Love triangle blamed for
slayings of woman, son
Police say ex-boyfriend killed to keep wife
from learning of affair
Feb. 23, 2005
WORTH, Texas - Lisa Underwood was devoted to her 7-year-old son
and excited about soon having a baby girl. Friends said she was
planning to raise her daughter without help from the baby’s father.
why many of Underwood’s friends are stunned that the father of her
unborn child has been charged with suffocating her and her son,
Jayden, apparently after an argument over his refusal to leave his
warm and loving, but she was also very independent,” said Leah
Huff, a friend and longtime customer at Boopa’s Bagel Deli, the
bagel shop Underwood co-owned. “She raised Jayden by herself, and
Jayden was awesome. Being a single mother was no big deal to her."
after the arrest of 37-year-old Stephen Dale Barbee, authorities
found two bodies matching the description of Underwood, 34, who
was seven months pregnant, and her son.
records show Barbee admitted arguing with Underwood over leaving
his wife. Barbee allegedly said he suffocated Underwood, then
suffocated the boy after he interrupted the attack. Court papers
said Barbee was the father of Underwood’s fetus.
told investigators he put the bodies in the back of Underwood’s
SUV and drove to Denton County and dug a shallow grave, according
to the affidavit.
was reported missing Saturday along with her son after she failed
to show up at her baby shower, prompting an Amber Alert. A pool of
blood was found in her Fort Worth home.
Barbee’s arrest and en route to jail in Fort Worth, police took
him to a rural area of Denton County near Northlake, about 25
miles north of Fort Worth, and he led them to the bodies,
and Barbee met about two years ago at the bagel store but split up
last fall because Barbee had another girlfriend, said Debbie
Lindley, a neighbor of Underwood’s.
people gathered Tuesday night for a candlelight vigil outside
Underwood’s bagel shop, where they placed dozens of balloons,
flower bouquets, cards and pictures of the victims.
Man admits suffocating pregnant woman, son
leads authorities to makeshift, shallow grave
Wednesday, February 23, 2005
DALLAS, Texas (CNN) -- A Texas man arrested for
the slayings of a pregnant woman and her 7-year-old son told
police he suffocated Lisa and Jayden Underwood in their home,
police said Tuesday.
Stephen Dale Barbee, 37, was arrested early
Tuesday in Tyler, about 130 miles east of Fort Worth, and then
transferred to Fort Worth, said Lt. Gene Jones, a Fort Worth
Jones later confirmed to reporters that Barbee
confessed to the killings and led police to a makeshift, shallow
grave where two bodies were found.
Jones said that the bodies could not yet be
positively identified, but that their ages were consistent with
those of Lisa Underwood, 34, and her son.
Barbee will be charged with capital murder,
Fort Worth police said. He was being held in a Fort Worth jail
A court affidavit filed by police provided
details of the crime, including the confessed suffocation.
The bodies were found in water in a wooded area
south of Denton, about 30 miles north of Fort Worth, police said
The woman's blue Dodge Durango was found in a
creek Monday in Denton.
Underwood, who was seven months pregnant, and
her son were reported missing Saturday after she failed to appear
at her baby shower.
Bond for the suspect was set at $2 million, a
Smith County detention officer said.
Barbee and Underwood, both of Fort Worth, were
romantically involved at "one time," Jones said.
A search of Underwood's home Saturday evening
found "a significant amount of blood," but no signs of forced
entry, Jones said.
Police on Monday searched a house near
Underwood's home in northern Fort Worth, he said. Several
neighbors said that Barbee lived at the house with another woman
and her children.
An Amber Alert, issued by police over the
weekend, was canceled Tuesday morning after Barbee's arrest, said
a spokesman with the Texas Department of Public Safety.
Lisa Underwood, who co-owned a bagel shop, and
her son were described as friendly and likeable.
Jayden was "extremely caring and helpful. He
had a wonderful sense of humor. He was basically one of those kids
who was loved by everybody," his first-grade teacher, Janice
Freeman, told CNN's "Headline Prime" Tuesday night.
Police: Friend saw bodies
Barbee was the "alleged father" of Lisa
Underwood's unborn child, Detective R.A. Gallaway said in the
According to the document, Barbee told
detectives that his friend, Ron Dodd, dropped him off at Lisa
Underwood's home late Friday. Barbee said the two began arguing
over his refusal to leave his wife. Barbee said Underwood kicked
him in the leg, and he punched her in the face, causing her nose
Barbee, who police said earned a living
clearing trees, said there was blood throughout the living room.
"During this fight Barbee held Underwood on the
floor where she was suffocated and died," Gallaway said. When her
son entered the room screaming, Barbee placed his hand over the
child's mouth and nose and suffocated him, the detective said.
He said the police officers who went to the
empty Underwood home Saturday night found "a large amount of blood
in the living room on the carpet, furniture and walls.
"The amount of blood inside the residence was
indicative of a person or persons suffering serious bodily injury,"
the affidavit says.
Barbee told investigators he placed the bodies
in the back of Underwood's SUV, and on Saturday drove it to a
deserted road, dug a shallow grave and put the victims inside.
Dodd told investigators that in addition to
dropping Barbee off at Underwood's home late Friday, he gave
Barbee several other rides on Saturday.
He dropped Barbee off at an old elementary
school early Saturday, the affidavit says, then returned after
Barbee called asking to be picked up.
Dodd said Barbee told him he had been visiting
a female friend who he had made pregnant, and said, "I just can't
do it." Dodd said he assumed the two were breaking up.
A short time later, Barbee asked to be driven
to another location near the school.
Some time after being left there, according to
the affidavit, Barbee called Dodd again, directing him to an area
east of Justin, where he was standing next to an SUV that he said
had run out of gas. Justin is located between Fort Worth and
Dodd said he saw the bodies of a woman and a
male child in the back. Shaken, he left the scene, Gallaway said.
Later, Barbee told his friend he had committed the slayings.
The affidavit says that about 3 a.m. Saturday
police had tried to stop a man wearing muddy jeans and walking
along a road in Denton County.
The man escaped into a wooded area. Saturday
night, when detectives went to Barbee's home as part of their
investigation of the Underwoods' disappearance, they asked him
what he had been wearing early that morning and he showed them
muddy jeans, the affidavit says.
Ex Arrested In Texas Double Murder
Cops Say Slayings Came During Fight Over
Refusal To Leave Wife
By Francie Grace - CBSNews.com
Texas, Feb. 23, 2005
A man told police he suffocated his pregnant
ex-girlfriend and her 7-year-old son after an argument over his
refusal to leave his wife, according to documents released Tuesday.
Police said Stephen Dale Barbee was charged
with capital murder Tuesday after confessing to the slayings of
Fort Worth bagel shop owner Lisa Underwood and her son, Jayden.
Barbee, 37, was the father of the unborn daughter, according to
the arrest warrant affidavit.
CBS News Station KTVT-TV reports about
200 people gathered in Fort Worth Tuesday night for what had been
planned to be a candlelight vigil to pray for the safe return of
Lisa and Jayden Underwood - but then became a memorial.
"They are going to be sorely missed," said
Debbie Lindley, a friend and neighbor of Lisa Underwood. "They
were great people."
Among those at the vigil was Darius Ownes, a
friend of Jayden's. "I'm sad," said Ownes, "but I am glad that he
is with God now."
"How an innocent little boy, really a beautiful
little child ran across a monster like that," said Rafael Pantoja,
a customer of the bagel shop, which was named after a baby
nickname of Jayden's. "That really hurts me."
"God will handle him. Definitely," vowed
Underwood, 34, who was seven months pregnant,
and her son were reported missing after she did not show up at her
baby shower Saturday, prompting a national Amber Alert. Blood was
found in her Fort Worth home, but there was no sign of forced
entry, police said.
Fort Worth police Lt. Gene Jones said
investigators found two bodies in rural Denton County on Tuesday,
hours after Barbee was arrested in Tyler, about 120 miles east of
Fort Worth. The bodies were in a shallow grave in woods near
Northlake, about 25 miles north of Fort Worth, police said.
Barbee told investigators Underwood kicked him
in the leg Friday night and that he punched her in the face
several times, causing her nose to bleed. He held her on the floor
and suffocated her, according to the affidavit.
Police say Barbee told them that he killed
Underwood's son when the boy ran into the room screaming.
Authorities say Barbee then put the bodies in
the back of his SUV and drove to Denton County and dug a grave.
Barbee's business partner told police that
Barbee asked for rides several times early Saturday and, at one
point, called to say he had run out of gas. The man said he
delivered gas to Barbee but left shaken after he saw two bodies in
the back of the SUV. Police Sgt. J.D. Thornton said Tuesday that
investigators had talked to others who knew about the crime but
that no one else had been arrested.
The affidavit also revealed that a Denton
County deputy briefly stopped Barbee early Saturday because the
man was covered in mud and seemed suspicious. Barbee gave a false
name and birth date before running into the woods.
The bodies were found about 10 miles from where
Underwood's vehicle was discovered in a creek Monday.
Barbee was arrested early Tuesday in Tyler,
where authorities said he had been working clearing trees. En
route to jail in Fort Worth, police took Barbee to the Denton
County site and he led them to the bodies, authorities said.
Lindley, whose 7-year-old son grew up with
Jayden, said Barbee and Underwood broke up last fall because
Barbee had another girlfriend, but she didn't know of any violent
incidents between the couple. It's unclear if that girlfriend is
the woman Barbee married.
Lindley said Underwood met Barbee about two
years ago at the store she co-owned, Boopa's Bagel Deli. She said
Jayden had never met Barbee; the boy always stayed at the Lindleys'
house when they went on dates.
Leah Huff, a longtime customer, said that when
she ate breakfast there a week ago Underwood talked excitedly
about the baby, saying she wouldn't pick out a name until she saw
her infant's face for the first time.
Underwood never mentioned the father and was
planning on raising her daughter by herself, Huff said.
"She was warm and loving, but she was also very
independent," Huff said Tuesday. "She raised Jayden by herself,
and Jayden was awesome. Being a single mother was no big deal to
Jayden, a bright child with big brown eyes and
glasses who recently started playing soccer and was involved with
Cub Scouts, was excited about becoming a big brother, Huff said.
On Tuesday, the mound of flower bouquets,
balloons and stuffed animals grew outside the bagel shop. A note
said, "God bless Lisa and her two little angels."
On a driveway across from Underwood's house,
neighborhood children scrawled messages in pink, yellow and blue
chalk, outlined in hearts: "We miss you" and "We love you Lisa and
Several studies have found that pregnant women
are more likely to die of homicide than of any natural cause, The
Washington Post reported in December after a yearlong study. At
least 1,367 pregnant women and new mothers have been killed since
1990, and the number likely is higher because 13 states said they
had no way of knowing how many such deaths occurred.
In the Court of Criminal Appeals of Texas
Stephen Dale Barbee, Appellant
The State of Texas
On Direct Appeal from Tarrant County
HOLCOMB, J., delivered the opinion of
the unanimous Court.
In February 2006, appellant was convicted of
capital murder. Tex. Pen. Code § 19.03(a). Based on the jury's
answers to the special issues set forth in Texas Code of Criminal
Procedure Article 37.071, sections 2(b) and 2(e), the trial judge
sentenced appellant to death. Art. 37.071, § 2(g).
(1) Direct appeal to this Court is automatic. Art.
37.071, § 2(h). After reviewing appellant's nine points of error,
we find them to be without merit. Consequently, we affirm the
trial court's judgment.
Appellant was charged with murdering Lisa
Underwood and her seven-year-old son, Jayden Underwood, during the
same criminal transaction. TEX. PEN. CODE § 19.03(a)(7)(A). Lisa
owned a bagel shop in Fort Worth with her friend Holly Pils. Pils
testified that appellant, who was married, had been a customer at
the bagel shop and that he and Lisa began a personal relationship
in Fall 2003. They stopped seeing each other at the end of 2003,
and Lisa began dating another man at the beginning of 2004. She
was still dating the other man when she resumed her relationship
with appellant in July 2004, and she became pregnant around that
time. She informed both men that she was pregnant but told
appellant that she believed he was the father of the unborn child.
She told Pils that she wanted her baby to have health insurance
and that she had discussed the matter with appellant.
Pils testified that Lisa, who was more than
seven months pregnant, stayed home from work on Friday, February
18, 2005, because she had a cold. Pils planned to host a baby
shower for Lisa at the bagel shop the next day. Lisa told Pils
that she was feeling better, that she was excited about the baby
shower, and that she planned to arrive at the bagel shop shortly
before 4:00 p.m. on Saturday, February 19th.
At approximately 3:00 on Saturday morning,
Denton County Deputy Sheriff David Brawner saw a man walking along
the service road of Interstate Highway 35. Brawner stopped his
patrol car behind the man and activated his overhead emergency
lights and his "in-car video camera system." It was cold outside,
and it had been raining. Brawner testified that the man's clothes
were "very wet" and that he was "covered in mud." When Brawner
asked the man for identification, he said that he had left his
wallet at his friend's residence nearby. He gave the officer a
false name and date of birth and "took off running on foot" when
Brawner spoke with dispatch in an effort to verify the information.
Brawner ran after the man, but he disappeared into a thickly
wooded area. Brawner and other officers searched the area for
hours but were unable to locate the man. Brawner later identified
the man as appellant in a photo spread. (2)
The police were contacted after Lisa failed to
show up for her baby shower later that day. There were no signs of
forced entry at Lisa's house. Jayden's shoes were on top of the
fireplace hearth, and his glasses had been left next to his bed.
There was blood in the living room on the entertainment center,
the walls, and a fitted couch cover. It appeared that someone had
attempted to clean and conceal a saturation blood stain on the
living room floor. Lisa's car was gone, and there was blood on the
floor in the garage. Lisa's DNA profile was consistent with the
blood stains in the house and the garage. Her personal home
computer showed that she logged on to the internet at 11:22 p.m.
on February 18 and logged off at 12:02 a.m. on February 19. The
last website she visited was "birthplan.com."
On February 21, Lisa's Dodge Durango was found
in a creek approximately 300 yards from where Officer Brawner had
encountered appellant two days earlier. The front end of the
vehicle was submerged in the creek. The windows were down and the
hatchback was up. There was a bottle of cleaning solution in the
cargo area of the vehicle. Lisa's car keys and purse were located
On the same day that Lisa's car was found,
Detectives Michel Carroll, John McCaskell, and Brian Jamison of
the Fort Worth Police Department traveled to Tyler to speak with
appellant, his wife Trish Barbee, and his co-worker Ron Dodd. The
detectives initially talked to them in the parking lot of a Wal-Mart,
but later asked them to come to the Tyler Police Department for
further questioning. At the police department, Carroll and Jamison
interviewed appellant in one room, and McCaskell interviewed Dodd
in another room. Appellant received his Miranda warnings
and his interview began at about 7:45 p.m.
(3) In this interview, which was recorded on a digital
video disc (DVD), appellant said that he worked cutting down trees
in Tyler during the day on February 19. He said that he drove to
his home in Fort Worth that evening and that he went over to
Dodd's house later that night to work on the truck that they used
as their business vehicle. He left Dodd's house at around 2:00 or
3:00 a.m. It took over an hour for him to drive home because the
truck was "sputtering" and "leaking oil." His wife was asleep when
he arrived home, and he slept on the couch so he would not wake
her. He acknowledged that he had dated Lisa and that she had
informed him he might be the father of her unborn child, but he
claimed that he had not seen or heard from her in a while. He
eventually acknowledged that he had been stopped by a police
officer in Denton County at around 3:00 a.m., that he had given
the officer a false name and date of birth, and that he had run
away from the officer.
Carroll testified that he excused himself to
observe McCaskell's interview with Dodd, then he returned to
appellant's interview room and asked, "Does FM 407 sound familiar
to you?" He placed photographs of Lisa and Jayden on the table and
walked out of the room, leaving appellant alone. Appellant later
opened the door and asked to use the men's room. Carroll
accompanied him to the bathroom where they had an un-recorded
conversation for about forty-five minutes to one hour. Carroll
testified that he told appellant that Dodd was "going to lay this
whole thing in [appellant's] lap" and that "Lisa's family needed
closure." Appellant made comments "about being locked up [for] the
rest of his life" and said that he understood the need for closure
because he had lost a family member. Appellant told Carroll that
"he and Dodd actually created a plan to go kill Lisa" because
"Lisa wanted to use his name on a birth certificate or she was
trying to take money from him, she was going to ruin his family,
his relationship with his wife, Trish, and he did not want that to
happen." Appellant said that he dropped his car off at Dodd's
house and then Dodd drove him to Lisa's house. Dodd left, and
appellant went inside and tried to "pick a fight" with her. He was
unable to provoke a fight, so he called Dodd to pick him up. He
later had Dodd take him back to Lisa's house. This time, "he was
able to get her upset enough that he could start a fight with her."
He wrestled her to the ground and "held her face into the carpet
until she stopped breathing." Jayden came into the room and was "crying"
and "emotional." Appellant said he walked up to Jayden, placed his
hand over his mouth and nose, and "held it there until he stopped
breathing." Afterwards, appellant "tried to clean up the house"
and "tried to cover a blood spot with a piece of furniture." He
placed the bodies of Lisa and Jayden into Lisa's car and drove to
"a road off of FM 407 where they buried both their bodies." He
said that he used a shovel Dodd had given to him and that he
buried the bodies in a shallow grave and placed debris on top of
it. He then drove Lisa's car to another location and "stopped it
just short of the creek." After relating this story, appellant
agreed to have another digitally recorded video interview with
Carroll testified that he and appellant left
the bathroom and went to Detective Richard Cashell's desk where
appellant assisted them in mapping out the location where he had
buried the victims. They used "MapQuest" to "get a map of that
area" and appellant showed them "the roads that he traveled" and
where he "put the victims' bodies." Carroll and appellant then
went back to the interview room where appellant gave his second
digitally recorded video statement shortly after 11:00 p.m.
After Carroll interviewed appellant, he left
the interview room and spoke with appellant's wife, Trish Barbee.
Carroll told Trish that appellant had confessed to killing Lisa
and that he wanted to talk to her. Trish wanted to speak with
appellant, so Carroll brought her to the interview room. Carroll
remained outside, and the digital video recorder continued running
as appellant and Trish conversed. Trish asked appellant what
happened. Appellant explained that Lisa called him and threatened
him, so he went to her house and tried to talk to her. He said
that Lisa said she would "ruin" him and that she fought with him
and kicked him. He explained that he "held her down too long" and
that he "didn't mean for her to stop breathing."
Carroll testified that appellant spent that
night in the Smith County Jail. The next morning, he rode with
Carroll and Officer Mark Thornhill and directed them to the
location of the bodies. Carroll testified that appellant stated,
"[W]hen I take you to the bodies, I don't want to see the bodies,
and I don't want the media to see me." When they got closer to the
location, appellant told the officers to take a different exit and
"took [them] a back route to the same location." When they arrived,
appellant sat in the car and directed them to the grave by yelling
out the window. Carroll testified that Dodd had already taken
police to "the same area," but that the bodies were not located
until appellant arrived. The bodies were located in a shallow
grave that had tree limbs placed on top of it.
The medical examiner who performed Lisa's
autopsy testified that Lisa suffered facial abrasions and
contusions and a broken arm. She had bruises on both sides of her
back that could have been caused by being hit or by having "external
force applied over a longer period of time." Her injuries were
consistent with a person holding her down and stopping her from
breathing. The cause of her death was "traumatic asphyxiation,"
and the manner of her death was homicide. Lisa was pregnant with a
healthy female fetus that appeared to be around seven months
gestational age. The cause of the fetus' death was "fetal
asphyxiation" resulting from "maternal asphyxiation."
The medical examiner who performed Jayden's
autopsy testified that Jayden had a large bruise above his right
temple that was "due to some sort of impact to the head." He had
bruises on his back and abrasions on his back, arm, hip, and leg.
He had bruises on his lips and gums that appeared to be "caused by
some sort of compression, some object put over the area of the
mouth and pressing on the mouth and compressing the lips against
the underlying teeth." The medical examiner testified that
Jayden's injuries were consistent with: someone placing a hand
over Jayden's mouth and nose; someone pressing Jayden's face
against a flat surface; or, someone pressing Jayden's face against
a surface that "gives if you push against it," like a couch or a
carpeted floor. He determined that the cause of Jayden's death was
"asphyxia by smothering" and the manner of his death was homicide.
At punishment, the State presented the
testimony of appellant's ex-wife, Theresa Sue Barbee. Theresa
testified that she was married to appellant from 1996 to 2003 and
that he physically assaulted her during the course of their
relationship. During one of their fights, she suffered a "bad
concussion." Appellant sat in another room eating ice cream while
she was bleeding and unconscious, and he made her drive herself to
the hospital when she awoke. Theresa also testified that appellant
told her and others that he was going to put her "through a [wood]
Theresa further testified that she was dating
Dodd at the time of the instant offense. She testified that
appellant and Dodd had been at her house on the night of Friday,
February 18, 2005. Dodd and appellant left in Dodd's truck
sometime after 10:00 p.m., and Dodd returned alone shortly
thereafter. As soon as Dodd returned, appellant called him. Dodd
left again and returned with appellant about fifteen minutes later.
At around 3:00 a.m., appellant called Dodd and Theresa heard
appellant say "come and help him" and that "[h]e ran out of gas."
Dodd left and Theresa went to sleep. When she next saw appellant
on Sunday morning, he cried and said that "his life was over with."
Theresa mentioned the missing woman and asked, "What have you
done?" Appellant said, "Help me," and that he "was guilty until
proven innocent." Appellant later called Theresa and said that he
had confessed to police. He was crying and said that "he didn't
mean to" and that he "went over there to talk to her . . . and do
the right thing . . . [and] they got into a fight
. . . she hit him, and they just got into it."
Theresa asked, "What about the boy?" Appellant replied that "he
didn't mean to" and "he was just trying to keep him quiet."
Theresa asked him if Dodd was involved, and he said "Ron's mistake
was picking him up." Appellant later kept changing his story and
saying that he did not do it. When Theresa later visited appellant
in jail, he held up a piece of paper asking her to say that Dodd
did it and set him up. She started crying and left. Appellant had
her removed from his visitors list following that encounter.
The State also presented the punishment
testimony of Marie Mendoza, who briefly worked with appellant at
the United Parcel Service in 2000 or 2001. Mendoza testified that
appellant called her often and claimed that he was not married.
When he told her that he had a tree-trimming business, Mendoza
asked him to come to her house and give her an estimate. She came
home one day and found that he already trimmed her trees without
giving her an estimate first. She spoke to him on the telephone a
few days later, telling him that she was not interested in a
relationship and offering to pay him for his work. Appellant
responded with a "big outburst" and yelled and cursed at Mendoza.
He called her a "fucking bitch" and said, "I go out there and trim
your trees and this is what I get in return?" Following that
incident, Marie had no further contact with appellant and never
saw him at work again.
SUFFICIENCY OF THE EVIDENCE
In point of error one, appellant argues that
the evidence is legally insufficient because the State failed to
prove that the grand jury exercised due diligence in determining
the manner and means used to cause Jayden's death. The indictment
alleged, in pertinent part:
. . . and during the same criminal transaction,
the defendant intentionally or knowingly caused the death of
another individual, Jayden Underwood, by smothering him with his
hand or by a means unknown to the grand jury or by a combination
of the two[.]
Appellant asserts that the evidence at trial "conclusively
established the manner and means used to facilitate Jayden
Underwood's death," relying specifically on the following
testimony by Detective Carroll:
[PROSECUTOR]: Did [appellant] say anything
[CARROLL]: He did. He said that while he was in
the process of killing Lisa, Jayden came to the front room, the
room where he was fighting with Lisa, and Jayden was crying, [was]
emotional. He looked up and saw Jayden standing there and he
So I asked him, "How did you kill Jayden?" He
said, "I walked up to him and I placed my hand over his mouth and
nose and held it there until he stopped breathing."
Citing Hicks v. State, 860 S.W.2d 419
(Tex. Crim. App. 1993), appellant argues that because Detective
Carroll's testimony conclusively established the manner and means
used to cause Jayden's death, the State was required to prove that
the grand jury used due diligence in attempting to ascertain the
manner and means. (4) The State
called the grand-jury secretary to testify at trial, but appellant
asserts that his testimony was insufficient to show that the grand
jury exercised due diligence in attempting to ascertain the manner
and means used to cause Jayden's death.
As we stated in Rosales v. State, 4
S.W.3d 228, 231 (Tex. Crim. App. 1999), "the rule in cases like
Hicks is no longer viable in light of our decision in
Malik." See Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997)(holding that sufficiency of the evidence should
be measured by the elements of the offense as defined by the
hypothetically correct jury charge for the case). Further, like
the jury in Rosales, the jury in appellant's case was
charged in the disjunctive. 4 S.W.3d at 231. The evidence
presented at appellant's trial supported the theory that appellant
caused Jayden's death by smothering him with his hand. See id.,
citing Kitchens v. State, 823 S.W.2d 256, 258-59 (Tex. Crim.
App. 1991)(holding that when a jury returns a general guilty
verdict on an indictment charging alternative theories of
committing the same offense, the verdict stands if evidence
supports any of the theories alleged). The evidence, viewed in the
light most favorable to the verdict, was sufficient to enable any
rational trier of fact to find the essential elements of the
offense beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Point of error one is
In point of error two, appellant claims that
the evidence is factually insufficient to support his capital
murder conviction. Evidence that is legally sufficient may be
factually insufficient if it is so weak that the jury's verdict
seems clearly wrong and manifestly unjust, or whether, considering
conflicting evidence, the jury's verdict, though legally
sufficient, is nevertheless against the great weight and
preponderance of the evidence. Watson v. State, 204 S.W.3d
404, 414-15 (Tex. Crim. App. 2006). A factual-sufficiency review
requires the reviewing court to consider all of the evidence.
Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App.
2006), cert. denied, 128 S. Ct. 87 (2007). A clearly
wrong and unjust verdict occurs where the jury's finding is
manifestly unjust, shocks the conscience, or clearly demonstrates
bias. Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App.
Appellant claims that the evidence is factually
insufficient because the State's case was circumstantial and did
not include eyewitnesses or forensic evidence connecting appellant
to the crime. However, we have held that circumstantial evidence
is as probative as direct evidence in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to
establish guilt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007); Guevara v. State, 152 S.W.3d 45, 49 (Tex.
Crim. App. 2004).
Appellant admitted to police that he killed
Lisa and Jayden, that he attempted to clean up the crime scene,
and that he disposed of their bodies and Lisa's car afterwards.
The physical evidence corroborated his confession. When appellant
was stopped by a police officer at 3:00 a.m. in close proximity to
the area where Lisa's car was later found, his clothes were
covered in mud and he gave the officer a false name and birth date
before running away from him. Lisa's friend Holly Pils confirmed
that Lisa had been in a relationship with appellant and that she
believed that he was the father of her unborn child. Appellant
told police that he did not want his wife to find out about Lisa's
pregnancy, and he confirmed this during a recorded conversation
with his wife. He accurately described the location where the
bodies were buried, and he led police to the burial site. This
evidence was not so weak that the jury's verdict seems clearly
wrong and manifestly unjust. Watson, 204 S.W.3d at
414-15. Even considering conflicting evidence, the jury's verdict
was not against the great weight and preponderance of the evidence.
Id. Point of error two is overruled.
In point of error eight, appellant contends
that the evidence was legally insufficient to support the jury's
affirmative answer to the future-dangerousness special issue. We
view the evidence in the light most favorable to the jury's
finding and determine whether any rational trier of fact could
have found beyond a reasonable doubt that there is a probability
that appellant would commit criminal acts of violence that would
constitute a continuing threat to society. Jackson v.
Virginia, 443 U.S. 307 (1979).
Appellant committed the murders of a pregnant
woman and her seven-year-old son. See Hayes v. State, 85
S.W.3d 809, 814 (Tex. Crim. App. 2002)(stating that the
circumstances of the offense alone may be sufficient to support an
affirmative answer to the future dangerousness special issue). He
admitted planning Lisa's murder in order to avoid being named as
the father of the unborn child. He attempted to conceal his crime
and successfully evaded a police officer shortly after disposing
of the bodies. The State presented further evidence at punishment
that appellant verbally attacked a former co-worker and physically
assaulted his ex-wife and threatened to put her "through a [wood]
chipper." Both the facts of the instant offense and the other
evidence showing appellant's escalating pattern of violence are
legally sufficient to support a finding of future dangerousness.
Point of error eight is overruled. VOIR DIRE
In point of error three, appellant contends
that the trial court erroneously denied his challenge for cause to
veniremember Denise Anderson. Appellant asserts that the trial
court should have granted his challenge for cause to Anderson
because she had formed an opinion about appellant's guilt based on
media reports prior to trial. A veniremember is challengeable for
cause if she has formed in her mind "such a conclusion as to the
guilt or innocence of the defendant as would influence [her] in
finding a verdict." See Art. 35.16(a)(10).
We review a trial court's ruling on a challenge
for cause with considerable deference because the trial court is
in the best position to evaluate a veniremember's demeanor and
responses. Colburn v. State, 966 S.W.2d 511, 517 (Tex.
Crim. App. 1998). We will reverse a trial court's ruling on a
challenge for cause only if a clear abuse of discretion is evident.
Id. When a veniremember's answers are vacillating,
unclear, or contradictory, we accord particular deference to the
trial court's decision. Id. A veniremember is not
challengeable for cause merely because she has heard news reports
about the crime or the suspect. Ladd v. State, 3 S.W.3d
547, 561 (Tex. Crim. App. 1999), citing Macias v. State,
733 S.W.2d 192, 193 (Tex. Crim. App. 1987).
When initially questioned by the prosecutor,
Anderson stated that she had seen news reports about the case on
the television "at least a year" ago. The prosecutor questioned
her further about this issue:
Q. So what I want to know is have you already
decided or do you have an opinion that [appellant] is guilty right
A. Truthfully, the way things have been played
out it seems like that's a great possibility.
A. But I don't necessarily feel like I would --
I don't feel like I know everything.
Q. Okay. Do you feel like you actually know
A. No, I don't feel like I know anything.
Q. You have heard police -- you have heard --
tell me what you have heard.
A. I just remember about a girl that was
pregnant had gone missing. And then it seemed like they found her
three days later and her boyfriend and his friend were involved
and -- or the friend was involved in discovering where she was
thrown. That's all I remember.
Q. Do you remember anything about the victim?
A. I remember that she was excited about going
to her baby shower. Because during the time that she was missing
they kind of questioned if she was depressed and if she would have
left, seemed like the report did. And her friend or coworker or
something said no, in fact, she was excited about having this baby
and going to a baby shower.
Q. So that's what sticks in your mind?
A. That's what sticks in my mind.
Q. Do you remember anything -- you said the
friend or the boyfriend. Do you remember anything specifically
about the friend or the boyfriend?
A. No. I remember that it seemed like the
friend didn't have any idea what was going on or something. But
that he had been asked to borrow his truck or something the actual
night or day she was missing or time. And the only other thing
that stands out it seems like I remember hearing something about a
Q. Do you remember what you heard about a T-shirt?
A. I can't remember -- I can't remember if they
found a T-shirt -- or I don't remember. I just remember a T-shirt.
* * *
Q. But obviously if you come into this -- if
you already have an opinion as to this man's guilt, we need to
know about it now.
A. I don't have an opinion because, again, I
don't feel like I know all the facts. I was very sympathetic
towards the girl being pregnant and excited about a baby, and I
think that's why it stood out to me.
Q. And all those feelings were based on news
Q. Okay. Have you ever known news reports to be
A. Of course.
* * *
Q. Could you set aside anything you might have
heard in the news media and just come in here and base your
opinion in this case strictly on what's presented in the courtroom?
A. Yes, I could.
* * *
Q. Can you just base -- wait until you get in
here before you actually know something?
Q. Okay. We don't ask you to -- to, you know,
blank your mind.
Q. But we do ask you to not consider anything
else you might have heard. We live in a media age. People hear
Q. Unless they live under a rock.
Q. But, you know, that can have an effect on a
trial and we don't want that to happen.
Q. Can you -- do you think you could block that
out and just -- and just get your evidence and . . . any opinions
you form, form them based on the evidence in the courtroom?
A. Yes, I could.
On voir dire examination by defense counsel,
Anderson stated that she had watched television news coverage "probably
about two or three times during the course of [the victim] being
missing." She heard on the news reports that the missing woman was
not married, that she had been excited about attending her baby
shower, that her boyfriend had borrowed a truck from a friend
about the time that she went missing, and that the friend seemed
to have no idea what was going on "but somehow he knew where she
was dumped." At that time, based on the news reports, Anderson
felt that the boyfriend was involved because "most crimes are done
by people that know you." Defense counsel continued to question
her as follows:
Q. Well, how are [you] going to be able -- and
I don't know if you can
-- to distinguish a fact that you hear at this
trial versus one of these facts that you heard on the news if
they're very similar to each other but maybe not exactly the same?
You understand what I am saying?
A. Yes, I do. I think probably -- I mean, you
know, if you think I am the right juror for them, but I think I
would be able to do it because I don't trust all the news reports
and the way they -- you know, their take on things. And I wasn't
-- I wasn't real interested after she was found.
Q. Well, but you were interested enough to
watch it enough to form an opinion that [appellant] is involved?
A. Well, because that was the end of it, you
know. That was the end of when she was found.
* * *
Q. I know you want to be able to feel what you
saw then and the opinions you reached then are not going to figure
in to the opinions that you reach based on what you hear in the
Q. Okay. But, quite frankly, you have heard a
lot of things and came to a pretty strong conclusion.
* * *
Q. And so the question then becomes . . . what
guarantee do I have that you are really not going to be
considering that? It's one thing for you to say, well, I am going
to do it. I don't question your will. What I question is your
* * *
A. I see. And that's -- I mean, I don't really
know how to tell you that I think I could do it other than I am a
person who follows rules and tries really hard . . . But I can't
tell you that I'm going to be able to put it through my mind other
than the fact that I don't feel like at the time I knew all the
facts. I just remember feeling very strongly concerned for this
girl because she was pregnant. And I don't know if that's because,
you know, I am a mom or whatever. And then once she was found . .
. I was just glad that there was an end to it.
Defense counsel later asked Anderson if she
could answer the mitigation question "in such a way as to give a
life sentence, given the fact that you have already had some
opinions about this?" Anderson replied, "I think that I could say
yes to a life sentence, because, again, I don't feel that I really
know all the details and facts of the case."
Defense counsel challenged Anderson for cause
and the trial court ruled as follows:
The Court, when she began to go into all this,
I took - - I observed her completely and totally the whole time. I
have listened to what she had to say. I vacillated as she
vacillated. And I feel like frankly that based upon what I have
observed that I am going to overrule the challenge and she will be
juror number 42. And it's based strictly on what I saw today and
what I observed her to do.
We defer to the trial court's ruling. Anderson
acknowledged that she had learned some things about the case and
had developed an opinion about the boyfriend's guilt when she
watched television news coverage for a few days about a year prior
to trial. However, she maintained that she did not know all of the
facts and that she had known news reports to be wrong. She stated
that she could set her knowledge and opinions aside and base her
verdict solely on the evidence presented at trial and that she
could even vote for a life sentence if the punishment evidence
warranted it. The totality of her voir dire testimony indicates
that any conclusion she had formed about appellant's guilt would
not influence her verdict. The trial court did not clearly abuse
its discretion in denying the challenge for cause. Point of error
three is overruled.
ADMISSIBILITY OF ORAL STATEMENTS
In points of error four, five, and six,
appellant asserts that the trial court abused its discretion in
denying his motion to suppress "three separate inculpatory
statements": (1) appellant's oral statement to Detective Carroll
in the bathroom of the Tyler Police Department, in which he
admitted killing Lisa and Jayden; (2) appellant's oral statement
to Detective Carroll at Detective Cashell's desk, in which he
described where the victims' bodies were buried and helped to
produce a map of that location; and (3) appellant's oral statement
to Detective Carroll on the way to the burial site the next
morning, in which he pointed out the specific location of the
bodies and expressed concerns about viewing the bodies and being
seen by the media. Appellant specifically asserts that these
statements were inadmissible under Article 38.22, Section 3(a),
No oral or sign language statement of an
accused made as a result of custodial interrogation shall be
admissible against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include
motion picture, video tape, or other visual recording, is made of
(2) prior to the statement but during the
recording the accused is given the warning in Subsection (a) of
Section 2 above and the accused knowingly, intelligently, and
voluntarily waives any rights set out in the warning;
(3) the recording device was capable of making
an accurate recording, the operator was competent, and the
recording is accurate and has not been altered;
(4) all voices on the recording are identified;
(5) not later than the 20th day
before the date of the proceeding, the attorney representing the
defendant is provided with a true, complete, and accurate copy of
all recordings of the defendant made under this article.
Oral confessions are generally inadmissible
unless there is compliance with all portions of Section 3(a). Art.
38.22, § 3(e); Woods v. State, 152 S.W.3d 105, 116 (Tex.
Crim. App. 2004); Moore v. State, 999 S.W.2d 385, 400 (Tex.
Crim. App. 1999). However, an exception set out in Section 3(c)
Subsection (a) of this section shall not apply
to any statement which contains assertions of facts or
circumstances that are found to be true and which conduce to
establish the guilt of the accused, such as the finding of
secreted or stolen property or the instrument with which he states
the offense was committed.
Art. 38.22, § 3(c). Under this exception, oral
statements asserting facts or circumstances establishing the guilt
of the accused are admissible if, at the time they were made, they
contained assertions that were unknown by law enforcement but were
later corroborated. Woods, 152 S.W.3d at 117; Moore,
999 S.W.2d at 400-01. Such oral statements need only
circumstantially demonstrate the defendant's guilt. Id.
Furthermore, if such an oral statement contains even a single
assertion later found to be true and conducive to establishing the
defendant's guilt, then the statement is admissible in its
The trial court held a hearing on appellant's
motion to suppress his statements. The evidence at the suppression
hearing showed that appellant and Dodd were questioned separately
at the Tyler Police Department. Detective McCaskell interviewed
Dodd, and Detective Carroll observed a portion of that interview.
McCaskell testified that Dodd "had an idea of where [appellant]
had last been seen with the remains of Lisa and Jayden." Carroll
testified that Dodd told McCaskell that he had seen appellant with
the bodies before he buried them and that the bodies had been
buried near "FM 407" in Fort Worth. McCaskell testified that Dodd
agreed to show him the location where he thought the bodies might
be buried. They left the Tyler Police Department about 9:50 p.m.
and they arrived at that location about 1:00 a.m. Prior to their
arrival, McCaskell was informed that appellant "had confessed and
had said that the bodies were buried in that same general area."
McCaskell was unable to locate the bodies because "[t]he details
that [he] received were fairly generic" and "it was very dark when
[they] got there," despite the fact that they were "[p]robably a
few hundred yards" from where the bodies were ultimately found.
Carroll testified at the suppression hearing
that he and appellant went into the bathroom at the Tyler Police
Department at about 8:30 p.m. During their bathroom conversation,
which lasted about forty-five minutes to an hour, appellant told
Carroll how he had killed the victims and where he had buried them.
After their bathroom conversation, they went to Detective
Cashell's desk "because [appellant] agreed to show [them] on a map
exactly where the bodies had been buried." They "got on MapQuest
on the computer" and appellant "pointed out to [them] where the
bodies were." Carroll called Sergeant John David Thornton around
11:30 p.m. and relayed to him appellant's description of the
Thornton testified that police thereafter
searched the area described by Dodd and appellant but were unable
to locate the bodies. He testified, "[W]e originally couldn't find
the exact location based on the information we were getting, but
we thought we were in the right location, and that would have been
finally somewhere around 2:00 or 3:00 in the morning." Shortly
after daylight, Thornton and another officer made a "walk-through"
of the area. They did not locate the bodies, although they "walked
within 20 to 30 feet" of where the bodies were later found.
Carroll testified that appellant rode back to
Fort Worth with him and Officer Thornhill later that morning.
Appellant agreed to take them to where the victims were buried.
They made "small talk" on the way and appellant expressed that he
did not want "to see the bodies" or "to be seen by the media."
Before they reached the highway exit they planned to take,
appellant "guided [them] in through a back way to the same
location." Carroll further testified:
So as we pulled in -- the night before he
described that as we pull into this gate, just about a few yards
into the gate to the left there will be two barbed-wire fences.
Over that second set of barbed-wire fences will be some shrubbery
and a fresh dug grave he described and loose shrubbery on top of
As we entered the gate and drove a little bit
to the left, I saw such a mound of debris, but farther down I saw
a second such description.
So [appellant] said -- he looked at that one
and made the comment to me that he thought that was it. Then he
said, "Wait, wait. Go further down."
So we drove to the second mound. We looked at
that one for a minute and then [he] said, "No, back up." So we
started to back up.
At that point I got out of the truck and went
over the fence. As I went over the fence, [appellant] is yelling
instructions to me; also Officer Thornhill is standing near the
truck, so he's relaying information to me also of what he's
telling me, to walk further to my left, walk further to my left as
I was going back toward that first mound of debris, and that's
where I found the bodies.
Following the suppression hearing, the trial
court made findings of fact and conclusions of law regarding
appellant's unrecorded oral statements "in the restroom," "while
employing the computer to explain the location of the bodies," and
"on the way back to Fort Worth on February 22 directing the
detectives to the location of the bodies." The trial court
concluded that the statements were admissible because they "were
revealed by the evidence to be true and conduced to establish the
guilt of the Defendant by leading to the finding of evidence
previously unknown to law enforcement officers."
Appellant alleges that the Section 3(c)
exception does not apply to his oral unrecorded statements. This
exception applies to "any statement which contains assertions of
facts or circumstances that are found to be true and which conduce
to establish the guilt of the accused such as the finding of
secreted or stolen property or the instrument with which he states
the offense was committed." Dansby v. State, 931 S.W.2d
297, 298 (Tex. Crim. App. 1996). "Found to be true" means facts
about which the police were unaware at the time of the confession
which are later, after the confession, found to be true. Id.
at 298-99. Appellant argues that Dodd told police where the bodies
were buried before appellant did; thus, appellant's statement did
not contain facts unknown to police and later found to be true.
We previously addressed similar facts in
In Santana v. State, 714 S.W.2d 1 (Tex.
Crim. App. 1986), police questioned both Santana and his
codefendant independently when both were arrested shortly after a
robbery-murder. The codefendant was interviewed first and told
police the murder weapons could be found in a field. Santana also
told police the location of the weapons. Later, the guns used in
the murder were found in the field both men had described. Santana
argued that his oral statement did not fit within the exception of
section 3(c) because police already knew the location of the
weapons when they questioned him, having learned this information
from their prior interview of the codefendant. We rejected this
claim, holding that until police actually found the weapons, they
were unable to verify the truth of Santana's and his codefendant's
assertions; thus, neither statement was "found to be true" until
the discovery occurred.
Dansby, 931 S.W.2d at 299. In
Santana, we stated: "The fallacy with appellant's argument is
that at the time appellant gave his oral statement, the police had
not ascertained that [his co-defendant's] statement as to the
location of the weapons was true." 714 S.W.2d at 14. Here, the
police had not ascertained Dodd's statement to be true at the time
appellant gave his oral statement. The police did not locate the
bodies until appellant came to the scene the next morning and
specifically pointed out the grave. (5)
As we said in Santana, "This situation falls directly
into the category of admissible statements outlined in Article
38.22, Section 3(c)." Id. The trial court did not abuse
its discretion in admitting appellant's oral statements. Points of
error four, five, and six are overruled.
In his seventh point of error, appellant claims
that the trial court violated his confidential communication
privilege by admitting the digitally recorded video conversation
between him and his wife Trish at the Tyler Police Department.
Rule 504 of the Texas Rules of Evidence provides that a person has
a privilege during marriage and afterwards to refuse to disclose
and to prevent another from disclosing a confidential
communication made to the person's spouse while they were married.
TEX. R. EVID. 504(a)(2). A communication is confidential if it is
made privately by any person to the person's spouse and it is not
intended for disclosure to any other person. TEX. R. EVID.
504(a)(1). An exception applies "[i]n a proceeding in which the
party is accused of conduct which, if proved, is a crime against
the person of the spouse, any minor child, or any member of the
household of either spouse." TEX. R. EVID. 504(a)(4)(C).
Following the suppression hearing, the trial
court made findings of fact and conclusions of law, which stated
in pertinent part (with citations omitted):
The conversation between the Defendant and his
wife, Trish, which was recorded and admitted into evidence was not
a privileged confidential communication between husband and wife
under Texas Rules of Evidence 504. There is an exception to the
spousal privilege where the defendant is charged with a crime
against a minor child. The spousal privilege does not prohibit the
introduction of evidence of out of court statements made by the
spouse. The Defendant was aware that he was being recorded. The
Defendant had no right or expectation of privacy in the situation
of his confinement when the conversations with his wife took
place. The statements made by the Defendant during this segment of
the DVD were not the product of custodial interrogation.
Appellant disputes that his conversation with
his wife Trish fell under the "crime against any minor child"
exception to the confidential communication privilege. Appellant
asserts that the exception does not apply here because Trish was
unaware at the time of their conversation that appellant was
accused of killing a minor child. (6)
The conversation between appellant and Trish
was not made "privately." See TEX. R. EVID. 504(a)(1).
Their conversation took place in a police station interview room
while the digital video recorder was running. See State v.
Scheineman, 77 S.W.3d 810, 812-813 (Tex. Crim. App. 2002).
Even if the conversation could be considered a privileged "confidential"
communication, it would still be admissible pursuant to the
exception for a crime against any minor child. Appellant was
accused of conduct which, if proved, constituted a crime against a
minor child, seven-year-old Jayden. See TEX. R. EVID.
504(a)(4)(C). Trish's ignorance of this fact is of no consequence.
The applicability of this exception does not depend on the
knowledge of appellant's spouse. Point of error seven is overruled.
CONSTITUTIONALITY OF ARTICLE 37.071
In his ninth point of error, appellant claims
the Texas death penalty statute violates the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution because it
fails to require the State to prove the mitigation issue beyond a
reasonable doubt, citing Apprendi v. New Jersey, 530 U.S.
466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002).
We have previously rejected this claim, and we decline to
revisit it here. Crutsinger v. State, 206 S.W.3d 607, 613
(Tex. Crim. App.), cert. denied, 127 S. Ct. 836 (2006);
Blue v. State, 125 S.W.3d 491, 500-01 (Tex. Crim. App.
2003). Point of error nine is overruled.
We affirm the judgment of the trial court.
DELIVERED DECEMBER 10, 2008
DO NOT PUBLISH
1. Unless otherwise
indicated, all references to Articles and Sections refer to the
Texas Code of Criminal Procedure and the Texas Penal Code,
2. Brawner testified that he
was "100 percent positive" or "110 percent positive" when he
identified appellant in the photo spread. However, Detective
Michel Carroll of the Fort Worth Police Department had a different
opinion regarding Brawner's level of certainty. Carroll testified
that Brawner's identification of appellant "wasn't good enough"
for an arrest and conviction, but it was good enough to cause
Carroll to be more suspicious of appellant.
3. Miranda v. Arizona,
384 U.S. 436 (1966).
4. The State disagrees that
Carroll's testimony conclusively established the manner and means
of Jayden's death, pointing out that the medical examiner
testified that Jayden's injuries were consistent with three
possible scenarios: someone placing a hand over Jayden's mouth and
nose; someone pressing Jayden's face against a flat surface; or,
someone pressing Jayden's face against a surface that "gives if
you push against it," like a couch or a carpeted floor.
5. In Santana, the
defendant "did not add any additional information to the statement
already obtained from [his co-defendant]." 14 S.W.2d at 14. Here,
it appears that appellant's description of the burial location was
more detailed than the one given by Dodd.
6. Appellant relies on the
following testimony of Detective Carroll on direct examination by
the prosecutor during the guilt/innocence phase of trial:
Q. So [Trish] enters the room. How did that
come to be?
A. After I had completed my interview, she
wanted to talk to [appellant]. I told him that she could come in
and talk to him. He had already confessed to killing Lisa, Jayden;
and I went out and met with her in the lobby, told her what had
happened, he wanted to speak to her, asked her if she wanted to
speak to him; she said she did.
Q. Is that the matter that he was just
referring to, "Can I talk to her, please?" Is that what he was
Q. Before you escorted her into that room, did
you tell her that he had confessed to killing Lisa?
Q. Did you tell her before she entered that
room that he had confessed to killing Jayden?
We further note that appellant and Trish talked
about Lisa's murder during their recorded conversation, but they
made no mention of Jayden's murder.
Underwood and her son Jayden