Sherry Lynn Smith v. State

NUMBER 13-05-714-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SHERRY LYNN SMITH, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 278th District Court of Grimes County, Texas.

OPINION
Before Justices Yañez, Benavides, and Vela
Opinion by Justice Benavides

Appellant, Sherry Lynn Smith, was convicted of capital murder and was sentenced

to life in prison. TEX . PENAL CODE ANN . § 19.03(a)(7)(A) (Vernon Supp. 2008). Her

conviction was based on the testimony of an alleged accomplice, Daniel “Boone” Gardner.

On appeal, Sherry argues that, excluding Boone’s testimony, the evidence was insufficient

to connect her to the crime. See TEX . CODE CRIM . PROC . ANN . art. 38.14 (Vernon 2005).

Additionally, she argues that the trial court erroneously instructed the jury to determine
whether Boone was an accomplice as a matter of fact, when it should have instructed the

jury that Boone was an accomplice as a matter of law. By her third and fourth issues,

Sherry argues that the trial court failed to instruct the jury that it could not consider

extraneous offense evidence unless the jury believed beyond a reasonable doubt that

Sherry had committed the extraneous offense. In her fifth issue, Sherry argues that the

trial court should have granted a mistrial when the State commented during closing

argument on her pre-arrest silence.

We hold that Boone was an accomplice as a matter of law and that the trial court

erred when it instructed the jury to determine whether Boone was an accomplice. We also

hold that the non-accomplice testimony in this case does not adequately connect Sherry

to the crime. Accordingly, we reverse the judgment of conviction and render a judgment

of acquittal, and we do not reach Sherry’s third, fourth, and fifth issues. TEX . R. APP. P.

47.1.1

I. Accomplice as a Matter of Law or as a Matter of Fact?

Sherry was married to Carey Smith. She lived with Carey and his ailing father,

Charles Smith, at their home in Grimes County, Texas. In the early morning hours of

Saturday, December 7, 2002, Carey and Charles were shot and killed with a high-powered

rifle. At approximately 4:30 p.m., Sherry discovered their bodies at the home and called

1
The dissent states that it would not render a judgm ent of acquittal because it finds that the evidence
tends to connect Sherry to the crim e. The dissent is incom plete in that it does not explain how it would resolve
the rest of the issues. For exam ple, Justice Vela’s dissent does not state whether she joins our resolution of
the jury charge error. If Justice Vela agrees with that portion of the opinion, then her dissent should discuss
whether Sherry is entitled to a new trial by analyzing whether the jury charge error is harm ful. See Herron v.
State, 86 S.W .3d 621, 632 (Tex. Crim . App. 2002) (“W hen the error is properly preserved, a reversal is
required if ‘som e harm ’ is shown.”); Burns v. State, 703 S.W .2d 649, 652 (Tex. Crim . App. 1986) (holding that
accom plice witness charge error requires reversal and rem and for new trial). Furtherm ore, if Justice Vela
believes the jury was correctly charged, she does not address Sherry’s rem aining issues. By doing so, the
dissent deprives Sherry, the State, and the Court of Crim inal Appeals the benefit of a proposed resolution of
this case.
2
9-1-1 to report the two deaths. Sherry became a suspect and was indicted for capital

murder.

Boone is Sherry’s ex-husband and the father of her children, and he testified during

Sherry’s jury trial. Sherry’s first argument is that, excluding Boone’s testimony, the

evidence is insufficient to connect her to the crime. In her second issue, Sherry argues

that the trial court erred in instructing the jury to determine whether Boone was an

accomplice as a matter of fact. The State urges this Court to first consider whether Boone

was an accomplice as a matter of fact or as a matter of law. We will indulge the State.2

A. Sherry’s Reports to the Police

Officer Johnny Martinez testified that he was dispatched to the Smith residence on

Saturday, December 7. After he arrived at the Smith residence, he learned that Charles

and Carey Smith had been killed. Officer Martinez’s supervisor asked him to interview

Sherry, so he asked her to accompany him to the sheriff’s office for an interview. Sherry

agreed to go with him. The interview began at 9:19 p.m. that night and was tape recorded.

Officer Martinez testified that Sherry did not express any reservation about talking to him.

He testified that before the interview began, he did not discuss any of the particulars of the

2
The State argues that Boone’s status as an accom plice as a m atter of fact controls the outcom e
of this appeal— in other words, the State asserts that if Boone was not an accom plice as a m atter of law, the
State wins and the judgm ent m ust be affirm ed. That is not the case. The trial court’s error in instructing the
jury would require this Court to rem and for a new trial if we found that the error caused “som e harm .” See
Herron, 86 S.W .3d at 632; Burns, 703 S.W .2d at 652. In contrast, if, excluding the accom plice-witness
testim ony, there is no evidence that tends to connect Sherry to the crim e, we are required to render a
judgm ent of acquittal. W incott v. State, 59 S.W .3d 691, 703 (Tex. App.–Austin 2001, pet. ref’d). Thus, even
if the question of Boone’s status as an accom plice was properly subm itted to the jury, we would have to
determ ine whether rendition is appropriate by evaluating whether there was sufficient evidence to connect
Sherry to the crim e. Badillo v. State, 963 S.W .2d 854, 858 (Tex. App.–San Antonio 1998, pet. ref’d)
(determ ining that trial court erroneously subm itted accom plice witness status to jury, recognizing that rem and
was required for that error, but then acquitting defendant because non-accom plice witness testim ony did not
tend to connect defendant to crim e). W e recognize that we are addressing a rem and point before a rendition
point, contrary to our custom ary practice. See id. W e do so for the benefit of the Texas Court of Crim inal
Appeals in the event it exercises discretionary review.
3
offenses with Sherry.

Texas Ranger Bryant Wells was present at the interview. He testified that Sherry

told the officers that she had been home the night of December 6, babysitting her

granddaughter, Logan, until approximately 12:30 a.m. on December 7. Sherry’s daughter,

Tori Sword, is Logan’s mother. After Tori picked Logan up from the Smith residence,

Sherry went to bed at 1:00 a.m.

Sherry left the Smith residence at 4:00 a.m. on December 7 and went to the Wal-

Mart in Huntsville, Texas. She told the officers that Carey and Charles were asleep when

she left. Ranger Wells testified that he retrieved a surveillance videotape from Wal-Mart.

Scott Carson, a Wal-Mart employee, testified as to the contents of the videotape. The

videotape from Wal-Mart shows that Sherry arrived at 5:15 a.m. in the Wal-Mart parking

lot. She remained at Wal-Mart until 6:42 a.m.

Sherry told the officers that after leaving Wal-Mart, she went to the home of her

friend, Joretta Mitchell, in Houston. Sherry and Mitchell then went to Northeast Medical

Hospital in Humble, Texas, to visit Sherry’s cousin, Donnie Helton. Mitchell confirmed that

Sherry arrived at her house at about 7:30 a.m. on December 7, and that she went with

Sherry to the hospital.

After visiting her cousin, Sherry left the hospital at 1:00 p.m. and drove to the

Cingular phone store in Huntsville to purchase a new cell phone. Sherry then went to the

Diamond Shamrock where Tori worked. Sherry stated that she went there to pick up

Logan so that she could babysit her while Tori worked. Boone was also at the Diamond

Shamrock at the same time. Officer Martinez testified that he viewed a videotape from a

Diamond Shamrock that was taken on December 7, the day of the murders, at

4
approximately 4:00 p.m. The video shows Sherry, Tori, Logan, and Boone at the Diamond

Shamrock.

Sherry told the officers that she left the Diamond Shamrock with Logan and went

to Tori’s home to pick up some medicine for Logan. She told the officers that she saw

Boone again at Tori’s house. After that, Sherry left and went to the Smith residence with

Logan. She testified that she entered the Smith residence through the garage and walked

into the living area. Sherry placed Logan on the floor in the living area with a toy puzzle

she had purchased from Wal-Mart. She then went to Carey’s bedroom.

Sherry told the officers that when she entered Carey’s room, she saw Carey in his

bed and noticed that blood was coming out of his nose. She shut the door and then went

to Charles’s bedroom. She told the officers that as she approached Charles, she believed

he was dead. She then went back into the living room and called 9-1-1.

Carolyn Greenwood, a dispatcher for the Grimes County Sheriff’s Department,

testified that she received a 9-1-1 call from Sherry at 4:30 on December 7. Sherry reported

that Carey and Charles were dead, and she was very upset. Sherry was so upset, in fact,

that Greenwood had difficulty understanding her. Greenwood asked Sergeant Jim Adkins

to speak with Sherry in an effort to calm her down and to prevent her from hyperventilating.

During the interview, the officers questioned Sherry about her relationship with

Carey. She told the officers that she had married Carey because “he needed somebody

and she needed to be needed.” She told the officers that she and Carey slept in separate

rooms. She also told the officers that Charles was in poor health.

Ranger Wells testified that Sherry did not cry during the interview. He testified that

her demeanor “changed at times.” He testified that on occasion, she laughed but also

5
became very serious. At the end of the interview, Sherry agreed to turn over the clothes

she had been wearing the day of the murders to Officer Martinez for testing.

On Wednesday December 11, 2002, Officer Martinez and Ranger Wells asked

Sherry to come to the station for another interview. A viewing at the funeral home for

Carey and Charles was scheduled for later that day, but Sherry nonetheless voluntarily

complied with the officers’ request. The officers questioned Sherry about her activities on

the night of December 6 and the day of December 7, and her statement was consistent

with her December 7 statement.

Ranger Wells testified that at some point during the interview, he began to question

Sherry about her finances. The officers had learned that Sherry had credit card debt in

Carey’s name. Sherry admitted that the debt was hers and that Carey did not know about

the debt. Initially, Sherry was cooperative. But later in the interview, she became “upset

at the process and was less cooperative.” At the end of the interview, Sherry got up and

left.

B. Boone’s Testimony

Boone testified that he married Sherry in 1976. He remained married to her for

three years before they were divorced. Sherry and Boone have two children, Tori and

Heidi. After their divorce, Boone raised the children, and he remarried.

Boone stated that in the summer of 2002, Sherry was living in Grimes County with

Carey and Charles. Boone was staying with Tori, who was single, was raising a child, and

was having financial problems. Sherry and Carey had helped Tori financially in the past.

Boone testified that during the summer of 2002, Sherry told him that she was helping Tori

financially, but Carey did not know the full extent of her assistance. Boone testified that

6
Sherry had obtained credit cards and that Carey did not know about the credit cards.

Boone testified that Sherry said that she was not happy with her marriage to Carey,

and she felt “smothered” and “didn’t have a life.” Sherry told Boone that she would not

have anywhere to go if she left Carey. He stated that Sherry was concerned about what

Carey would do if he discovered her credit card debt.

Boone said that Sherry called him one day in September 2002 and stated she was

having problems with Tori. Sherry told him that she was stressed by having to assist Tori

financially, but that she had a solution for the problems. At that time, she did not elaborate.

Boone testified that later that fall, Sherry and Boone were at Tori’s home in the front

room. Tori was at home, but she was not part of the conversation between Sherry and

Boone. Sherry told Boone she was frustrated with her finances and with her marriage.

Boone testified that “she just said sometimes she was so frustrated she wanted to kill

them.” Boone then clarified that, at the time, he believed she was just “blowing off steam.”

Boone testified that after that conversation, Sherry discussed killing Carey and

Charles again. Sherry reminded Boone that she had a solution to the financial problems:

Well, it was always something coming up about money. And some time after
that when we talked she talked about she could [sic] shoot them. It was
some time later that—like I say, the finances always surfaced to the top. And
she said I tried to tell you that I had—I had the solution to it but you didn’t
want to hear it. I said you’re right, I don’t want to hear it. She said all I need
was a set of tire tracks. And I said what do you mean? She said I need a
set of tire tracks to be at my house at a certain time. And I said what are you
saying? She said that’s all I’m saying. I will tell you when I’m not going to be
there and I just need somebody to drive up there. She said I will buy you
some new tires. I said you’re not going to buy me no [sic] new tires.

Boone stated that even after this conversation, he believed that Sherry was blowing off

steam, and it did not occur to him to report his conversations with Sherry to Carey and

Charles.
7
 According to Boone, the week of the murders, Sherry told him that she knew of

some guns that he could “get rid of.” Boone testified that Sherry knew that he needed

money and could sell the guns, but he stated that Sherry did not tell him where she had

obtained the guns. Sherry told Boone that she would get back to him.

Two days before the murders, Sherry told Boone that she had some guns and

asked what Boone would do with them. Boone told Sherry to bring the guns over to Tori’s

house and put them on the back of his utility trailer. Sherry said she would be leaving early

one morning to visit a relative and would drop them off early in the morning.

Boone stated that on Friday, December 6, 2002, Tori borrowed his truck to go to

work. He testified that he was awake when Tori returned late that night. Boone stated that

at about 4:30 a.m. on Saturday, December 7, he heard a vehicle drive up to Tori’s house.

He did not get up to see who it was, however, because there was a gas pump on the

property that the landlord sometimes used in the early hours. Boone stated that he went

back to sleep.

When he woke up the next morning, the day of the murders, he discovered guns on

the back of his trailer. He stated that there was one gun case containing two guns and

three guns wrapped in brown freezer paper. One of the guns in the freezer paper was also

wrapped in a pale blue colored, terry-cloth bath robe. Boone testified that he hid the guns

in an old freezer in the garage. Boone then went inside and got dressed.

Later in the day, Boone returned to the garage to look at the guns. Boone stated

that the gun wrapped in the bath robe was a “25.06" with two spent hulls inside it. He said

that he thought it was curious that this gun had two spent hulls inside, and it made him

think about what Sherry had told him about killing Carey and Charles. He testified that he

8
did not report this to the police, however, because he was scared. Therefore, he put the

guns back in the freezer. When asked whether he knew where the guns came from, he

stated that he did not know, but he “had a feeling.”

Boone said that later that day, he took Tori and Logan to the Diamond Shamrock

to meet Sherry. Sherry was going to pick Logan up from the Diamond Shamrock and

watch her while Tori worked. Boone testified that when they arrived, Tori and Logan went

inside the Diamond Shamrock. Sherry arrived and walked over to Boone’s truck. Boone

then testified that Sherry said, “I bet you didn’t thank [sic] I could do it did you.” Boone said

that he told Sherry that he did not want to talk about it. He said he was in disbelief. Tori

then came outside the Diamond Shamrock with Logan. Sherry told Boone that she was

going to Tori’s house to pick up a jacket or medicine for Logan, and she left with Logan.

Boone left the Diamond Shamrock and went to Tori’s house. When he arrived,

Sherry was there with Logan. Sherry told Boone that she was going home to the Smith

house. Boone asked Sherry if Logan needed to stay with him, “if there was anything that

Logan didn’t need to see.” He testified that Sherry said, “Logan is not going to see nothing

[sic].” Sherry told Boone that she was going to call him when she got home so that he

could come pick up Logan. Sherry then left with Logan.

A short time later, Sherry called Boone and said that she needed him to come pick

up Logan. He stated that Sherry was “in a panic.” Boone then went to the Smith home.

The police were there when Boone arrived, and Logan was in the back of Sherry’s truck.

Boone told the police who he was, and he took Logan and put her in the front seat of his

truck.

The police then questioned Boone while he smoked a cigarette. He did not talk to

9
Sherry at that time. He testified that the police questioning did not last very long. After

answering questions, he left with Logan and went back to Tori’s house. Boone testified

that after he returned to Tori’s house, Tori called him on the phone and was hysterical.

Later that night, Sherry and her parents came to the trailer. Boone testified that he did not

talk to Sherry about the guns at that time. Boone left Tori’s house and did not stay there

that night.

The day after the murders, Boone spoke to Sherry in the morning. Boone testified

that Sherry told him that she had killed Carey and Charles. Boone told Sherry not to tell

him about it, but Sherry insisted that she needed someone to talk to. Boone said that a

few weeks later, Sherry told him that she hated lying about the murders and that it was

becoming very difficult for her to keep lying.

Boone stated that at some later date, Sherry discussed the murders in detail with

him. She told him that she shot Carey first and that Charles had awakened. She said that

Charles opened his bedroom door to ask her about the noise, and she told him that he was

hearing things and to go back to bed. She told Boone that after Charles went back to

sleep, she entered his room and shot him in the chest. She told Boone she was wearing

a robe at the time of the murders.

After the murders, Sherry took the guns and put them in her truck. Apparently, the

police confiscated Sherry’s truck during the investigation. Boone testified that Sherry was

worried that the police kept the truck for such a long time because gun powder or blood

may have been present in the back of the truck.

Boone testified that he and Sherry spoke to Tori about talking to the police. He said

they told Tori to be careful about what she said to the police. When asked what he did

10
with the guns, Boone stated that he wrapped them in a tarp and buried them under the

garage at Tori’s house. He stated that he burned the paper and the bath robe that the

guns were wrapped in. Boone stated that when Sherry asked him about the guns, he told

her that she did not need to worry about the guns because he had gotten rid of them.

Later, Boone moved the guns to a travel trailer that he owned in Shepherd. After that,

Boone took two of the guns to San Antonio and left them with a friend, Bruce Shipman.

He said he moved the “25.06 . . . [b]ecause I knew that was the gun that she used to kill

them with.”

Boone testified that on March 5, 2003, the police came to Tori’s house and executed

a search warrant to look for credit cards, credit card receipts, and credit card statements.

Sherry was at the house at the time the police arrived. The police discovered that Boone

was in possession of methamphetamine, and he was arrested. The police also recovered

several guns that belonged to Carey Smith. Boone was taken to jail and was interviewed

by the police. After his arrest, he told the police that Sherry had killed Carey and Charles.

He also told the police where to find the guns that Sherry had given him. Boone denied

killing Carey and Charles.

Boone revealed that he was incarcerated at the time of his testimony. On direct

examination by the State, Boone explained that he was testifying pursuant to a plea

agreement:

Q: All right. What are you in jail for right now? What are you charged
with?

A. Currently?

Q: Uh-huh.

A: Felon in possession of a firearm, possession of a controlled
11
 substance.

Q: Okay. Did you have some other charges previously pending against
you that are dismissed now?

A: Yes, sir.

Q: And what was that?

Q: Capital murder times two.

Q: Okay. Now you’re testifying today under a plea agreement, right?

A: Yes, sir.

Q: All right. I want you to tell the jury what that plea agreement is?

A: Plea agreement is to plead to tampering with evidence or felon with
a firearm. I’m on probation. It would be run concurrent with it.

Q: Let’s back up. You’re on probation where?

A: In Kimball County.

Q: Do you know what you’re on probation for?

A: I thought it was felony theft.

Q: Okay. So you’re on probation in Kimball County and you have two
other felony charges here. And what is going to happen on those
charges if you—as part of your agreement to testify?

A: I’ve got TDC time coming.

Q: How much?

A: Two years.

Q: You going to get credit for the time you have been in jail?

A: Yes, sir.

Q: So, you got two years confinement with about twenty months credit?

A: Yes, sir.

12
 Q: And what about the Kimball County case? Is there an agreement to
take care of that, also?

A: Yes, sir. To run concurrent.

Q: That means that it all runs together.

A: Yes, sir.

Q: So the net effect is you’re going to get two years in prison and you
have already done twenty months of it?

A: Yes, sir.

The defense then called Boone during its case in chief. Defense counsel also

inquired into the plea bargain:

Q: You already made your deal haven’t you?

A: Yes, sir.

Q: You went, did you not, from a capital murder times two indictment to
going home in March don’t you?

A: Yes, sir.

....

Q: And the reason you sung like a canary is because you were in the
ringer on March 5th, 2003, weren’t you?

A: I was in the what?

Q: In the ringer?

A: In the ringer?

Q: You bet you. You’re fixing to go down weren’t you?

A: Yes, sir.

Q: You going back—you going to the pen weren’t you? Weren’t you?

A: Yes, sir, I guess so.

13
C. The Jury Charge

When the trial court presented its proposed jury charge to the parties, Sherry

objected that the proposed charge included an instruction that Boone was an accomplice

as a matter of fact instead of as a matter of law. She also requested an instruction that

Boone was an accomplice as a matter of law. The trial court overruled the objection,

refused Sherry’s requested instruction, and instructed the jury to determine whether Boone

was an accomplice as a matter of fact:

You are instructed that you cannot find the defendant guilty based upon the
testimony of an accomplice witness unless that testimony is corroborated by
other evidence which tends to connect the defendant with the commission
of the offense.

An “accomplice witness” is a person who has participated with someone else
before, during, or after the commission of the crime for which the defendant
stands charged. A witness is not an accomplice witness merely because he
or she knew of the offense and did not disclose it, or even concealed it.
“Corroborate” means to confirm. In determining whether an accomplice has
been corroborated, you must first assume the testimony of the accomplice
has been removed from the case. You must then determine whether there
is any remaining evidence which tends to connect the defendant with the
commission of the crime.

....

Now, therefore, if you find from the evidence that Daniel Glen Gardner, AKA
Boone Gardner, is an accomplice witness, then you cannot convict the
defendant based upon his testimony; unless such testimony is corroborated
by other independent evidence which tends to connect the defendant with
the crime charged; and then you must believe his testimony is truthful and
shows the guilt of the Defendant as charged in the indictment; and from all
the evidence you must believe beyond a reasonable doubt that the
defendant is guilty of the offense charged against her; or, if you have a
reasonable doubt thereof, you will acquit the defendant.

The jury found Sherry guilty, and the trial court assessed punishment at life in prison.

D. The Accomplice Witness Rule

The accomplice witness rule is a statutorily imposed requirement—it is not derived
14
from federal or state constitutional standards. Druery v. State, 225 S.W.3d 491, 498 (Tex.

Crim. App. 2007); Korell v. State, 253 S.W.3d 405, 409 (Tex. App.–Austin 2008, pet. filed).

Texas Code of Criminal Procedure article 38.14 provides:

A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the
offense committed; and the corroboration is not sufficient if it merely shows
the commission of the offense.

TEX . CODE CRIM . PROC . ANN . art. 38.14.

The reason for the accomplice witness rule is that “the testimony of an accomplice

witness is inherently untrustworthy and should be received and acted on with caution

because it is ‘evidence from a corrupt source.’” Korell, 253 S.W.3d at 405 (quoting Walker

v. State, 615 S.W.2d 728, 731 (Tex. Crim. App.1981)). In particular, the accomplice

witness rule recognizes that “accomplices often have incentives to lie, such as to avoid

punishment or shift blame to another person.” Blake v. State 971 S.W.2d 451, 454 (Tex.

Crim. App. 1998). As Wigmore explained,

[t]he reasons which have led to this distrust of an accomplice's testimony are
not far to seek. He may expect to save himself from punishment by
procuring the conviction of others. It is true that he is also charging himself,
and in that respect he has burned his ships. But he can escape the
consequences of this acknowledgment, if the prosecuting authorities choose
to release him, provided he helps them to secure the conviction of his partner
in crime.

7 Wigmore, Evidence § 2057 (Chadbourn rev.1978), at 417; see Korell, 253 S.W.3d at 409

n.3.

The jury is the judge of the credibility of the accomplice witness. Blake, 971 S.W.2d

at 454. However, the jury must be appropriately instructed as to how it may consider the

testimony. If a witness’s status as an accomplice is established as a matter of law, the trial

court is required to instruct the jury that it may only consider the accomplice’s testimony
15
if it also finds sufficient evidence that tends to connect the defendant to the crime. Id. at

455; see also Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). If the

evidence demonstrating that the witness was an accomplice is conflicting, or there is some

doubt that the witness was an accomplice, the trial court must include the definition of

“accomplice” in the instructions and instruct the jury that if it finds that the witness is an

accomplice, it may consider the accomplice’s testimony only if it first finds there is evidence

tending to connect the defendant to the crime. Blake, 971 S.W.2d at 455.

E. Was Boone an Accomplice as a Matter of Fact or as a Matter of Law?

An “accomplice” is a person who “participates before, during, or after the

commission of the crime.” Id. at 454. The court of criminal appeals has held on numerous

occasions that “a person is an accomplice if he or she could be prosecuted for the same

offense as the defendant, or a lesser included offense.” Id. at 454-55. An indictment for

the same or a lesser included offense is not necessary to a finding that the witness was

an accomplice—what matters is whether the evidence in the record shows that the witness

could have been prosecuted with the offense. Id.

Saying, however, that an indictment is not necessary to a finding of accomplice-

witness status is not to say that it is not sufficient to support such a finding. In fact, both

the State and Sherry agree that Texas law is well-established in this regard—when a

witness testifies and is under indictment for the same offense or a lesser included offense,

the witness is an accomplice as a matter of law. Druery, 225 S.W.3d at 498; Cocke v.

State, 201 S.W.3d 744, 747-48 (Tex. Crim. App. 2006); Ex parte Zepeda, 819 S.W.2d 874,

876 (Tex. Crim. App. 1991) (citing East v. State, 702 S.W.2d 606, 616 (Tex. Crim. App.

1985)); Adams v. State, 180 S.W.3d 386, 415 (Tex. App.–Corpus Christi 2005, no pet.).

16
Additionally, both parties agree, and it is well-established law, that when a witness has

been charged with the same offense as the defendant, but the indictment is dismissed

pursuant to a plea agreement under which the witness agrees to testify against the

defendant, the witness remains an accomplice as a matter of law even though the

indictment is no longer pending. Blake, 971 S.W.2d at 462 (Mansfield, J., dissenting)

(citing Stiles v. State, 232 S.W. 805, 806 (1921)); Durham v. State, 7 S.W.2d 92, 93 (Tex.

Crim. App. 1928); Oates v. State, 86 S.W. 769, 771-72 (Tex. Crim. App. 1905); Barrara v.

State, 42 Tex. 260 (Tex. 1874); Jones v. State, 195 S.W.3d 279, 290 n.12 (Tex. App.–Fort

Worth 2006), aff’d, 235 S.W.3d 783 (Tex. Crim. App. 2007); see also Burks v. State, No.

04-01-00041-CR, 2002 WL 1758292, at *4 (Tex. App.– San Antonio July 31, 2002, no pet.)

(not designated for publication); Sanchez v. State, No. 04-97-00285-CR, 1998 WL 876924,

at *3-4 (Tex. App.–San Antonio Dec. 16, 1998, pet. dism’d) (not designated for

publication). But see Moore v. State, 984 S.W.2d 783, 786-88 (Tex. App.–Waco 1999, no

pet.)

Sherry argues that Boone was indicted for the capital murder of Carey and Charles

and that Boone testified as part of a plea bargain with the State to reduce his charges.3

Therefore, he was an accomplice as a matter of law. The State concedes that Boone was

charged with the murders,4 but it argues that the charges were dismissed for insufficient

3
At oral argum ent, Sherry’s counsel stated that if this Court believes that Boone did not testify in
exchange for a reduced sentence, then the Court “m ust also believe in the tooth fairy.”

4
At oral argum ent, the State responded to Sherry’s argum ent by stating that “a grand jury would indict
a ham sandwich.”
17
evidence before Sherry’s trial, pointing to testimony from Officer Johnny Martinez.5 The

State argues that there is no evidence in the record to demonstrate that Boone was

testifying pursuant to a plea agreement whereby his charges were reduced in exchange

for his testimony against Sherry. The State points to several cases that have held that

when a co-indictee’s charges have been dismissed, and there is no agreement with the

State to testify against the defendant in exchange for the dismissal of the charges, the

witness is no longer an accomplice as a matter of law. See Garza v. State, 296 S.W.2d

267, 269 (Tex. Crim. App. 1956); Burks, 2002 WL 1758292, at *4 (“If the indictment is not

dismissed in exchange for testimony against the accused, the witness is not an accomplice

as a matter of law.”); Edwards v. State, No. 03-97-00587-CR, 1999 WL 959166, at *10

(Tex. App.–Austin Oct. 21, 1999, no pet.) (not designated for publication). In other words,

the State retains control over the witness’s status so long as there is no plea bargain that

requires the accomplice’s testimony against the accused. Thus, under these

circumstances, the State argues that Boone was not an accomplice as a matter of law.

We disagree with the State’s characterization of the evidence below. The record

indicates that Boone testified pursuant to a plea agreement, and there is no support in the

record before us that the charges against Boone were dropped for “insufficient evidence.”

Officer Martinez testified that before Boone gave his statement implicating Sherry, Boone

asked whether he could get out of jail if he talked to the police. Officer Martinez denied

making Boone any promises, but he admitted telling Boone that “it depends on what you

5
W e note that in Blake v. State, the court of crim inal appeals expressed concern with the State’s
apparent ability to m anipulate the accom plice witness rule by delaying or foregoing proceedings against an
accom plice witness. Blake v. State, 971 S.W .2d 451, 457-58 (Tex. Crim . App. 1998). W e question the
validity of the State’s position in light of Blake, but we need not decide the propriety of such tactics, as the
analysis that follows dem onstrates.
18
tell us.” As set forth above, Boone was also examined extensively about his plea bargain

with the State. He candidly admitted that he was testifying “under a plea agreement.”

Moreover, when defense counsel asked if Boone “sang like a canary” because he was

“fixing to go down,” Boone agreed.

The only evidence in the record that the State points to in support of its argument

was testimony from Officer Martinez, but contrary to the State’s argument, Officer Martinez

did not testify that the State’s case was dismissed for insufficient evidence. In fact, he

disclaimed any knowledge of the status of Boone’s charges. During his examination, the

following exchange occurred:

Defense: And Daniel Boone Gardner was indicted?

....

Defense: On two counts of capital murder, was he not, for the death of Carey
Smith and Charles Smith?

Martinez: I know he was indicted. I’m not sure exactly what day it was.

Defense: Okay. But it was for capital murder was it not? For Carey and
Charles Smith?

Martinez: I believe it was.

....

State: You’re aware that Daniel Gardner’s indictments were dismissed for
insufficient evidence?

Martinez: No, I was not.

State: Okay.

....

Defense: Nobody discussed that with you?

Martinez: No, sir.
19
 Defense: The dismissal?

Martinez: I had no idea.

Because the evidence in the record clearly demonstrates that Boone was charged

with the capital murders of Carey and Charles, and that those indictments were dismissed

in exchange for a guilty plea to other offenses and in exchange for Boone’s testimony,

Boone was an accomplice as a matter of law. Durham, 7 S.W.2d at 93; Stiles, 232 S.W.

at 806; Oates, 86 S.W. at 771-72; Jones, 195 S.W.3d at 290 n.12; see also Burks, 2002

WL 1758292, at *4 (not designated for publication); Sanchez, 1998 WL 876924, at *3-4

(not designated for publication). Accordingly, the trial court erred in allowing the jury to

determine Boone’s accomplice status.

II. Evidence Tending to Connect Sherry to the Crime

We next determine whether, excluding Boone’s testimony, there was evidence that

tended to connect Sherry to the crime. “In conducting a sufficiency review under the

accomplice-witness rule, a reviewing court must eliminate the accomplice testimony from

consideration and then examine the remaining portions of the record to see if there is any

evidence that tends to connect the accused with the commission of the crime.” Solomon

v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001) (citing Cook v. State, 858 S.W.2d

467, 470 (Tex. Crim. App. 1993)). The inquiry is whether the evidence “tends to connect”

the defendant to the crime, not rational sufficiency to support a finding of guilt. Id. In other

words, the corroborating evidence need not be sufficient by itself to establish guilt. Id.

“The non-accomplice evidence does not have to directly link appellant to the crime, nor

does it alone have to establish appellant's guilt beyond a reasonable doubt; rather, the

non-accomplice evidence merely has to tend to connect appellant to the offense.” Burks
20
v. State, 876 S.W.2d 877, 888 (Tex. Crim. App. 1994) (citing Reed v. State, 744 S.W.2d

112, 126 (Tex. Crim. App. 1988)). If the evidence does not meet this standard, the

conviction must be reversed and a judgment of acquittal must be rendered by the trial

court. Munoz v. State, 853 S.W.2d 558, 564 (Tex. Crim. App. 1993); Ex parte Reynolds,

588 S.W.2d 900, 902 (Tex. Crim. App. 1979); Sestric v. State, 1 S.W.3d 921, 924 (Tex.

App.–Beaumont 1999, no pet.).

The State contends that Sherry had the motive and opportunity to kill Carey and

Charles and that her demeanor and actions before and after the murders tend to connect

her to the crime. The State also focuses on (1) testimony regarding the bath robe and the

freezer paper that was wrapped around the guns Sherry allegedly gave to Boone, (2)

testimony regarding Boone’s sale of the guns after the murders, and (3) crime scene

forensics.

1. Evidence of Motive and Opportunity

First, the State argues that Sherry had a motive and the opportunity to commit the

murders. The State theorizes that Sherry was in a loveless marriage of convenience, was

hiding credit card debt from Carey, and stood to inherit all the Smiths’ property. It reasons

that Sherry was afraid that Carey would find out about the credit card debt and that Sherry

was falling back in love with Boone. Thus, Sherry had a motive to kill Carey and

Charles—money and a way out of her marriage. Additionally, the State argues that Sherry

was the last person to see Carey and Charles alive, that Sherry was at home around the

time of the murders, and that Boone never left Tori’s house the night of the murders.

According to the State, comparing Boone’s time-line to Sherry’s time-line, it was impossible

for Boone to commit the murders.

21
 The State offered testimony from Debra Cargill, who was a home respiratory

therapist responsible for monitoring a breathing machine for Carey. Carey had been

diagnosed with obstructive sleep apnea. Cargill testified that prior to the murders, she

went to the Smith residence. She testified about a conversation that she had with Sherry:

Q: Okay. And at that point did [Sherry] make any comment that you
remember?

A: Yes. I just expressed how nice the place looks and she made the
statement that one day this would be hers.

Q: Okay. And did she say anything else beyond that?

A: You know, I thought maybe I misunderstood her, and then in my mind
I thought well, maybe something is going on with Carey.

....

Q: What was her demeanor when she talked to you about [Boone]?

A: She seemed somewhat happy.

Q: But you didn’t go into deep discussion about that?

A: Well, she mentioned that she—there was a time where I think Carey
and his dad had been sick and, you know, she was just tired. And
she mentioned that she wanted to—this was I don’t think related to
[Boone], but wanted to just go somewhere and get away. Which I
didn’t think was strange because, you know, she had a lot of
responsibility and she just wanted to get away. And she made the
statement that she needed to get away, whether she had to go with
everybody sick or not, she just needed that break to get away.

Q: Okay. And when she made the statement to you about this was all
going to be hers, did she talk about anything else in that regard or—

A: Well, she mentioned the equipment outside; hay balers, other
equipment.

Q: Did she say anything else about that?

A: She did. But you know, at the time it was so unusual that I was in my
mind trying to understand what was going on and trying to rationalize
22
 as to, like I said, maybe that Carey was sick or—I was trying to
understand all of this.

Jerry Simcik was also a home health care nurse who was responsible for caring for

Charles. Simcik testified about Sherry’s relationship with Carey:

Q: And during the time period that you were going to the home did you
have a chance to observe Mrs. Smith’s interaction with [Charles]?

A: Several times.

Q: All right. And what kind of relationship did you see between [Charles]
and [Sherry]?

A: There was a lot of tension. There was a lot of stress in the
household. She would get irritated with Charley. . . .

Fred Neal testified that he was related to Charles and Carey and was also the

family’s attorney. He testified that in 2001, he prepared a will for Carey. At that time,

Carey was married to Sherry. The will left all of Carey’s property to Sherry and made her

the executor. Several years earlier, he had prepared a will for Charles. Charles’s will left

everything to his wife, Eileen, if she was living. Because Eileen predeceased Charles, the

will provided that Carey would inherit the Smith residence. Neal testified that because

Charles and Carey died at approximately the same time, Carey would not inherit anything

from Charles. The Smith residence would pass to Carey’s brother under a residual clause.

Neal opined, however, that to a lay person, the wills indicate that if Charles died, his

property would pass to Carey, and if Carey died, the property would pass to Sherry.

Teresa Knott testified that she was a member of the same church that Charles and

Carey attended. She testified that Charles was in poor health, and that Sherry and Carey

shared responsibility for caring for Charles. She testified that caring for Charles became

stressful for Sherry as his needs increased. She also testified about Sherry’s relationship

23
with Carey:

Q: Did Sherry ever talk to you about Carey?

A: Yes.

Q: Did she ever describe him to you physically or give you an explanation
about their relationship?

A: Yes. You know, his size. She explained they sleep in separate
bedrooms, partially because of his size.

Finally, Tori testified. She testified that she was three or four years old when Sherry

and Boone divorced, and she lived with Boone after the divorce. Tori stated that after

Logan was born, she set up a travel trailer outside the Smith residence to be close to

Sherry. The travel trailer remained on the Smith property for approximately three or four

months during 2001. Thereafter, Tori moved to a mobile home down the road, where she

was living at the time of the murders. Sherry and Boone were cooperating to help Tori

financially. In July or August 2002, Boone began staying with Tori at the mobile home a

couple of weeks out of the month. Boone helped Tori with the rent and electric bills.

Sherry babysat Logan while Tori worked.

She testified that Charles was in poor health and that Sherry cared for him. Sherry

also told Tori that Charles “wasn’t going to live much longer.” Tori said that whenever

Charles went to the hospital, which he did occasionally, Sherry tried to prepare Tori for the

possibility that Charles may die. Sherry told Tori that when Charles passed away, Carey

would not live much longer, and “everything would be hers.”

Tori testified that Sherry’s marriage to Carey was one of convenience. She stated

that Carey and Charles needed Sherry to take care of them, and Sherry felt “needed.” At

first, Sherry seemed content with her situation. Tori stated that later on, Sherry was

24
“frustrated” and “wasn’t very happy” with Carey and Charles because they called “picking

all the time asking for her to come home and when is she coming home.” She testified that

Sherry did not like the fact that they were keeping tabs on her. Tori stated that when Carey

called her house looking for Sherry, Sherry “talked kind of ugly” to him. Tori said that on

one occasion, Sherry discussed leaving Carey, but she “didn’t know where she would go

or what she would do” because “she didn’t have a job.” Sherry told Tori that Carey was not

in good health and that he was “big and fat.”6

Tori testified that when Boone first started staying with her, Sherry stayed away from

Tori’s house. But after some time, Sherry started to come over more frequently. Tori

testified that later on, Sherry “always wanted to be where [Boone] was. She also wanted

to talk to him and just kind of follow him around. And he was—like she really wanted his

attention.” Tori testified that Sherry told her that she had kissed Boone and that she still

loved him. Tori testified that the week after the murders, both Boone and Sherry stayed

at Tori’s house but in separate bedrooms.

Tori also stated that Sherry had obtained credit cards in Carey’s name, and Sherry

used the credit cards to help Tori financially. The bill for one of the credit cards was sent

to Tori’s house, and Tori believed that this particular credit card was in Sherry’s name. The

State introduced tape-recorded statements wherein Sherry admitted to having several

credit cards that Carey did not know about. According to the State’s exhibits, the credit

card debt totaled over $42,000.00, and Sherry was behind on the payments.

With regard to Sherry’s opportunity to kill Charles and Carey, Tori testified that on

6
The m edical exam iner, Doctor Joni McClain, testified that Carey was 5 feet and 11 inches tall and
weighed 385 pounds.
25
December 6, 2002, she worked at the Diamond Shamrock from 4:00 p.m. until after

midnight. Tori stated that Sherry babysat Logan that night. At 12:45 a.m., Tori finished

working, and Sherry called, asking where she was. Tori stated that Sherry was mad

because she had to leave early in the morning to go to Huntsville. Tori stated that it was

unusual for Sherry to be angry about Tori’s lateness. Tori said she went to the Smith

residence around 1:00 a.m., and Sherry brought Logan out to the truck.

Tori said that after leaving the Smith residence, she went home. Boone was there

when she arrived. She stated that she went to bed about 2:30 or 3:00 a.m., and she

believed that Boone went to bed around the same time. She stated that around 5:00 or

6:00 a.m., she heard Boone stirring in the kitchen, but she went back to sleep after that

and slept until 10:00 a.m. Tori stated that when she woke up, Boone was still there.

Boone’s truck was a diesel, and if he had left during the night, Tori believed she would

have heard the truck. She did not hear the truck start during the night.

On cross-examination, however, Tori admitted that she could not be sure that Boone

had stayed at her house the entire night. Tori testified Boone had a four-wheeler at her

house that was working at the time of the murders. She testified that if someone had

started the four-wheeler, she would not have heard it.

Sherry concedes that the evidence in the record shows that she had a motive and

the opportunity to commit the crime. She argues, however, that this evidence alone is not

enough to corroborate Boone’s testimony. We agree. While motive and opportunity may

be considered along with other factors, the Texas Court of Criminal Appeals has repeatedly

held that motive and opportunity alone are insufficient to corroborate an accomplice’s

testimony. Reed, 744 S.W.2d at 127; Paulus v. State, 633 S.W.2d 827, 846 (Tex. Crim.

26
Ap. 1981). As Sherry points out, when the spouse of a murder victim is a suspect in the

case, there will almost always be some evidence that could be used to show a motive and

an opportunity to kill the victim. For example, spouses frequently craft their wills to leave

all their property to the other spouse, and quite a few people are in loveless marriages of

convenience. Furthermore, spouses typically have the most access to the other spouse,

and therefore, the most opportunity to commit a crime against a spouse. If this type of

evidence alone was sufficient to convict a spouse, our jails would be full of husbands and

wives who were beneficiaries under their spouse’s will and did nothing more than express

dissatisfaction with their marriage on occasion. Moreover, although evidence of an affair

during marriage may provide a motive, an affair alone is not enough to connect that person

to his or her spouse’s death. See Reed, 744 S.W.2d at 126-27. Thus, we will not consider

this evidence unless there is something more in the record that tends to connect Sherry

to the crime.

The dissent concedes that evidence of motive and opportunity alone is not sufficient

to connect Sherry to the murders. Nevertheless, the dissent points to several variations

of this type of evidence that it argues independently establish Sherry's connection to the

murders. First, the dissent argues that the “presence of the accused with the accomplice

witness, when coupled with other circumstances, may be sufficient corroboration,” citing

Dillard v. State, 550 S.W.2d 45, 51 (Tex. Crim. App. 1977) and Nelson v. State, 542

S.W.2d 175, 177 (Tex. Crim. App. 1976). It argues that Sherry was in Boone's presence

on numerous occasions before the murders, on the day of the murders, and after the

murders; therefore, this fact tends to connect Sherry to the murders.

The important part of the quoted language is “when coupled with other

27
circumstances.” For example, in Dillard, the defendants were arrested for robbery less

than fifteen minutes after the robbery occurred. 550 S.W.2d at 49. At the time of the

arrest, the defendants were with the accomplice witness a short distance away from the

location of the robbery, and one of the defendants had $75 in his pocket, which was the

exact amount of money taken during the robbery. Id. Thus, in that case, the defendant’s

presence with the accomplice witness immediately after the robbery was significant when

viewed in light of the other evidence which included the fruits of the crime. Id. at 51.

In Nelson, the court further explains when and how an accused’s presence with the

accomplice before or after a crime can be used as corroborating evidence. 542 S.W.2d

at 177. In that case, the defendant was accused of burglary of a building and arson. Id.

at 176. When investigating the burglary and arson, the police determined that a medallion

was missing from the building. Id. The defendant and an accomplice witness were

questioned at the accomplice witness’s home, and the police noticed the missing medallion

laying in the yard several feet away from both the defendant and the accomplice witness.

Id. The defendant was convicted based on the accomplice witness’s testimony. Id. On

appeal, the defendant argued that his mere presence with the accomplice was insufficient

to connect him to the crime, and the Texas Court of Criminal Appeals agreed. Id. at 177.

The court held that the mere presence of an accused with an accomplice witness

before or after a crime is insufficient to tend to connect the defendant with the crime. Id.

It may only be considered if other suspicious circumstances are present. Id. For example,

the court noted that “[t]he record is devoid of any additional evidence of an inculpatory

nature tending to connect the accused with the commission of the offense of burglary of

a building or the offense of arson, such as being in the company of the accomplice near

28
the scene of the crime at the time of its commission at an unusual hour, flight or actual

possession of stolen property.” Id. The court held that merely discovering the fruits of the

crime in a yard several feet away from the defendant was not enough to sustain the

conviction, and the court reversed. Id.

Here, Sherry was admittedly in Boone’s presence on numerous occasions before

and after the crime. She has a child and a grandchild with the man. Sherry and Boone

were both assisting Tori. There is nothing unusual or suspicious about her presence with

Boone on these occasions, and there is a reasonable explanation for her presence.7 See

Leal v. State, 782 S.W.2d 844, 852-53 (Tex. Crim. App. 1989) (holding contact with family

members not corroborating evidence); Morin v. State, 960 S.W.2d 132, 136 (Tex.

App.–Corpus Christi 1997, no pet.) (holding that evidence that appellant was with

accomplice on day of murder proved nothing because the “two were friends who saw each

other almost daily”); Cf. Thomas v. State, 993 S.W.2d 392, 393, 396 (Tex. App.– Eastland

1999, no pet.) (holding that unreasonableness of the hour and a lack of apparent reason

for defendant’s presence with accomplices near crime scene can furnish sufficient

corroboration). As for the fact that Sherry may have carried a torch for Boone, this is

merely motive evidence. Accordingly, we will not consider it unless there is something

more in the record.

7
Courts reject “guilt by association” as corroborating evidence because if “such testim ony [placing
the defendant and the accom plice together] be corroborative, then accom plices m ight be held corroborated
in their claim of the guilt of any person upon whom they m ight seek to fasten a crim e, by m ere proof that such
parties had been seen together.” Powell v. State, 219 S.W .3d 498, 505 (Tex. App.–Fort W orth 2007, pet.
ref’d) (quoting W eatherred v. State, 100 Tex. Crim . 199, 272 S.W . 471, 472 (1925)). This is precisely what
we believe happened in this case.

29
 Second, the dissent argues that “[p]roof that the accused was at or near the scene

of the crime at or about the time of its commission, when coupled with other suspicious

circumstances, may tend to connect the accused to the crime so as to furnish sufficient

corroboration to support a conviction.” See Brown v. State, 672 S.W.2d 487, 489 (Tex.

Crim. App. 1984). Again, there must be “other suspicious circumstances” that would allow

the Court to consider this evidence. Id. For example, in Brown, the court found that the

“suspicious circumstances” surrounding the defendant’s presence at the scene of the crime

included that the defendant repeatedly circled the park where the robbery took place,

appeared to panic and then drove away when the police appeared, and denied being with

the accomplice witnesses that morning when questioned by a police officer. Id.

The dissent reasons that because Sherry was at home for approximately three

hours while Charles and Carey slept, and because Charles and Carey were found

murdered in their beds, Sherry placed herself at the crime scene relative to the time of the

murders. Sherry lived in the house with Charles and Carey. See Cruz v. State, 690

S.W.2d 246, 251 (Tex. Crim. App. 1985) (holding appellant’s presence on victim’s property

was insignificant because appellant lived on premises). Sherry had a perfectly legitimate

reason for being at the house in the middle of the night. Id. The fact is that the time of

death was never established with any certainty at trial. The murders could have easily

occurred after Sherry left the home and went to Wal-Mart. See Badillo v. State, 963

S.W.2d 854, 859 (Tex. App.–San Antonio 1998, pet. ref’d) (holding fact that witness saw

defendant at store during day when murder occurred did not corroborate accomplice

witness testimony where State did not show the time of the murder and accomplice

witnesses’ testimony was inconsistent as to time of murder). Accordingly, there are no

30
additional “suspicious circumstances” surrounding her presence at the Smith home. See

Brown, 672 S.W.2d at 489. The dissent’s argument is a mere recitation of her opportunity

to commit the murders, which without more, is not sufficient to connect Sherry to the

murders.

2. Sherry’s Demeanor and Actions Before and After the Murders

Second, the State argues that Sherry (1) did not act as a normal person would act

on the day of the murders because she went to Wal-Mart at 4:00 a.m.; (2) acted unusually

upon discovering the bodies; (3) was aware that guns were missing from the house and

that Charles and Carey had been shot before that information was officially released to her;

(4) did not act like a grieving widow after the murders and was attempting a relationship

with Boone, and (5) told her daughter Tori to be careful of what she said to the police.

a. Sherry’s trip to Wal-Mart at 4:00 a.m.

The State argues that Sherry acted unusually because she went to Wal-Mart at 4:00

a.m. the morning of the murders. Wal-Mart surveillance established Sherry’s presence that

morning, and the evidence demonstrated that Sherry purchased several items. Although

the State does not specifically argue as much, the dissent reasons that the “logical

conclusion from Sherry’s conduct . . . is that she was trying to establish an alibi.” The

dissent cites Beathard v. State, 767 S.W.2d 423, 430 (Tex. Crim. App. 1989). We

disagree with the dissent’s analysis.

The establishment of an alibi is not the only reason that people go to Wal-Mart at

4:00 a.m. Wal-Mart obviously has enough customers throughout the night to justify

remaining open 24 hours a day. It is equally as logical that someone would go to Wal-Mart

early in the morning when they have a busy day ahead and lack any other time to do their

31
shopping. In fact, that is exactly the reason that Sherry provided for her trip to Wal-

Mart—she was traveling to Houston that day to visit a sick relative.

Beathard does not require a contrary conclusion. 767 S.W.2d at 430. In Beathard,

the defendant was accused of assisting his accomplice in murdering the accomplice’s

family. Id. at 424. The accomplice testified that he and the defendant traveled to

Nacogdoches the day of the murders and went to the Stephen F. Austin University library

to check out books in order to establish an alibi for the day of the murders. Id. at 425. The

defendant had formerly been a student at the university. Id. The defendant’s girlfriend

testified that on more than one occasion, “she heard [the defendant] and [the accomplice]

discussing a plan to commit the ‘perfect murder.’” Id. at 429. She testified that the

defendant had not been to the library since he dropped out of school; nevertheless, he

went to the library the week of the murders. Id. at 430. The court held that “[p]roof that the

accused was at or near the scene of the crime at or about the time of its commission, when

coupled with other suspicious circumstances, may tend to connect the accused to the

crime so as to furnish sufficient corroboration to support a conviction.” Id. “While not

independently sufficient to corroborate [the accomplice’s] testimony, [the girlfriend’s]

testimony provides a ‘suspicious circumstance’ which tends to corroborate the testimony

by suggesting the existence and implementation of a plan.” Id.

The defendant’s trips to the library were insignificant without the testimony from the

defendant’s girlfriend that he and his accomplice had a plan to commit murder. Id. There

is no such testimony in this case. No one, other than Boone, testified that Sherry had a

plan to commit murder. Accordingly, Beathard does not require this Court to find that

Sherry had a “plan” to commit murder merely because she went to Wal-Mart early in the

32
morning.

b. Sherry’s Actions Upon Discovering the Bodies

The State argues that Sherry did not act as a normal person would have acted

because when she first entered Carey’s room, she believed him to be dead but never

checked him or touched him. During the December 7 interview, Sherry told the officers

that she had not fully entered the bedrooms to touch the bodies to confirm that they were

dead. The State argues that the crime scene photographs in the record show that it would

have been very difficult for a person to know that Carey was dead by just looking through

the doorway. The State reasoned that Sherry could not have known that Carey and

Charles had been shot by merely entering the bedrooms.

Contrary to the State’s arguments, State’s Exhibit 14 is a photo of Charles’s room

as it was discovered by the police, while State’s Exhibit 15 is a photo of Carey’s room as

it was discovered by the police. Officer Todd Greene testified that both photos show the

view from the hallway of the Smith residence and reflect the views that a person would

have if they had not fully entered the bedrooms. While State’s Exhibit 14 has a dark

contrast and is not very clear, blood spatter is clearly visible on the pillow underneath

Charles’s head. State’s Exhibit 15 is unclear as to whether any blood was visible from the

hallway.

Sherry explained to the officers, however, that she saw blood coming out of Carey’s

nose. Additionally, Officer Martinez testified that when he first entered the crime scene and

walked into Carey’s room, he noticed a small pool of blood coming from Carey’s facial

area. When he entered Charles’s room, he saw blood on the bed and blood pooling on

the floor. He stated that as he walked toward Charles, he knew that he was “obviously

33
deceased” and that “he had some type of injuries to his chest.” That the crime scene

photos, taken by the police, may tend to hide the extent of the victims’ injuries is not

evidence that tends to connect Sherry to the crime, particularly in light of the other

testimony from the police officers regarding Sherry’s report and the officers’ own views of

the crime scene. See Paulus, 633 S.W.2d at 844 (evidence must do more than “point the

finger of suspicion towards an accused”).

The dissent argues that this case is similar to Reed v. State, 744 S.W.2d at 127.

We disagree. In Reed, the defendant was accused of killing his wife. Id. His accomplice

testified that after murdering his wife, the defendant pushed her “face first” out of a vehicle

onto the side of the road. Id. Later, after the body was discovered, a detective took the

defendant to the location of the body so that he could identify her. Id. The detective

testified that the victim’s clothing was up around her head, her face was turned away from

the defendant, and her hair covered her face. Id. The defendant approached the body

until he was about six or seven feet away, and he identified her without ever seeing her

face. Id. Another officer opined that viewing the body that way, a person could not tell if

the victim was male or female and could not have known the victim’s identity. Id. at 127-

28. The court relied on this evidence, along with substantial other corroborating evidence,

to sustain the conviction. Id.

Contrary to the dissent’s argument, Sherry did explain to the police why she

believed Cary and Charles were dead when she viewed them in their beds. Sherry told the

officers that she saw blood coming from Cary’s nose. Officer Martinez admitted that he

saw the blood as well. Neither the crime scene photos nor any other evidence in the

record supports the State’s theory that Sherry could not have known that Carey and

34
Charles were dead except if she killed them herself. Accordingly, this evidence does not

tend to connect Sherry to the crime.

c. Sherry’s Knowledge of the Missing Guns

Next, the State argues that Sherry knew that guns were missing from the house

before anyone told her. Deputy Angela Schroeder interviewed Sherry when she first

arrived on the scene on December 7. She testified that Sherry mentioned guns in the

house but discussed them in the past tense. Deputy Schroeder testified that she never

told Sherry the guns were missing. Furthermore, at the December 7 interview with the

police, the officers asked Sherry what guns might have been present at the house. Sherry

described several guns, including one that was in a black gun case in the utility room.

Officer Martinez told Sherry that there was no black gun case found at the residence.

Sherry then stated, “The guns are gone, aren’t they?” The State argues that this question

indicates that Sherry knew the guns were gone before anyone told her.

Sherry’s question, however, does not reveal that Sherry was in possession of facts

that only the killer would know. See Wincott v. State, 59 S.W.3d 691, 700-01 (Tex. App.–

Austin 2001, pet. ref’d) (holding that because defendant was part of group of friends that

included alleged accomplice, his knowledge of certain facts about the crime did not

necessarily indicate guilt); cf. Green v. State, No. 14-03-00276-CR, 2004 WL 612956, at

*4 (Tex. App.–Houston [14th Dist.] Mar. 30, 2004, pet. ref’d) (not designated for

publication) (holding evidence sufficient to corroborate where defendant’s recorded

conversations with accomplice indicated specific knowledge of the facts of the crime and

defendant’s fear that the phones were tapped). Rather, Sherry’s question appears to be

a logical, follow-up question, given the fact that she knew that Carey and Charles were

35
dead, that the officers were asking questions about the location of the guns, and that the

officers informed her that a gun case was missing. Accordingly, we hold that her

statements do not connect her to the crime.

The dissent argues that Sherry knew about and had access to the guns in the Smith

home. It further argues that “a comparison of the bullets recovered from the murder

victims to those bullets from the guns recovered from Boone showed that the recovered

bullets from the guns had the same general characteristics as the 25.06 rifle recovered

from the accomplice, Boone, and that the recovered bullets could have come from the

25.06 rifle.”

The court of criminal appeals has expressly rejected this type of testimony. As the

court explained in Beathard, corroborating evidence must do more than confirm a detail

of the accomplice’s story. 767 S.W.2d. at 428. It must corroborate a fact that tends to

connect the defendant to the murders. Id. This is a very important distinction because of

the nature of accomplice witness testimony. Evidence from non-accomplice witnesses that

merely corroborates details of the accomplice witness’s story does not always connect the

defendant to the crime—in many cases, it will only show that the accomplice was aware

of the details of the crime, which will always be true if the accomplice participated in or

committed the crime himself. Id.; see also Badillo, 963 S.W.2d at 858. In Beathard, the

court rejected several pieces of evidence because it only corroborated a detail of the

accomplice’s story. Beathard, 767 S.W.2d at 428. For example, the accomplice testified

that several items were taken from the victims’ residence, and the State located those

items exactly where the accomplice said they would be found. Id. The court held that

while this evidence corroborated details of the accomplice’s story, it did not connect the

36
defendant to the crime. Id.

The court distinguished this type of situation from one where the defendant’s version

of the events, with regard to a particular detail, was directly contrary to the accomplice’s

version of the events. Id. at 430. “Independent evidence which generally tends to prove

that an accomplice witness's version of events is true, rather than the version given by the

defendant, is considered corroborative, even if it concerns a mere ‘detail,’ as opposed to

a substantive link between the defendant and commission of the offense.” Id.

For example, in Beathard, the accomplice testified that the defendant was wearing

overalls, a t-shirt, and a pair of tennis shoes. Id. The accomplice claimed that the

defendant said that he would dispose of the shoes so that any footprints from the scene

could not be matched to his shoes. Id. at 431. The defendant expressly denied that he

made this statement and denied that he had ever owned a pair of shoes like the ones

described by the accomplice. Id. The defendant’s girlfriend, however, “confirmed [the

accomplice’s] description of [the defendant’s] dress and said that, since the day of the

murder she had never again seen these articles of clothing.” Id. The court considered the

girlfriend’s testimony as corroborative, but the only reason that the girlfriend’s testimony

was corroborative was because the defendant expressly denied owning shoes or clothing

similar to those described by the accomplice. Id.

In this case, the fact that the guns taken from the Smith house were recovered from

Boone and may have been used to commit the murders does nothing more than

corroborate a detail of Boone’s story. Sherry did not deny that the guns were taken from

the home. We must be extremely cautious in relying on Boone’s testimony because of his

motive to exonerate himself from his own criminal liability. Accordingly, we attach no

37
significance to this evidence.

d. Sherry’s Demeanor After the Murders

Additionally, the State argues that Sherry did not act like a grieving widow after the

murders. Essentially, the State argues that Sherry did not cry during her interviews with

the police.

Ranger Wells testified that Sherry did not cry during her interviews, and she even

laughed on occasion. Tori testified that she went to pick Sherry up from the police station

the night of the murders. She testified that Sherry was “really, really messed up. Like

maybe she had taken a bunch of her anxiety pills. She wasn’t crying at that point or

anything.” Sherry left with Tori and went to Tori’s house that night. Tori said that Sherry

did not cry much the day after the murders. She also testified that her mother’s reactions

were not typical of someone who was grieving.

We are hesitant to attach a particular significance to this testimony because we

recognize that people deal with grief in many different ways. This evidence is entirely too

speculative to connect Sherry to the murders. See Paulus, 633 S.W.2d at 844

e. Sherry’s Statements to Tori Regarding Police Questioning

The State argues that Sherry told Tori to be careful of what she said to the police,

and this indicates a consciousness of guilt that connects Sherry to the murders. Tori was

questioned on the Monday after the murders. Tori testified that she was scared to be

questioned by the police because she did not want the police to think that Sherry had

anything to do with the murders, and Sherry warned her to be careful of what she said to

the police:

A: I know that I didn’t want to because it terrified me, you know. It
terrified me that anybody would think that she had anything to do
38
 with—

Q: What made you think that they thought she had something to do with
it?

A: Because they had her there questioning her first. And then—at some
point it was said to watch what I say.

....

Q: What did she say to you in regards to you being interviewed by the
police?

A: Well, I expressed that I didn’t want to—you know, this was so hard for
me. I didn’t want to do it again. And she and my dad actually told me
that I didn’t have to.

Q: Okay.

A: And at some point or another she—they all actually told me to watch
what I’m saying because anything I say could make her look guilty
when she is not.

Q: So when you say they all, who is they all said that?

A: She and my dad and my grandmother. I don’t know if it was put
exactly like that from her, but it was just—

[Defense counsel]: Your Honor, I object to what grandmother said as
hearsay.

THE COURT: Sustained.

Q: [By the State] When you say all, specifically Boone and your mother?

A: Yes, sir.

Q: And they said watch what you say because it may make your
mother—how did they say it?

A: Anything that I say can incriminate my mom.

On cross-examination, Tori clarified that Boone was more concerned with her

statements to the police:

39
 Q: They didn’t tell you what to tell the police did they?

A: No. Not what to tell them.

Q: They told you you didn’t have to talk to them if you didn’t want to.
Isn’t that what they said?

A: Correct.

Q: And they also told you been [sic] careful what you say?

A: Correct.

Q: They told you not to offer, volunteer information but answer
questions?

A: Correct.

Q: No one told you to answer questions falsely did they?

A: No.

....

Q: And, in fact, I believe you indicated in your statement of March 28 that
it was Boone who was the more serious about making sure that you
didn’t cooperate with the police fully. Isn’t that what you told them?

A: Yes, sir.

Q: In fact, he got that stern look with you and told you and you knew
when he meant business because you grew up with him?

A: Yes, sir.

Q: And he would get that attitude about him didn’t he?

A: Yes, sir.

Q: And not Sherry did she? Well, who did you point out to the police that
had the stern look?

A: My dad.

Tori later clarified that Boone was concerned that she would say something to incriminate

40
Sherry, not Boone.

Tori further testified that after the police executed the search warrant at her house

in March 2003, Sherry and Boone were both arrested. Tori spoke to Sherry on the phone

while she was in jail. Sherry told Tori that she still loved Boone, and she wanted to know

what Boone had said while he was in jail. Sherry told Tori that the police were trying to turn

them against each other and trying to “make them talk.”

We disagree that Sherry’s statements indicate a consciousness of guilt that tends

to connect her to the murders. As demonstrated above, the record actually indicates that

Sherry and Boone told Tori to watch what she said to the police because it could make

Sherry look guilty “when she was not.” In fact, Tori clarified that Boone was the most

concerned with Tori’s statements to the police. Tori testified that both Boone and Sherry

told her to testify truthfully and did not encourage her to lie. Sherry did not threaten Tori

or ask Tori not to testify. Under these circumstances, Sherry’s statements to Tori do not

connect Sherry to the murders. See Wincott, 59 S.W.3d at 703 (holding that defendant’s

actions asserting his innocence and requesting accomplice to admit he was lying did not

indicate consciousness of guilt).

4. The Bath Robe and Freezer Paper

The State further argues that testimony regarding the bath robe and the freezer

paper in which the guns were wrapped when given to Boone connected Sherry to the

murders. First, the State points to Boone’s testimony that the 25.06 rifle and two spent

shell casings were wrapped in a bath robe. Next, the State points to Tori’s testimony

regarding what Sherry was wearing the night before the murders. Tori testified that when

she picked Logan up from the Smith residence on December 6, Sherry was wearing a

41
house coat. She said it “was something [Sherry] normally wore.” Tori testified that it was

a pale, cotton or terry cloth robe that zipped up the front. She said it was a thick fabric.

Tori stated that after the murders, she never saw the robe again.

On cross-examination, Tori admitted that in prior statements to the police, she had

given inconsistent accounts about what Sherry was wearing the night of December 6.

First, she told police that Sherry was wearing comfortable clothes, like sweat pants. Later,

she told the police that Sherry was wearing a thin, see-through robe. She clarified that she

had been describing a robe that her former step-mother had worn when she was growing

up. The only other testimony in the record regarding the bath robe was Boone’s testimony

that the guns Sherry delivered to him were wrapped in a bath robe. With regard to the

freezer paper, Officer Martinez testified that he found brown freezer paper at the Smith

residence.

We are not at liberty to give this evidence the credence the State attaches to it. The

only testimony linking the bath robe and the freezer paper to the murder weapons in this

case came from Boone, and we must disregard his testimony. Without Boone’s testimony,

the fact that Sherry was wearing a bath robe the night of December 6 and that freezer

paper was found in the Smith house is inconsequential and does not tend to connect

Sherry to the crime. Id. at 700 n.7 (holding that testimony from defendant’s girlfriend that

defendant drove a black truck similar to accomplice’s description of get-away vehicle did

not corroborate accomplice’s testimony—only accomplice’s testimony, which had to be

disregarded, linked vehicle to crime). We are particularly skeptical of this alleged

connecting evidence given that both the bath robe and the freezer paper used to wrap up

the guns after the murders were never recovered because they were allegedly destroyed

42
by Boone.

The dissent again cites to Beathard, arguing that this is “independent evidence that

generally tends to prove that an accomplice witness’s version of the events is true, rather

than the defendant’s version.” 767 S.W.2d at 430. And the dissent again misreads

Beathard. As explained above, evidence that corroborates a mere detail of the

accomplice’s story is only relevant if that particular detail is expressly denied by the

defendant. Id. That is not the case here. Sherry never denied wearing a bath robe the

night of the murders. In fact, Tori testified that the bath robe was something that Sherry

usually wore. Sherry further did not deny that the Smith residence had freezer paper

available. And Boone would have likely known this fact. The dissent’s argument merely

points to a detail of Boone’s story that Boone could have known merely because he

participated in the murders himself. Accordingly, we attach no significance to this

testimony.

5. The Sale of the Guns

The State reasons that Sherry was aware of and was assisting Boone in selling the

guns from the Smith residence after the murders. Tori testified that a couple of weeks after

the murders, Boone told her that he had a gun he wanted to sell. Boone asked Tori to call

a couple of gun shops to see if they purchased guns. Tori said that Sherry was present

when Boone discussed selling the guns. Tori stated that a couple of days after that, Sherry

was looking in the phone book for gun shops, and she assumed that Sherry was helping

Boone for the same reason.

The testimony is not clear with regards to Sherry’s involvement. As stated above,

Tori merely testified that on one occasion, Boone told her that he had some guns to sell,

43
and Sherry was present at that time. The testimony does not indicate what guns Boone

was attempting to sell, nor does it indicate that Sherry was actually paying attention at the

time that Boone spoke to Tori. Tori assumed that Sherry was helping Boone sell a

gun—she had no personal knowledge of that fact. This testimony is too speculative to

connect Sherry to the crime. See Paulus, 633 S.W.2d at 844.

6. Crime Scene Forensics

Finally, the State argues that crime scene forensics tended to connect Sherry to the

crime. Ray Cooper testified that he is a firearm and tool mark examiner. Cooper tested

the bullets that were recovered during the autopsies of Charles and Carey, and he

compared those bullets to the guns recovered from Boone. He opined that the bullets

recovered from the medical examiner had the same general characteristics as the 25.06

rifle recovered from Boone, and that the bullets could have come from the 25.06 rifle.

However, he qualified his testimony by stating that the bullets were damaged such that

there were not enough marks to positively state that the bullets came from that rifle.

Crime scene photos show that Carey and Charles were likely killed in their sleep.

The State asserts that Carey must have been killed first because the noise would have

awakened him if Charles had been killed first. Thus, the shooter must have been someone

that Charles expected to see in the early morning hours and who could convince him to go

back to bed.

Additionally, the police collected the clothes Sherry was wearing on the day of the

murders. The clothes were submitted for laboratory testing. Staci Dennison testified that

she is a forensic biologist. She explained that she tests items submitted to the laboratory

for the presence of blood or seminal fluid. She said that she performs two types of tests:

44
a presumptive test and a confirmatory test. A presumptive test examines the item for a

chemical property found in blood that is also found in other items. Dennison explained that

a presumptive positive for blood means that the substance could be blood, but it is not

conclusive. She testified that rust, horseradish, cocktail sauce, and other substances

would also test positive. Dennison testified that she performed a presumptive test on the

outside of Sherry’s pant leg, and it tested positive for traces of blood.

Dennison testified, however, that the trace amounts were too small to perform a

confirmatory test on the pants. She stated that performing a confirmatory test on the stain

could destroy the sample and could eliminate the possibility of DNA testing. Therefore, the

pants were sent for DNA testing, instead.

Kenneth Balagot testified that he is a forensic biologist, and he performed DNA

testing on the sample from Sherry’s jeans. He testified that he created DNA profiles for

Carey, Charles, and Sherry. He testified that the DNA from that sample was a mixture of

two contributors that could be divided into a major and a minor contributor. He stated that

the set of genetic markers from the major contributor “matches” Sherry’s DNA profile. He

testified that the minor contributor’s profile “corresponded” to genetic markers observed

in Carey’s DNA profile. He testified that there was a 1 in 195 chance that Carey was a

contributor to the DNA. Charles was excluded as a source of the DNA. Balagot admitted

that it is impossible to tell when or how DNA was transferred to an object. He also testified

that it is not unusual for two people who live together to have each others’ DNA on their

clothing.

At most, the State’s witnesses demonstrated that the 25.06 rifle recovered from

Boone may have fired the bullets that killed Carey and Charles, that there might be blood

45
on Sherry’s pants, and that there was a 1 in 195 chance that Carey contributed part of the

DNA found in that same location. The fact that the 25.06 recovered from Boone might

have been used to kill Charles and Carey does not connect Sherry to the murders unless

Boone’s testimony is considered. Accordingly, we may not consider it. See Wincott, 59

S.W.3d at 700 n.7.

Furthermore, the State’s witnesses admitted that it was likely that one spouse would

have the other spouse’s DNA on their clothing merely from living in the same home. Given

that Sherry cared for both Carey and Charles and lived in their house, the State’s forensic

evidence was too equivocal to connect Sherry to the murders. See Bagwell v. State, 956

S.W.2d 709, 711-12 (Tex. App.–San Antonio 1997, no pet.) (holding that forensic

testimony regarding pattern of injuries victim sustained was too equivocal to connect

defendant to the crime).

The dissent argues that the stain on Sherry’s clothing is a circumstance that tends

to connect Sherry to the crimes. The dissent cites to Gosch v. State, 829 S.W.2d 775, 781

(Tex. Crim. App. 1991) and Romero v. State, 716 S.W.2d 519, 523 (Tex. Crim. App. 1986).

These cases are a far cry from being on point. First, in Gosch, the defendant was charged

with capital murder. Gosch, 829 S.W.2d at 776. The defendant was accused of

kidnapping the victim, who was the wife of a bank president, asking for ransom money from

the victim’s husband, and then killing her. Id. at 776-81. At trial, a forensics expert testified

that blood smeared on the defendant’s jeans contained type “A” blood, while the defendant

had type “O” blood. Id. at 781. The court considered this, along with several other items

of corroborative evidence, as sufficient to connect the defendant to the crime. Id. at 782.

Significantly, in Gosch, the defendant had no connection to the victim. Id. And, in Gosch,

46
the blood was “smeared” on the defendant’s jeans. Id.

Second, in Romero, the defendant was charged with killing the alleged victim while

attempting to sexually assault her. 716 S.W.2d at 520. Three other men were also

indicted for the offense, and one of the co-indictees testified for the State. Id. at 520-21.

The defendant argued that the co-indictee’s testimony was not corroborated. Id. The court

of criminal appeals disagreed, however, relying in part on the defendant’s confession which

placed him at the scene of the crime during the criminal episode. Id. at 523. The police

also found a pair of the defendant’s underwear that contained blood stains consistent with

the defendant’s and the victim’s blood type. Id. The court held that these two pieces of

evidence sufficiently corroborated the co-indictee’s testimony. Id. Again, the defendant

had no connection to the victim other than the crime. Id. And it appears from the opinion

that there was no doubt that the stain on the defendant’s underwear was, in fact, blood.

Id.

The present case is much, much different. Smith lived with Charles and Carey. The

stain on her pants was too small to perform any conclusive tests. In fact, the police could

not even conclusively say that the stain was blood. The State’s evidence showed that

most spouses’ clothing would contain the other spouse’s DNA, and the State did not even

show that the DNA (1) was a result of blood being on the pants, or (2) that the DNA was

definitely Carey’s DNA. Under these circumstances, we disagree with the dissent that the

forensic evidence was sufficient to connect Sherry to the crime.

We also disagree that the cumulative force of the evidence was enough to connect

Sherry to the crime. Because none of the other elements urged by the State connected

Sherry to the crime, we may not consider the evidence regarding Sherry’s motive and

47
opportunity. See Reed, 744 S.W.2d at 127; Paulus, 633 S.W.2d at 846. There simply is

nothing in the record that tends to connect Sherry to the murders. Sherry’s second issue

is sustained.

III. CONCLUSION

Excluding the accomplice witness testimony from consideration, there was

insufficient evidence tending to connect Sherry to the crime. Accordingly, we reverse the

judgment of conviction and render a judgment of acquittal. See Wincott, 59 S.W.3d at 703.

We express no opinion on Sherry’s remaining issues. TEX . R. APP. P. 47.1.

GINA M. BENAVIDES,
Justice

Publish.
TEX . R. APP. P. 47.2(b).

Dissenting Opinion by
Justice Rose Vela.

Opinion delivered and filed this
the 13th day of November, 2008.

48