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Smith v State of Texas

Case No. PD-0298-09 (TX Ct. Crim. App., Feb. 2, 2011)

Contrary to the court of appeals, we hold that the trial judge did not err in denying Sherry Lynn Smith’s request to instruct the jury that her ex-husband, Daniel Gardner, was an accomplice as a matter of law because the evidence did not conclusively establish that the capital murder charge against Gardner was dismissed in exchange for his testimony at Sherry’s trial. We further hold that the court of appeals erred in holding that the non accomplice evidence was insufficient to tend to connect Sherry to the murders. We therefore remand this case for proceedings consistent with this opinion.

Background



Sherry was convicted of capital murder and sentenced to life in prison for shooting her husband, Carey Smith, and her father-in-law, Charles Smith, in December 2002 while they slept.

The Smiths



Sherry worked for the Texas Department of Criminal Justice (TDCJ) for most of her career. She started in the mail room at the Wallace Pack Unit and later became a prison guard. Sherry was involved in a romantic relationship and lived with a fellow prison guard, Edward Rollins, from 1991 to 1999. Sherry qualified to use a gun per TDCJ policy and, during her relationship with Rollins, she and Rollins would shoot high-powered rifles in the back yard. In January 1999, after Rollins moved out of the house that the two had rented together, Sherry moved into TDCJ employee housing, where her rent was deducted from her paycheck.

In addition to her job as a prison guard, Sherry began to clean Carey’s house. Carey was a supervising prison guard at the Wallace Pack Unit. Carey had never been married and shared a house with his ailing father, Charles Smith, in Grimes County. Charles, who was recently widowed, suffered from congestive heart failure, diabetes, emphysema, and asthma. Carey and Charles ran a hay-hauling business on the acreage surrounding their house.

Sherry had a car but was not making the monthly payments, even though Carey was giving her money for that purpose. Sherry spent the money on other things, and she turned in the car because it was going to be repossessed.
 

 

Judge(s): Michael E. Keasler
Jurisdiction: Texas Court of Criminal Appeals
Court of Appeals Judge(s)
Cathy Cochran
Barbara Hervey
Cheryl Johnson
Michael Keasler
Sharon Keller
Lawrence Meyers
Tom Price
Paul Womack

 

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Click the maroon box above for a formatted PDF of the decision.
"every one of them was there." sherry explained that carey was not mad or upset about anything. she stated that she had worked and when tori went out with her friends. sherry also cooked for everyone, and tori case something happened to carey. johnson then began to receive statements from two q: supposed to? the scientific evidence collected and tested did not yield any conclusive information suspicious circumstance."). smith--6 the couple's friends and house guests noted that sherry took good care of the house; offense. taking a divide and conquer approach, the court of appeals discounted each31 entered into a plea agreement with the state--he pled guilty to tampering with evidence and smith--24 indicted for the same offense as the accused. therefore, we dismiss that ground as evidence clearly shows that a witness is not an accomplice, the trial judge is not obliged to and charles welcomed tori and logan into their lives, and tori grew fond of both men. tori was prescribed to extract excess fluid from charles's body as a result of his diabetes. simcik smith--11 1922); jones v. state, 214 s.w. 322, 329 (tex. crim. app. 1919)). on the table where they could see it. sherry told johnson that carey would receive credit app. 1991); solis v. state, 792 s.w.2d 95, 97 (tex. crim. app. 1990); herrera v. state, see id. at 427-43432 appellant failed to make a logical connection between w.p.'s testimony concerning his the two trucks belonging to carey and charles parked on the smith property. he did not see the back door. when investigator schroeder asked how many guns "are" in the rack, sherry of error. back to houston between 10:00 and 10:30. he did not see anyone on the smith property and q: all right. i want you to tell the jury what that plea agreement is? criminal procedure article 38.14, a conviction cannot stand on an accomplice witness's gamez, 737 s.w.2d at 322.20 sherry also agreed to be interviewed by ranger bryant wells and sergeant johnny as "ms. whitmire," which was her maiden name. after that sherry said, "i'm mrs. smith." discussed above with respect to sherry's motive. motive, which explains why sherry secondary, incriminating purpose. one that does not--we will defer to the factfinder's resolution of the evidence. therefore,29 often to visit tori and logan. tori noticed that sherry wanted to be around gardner and shows that sherry began to treat carey and charles poorly; she increasingly demonstrated edward rollins, from 1991 to 1999. sherry qualified to use a gun per tdcj policy and, including a diesel truck, which she would have heard, from 3:00 a.m. until she got up the sherry, who did not know the law, would likely have believed that if both men died, even at ranger wells interviewed tori on january 15, 2003. ranger wells discovered that, to affirmatively establish on the record that the dismissal of the capital murder charge was sherry eventually gave gardner a detailed description of the murders. she said that that carey did not "date," unless fishing a few times qualified as dating. id. at 509.30 gardner while tori took logan into the store to get a drink. sherry then left the diamond cooler. sherry was angry at tori because she was planning on going to huntsville early the wounds as gunshot wounds. the medical examiner later identified the wounds as rifle she enjoyed cooking and cleaning. she redecorated the house. according to carey's at some point, he was charged with capital murder in relation to the murders of charles and attitude towards carey and charles shifted before the murders. she became unhappy with logan, until 4:00 a.m. on the 7th, when she left for wal-mart. based on the evidence, it is watched television together in the living room. she loved carey and charles and had told smith--33 telling gardner that she told him about a solution but that he refused to talk about it. she said the legislature has determined that the factfinder should exercise caution when in the house was empty. a: i made a plea bargain. smith--43 home. sherry went to back to sleep after tori left. when tori got home, she parked name at her house each month. q: and what about the kimble county case? is there an agreement to take care immediately said, "i bet you didn't thank [sic] i could do it[,] did you." gardner told her he knew that sherry would do anything for her and logan. sherry cared for logan while tori friend of his that he was planning on divorcing her. sherry maintained that she had not; she on friday, december 6th, gardner stayed at tori's house while she was at work with and headed to the wal-mart in huntsville, which was about thirty miles away from her because sherry no longer had a car, carey bought sherry a truck in charles's name, neighbor also did not hear any gun shots coming from the smith house, which he would have sarondos arrived at his property in grimes county, having traveled from houston. he saw daddy . . . sell some guns when they are missing from a murder scene." a few days later tori in november 2002, sherry was "burning the candle at both ends," according to joretta to do with them. gardner told her to put them in the back of the utility trailer he had next to in direct opposition to the jury's implicit determination in this case.34 sherry's friend johnson also went to the smith house at sherry's request. johnson observed and during a subsequent search of the premises the next day, investigator higginbotham sherry also complained and joked about losing her clothes when she agreed to give judge may instruct the jury to determine a witness's status as a fact issue. finally, when the19 at tdcj and cashed out her entire retirement account, which was worth about $17,000. estate. according to carey's attorney, a layperson looking at the two wills would conclude q: okay. so you're on probation in kimble county and you have two other of that, also? burdensome marriage that was draining her physically and emotionally, to avoid carey's son's apartment near houston. mitchell knew that sherry would arrive there early but was because he was severely overweight. the two slept in separate rooms. sherry told johnson not done in exchange for gardner's testimony. the state contends that the court of appeals smith--38 article 38.14: motive, opportunity, and sherry's demeanor and actions before and after the him anymore. she stated that they slept in separate bedrooms and that carey did not "nag" sherry stated that carey did not even like it when she stayed away from home at the hospital two .22's, one of which she had used in the past. she stated that there were three guns with in the beginning, sherry was content with the marriage; she fulfilled her obligations by considering the testimony of an accomplice; "accomplices often have incentives to lie, such mutual convenience, was becoming increasingly burdensome physically and emotionally after she was interviewed. when sergeant martinez and ranger wells made the request, would not be unusual to find carey's dna on sherry's pants since the two lived together. county. at first, sherry stayed away from tori's, but then she started to come over more q: you got a deal? smith--8 sherry's trial, gardner would have only four more months of confinement. the commission of the offense that the accused committed. a person is not an accomplice11 blake v. state, 971 s.w.2d 451, 454 (tex. crim. app. 1998).5 little respect and patience for both men. teresa kott, a friend of charles's from church, becoming increasingly apparent. sherry indicated that she wanted out of the marriage but smith--41 sought his attention. sherry told tori that she had kissed gardner and that she still loved put logan on the floor and gave her a puzzle to play with. she proceeded down the hall on saturday around 1:00 a.m. at about 4:30 a.m., while in bed, gardner heard a vehicle requests over the phone for her to come home. sherry was "ugly" to carey. sherry also told smith--42 to come and pick up logan. no. pd-0298-09 could not make a positive identification. in the final ten minutes of the interview, ranger wells and sergeant martinez asked sarondos testified that he did not always see carey or activity on the smith property when if the person knew about the offense and failed to disclose it or helped the accused conceal of logan. seemingly referring to a prior conversation, investigator schroeder asked sherry smith house to see what was going on. at this time, one of the investigators asked for "mrs. from carey. she told them that carey did not want to divorce her and that the two had not transferred anything on the truck with her feet. sherry's motive and presence at the crime scene should not be considered in the id.7 a: two years. cocke v. state, 201 s.w.3d 744, 747 (tex. crim. app. 2006).13 indicated that sherry was a major contributor, carey was a minor contributor, and charles within a few weeks of the murders, gardner asked tori for help in selling an "old it ultimately entered into with gardner. without any concrete evidence in the record showing 286 s.w.3d at 413.2 giving her money for that purpose. sherry spent the money on other things, and she turned cousin, sherry left wal mart at 6:42 a.m. and drove to see her cousin mitchell at mitchell's him in case there was anything that logan did not need to see. sherry told gardner, "logan different opinion. when simcik visited charles, she felt tension and stress in the household. conflicting views of the evidence, may be drawn from the record. when a logical inference used the credit cards that carey had not known about. the statements, some of which were sherry began to become increasingly frustrated with carey and charles because they further, during sherry's recorded interview with ranger wells and sergeant martinez accordingly. a witness who is indicted for the same offense or a lesser-included offense15 reasonable to infer that carey and charles were dead before sherry left the house at 4:00 a.m. noted that sherry failed to administer the drug on a few occasions, and the excess fluid sherry to the murders, we turn to additional evidence--or circumstances that raise at sherry's trial, gardner testified for the state. ranger wells interviewed gardner charles's bodies in their beds. he ordered deputies rutledge and schultze to cordon off the helping tori out financially. was "just like [carey] overflowed." sherry also unexpectedly volunteered information about carey understood. however, carey preferred sherry to stay at home and did not like it when q: do you know what you're on probation for? improvidently granted. would tell gardner when she would not be there and that she just needed someone to drive sherry told ranger wells and sergeant martinez that carey and charles were conscious of lights being left on and usually turned the lights off and generally kept the house dark. also, keasler, j., delivered the opinion of the court in which keller, p.j., meyers, observing the blood, she said no; "it was not normal," and she wanted to get logan out of marriage was one of convenience. she believed that sherry was content with the marriage. procedure. the court of appeals sustained both points of error. however, because the court2 3 was a supervising prison guard at the wallace pack unit. carey had never been married and with respect to the jury charge issue, the state asks that we abandon the automatic inspected the guns. a 25.06 rifle with two spent shell casings inside of it was wrapped in a sergeant martinez later recovered a 25.06 caliber rifle from bill shipman in san q: let's back up. you're on probation where? lieutenant greene began his investigation. before lieutenant greene entered the no doubt that a witness is indeed an accomplice as a matter of law. although the standard23 smith--39 of carey and charles. the court of appeals therefore erred to hold otherwise. consequently, and diamond shamrock, a receipt from the cingular store, and interviewing mitchell and sherry worked for the texas department of criminal justice (tdcj) for most of her sherry's combined credit debt just before january 2003 was about $50,000. accomplice-witness testimony, but both may be considered in connection with other evidence smith--9 her about having sex. she told carey that she would never be "in love" with him but that she regarding opportunity and sherry's presence at the scene of the crime, the evidence she married carey so that she could retain heath-care insurance upon quitting her job. she from the thirteenth court of appeals an accomplice is a person who participates in the offense before, during, or after its sherry whether she committed the murders. sherry became upset and defensive, asserting reporting the discovery of two bodies in the residence. ryan rutledge, a patrol deputy, scene and asked investigator angela schroeder to conduct gun-shot residue testing on having sex, sherry surmised that it was because carey had not had sex for most of his life. suspicion--tending to connect sherry to the murders. inevitable discovery of the debt that sherry accrued in his name without his knowledge and were later submitted to a firearms and tool-mark examiner. the firearms and tool-mark romantic interest in sherry in the beginning. to friends, family, and acquaintances, sherry went to pick up logan. she arrived shortly before 1:00 a.m., picked up logan, and headed that she hated lying to tori about it. about the size of a nickle. investigator klingle described it as a "channel cut into the flesh lieutenant greene in processing the crime scene. he identified carey's and charles's plastic wrap nearby. in january 2002, tori moved into a mobile home approximately five miles from the to twenty hours, before sherry called 911. when inspecting charles's body, investigator debt. she stated that carey "didn't care" about the debt and that she planned to pay off the smith--4 the court of appeals held that the evidence in the record clearly demonstrates that the q: you already made your deal haven't you? the house and that ems had to open the doors to carey's and charles's bedrooms. gardner hung out at the house until he drove tori to work later that afternoon. when not have a life. in september 2002, sherry called gardner while he was at his mother's back in the freezer. her to have sex with him and she complied. they had sex maybe three times; carey would before the witness testifies, the witness is no longer deemed an accomplice as a matter of expressed the ultimate goal behind her marriage--to inherit the smith house and property. was removed, lieutenant greene recovered a bullet fragment from the inside of carey's porch with logan. after sherry got off the phone with the 911 operator, she called gardner greene also observed gunshot residue on the pillow, which was ripped. after carey's body (sherry's aunt) while she also took care of the house, carey's and charles's health, and there were only two trucks at the smith house, both of which belonged to the smiths. the wounds and estimated that both men were shot about eight to twelve hours, and possibly up druery v. state, 225 s.w.3d 491, 498 (tex. crim. app. 2007) (citing paredes v.9 from her retirement account was gone--and that she was "doing it for security reasons" in that the marriage would make her life easier because she would not have to worry about of the 25.06, the examiner stated that the autopsy fragments were damaged and therefore he gamez, 737 s.w.2d at 322.15 additionally, sherry had a renewed romantic interest in gardner and believed that v. q: all depends on what you say to this jury isn't it? of texas there. sherry was candid in explaining her marriage to carey. in the beginning, carey asked further, and he required more of sherry's time and attention. carey suffered from some smith--15 .22" and asked her to call some gun shops. tori avoided gardner, thinking, "[w]ay to go december 2002, when she talked to sherry about her relationship with carey and charles, smith--27 the questions. tori testified that she did not believe that sherry's reaction following the cannot be corroborated by prior statements made by the accomplice witness to a third him. tori did not talk to her father about sherry, but she believed that gardner was not needed oxygen, took a lot of medication, and required hospitalization every two to three valadez that when carey and charles died, she would have all of the property, including the at least eight to twelve hours. the medical examiner testified that livor mortis was fixed in credit cards obtained in his name. sherry was undoubtedly aware that she was putting herself did, however, seize several boxes of rifle and shotgun rounds from a hutch in the utility would visit charles at least once a month. she described the interaction between sherry and necessary inference, contrary to the trial judge's reasonable understanding of the evidence, at trial, tori testified that a few weeks after the murders, gardner asked her, in id. at 439.4 sherry was convicted of capital murder and sentenced to life in prison for shooting smith--35 with additional incriminating evidence tending to connect sherry to the murders. sherry's house, as well as carey's retirement check; she would be "set up." sherry made a similar a: yes. "negative." gardner stated, "we argued about it a lot, about her having to help tori. she we need not decide what the appropriate remedy is when a court of appeals finds insufficient shared a house with his ailing father, charles smith, in grimes county. charles, who was money, and paid tori's $400-a-month rent. sherry told tori that she had a credit card in smith--30 credit cards in carey's name at her post office box. sherry told johnson that she owed the same offense as the accused. alternatively, the state contends that it should not have the offense. the sufficiency of non-accomplice evidence is judged according to the26 sherry appealed to the corpus christi court of appeals. she alleged, among other lans and grooves with a right twist. while the autopsy fragments could have been fired out surprised their friends because the two had never been on a traditional date. sherry stated two to three weeks, he moved the guns to his mother's house. sherry asked gardner about the 6th. carey was on the phone with kowis at 9:00 p.m. on the 6th, however. the evidence next morning before going to visit a cousin who was in the hospital in humble. sherry on appeal, the state relied on the following non-accomplice evidence to satisfy smith--25 q: that means that it all runs together. to johnson's post office box. sherry explained that she did not have any money--the money fought before the murders. on the morning of the 7th. the evidence shows that carey and charles had been dead for there was a chance of a reconciliation between them. sherry began to spend more time at37 that the state's dismissal of the capital murder charge was connected to the plea agreement testimony, it is not a necessary inference, and the trial judge was not bound to find gardner simick, treated charles during the six months before he was murdered. she stated that there husband. when tori moved, gardner came to get the travel trailer from the smith's "blowing off steam." ranger wells and sergeant martinez asked sherry if she had heard that carey told a with charles and, in simcik's opinion, sherry did not care for charles out of love; it was just without his knowledge. reasonable jurors could have determined that sherry also finalized in the fall of 2001, sherry's daughter tori and her two-year-old granddaughter, before the murders, carey came to tori's house to get sherry after she ignored his repeated smith--14 and charles that day at the funeral home. sherry again related her whereabouts and activities the same time, the smith house and property would then belong to sherry. and his will bequeathed both to carey and left carey almost half of the remainder of his monthly. he testified that the smiths had three .22's. at trial, he identified state's exhibit together, sherry moved into tdcj employee housing, where her rent was deducted from her a: yes, sir. at first, his contact with carey and charles was uncomfortable because he was sherry's ex- smith--34 shortly after sherry started cleaning the smith's house, she moved in to take care of on friday, december 6, 2002, tori was scheduled to work at the diamond shamrock lab for testing. with her marriage and said that she was "so frustrated she just wanted to kill them." sherry antonio. therefore not earning any money, and she admitted to valadez that she was struggling to circumstance that tend to connect her to the murders. in judging sherry's behavior before without informing carey, sherry had also accumulated a large amount of debt with carey's weight, referring to his big face when describing seeing blood on it and stating that logan had been sleeping. sherry called tori after the store closed at midnight, and tori told background date delivered: february 2, 2011 of law. suggestion of conscious fabrication, but the trial court should determine whether the that she did not do it and that she was angry at the accusation. left the hospital around 1:00 p.m., drove to a cingular store in huntsville, and purchased a a: yes, sir. logan, moved onto the smith's property. sherry had been estranged from tori. tori's father be in a nursing home. when asked whether or if charles's placement in a nursing home during her relationship with rollins, she and rollins would shoot high-powered rifles in the schroeder interviewed sherry in her patrol car from 6:15 to 6:35 p.m. and tape recorded the commented on the overflowing trash in carey's garbage can, stating, with a chuckle, that it charges in exchange for his testimony against sherry. the court of appeals erred to find a to tend to connect her to the offense as required by article 38.14, texas code of criminal egregiously harmed by the trial judge's failure to include an accomplice-as-a-matter-of-law snoring. sherry arrived at the wal-mart at 5:15 a.m. after buying some pajamas for her ill sherry helped tori out financially. she bought things for tori and logan, gave tori implicating sherry on march 5, 2003. gardner testified that he was currently serving time a: supposed to. she shot carey first, and charles woke up and asked her about the noise. she told charles missing guns from the smith house. nevertheless, tori "told them the information and let because the trial judge's ruling is supported by the record, it is not necessary for us investigators gathered all of carey's credit-card information, documentation showed that martinez at the grimes county sheriff's office that night. according to ranger wells, back yard. in january 1999, after rollins moved out of the house that the two had rented laughed. she on occasion was quite serious." he also stated that sherry's speech was give her money to buy groceries. and that the two could possibly get back together. attitude and behavior that is inextricably intertwined with the motive evidence serves a turned on the light. she saw blood on his face, turned off the light, and closed the door. she strongly indicated that sherry had disposed of the guns taken from the smith house on the klingle noted a bullet entry wound at the base of his throat near the pectoral muscle that was a: yes, sir. to run concurrent. in summary, beyond the motive and opportunity evidence, the jury was confronted tori that carey's health was not good because of his weight and that charles was not going sherry stayed with tori after the murders, and tori observed sherry's demeanor in establishes that carey and charles were shot while they slept. and tori testified that carey investigator klingle did not discover any firearms in either of the bedrooms. babysat for logan. witness is an accomplice as a matter of law, the trial judge must instruct the jury sufficiency of the evidence). sherry on the home's decor. at sherry's trial. we also hold that the court of appeals erred in concluding that the non- above, to be entitled to an accomplice as a matter of law instruction, the evidence must leave the medical examiner collected some jacketing fragments from charles's body, which circumstance because it is indicative of a consciousness of guilt). smith--26 pleasant status quo. shortly before the murders, however, things had changed. the evidence busy to keep her mind off of things. sherry also recalled the details of her whereabouts and property. gardner got along with carey and charles, and both men told gardner that they smith--16 guard. sherry was involved in a romantic relationship and lived with a fellow prison guard, asked the trial judge to instruct the jury that he was an accomplice as a matter of law. the druery, 225 s.w.3d at 498-99; gamez, 737 s.w.2d at 322.19 finally, carey's will bequeathed the smith property and house to sherry. the attorney toward the bedrooms. she noticed carey lying in his bed. this was abnormal because carey carey's and charles's needs. charles's home health-care nurse, jerry simcik, held a the evidence also showed that sherry exhibited strange behavior after the murders. testimony. second, with respect to the sufficiency issue, the state contends that the evidence to testify against the accused in exchange for the dismissal of the charge. when there is18 smith--37 smith--29 q: okay. did you have some other charges previously pending against you that accomplice evidence was sufficient to tend to connect sherry to carey and charles's to tori's to tell sherry to come home, sherry was "ugly." charles's home-health care nurse, that the state dismissed the capital murder charge in exchange for gardner's testimony, we25 the guns, and gardner told her not to worry because he got rid of them. she told him not to we hold that the trial judge did not err in refusing to instruct the jury that gardner was sherry had numerous reasons to kill carey and charles--to escape an unsatisfying and smith--5 night of the murders. though each of the facts discussed above, considered individually, someone other than carey was a contributor was one in 195. the analyst concluded that it the smiths not want to hear about it, and he felt that it was an "insinuation." before thanksgiving in her any "trouble" about it. sherry stated that carey did not like credit cards and credit card "incriminate" sherry. they urged tori not to offer any information but to simply answer40 couldn't do it. she couldn't make it. a lot of it[--credit card debt--]she was hiding from daniel gardner, sherry's ex-husband whom she divorced in the late 1970's, had raised tori. lieutenant greene instructed investigator schroeder to interview sherry. investigator as part of your agreement to testify? accomplice evidence was insufficient to tend to connect sherry to the murders as required had not been reduced, and told them that carey knew about the $24,000 debt and did not give respiratory therapist, debra cargill, sherry was an upbeat person and seemed to provide for her life with both men. and this attitude carried over after the murders. she did not grieve tori. ranger wells also obtained carey's credit-card records, including some statements that house, another officer informed him that only ems and deputy ron schultze had been inside up. gardner said he "cut off" the conversation. again, gardner believed that sherry was sherry told johnson that she maintained control over the mail that was delivered to a.m. he noticed guns lying in the back of the trailer. three rifles were wrapped individually arranged to meet at the diamond shamrock so that sherry could pick up logan and watch home in march don't [sic] you? house. according to sherry, carey and charles were asleep when she left. she heard carey court of appeals found the evidence insufficient under article 38.14, it did not address whether sherry was individually discounting each of the state's arguments, failed to defer to the jury's view of of the evidence, offering alternative, seemingly innocent explanations in certain instances, the murders as would be expected from a widow, and the people around her noted the application of the accomplice as a matter of law rule when a witness has been indicted for carey and charles ran a hay-hauling business on the acreage surrounding their house. smith--22 simcik noticed that sherry did not consistently administer a particular drug to charles that reed, 744 s.w2d at 127; gill, 873 s.w.2d at 49.35 who prepared both carey's and charles's wills testified that a layperson, i.e., a person like sherry, sherry told him that she was going home. gardner asked if logan should stay with smith." sherry responded in a "joking manner" with a "sort of grin" and identified herself make the minimum payments on the cards. from the evidence, it can be inferred that sherry carey disliked the notion of credit card debt, and carey and charles were depicted as hard- the verge of an adverse climax before the murders. her marriage, which began as one of sufficient corroboration to support a conviction.'"36 a: no, sir. that sherry was just "blowing off steam." theory. the court's approach, however, is incorrect under our case law requiring reviewing32 druery, 225 s.w.3d at 498.11 arrived at the house first, and gardner pulled into the driveway at the same time. several to sherry and making her the executor of his estate. charles owned the property and house and a month before the murders, when sherry was at tori's "hanging out" and carey came exchange for gardner's guilty pleas and testimony. while it is possible to infer that from the the 911 operator dispatched the grimes county sheriff's office to the smith house, at the time of the murders. sherry told investigator schroeder that the gun rack had been carey and charles, and then deceived carey by taking out numerous credit cards in his name while crying, sherry frantically reported to the 911 operator that she just got home at the same time, sherry helped care for her dying aunt and assumed the responsibility of the accomplice witness rule a: capital murder times two. something that she did. she stated that sherry inquired a few times about putting charles in of blood from the wounds. there was also some blood coming from his nose. lieutenant that night, which was played for the jury, sherry made several mean-spirited remarks, paycheck. working, honest people; thus, it can also be inferred that carey would have reacted badly had problems with his third wife at the time. gardner was aware that sherry and carey were a: yes, sir. sherry "was getting tired" and "wasn't very happy." "she said that if she left she didn't while conducting a search of the house, investigator klingle noted that the gun rack soil himself. she also helped care for carey, who had sleep apnea. sherry then quit her job gardner hid the guns and burned the paper and the bath robe on december 8th. after logan out of the house, and directed logan to put her coat on shortly thereafter. sherry had based on the circumstances surrounding gardner's testimony, sherry's attorneys in the court of criminal appeals o p i n i o n recently widowed, suffered from congestive heart failure, diabetes, emphysema, and asthma. would love him. everything else was fine, and carey was "good" to her. trial judge did not abuse his discretion in excluding this impeachment evidence because it him to sign the checks. sherry told valadez that she did not like to go to carey and charles greene that he was there to pick up logan. accomplice evidence was insufficient to tend to connect sherry to the murders. we1 balances on the statements delivered to johnson's address were "significant." once richardson v. state, 879 s.w.2d 874, 880 (tex. crim. app. 1993) (quoting36 was excluded as a contributor. the most conservative calculation as to the chances that was concerned that carey would eventually find out about the cards issued in his name a: a plea bargain. murders. motive and opportunity evidence is insufficient on its own to corroborate interview. sherry related the time-line of events, beginning with tori's late-night pick-up smith--23 the murders gardner testified that he helped tori set up his travel trailer on the smith's property. of law instruction. here, the court of appeals made an impermissible inference--one24 carey that she would take care of charles if anything happened to carey. she stated that grimes county to render a decision on the state's first ground for review--whether we should abandon the the house. sherry did not allow carey or charles to get the mail, but she would put the mail gardner was there when tori got home. tori went to bed around 2:30 or 3:00 a.m., and smith--13 appellant's attempt to get johnson to sign an affidavit exonerating appellant was a medications, was bathed, clothed, and fed, and that he used the restroom so that he did not smith--31 couched in a tone of either underlying disdain or inappropriate humor. there can be little puzzle. sherry expressed concern that someone was in the house so she went outside on the sherry lynn smith's request to instruct the jury that her ex-husband, daniel gardner, was unhappy and tired. when tori and sherry discussed sherry ending her marriage to carey, swabbing their hands. investigator schroeder bagged the swabs and turned them over to the loved tori. tori began to have some financial problems and problems with a man she was pleas to possession of a controlled substance and possession of a firearm by a felon--which an hour and a half or so after sherry got to mitchell's son's apartment, sherry and 744 s.w.2d 112, 126 (tex. crim. app. 1988). the state dismissed the capital murder charge against gardner in exchange for his testimony statement to cargill, stating that it would all be hers someday, when cargill complimented second interview. sherry agreed, even though she had planned to hold a viewing for carey card offers in the mail and that she was going to request a card in his name and have it sent things, that (1) the trial judge erred in denying her request to instruct the jury that gardner smith--28 two days after the murders, sherry told gardner that she shot carey and charles. next morning around 10:00 a.m. mother or tori. sherry acknowledged again that her marriage was unusual; she spent a lot insufficient to corroborate an accomplice's testimony. and an accomplice's testimony7 sherry also continued to accrue debt in carey's name after the murders. sherry still garza v. state, 296 s.w.2d 267, 268-69 (tex. crim. app. 1956) (citing17 a: yes, sir. automatic application of the accomplice witness as a matter of law rule to a state's witness on cross-examination by sherry's counsel about the plea deal, gardner testified as discovery of the bodies to her mother, directing her mother to write it down so that when she gardner's truck as close to the house as she could because she had to carry logan inside. interested in sherry because he never acted affectionately towards her. johnson also noticed where the guns in the house "are" located. sherry stated that "they're on the gun rack" by some camouflage clothing, a mask, a flashlight, and some other items. sherry complained about losing her favorite jeans and her only black sweater. sell two of them because they had serial numbers, and he told her that she did not have to could have been shot was 9:00 a.m., with the earliest time being 9:00 p.m. on the evening of rid of. then on december 6th, sherry told gardner that she had the guns and asked him what he discovered the betrayal. sherry's financial security was in jeopardy. to have no knowledge during the interrogation about the guns taken from the smith house claiming a tax deduction on account of the hay-hauling business. sherry told valadez that did not hear any gun shots, which he would have heard had a gun been fired in the vicinity. told sherry that the black gun case she described was gone, and in response, sherry stated person.8 household caused friction between sherry and carey. tori testified about how sherry talked and that gardner eventually entered into a plea agreement with the state on the two unrelated on state's petition for discretionary review we disagree with the court of appeals's construction of the record. as recognized gardner gave tori his old travel trailer and set it up next to the smith house. when tori warrant for credit card records. he was on probation at that time for felony theft. the before testifying about the murders, gardner testified on direct examination about the car had been totaled in an accident. she dropped logan off with sherry on the way. around state, 129 s.w.3d 530, 536 (tex. crim. app. 2004); kunkle v. state, 771 s.w.2d 435, smith--36 ground for review on our own motion: what is the appropriate remedy if a court of appeals her husband, carey smith, and her father-in-law, charles smith, in december 2002 while which, in this case, are indicative of guilty conscience. as such, the evidence of sherry's39 about her financial problems and talked about how she was the only one to help tori. sherry or near the scene of the crime at or about the time of its commission, when coupled with been able to hear. interviewed, tori stated that sherry went to talk to gardner outside because, according to proper deference to the jury's resolution of the facts, tends to connect sherry to the murders did not believe it because carey loved her. when asked about how much she had to lose if during the course of the investigation, ranger wells verified the information sherry would have made her life easier, sherry stated that charles would have wanted to be at home indicated the presence of a very small amount of blood. she did not perform any in a precarious position. she had spent her retirement money, did not have a job and was were not lesser-included offenses of capital murder--and his testimony implicating sherry. presumptive test on the bottom of the jeans sherry had been wearing on december 7th gardner's testimony by article 38.14, texas code of criminal procedure. we reverse the court of appeals's trial judge denied the request but instructed the jury to determine whether gardner was an beatty threw the rifle in the river. he had heard about the murders and figured that gardner payments on the accounts. and he required more assistance from sherry. charles was virtually homebound, constantly druery, 225 s.w.3d at 498; see oates, 86 s.w. at 772; barrara, 42 tex. at 264.25 kott stated, the relationship was "a little more serious, less playful." tori testified that in q: okay. now you're testifying today under a plea agreement, right? thank her afterward. after he was diagnosed with asthma, she did not want to have sex with about this because she stepped up on the truck in her bare feet and did not know if she had the state of texas into charles's room and shot him, aiming towards his chest. she said she was wearing only sherry, gardner "understood her." in the days after the murders, sherry did not cry; she kept evidence in each case will dictate whether an accomplice as a matter of law or fact gave to him about her whereabouts on december 7th by obtaining videotapes from wal-mart q: all right. what are you in jail for right now? what are you charged with? did not want to talk about it and was in disbelief. when he went back to tori's and saw murder weapon, and another gun to san antonio and gave them to his friend shipman to when sergeant martinez asked sherry if she checked on carey and charles after and opportunity are considered, all things point to sherry as the perpetrator and nobody else. on the morning of the 7th, between 7:30 and 7:45, the smith's next door neighbor, george brown v. state, 672 s.w.2d 487, 488 (tex. crim. app. 1984).26 about sex. sherry then asked the following rhetorical question with a laugh: "[w]ho wants see simmons, 282 s.w.3d at 508.34 follows: evidence to corroborate accomplice witness testimony. this ground, granted on our own cf. hernandez v. state, 939 s.w.2d 173, 178 (tex. crim. app. 1997); gill, 87341 in the car because it was going to be repossessed. would not satisfy article 38.14, the cumulative force of the non-accomplice evidence, giving an accomplice as a matter of law and that the trial judge therefore erred in denying his paying for rent and food. sherry told valadez that she was going to "use" carey. sherry told p.m. that would help the sheriff's office solve the murders. gardner gave his first statement smith--32 an accomplice as a matter of law because the evidence did not conclusively establish that the crim. app. 1924). the gun rack in the smith house when he visited shortly before thanksgiving in 2002. sherry told tori that she did not "know where she would go or what she would do." them to ranger wells and sergeant martinez, stating that they were "ripping [her] off." cf. reed, 744 s.w2d at 126-27 (evidence of an affair may be considered with37 recently been away at her aunt's, mitchell's mother's house, before her aunt died and that from 4:00 p.m. to 12:00 a.m. tori used gardner's old diesel truck to get to work because her unsure of the exact time because sherry was not sure how long she would be at wal-mart. shape financially. sufficiency and charge issues. we granted the state's petition and granted the following was charged with felon in possession of a firearm and possession of a controlled substance. request to instruct the jury as such.22 investigators recovered the jc higgins .22 rifle from tori's house on march 5th, the day paskett got the impression that sherry's spending was not restricted. when paskett ran into her robe and, while wearing nothing, took the guns out to her truck. she was concerned q: so, you got two years confinement with about twenty months credit? sherry brought it up again two weeks later, telling gardner that it had been hard to do and person an accomplice; an accomplice must have engaged in an affirmative act that promotes10 problems with his current wife, who lived in junction, and he wanted to find a job in grimes testimony unless the testimony is corroborated by other, non-accomplice evidence that tends kimble county for felony theft. because he had already served twenty months before fragments had the "same general rifling characteristics" as the 25.06 rifle. they both had six "[m]otive is a significant circumstance indicating guilt" when analyzing the legal point; she was stressed and exhausted. walked into the living room. the garage light that she turned on when she left in the morning testified that he was familiar with the guns kept at the smith house; he visited the smiths gardner, warned tori to be careful about what she said to investigators because it could abstract as mere theories. the evidence establishing both was overwhelming. when motive when gardner talked to sherry about tori's finances, the conversations were desired financial stability. decide whether the inculpatory evidence tends to connect the accused to the commission of q: so the net effect is you're going to get two years in prison and you have harshly to carey when sherry was at tori's house and carey wanted her to return home. confinement. the two years would run concurrent with the probation he was serving in 27 s.w.2d 211, 212 (tex. crim. app. 1930); chastain v. state, 260 s.w. 172, 173 (tex. gardner and sherry were trying to sell the smith's .22 rifle. sherry's involvement in helping capital murder indictment was dismissed in exchange for gardner's guilty plea in the other looking at carey's body, lieutenant greene observed a bullet entry wound behind being on when she returned home, she stated that carey and charles were "misers" and that fat thing all over you?" tex. 260, 264 (tex. crim. app. 1874). friday the 6th and whether carey knew about her plans to visit her cousin the next day. hold. on december 6th and 7th to ranger wells and sergeant martinez. during this interview, outside from 8:00 to 9:00 and then went inside his house for a few hours before he headed cocke, 201 s.w.3d at 748; ex parte zepeda, 819 s.w.2d 874, 876 (tex. crim.16 charles had two cds and that the interest on the cds paid for the truck. sherry also told doubt that this would have been lost on the jury. when sherry recalled the garage light still would call her at tori's to "keep tabs" on her and ask when she was coming home. sherry debt herself. sherry later admitted that she hid some of the credit card debt she had accrued opined that the two "liked to live in a morgue." she stated that she "couldn't stand it." up logan when she got home. sherry called gardner in a panic and asked him to come and was irrelevant."); hammons v. state, 239 s.w.3d 798, 805 (tex. crim. app. 2007) house looking for sherry, sherry "talked kind of ugly, like i will be home when i get home." simmons, 282 s.w.3d at 508.29 we begin with motive. for a number of reasons, sherry's life circumstances were on mattress. lieutenant greene did not notice any weapons or shell casings around the house. a: i've got tdc time coming. smith--18 plea agreement he reached with the state before sherry's trial: it is not appropriate for appellate courts to independently construe the non-accomplice the following weeks. when they returned home from the police station after sherry was first to connect the accused to the offense. evidence that the offense was committed is6 q: yes. 9:00 p.m., william kowis, carey's friend, called carey and talked to him on the phone about charles's health was worsening but that she and carey had decided that charles should not simmons v. state, 282 s.w.3d 504, 508 (tex. crim. app. 2009); reed v. state,28 herrera, 27 s.w.2d at 212; crissman v. state, 245 s.w. 438, 438 (tex. crim. app. room. two of the boxes seized contained 25.06 caliber rifle rounds, which investigator (tex. crim. app. june 16, 2010) ("we agree with the trial judge and court of appeals that trial judge's determination that a defendant is entitled to an accomplice witness as a matter and "what type of guns did [she] have in the house." sherry gave them a description of some as twenty hours, to become fixed after death. thus, the latest time on the 7th that the two gamez v. state, 737 s.w.2d 315, 322 (tex. crim. app. 1987).12 or seared into the flesh." he did not observe any powder burns around the wound. sherry did not cry during the interview and her demeanor changed at times: "she on occasion other inculpatory, non-accomplice evidence). was always a lot of stress and tension in the household. sherry would get "irritated" with from the outset of her relationship with carey, sherry talked about using carey for judgment and remand this case to the court of appeals to address sherry's remaining points sherry got up around 3:30 a.m. on december 7th and left her house around 4:00 a.m. of the 25.06 rifle recovered from shipman in san antonio. he concluded that the autopsy doubt as to whether a witness is an accomplice (i.e., the evidence is conflicting), then the trial when sherry returned home, she entered the house through the garage door and gardner told her not to talk about it, but sherry told him that she needed to tell someone. firearm. i'm on probation. it would be run concurrent with it. particular caliber round. accounts. she would use the accounts to buy cigarettes and gas, and carey or charles would tori a few weeks each month, and he had his own room in the house. gardner was having ranger wells and sergeant martinez inquired into whether carey was mad at sherry on told tori that she did not know where to go or what to do. in brief, a rational jury could have accomplice evidence is sufficient corroboration if it shows that rational jurors could have when investigators were concluding the interview, sherry hastily asked them not to think and logan to the diamond shamrock, and they arrived at about 3:40. sherry talked to or 7:45 to 8:00 a.m., one of the smith's neighbors was leaving his home and noticed that shops in the phone book. for money; she had to ask them for every nickle and dime. however, sherry's friend kim dating, so gardner started to visit tori more often to help her out. gardner was also having shortly after sherry and carey married, carey executed a new will leaving everything cases and his testimony at sherry's trial. as a result, the court concluded that gardner was21 a: plea agreement is to plead to tampering with evidence or felon with a q: uh-huh. in addition to her job as a prison guard, sherry began to clean carey's house. carey finds insufficient evidence to corroborate accomplice witness testimony? particular facts and circumstances of each case. the direct or circumstantial non-27 id.; blake, 971 s.w.2d at 455.14 evidence.30 carey's name that carey did not know about. tori received a credit card bill in sherry's it go." a few days later, tori observed sherry either calling gun shops or looking up gun first, sherry's behavior before and after the murders constitutes an independent officers discovered drugs in his pocket and a .22 rifle from the smith house in his room. he druery, 225 s.w.3d at 498; gamez, 737 s.w.2d at 322.23 q: and what was that? ("there is no bright line between a general challenge to memory or credibility and a connect the accused to the offense. we also observe that the court of appeals, in33 gardner went to bed around the same time. tori's landlord, who lived on the property, did the robe. sherry told gardner that she wrapped the 26.05 and the two spent shell casings in already done twenty months of it? seemed out of the ordinary. he also noted a child's puzzle on the living room floor with slurred at first but that the slur immediately went away and that she was cooperative. ranger they got to the diamond shamrock, sherry was there. sherry came out to his truck. she tex. code crim. proc. ann. art. 38.14.6 smith--17 her inheritance prediction. on several occasions, to different people, sherry overtly sherry was happy to have tori back in her life, and her life revolved around logan. carey blue, terry cloth robe. he had a feeling that the guns came from sherry, and he put them that tends to connect the accused to the crime. similarly, "`proof that the accused was at35 when combined with sherry's other interests and obligations. charles's health was declining charles. ones sherry used. gardner was pulling in when sherry was leaving. s.w.2d 340, 342 (tex. crim. app. 1957) (evidence of flight is a corroborating although investigators found two .22's, a rational jury could have inferred that that he was hearing things and to go back to bed. she waited for some time and then went mitchell, sherry's cousin. sherry helped mitchell take care of mitchell's dying mother about the identity of the murderer. the gun-shot residue testing on sherry and gardner did to be an accomplice as a matter of law. there was no evidence that the capital murder a forensic biologist tested sherry's clothing for trace evidence. she reported that the house and complained about tori because the two had been fighting. sherry was stressed was questioned again by investigators she would not become confused. sherry, along with lieutenant todd greene headed the crime-scene investigation. gardner told lieutenant 439 (tex. crim. app. 1986)). when sherry explained why she was scared to touch carey's body, she stated that carey is sherry had a car but was not making the monthly payments, even though carey was told gardner that she could shoot them, and gardner told her that she lost her mind and sherry arrived at the apartment between 7:30 and 8:00 a.m. around this time, between 7:30 sherry lynn smith, appellant a: yes, sir. and that her husband and father-in-law were dead. she expressed concern over getting "cussed out" tori and hung up on her. tori left work at 12:45 a.m. on december 7th and he visited his property. see, e.g., irby v. state, pd-1097-08, 2010 tex. crim. app. lexis 725, 48-4924 to live much longer. sherry told tori that carey would not live long after charles died and a few weeks later, sherry approached gardner and said that she had some guns to get q: you going to get credit for the time you have been in jail? smith, 286 s.w.3d at 424.31 affording proper deference to the jury's fact resolution, we conclude that the non- intent by the witness to fabricate."). explicitly rejected by the trial judge--that the state dismissed the capital murder charge in smith--10 his truck. he used methamphetamine at this time and he dozed on and off until she got home smith--21 instruction and it entered a judgment of acquittal.4 unusual reaction. the jury also heard, firsthand, the callous comments that sherry made brown v. state, 320 s.w.2d 845, 847 (tex. crim. app. 1959).8 accomplice as a matter of fact. cannot say that the trial judge erred in doubting gardner's status as an accomplice as a matter lieutenant greene entered the house and surveyed the crime scene. he observed carey's and his day and the weather. tori called sherry at 10:00 p.m., and sherry told tori that she and a: yes, sir. price, womack, hervey, and cochran, jj., joined. johnson, j., concurred. gardner sell the .22 on the heels of the murders suggests that sherry had a personal interest and logan would eat with everyone inside the house. at this time, charles's health declined, gun rack. he observed that the house was in order, which, given the double-homicide, smith--3 cf. gill, 873 s.w.2d 45, 48 (tex. crim. app. 1994) (defendant's secretive39 the facts. the court of appeals improperly supplanted the jury's verdict with its own view that it was "weird" that the two did not have sex. she stated that their marriage was not that sherry was upset, but johnson "felt that [sherry] wasn't upset enough." were shot. sherry was at home shortly before 4:00 p.m. on the 6th, when tori dropped off they slept. cf. simmons, 282 s.w.3d at 510 ("a jury could also rationally find that40 murdered carey and charles, is distinct from her malevolent behavior and bitter attitude,38 reed, 744 s.w.2d at 126.27 get logan. gardner headed to the smith house and picked up logan and took her back to found that it sufficiently tended to connect the accused to the offense. so when there are28 was empty. investigator klingle did not recover any gun shell casings from the house. he as the accused is an accomplice as a matter of law. but if the state dismisses the indictment16 rutledge saw sherry standing in the front yard. the officers identified sherry and gardner. he also noted that there were no signs of a forced entry or a struggle and that the gun rack would be playing god. sherry then said that their health is "bad" anyway. when gardner smith--2 smith, 286 s.w.3d at 423.21 contrary to the court of appeals, we hold that the trial judge did not err in denying the state petitioned us for review, challenging the court of appeals's decision on the his money and inheriting his property. sherry certainly followed through on her intentions and that she was able to care for him. see guevara v. state, 152 s.w.3d 45, 49 (tex. crim. app. 2004) (stating that38 smith--12 the non-accomplice evidence shows that sherry had both the motive and opportunity was sufficient to tend to connect sherry to the offense. state's petition for discretionary review her that she would be later than ususal to pick up logan because she still had to stock the was trying to set him up by giving him the murder weapon. intimacy. she stated that carey paid all of the bills and gave her access to his two checking "need this" and could not "believe this was happening" to her. when logan reacted to not show the presence of any residue. light she had turned on before she left in the morning was still on when she returned home. instruct the jury on the accomplice witness rule--as a matter of law or fact.20 did not lie in his bed during the afternoon. because sherry could not see carey's face, she curtis klingle, an investigator with tdcj's special prosecution unit, accompanied also explained that she had sex with carey only one time; she was not attracted to him scopes on the rack and a .22, on the bottom of the rack, without a scope. sergeant martinez moved onto the property, she noted that it was understood by carey and sherry that their 202, a jc higgins .22 rifle, stating that it belonged to the smiths and that he had seen it on conflicting views of the evidence--one that tends to connect the accused to the offense and accomplice witness instruction capital murder charge against gardner was dismissed in exchange for his testimony at tori when tori worked. toward the end of the summer in 2002, gardner started to live with sherry's demeanor and became upset, sherry eventually directed logan's attention to the murder was "typical of someone who was grieving." time. during one of those discussions, sherry brought up shooting carey and charles again, next, because motive and opportunity are insufficient on their own to tend to connect a credit card in carey's name. sherry acknowledged that it was "her" debt, some of which tori's house. she told him that she would be leaving early one morning to visit a family in paper, one rifle was wrapped in a robe, and there were two rifles in a plastic case. gardner sherry at the grocery store, sherry told her that she had carey's checkbook and was in good in the grimes county jail. explaining the situation, gardner testified that he was arrested she stayed with charles overnight in the hospital. does not show that the capital murder charge was dismissed in exchange for gardner's have shot the two men while they slept. was still on. she noted that it was quiet in the house, but did not think that was unusual. she that both men were dead from the blood and the way that they looked. she called 911 at 4:30 with charles. further, sherry's resentment about her financial dependance on carey was brown v. state, 672 s.w.2d 487, 489 (tex. crim. app. 1984)). sexual encounters with appellant and his entirely separate probationary status. thus, the gardner stated that sherry discussed her troublesome financial situation all of the sherry's presence, to help him call a couple of local gun shops because he had an "old .22" then went to charles's room, looked at his face and saw blood, and shut the door. she knew id. at 423-39.3 other suspicious circumstances, may tend to connect the accused to the crime so as to furnish would get angry and tell carey that she "would be home when she got there." about a month felon in possession of a firearm in exchange for his testimony at sherry's trial and two years' conclusion s.w.2d at 49. she was looking forward to the day that she would be "set up," without the obligations a: in kimble county. wells and investigator martinez asked sherry if she noticed anything missing from the house put them in a non-working freezer in the garage. an hour later, gardner went outside and was an accomplice as a matter of law, and (2) the non-accomplice testimony was insufficient attached to her marriage. therefore remand this case for proceedings consistent with this opinion. carey's and charles's deaths also established that sherry was the only person who could from the record may be made, though not a necessary inference, it is improper to overrule a at the time of the murders, was the one who removed the .22 rifle and consequently the other by all accounts, the marriage was one of convenience, though carey had shown a smith--7 confirmatory test because the amount of blood was so small. subsequent dna testing q: that's right. you're going home in march, aren't you? that sherry was romantically interested in gardner. sherry told johnson that gardner was on december 9, 2002, gardner called his friend tracy beatty and told him to come still being delivered to johnson's post office box, indicate that sherry used the cards for sergeant johnny martinez also investigated the scene. he also took note of the empty gardner, stayed in the house with gardner after tori moved. on december 11, 2002, ranger wells called sherry and asked her to come in for a felony charges here. and what is going to happen on those charges if you smith--40 determined that the evidence concerning the marriage indicated that sherry was at a breaking a "big man" and that she was shocked by blood on his "big old face." sherry also sherry told linda valadez and nikki johnson, her friends and former co-workers, that finally, viewed rationally, the non-accomplice evidence may be construed to connect was accrued by gambling, said she was making the minimum payments, though the balance found a .22 deeringer pistol in a backpack stored in the garage. the backpack also contained strongly suggests that sherry was the only one at home with carey and charles when the two q: you went, did you not, from a capital murder times two indictment to going that everything would be hers. according to tori, sherry was no longer content; she was sherry's trial. we further hold that the court of appeals erred in holding that the non- $30,000 on one account and that she was having a difficult time making the minimum after the interview, tori moved to florida. sherry, who had been living with tori and drive up and saw headlights. gardner went back to sleep and woke up again around 7:30 as to avoid punishment or shift blame to another person." therefore, under texas code of5 that the house and property would go to sherry if both men died at the same time. a: i thought it was felony theft. was usually up in the morning before 7:30 a.m. sherry told ranger wells and sergeant kunkle, 771 s.w.2d at 439.10 the jury could have concluded the following: ammunition indicated that, at some point, the smiths kept a gun in the house that used that taking good care of the house as well as of carey and charles; the three had maintained a a nursing home. simcik indicated that she decided not to discharge charles as a patient financial stability for herself, tori, and logan. the timing and circumstances surrounding mitchell v. state, 650 s.w.2d 801, 807 (tex. crim. app. 1983).33 which she had no means to repay, to rekindle an old romance with gardner, and to secure saw sherry either calling gun shops or looking for gun shops in the phone book and assumed erred in concluding that gardner was an accomplice as a matter of law because the record without his knowledge, the debt, and sherry's concerted efforts to conceal it all from him. told gardner that she had a solution to her financial problems. gardner told her that he did ranger wells and sergeant martinez confronted sherry about a $24,000 balance on smith--20 id.22 both carey and charles and that it takes approximately eight to twelve hours, and as much cash advances, personal items, and to pay other bills. in disposing of the gun. a jury could therefore reasonably infer that sherry, who had claimed a. currently? carey." she did not know how carey would react when he found out about the debt. sherry martinez that carey was usually up before 7:00 a.m. sherry told investigators that the garage law. a witness continues to be regarded as an accomplice, however, if the witness agrees17 and "needed some money." this prompted tori to question gardner's judgment, given the 2002, the topic arose again when sherry was visiting tori's house. sherry was frustrated that she needed a set of tire tracks to be at her house at a certain time. she said that she investigator schroeder conducted gun-shot residue testing on sherry and gardner by "full," establishing that the guns had not been missing before the murders. carey's nephew a: yes, sir. shook his head in disbelief, sherry said that she could do it. at the time, gardner thought medical problems due to his weight; sherry told tori that he would not live much longer. publish accomplice as a matter of law instruction sufficiency of non-accomplice evidence over to tori's. when beatty arrived, gardner gave him a .22 rifle. about a month later, smith property. sherry would visit tori a few times a week, and she still watched logan for friends noticed that charles's declining health caused sherry stress; she was tired. tori's. the investigation was forthright in describing her marriage to carey as one involving a quid pro quo--carey to use carey for financial gain. she quit her job, exhausted her retirement fund, lived off of between 7:00 and 7:20 a.m. on december 7th. tori did not hear anything near the house, that she was helping gardner sell the .22. cross-examiner's questions or the tenor of that questioning would reasonably imply an member in the hospital and would drop them off on her way. see tex. code crim. proc. ann. art. 38.14 (vernon 2005).1 worry about the .22 and 25.06. gardner later took the 25.06, which he identified as the difficulty giving the 911 operator directions to the house. sherry stated that she did not know where she would go or what she would do." tori stated that when carey called her of the guns and a gun case that belonged to carey's nephew. she stated that there "were" career. she started in the mail room at the wallace pack unit and later became a prison what the record does show is that the capital murder charge against gardner was dismissed examiner compared the autopsy fragments to jacketing samples obtained during test-firing months. sherry would stay with charles when he was hospitalized. tori and sherry's for the first time on december 9th and, at that time, gardner did not provide any information oates v. state, 86 s.w. 769, 772 (tex. crim. app. 1905); barrara v. state, 4218 to kill carey and charles and that sherry was present at the time of the murders. caring for logan while tori worked and socialized. sherry's time away from the smith sherry to the guns taken from the smith house. the guns owned by the smiths went missing stressed charley's entire system--his kidneys, heart, and lungs. sherry would get irritated about carey and charles to ranger wells and sergeant martinez. finally, the evidence needed someone to take care of his home and father, and sherry liked to feel needed and sherry's and gardner's hands. is not going to see nothing." sherry told gardner that she would call him to come and pick a: yes, sir. tori's when gardner was there. and she revealed to tori that she loved gardner and that the murders as incriminating or suspicious, we note an overlap with some of the evidence because he lacked adequate care. she wanted to keep an eye on him. instruction is required. when the evidence clearly shows (i.e., there is no doubt) that a14 carey retired around the same time. the two married within a year, on july 26, 2000, which q: how much? not see gardner's truck in the driveway in front of tori's house when she drove by sometime appears absolute, the trial judge has some discretion when logical inferences, supporting carey divorced her, sherry stated that she could go back to work at tdcj and live with her new cell phone. sherry called tori when she was about a half hour from home, and the two his right ear and an exit wound on the back of the left side of his head, with a small amount valadez that charles gave her two $500 checks after she gave charles cough syrup and asked shamrock and headed to tori's house to pick up logan's ear drops, which were the same her while tori worked. sherry got to the diamond shamrock at 3:20. gardner drove tori mitchell drove to humble in separate vehicles to visit sherry's cousin in the hospital. sherry actions after the offense used as a corroborating circumstance); cawley v. state, 310 sherry's relationship with the smiths deteriorated considerably before the murders. that it was there and then asked, "all the guns are gone, aren't they?" sherry stated that courts to consider the combined force of all of the non-accomplice evidence that tends to sherry gave the clothing that she was wearing to sergeant martinez and ranger wells a: felon in possession of a firearm, possession of a controlled substance. a: i got a deal? when reviewing the sufficiency of non-accomplice evidence under article 38.14, we gardner was arrested. ranger wells found the .22 rifle in the closet in gardner's room. her non-existent sex-life with carey. while explaining why carey did not "nag" her about the two had kissed. sherry also told her friend johnson that gardner was a "changed person" had been delivered to johnson's post-office box. in ranger wells's opinion, the credit-card on march 5th at tori's house, when the grimes county sheriff's office executed a search motion, is also dismissed as improvidently granted. are dismissed now? commission with the requisite mental state. presence at the crime scene does not make a9 other officers, who had been dispatched to the scene, arrived in short succession. deputy carey or charles, though he had seen carey outside the week before. sarondos bailed hay carey. the capital murder charge was later dismissed. shortly before sherry's trial, he smith--19 of time by herself or with logan in her bedroom watching television while carey and charles stated that "it is" full. guns from the house.41 complained to him that she felt smothered by carey and charles; she was unhappy and did klingle described as small high-velocity rounds. in investigator klingle's opinion, the 25.06 an accomplice as a matter of law. the evidence at trial failed to definitively establish that the house and help carey care for charles. sherry made sure that charles took his charles early on as "picking and laughing . . . in a playful kind of way." towards the end, several times throughout the interview, sherry made disparaging remarks about she did not want that "fat thing" on her when explaining her marriage's lack of physical after hearing about carey's and charles's murders, carey's friend glen love drove to the a "changed person" and indicated that she may get back together with him. it. a state's witness may be an accomplice as a matter of law or as a matter of fact. the12 13 indictment was dismissed as part of a package deal, i.e., in exchange for gardner's guilty


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