Winfrey v. State

• Decision Date: 17 April 2013
• Docket Number: No. PD–0943–11.,PD–0943–11.
• Parties: Megan WINFREY, a.k.a. Megan Winfrey Hammond, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

393 S.W.3d 763

Megan WINFREY, a.k.a. Megan Winfrey Hammond, Appellant

v.The STATE of Texas.

No. PD–0943–11.

Court of Criminal Appeals of Texas.

Feb. 27, 2013.

Rehearing Denied April 17, 2013.

Shirley Baccus–Lobel, Dallas, TX, for Appellant.

Richard N. Countiss, District Attorney, Coldspring, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for State.

OPINION

JOHNSON, J., delivered the opinion of the Court in which PRICE, WOMACK, KEASLER, HERVEY, COCHRAN, and ALCALÁ, JJ., joined.

In August 2004, Murray Burr, a man who worked at the local high school that appellant attended, was found dead in his home with numerous stab wounds and multiple sharp- and blunt-force injuries. Appellant was sixteen years old in 2004. In 2007, after an investigation that included dog-scent lineups, appellant and her father and brother were taken into custody and charged with the murder. Her indictment contained two counts: capital murder during the course of robbery and conspiracy to commit capital murder. Her father and brother were named as co-conspirators in the conspiracy count. A jury convicted appellant of both counts. The trial court sentenced appellant to life imprisonment for the capital-murder count and forty-five years' imprisonment for the conspiracy count. The court of appeals affirmed the convictions, with one justice dissenting. Megan Winfrey v. State, 338 S.W.3d 687, 689 (Tex.App.-Beaumont 2011).¹ We reverse the judgment of the court of appeals and render acquittals on both counts.

Facts

In August 2004, Murray Wayne Burr was found murdered in his home. Evidence at trial indicated that the victim had been stabbed or cut twenty-five times in the head and neck area and three times in the torso and had also received multiple blunt-force trauma that produced a broken right jaw and eye orbit. No other injuries were noted by the assistant medical examiner.

There was no evidence of forced entry into the victim's home. A blood trail indicated that the victim had been dragged from his living room into his bedroom, where his body was found, but there was no indication of a violent struggle. Shortly after the murder, family members reported that the only item that they thought was missing from the victim's home was a Bible. His wallet was in the house, and except for the blood and the body, nothing in the home appeared to be disturbed. Some time later, a relative said that he thought that two guns were missing.

Investigators collected hair, blood and DNA samples, a bloody footprint, and fingerprints from various places in the house and a DNA swab from women's underwear that was found in Burr's bedroom. They also took a casting of a footprint in the front yard. Hair samples recovered from Burr's body contained a partial female DNA profile. The DNA profiles that were developed from the collected items either matched the victim or did not match any of at least nine individuals who were questioned in regard to the murder. No physical evidence connected appellant or her family to the scene, nor were she or any member of her family connected to the property assumed to be missing from Burr's home. Megan Winfrey v. State, 338 S.W.3d at 689. The only evidence that purported to directly connect appellant to the crime scene was a “scent lineup” conducted by Keith Pikett.

At appellant's trial, before Deputy Pikett testified, Ranger Grover Huff testified that he had witnessed the scent lineup for appellant's scent samples. He noted that the grass was too high to see the cans on the video of the lineup and that Deputy Pikett “is having me reposition the cans. She [the bloodhound] doesn't react. The wind had switched or something. You could tell by the way the grass was.”

Deputy Pikett testified that, at the 2007 dog-scent lineups, the two dogs both alerted on appellant's scent sample.² Pikett indicated that the dog alerts reflected that the dogs alerted to her scent being on Burr's clothes, indicating that appellant had had contact with Burr's clothing.³

In August of 2004, appellant voluntarily consented to an interview with a Texas Ranger who was investigating this murder and voluntarily provided buccal swabs, scent pads, and fingerprints to him. In August of 2006, pursuant to a court order, a deputy sheriff attempted to obtain a pubic-hair sample from appellant, but it was determined that she had shaved that morning; the deputy did obtain such a sample thirty days later. The deputy testified that appellant voluntarily consented when the second request was made.

Appellant's ex-boyfriend, Jason King, who had dated her for six months after the murder, testified that appellant had received information that a search warrant was going to be conducted for her pubic hair and that she then shaved herself. King also testified that, after the shaving incident, when appellant received a phone call informing her that her brother had been arrested, she went to see her ex-husband, Hammond, and spoke with him about having attended a concert together around the time of the murder. “King understood the conversation as an attempt to establish an alibi.” ⁴Megan Winfrey, 338 S.W.3d at 695. King also related that, while they were “partying and drinking,” appellant had told him that going into Burr's home “was an easy lick,” which he took to mean she would get money.

Karen Robertson, a teacher or teacher's assistant from appellant's high school,⁵ testified that, in the summer of 2004, she saw appellant approach Burr at school and ask him, “When are you going to take me out and spend that money that you have? We know you have that money hid [sic] at home.” In the state's rebuttal, another teacher testified to overhearing appellant refer to Burr and say, “Somebody should beat the shit out of him,” although that teacher acknowledged that appellant then apologized to the teacher and said she did not mean to have said that aloud and that she lived near Burr and “was just tired of all his cats.” Other evidence showed, and appellant conceded, that on occasion she and her brother visited Burr at his home, which was near their residence, on their way to church. She also testified that the Winfreys sometimes asked the victim to go to church with them, but that he would decline.

On direct appeal, appellant claimed that the evidence was legally and factually insufficient to establish that she had committed the capital murder or the conspiracy to commit capital murder and alternatively, that, based upon our holding in Richard Winfrey v. State, 323 S.W.3d 875, 876–78 (Tex.Crim.App.2010),⁶ the evidence was insufficientto establish that she had committed those two offenses.

In reviewing the sufficiency of the evidence to support the convictions, the court of appeals set aside the dog-scent lineup evidence because such evidence was insufficient to establish appellant's guilt beyond a reasonable doubt. Megan Winfrey, 338 S.W.3d at 694. After reviewing all of the other evidence, including evidence at the crime scene, appellant's statements and conduct, and an informant-inmate's testimony about appellant's father's purported statements while incarcerated nearly two years after the murder, the court of appeals determined that the evidence supports the jury's decision and thus affirmed the judgment. Id., passim. The court of appeals also held that, with regard to appellant's conspiracy conviction, the fact that appellant's alleged co-conspirators (her father and her brother) were either acquitted of, or not charged with, conspiracy did not bar her from being convicted of the conspiracy. Id. at 698–99.

Capital Murder

We granted review of appellant's two grounds. Her first ground challenges the capital-murder conviction and asserts that the court of appeals's holding that the evidence was legally sufficient to sustain that conviction conflicts with this Court's decision in Richard Winfrey v. State, 323 S.W.3d 875, “with respect to the same evidence and with this Court's decision in Brooks v. State, [323 S.W.3d 893 (Tex.Crim.App.2010) ], which requires rigorous and proper application of Jackson v. Virginia 's exacting standards.” Her second ground challenges the conspiracy conviction and questions “the court of appeals'[s] holding, contrary to the dictates of § 15.02(c)(2), Texas Penal Code, that a conviction for conspiracy can be sustained even though the only other conspirators have been acquitted.”

Appellant asserts that, unless the canine scent lineup is treated as primary evidence, “there is no evidence which implicates appellant in this murder either directly or by application of the law of parties.” She argues that the majority opinion of the court of appeals conflicts with our decision in Richard Winfrey, 323 S.W.3d 875,supra. Appellant contends that “[i]t is inconceivable that the jury did not convict on the basis of the scent lineups [,]” regardless of the court of appeals's attempt to analyze the evidence wholly without regard to the dog-scent lineup. She argues that the dog-scent lineup evidence “is not sufficiently reliable to be accorded any weight, even a supporting role.”

“[W]hen conducting a legal sufficiency review, this Court considers all evidence in the record of the trial, whether it was admissible or inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999). See also Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001) (“When conducting a sufficiency review, we consider all the evidence admitted, whether proper or improper.”); Powell v. State, 194 S.W.3d 503, 507 (Tex.Crim.App.2006) (“[A] reviewing court is permitted to consider all evidence in the trial-court record, whether admissible or inadmissible, when making a legal-sufficiency determination.”). Thus, regardless of whether the dog-scent lineup evidence was properly admitted, such evidence is properly considered in a review of the sufficiency of the evidence.

The court of appeals specifically stated that “the dog-scent lineup evidence is insufficient to establish [appellant...