Bruce Wayne Harkey v. State

Opinion

ACCEPTED

03-14-00734-CR

7792859

THIRD COURT OF APPEALS

N O . 03-14-00734-CR AUSTIN, TEXAS 11/12/2015 10:01:29 AM

JEFFREY D. KYLE

CLERK

I N T H E C O U R T O F APPEALS

O F T H E T H I R D D I S T R I C T OF TEXAS FILED IN 3rd COURT OF APPEALS

AUSTIN, TEXAS

11/12/2015 10:01:29 AM

B R U C E W A Y N E HARKEY, JEFFREY D. KYLE Clerk

Appellant

V.

T H E STATE O F TEXAS

Appellee

Appeal i n Cause N o . 5731 i n the 33^^ Judicial District Court o f San Saba County, Texas

Brief For Appellee

OFFICE O F D I S T R I C T A T T O R N E Y 3 3 ^ and 424^^ J U D I C I A L D I S T R I C T S Wiley B. McAfee, District Attorney P. O. Box 725, Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx.us

By: Gary W . Bunyard

Assistant District Attorney State Bar N o . 03353500

A T T O R N E Y FOR APPELLEE

November 12, 2015

Oral Argument Requested

Identity Of The Parties

Trial Court

Honorable J. Allan Garrett 33"'^ Judicial District Burnet County Courthouse Annex (North)

1701 East Polk St., Suite 74 Burnet, T X 78611

State/Appellee

Wiley "Sonny" McAfee (Pre-trial and Trial Counsel)

District Attorney 1701 E. Polk, Suite 24 Burnet, Texas 78611 (512) 756 - 5449 State Bar N o . 13318020

Anthony J. "Tony" Dodson (Pre-trial and Trial Counsel)

Assistant District Attorney P. O . Box 725 Llano, Texas 78643 (325) 247-5755 State Bar N o . 05927200

Peter Keim (Trial Counsel)

Assistant District Attorney 1701 E. Polk, Suite 24 Burnet, Texas 78611 (512) 756 - 5449 State Bar N o . 15532500

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Gary W . Bunyard (Appellate Counsel)

Assistant District Attorney P. O. Box 725 Llano, Texas 78643 (325) 247-5755 State Bar N o . 03353500 g.bunyard@co.llano.tx.us

Appellant

Donald Rudolph "Rudy" Taylor (Pre-trial [7/8/2013] Counsel)

P.O. Box 1045 Edin, Texas 76837 State Bar N o . 24039498

Richard D . Davis (Pre-trial and Trial Counsel)

P.O. Box 398 Burnet, T X 78611 State Bar N o . 05537100

T o m m y Adams (Pre-trial and Trial Counsel)

1901 Vincent Brownwood, Texas 76801 State Bar N o . 00885200

Barton Thomas Vana (Pre-trial and Trial Counsel)

101 Highway 281 N o r t h , Suite 205C Marble Falls, Texas 78654 State Bar N o . 24084441

Richard D . Davis (Appellate Counsel)

P.O. Box 398 Burnet, T X 78611 State Bar N o . 05537100 rdd@austin.twcbc.com

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Keith S. Hampton (Appellate Counsel) 1103 Nueces Street Austin, T X 78701 State Bar N o . 08873230 keithshampton@gmail.com

Bruce Wayne Harkey (Appellant) T D C J #01924278 SID #04505208 Allan B . Polunsky U n i t 3872 F M 350 South Livingston, T X 77351

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Table Of Contents Page

Index o f Authorities vii Statement o f the Case 1 Statement on Oral Argument 1 Response to Issues Presented 2 Statement o f the Facts 3 Summary o f the Argument - Response to Issue N o . 1 9

The record contains corroborating evidence o f an incriminating nature that tends to connect Appellant to the murder o f Karen Johnson.

Summary o f the Argument - Response to Issue N o . 2 9

The record contains corroborating evidence o f an incriminating nature that tends to connect Appellant to the murder o f Bonnie Harkey.

Argument on Response to Issue N o . 1 and Issue N o . 2 1.1 and 2.1 Principals of Law 11 1.2 and 2.2 Applicable Facts 14 1.3 and 2.3 Discussion and Conclusion 24

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Summary o f the Argument - Response to Issue N o . 3 30

Admission o f extraneous acts o f bad conduct was proper because the acts o f bad conduct were material and relevant to show Appellant's continuing scheme, motive, intent to engage i n a conspiracy, and i n rebuttal o f Appellant's defenses.

Argument on Response to Issue N o . 3 3.1 Principals of Law 31 3.2 Applicable Facts 35 3.3 Discussion and Conclusion 40 Summary o f the Argument - Response to Issue N o . 4 45

The State is not required to adhere to a ritualistic form to comply w i t h T R E Rule 404(b). A copy o f a statement referencing the extraneous bad act is sufficient to provide notice under the rule. I n addition this evidence was i n fact same transaction contextual evidence.

Argument on Response to Issue N o . 4 4.1 Principals of Law 46 4.2 Applicable Facts. 49 4.3 Discussion and Conclusion 53 Prayer for Relief. 56 Certificate o f Word Count, 56 Certificate o f Service 57

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Index Of Authorities

Case Law Page Attwood V. State, 509 S.W.2d 342 (Tex. C r i m . App. 1974).... 12 Bass V. State, 270 S.W.3d 557 (Tex. C r i m . App. 2008) 33 Bryant v. State, All S.W.2d 66 (Tex. C r i m . App. 1971) 32 Dalrymple p. State, 366 S.W.2d 576 (Tex. C r i m . App. 1963). 11 Grayson v. State, 481 S.W.2d 859 (Tex. C r i m . App. 1972).... 32 Hayden v. State, 66 S.W.3d 269 (Tex. C r i m . App. 2001) 46 Hernandez v. State, 176 S.W.3d 821 (Tex. C r i m . App. 2005) 47 Holkday v. State, 709 S.W.2d 194 (Tex. C r i m . App. 1986)... 12, 13 Holmes v. State, 70 Tex. C r i m . 423, 157 S.W. 487 (1913) 12 Jones V. State, 481 S.W.2d 900 (Tex. C r i m . App. 1972) 32 Luquis V. State, 72 S.W.3d 355 (Tex. C r i m . App. 2002) 34 Mann v. State, 718 S.W.2d 741 (Tex. C r i m . App. 1986) 49 Mayes v. State, 816 S.W.2d 79 (Tex. C r i m . App. 1991) 48

Mitchell V. State, 650 S.W.2d 801 (Tex. C r i m . App. 1983), cert. den. 464 U.S. 1073, 79 L . Ed. 2d 221, 104 S. Ct. 985. 11, 12 Montgomery v. State, 810 S.W.2d 372 (Tex. C r i m . App.

1991)(opinion on rehearing) 31,32,33, 34

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Montoya v. State, 810 S.W.2d 160 (Tex. C r i m . App. 1989), cert, denied, 112 S.Ct. 426,116 L.Ed.2d 446 (1991) 14 Paulus V. State, 633 S.W.2d 827(Tex. C r i m . App. 1982) 12 Perkins v. State, 450 S.W.2d 855 (Tex. C r i m . App. 1970) 12 Pitts V. State, 916 S.W.2d 507 (Tex. C r i m . App. 1996) 46 P(ywen V. State, 63 S.W.3d 435 (Tex. C r i m . App, 2001) 33 Reed V. State, lAA S.W.2d 112 (Tex. C r i m . App. 1988) 13

Reynolds v. State, 489 S.W.2d 866 (Tex. C r i m . App. 1972).... 12 Rogers v. State, 461 S.W.2d 399 (Tex. C r i m . App. 1970) 12

Rose V. State, 752 S.W.2d 529 (Tex. C r i m . App. 1987)

(plurality opinion) 34 Sauceda v. State, 129 S.W.3d 116 (Tex. C r i m . App. 2004) 49 Simmons p. State, 282 S.W.3d 504 (Tex. C r i m . App. 2009) 13 Smith p. State, 332 S.W.3d 425 (Tex. C r i m . App. 2011) 13

Swarh p. State, 125 S.W.3d 672 (Tex. App.—Houston Ist Dist.] 2003, pet. dism'd) 49 Washburn P. State, 167 Tex. C r i m . 125, 318 S.W.2d 627, 634 (Tex. C r i m . App. 1958) 11

Worthy p. State, 312 S.W.3d 34 (Tex. C r i m . App. 2010) 48

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Constitutions None cited

Statutes/Rules Tex. Penal Code Sec. 7.02 (b) 14 Tex. R. App. Proc. Rule 38.1(d) 1 Tex. R. App. Proc. Rule 44.2(b) 47 Tex. R. App. Pro. Rule 81(b)(2) 33 Tex. R. Evid. Rule 401 31 Tex. R. Evid. Rule 403 34 Tex. R. Evid. Rule 404 (a) 30 Tex. R. Evid. Rule 404 (b) 33, 46, 47, 48

Treatises/Publications Tex.Jur.2d Evidence, § 195 32

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statement Of The Case Appellant has adequately described the Statement o f the Case under the provisions o f Rule 38.1(d) Tex. R. App. Proc.

Statement on Oral Argument The undersigned requests Oral Argument. While the undersigned does not believe that Oral Argument w i l l be beneficial for this case for the reason that the issues are straight forward and lack any novel or complex nuances, Appellant has requested Oral Argument. Should the Court believe that Oral Argument w i l l assist the Court i n any way, the undersigned w i l l gladly accommodate the Court.

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R e s p o n s e To Issues Presented Response T o Issue One: The record contains corroborating evidence o f an incriminating nature that tends to connect Appellant to the murder of Karen Johnson.

Response T o Issue Two: The record contains corroborating evidence o f an incriminating nature that tends to connect Appellant to the murder of Bonnie Harkey.

Response to Issue Three: Admission of extraneous acts of bad conduct was proper because the acts o f bad conduct were material and relevant to show Appellant's continuing scheme, motive, intent to engage i n a conspiracy, and in rebuttal of Appellant's defenses.

Response to Issue Four: The State is not required to adhere to a ritualistic form to comply w i t h T R E Rule 404(b). A copy o f a statement referencing the extraneous bad act is sufficient to provide notice under the rule. I n addition this evidence was i n fact same transaction contextual evidence.

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statement Of The Facts Appellant has not fully described the facts o f this case.

Victim, Bonnie Harkey, and her predeceased husband, Riley Harkey, had acquired a substantial and well known pecan farm, most o f which was owned by Riley prior to his marriage to Bonnie. RR Vol. 7 Page 65. Riley Harkey had two sons by a prior marriage, John Harkey and Bruce Harkey (Appellant). RR V o l . 7 Page 65. Bonnie Harkey had one predeceased daughter, Connie Ballinger. RR Vol. 7 Page 66. Connie Ballinger had one adopted son, Carl Pressley (co- defendant). RR Vol. 7 Page 66. The W i l l o f Riley Harkey provided for a Life Estate to Bonnie Harkey to the entire pecan estate. RR Vol. 7 Page 79. The W i l l further provided that upon the death o f Bonnie Harkey, as to one portion o f the pecan estate, the Prichard Orchard, a Life Estate would then pass to Connie Ballenger w i t h a remainder to Carl Pressley while as to the other portion o f the pecan estate, the Harkeyville Orchard and the Home Place Orchard, a Life Estate w o u l d then pass to John Harkey and Appellant w i t h a remainder to the children o f John and Appellant. RR Vol. 7 Pages 92 - 94; RR Vol. 13 State's Exhibit 8.

Following the death o f her husband, Bonnie Harkey began to suffer from dementia to the point that a guardianship o f her person and o f her estate was

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established. RR V o l . 7 Page 63. Connie Ballenger was first appointed as guardian o f the person and o f the estate o f Bonnie Harkey. RR Vol, 7 Page 62. I n 2011 Connie Ballenger died and Barrel Spinks was appointed as temporary successor as guardian o f the person and o f the estate. RR V o l . 7 Page 62. Because o f Bonnie Harkey's dementia, she required the services o f three care givers rotating on a 24 hour a day basis. RR Vol. 7 Page 136.

U p o n his appointment Darrel Spinks refused to approve a proposed sale o f i n excess o f 65 acres o f one section o f the farm that John Harkey and Appellant wanted sold. RR Vol. 7 Pages 74 - 75, 77 - 80. Later, i n August 2011, Darrell Spinks became permanent guardian o f the estate o f Bonnie Harkey while BettyJohnson was appointed as permanent guardian o f the person o f Bonnie Harkey. RR Vol. 7 Pages 85 - 87. W i t h terms then modified, Darrell Spinks at this point approved the sale by John Harkey and Appellant o f approximately 88 acres o f the Home Place Orchard to a third party w i t h John and Bruce receiving the sales proceeds. RR Vol. 7 Pages 9 0 - 9 1 . The remaining portion o f the Home Place Orchard, including the residence, became the permanent separate property o f Bonnie by agreement o f the parties involved. RR Vol. 7 Page 80.

Also i n August 2011 Carl Pressley sold his future interest i n the Prichard Orchard to John Harkey and Appellant for $70,000. RR Vol. 7 Pages 95 - 96, 232.

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Just prior to this sale, Appellant was negotiating w i t h famed actor T o m m y Lee Jones to sell the Prichard Orchard for close to $600,000. RR V o l . 7 Pages 97 - 99. However, Darrell Spinks refused to relinquish Bonnie Harkey's Life Estate i n the Prichard Orchard and this anticipated sale did not occur. RR V o l . 7 Pages 99 - 103. The contractual closing o f this sale was to be April 12, 2012. RR Vol. 7 Page 111.

D u r i n g this period where Darrell Spinks was guardian o f the estate o f Bonnie Harkey, Appellant was frequently complaining about the manner i n which Spinks was running the farm, being outright hostile to Spinks. RR Vol. 7 Pages 109 - 110. Appellant complained that Spinks was interfering w i t h Appellant's legacy. RR Vol. 7 Page 110. Appellant would often refer to the pecan orchards as his estate and his trees. RR Vol. 7 Page 133.

Appellant has held a dislike o f Bonnie Harkey from the time that she married Riley Harkey. RR Vol. 13 State's Exhibit 108 (See State's Exhibit 109 Pages 117 - 118). Appellant has told various persons who were acquainted w i t h Appellant but not otherwise confidants, things like:

1. "....he wished the bitch was dead where he could get his part and go to Belize." RR Vol. 9 Page 56.

2. " O n one hand he would say that he did care for Bonnie Harkey, and then i n reverse o f that he would turn around and say that he couldn't stand her, and he hated her, and she needed to die." RR Vol. 10 Page 19.

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3. "The most anger that I saw that was i n reference to the land. I t was his land.

It was i n his family. I t wasn't the Pressleys' land. I t wasn't Bonnie's land."

R R V o l . 10 Page 24.

4. "He said that he was ready to take control o f his property." " That she needed to die, or that she needed to be out o f her right mind." RR Vol. 10 Pages 38 -

39.

5. "He called her an old bitch and said he couldn't believe the old bitch didn't have the decency to die." R R V o l . 10 Page 56.

6. " I could have pushed her o f f o f a riverbank and nobody would have even known anything. I could have dropped a pecan tree on her, for God's sake."

and " I used to go into her bedroom and check on her. She'd be laying up i n bed. (Snoring noise) You know, all I had to do was put a pillow over her face and she was gone." R R V o l . 13 State's Exhibit 112 (refer to State's exhibit 113 for transcript).

About a week prior to March 26, 2012, Appellant instructed co-defendant Carl Pressley that the use o f a pillow to suffocate Bonnie Harkey would make sure that no fingerprints or evidence was left after the murder. RR Vol. 7 Page 226. O n Friday, March 23, 2012, Appellant paid co-defendant, Carl Pressley, $100, w i t h more to be deposited into Pressley's bank account, to k i l l Bonnie Harkey. RR V o l . 7 Page 210. Appellant wanted the murder to be committed during that weekend. R R V o l . 7 Page 211.

Pressley went to the residence o f Bonnie Harkey on March 25, 2012. RR V o l . 7 Page 215. Pressley entered the residence through a window and hid. RR

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Vol. 7 Page 216. Pressley sent his wife a text and then his wife rang the door bell. RR V o l . 7 Page 220. When the door bell rang Pressley began making his way toward the door. RR Vol. 7 Page 222. Pressley went past Bonnie Harkey and attacked Bonnie's caretaker, Karen Johnson. RR Vol. 7 Page 223 - 224. Once Karen Johnson was dead, Pressley went into Bonnie Harkey's bedroom to get a pillow w i t h the intent to suffocate Bonnie Harkey. RR Vol. 7 Page 226. Pressley walked Bonnie Harkey to her bedroom, asked her to pray w i t h him, and then placed the pillow over Bonnie Harkey's face. RR V o l . 7 Pages 227 - 228.

Pressley was interrupted at which time he walked Bonnie Harkey to the garage and placed her into the car. RR V o l . 7 Pages 228 - 230. Pressley and his wife, Lillian King, drove Bonnie Harkey to Hilltop Lakes near Normangee i n Leon County, where Pressley and King were living. RR Vol. 7 Page 236. After taking Bonnie Harkey to the park's community restroom, Pressley walked Bonnie down to the creek bed. RR Vol. 7 Pages 237 - 238. There Pressley hit Bonnie i n the head and then held her head down i n the mud until she drowned. RR Vol. 7 Page 239. Pressley covered the body w i t h leaves and then burned his clothing and the seat cover from the car. RR Vol. 7 Page 240.

D u r i n g the time o f the murders, Appellant was i n Fort W o r t h w i t h his brother because Appellant did not want to directly participate. RR Vol. 7 Pages 240 - 241.

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The day after the murders, Pressley and King returned to San Saba at the request o f Sheriff Brown. RR V o l . 7 Pages 250 - 251. U p o n arrival Pressley promptly confessed to the murders o f Bonnie Harkey and Karen Johnson and included i n his statement Appellant's participation. RR Vol. 7 Pages 251 - 254.

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Summary Of The Argument on Response to Issue No. 1 and Issue No. 2

T h e record contains corroborating evidence o f an incriminating nature that tends to connect Appellant to the murder o f K a r e n Johnson.

T h e record contains corroborating evidence o f an incriminating nature that tends to connect Appellant to the murder o f Bonnie Harkey.

Appellant complains that there is no evidence i n the record that corroborates any o f the accomplice witness testimony and tends to connect Appellant to the murder o f either Karen Johnson or Bonnie Harkey. Appellant does not dispute the evidence that Carl Pressley, w i t h the assistance o f Lillian King, murdered ICaren Johnson and then kidnapped Bonnie Harkey, drove her to Leon County, and held her head i n the mud until she drowned. The State's theory at trial was that Appellant aided, assisted, encouraged and otherwise conspired w i t h Carl Pressley to murder Bonnie Harkey and that Appellant knew or should have known that the care giver on duty would have been murdered during the course o f the attempted murder and

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subsequent kidnapping and murder o f Bonnie Harkey. The record does contain independent evidence o f Appellant's hatred o f Bonnie Harkey both before and after the murders. Appellant's monetary payment to Carl Pressley shortly before the murders, Appellant's unusual comments shortly before the murders to several mere acquaintances that he was leaving town for the weekend. Appellant's odd phone call to the Sheriffs Office the day before the murders stating that he was i n Fort W o r t h and requesting a welfare check, Appellant's description o f his conversation w i t h John Harkey about hoping Bonnie Harkey was found floating face down i n a river, Appellant's knowledge that Bonnie Harkey required the assistance o f a full-time caretaker, and the proximity o f the murders i n time as compared to the proposed date o f closing on the sale o f land to T o m m y Lee Jones.

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Argument On Response to Issue No. 1 and Issue No. 2 1,1 and 2.1 Principals of Law The test as to the sufficiency o f the corroboration is to eliminate from consideration the evidence o f the accomplice witness and then to examine the evidence o f other witnesses w i t h the view to ascertain i f there be inculpatory evidence, that is evidence o f incriminating character which tends to connect the defendant w i t h the commission o f the offense. I f there is such evidence, the corroboration is sufficient; otherwise, it is not. Dalrympk v. State, 366 S.W.2d 576 (Tex. C r i m . App. 1963).

I n applying the test o f the sufficiency o f the corroboration, each case must be considered o n its o w n facts and circumstances. Mitchell v. State, 650 S.W.2d 801, 807 (Tex. C r i m . App. 1983), cert. den. 464 U.S. 1073, 79 L. Ed. 2d 221, 104 S. Ct. 985.

A l l the facts and circumstances i n evidence may be looked to as furnishing the corroboration necessary. Washburn v. State, 167 Tex. C r i m . 125, 318 S.W.2d 627, 634 (Tex. C r i m . App. 1958).

The combined cumulative weight o f the incriminating evidence furnished by the non-accomplice witnesses which tends to connect the accused w i t h the commission

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o f the offense suppUes the test. Perkins v. State, 450 S.W.2d 855 (Tex. C r i m . App. 1970).

It is not necessary that the corroboration directly link the accused to the crime or be sufficient i n itself to establish guilt. Attwood v. State, 509 S.W.2d 342 (Tex. C r i m . App. 1974).

Insignificant circumstances sometimes afford most satisfactory evidence o f guilt and corroboration o f accomplice witness testimony. Holmes v. State, 70 Tex. C r i m . 423, 157 S.W. 487 (1913); Paulus v. State, 633 S.W.2d 827, 844 (Tex. C r i m . App. 1982).

Evidence w h i c h merely goes to show motive or opportunity o f the accused to commit the crime is insufficient alone to corroborate the accomplice witness. It may, however, be considered i n connection w i t h other evidence tending to connect the accused w i t h the crime. Paulus v. State, 633 S.W.2d 827, 846 (Tex. C r i m . App. 1982); Mitchell v. State, 650 S.W.2d 801, 808 (Tex. C r i m . App. 1983), cert. den. 464 U.S. 1073, 79 L. Ed. 2d 221,104 S. Ct. 985; Reynolds v. State, 489 S.W.2d 866 (Tex. C r i m . App. 1972); Rogers v. State, 461 S.W.2d 399 (Tex. C r i m . App. 1970).

The State is not required to present corroborating evidence to prove any specific element o f the charge, only to present corroborating evidence that tends to connect the accused w i t h that offense. Holladay v. State, 709 S.W.2d 194 (Tex. C r i m . App.

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1986). As to whether the evidence adduced is sufficient to corroborate the testimony o f the accomplice witness, such must, o f course, be decided on an ad hoc basis. Holladay, supra at 200.

When reviewing the sufficiency o f non-accomplice evidence under Tex. Code C r i m . Proc. A n n . art. 38.14, an appellate court decides whether the inculpatory evidence tends to connect the accused to the commission o f the offense. Smith v. State, 332 S.W.3d 425, 442 (Tex. C r i m . App. 2011). The direct or circumstantial non-accomplice evidence is sufficient corroboration i f it shows that rational jurors could have found that it sufficiently tended to connect the accused to the offense. Smith, supra at 442; Simmons v. State, 282 S.W.3d 504, 508 (Tex. C r i m . App. 2009); Reed v. State, lAA S.W.2d 112, 126 (Tex. C r i m . App. 1988). When there are conflicting views o f the evidence—one that tends to connect the accused to the offense and one that does not—the reviewing court w i l l defer to the fact finder's resolution o f the evidence. Smith, supra at 442; Simmons, supra at 508. I t is not appropriate for appellate courts to independently construe the non-accomplice evidence. Smith, supra at 442; Simmons, supra at 509.

A defendant's attitude and behavior, both before and after the crime, can be considered as an independent circumstance that tends to connect the defendant to the crime. Smith, supra at 445.

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If, i n the attempt to carry out a conspiracy to commit one felony, another felony is committed by one o f the conspirators, all conspirators are guilty o f the felony actually committed, though having no intent to commit it, i f the offense was committed i n furtherance o f the unlawful purpose and was one that should have been anticipated as a result o f the carrying out o f the conspiracy. Tex. Penal Code Sec. 7.02 (b).

Such theories o f culpability may be appropriately applied i n a capital murder setting. Montoya v. State. 810 S.W.2d 160, 165 (Tex. C r i m . App. 1989), cert, denied, 112 S.Ct. 426,116 L.Ed.2d 446 (1991).

1,2 and 2.2 Applicable Facts Appellant does not dispute the fact that Carl Pressley and Lillian K i n g killed Karen Johnson and Bonnie Harkey or the manner and means i n which each were murdered. RR Vol. 7 Pages 191, 252; RR Vol. 8 Pages 3 3 - 3 7 . A t issue is whether the record contains any evidence that corroborates the testimony o f Carl Pressley and/or Lillian King and such evidence is o f an incriminating nature and tends to connect Appellant to either or both murders.

The record contains substantial evidence o f Appellant's hatred for his step- mother. Appellant told Texas Ranger De La Garza that Appellant's father married

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Bonnie Harkey approximately 5 weeks after his divorce from Appellant's mother. RR V o l . 13 State's Exhibit 108; State's Exhibit 109 Pages 117-118. A month later, when Appellant was 11 years old, Bonnie told Appellant's father that i f he did not get rid o f Appellant Bonnie was going back to Waco. RR Vol. 13 State's Exhibit 108; State's Exhibit 109 Page 118. Appellant held a great deal o f resentment against Bonnie Harkey. RR Vol. 13 State's Exhibit 108; State's Exhibit 109 Page 118; RR Vol. 10 Page 56 (He called her an old bitch and said he couldn't believe the old bitch didn't have the decency to die.); RR Vol. 8 Page 76; RR Vol. 8 Pages 52 - 55 (And he said that Bonnie Harkey was taking care o f the (Appellant's) child, the child was dead — or the child was taken to the hospital and was found to be deceased. A n d he told me it was from the child basically choking on its food because Bonnie did not take care o f the child the way she was supposed to.); RR Vol. 7 Page 64 (He came into the kitchen i n the auction and told me he wanted me to put Bonnie i n a nursing home because he wanted he and his wife to move i n the house.); RR V o l . 9 Page 56 (And I don't even know how the conversation started or where we were, but he made the comment that — something had come up about Bonnie, and he said he wished the bitch was dead where he could get his part and go to Belize.); RR Vol. 7 Page 194 (He said he was tired — pretty much tired o f dealing w i t h her. Said he just wished the old bitch would die.)(I then said something to h i m about that I

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thought that was inappropriate or the wrong thing to say, and he totally apologized. He said, 'You just don't understand. That lady killed my son, and she's ruining my inheritance."); RR Vol. 7 Page 89 (Bruce often referred to Bonnie as a whore and prostitute.).

Collateral to Appellant's overall hatred o f Bonnie Harkey, a substantial amount o f evidence was developed that Appellant was o f the opinion that Bonnie Harkey was not entitled to the Harkey Estate that was developed by his father, Riley, and that the Estate belonged to h i m . RR Vol. 7 Page 110 (Yeah, he called it his legacy.); (Appellant felt like Bonnie Harkey and Darrell Spinks were standing i n the way o f his legacy); RR V o l . 7 Page 133 (Just constantly being threatened about litigation, 'You're devaluing the estate. You're k i l l i n g my trees."); RR V o l . 10 Page 24 (The most anger that I saw that was i n reference to the land. I t was his land. I t was i n his family. I t wasn't the Pressleys' land. I t wasn't Bonnie's land.); RR Vol. 10 Pages 38 - 39 (He said that he was ready to take control o f his property) (That she needed to die, or that she needed to be out o f her right mind.).

For quite some time Appellant was feuding w i t h Darrell Spinks, the Guardian o f the Estate o f Bonnie Harkey, over the management o f the pecan orchards as well as Appellant's efforts to have two sections o f the orchards sold w i t h the proceeds to go to Appellant and his brother, John Harkey. This included a dispute over Darrell

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spinks initially refusing to approve the sale o f a 65.94 acre tract because the majority o f the sales proceeds was to go to Appellant and John Harkey. RR Vol. 7 Pages 73 - 75. Appellant and his brother, John, threatened o n numerous occasions to sue Bonnie Harkey for "back rents and basically threatened to sue her for monies derived from that property. The grazing leases, farming leases, they were threatening to sue her for that over all those years that she had managed the property." RR Vol. 7 Page 79. A t one point Appellant attempted to secure the services o f Jason Sandlin to beat Spinks up to prevent Spinks from testifying i n court. RR Vol. 9 Page 110. Appellant offered Sandlin a new Harley Davidson motorcycle for this service. RR Vol. 9 Pages 112 - 113.

O n March 23, 2012, the Friday before the death o f Bonnie Harkey , Appellant paid Carl Pressley $100 i n cash, w i t h more to be transferred into Pressley's account, to k i l l Bonnie Harkey. RR Vol. 7 Page 210. O n March 22, 2012, the day before this payment, Lorretta Waller, the mother o f Lillian King, drove Pressley and King to Appellant's house. RR V o l . 9 Pages 63 - 64. Appellant brought Pressley back to Lorretta Waller's house. RR V o l . 9 Page 65. D u r i n g this period M s . Waller overheard Pressley talking on the phone saying that he needed $100 and later talking on the phone saying that he needed $250 i f the other person o f the conversation wanted something done. RR Vol. 9 Page 68. A few minutes after the first phone

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call Appellant came over to Lorretta Waller's house at which time Pressley went out to meet w i t h Appellant and then returned w i t h $100. RR Vol. 9 Pages 69 - 70. This transaction occurred on the Friday preceding the death o f Bonnie Harkey. RR Vol. 9 Page 70. The phone call involving the $250 occurred either o n that Friday evening or on Saturday. RR Vol. 9 Pages 70 - 73. San Saba County Deputy John Wilkerson testified that the bank records o f Appellant and Jennifer Harkey, previously admitted as State's Exhibit 37, showed that a withdrawal o f $200 was made from that account on Friday, March 23, 2012. RR Vol. 8 Pages 77, 79 - 80. Deputy Wilkerson interviewed Appellant who acknowledged giving Pressley $100 on March 23, 2012. RR Vol. 8 Page 80.

The record further shows that Appellant, according to his bank account, was running low on funds and had very little income during the months leading up to the murders w i t h the exception o f one deposit o f $100,000 i n August 2011. RR Vol. 8 Pages 77 - 79; RR Vol. 13 State's Exhibit 37. This large deposit occurred on August 5, 2011, when Appellant and his brother, John, sold a parcel o f 22.32 acres to Triple M Catde Company and a parcel o f 65.94 acres to John and Carol Martin. RR Vol. 13 State's Exhibit 11; State's Exhibit 12. Appellant and John acquired these parcels from the Harkey Estate as part o f a mediated settlement agreement w i t h Darrell Spinks. RR Vol. 7 Page 85.

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Following this acquisition and sale, Appellant and John coerced Pressley into selling them his future remainderman interest i n the Prichard Orchard for $15,000 down. RR Vol. 7 Pages 93 - 96; Vol. 13 State's Exhibit 108; State's Exhibit 109 Pages 244 - 245. The $15,000 down payment was comprised o f $7,500 each from Appellant and John, the cash being paid out o f the funds received from the sale o f the 22.32 acre tract and the 65.94 acre tract, w i t h an unsecured promise o f additional payments o f $10,000 per year for five years, the total purchase price being $70,000. RR Vol. 7 Page 96; Vol. 13 State's Exhibit 108; State's Exhibit 109 Page 243. A t the same time. Appellant and John were negotiating w i t h famed actor T o m m y Lee Jones to sell the Prichard Orchard for $576,000. RR V o l . 7 Page 50; Pages 100 - 101. The contractual closing date for the sale to T o m m y Lee Jones was for April 23,2012. RR Vol. 13 State's Exhibit 13.

Carl Pressley testified that Appellant wanted the murder o f Bonnie Harkey to occur on the weekend o f M a r c h 28,2012. RR V o l . 7 Page 211. O n March 1,2012, Appellant placed an order for specialty caps w i t h San Saba Printing. RR Vol. 9 Page 34. O n March 23, 2012, Appellant went to San Saba Printing and asked for one o f the caps to be completed that day stating that he was going to a golf tournament i n Dallas that weekend. RR Vol. 9 Page 35. Appellant told the general manager o f San Saba Printing, Jack Vaughn, that he was going to leave early

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Saturday morning, and he wouldn't be back i n until late Sunday night or maybe even Monday morning before he was in. RR V o l . 9 Page 38. M r . Vaughn thought it was odd that Appellant stated this twice, like Appellant was trying to stress it. RR Vol. 9 Page 39. M r . Vaughn testified, " I couldn't understand w h y it was ~ it was almost humorous that it was ~ that he was stating so strongly he was going to be gone from Saturday morning early until late Sunday night at least." "He stressed 'all weekend'"; "that's why I stressed 'all weekend.'" "He stressed so much he was going to be gone all weekend long." RR Vol. 9 Page 39 - 40. M r . Vaughn testified that M r . Harkey's interactions on that day were different from the previous time that M r . Harkey conducted business w i t h San Saba Printing. RR Vol. 9 Page 43. Mr. Vaughn thought this to be so odd that he mentioned to his wife several hours later and then contacted the Sheriffs Office when he had heard about the murders. RR Vol. 9 Pages 44 - 47.

O n Wednesday, March 21, 2012, Appellant brought a trailer to the tractor repair shop belonging to T o m m y Johnson requesting that M r . Johnson "wire up" the trailer so it can be used to haul wood to a barbeque place. RR V o l . 10 Page 53. The wiring j o b o n the trailer was completed on Thursday but Appellant's pickup was needed to complete the wiring j o b . RR Vol. 10 Page 54. O n Friday, when Appellant returned. Appellant was dressed up nice stating that he was behind

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schedule and needed to get out o f town. RR Vol. 10 Page 58. Appellant also told several people at the shop, including M r . Johnson, that he was going to Fort W o r t h to play golf w i t h his brother as he sometimes does. RR Vol. 10 Pages 56 - 57. Appellant repeated this multiple times and i n the exact language each time. RR V o l . 10 Pages 56 - 57. Appellant also told M r . Johnson, referring to Bonnie Harkey, he "couldn't believe the old bitch didn't have the decency to die." RR Vol. 10 Page 56.

While at the repair shop on Friday after lunch, M r . Johnson overheard Appellant making a phone call to someone checking on a job. RR Vol. 10 Page 58. Following the testimony o f M r . Johnson, the State called Louann Turner who is i n charge o f senior citizen's centers for nine counties. RR V o l . 10 Page 73. O n March 5,2012, Appellant applied for a j o b i n the San Saba senior citizen's center. RR Vol. 10 Page 74. O n that date Appellant brought the application to M s . Turner's office and visited w i t h her. RR Vol. 10 Page 74. A t that time M s . Turner informed Appellant that she was going to hire someone w i t h i n the next week. RR V o l . 10 Page 76. O n Friday, March 23, 2012, Appellant called M s . Turner's office after hours and left a voice message stating it was Friday and that he was going to be out o f town until probably Monday i n case she needed to get hold o f him. RR Vol. 10 Pages 77 - 79.

The j u r y heard evidence from Jason Sandlin that on Saturday night, the day prior to the murder, Carl Pressley called Sandlin's phone and left a recording that stated

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that Bonnie Harkey was dead. RR V o l . 9 Page 115. Sandlin i n turn phoned Appellant to express Sandlin's condolences for the death o f Appellant's mother. RR V o l . 9 Page 116. Appellant seemed surprised at this news and told Sandlin that Appellant was going to call the sheriffs department to have them do a welfare check. RR V o l . 9 Page 117. I n Appellant's statement to Ranger De La Garza Appellant stated on this topic:

" I ' m the guy that called the sheriffs office last Saturday night and said, "Something's not right. I just got a phone message that said that Bonnie Harkey's dead." "We've got no, no, no way o f doing what" — "Can you check? What — I ' m smelling a rat here, guys. Okay. I ' m not here. I can't go look and see. Get off your dead ass and go look." They wouldn't go look. They said, "Oh, no. U h . We'll call the sheriff" "Please do. W i l l you call me back?" 'Well, M r . Harkey, we won't promise anything."

RR V o l . 13 State's Exhibit 108; Exhibit 109 Pages 126 - 127.

D u r i n g the trial, evidence was admitted i n which Appellant made statements to Texas Ranger Andres De La Garza describing how he and his brother John were talking, after being told by authorities that Bonnie Harkey was missing but before being told she was deceased, about hoping Bonnie Harkey was sitting on the river bank somewhere and hoping that she would be found floating face down i n the river. RR Vol. 13 State's Exhibit 108; State's Exhibit 109 Pages 238 - 239.

Also admitted were phone records o f Appellant and Carl Pressley. RR Vol. 13 State's Exhibit 66; RR Vol. 9 Pages 157,159. I n his testimony, Pressley testified that

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he called Appellant around 6:00 p.m., a time after Pressley had kidnapped Bonnie Harkey but before her death. The cell phone records show a call from Pressley's cell phone to Appellant's cell phone at 6:12 p.m. during which the parties talked for 2:04 minutes. RR Vol. 13 State's Exhibit 66. Around dusk Pressley walked Bonnie Harkey to the creek where he struck her on the head and then held her face i n the mud until she was dead. RR Vol. 7 Pages 238 - 239. The cell phone records show a call from Pressley's cell phone to Appellant's cell phone at 8:55 p.m. for a duration o f 36 seconds. RR Vol. 13 State's Exhibit 66.

Appellant also stated to Ranger De La Garza " I used to go into her bedroom and check on her. She'd be laying up i n bed. (Snoring noise) You know, all I had to do was put a pillow over her face and she was gone." RR Vol. 13 State's Exhibit 108; State's Exhibit 109 Page 266.

I n regard to Karen Johnson, Appellant told Ranger De La Garza that Bonnie Harkey suffered from dementia. RR Vol. 13 State's Exhibit 108; State's Exhibit 109 Page 245. Appellant further stated that Bonnie Harkey had a guardian. RR Vol. 13 State's Exhibit 108; State's Exhibit 109 Pages 253 - 254. Darrell Spinks testified that he was appointed as guardian o f the estate o f Bonnie Harkey i n March 2011. RR Vol. 7 Page 62. Connie Ballenger was the guardian o f the person and o f the estate o f Bonnie Harkey prior to the appointment o f Spinks. RR V o l . 7 Page 73.

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The reason for this appointment was that Bonnie suffered from dementia and required 24-hour care givers at the house. RR Vol. 7 Page 63. Betty A n n Johnson was appointed as the guardian o f the person o f Bonnie Harkey i n March 2011. RR Vol. 7 Page 86. Appellant had participated i n mediation proceedings related to the Estate o f Bonnie Harkey. RR Vol. 7 Pages 73 - 74. For a short time Appellant was employed to work on the Harkey pecan farm. RR Vol. 7 Page 104.

Darrell Spinks testified that Bonnie Harkey had three care givers who worked to care for her on a rotating shift covering 24 hours each day, seven days a weeL RR V o l . 7 Page 136. Appellant had various arguments w i t h Spinks over Bonnie not being put i n a nursing home. RR Vol. 7 Pages 136 - 137. One o f the reasons cited by Appellant for placing Bonnie i n a nursing home was that she was not getting the care that she needed at home w i t h the care givers. RR Vol. 7 Pages 136 - 137.

Carl Pressley testified that Appellant was aware that a care giver would be present and instructed Pressley to "kill everybody". RR Vol. 7 Pages 214 - 215.

1.3 and 2.3 Discussion and Conclusion I n this case the j u r y had ample evidence w i t h which they could, i f they believed the evidence and made reasonable deductions therefrom, come to the conclusion that Appellant believed that the Harkey Estate should be his, that Bonnie Harkey

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had no legitimate claim to any part o f the Harkey Estate, and that Appellant's financial situation was dwindling. A rational j u r y could decide from this Appellant's motive and state o f mind.

Evidence was admitted that a rational j u r y could believe corroborated the testimony o f Carl Pressley and Lillian King that amounted to a combination o f suspicious circumstances. A rational j u r y could conclude that Appellant's statement to Ranger De La Garza that had Appellant wanted to kill Bonnie Harkey all he would have had to do would "put a pillow over her face and she was gone" corroborated Carl Pressley's testimony that Appellant had instructed Pressley that using a pillow to kill Bonnie would not leave fingerprints and thereby, setting aside all accomplice witness testimony, is incriminating i n nature and tends to connect Appellant to the crime. The same would apply to Appellant's statement to Ranger De La Garza that, after receiving news o f Bonnie's disappearance but before receiving news that Bonnie's body had been found. Appellant and his brother, John, had talked about hoping Bonnie would be found sitting on a riverbank and hoping Bonnie would be found floating face down i n a river.

From common experience, a rational j u r y could conclude that dusk, being the time Pressley walked Bonnie to the creek, i n March would be prior to 8:55 p.m. The testimony o f Pressley as to the phone call to Appellant at about 6:00 p.m. is

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corroborated by the cell phone records. From this a rational j u r y could deduce that Pressley and Appellant had a short discussion about what to do when Pressley arrived w i t h Bonnie Flarkey at the RV park i n Leon County. Following the murder o f Bonnie Harkey, a rational j u r y could conclude that Pressley informed Appellant at 8:55 p.m. that the murder had been accomplished. Therefore a rational j u r y could conclude that Appellant had prior knowledge o f where and how Bonnie Harkey was murdered. Such evidence corroborated Carl Pressley's testimony that Appellant aided, assisted, encouraged, and conspired w i t h Pressley to murder Bonnie Harkey. Such evidence, setting aside all accomplice witness testimony, is o f an incriminating nature and tends to connect Appellant to the crime.

I n addition a rational j u r y could conclude that Loretta Waller's testimony o f overhearing Carl Pressley talking on the telephone about needing $100, and Carl Pressley promptly having $100, and San Saba Sheriffs Investigator John Wilkerson's testimony and the bank records exhibit showing that Appellant withdrew $200 on March ly^, and Appellant's statement to Ranger De La Garza that Appellant did give Carl Pressley $100 on March IJ^ could, as a combination, corroborate Carl Pressley's testimony that Appellant paid Pressley $100 as partial compensation to kill Bonnie Harkey. This evidence, setting aside all accomplice witness testimony, is o f an incriminating nature and tends to connect Appellant to the crime.

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Further, a rational j u r y could conclude from the testimony o f Jack Vaughn, T o m m y Johnson, and Louann Turner that Appellant was deliberately stressing to these witnesses that he was leaving San Saba for the weekend i n order to establish his alibi and, as such, corroborated the testimony o f Carl Pressley that Appellant had wanted Bonnie Harkey killed during that weekend. Setting aside all accomplice witness testimony, this evidence is o f an incriminating nature and tends to connect Appellant to the crime.

A rational j u r y could conclude from Appellant's acknowledged phone call to the San Saba Sheriffs Office on the night before the murder, that Appellant was using this as an opportunity to further establish his alibi for the anticipated murder. A rational j u r y could also conclude that because Appellant considered Bonnie Harkey as an impediment to his ability to gain control over the estate. Appellant would be more likely to have driven the short distance from Fort W o r t h to San Saba i n order to begin taking immediate possession and control o f his legacy had he really believed that Bonnie was actually dead from natural causes. This evidence, setting aside all accomplice witness testimony, is o f an incriminating nature and tends to connect Appellant to the crime.

A rational j u r y could also compare the closing date (April 12, 2012) on the proposed contract to sell the Prichard Orchard to famed actor T o m m y Lee Jones

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w i t h the date o f the murder o f Bonnie Harkey (March 25,2012) and determine that the date on the contract further corroborated the testimony o f Carl Pressley that Appellant wanted Bonnie killed on that particular weekend. This evidence, setting aside all accomplice witness testimony, is o f an incriminating nature and tends to connect Appellant to the crime.

As to the issue o f the death o f Karen Johnson, the record establishes that Appellant clearly knew the mental condition o f Bonnie Harkey and her need for around-the-clock care over a long period o f time. The evidence showed that Appellant was at or near Bonnie's house off and on for years. Appellant applied to be appointed as Bonnie's guardian after the death o f Connie Ballanger. Appellant made claims against Bonnie's estate, eventually becoming successful i n acquiring tide to a portion o f the pecan farm which Appellant then promptly sold. Appellant even described to Ranger De La Garza that Bonnie needed to be placed i n a nursing home because the care givers were not giving Bonnie proper care. A rational j u r y could conclude that this evidence, as a combination, showed that Appellant anticipated that someone other than Bonnie Harkey would be present when Pressley was to arrive to kill Bonnie and that Appellant was aware that anyone present at that time would likely be seriously injured or killed. A rational j u r y could thereby conclude that this evidence corroborated the testimony o f Carl Pressley that

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Appellant had instructed Pressley to "kill everybody". This evidence, setting aside all accomplice witness testimony, is o f an incriminating nature and tends to connect Appellant to the crime.

I n summary the combined cumulative weight o f the incriminating evidence furnished by the non-accomplice witnesses and exhibits which is both incriminating and tends to connect Appellant w i t h the commission o f the offenses gave the j u r y a better understanding o f the true nature o f Appellant's motive. Appellant's statements made to law enforcement and acquaintances. Appellant's efforts to establish his alibi, and Appellant's statement to Pat Pierce regarding his hiring o f another person to kill Bonnie Harkey.

For these reasons the relief requested by Appellant i n his Issue N o . 1 and his Issue N o . 2 should be denied and the trial court's judgment o f conviction and sentence be affirmed.

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Summary Of The Argument on Response to Issue No. 3

Admission o f extraneous acts o f bad conduct was proper because the acts o f bad conduct were material and relevant to show Appellant's continuing scheme, motive, intent to engage i n a conspiracy, and i n rebuttal o f Appellant's defenses.

Appellant complains that the trial court erred i n admitting evidence o f prior extraneous offenses and bad acts committed by Appellant and that such offenses and bad acts merely went to establish character and conformity i n violation o f Tex. R. Evid. Rule 404 (a). However, this evidence was offered and admitted for the limited purpose o f proving Appellant's scheme and Appellant's intent to engage i n a conspiracy w i t h Carl Pressley and Lillian King to murder Bonnie Harkey. In other instances such evidence was offered and admitted for the limited purpose o f rebutting Appellant's defensive theories. I n each instance the trial court instructed the j u r y on consideration o f the evidence only for the purposes stated by the trial court.

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Argument On Response to Issue No. 3 3,1 Principals of Law Evidence is relevant i f (a) it has any tendency to make a fact more or less probable than it w^ould be vsrithout the evidence; and (b) the fact is o f consequence i n determining the action. Tex. R. Evid. Rule 401.

The adversarial system assigns the question o f relevance to the trial judge, on the assumption that he has the best vantage from which to decide. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. C r i m . App. 1991)(opinion on rehearing). Determining the relevance o f any given item o f evidence to any given lawsuit is not exclusively a function o f rule and logic. Id. The trial court must rely i n large part upon its o w n observations and experiences o f the world, as exemplary o f common observation and experience, and reason from there i n deciding whether proffered evidence has "any tendency to make the existence o f any fact o f consequence to the determination o f the action more probable or less probable than it would be without the evidence." Id.; Tex. R. Evid. Rule 401.

Appellate courts uphold the trial court's ruling on appeal absent an "abuse o f discretion." Id. That is to say, as long as the trial court's ruling was at least w i t h i n the zone o f reasonable disagreement, the appellate court w i l l not intercede. Id.

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I n the trial o f a person accused o f a particular crime, it is a general rule that evidence o f previous or subsequent commission o f other crimes, not connected w i t h that for which he is on trial, is not admissible. Grayson v. State, 481 S.W.2d 859 (Tex. C r i m . App. 1972). I t has been consistently held that an accused is entitled to be tried on the accusation made i n the State's pleading and not on some collateral crime, or for being a criminal gtntvdWy. Jones v. State, 481 S.W.2d 900 (Tex. C r i m . App. 1972). However, this general rule has well recognized exceptions and i n certain classes o f cases extraneous offenses may be shown as part o f the "res gestae", or as reflecting upon the mental processes or mental attitude o f the accused, where intent, malice or guilty knowledge is an essential element o f the crime for which the defendant is on trial, or as throwing light upon the motive inducing the commission o f the crime, or to prove identity o f the defendant, where identity is an issue, and more especially, where such extraneous offenses have been executed according to a system or method, and it is shown that the accused committed other such offenses and, i n so doing, followed the same plan or method as is shown to have been followed i n the commission o f the crime charged i n the indictment. Bryant v. State, All S.W.2d 66 (Tex. C r i m . App. 1971); Grayson v. State, 481 S.W.2d at 862; Tex.Jur.2d Evidence, § 195.

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Defensive evidence and even a representation i n opening statements, can open the door to the admission o f extraneous-offense evidence rebut the defensive theory presented by the defense. Bass v. State, 270 S.W.3d 557 (Tex. C r i m . App. 2008); Powell V. State, 63 S.W.3d 435, 438-40 (Tex. C r i m . App. 2001).

Where the appellate court can say w i t h confidence that by no reasonable perception o f common experience can it be concluded that proffered evidence has a tendency to make the existence o f a fact o f consequence more or less probable than it would otherwise be, then it can be said the trial court abused its discretion to admit that evidence. Montgomery v. State, 810 S.W.2d at 391. Where the trial court erred to admit the proffered evidence, the reviewing court should then proceed to determine harmfulness under Tex. R. App. Pro. Rule 81(b)(2). Id.

Whether objected-to evidence o f "other crimes, wrongs, or acts" has relevance apart from character conformity, as required by Rule 404(b) is also a question for the trial court. Id.; Tex. R. Evid. Rule 404 (b). The trial judge must conclude that the evidence tends i n logic and common experience to serve some purpose other than character conformity to make the existence o f a fact o f consequence more or less probable than it would be without the evidence. Id. A n appellate court owes no less deference to the trial judge i n making this judgment than it affords h i m i n making any other relevancy call. Id.

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A reviewing court also measures the trial court's ruling whether to exclude evidence o f "other crimes, wrongs, or acts" under Rule 403 by an abuse o f discretion standard. Id.; Tex. R. Evid. Rule 403.

The court may exclude relevant evidence i f its probative value is substantially outweighed by a danger o f one or more o f the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Tex. R. Evid. Rule 403.

Where relevant criteria, viewed as objectively as possible, lead to the conclusion that the danger o f unfair prejudice substantially outweighed the probative value o f the proffered evidence, the trial court w i l l have erred i n failing to exclude it. Montgomery, supra at 392.

The reviewing court w i l l assume that the j u r y would follow the instruction o f the trial court as given, and it w i l l not reverse i n the absence o f evidence that the j u r y was actually confused by the charge. See Rose v. State, 752 S.W.2d 529, 554 (Tex. C r i m . App. 1987)(plurality opinion); Luquis v. State, 72 S.W.3d 355,366 - 367 (Tex. C r i m . App. 2002).

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3.2 Applicable Facts The primary theory o f the State's case at trial was that Appellant conspired w i t h Carl Pressley to murder Bonnie Harkey. RR Vol. 7 Pages 33, 55; Vol. 8 Pages 46, 208; Vol. 9 Pages 11-19,152; Vol. 10 Pages 66 - 67,120 - 140; Vol. 12 Pages 12,22, 57 - 58. The motive for the murder o f Bonnie Harkey was to gain control o f the Harkey Estate. RR Vol. 7 Page 24; Page 194 ('You just don't understand. That lady killed m y son, and she's ruining m y inheritance."); V o l . 9 Page 56 (....he said he wished the bitch was dead where he could get his part and go to Belize.) Vol. 10 Page 24 (The most anger that I saw that was i n reference to the land. I t was his land. It was i n his family. I t wasn't the Pressleys' land. I t wasn't Bonnie's land.). Karen Johnson was murdered because she discovered Carl Pressley i n the Harkey home as he was attempting to murder Bonnie. RR Vol. 7 Pages 214 - 215; 219 - 224.

Approximately two months prior to trial. Appellant initiated a conversation w i t h fellow inmate, Pat Pierce, regarding the fact that a number o f people needed killing. RR Vol. 10 Pages 85 - 88. According to Appellant, San Saba County Sheriff Steve Boyd and Justice o f the Peace Les Dawson had threatened Appellant's wife and that was a killing offense to Appellant. RR V o l . 10 Page 88. Also, J i m Childress and D i c k Miller were dividing up Appellant's property. RR V o l . 10 Page 88. Appellant offered Pierce a motorcycle i f Pierce would kill Sheriff Boyd, Justice o f the Peace

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Dawson J i m Childress, and D i c k Miller. RR Vol. 10 Page 8 9 - 9 1 . The trial court instructed the jury:

"Ladies and gentlemen o f the jury, when it comes to any evidence o f any other offense that's alleged that this defendant might have committed, through this witness, you're only to consider that testimony i f you believe it beyond a reasonable doubt. A n d then i f you do believe it beyond a reasonable doubt, you're to consider it only for the following purposes: As evidence o f a continuing scheme, as evidence o f motive, or as evidence o f intent to engage in a conspiracy, and for no other reasons at that point."

R R V o l . 10 Page 87.

Also the trial court admitted testimony o f David Rube, a former co-worker, that i n 2003 Appellant wanted Rube to kill Appellant's then wife, Kami Harkey. RR Vol. 10 Page 156 - 157. Appellant drove Rube to Austin and pointed out Kami's apartment and other places that Rube could shoot Kami. RR V o l . 10 Pages 157 - 158. Appellant wanted Rube to make a silencer for a firearm to assist i n the murder o f Kami. RR Vol. 10 Pages 159 - 160. Appellant also discussed w i t h Rube about Rube murdering Appellant's ex-wife who lives i n Oklahoma. R R V o l . 10 Page 160. Appellant stated that i n both murders Appellant wanted to create an alibi for himself R R V o l . 10 Pages 160 - 161. Appellant wanted Kami killed because Appellant might lose custody o f their child to her and he wanted his ex-wife killed because she had wronged h i m i n their divorce. RR Vol. 10 Page 162. I n response to Appellant's objection to this testimony the trial court instructed the j u r y as follows:

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"And ladies and gendemen o f the jury, you may consider the evidence o f other offenses alleged to have been committed by the defendant only i f you believe that they are true beyond a reasonable doubt. A n d then that consideration must be limited to considering scheme, intent to engage i n conspiracy, or you may consider it for rebuttal o f defensive theories, and only those matters only, okay? So as we go forward, keep that instruction i n mind."

R R V o l . 10 Pages 155- 156.

H a n k Powell, a former employee o f Appellant, testified that Appellant came to h i m i n 2003 looking for a silencer for a .22 caliber rifle. RR Vol. 10 Page 174. Powell reported this to law enforcement and was contacted by Texas Ranger Matt Linderman. RR Vol. 10 Pages 175 - 176. W i t h equipment provided by Ranger Linderman a recording was made o f Appellant describing how a lawn mower muffler could be adapted into a silencer for a weapon. RR V o l . 10 Page 179. Appellant gave Powell a lawn mower muffler and a rifle for the purpose o f Powell converting the muffler into a silencer for the rifle. RR Vol. 10 Page 180. Powell i n turn gave the rifle and the muffler to Ranger Linderman who sent them to a facility i n West Virginia to be made into a silencer attached to the rifle. RR V o l . 10 Page 180. Appellant told Powell that he would be "long gone" when the rifle was being used. RR V o l . 10 Page 180. I n response to Appellant's objection to this testimony the trial court instructed the j u r y as follows:

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"Ladies and gendemen, you can consider evidence o f any other offense alleged to have been committed by the defendant only i f you think it is true beyond a reasonable doubt. That consideration is limited to the scheme, intent to engage i n conspiracy, or for rebuttal o f defensive theories only, so please keep that i n mind as we continue w i t h this witness and for the prior testimony o f this witness."

R R V o l . 10 Pages 178-179.

Texas Ranger Matt Linderman testified that he received the rifle and muffler provided by Appellant and sent them to a firearms lab in Washington D C to be made into a silencer for the rifle. RR Vol. 10 Page 184. The finished product was then given to Hank Powell to give to Appellant. RR V o l . 10 Page 185. Appellant was then arrested for unlawful possession o f the silencer. RR V o l . 10 Page 186. The only objection made by Appellant was that this testimony was repetitive to that o f Hank Powell. RR Vol. 10 Page 181.

I n the Court's Charge the trial court instructed the j u r y as follows:

"The Defendant is on trial solely on the charges contained i n the indictment.

You are instructed that i f there is any testimony or evidence before you i n this case regarding the Defendant having committed acts or participated i n transactions other than the transactions or acts alleged against the Defendant i n the indictment i n this case, you cannot consider such other acts or transactions, i f any, for any purpose against the Defendant unless you find and believe beyond a reasonable doubt that the Defendant committed such other acts or participated i n such other transactions, i f any; and even then you may only consider the same for the purpose o f a) rebutting a defensive theory, b)

establishing the Defendant's intent to enter into a conspiracy w i t h CARL W A D E PRESSLEY or L I L L L ^ N K I N G to commit the offense or offenses alleged i n the indictment, or c) establishing the Defendant's motive or

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scheme, i f they do, and for no other purpose. Y o u are further instructed that you may not consider other acts or transactions, i f any, as any evidence o f the Defendant's character i n order to show that the Defendant acted i n conformity therewith."

CR Vol. 1 Page 179 Paragraph 5.

This was further emphasized by the prosecutor during closing argument when M r . McAfee stated:

"Counsel also told you that when he went into those extraneous offenses we want you to fmd h i m guilty for some reason other than his guilt. N o , we don't.

I n fact, I want to stress that. We don't want you to fmd h i m guilty because o f those other things. You can't do that, and we can't urge you to, and we don't want you to fmd h i m guilty because o f that.

'We want you to fmd h i m guilty because he is guilty." R R V o l . 12 Page 56.

D u r i n g Ranger De La Garza's interview w i t h Appellant, Appellant described how Appellant talked Pressley into selling his future interest to Appellant and John by telling Pressley that Appellant intended to "....slap a lien against your grandmother's estate. Carl, it's called devaluing the assets o f the remainders." " I said, "It's going to be as much for your benefit as it is for my and John's benefit, more so for his kids and everybody else. "Carl, it has to go through the probate first. Hell, that could take years." RR Vol. 13 State's Exhibit 108; Exhibit 109 Page 124.

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I n cross-examination o f State's witness, T o m m yJohnson, the following exchange occurred:

(Mr. Davis) A n d now whenever people are i n the tractor supply place visiting, you talk about weather, right?

(Mr. Johnson) Yes, sir.

(Mr. Davis) A n d you talk about politics?

(Mr. Johnson) Yes, sir.

(Mr. Davis) A n d people express negative opinions about politicians, don't they?

(Mr. Johnson) Yes.

(Mr. Davis) A n d bad things they wish would happen to them, don't they?

(Mr. Johnson) Yes.

R R V o l . 10 Pages 6 4 - 6 5 .

3,3 Discussion and Conclusion The case being considered by the jury, that o f the murder o f Bonnie Harkey and o f Karen Johnson, was one involving a conspiracy between Appellant, Carl Pressley, and Lillian King. Appellant was shown as the person who planned the murder o f Bonnie Harkey and who recruited Pressley into putting Appellant's plan into play.

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The motive o f Appellant for this murder was to gain possession and control over the entire Harkey pecan estate which Appellant believed to be his inheritance and his legacy. Once Applicant had secured his inheritance, Applicant planned to move to Belize.

The evidence that Appellant had tried to recruit David Rube to kill Appellant's then wife, Kami, demonstrated a similarity to the present case i n that Appellant sought to murder a family member i n order to gain control over something that the victim had. I n the case o f Kami it was control over their child. I n the case o f Bonnie Harkey it was control over the Harkey estate.

The evidence that Appellant had tried to recruit David Rube to kill Appellant's ex-wife who lived i n Oklahoma demonstrated a similarity to the present case i n that Appellant sought to harm another i n retaliation for a wrong Appellant was done to him. I n the case o f the ex-wife it was an unspecified wrong done to Appellant during the divorce. I n the present case it was wrongs done to Appellant and Appellant's inheritance by Darrell Spinks for which Appellant attempted to recruit Jason Sandlin to "put the hurt on" Spinks.

Another similarity between the plan to have Kami and the ex-wife murdered and the plan to have Bonnie Harkey murdered is the element o f creating an alibi for each o f the murders. The details o f the alibis planned for the murders o f Kami and the

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ex-wife were not specified beyond being "long gone", however, the alibi Appellant created for the murder o f Bonnie Harkey, and the collateral murder o f Karen Johnson, was being i n Fort W o r t h playing golf w i t h Appellant's brother, John Harkey.

The evidence admitted o f Appellant acquiring a rifle and lawnmower muffler and then asking David Rube to make the muffler into a silencer and then fit the silencer onto the rifle which is to be used as the weapon to murder Kami demonstrated the similarity o f the amount o f detail Appellant put into the planning o f the intended murders. I n the case o f Bonnie Harkey, Appellant threatened Pressley w i t h filing liens against the estate which would devalue the Harkey estate and tie it up i n probate for years i f Pressley did not sell Pressley's future interest i n the Prichard Orchard to Appellant and John Harkey. While this was occurring Appellant was negotiating the sale o f the same property to famed actor T o m m y Lee Jones. This sale was planned to close on April 12, 2012. Yet before this could happen Bonnie Harkey had to die.

Once Pressley sold his interest i n the Prichard Orchard Appellant instructed Pressley on the use o f a pillow to murder Bonnie Harkey as a means o f leaving no fingerprints as evidence and pressed Pressley to have the murder done during that weekend i n March 2012. As the date o f the planned murder approached. Appellant,

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to create his alibi, went to various businesses to announce his plans to be i n Fort W o r t h over the weekend. Appellant also left a voicemail message w i t h the same message to a prospective employer even though it was long past the date Appellant had been told that the position would be filled.

The testimony o f Pat Pierce describing Appellant's solicitation o f Pierce to kill D i c k Miller and J i m Childress i n exchange for a motorcycle was another demonstration o f Appellant's motive to control his inheritance as Appellant believed each were "stealing" his land.

Pierce also described Appellant's solicitation o f Pierce to kill San Saba County Sheriff Steve Boyd and San Saba County Justice o f the Peace Les Dawson because Sheriff Boyd and Justice o f the Peace Dawson were pressuring Appellant's wife for information about Appellant's involvement i n the murders o f Bonnie Harkey and Karen Johnson. This evidence was offered and admitted to show Appellant's consciousness o f guilt as a reasonable j u r y could interpret this testimony as Appellant's attempt to prevent his present wife from giving evidence against Appellant i n the same way that Carl Pressley and Lillian King did.

Further, this evidence o f extraneous offenses was admissible to rebut the defensive theory that, much like the idea that people make idle talk about wanting bad things to happen to politicians. Appellant's more recent statements about

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wishing Bonnie Harkey would be dead and the collateral talk that related to that issue was mere idle talk.

One fmal point on this issue, it should be noted that the trial court instructed the jury, not just once or twice, but many times on the limitations placed on them i n consideration o f the extraneous matters. Then the limitation instruction was included i n the Court's Charge. There is nothing i n this record to suggest that the j u r y did not understand or follow the trial court's limitation instructions when considering the extraneous matters admitted into evidence. This was further stressed by the prosecutor i n his closing argument. The only one at trial suggesting to the j u r y that they are being asked to punish Appellant for his prior bad acts was Appellant's o w n trial counsel.

For these reasons the relief requested by Appellant by his Issue N o . 3 should be denied and the judgment and sentence rendered against Appellant be affirmed.

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Summary Of The Argument on Response to Issue No. 4

T h e State is not required to adhere to a ritualistic form to comply w i t h T R E R u l e 404(b). A copy of a statement referencing the extraneous bad act is sufficient to provide notice under the rule. I n addition this evidence was in fact same transaction contextual evidence.

Appellant complains that the trial court erred i n admitting testimony from Pat Pierce that Appellant stated Appellant offered a motorcycle to a guy from East Texas to kill Bonnie Harkey because the prosecution had not given Appellant prior notice o f its intent to offer such evidence. However Appellant did receive discovery that included a copy o f a "tape" o f Pat Pierce's statement i n which this transaction is described w i t h the exception o f identifying Bonnie Harkey as the target. T o the extent that the identity o f the person to be killed was Bonnie Harkey, Appellant failed to show how he would have changed his trial strategy or presented his defense differently i n any way and therefore failed to show how he was truly surprised or harmed i n this regard.

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Argument On Response to Issue No. 4 4A Principals of Law Rule 404(b) allows admission o f certain extraneous offenses, provided that: "upon timely request by the accused i n a criminal case, reasonable notice is given i n advance o f trial o f intent to introduce i n the State's case-in-chief such evidence other than that arising i n the same transaction." Tex. R. Evid. Rule 404(b); Hayden v. State, 66 S.W.3d 269, 271 (Tex. C r i m . App. 2001).

Rule 404(b) does not set forth a formalistic method for conveying notice and does not require a writing. Hayden, supra at 273 fn. 16. While the State should not be permitted to engage i n gamesmanship by finding creative ways to convey "notice" without really informing the defense o f its intent to introduce extraneous offenses, the defense should not be permitted to engage i n gamesmanship by claiming the notice it received was insufficient when the defense did i n fact have actual notice o f the State's intent to introduce the extraneous offenses i n question. Id.

A reviewing court accepts as true factual assertions made by counsel at trial which could have been, but were not, disputed by opposing counsel. Pitts v. State, 916 S.W.2d 507, 510 (Tex. C r i m . App. 1996).

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The purpose o f the Rule 404(b) (Tex. R. Evid.) notice provision o f preventing surprise is a valid consideration i n conducting a Rule 44.2(b) (Tex. R. App. Proc.) harm analysis. Hernandez v. State, 176 S.W.3d 821, 826 (Tex. C r i m . App. 2005).

When an appellate court determines that a jury's verdict was substantially influenced by the improper admission o f substantively inadmissible Tex. R. Evid. 404(b) evidence, that influence on the jury's verdict w i l l always be "injurious" since there was no proper purpose for the j u r y to consider the evidence. But, this is not the case when substantively admissible Rule 404(b) evidence is improperly admitted because o f the State's failure to comply w i t h the Rule 404(b) notice provision. Under these circumstances, the error i n admitting this evidence may have had a substantial effect or influence on the jury's verdict, but it cannot be said that this effect or influence was "injurious" i f the defendant was not surprised by the evidence. Hernandez, supra at 825.

Where the State has provided a defendant copies o f recorded statements describing extraneous acts yet the State did not provide a formalized notice o f intent to use said extraneous acts at trial, it strains credulity to think that the defendant was not on notice that the State intended to use the recorded statements as a part o f its evidence or that he had not prepared to defend against their use. Hernandez, supra at 826.

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Where evidence constitutes same transaction contextual evidence, notice under T R E Rule 404(b) is not required. Worthy v. State, 312 S.W.3d 34 (Tex. C r i m . App. 2010).

Background evidence, once called 'res gestae' o f the offense, has also come to refer to other offenses indivisibly connected w i t h the offense charged, and not only general background evidence which is helpful to the jury's understanding. Mayes V. State, 816 S.W.2d 79, 86 (Tex. C r i m . App. 1991). The court further recognized that the broadening o f the term res gestae led to confusion as to what exactly constitutes res gestae evidence. Id. ("Furthermore, the absence o f jurisprudence on the infrequently litigated subject o f background evidence has also created an analytical void, confusing the distinction between other offenses connected w i t h a primary offense, and general background evidence."). Therefore, the court took the opportunity to distinguish between background evidence and evidence o f "other offenses connected w i t h a primary offense," which the court referred to as "same transaction" contextual evidence. Id. at 86.

Although a trial court must still perform a balancing test to see i f the same transaction contextual evidence's probative value is substantially outweighed by its prejudicial effect, the prejudicial nature o f contextual evidence rarely renders such evidence inadmissible, as long as it sets the stage for the jury's comprehension o f the

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whole criminal transaction. Mann v. State, 718 S.W.2d 741, 744 (Tex. C r i m . App. 1986); Swarh v. State, 125 S.W.3d 672, 681 (Tex. A p p . - H o u s t o n [1st Dist.] 2003, pet. dism'd).

I f a ruling was correct on any theory o f law applicable to the case, i n light o f what was before the trial court at the time the ruling was made, then the reviewing court must uphold the judgment. Sauceda v. State, 129 S.W.3d 116,120 (Tex. C r i m . App. 2004).

4.2 Applicable Facts I n describing at trial statements made by Appellant while awaiting trial, fellow jail inmate Pat Pierce testified that Appellant not only offered Pierce a motorcycle to kill various people but that Appellant also stated that he had offered a motorcycle to a guy i n East Texas to do a j o b for h i m . RR V o l . 10 Pages 91 - 92. T o this the following occurred before the bench:

"MR. A D A M S (Defendant): Judge, there's another issue about a notice issue on this extraneous offense. Somebody else is going to kill somebody else. I don't have any notice o f that extraneous offense. So obviously you're talking about -

"MR. M C A F E E (Prosecutor): Y o u do. Y o u have notice o f it. I gave a transcript as well as the tape o f this. You don't have to officially notice extraneous offenses. This is context for this extraneous -

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" T H E C O U R T : Here's what we're going to do, okay? A n d I thought we had an agreement before. It was agreed by M r . Davis. The instruction's been given. You were going to object 404, and it was going to be overruled. N o w , do I need to make an instruction every single time? Is that what you want?

" M R . A D A M S (Defendant): I'm just trying to preserve our record. I'll do what the Court directs me to do, but I just ~ I mean my deal is, is that the running objection to this — this extraneous that's coming i n now, I didn't expect it. And, you know, I don't mean to disrupt the proceedings, but I ' m just trying to do the best I can and preserve the record."

" T H E C O U R T : Well, for the record w i t h y'all's agreement, I ' m going to reply when you ask for the instruction, to — I ' m just going to remind them to refer them back to the previous instruction just so the record is clear so that that instruction is the only one that's been given to them and that they're going to be reminded o f it each time. So I don't mind you doing that to preserve your record, as long as we have that agreement that that's the instruction.

" M R . A D A M S (Defendant): I understand that.

" T H E C O U R T : Is that okay?

" M R . A D A M S (Defendant): Yes, sir.

" T H E C O U R T : Okay.

" M R . M C A F E E (Prosecutor): A n d this 404(b) information, whether it's contextual to the entire notice, but they've been given the transcript, they've been given the tape o f this — no, excuse me — the transcript o f this interview. That provided the notice i n plenty o f time.

" T H E C O U R T : A n d that specific objection when he came to the bench was overruled so...

" M R . A D A M S : Thank you.

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(Return to open court) "Q (By M r . Mcafee) M r . Pierce? "A Yes, sir.

"Q What did he say about that guy w i t h the motorcycle? What did he say about the offer o f the motorcycle, the guy from East Texas?

"A The guy went to jail before he got to come down here. "Q A n d what was he offering that motorcycle to h i m for? "A T o come down take care o f Bonnie Harkey for h i m . "Q Bonnie Harkey? D i d he specifically say Bonnie Harkey? "A Yes, sir.

" M R . A D A M S (Defendant): Okay, Judge, I ' m sorry. I ' m going to object and ask for a curative instruction to the j u r y as far as Bonnie Harkey goes. That's a notice issue. Under 404.

" M R . M C A F E E (Prosecutor): Well, that w o u l d be an admission by party opponent about the case-in-chief I t has nothing to do w i t h 404(b).

" T H E C O U R T : I ' m going to overrule the objection.

"Q (By M r . Mcafee) N o w , M r . Pierce, I do want to ask - I want to clarify something. N o w , you remember talking to Jack Schumacher, the investigator w i t h my office, before, did you not?

"A Yes, sir.

"Q A n d I believe that i n that ~ i n fact, the court reporter took down your statement, didn't she?

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"A Yes, sir.

"Q A n d I believe i n that statement, i f I ' m incorrect, that you said he wanted somebody w i t h a motorcycle to come over and kill somebody, commit a murder for h i m .

" M R . A D A M S (Defendant): Objection, Your Honor. That's leading.

" T H E C O U R T : Sustained.

" M R . A D A M S : Ask for a curative instruction.

" T H E C O U R T : There's been no response so it's sustained.

"Q (By M r . Mcafee) D i d you tell M r . Schumacher that you said he — or somebody from East Texas on a motorcycle was supposed to come over and commit a murder for him?

"A Yes, sir.

"Q Okay. Is it also clear that you didn't say Bonnie Harkey then?

"A N o t at that time.

"Q Okay, sir. But today you recall that's what he was talking about?

"A Yes, sir." R R V o l 10 Pages 9 2 - 9 6 .

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4,3 Discussion and Conclusion The record shows that Appellant's initial objection was that the State had not given notice to Appellant o f the intent to use Pierce's description o f Appellant stating that he had offered a motorcycle to a guy i n East Texas to kill someone else. This was countered by the Prosecutor's statement that Appellant's counsel had been provided a copy o f both the recording o f the pre-trial interview o f Pierce and the transcript thereof. I n as much as Appellant's counsel did not assert that what the Prosecutor stated was not true, the Prosecutor's statement that Appellant's counsel did i n fact receive a copy o f the recording and the transcript wherein Pierce described that Appellant told Pierce that Appellant wanted somebody w i t h a motorcycle to come over and kill somebody, commit a murder for h i m is presumed to be true. T o this point the State was not obligated to provide Appellant w i t h a ritualistic form o f notice so long as reasonable notice was given.

However, Pierce then continued his testimony wherein he stated that Appellant had told Pierce that Appellant had offered a motorcycle to a guy from East Texas to come down and take care o f Bonnie Harkey for h i m . T o this Appellant's trial counsel objected that counsel had received no prior notice that the witness w o u l d identify Bonnie Harkey as the intended victim o f the guy from East Texas. Although the trial court overruled this objection, appellant failed to even attempt to

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make any showing o f how his defense strategy might have been different had the State explicitly notified h i m that it intended to offer at trial evidence that Bonnie Harkey was the intended victim, or how his defense was "injuriously" affected by the State's failure to provide reasonable notice o f the identity o f the intended victim.

A t the same time, a continued reading o f the testimony shows that the Prosecutor was also surprised by this revelation o f Pierce that Bonnie Harkey was the intended target o f the East Texas hitman. Beyond this point. Appellant has failed to show harm for the lack o f notice. I t is clear that Appellant had adequate notice that Pierce would testify that Appellant told Pierce that Appellant had offered a motorcycle to a guy i n East Texas to come kill someone. I t is clear that Appellant's trial counsel had a large amount o f pre-trial discovery wherein Appellant made multiple statements around the same time period to various persons that Appellant wanted Bonnie Harkey to die. The only difference between the information contained i n the notice and the testimony was that the someone i n this instance was Bonnie Harkey. Even here. Appellant made no showing to the trial court that had Appellant known o f the identity being Bonnie Harkey the trial strategy would have been different or that any specific witness would have been brought to court to rebut the testimony or that Appellant's trial counsel could or would have done anything differently.

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Further, this testimony was i n fact i n the nature o f same transaction context. Appellant was describing to Pierce how Appellant had started the series o f events that ultimately lead to the murder o f Bonnie Harkey by hiring the president o f a biker club from East Texas to come i n and do the murder yet this person ended up i n jail before he could do the j o b . A reasonable j u r y could conclude from the evidence that when the initial plan did not come to fruition then Appellant turned to Plan B and recruited Pressley to do the deed, which Pressley did. As such, this testimony is not an extraneous bad act requiring notice under Rule 404(b).

For these reasons the relief requested i n Appellant's Issue N o . 4 should be denied and the judgment o f conviction and sentence be affirmed.

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PRAYER FOR RELIEF

WHEREFORE, PREMISES C O N S I D E R E D , Appellee prays the Court deny Appellant's appeal and affirm the judgment o f the trial court-

Respectfully submitted,

OFFICE O F D I S T R I C T A T T O R N E Y 3?>^'' and 424'^ J U D I C I A L D I S T R I C T S Wiley B. McAfee, District Attorney P. O . Box 725

Llano, Texas 78643

Telephone Telecopier (325) 247-5755 (325) 247-5274

Assistant District Attorney State Bar N o . 03353500

g.bunyard@co.llano.tx.us

A T T O R N E Y FOR APPELLEE

CERTIFICATE OFWORD COUNT

This is to certify that the pertinent portion o f this brief contains 12,074 words printed i n Aldine401BT 14 font, including footnotes being in Aldine401BT 12 font, according to the WordPerfect™ X 7 word count tool.

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CERTIFICATE OF SERVICE

This is to certify that a true copy o f the above and foregoing instrument, together w i t h this proof o f service hereof, has been forwarded on the 12th day o f November 2015, to Richard Davis, Attorney for Appellant, by email and by EServe.

Assistant District Attorney