Winningham v. State

LEE ANN DAUPHINOT, Justice,

dissenting on petitions for discretionary review.

On original submission, I joined the majority’s holdings that the jury’s verdict is clearly wrong because the evidentiary scale tips radically toward a negative finding that Appellant Lester Winningham, Jr. either intentionally or knowingly caused the death of Deborah Houchin; that the verdict is contrary to the law and the evidence; and that, based on the record before us, Appellant’s conviction is clearly wrong and manifestly unjust. I dissented from the majority’s holding that the evidence is nonetheless sufficient to support Appellant’s conviction under Jackson v. Virginia.1

More than twenty years ago, the Texas Court of Criminal Appeals announced,

Adherence to the no evidence standard is now, and has been for the last decade, expressly forbidden by Jackson. It is no longer permissible to merely quote the Jackson standard and then to turn around and apply the Thompson [v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) ] no evidence standard as we have historically done. Therefore, we expressly overrule that part of Combs [v. State, 643 S.W.2d 709 (Tex.Crim.App.1982)] that relied upon the no evidence language quoted from Banks [v. State, 510 S.W.2d 592 (Tex.Crim.App.1974) ] to denote the incorrect standard of review for sufficiency of the evidence three years after Jackson. To recapitulate, the test as delineated in Jackson requires us, as the reviewing court, to determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
We must take each case and review the entire body of evidence to determine whether the State has proven beyond a reasonable doubt each and every element of the alleged crime and not just a plausible explanation of the crime.2

Clearly, although we view the evidence in the light most favorable to the prosecution, we are mandated to consider not exclusively the evidence supporting the verdict but the entire body of evidence to determine whether the State has proven each and every element of the offense beyond a reasonable doubt. It is not suffi*311cient that the State provide just a plausible explanation of the crime.

In the case now before this court, the State proved a plausible explanation of Houchin’s murder, but I could not on original submission and cannot now glean from the record the evidence that would allow a rational trier of fact to conclude that the State proved each and every element of the murder by shooting with a firearm beyond a reasonable doubt.

Because this is a circumstantial evidence case, I believe we must look at the historic development of circumstantial evidence law in this state. For scores of years, our courts recognized that

[a] conviction on circumstantial evidence cannot be sustained if the circumstances proven do not exclude every other reasonable hypothesis except that of the guilt of the accused; and proof amounting only to a strong suspicion or mere probability is insufficient.3

In 1983, the Texas Court of Criminal Appeals announced in Hankins v. State that juries should no longer be instructed on a separate circumstantial standard.4 This shift was based on the fact that direct and circumstantial evidence are equally probative.5 But after its decision in Hankins, the Texas Court of Criminal Appeals reiterated in Carlsen,

By the nature of circumstantial evidence, in order to determine it rationally establishes guilt beyond a reasonable doubt, a process of elimination must be used. Illustrative is Taylor v. State [653 S.W.2d 295 (Tex.Crim.App.1983) ]. We there cited the Jackson “standard for review;” in actually assessing the evidence, no method other than a process of eliminating the guilt of others under the evidence could be fashioned to effectively conclude the evidence rationally established Taylor’s guilt beyond a reasonable doubt. Stated in the converse, if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding.6

The concurrence in Carlsen agreed with the majority that

[ljogic dictates that if there is a “reasonable hypothes[i]s” other than the guilt of the accused, then it cannot be said that the guilt has been shown “beyond a reasonable doubt.” In Hankins v. State, we recognized that direct and circumstantial evidence were to be treated with equal dignity. Thus, any effort to weave into the standard of appellate review any exception or difference or special treatment for one type of evidence or the other will fail for lack of logic.7

The Texas Court of Criminal Appeals continued to struggle with this issue and concluded on rehearing in Freeman v. State,

Moreover, scrutiny of the analysis suggested in the motions for rehearing (that the focus of our inquiry should be on “any evidence which could rationally support the verdict”) reveals it to be functionally indistinguishable from that specifically rejected by the Supreme Court in Jackson as violative of the Fourteenth Amendment.
*312Finally, as the motions for rehearing persuasively argue, this Court’s opinions have never held the circumstantial evidence analysis constitutes a different standard for review from that to be ultimately applied in direct evidence cases. If the State’s evidence supports an inference other than a finding of the essential elements of the crime, then no trier of fact could rationally find the accused guilty beyond a reasonable doubt — and this is true irrespective of the character of the evidence.
In sum, we are convinced there are no better analytical guidelines for assaying whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt in any given conviction had upon circumstantial evidence than those we currently employ.8

In a footnote, the opinion on rehearing acknowledged,

It is true that some opinions of the Court have quoted language apparently originating from the pen of an author or editor of Texas Jurisprudence to the effect that in circumstantial evidence .cases an appellate court will “review the evidence in light of the presumption that the accused is innocent [.] ”
Literally and technically inaccurate, the statement is revealed as a writer’s attempt to convey the notion that the State’s burden of adducing proof beyond a reasonable doubt is but a conceptual corollary of the presumption of innocence, and a failure to produce that evi-dentiary quantum operates to absolve the appellant.9

The Texas Court of Criminal Appeals then revisited the circumstantial evidence issue in Geesa, reversing its holding in the Carl-sen line of cases but recognizing the problems the reversal created:

As Judge Clinton succinctly put it, “the accused is stripped of the benefit of a charge on circumstantial evidence and then loses the protection of a definition on reasonable doubt.”10

The Geesa court attempted to correct the new problem by providing a definition of beyond a reasonable doubt,11 but the Geesa instruction did not resolve the problem of an analytical construct for appellate review in a case where there was some evidence supporting the jury’s verdict, but the verdict was clearly wrong. Rather than return to the old circumstantial evidence construct, the Texas Court of Criminal Appeals imported a factual sufficiency review in Clewis v. State.12

Giving lip service to the clear warning in Jackson that no appellate court should ever apply a no-evidence standard of review,13 and having adopted a factual sufficiency review similar to the civil factual sufficiency review, appellate courts appear to have been willing to hold jury determinations legally sufficient if there was any evidence whatsoever to support the verdict. That is, appellate courts in practice were applying a no-evidence standard of legal sufficiency because they could fall back on a factual sufficiency review to overturn unsupported verdicts, yet give *313the State another chance to convict the accused. That is, even though the evidence to support conviction was insufficient, or, stated another way, the prosecution had failed to sustain its burden of proof, the appellate courts could remand the case for retrial by holding that the evidence was factually, as opposed to legally, insufficient.

In 2000, the Texas Court of Criminal Appeals reversed the Geesa requirement of a jury instruction on the definitions of “beyond a reasonable doubt” and “reasonable doubt.”14 But the factual sufficiency review survived until October 6, 2010, when the Texas Court of Criminal Appeals recognized in Brooks that the legal and factual sufficiency standards “have become essentially the same standard and that there is no meaningful distinction between them” and held that the Jackson standard is the only standard that appellate courts should apply in determining the sufficiency of the evidence to support an accused’s conviction.15

If the prosecution fails to prove an essential element of the offense charged in the indictment and presented in the jury charge, the prosecution fails to sustain its burden under the Jackson standard. Further, if an eyewitness identifies A as the culprit, but a videotape shows that the offender is B, a jury who convicts A does not act rationally.16 Under the old Clewis standard, reversal would be required because the evidence was factually insufficient, but the case would be remanded for a new trial.17 Neither Jackson nor double jeopardy protections permit retrial.18 Again, Jackson prohibits a no-evidence standard of review.

In the case now before this court, the majority previously determined that no rational trier of fact could have found that the prosecution proved beyond a reasonable doubt that Appellant committed each and every element of murder by shooting Houchin with a firearm. Respectfully, I believe the majority applied a no-evidence standard in determining that the evidence was legally sufficient in its original opinion. Now, the majority conscientiously remains consistent by holding the evidence sufficient. I believe that this holding is at odds with an analysis of the facts under Jackson.

The Brooks court did not mandate that appellate courts abandon a factual analysis of the evidence. Rather, the Brooks court reminded us that the Jackson standard is consistent with “constitutional and statutory mandates” that appellate courts review both “questions of law” and “questions of fact.” 19 To comply with Jackson, we must view all the evidence, but we must view that evidence in the light most favorable to the prosecution and determine whether the evidence is sufficient to permit a rational trier of fact to find the prosecution proved beyond a reasonable doubt that the accused committed each and every element of the offense alleged. The majority previously held that the verdict shocks the conscience because it is clearly wrong and manifestly unjust. The justification' for the conflict in the majority’s previous conclusions is the change in vantage point formerly required by factual and legal suf*314ficiency reviews. But a verdict that shocks the conscience and is clearly wrong and manifestly unjust cannot be salvaged by viewing the evidence, or absence thereof, from a different perspective.

In the first week of April 2004, Appellant moved in with Houchin in Arlington, Texas. Houchin and Appellant had disagreements, and Appellant moved out three times before he left the final time on April 15, 2005. Houchin changed the locks on her doors. While they lived together, but before April 15, 2005, they became engaged but broke off the engagement, and Houchin complained to others when she became angry with Appellant.

Bruce Tinch’s very dramatic testimony of Houchin’s visit to his house, which he described as the “apex of horrificness,” recounted events that occurred in February 2005, well before April 15. In fact, after Houchin’s dramatic, late-night visit to Tinch’s house, Houchin and Appellant reconciled, and Appellant moved back into Houchin’s house. Houchin’s body was found July 22, 2005, more than three months after they broke up and Appellant moved out.

Other than disagreements in the office, the record does not reflect any personal interaction between Appellant and Houch-in after April 15. In the office, Houchin and Appellant argued over whether to hire a full-time or a part-time secretary, whether to fire an employee who had not locked the medication cabinet, and whether Appellant was doing his share of work in the office.

After their final breakup in April 2005, Houchin announced that she had posted her profile on an online dating service again and had gotten over 400 hits. Tinch testified that Appellant was not angry about Houchin’s online dating and that he was actually indifferent about it. Indeed, Appellant had developed a relationship with another woman. Tinch also testified. that Appellant was socially inept.

The last two people known to have seen Houchin alive were Robert Mims, a coworker, and Amy Tinch, Bruce Tinch’s wife. Houchin and Appellant had argued at work on the evening of July 21, 2005, a Thursday, and Mims and Amy had gone with Houchin to her car after Appellant left. Mims described the argument as one like a divorced couple would have, with each party pushing the other’s buttons and saying that the other needed counseling. Mims said that the argument seemed more hostile than he had been expecting, but was just verbal sparring, and neither Appellant nor Houchin had made any threats. Mims testified that he had told Houchin that, over the years, “some chaos in the office setting ... seemfed] to follow [her].” Mims testified that he left Houchin around 10:50 p.m.

The record reflects speculation that Appellant could have murdered Houchin, but what is the evidence, circumstantial or otherwise, that he actually murdered Houch-in? I know that we are not supposed to consider what evidence is missing in determining that the evidence is insufficient,20 but surely there must be some evidence beyond suspicion and speculation to convict someone of murder.

The State argued that a receipt showing that a rope and a tarp were purchased at an Academy store in Arlington on July 2, 2005 was found at the scene of the fire in Muenster. The State argued that this receipt was significant because Appellant *315lived less than ten miles from that store. But there is no evidence that Appellant is the person who made the purchase. There is no evidence that Houchin did not make the purchase. She also lived in Arlington, and their office was in Arlington. The total land area of Arlington is 99.5 square miles.21 Where in Arlington could any of its approximately 370,450 inhabitants live without being within ten miles of the Academy store?22 Is it the State’s theory that on July 2, Appellant planned to kill Houch-in in her home on July 21 or 22 and was so well organized that he purchased the tarp and rope in preparation, yet he was so disorganized that he left the receipt at the scene of the fire? He prepared so well that on July 21 or 22 he took the tarp and the rope to her home, as well as the receipt that he managed to leave at the scene in Muenster, yet left the bag that he carried them in at home for the police to find?

The majority assumes that Houchin was wrapped in a blue tarp that was tied together with rope before she was put into the trunk of Appellant’s car. But there is no evidence of that. The theory was created by the prosecution to explain blue marks that appear on the bumper of Appellant’s car, but not on the edge of the trunk, the gasket, or anywhere inside the trunk. The theory was also created to explain how there could be blood smears on the floor inside Houchin’s house and on her garage floor where police investigators concluded the body had been dragged, but no such blood smears or hairs from Houch-in’s body anywhere inside or outside of Appellant’s car. Although Pat Eddings, senior trace analyst with the Tarrant County Medical Examiner’s Office, testified that the blue fibers appeared to have been put on the bumper by force, no one could testify how much force would have been required. She admitted that hundreds of thousands of items would leave the same blue marks as the tarp. For example, she could not exclude plastic brushes on a car wash.

So what was the evidence that Appellant intentionally or knowingly caused the death of Houchin by shooting her with a firearm?

• They had been engaged and lived together. When she was angry, Houchin told people to tell the police to look at Appellant if anything happened to her.

• Appellant and Houchin had argued at the office on the last night that she was seen. The argument was over whether to write up an employee who had failed to lock the medication cabinet.

• Appellant had some empty Academy bags in his house. He had some natural fiber rope, but it was not the same kind of rope as that contained in the bag found in Muenster at the fire site.

• Appellant made a call from his cell phone in Arlington, where he lived and worked, on the night that police suspect Houchin was killed.

• Appellant did not turn in his day sheets for billing on Thursday, as was his custom, but waited until Sunday.

• Appellant called the receptionist on Friday morning to say that he would arrive at work late, although he testified that he made no such call, his cell phone records reflected no such call, and he arrived on time.

• Hillman testified that there were two trunk liners — a permanent liner and a removable plastic liner that lies on top of the permanent-cloth liner. A spot of *316Houchin’s blood was found on the permanent liner in Appellant’s car’s trunk, although there was no way to tell how long it had been there and, presumably, it was underneath the plastic liner. Blue marks appeared on the bumper of Appellant’s car.

• The police testified that there was no forced entry into Houchin’s house.

• The police testified that an opened bag of dog food in the kitchen proved that the killer was concerned about the welfare of Houchin’s dogs, so it must have been Appellant who killed Houchin because he must have known the dogs.

• Appellant did not seem sorry enough that Houchin was dead.

• Tinch claimed that Appellant called Houchin’s sister on the weekend to speak of Houchin’s death before the body was identified, although Houchin’s sister and telephone records showed that he called only after Houchin’s body had been identified.

• Appellant got an expedited passport after Houchin was killed but before her body was identified, bought a round-trip ticket to Germany, withdrew $20,000 from his bank account, paid his electric bill, paid his health club bill, and left money in his bank account. After Houchin’s body was identified, he contacted the police to tell them that he was going to Germany.

The State argued that a circumstance supporting Appellant’s conviction was the fact that he had planned to go to Germany but did not go and instead attended Houchin’s funeral. I note that Mims, one of the last two people to see Houchin alive, did leave the country, however, and did not attend Houchin’s funeral.

The medical examiner determined that Houchin had been shot three times. A projectile with Houchin’s blood on it was found in her house. It was not fired from her gun. No evidence connects Appellant to any firearm. Nothing in the record indicates that Appellant owned a firearm, had ever owned or possessed a firearm, or had access to a firearm. Nothing places Appellant in or near Houchin’s house after she left the office Thursday night.

Is this sufficient evidence to justify a rational jury’s concluding that the State had proved each and every element of the offense of murder beyond a reasonable doubt under the Jackson standard?23 That is, looking at the evidence in the light most favorable to the prosecution, is the evidence sufficient to prove to a rational jury beyond a reasonable doubt that Appellant intentionally or knowingly caused the death of Houchin by shooting her with a firearm? The majority believes it is. I cannot agree.

A rational jury must consider the evidence as a whole, and not just the evidence that may possibly imply guilt. That is, a rational jury considers all the evidence, and even though a reviewing court must view the evidence in the light most favorable to the prosecution, we must nevertheless view all the evidence, not just that evidence favorable to the prosecution.24

For example, Tinch testified that Appellant called Houchin’s sister to tell her of Houchin’s death sometime during the weekend after the murder but before her body was identified. That could be considered evidence supporting the conviction. But Houchin’s sister testified that Appellant called her after the body was identified, and the telephone records support her testimony. Under Brooks, the jury *317could not rationally ignore the telephone records in favor of Tinch’s testimony.25

What about evidence that is mere speculation or supposition? The police- assumed, speculated, or supposed that the killer, rather than Houchin or the dogs themselves, ripped open a bag of dog food and that this meant that whoever killed Houch-in cared about the dogs, and therefore must have known them, and therefore must have lived in the house with them, and therefore must have been Appellant. Do we assume that a rational jury gave weight to this evidence, which is unsupported by anything other than speculation?

On the last night that she was seen by coworkers, Houchin had plans to meet for the first time with someone she had met through an online dating service. He said that she had canceled the meeting because there was something she thought she had taken care of that she had to do that night. The record does not reflect that the police found an e-mail or a record of a telephone call supporting his claim that she had canceled their meeting. Nothing in the record suggests that Houchin planned to meet with Appellant that night. Houchin did not leave the office until 10:50 p.m. Was the matter that she had previously thought resolved the reason that she stayed at work so late? If Houchin did indeed cancel her meeting with the man she met online, nothing in the record suggests that the unresolved issue involved Appellant. Indeed, a beer can and a cigarette butt were found beside the driveway. The police never tested them for fingerprints or DNA. Nor was there any evidence in the record that Appellant smoked.

■The record also reflects that when Texas Ranger Tracy Murphree applied for search warrants and the arrest warrant for Appellant, Murphree stated that Appellant had made a cell call on the night that Houchin disappeared and that the call was made from a location “in close proximity to her house.” At trial, however, Murphree admitted that he. could only tell that the call had been made somewhere in Arlington, but not which cell tower handled the call or how close to Houchin’s house the cell phone was when the call was made. Of course, .Appellant lived and worked in Arlington, and records would reflect that any calls he made from his home or office were made from Arlington. The record also reflects that Appellant called Amy Jaggers, his girlfriend at the time, on the night that Houchin was killed.

The police further concluded that the killer had to be someone Houchin knew because there was no forced entry. What is the evidence that the doors or -windows were locked before the shooting? There is no evidence that Appellant had a key because Houchin had changed her locks after he moved out. A broken window had been boarded over, but the police entered the home through it. What is the evidence that no one else previously entered the home- through the same broken window? Police discovered blood on or near Houch-in’s computer, indicating that she was at or near her computer at some point during the murder. Was she working on her computer when she was talking to her murderer, or was she surprised while she was working on her computer?

The majority and the prosecution rely on the fact that the body appeared to have been dragged to the entrance of the garage, where the blood smears stop, suggesting that Appellant’s car was waiting in the garage. But photographs show Houchin’s car parked in the center of the garage, leaving no room for any other car. Her car keys were in plain view in the *318house. There is no evidence that the police ever examined her car to determine whether it had been used to transport her body. Was Houchin’s car used to transport her body, or did the murderer carry her body outside the garage to a waiting car? It seems suspect that the blood trail ends in Houchin’s garage, but there is no evidence that Houchin’s car was ever moved so that another vehicle, ostensibly Appellant’s, could have been used to transport Houchin’s body, and no evidence that Houchin’s car was so used.

If the weight of Houchin’s body was sufficient to cause the blue tarp to smear onto the bumper, why are there no blue smears on the plastic lining inside Appellant’s car? What is the evidence that Appellant and no one else purchased a blue tarp? What is the evidence that the murderer bought the tarp rather than merely using whatever was available to dispose of the body?

Indeed, if the killer had driven Appellant’s car and if there was no indication that he ever cleaned the interior of his car, there would be some evidence. The State theorized that the killer dragged the bleeding body through the house, based on the blood evidence in the house, yet there was no blood anywhere in the passenger compartment of Appellant’s car. The police found a footprint in dog feces in the house, a footprint which the record does not show any attempt by the police to match. Yet no one testified that the police found any evidence of feces in Appellant’s car. And even though the State’s theory was that Houchin was killed in her home, there was also no evidence that the killer left personal items behind or attempted to clean himself at Houchin’s house. Finally, even though the State depended largely on the presence of a blue material found in scratches on the bumper of Appellant’s car, there was no blue material inside his trunk, nor was any evidence of a blue tarp-like material found in Houchin’s house or garage. The person who moved the body either dragged it across the garage floor or carried it to whatever car was used to transport it. Where are the blue smears from dragging the tarp-wrapped body across the garage floor? Why is there no blood transfer anywhere inside the passenger compartment of Appellant’s car?

Additionally, regardless of what time Appellant arrived at work on Friday, there is no evidence that he looked disheveled, smelled of accelerant, or had blood on him. No evidence of bloody clothing or instru-mentalities of the crime — other than potentially the Academy bag — was found in his car or at his apartment. Furthermore, despite testimony that Appellant called Houchin’s sister over the weekend, phone records objectively demonstrate that he did not call Houchin’s sister until Tuesday — after everyone at the clinic had learned of Houchin’s murder.

The majority states that the passenger compartment of Appellant’s car was messy but that the trunk was “pristine,” containing blood and dog hairs and brown human hairs. Although the blood was underneath the plastic liner, it is unclear where the hairs were located in this “pristine” environment. The State proved that Appellant’s car could plausibly have been used to transport Houchin’s body somewhere. The State also proved that Houchin could have bled onto the trunk liner underneath the plastic liner at any time in the previous months.

But Appellant was neither charged with nor convicted of tampering with evidence. He was not convicted as a party to the offense of murder. He was charged and convicted of intentionally or knowingly committing murder by intentionally or knowingly firing a firearm. There is no evidence to suggest who fired the shots *319that killed Houchin, that the person who killed her was the person who transported the body, that Appellant’s car was in Muenster on the day that the body was burned, that Appellant’s car had transported any accelerant or that Appellant had handled any accelerant, that Appellant ever possessed or fired a firearm, or that Appellant had any connection to the burning of Houchin’s body.

Murphree testified that the killer knew and was concerned about the dogs and must have torn open the dog food bag. This conclusion is no more than speculation. In Winfrey v. State,26 the evidence of guilt was not that Winfrey and the dog had a prior relationship but that dogs alerted to Winfrey’s scent allegedly present on the clothing worn by the murder victim at his death. The Texas Court of Criminal Appeals held that although dog-scent identification evidence may raise a strong suspicion of a suspect’s guilt, standing alone it is insufficient to establish a person’s guilt beyond a reasonable doubt.27 The Texas Court of Criminal Appeals thereby cast grave doubt on the reliability of such testimony.28

The Jackson court made clear that we are not to use a “no evidence” standard in determining the sufficiency of the evidence to support a conviction.29 The Jackson court also made clear that the “no evidence” standard is inadequate to protect against misapplication of the constitutional standard of reasonable doubt: “[A] mere modicum of evidence may satisfy a ‘no evidence’ standard” because any evidence that is relevant and has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence could be deemed a mere modicum, but “it could not seriously be argued that such a ‘modicum’ of evidence could by itself rationally support a conviction beyond a reasonable doubt.”30

Respectfully, reviewing the entire body of evidence, I would hold that the State has not proved beyond a reasonable doubt each and every element of the murder of Houchin but merely a plausible explanation of the crime. When this evidence is viewed in the light most favorable to the prosecution, no rational trier of fact could have found, from the evidence as opposed to mere conjecture and speculation, the essential elements of the crime beyond a reasonable doubt under the test mandated by Jackson. I therefore respectfully dissent from the majority’s holding that the evidence is sufficient to support Appellant’s conviction under the Jackson standard.

. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989) (citations and quotations omitted), overruled on other grounds by Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex.Crim.App.2000).

. Brock v. State, 162 Tex.Crim. 339, 285 S.W.2d 745, 747 (Tex.Crim.App.1956), overruled by Geesa, 820 S.W.2d at 161.

. 646 S.W.2d 191, 197 (Tex.Crim.App.1983).

. Id. at 199.

. Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983) (op. on reh’g) (citations omitted), overruled by Geesa, 820 S.W.2d at 161, overruled on other grounds by Paulson, 28 S.W.3d at 571.

. Id. at 450 (McCormick, J., concurring).

. Freeman v. State, 654 S.W.2d 450, 456-57 (Tex.Crim.App.1983) (op. on reh'g) (citations and footnote omitted), ovemded. by Geesa, 820 S.W.2d at 161.

. Id. at 456 n. *.

. Geesa, 820 S.W.2d at 161.

. Id. at 162.

. 922 S.W.2d 126, 129 (Tex.Crim.App.1996), overruled by Brooks v. State, 323 S.W.3d 893, 894-95, 912-13 (Tex.Crim.App.2010).

. 443 U.S. at 319, 99 S.Ct. at 2789.

. See Paulson, 28 S.W.3d at 573.

. 323 S.W.3d at 894-95.

. Id. at 905-07.

. See id. at 904-05.

. Id. at 902-03 (citing Greene v. Massey, 437 U.S. 19, 24-25, 98 S.Ct. 2151, 2154-55, 57 L.Ed.2d .15 (1978); Burks v. United States, 437 U.S. 1, 16-18, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1 (1978)).

. Id. at 909-12.

. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007) (“Our review of 'all of the evidence’ includes evidence that was properly and improperly admitted”) (emphasis added).

. City Facts and Figures: Get to Know Our City, http://www.arlingtontx.gov/cityfacts.html (last visited October 19, 2010).

. See id.

. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

. Id. at 319, 99 S.Ct. at 2789.

. See 323 S.W.3d at 905-07.

. 323 S.W.3d 875 (Tex.Crim.App.2010).

. Id. at 881-82.

. See id.

. 443 U.S. at 320, 99 S.Ct. at 2789.

. Id., 99 S.Ct. at 2789-90.