Winfrey, Megan AKA Megan Winfrey Hammond

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0943-11

MEGAN WINFREY, A.K.A. MEGAN WINFREY HAMMOND, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

SAN JACINTO COUNTY

Johnson, J., delivered the opinion of the Court in which Price, Womack,

Keasler, Hervey, Cochran, and Alcalá , JJ., joined. Keller, P.J., filed a dissenting

opinion. Meyers, J., dissented.

O P I N I O N

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." (4)

Megan 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 insufficient to 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]'s guilt beyond a reasonable doubt, and we set it aside from our sufficiency

review" (7) and thus did not consider the dog-scent lineup evidence in its review of the sufficiency of

the evidence. In its brief on discretionary review, the state does not assert that the court of appeals

erred in doing so. We do observe that the dog-scent lineup evidence, with the dog alerting to

appellant's scent on Burr's clothing, simply indicates that appellant had had some contact with

Burr's clothing, although the timing, circumstances, and degree of that contact cannot be determined.

We apply Jackson v. Virginia , 443 U.S. 307 (1979), as the standard for reviewing the

sufficiency of evidence. "In determining whether the evidence is legally sufficient to support a

conviction, a reviewing court must consider all of the evidence in the light most favorable to the

verdict and determine whether, based on that evidence and reasonable inferences therefrom, a

rational fact finder could have found the essential elements of the crime beyond a reasonable doubt."

Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011), citing Jackson v. Virginia , 443 U.S.

at 318-19 . In Brooks , supra , we also determined that, when viewing the evidence in the light most

favorable to the verdict, "the reviewing court is required to defer to the jury's credibility and weight

determinations because the jury is the sole judge of the witnesses' credibility and the weight to be

given their testimony." Brooks , 323 S.W.3d at 899 , citing Jackson , supra at 319 and 326. The court

of appeals properly noted that standard and that "[i]t is unnecessary for every fact to point directly

and independently to the guilt of the accused; it is enough if the finding of guilt is warranted by the

cumulative force of all the incriminating evidence." Megan Winfrey , 338 S.W.3d at 694 , citing

Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

In Richard Winfrey , supra , we discussed evidence that involves use of canines to differentiate

among human scents in order to identify a specific person in a lineup, i.e. human-scent

discrimination. We ultimately held that, "when inculpatory evidence is obtained from a dog-scent

lineup, its role in the courtroom is merely supportive." Id. at 884. We concluded that dog-scent

lineups, "when used alone or as primary evidence, are legally insufficient to support a conviction."

Id . While a dog-scent lineup might have raised a "strong suspicion" of appellant's father's guilt,

standing alone it was insufficient to establish his guilt beyond a reasonable doubt. Id . at 885.

Appellant argues that this dog-scent lineup evidence is even less incriminatory of her, while the state

points to multiple evidentiary facts which it insists are sufficiently incriminatory, above and beyond

the dog-scent lineup evidence. Thus we must review these additional evidentiary facts to determine

whether they are sufficient to prove appellant's guilt.

Appellant asserts that the principle evidence cited by the court of appeals-her ex-boyfriend's

testimony that she called Burr an "easy lick," and the jailhouse informant's testimony that her father

told him that one of his kids was supposed to let him into Burr's house-does not implicate her in this

crime, nor does it place her at the scene at or near the time of the murder: She contends that, when

"[v]iewed outside the tainted prism of the dog-scent evidence, these two pieces of weak

circumstantial evidence do not support a reasonable inference that appellant was involved in the

murder, knowledgeable about the murder, or even present at the time of the crime." Appellant also

asserts that there was no testimony presented at trial that implicated her in the murder, there was no

physical evidence that connected her to the crime scene or Burr, but there was physical evidence,

including DNA, hair, and a footprint in Burr's blood, that did not match her or her family members

and for which the source could not be identified. She suggests that nearly all of the evidence was

of the sort that she would have introduced, had the state not done so.

Appellant acknowledges testimony that one of her teachers heard her say to Burr that she

knew he had money hidden at his home, but she notes that there was no evidence that money was

taken from Burr's home and points out that Burr's wallet was still at the residence, atop the washing

machine. She also discounts the state's efforts to imply that there was money in Burr's missing

Bible.

Appellant also questions the incriminating nature and sufficiency of testimony that her ex-boyfriend had heard her discuss with her ex-husband whether they were at a concert the night of the

murder. She asserts that such a discussion establishes nothing more than investigation of a possible

alibi, for which any prudent person, upon learning of the possibility of being criminally charged,

would search his memory, and that of close friends and relatives, in order to determine his

whereabouts at the time a crime occurred and discover any witnesses who could support an alibi.

Echoing the court of appeals's dissenting opinion, she suggests that "this was not in any sense

evidence of the creation of a false alibi." Appellant's brief at 38.

Appellant questions the nature of the ex-boyfriend's testimony that she shaved her pubic area

after having learned that a search warrant had been issued to obtain a sample of her pubic hair. She

points out that the boyfriend never claimed that she had not shaved that area previously, and the

undisputed facts show that she cooperated in the investigation "by voluntarily submitting to an

interview, and by providing scent exemplars, buccal swabs, and fingerprints[,]" and that she

subsequently provided the pubic-hair sample. Appellant's brief at 38. Appellant also suggests that,

in light of her unchallenged testimony that she ordinarily shaved her pubic area, her ultimate

provision of the pubic-hair sample, and her earlier full cooperation in providing other samples that

would have been used to determine whether any of the forensic evidence from the crime scene

connected her to it-the same purpose as the pubic-hair sample-any speculation or conjecture

predicated upon her ex-boyfriend's testimony about the timing of the shaving "seems faint indeed."

Appellant challenges the testimony of another of her teachers that she clenched her fist and

said that somebody should "beat the shit out of" Burr, purportedly because she was mad about his

cats. She notes evidence indicating that she subsequently had friendly dealings with Burr and

suggests that, without context or timing, the incident described by this teacher warrants little weight,

even in an analysis that views the evidence in the light most favorable to the verdict.

Appellant asserts that none of the circumstantial evidence, separately or cumulatively, rise

to a level beyond mere speculation and that "a criminal conviction may not properly rest upon

speculation and conjecture." She argues that "[t]he dog-scent lineups-represented to the jury as

scientifically authentic and essentially infallible-explain the verdicts here" and suggests that "[t]hose

verdicts do not comport with due process and should be set aside."

The state acknowledges that "review of the evidence in this case begins with a strong

suspicion of [her] guilt." State's brief at 14. Yet a strong suspicion of guilt does not equate with

legally sufficient evidence of guilt. In discussing our opinion in the appeal of the conviction of

appellant's father, the state focuses upon whether the dog-scent evidence is corroborated, insists that

there is ample corroboration, and notes six items of corroborating evidence that it argues "connect

[appellant] directly to this brutal murder." Yet in Richard Winfrey , supra , while acknowledging that

we, like the Supreme Court of Washington, "believe that '[t]he dangers inherent in the use of dog

tracking evidence can only be alleviated by the presence of corroborating evidence,'" (8) we simply

held that "when that inculpatory evidence is obtained from a dog-scent lineup, its role in the

courtroom is merely supportive." Richard Winfrey v. State , 323 S.W.3d at 884 (quoting State v.

Loucks , 98 Wash.2d 563, 567 , 656 P.2d 480, 482 (1983)). We specifically held "scent-discrimination lineups . . . to be separate and distinct from dog-scent tracking evidence." Id . at 883.

We did not say that such dog-scent lineup evidence must be corroborated to be legally sufficient

evidence of guilt, but rather that such evidence "is merely supportive" of the remainder of the

evidence. As merely supportive evidence, dog-scent lineup evidence cannot itself constitute

sufficient evidence of guilt. The state acknowledges that the "issue of the admissibility of the dog

scent evidence was settled in her father's case and need not be reargued here." State's brief at 28.

The state also recognizes that "[t]he same dog scent evidence is present in this case." State's brief

at 14. Appellant acknowledges that "[i]n this case, no objection was made to the dog scent

evidence." Appellant's brief at 22.

The state compares its suggestion of evidence corroborating the dog-scent evidence with the

statutory requirement of Texas Code of Criminal Procedure art. 38.14 that "[a] conviction may not

be had upon the testimony of an accomplice unless corroborated by other evidence tending to

connect the defendant with the offense committed." "This rule is a 'statutorily imposed review and

is not derived from federal or state constitutional principles that define the legal and factual

sufficiency standards.'" Malone v. State , 253 S.W.3d 253, 257 (Tex. Crim. App. 2008), quoting

Druery v. State , 225 S.W.3d 491, 498 (Tex. Crim. App. 2007); Solomon v. State , 49 S.W.3d 356,

361 (Tex. Crim. App. 2001) ("The accomplice-witness rule is not based upon federal or state

constitutional notions of sufficiency."). We do not use the accomplice-witness rule in evaluating the

sufficiency of evidence, including evidence derived from a dog-scent lineup. We simply review all

of the evidence in the light most favorable to the verdict, and the dog-scent lineup evidence "is

merely supportive" of the remainder of the evidence. (9)

In reviewing all of the evidence in the requisite light, we include the six items of

corroborating evidence that the state asserts connect appellant directly to the instant murder. These

six items include: 1) testimony that appellant believed that Burr had money in his home, and she

wanted it; 2) appellant's father's jail cell-mate, Campbell, testified that appellant's father related

specific information about the murder, including that the father's children had let the father into the

house, that Burr had been stabbed repeatedly, and that guns had been stolen from the house,

whereupon law-enforcement officials, who had not known that guns were missing, then talked to

Burr's relatives and confirmed that guns were missing; 3) when appellant heard that her brother had

been arrested for the murder, she asked her boyfriend to take her to her ex-husband's house,

allegedly to discuss their daughter, but instead discussed only a possible alibi for the night of the

murder; 4) after her ex-husband was subpoenaed, appellant called his mother to find out if he was

going to testify; 5) when she learned that law-enforcement personnel had found a pubic hair at the

crime scene, appellant shaved herself, allegedly to prevent the taking of a sample of her pubic hair;

and 6) appellant told her boyfriend that she went to Burr's house because "it was an easy lick,"

which the boyfriend construed to mean appellant thought she would get money.

The state also points to testimony that there was a drop of blood underneath and a drop on

top of the overturned vacuum cleaner in the closet and suggests that this allowed the trier of fact to

"draw the inference that these drops and their positioning could have occurred when the murderer

was in the closet taking the guns and looking for items to steal." (10)

Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State , 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). While juries are permitted to draw multiple reasonable inferences as long

as each inference is supported by the evidence presented at trial, "juries are not permitted to come

to conclusions based on mere speculation or factually unsupported inferences or presumptions." Id .

at 15. "[A]n inference is a conclusion reached by considering other facts and deducing a logical

consequence from them," while "[s]peculation is mere theorizing or guessing about the possible

meaning of facts and evidence presented." Id . at 16. "A conclusion reached by speculation . . . is

not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt." Id .

The circumstantial evidence that the state presents as indicia of appellant's guilt of the

capital-murder offense appears more speculative than inferential as to appellant's guilt. Campbell

testified that appellant's father told him that just one of his children allowed him to gain access to

Burr's house but did not say which one, nor did he indicate the time, circumstances, or manner in

which access to the house was gained. Campbell also testified that he did not know appellant, had

never met her, that everything he was being asked was "hearsay to this trial[,]" and that he did not

"feel right today testifying against her." When pressed by defense counsel, Campbell conceded that

he "got the impression" that appellant's father was present during the murder, but stated, "Everything

that I am saying today is hearsay . . .." Campbell also indicated that appellant's father's main

concern was that his kids were being framed for the murder and that he could not understand why

they were going after his kids. While Campbell's testimony in this trial appears somewhat

incriminatory as to appellant's father, that testimony does not specifically inculpate appellant.

Perhaps most tellingly, Campbell repeatedly asserted that, not only had appellant's father told him

things that only someone who had been present at the murder would know, but that he contacted law

enforcement only after appellant's father described how the victim's penis had been cut off and

"crammed into" the victim's mouth. If that claim had been fact, it surely would have been noted by

the medical examiner, but was not; all injuries were to the victim's head, neck, back and left arm.

The evidence of appellant's shaving of her pubic hair seems much less significant in light of

her unchallenged testimony that she regularly shaved it, her later provision of the requested sample,

and the determination that her hair did not match a hair recovered from the scene. With regard to

appellant speaking with her ex-husband about having attended a concert around the time of the

murder, we do not perceive any indicia of guilt from simply discussing a possible alibi for the time

of the murder; alibi is a legitimate non-statutory defense. We also fail to discern any particular

incrimination in appellant contacting her ex-husband's mother to determine whether he was going

to testify at trial. Appellant's expression of knowledge that Burr had money in his home that she

wanted and that she went to his house because "it was an easy lick" does not reveal any action on

her part to actually kill Burr and take his money, and it is even less incriminatory when we consider

that the police investigation was unable to determine that any money had been taken from Burr

during the course of the murder. (11) The state's suggestion of an appropriate inference (12) drawn from

blood drops on the vacuum cleaner supports no connection to appellant at all because the DNA of

those blood drops did not match any of the Winfreys.

The record reflects that, in 2006, law enforcement contacted Burr's family about the

possibility that guns may have been taken. Burr's brother-in-law, who had seen the guns in Burr's

possession several months before the murder and, approximately three to five months before the

murder, had seen one in Burr's home, confirmed that, after the murder the guns were not in Burr's

home and have never been located. However, there was no evidence indicating when and under

what circumstances the gun or guns were removed from Burr's home, no evidence that appellant had

any involvement with the removal of the gun or guns from the home, or that the guns were removed

during the course of the murder. Burr's sister testified that, when she walked through the house after

the murder, she noted that Burr's Bible was missing. Her testimony does not in any way implicate

appellant in the removal of the Bible from Burr's home or prove that there had been money hidden

in it.

Basing a finding of appellant's guilt on this evidence and all of the other evidence is, at best,

"mere theorizing or guessing" about appellant's possible guilt rather than a reasonable inference

based upon evidence and facts presented. "A conclusion reached by speculation . . . is not

sufficiently based on facts or evidence to support a finding beyond a reasonable doubt." Hooper v.

State , 214 S.W.3d at 16 . After reviewing all of the evidence in the light most favorable to the guilty

verdict, we hold that the evidence merely raises a suspicion of appellant's guilt and is legally

insufficient to support a conviction of capital murder beyond a reasonable doubt. Accordingly we

sustain appellant's first ground for review.

Conspiracy to Commit Capital Murder

On direct appeal, appellant argued that the evidence was insufficient to establish that she had

committed conspiracy to commit capital murder. In this Court, appellant notes "that the conduct at

issue is an agreement. It is the agreement that defines conspiracy." (13) Alternatively, she asserts that

§ 15.02(c)(2) does not permit conviction for conspiracy when the only other conspirators have been

acquitted and that the contrary holding by the court of appeals constitutes fundamental error. (14)

The state asserts that § 15.02(c)(2) was construed correctly. It notes that two people have not

been acquitted, as the statute requires and argues that appellant is attempting to circumvent the first

element of the statute, § 15.02(c)(1)-that it is no defense to prosecution for criminal conspiracy that

"one or more of the coconspirators is not criminally responsible for the object offense[.]" (15)

We find that we do not need to address the proper interpretation of the statute in this case

because the record does not contain evidence on which a reasonable jury could find that appellant

agreed with one or both of the alleged co-conspirators that one or more of them would engage in

conduct that would constitute the alleged capital murder or that one or more of them performed an

overt act in pursuance of such an agreement. Appellant addressed and argued the issue of agreement

in her brief to the court of appeals: "The State could not produce a single witness that was able to

produce any evidence [that] Appellant agreed with anyone to murder Murray Burr in the course of

a robbery." Appellant's brief on appeal at 33. The state responded in its brief: "The agreement to

commit the crime may be inferred from the acts of the parties." State's brief on appeal at 30. And,

although the majority opinion did not explicitly address the agreement element, the dissenting

opinion in the court of appeals noted that the issue had been raised and, implicitly, overruled by the

majority: "A person commits the offense of conspiracy if, with intent that a felony be committed,

she agrees with one or more persons to engage in conduct that would constitute the offense, and she

performs an overt act in pursuance of the agreement. Tex. Penal Code Ann. § 15.02 (a) (West 2003).

. . . Moreover, there was no evidence, other than the scent lineup evidence, from which an

agreement between Winfrey and her brother or father to commit the crime could be inferred."

Megan Winfrey , at 708-09 (Kreger, J., dissenting). Because the issue was raised (and rejected) in the

court below, it is properly before this Court. (16)

Regardless of whether the acquittal of appellant's brother of conspiracy, combined with her

father's acquittal of the murder and the state's election not to indict him for conspiracy, constituted

a defense to the prosecution for the criminal conspiracy, the evidence in the record is insufficient to

sustain the agreement element of the conspiracy statute. Appellant is thus entitled to the requested

relief regarding her criminal-conspiracy conviction.

We reverse the judgment of the court of appeals and render a judgment of acquittal for each

offense. Burks v. United States , 437 U.S. 1, 18 (1978) (which required the remedy of appellate

acquittal on grounds of evidentiary insufficiency).

Delivered: February 27, 2013

Publish

1.

Appellant's father, also accused of this capital murder, was convicted of the lesser-included offense of

murder. His conviction was affirmed by the court of appeals but, on discretionary review, we reversed his conviction

and entered a judgment of acquittal. Id . at 885. A jury acquitted appellant's brother of this same capital murder and

conspiracy. Richard Winfrey v. State , 323 S.W.3d 875, 876, n.1 (Tex. Crim. App. 2010).

2. An "alert" occurs when the dog matches a scent collected from the victim to the suspect's scent pad.

Richard Winfrey v. State , 323 S.W.3d at 877, n.3. In this case, Deputy Pikett indicated that the dogs alert in different

manners. E.g.,"James Bond is going to turn 90 degrees if he finds the right can[,]" while "Quincy is going to turn

sideways and bark, and Clue is going to turn and jump on [Pikett]." V R.R. 74. But ultimately Pikett makes the

decision as to whether a dog has alerted. V R.R. 75-76.

3. We note that the time at which a scent was left on an item cannot be determined.

4. It was established at trial that the concert that appellant and Hammond attended was on the day the

victim's body was discovered. Appellant did not raise the concert as an alibi.

5. At the time of trial, Robertson was employed as the Crime Victim Assistant Coordinator for the local

district attorney's office.

6. The evidence was insufficient to support the murder conviction of appellant's father for killing the same

named victim that appellant was convicted of killing and conspiring to kill. Id .

7. Megan Winfrey , 338 S.W.3d at 694 .

8. We note that dog-tracking is the activity performed by tracking dogs such as bloodhounds, often when

searching for persons who are missing or thought to be involved in a criminal act. In those circumstances, the dog is

given a scent, and it then follows that scent, with humans following where the dog leads. Dog-scent lineups are

activities performed by humans who use tracking dogs to match a known scent sample to an unknown scent sample.

9. We again note that, since the court of appeals did not consider the dog-scent lineup evidence in its review

of the sufficiency of the evidence-it "set it aside from [its] sufficiency review"-and the state has not asserted that the

court of appeals erred in doing so, we do not consider the propriety of setting aside such evidence in reviewing the

sufficiency of the evidence.

10. DNA from the blood did not link any of the Winfreys to the murder scene, nor was there any evidence

that connected any of them to the missing guns.

11. When asked at trial if she understood Burr to have a lot of money, appellant stated, "No. He was a

janitor."

12. The state suggests that the blood drops allowed the trier of fact to "draw the inference that these drops

and their positioning could have occurred when the murderer was in the closet taking the guns and looking for items

to steal." That inference may very well be an appropriate one, but it, without a DNA or other connection to

appellant, does not implicate her.

13. Section 15.02(a) provides that a person commits criminal conspiracy if, with intent that a felony be

committed, 1) he agrees with one or more persons that they or one or more of them engage in conduct that would

constitute the offense; and 2) he or one or more of them performs an overt act in pursuance of the agreement. Tex.

Penal Code § 15.02(a).

14. Section 15.02(c)(2) provides, "It is no defense to prosecution for criminal conspiracy that: . . . (2) one or

more of the conspirators has been acquitted, so long as two or more coconspirators have not been acquitted."

Presumably, "two" includes the person on trial. Without such a presumption, a conspiracy between only two persons

could result in one person being acquitted and the other convicted, resulting in a conspiracy of one. Such a result is

barred. Barber v. State , 764 S.W.2d 232, 234 (Tex. Crim. App. 1988) (In a § 15.02 criminal-conspiracy

prosecution, "[o]ne person acting alone cannot commit conspiracy.").

15. We observe that the state's briefing on this issue consists of one page of conclusory statements and

addresses only the meaning of the statute. The only supporting authority is a citation to a 2010 opinion from the

Texas Supreme Court that holds that "[p]lain meaning is the dominant factor in applying a statute." The state sets

out no evidence of an agreement, and we find none in the record.

16. See, e.g., Benavidez v. State , 323 S.W.3d 179 , 183 & n.20 (Tex. Crim. App. 2010) (in its discretionary-

review capacity, this Court reviews "decisions" of the courts of appeals; an issue that the lower court did not pass

upon is not ordinarily ripe for our review).