Winfrey v. State

MEGAN WINFREY, A.K.A. MEGAN WINFREY HAMMOND, Appellant v. THE STATE OF TEXAS

NO. PD-0943-11

COURT OF CRIMINAL APPEALS OF TEXAS

Filed: February 27, 2013

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

SAN JACINTO COUNTY

KELLER, P.J., filed a dissenting opinion.

It appears to me that in finding the evidence insufficient to support appellant's convictions, the Court views the evidence in the wrong light and fails to give the jury the deference that it is due. I would hold that, viewed in the correct light, the evidence is sufficient to support appellant's convictions.

A. General Principles

Under Jackson v. Virginia,¹ the standard for determining the sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trierof fact could have found the essential elements of the crime beyond a reasonable doubt."² A reviewing court must not engage in a divide-and-conquer approach to the evidence³ but must consider the cumulative force of all the evidence,⁴ including improperly admitted evidence.⁵ And "[w]hen the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination."⁶

B. Evidence a Crime (Capital Murder) was Committed

It was undisputed that Murray Burr died and that his death was a homicide. There was also evidence that a Bible (seen approximately four days before the murder) and two guns (purchased several months earlier) were missing from the residence. This evidence was sufficient to support an inference that someone committed a capital murder. The remaining question, then, is what evidence connects appellant to the crime.

C. Evidence Connecting Appellant to the Crime

1. Confession

Jason King, appellant's ex-boyfriend, testified that after the murder occurred, when appellant had been drinking, she would sometimes make comments relating to Burr's murder. When asked whether appellant would indicate why she would do anything to Burr or go over to his house, Jasonsaid, "Her words were it was an easy lick." Jason interpreted the "easy lick" comment to mean that appellant thought they would get money. The Court says that appellant's "easy lick" statement "does not reveal any action on her part to actually kill Burr and take his money," but this views the statement from the wrong perspective, assuming that it refers to a possible motive—a reason she "might" do something. A rational jury could have inferred that appellant's statement "it was an easy lick" described instead an actual event in the past, and therefore was an admission to involvement in the capital murder. Given that appellant's statement is in the past tense, that is the more reasonable meaning.

The Court discounts this evidence in part because the police were unable to determine whether any money was taken during the murder. But the police's inability to determine whether money was taken does not mean that none was taken, nor does it mean that someone did not attempt to take money. For example, there was evidence that Burr's wallet was found on the washing machine, which could suggest that someone looked through it. Moreover, a rational jury could have concluded that items of value were taken, namely two guns and a Bible, and a rational jury might have concluded that the Bible was taken because of the possibility that money might be inside it.⁷Further, as will be discussed in more detail below, appellant made statements before the murder that indicated that she thought that Burr had money.

2. Motive

Although motive does not by itself establish that a crime has been committed, it can be significant evidence linking someone to a crime and indeed can be "the glue that holds the entirecase together."⁸

a. "Easy Lick"

Even if the "easy lick" statement were not viewed as a confession, it would at least show motive to commit the crime. Moreover, the record contains two other incidents showing a motive to rob and kill Burr.

b. Incident Observed by Robertson

About a month before the murder, a school district employee named Karen Robertson saw appellant jump up, run, and grab Burr by the arm and say, "Oh, Murray, Murray, when are you going to take me out and spend some of that money that you have? We know you have that money hid at home." Robertson testified that Burr was embarrassed, shook appellant loose, and went on about his business. In a footnote, the Court notes appellant's testimony that she knew that Burr did not have a lot of money because he was a janitor, but again the Court is viewing the evidence from the wrong perspective. The jury did not have to believe appellant's testimony.

c. Incident Observed by Debra King

In a separate incident, schoolteacher Debra Jessup King saw appellant and Burr in conversation in the hall. As Debra approached, Burr turned away, and appellant clenched her fist and said, "Somebody should beat the shit out of him." Afterwards, appellant apologized for saying that statement out loud and said that she was just tired of all his cats. The jury did not have to believe this odd explanation for why she was angry at Burr, but regardless, this incident reveals a motive other than greed for murdering Burr: anger.

3. Consciousness of Guilt/Cover-up/Perjury

Several incidents could have been viewed by a rational jury as showing appellant's consciousness of her own guilt and attempts to cover up the crime, both before and during trial.

a. Attempt to Establish Alibi

Jason King testified that he and appellant went to Chris Hammond's house, and when they arrived she talked to Hammond about an alibi. The Court sees nothing significant about this incident because alibi is a legitimate statutory defense. A rational jury could have seen it that way, but a rational jury could also have inferred that appellant was trying to establish a false alibi to cover up her involvement in the murder.⁹

b. Shaving Pubic Hair

The evidence also indicated that, after becoming aware of a warrant to obtain her pubic hair, appellant shaved herself. In the following colloquy, Jason King testified:

Q. [D]id Megan receive information that a search warrant was going to be conducted regarding pubic hair?

A. Yes, sir.

Q. Okay. Do you know what she did when she got that information?

A. Yes, sir.

Q. What did she do?

A. She shaved herself.

Katherine Wick, from the Sheriff's Department, testified that the first time she tried to obtain a pubic hair sample from appellant pursuant to a court order, appellant had shaved her pubic hair that morning. A rational jury could easily have believed that appellant shaved her pubic hair because she did not want to give the authorities evidence that might connect her to the crime.¹⁰

The court discounts the significance of this evidence because appellant gave "unchallenged testimony" that she regularly shaved her pubic hair, because she later provided a sample, and because her pubic hair did not match the hair recovered from the scene, but again the Court views the evidence from the wrong perspective. The jury did not have to believe appellant's self-serving statement that she always shaves her pubic hair,¹¹ especially in light of Jason's testimony indicating that the shaving occurred in response to the warrant. And when Wick could not obtain a sample the first time, she advised appellant that "if she shaved she would be in violation of the court order," so a rational jury could have believed that appellant gave a sample only because she realized that she would suffer consequences for refusing a second time and would ultimately be forced to provide a sample anyway. As for the fact that appellant's hair did not match the hair at the scene, a rational jury could have concluded that appellant believed there was a risk that it would match.

c. Attempt to Contact Hammond during Trial

During cross-examination, the State questioned appellant about attempting to reach Hammond:

Q. Would you explain to the jury why you called Chris Hammond's mother this morning wanting to talk to Chris?

A. I did not want to talk to Chris. I called and asked why he was subpoenaed, if he was going to testify.

Q. But you did that?

A. Yes.

Q. What did you think he was going to testify about?

A. I don't know. I guess another character witness.

Q. Are you afraid he had something incriminating to say about you?

A. Well, we are divorced.

The Court says it fails to discern any particular incrimination in these actions, but a rational jury could believe that she was attempting to contact her ex-husband to influence his testimony or because she was afraid of what he might testify to.¹² By concluding that the episode is not incriminating, the Court fails to view the evidence in the light most favorable to the verdict.

d. Testimony

The Supreme Court has recognized that a defendant's trial testimony that denies wrongdoing can be considered as substantive evidence of guilt if a jury could rationally believe that the testimony was perjured.¹³ This holding seems to apply even when the defendant's testimony merely denieswrongdoing,¹⁴ but it applies especially when the defendant makes affirmative statements of fact in an attempt to distance herself from the crime.¹⁵

During her testimony, appellant denied any involvement in the crime, but she also made at least three affirmative statements in an attempt to convince the jury of her innocence. The jury could have disbelieved these statements. I have already discussed two of these: (1) that she did not think Burr had lots of money because he was a janitor, and (2) that she always shaved her pubic hair. The third statement was appellant's testimony that she did not know what an "easy lick" meant and discovered that it was a term used for illegal drug transactions:

In fact, I had to ask somebody what an easy lick was. I believe it's drug-related, like selling drugs or picking up drugs or something to that nature. I didn't even know what that meant. I do not use that

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