291 S.W.3d 68 (Tex.App.-Eastland 2009), 11-08-00034-CR, Winfrey v. State

Docket Nº:11-08-00034-CR.
Citation:291 S.W.3d 68
Opinion Judge:TERRY McCALL, Justice.
Party Name:Richard Lynn WINFREY Sr., Appellant, v. STATE of Texas, Appellee.
Attorney:Tom Brown, Livingston, Shirley Baccus-Lobel, Law Offices of Shirley Baccus-Lobel, P.C., Dallas, for appellant. Bill Burnett, Dist. Atty., Coldspring, for appellee.
Judge Panel:Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
Case Date:June 11, 2009
Court:Court of Appeals of Texas

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291 S.W.3d 68 (Tex.App.-Eastland 2009)

Richard Lynn WINFREY Sr., Appellant,


STATE of Texas, Appellee.

No. 11-08-00034-CR.

Court of Appeals of Texas, Eleventh District, Eastland

June 11, 2009

Discretionary Review Granted Nov. 4, 2009.

Tom Brown, Livingston, Shirley Baccus-Lobel, Law Offices of Shirley Baccus-Lobel, P.C., Dallas, for appellant.

Bill Burnett, Dist. Atty., Coldspring, for appellee.

Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.


TERRY McCALL, Justice.

The jury convicted Richard Lynn Winfrey Sr. of the offense of murder. Appellant entered pleas of true to two enhancement allegations, and the jury assessed his punishment at confinement for seventy-five years. In two appellate issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm.


A person commits the offense of murder if he " intentionally or knowingly causes the death of an individual." TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2003). A person commits the offense of capital murder

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if he commits the offense of murder as defined in Section 19.02(b)(1) and he " intentionally commits the murder in the course of committing or attempting to commit ... robbery." TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp. 2008). Appellant was indicted for the offense of capital murder. The indictment alleged that, on or about August 6, 2004, appellant " intentionally cause[d] the death of ... MURRAY WAYNE BURR, by beating him with his hands and fists and by stabbing him with a knife," while appellant was " in the course of committing or attempting to commit the offense of robbery of MURRAY WAYNE BURR." The jury convicted appellant of the lesser included offense of murder.

Standards of Review

To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and 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, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App.2000). To determine if the evidence is factually sufficient, the appellate court reviews all the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App., 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App.2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses' testimony. TEX.CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

The Evidence at Trial

Murray Wayne Burr worked as a janitor for the Coldspring Independent School District for about thirty years. He planned to retire in January 2005. He lived alone in a trailer house at 851 Willow Springs Road in San Jacinto County, Texas. Steven Ray Winfrey, who was appellant's second cousin, lived across the road from Burr. Late in the afternoon on Thursday, August 5, 2004, Steven Winfrey saw Burr sitting outside of his house petting a cat. One of Burr's grandnephews saw Burr at about 8:00 p.m. that night. On Friday morning, August 6, 2004, Burr's sister, Dorothy McFadden, dropped her grandchildren off at Burr's house to visit him. Her grandchildren later told her that Burr would not answer the door. She drove by Burr's house that night and noticed that all the lights were on in the house. On Saturday morning, August 7, 2004, McFadden went to Burr's house with her mother, three of her sisters, and a granddaughter. They knocked on the doors and windows, but there was no answer. McFadden had a key to the house, and she opened the door. She testified that she saw a " drag mark" of blood, and she discovered Burr deceased in the bedroom. Burr had been brutally beaten and had been stabbed multiple times. Burr's house had not been ransacked, and the only thing that Burr's family members reported missing was a Bible that had been on the entertainment center.

On August 7, 2004, San Jacinto County Sheriff Lacy Rogers received a call about

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Burr's murder. He went to Burr's house after receiving the call. Sheriff Rogers testified that there was blood in the living room, that there was a drag mark of blood that went through the kitchen, and that Burr's body was located in the bedroom. Sheriff Rogers contacted the Texas Rangers and the Department of Public Safety crime scene unit about the homicide, and he turned the scene over to Texas Ranger Sergeant Grover F. Huff.

Ranger Huff arrived at the scene the same day. He testified that there was no evidence of forced entry into Burr's house. Ranger Huff examined blood spatter evidence at the scene. The blood spatter evidence indicated that blows had been delivered to Burr in the living room and in the bedroom. Ranger Huff testified that there were bloodstains on the wall and furniture in the living room, the wall and various objects in the bedroom, and clothes hanging in the bedroom closet. He also testified that, based on the existence of a blood drag mark leading from the living room to the bedroom where Burr's body was discovered, Burr had been dragged from the living room to the bedroom. Ranger Huff saw what he believed to be a bloody partial fingerprint or palm print on the front doorknob of the house. He removed the doorknob, and it was sent to the Montgomery County Sheriff's crime laboratory for testing. The crime laboratory found no identifiable fingerprints on the doorknob.

Also on August 7, 2004, personnel from the DPS Crime Laboratory in Houston collected evidence from the crime scene for DNA testing and analysis. They collected swabs of representative samples from the bloodstains, a hair that was found on Burr's pants, hairs from a vacuum cleaner, a hair that was in the bloody drag mark in the kitchen, and other objects from the house.

On August 8, 2004, Ana Lopez, an assistant medical examiner for Harris County, performed an autopsy on Burr. She testified that Burr had a significant amount of blood and trauma on his face and that he had sharp-force and blunt-force injuries. The majority of Burr's injuries were located on his face, neck, and head. Lopez said that Burr had sustained twenty-eight sharp-force injuries, which included both stab wounds and incised wounds. Lopez explained that Burr's stab wounds and incised wounds had sharp ends and blunt ends and that, therefore, the wounds were consistent with the use of a knife with a sharp edge and a blunt edge. Lopez testified that the fatal wound involved the left internal jugular vein and the left external carotid artery. Burr also received multiple blunt-force injuries, including at least ten different lacerations or skin tears on his face and scalp. Burr's right eye orbital was broken and both sides of his jaw were broken. Lopez ruled the manner of death a homicide.

Sheriff Rogers testified that he received information leading him to believe that appellant's children, Megan Winfrey and Richard Winfrey Jr., were persons of interest in the investigation. At that time, Megan Winfrey was sixteen years old and Richard Winfrey Jr. was seventeen years old. The Winfreys lived at 1400 Winfrey Road, which was about one and one-half to two miles away from Burr's house. Sheriff Rogers focused on Megan Winfrey and Richard Winfrey Jr. as possible suspects. Ranger Huff testified that Richard Winfrey Jr., Megan Winfrey, and Megan Winfrey's boyfriend Christopher Hammond became the focus of the investigation and that Adam Szarf, who was Hammond's friend, was also investigated.

On August 16, 2004, Ranger Huff interviewed appellant. Ranger Huff testified that, at that time, appellant was not a

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person of interest and that he did not consider appellant to be a suspect. Ranger Huff questioned appellant about the activities of his children. During the interview, appellant told Ranger Huff that he had not been involved in the murder, that he did not believe his children had been involved in the murder, that he had not seen Burr in four or five years, and that he had never been in Burr's home. Appellant stated to Ranger Huff that " he was the number one suspect."

Ranger Huff also interviewed Richard Winfrey Jr. and Megan Winfrey. They told him that they had nothing to do with the murder. They also told him that they had been to Burr's house on several occasions. On August 16, 2004, Ranger Huff collected buccal swabs from Richard Winfrey Jr., Megan Winfrey, Christopher Hammond, and Adam Szarf. Ranger Huff also obtained shoelaces from a pair of Christopher Hammond's tennis shoes. The buccal swabs and shoelaces were submitted to the DPS Crime Laboratory for testing.

Ranger Huff contacted Fort Bend County Deputy Sheriff Keith Pikett about performing a scent lineup. Deputy Pikett testified that he specialized as a canine handler and that he trained and worked with bloodhounds. He also testified in...

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