant way. Wilson v. State, 442 S.W.3d 779, 784 (Tex. App.—Fort

Worth 2014, pet. ref’d), cert. denied, 136 S. Ct. 86 (2015). A court must examine


                                        18
all of the circumstances surrounding the interrogation when determining whether

someone is in custody; however, the ultimate inquiry is simply whether there was

a formal arrest or restraint on the freedom of movement of the degree associated

with a formal arrest. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526,

1529 (1994); Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App. 2010), cert.

denied, 562 U.S. 1142 (2011); Dowthitt v. State, 931 S.W.2d 244, 254–55 (Tex.

Crim. App. 1996).

      Four scenarios wherein a person might be deemed in custody are:

(1) when the person is physically deprived of his freedom of action in any

significant way, (2) when a law enforcement officer tells the person he cannot

leave, (3) when law enforcement officers create a situation that would lead a

reasonable person to believe his freedom of movement has been significantly

restricted, and (4) when there is probable cause to arrest and law enforcement

officers do not tell the person he is free to leave. Dowthitt, 931 S.W.2d at 255.

Regarding the first through third situations, the restriction upon freedom of

movement must amount to the degree associated with an arrest as opposed to

an investigative detention.    Id.   Regarding the fourth situation, the officers’

knowledge of probable cause must be manifested to the suspect. Id. Such

manifestation could occur if the officers relate information substantiating probable

cause to the person or, conversely, if the person relates information

substantiating probable cause to the officers. Id. Moreover, given the emphasis

on probable cause as a factor in other cases, situation four does not


                                        19
automatically establish custody; rather, custody is established if the manifestation

of probable cause, combined with other circumstances, would lead a reasonable

person to believe that he is under restraint to the degree associated with an

arrest. Id.

      A determination of whether a person is in custody must be based entirely

on objective circumstances.     Id. at 254.   The subjective intent of either law

enforcement or the defendant is irrelevant except to the extent manifested in the

words or actions of law enforcement officials. Id. Finally, a defendant bears the

initial burden of proving that her statement was the product of “custodial

interrogation.” Herrera, 241 S.W.3d at 526.

      The evidence from the suppression hearing showed that Appellant

voluntarily agreed to accompany Sergeant McGrew and Officer Todd to the

police station.   Appellant was not patted down, handcuffed, or otherwise

restrained before she got into Sergeant McGrew’s unmarked police car.

Appellant was not placed under arrest. Both Sergeant McGrew and Officer Todd

saw Appellant as a witness to the offense and as another victim of this home

invasion/shooting rather than a suspect. Sergeant McGrew explained that he

wanted to interview her as part of his fact-finding process.

      Sergeant McGrew conducted his interview in the room used for witnesses

and victims. Sergeant McGrew questioned Appellant about the events leading

up to the shooting, including questions about who might possibly have had

access to her house. Appellant took several breaks during her lengthy interview.


                                         20
Sergeant McGrew said that Appellant was free to leave at any time and that if

she had stood up and walked out, he would have let her. He denied telling her

she was not free to leave, but he also denied expressly telling her she was free

to leave. Sergeant McGrew made multiple attempts to arrange for someone to

come and pick up Appellant.            Appellant was not handcuffed or otherwise

restrained during her interview. She was not told that she was in custody, under

arrest, or not free to leave the police station. Appellant voluntarily agreed to write

out a statement. Appellant wrote out her statement while she was alone in the

interview room. Sergeant McGrew successfully found someone to come to the

police station to pick up Appellant.

      The trial judge reviewed the video interview. We have reviewed the video

as well. The video begins at 6:41 a.m. Appellant spends about the first hour

recounting how the intruder came into house, injured her, shot Gregory, and went

out the bedroom door to the backyard. At 7:47 a.m., Sergeant McGrew informs

Appellant that Gregory is dead, and Appellant cries uncontrollably. Appellant,

however, agrees to continue to help the police capture the intruder.

      For approximately the next hour and fifty minutes, Sergeant McGrew

communicates to Appellant that the information that he is getting from the officers

at the scene does not support what she had told him and that, based upon his

experience, one of two things happened. Sergeant McGrew tells Appellant that

either Gregory committed suicide and she tried to cover it up or that she killed

Gregory. Appellant repeatedly denies either possibility, and at 9:42 a.m., she


                                           21
puts her head down on the table and cries. Sergeant McGrew responds by

stating that he will make one more phone call and then he would have someone

come by to get her.

      After Sergeant McGrew leaves the room, Appellant appears to mumble

sobbingly, “I just want to leave.” Officer Todd and Appellant then have a muted

conversation about numbers they can call to have someone pick Appellant up.

Appellant laments that she does not know where she can go, and Officer Todd

tells Appellant that she cannot go home right now. In context, however, both

Appellant and Officer Todd understood that Appellant could not go home

because her home was a crime scene and because the police would not allow

anyone to disturb it until after they had completed their investigation. When

Appellant expresses concern that her car, keys, and wallet are all at the house,

Officer Todd assures her that they will figure it all out and get it all taken care of.

      When Sergeant McGrew returns to the room, he informs Appellant that the

canine search showed that there were no intruders and, further, that there was

no way “on God’s green earth” that Gregory’s death occurred in the manner she

described. Sergeant McGrew tells Appellant categorically that either (1) Gregory

shot himself, and she covered it up or (2) she killed him. Appellant then, in a

voice broken with tears, spends the next ten minutes explaining how she covered

up Gregory’s suicide, after which Sergeant McGrew asks her if she wants him to

call someone to come to be with her and asks her whom she wants him to call,

and he agrees to make the calls.


                                          22
      When he returns, Sergeant McGrew informs Appellant that he was able to

leave a message with her first preference. Appellant then relates in a more

coherent fashion how Gregory committed suicide, how she panicked, and how

she decided to make his death look like a burglary.

      Sergeant McGrew then informs Appellant that he needs her to put her

statement in writing, reads the Miranda rights to her, and tells her that she has

committed the offense of tampering with evidence. He tells Appellant that she is

not being arrested and charged with it, but because it is an offense, he has to

read her rights to her. He informs her that he is again going to try to call her

contact. Appellant then asks Sergeant McGrew if she is going to be arrested,

and his immediate response is, “You’re going home.” Seconds later, he adds,

“You’re leaving today.” Appellant then apologizes to Sergeant McGrew and says

that she was only trying to protect M.W., and Sergeant McGrew responds that he

understands that she was only trying to protect her family. Appellant then is left

alone to write her written statement. Around thirteen minutes later, Sergeant

McGrew returns to the room and informs Appellant that he has called her

contact, that her contact will be there in about thirty minutes, and that he has told

her contact that once she is done, she will be free to go.

      The interview occurred in a room with no windows, the door shut, and at a

table with Sergeant McGrew and Officer Todd.          In light of the record of the

assurances that Appellant was not being arrested and was being released to go

home, being interviewed in a room with no windows, with the door shut, and in


                                         23
close proximity to two police officers are not necessarily circumstances rising to

the degree associated with a formal arrest. See Wilson, 442 S.W.3d at 784.

Throughout the interview, Sergeant McGrew and Officer Todd treated Appellant

as a woman who had just lost her husband.             Officer Todd can be seen

periodically holding Appellant’s hands and patting her on the back.

      Objectively, the video shows that Sergeant McGrew is initially skeptical

about an intruder and, as the interview progresses and as he receives additional

information from the officers at the scene, he openly expresses his disbelief in

Appellant’s story about an intruder. Sergeant McGrew also openly expresses his

belief that either Gregory committed suicide and “somebody” covered it up or that

Appellant killed him.   Sergeant McGrew was effectively stating that he saw

Appellant as a suspect of a crime, but he did not know which one. However,

neither being the focus of a criminal investigation nor being questioned at a

police station, without more, made the interview a custodial interrogation. Id.

      Overall, Sergeant McGrew appears to suspect that Appellant covered up

Gregory’s suicide, and once she admits that, he makes no effort to push the

matter further.   Even after she admits tampering with the scene, Sergeant

McGrew makes it clear that she will be going home.

      Appellant complains that by taking her cell phone, the police isolated her.

During the video, Appellant tells Sergeant McGrew that there was blood on her

cell phone. Objectively, this might explain why the police took her cell phone.

The absence of her cell phone became a problem only for purposes of finding


                                        24
someone to come pick her up, but Sergeant McGrew was able to call her

requested contact anyway.

      We hold that the trial court did not abuse its discretion by finding that

Appellant was never taken into custody and was not deprived of her freedom of

action in any significant way. See id. Under the circumstances, the trial court

could have reasonably concluded that an objectively reasonable person would

not have believed that her freedom of movement was restrained to the degree

associated with a formal arrest.    See id. at 781–87 (holding that voluntary

interview did not become custodial when detective asserted defendant would be

charged with an offense or when defendant admitted accidental penetration of a

child’s sexual organ; holding custody occurred when detective told the defendant

he was under arrest); Hodson v. State, 350 S.W.3d 169, 174–75 (Tex. App.—

San Antonio 2011, pet. ref’d) (holding defendant was not in custody during sixty-

minute interview when he admitted involvement in murder and noting that

situations where the manifestation of probable cause triggers custody are

unusual); Houston v. State, 185 S.W.3d 917, 921 (Tex. App.—Austin 2006, pet.

ref’d) (explaining that although “there was probable cause to arrest and the

strength of the State’s case was readily apparent to all,” detectives specifically

told defendant that he was not under arrest and implied though their questioning

that he could leave); Scott v. State, 165 S.W.3d 27, 42 (Tex. App.—Austin 2005)

(“Although probable cause to arrest arose early in the questioning, the officers




                                       25
never suggested by word or deed that [the defendant] was not free to leave.”),

rev’d on other grounds, 227 S.W.3d 670 (Tex. Crim. App. 2007).

                                Request for Counsel

      Appellant contends that at roughly 8:36 a.m. during the interview, she

invoked her right to counsel by stating, “I need a lawyer, obviously.” Appellant

asserts that this request was made well before she stated that Gregory

committed suicide and that she tampered with the evidence. Because her oral

and written statements admitting tampering with the evidence came later, she

contends that the trial court should have sustained her motion to suppress.

      The factual determinations of whether Appellant reasonably believed she

was not free to leave or whether a reasonable person would have believed she

was free to leave at the time she now claims she requested a lawyer turn on the

interpretation of the events captured by visual and audio recordings. The trial

judge was in the unique position of being able to watch and listen to the actual

actions and words of the officers and of Appellant.

      As we have previously explained, the law is well settled that we must

uphold the trial court’s ruling if it is supported by the record and correct under any

theory of law applicable to the case even if the trial court gave the wrong reason

for its ruling. Stevens, 235 S.W.3d at 740; Armendariz, 123 S.W.3d at 404.

Because the record may be understood in a manner to support the trial court’s

rulings, we are compelled to hold that Appellant was not in custody and,

therefore, not subjected to custodial interrogation at the time she made her oral


                                         26
and written statements. Although she was free to walk out of the police station

and the officers would have had to allow her to leave unimpeded, the police

officers were not obligated to accede to any request for a lawyer at the time she

suggested she might need a lawyer. At that point, because the record reflects

she was free to leave, even if she had unambiguously requested counsel,

Sergeant McGrew could have ignored her request and proceeded. See State v.

Howard, 378 S.W.3d 535, 540–41 (Tex. App.—Fort Worth 2012, pet. ref’d). After

the officers provided her Miranda warnings, she neither requested counsel nor

suspended the interview.

      We overrule Appellant’s first point.

                                 SECOND POINT

             Whether the Evidence Supports the Murder Conviction

      In her second point, Appellant contends that the guilty verdict for murder

was not supported by (a) the autopsy because the police department

impermissibly tainted the alleged crime scene and (b) the ballistic testing

because the testing was skewed. Appellant cites one authority in her second

point, and she cites that authority to set out the standard of review of a

sufficiency-of-the-evidence challenge. See Thornton v. State, 425 S.W.3d 289,

303 (Tex. Crim. App. 2014). We construe her second issue to be a sufficiency

challenge and will treat it accordingly. Appellant’s second issue attacks only the

murder conviction.




                                        27
      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979).          This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Id. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim.

App.), cert. denied, 136 S. Ct. 198 (2015).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.

State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.           See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict.   Murray, 457 S.W.3d at 448.          We must presume that the factfinder

resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Id. at 448–49. The standard of review is the same for direct and

circumstantial evidence cases; circumstantial evidence is as probative as direct




                                          28
evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429

S.W.3d 621, 625 (Tex. Crim. App. 2014).

      Appellant acknowledges in her brief that defense counsel at trial did a

thorough job of presenting to the jury the deficiencies of the evidence gathering

and the ballistic testing. Appellant writes:

             Without diverging into an extended discussion about the
      veracity of the autopsy itself, Appellant contends that there were
      multiple errors or scientific inadequacies in the collection of the
      evidence, the ballistic testing of the weapon in question, and in the
      autopsy conducted by Dr. White, all of which tainted the jury’s ability
      to reach a verdict. Trial counsel did a very thorough job in
      highlighting these issues, and the bottom line is that the findings of a
      homicide, as opposed to a suicide were impermissibly contaminated
      by the improper procedures in gathering the evidence and the
      flawed ballistic testing of the alleged murder weapon that followed.

In other words, the jury was aware of the complained-of deficiencies but

convicted Appellant anyway. It was the jury’s responsibility to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Murray, 457 S.W.3d at 448.        The jury was within its prerogative to find the

autopsy and ballistic testing reliable notwithstanding any deficiencies or that any

deficiencies were immaterial given the other evidence. We will not re-evaluate

the weight of the evidence and credibility of the witnesses and substitute our

judgment for that of the factfinder. See Montgomery, 369 S.W.3d at 192.

      There was testimony that Gregory was against suicide because his best

friend had committed suicide only a year earlier, leaving Gregory’s sister a widow



                                         29
and her three children fatherless. Gregory was also excited about the new house

he and Appellant were buying. On the video, Appellant herself told Sergeant

McGrew that they were closing on their house the next day and that Gregory was

excited about it. Although there was evidence that Appellant and Gregory were

living beyond their means, whether Gregory knew about their financial condition

was not clear. The jury could have concluded that Appellant, however, as their

bookkeeper, knew of the financial strains.

      Regarding the wound, Dr. Peerwani testified, “I think that based on the

photographs that it’s clearly not a contact gunshot wound.    It is not a loose

contact gunshot wound. It’s a range that we describe as intermediate range, a

range beyond which there is no muzzle imprint left on the body surface.” Dr.

Peerwani testified that the vast majority of suicides involve a tight or loose

contact gunshot wound.      He acknowledged that suicides could sometimes

involve intermediate gunshot wounds.

      The record reflects that Appellant made no efforts to arrange funeral

services for Gregory.     When Gregory’s family arranged funeral services,

Appellant did not attend. During the interview with Sergeant McGrew only hours

after Gregory had been shot in the head but before Sergeant McGrew had

announced his death, when Sergeant McGrew asked her to describe Gregory,




                                       30
she responded, “An asshole.” Although Appellant maintained that there were no

issues between Gregory and her, the jury was free to believe otherwise.4

      An insurance policy for $150,000 was taken out on Gregory’s life only one

month before he was killed; however, it had a two-year suicide clause in it.

Appellant admitted that she had attempted to stage the crime scene to reflect a

burglary during which an alleged intruder had killed Gregory. She even struck

her own face with a large wrench, leaving a large swelling.5 When her attempts

to create a scenario of a burglary by a stranger failed, Appellant took steps to

frame Gregory’s ex-wife for his murder. Appellant’s son, Andrew, was concerned

that she was also considering trying to frame his brother, Lee, for Gregory’s

murder.   The evidence showed that Appellant, notwithstanding that she had

signed a written statement acknowledging Gregory committed suicide, thereafter

submitted a “Claimant’s Statement” on the policy and identified his cause of

death as murder. The jury was within its prerogatives to believe Appellant killed

Gregory to recover the $150,000 life insurance.

      Viewing the evidence in the light most favorable to the verdict, we hold that

a rational trier of fact could have found the essential elements of the offense of



      4
       After Appellant gave her written statement and while she and Sergeant
McGrew chatted during the wait for her ride, Sergeant McGrew told Appellant
that she was a terrible liar.
      5
        In the video, she lamented to Sergeant McGrew that she ended up
striking herself too hard.


                                        31
murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789. We overrule Appellant’s second point.

                                   THIRD POINT

    Whether the Trial Court Violated Her Right to Confrontation by Allowing a
      Medical Examiner Who Had Not Performed the Autopsy to Testify

      In her third point, Appellant argues that the trial court violated her right to

confrontation under the Sixth Amendment of the United States Constitution and

section 10 of article I of the Texas constitution by allowing Dr. Peerwani to testify.

Appellant filed a pretrial motion to exclude Dr. Peerwani, the chief medical

examiner, or any deputy medical examiner from testifying about Gregory’s

autopsy or his cause of death. She alleged that any such testimony violated the

Confrontation Clause because neither Dr. Peerwani nor any other deputy

medical examiner conducted Gregory’s autopsy.           The trial court denied her

motion. After conducting a hearing on Appellant’s motion to reconsider, the trial

court again denied her confrontation objection.

      A trial court's decision to admit evidence is reviewed under an abuse of

discretion standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006).

As long as the trial court’s ruling is within the “zone of reasonable disagreement,”

there is no abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex.

Crim. App. 2011).        However, if the admission of evidence involves a

constitutional legal ruling, such as whether a statement is testimonial or non-

testimonial, the appellate court gives almost total deference to the trial court's



                                         32
determination of historical facts but reviews de novo the trial court’s application of

the law to those facts. Wall, 184 S.W.3d at 742 (applying hybrid standard of

review to issue of whether statement was testimonial).

      The Confrontation Clause of the Sixth Amendment guarantees the

accused the right to confront the witnesses against him.          Pointer v. Texas,

380 U.S. 400, 403, 85 S. Ct. 1065, 1068 (1965); Paredes v. State, 462 S.W.3d

510, 514 (Tex. Crim. App.), cert. denied, 136 S. Ct. 483 (2015); Burch v. State,

401 S.W.3d 634, 636 (Tex. Crim. App. 2013).           “Testimonial” statements are

inadmissible at trial unless the witness who made them either takes the stand to

be cross-examined or is unavailable and the defendant had a prior opportunity to

cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct.

1354, 1365–66 (2004); Burch, 401 S.W.3d at 636.            “Testimonial” statements

include those statements that were made under circumstances which would lead

an objective witness reasonably to believe that the statement would be available

for use at a later trial. Crawford, 541 U.S. at 52, 124 S. Ct. at 1364; Paredes,

462 S.W.3d at 514.

      Autopsy reports are testimonial where an objective medical examiner

would reasonably believe that his report would be used in a later prosecution.

Lee v. State, 418 S.W.3d 892, 896 (Tex. App.—Houston [14th Dist.] 2013, pet.

ref’d); Wood v. State, 299 S.W.3d 200, 209–10 (Tex. App.—Austin 2009, pet.

ref’d). However, an expert may disclose facts from the report of an autopsy

conducted by another person if the expert relied on those facts in coming to his


                                         33
or her own conclusions. Williams v. Illinois, 132 S. Ct. 2221, 2228 (2012); Lee,

418 S.W.3d at 898–99.

      Furthermore, photographs taken during an autopsy are not statements.

Wood, 299 S.W.3d at 214; Tex. R. Evid. 801(a). Thus, autopsy photographs are

nontestimonial in nature for confrontation purposes.            Herrera v. State,

367 S.W.3d 762, 773 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Wood,

299 S.W.3d at 214.

      Dr. Peerwani did not sponsor Dr. White’s autopsy report and did not act as

a surrogate for Dr. White.   Instead, Dr. Peerwani presented his own opinion

regarding the cause and manner of Gregory’s death based on his independent

review of the autopsy report, autopsy photographs, and toxicology reports, along

with his expertise gained from conducting numerous autopsies. Dr. Peerwani’s

conclusions did not violate Appellant’s confrontation rights.     See Edwards v.

State, No. 01-14-00384-CR, 2015 WL 1544512, at *6–7 (Tex. App.—Houston

[1st Dist.] Apr. 2, 2015, no pet.) (mem. op., not designated for publication)

(holding medical examiner may give conclusions based on review and analysis of

autopsy photographs where examiner did not sponsor report); Williams v. State,

No. 09-12-00350-CR, 2014 WL 1102004, at *3 (Tex. App.—Beaumont Mar. 19,

2014, pet. ref’d) (mem. op., not designated for publication) (holding medical

examiner may give opinion regarding cause of death where based on

independent review of entire autopsy file including autopsy report by non-

testifying expert, photographs, and microscopic slides; testifying expert may use


                                       34
autopsy report to explain the basis of her opinion even though autopsy report not

admitted); Hernandez v. State, No. 05-11-01300-CR, 2013 WL 1282260, at *6

(Tex. App.—Dallas Mar. 6, 2013, pet. ref’d) (not designated for publication)

(holding medical examiner may give conclusion reached after independently

reviewing the autopsy report, photographs, and scene investigative history where

he participated in peer review of autopsy report; testifying expert may not be

used to introduce autopsy report prepared by non-testifying expert).

      In particular, Dr. Peerwani’s testimony addressing the manner and cause

of Gregory’s death did not violate Appellant’s confrontation rights.        See

Hutcherson v. State, 373 S.W.3d 179, 183–84 (Tex. App.—Amarillo 2012, pet.

ref’d) (holding medical examiner may give opinion regarding cause of death even

though he did not perform autopsy; State may not offer autopsy report prepared

by non-testifying expert); Gilstrap v. State, No. 04-09-00609-CR, 2011 WL

192688, at *1–2 (Tex. App.—San Antonio Jan. 12, 2011, pet. ref’d) (mem. op.,

not designated for publication) (holding medical examiner may rely on autopsy

report prepared by non-testifying expert in reaching his independent conclusion

concerning cause of death). Dr. Peerwani’s testimony was based on his own

observations, conclusions, and expertise. Thus, the trial court did not abuse its

discretion by denying Appellant’s motion and allowing Dr. Peerwani to give his

opinion regarding the cause and manner of Gregory’s death.

      We overrule Appellant’s third point.




                                        35
                             CONCLUSION

     Having overruled Appellant’s three points, we affirm the trial court’s

judgments.



                                             /s/ Anne Gardner
                                             ANNE GARDNER
                                             JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

PUBLISH

DELIVERED: December 22, 2016




                                   36
