author: HERVEY, J., JOHNSON, J., concurred. HOLCOMB, J., dissented.

text:
    Dwayne Heath WOOLDRIDGE, Appellant, v. The STATE of Texas.
    No. PD-0912-04.
    Court of Criminal Appeals of Texas.
    March 9, 2005.
    Richard C. Mabry, Abilene, for Appellant.
    Jeffrey L. Van Horn, First Assist. St. Atty., Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court in which

KELLER, PJ., MEYERS, PRICE, WOMACK, KEASLER, and COCHRAN, JJ., joined.

Article 44.01(b), Tex.Code CRiM. PROC., allows the State to “appeal a sentence in a case on the ground that the sentence is illegal.” In State v. Kersh, we decided that Article 44.01(b) authorizes the State to appeal a trial court’s decision not to consider its previous “true” findings on enhancement allegations when assessing punishment at an adjudication hearing. See State v. Kersh, 127 S.W.3d 775, 776-77 (Tex.Cr.App.2004). In this case, the Court of Appeals decided that Article 44.01(b) did not authorize the State to appeal the trial court’s decision not to consider enhancement allegations when assessing appellant’s punishment following his conviction by a jury for the second-degree felony offense of aggravated assault with a deadly weapon. See State v. Wooldridge, 135 S.W.3d 312, 313 (Tex.App.-Eastland 2004). The Court of Appeals distinguished our decision in Kersh on the basis that the trial court’s previous findings of “true” to the enhancement allegations made them part of the sentence in Kersh. See Wooldridge, 135 S.W.3d at 316-17 (in absence of “true” findings, enhancement allegations did not become part of the sentence).

We exercised our discretionary authority to review this decision. The grounds upon which we granted discretionary review state:

1) Does the State have authority, pursuant to [Article 44.01(b)], to appeal the trial court’s failure to consider or apply enhancement allegations alleged in the indictment?
2) Did the Court of Appeals err by considering the merits of the State’s appeal in connection with the issue of appellate jurisdiction?

Our decision in Kersh did not turn on whether the enhancement allegations were previously found to be true. Our decision in Kersh explained that the definition of “sentence” is “nothing more than the portion of the judgment setting out the terms of punishment” and that this “consists of the facts of the punishment itself’ including, among other things, “its duration.” See Kersh, 127 S.W.3d at 777 (emphasis in original). Kersh further explained that the “duration of punishments prescribed for habitual and repeat offenders [under Chapter 12 of the Penal Code] is part of the sentence.” See id. This applies even when enhancement allegations are not previously found to be true. Any legal significance attributable to the trial court’s failure to find the enhancement allegations to be true in this case relates to the merits of the State’s contention that the sentence is illegal, and not to whether the State is appealing a sentence on the grounds that the sentence is illegal. See State v. Gutierrez, 129 S.W.3d 113, 115 (Tex.Cr.App. 2004) (it is error to focus on merits of State’s appeal in determining whether State’s appeal is statutorily authorized); State v. Ross, 953 S.W.2d 748, 750 (Tex.Cr. App.1997) (when State appeals a sentence, jurisdiction is properly invoked and questions of legality can be addressed on their merits).

We decide, based on our decision in Kersh, that the State appealed a sentence on the ground that the sentence is illegal and that the jurisdiction of the Court -of Appeals was, therefore, properly invoked. As in Kersh, 127 S.W.3d at 777, our review is limited to jurisdictional questions, and we express no opinion on the legality of the sentence imposed.

The judgment of the Court of Appeals is reversed, and the cause is remanded there for further proceedings.

JOHNSON, J., concurred.

HOLCOMB, J., dissented.

      . Here, as in Kersh, the State sought to have appellant sentenced as an habitual offender under Section 12.42(d), Tex. Pen.Code. See Kersh, 127 S.W.3d at 776-77; Wooldridge, 135 S.W.3d at 313.


source: Caselaw Access Project

author: WOMACK, J.,

license: Public Domain

text:
    The STATE of Texas v. Lee Michael ALLEY, Appellee, & Patricia Ann Delarosa, Appellee.
    Nos. PD-1300-04, PD-1301-04.
    Court of Criminal Appeals of Texas, En banc.
    March 9, 2005.

      George McCall Secrest Jr., Houston, for Appellant.
    Alan Curry, Assist. DA, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   WOMACK, J.,

delivered the opinion for a unanimous Court.

The issue in this case is whether the State may appeal from a justice court directly to a court of appeals. We hold that it may not.

The State filed complaints, in the Justice Court for Precinct 5 of Harris County, that accused the appellees of separate offenses of failure to stop at a stop sign. The justice court granted the appellees’ motions to dismiss the misdemeanor complaints against them because neither complaint alleged the specific location of the offense.

The State filed notices of appeal in the justice court. The notices said, “The State now gives written Notice of Appeal to the Court of Appeals sitting at Houston, Texas.” The appeals went to the First Court of Appeals.

The appellees argued that courts of appeals did not have jurisdiction. They relied on Articles 4.08 and 45.042 of the Code of Criminal Procedure, which speak to the county courts’ jurisdiction of appeals from justice courts.

Article 4.08 reads, “The county courts shall have appellate jurisdiction in criminal cases of which justice courts and other inferior courts have original jurisdiction.”

Article 45.042 reads:

“(a) Appeals from a justice or municipal court, including appeals from final judgments in bond forfeiture proceedings, shall be heard by the county court except in cases where the county court has no jurisdiction, in which counties such appeals shall be heard by the proper court.

“(b) Unless the appeal is taken from a municipal court of record and the appeal is based upon error reflected in the record, the trial shall be de novo.”

Also relevant are sections of the Government Code that give the constitutional county courts “appellate jurisdiction in criminal cases of which justice courts and other inferior courts have original jurisdiction,” and that give the statutory county courts “jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts.”

The State based its argument that a State’s appeal will be heard by the court of appeals on the first sentence of Article 44.01(f) of the Code of Criminal Procedure: “The court of appeals shall give precedence in its docket to an appeal [by the State] filed under Subsection (a) or (b) of this article.” Subsections (a) and (b) set out most of the grounds of appeal by the State; the only other grounds are in Subsections (c) and (k), which authorize cross-appeals and appeals in habeas-corpus proceedings involving probationers. The State filed these appeals under Subsection (a): “The State is entitled to appeal an order of a court in a criminal case if the order: (1) dismisses an indictment, information, or complaint....”

The court of appeals concluded that “Article 44.01 allow[s] the State to appeal, and Articles 4.08 and 45.042 establish[] the court with the initial appellate jurisdiction to hear the case.” Because “the State should have brought [its] appeals to the county courts,” the court of appeals dismissed the State’s appeal for lack of jurisdiction.

We granted review.

The prosecutions in these cases were for the offense of failure to stop at a stop sign. The offense is a misdemeanor that is punishable by fine only.

“Justices of the peace shall have original jurisdiction in criminal cases: (1) punishable by fine only....” Therefore, the justice court had original jurisdiction of these cases.

“[I]n criminal cases of which justice courts and other inferior courts have original jurisdiction,” Article 4.08 of the Code of Criminal Procedure provides that “the county courts shall have appellate jurisdiction.” Similarly, Article 45.042 provides that “Appeals from a justice or municipal court ... shall be heard by the county court except in cases where the county court has no jurisdiction, in which counties such appeals shall be heard by the proper court.”

Article 45.042 also says, “Unless the appeal is taken from a municipal court of record and the appeal is based on error reflected in the record, the trial shall be de novo.” Likewise, Article 44.17 provides, “In all appeals to a county court from justice courts and municipal courts other than municipal courts of record, the trial shall be de novo in the trial in the county court, the same as if the prosecution had been originally commenced in that court.”

As the First Court of Appeals’ opinion put it, “The State asks us to hold Article 4.08 inapplicable on a theory that ‘the appeal from a justice court to a county court is clearly intended to be an appeal by the defendant because such appeals are required to be trials de novo.’ ... The State contends that Article 44.01 therefore ‘effectively prevails’ over Article 4.08.”

The State questions how there can be a trial de novo in cases in which it is appealing the justice court’s rulings which granted the defendants’ motions to dismiss the complaint. It queries, “Is the trial de novo to be upon the complaint that the justice court had previously dismissed — in which case the justice court’s ruling on the defendant’s motion to dismiss would be ignored?” and “Is the trial de novo to be upon another complaint or an amended complaint — in which case the State’s right to appeal the justice court’s ruling would have been abrogated?”

The answer to the State’s first rhetorical question is, Yes. A trial de novo on a complaint that a justice court dismissed would ignore the justice court’s ruling. That is what Article 44.17 means when it says “the trial shall be de novo in the trial in the county court, the same as if the prosecution had been originally commenced in that court.”

The State also argues that article 44.01(f) “contemplates that a State’s appeal brought under that statute will be heard by the court of appeals.” Article 44.01(f) provides that “The court of appeals shall give precedence in its docket to an appeal filed under Subsection (a) or (b) of this article.” The State contends that this provision about precedence in court of appeals’ dockets means that courts of appeals have jurisdiction of every appeal filed under subsection (a) or (b). The language of the statute will not bear the weight of that inference.

Article 44.01(f) speaks only to the precedence of appeals of which the court of appeals has jurisdiction. It cannot be read to create jurisdiction, or to assume the existence of a jurisdiction that is not elsewhere granted. The basic principles of statutory construction require that all the provisions be given effect. This is easily and naturally done. Article 44.01(a) allows the State to appeal certain orders. Articles 4.08 and 45.042 establish that appeals from a justice court must be taken to the county court. Articles 44.17 and 45.042 specify that an appeal to county court shall be conducted de novo. If the State takes an appeal after such a de novo proceeding in the county court, Article 44.01(f) means that that appeal shall be given precedence by the court of appeals.

We affirm the judgment of the Court of Appeals.

      . Tex. Gov’t Code § 26.046.

      . Id., § 25.0003(a).

      . State v. Alley, 137 S.W.3d 866, 868 (Tex. App.-Houston [1st Dist.] 2004).

      . Id., at 867.

      . See Tex. Transp. Code § 544.010.

      . See id., § 542.301.

      . See id., § 542.401.

      . TexCode Crim. Proc. art. 4.11(a).

      . Alley, supra note 3 at 868.


author: KEASLER, J., KELLER, P.J.,

text:
    Matthew FORD, Appellant, v. The STATE of Texas.
    No. PD-1946-03.
    Court of Criminal Appeals of Texas.
    March 9, 2005.

      Brian W. Wice, Houston, for appellant.
    Shirley Cornelius, Assistant District Attorney, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court in which

MEYERS, PRICE, , JOHNSON, HERVEY, and HOLCOMB, JJ., joined.

In a motion to suppress evidence, Ford asserted that his initial detention for failure to maintain a proper following distance was not supported by reasonable suspicion. The trial court overruled Ford’s motion. The court of appeals held the stop was valid by concluding that the evidence was sufficient to establish reasonable suspicion. Having found the record devoid of specific, articulable facts to support the officer’s conclusion, we reverse.

I. Factual and Procedural History

Texas State Trooper Andrew Peavy pulled Matthew Ford’s vehicle over for following another car too closely on Highway 290 outside of Houston in violation of Texas Transportation Code § 545.062(a). Section 545.062(a) provides,

An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.

When Ford lowered his passenger-side window, Peavy noticed a strong odor of marijuana. Peavy took Ford’s driver’s license and returned to his patrol car to run a check on Ford’s license and to issue a warning ticket for the traffic violation. He approached the car again and asked Ford to exit his vehicle. Ford initially refused Peavy’s request for permission to search his car. Peavy testified that while he was waiting for backup Ford consented to a search. After another state trooper arrived, Peavy conducted a search of Ford’s car. Peavy’s search produced a bottle containing codeine, and another bottle containing codeine mixed with soda. Ford was then placed under arrest. When Peavy could not discover the source of the marijuana odor, he requested the assistance of a canine unit. The canine unit’s search revealed 55 grams of marijuana in the car’s console.

Ford was subsequently indicted for felony possession of codeine, a controlled substance, weighing at least 400 grams. Ford filed a motion to suppress evidence challenging, among other things, the reasonable suspicion required for the initial detention. At the suppression hearing, the trial court heard testimony from Peavy, the officer who responded to Peavy’s request for back-up, and Ford himself. Peavy, the only officer whose testimony related to the facts surrounding the stop, testified to the events leading up to the stop:

Q: And on September 2nd of 2001 did you notice something that caught your eye around 5:47 at night?
A: Yes, ma’am. I was patrolling and I saw a maroon utility vehicle following too close behind — I was patrolling 290 westbound. I saw a maroon GMC or Chevy utility vehicle following a white car, following too close.
Q: And where were you when you noticed this vehicle?
A: I was directly behind him.
Q: And at the time that you noticed this, what did you do?
A: I activated my emergency overheads and the vehicle pulled over.
Q: And when you were approaching the vehicle, what were your intentions before you approached the vehicle?
A: To talk to him about his violation he had committed.
Q: Which violation is that?
A: Following too close.

This quoted portion was the only testimony given by Peavy describing the circumstances leading up to Ford being stopped. There was no other testimony relevant to Ford’s driving. Peavy’s testimony also established that he was a certified peace officer serving the Department of Public Service for four years enforcing traffic and criminal laws. The remainder of his testimony focused on the search of Ford’s vehicle and whether Ford consented to the search. Ford also testified at the suppression hearing. Although he testified that a car “squeezed in” between his car and the car in front of him, Ford stated that he was not following too close.

Concluding that the traffic stop was supported by reasonable suspicion, the trial judge denied Ford’s motion to suppress. Under a plea agreement, Ford pled guilty to a reduced second-degree felony possession of a controlled substance charge. The court deferred adjudication and placed Ford on probation for nine years with a $500 fine. Ford appealed the trial court’s order denying his motion.

II. Court of Appeals

The Court of Appeals overruled Ford’s point of error and found that in light of the evidence presented at the suppression hearing, the trial court did not err in denying the motion to suppress. The court stated that “Trooper Peavy’s experience and training qualified him to make a judgment on whether, ‘considering the speed of the vehicles, traffic and the conditions of the highway,’ [Ford] was following the car in front of him too closely.” The court stated “Peavy testified that he saw [Ford] following another car at a distance that Peavy believed was insufficient and thus, in violation of the statute.” The court also stated that the trial court was entitled to believe the officer’s testimony while discounting Ford’s testimony. The court additionally reasoned that Peavy’s determination that Ford had violated section 545.062(a) “went unchallenged at the suppression hearing.” In further illustrating this point, the court highlighted Ford’s failure to “press Trooper Peavy on what factors might have led Peavy to make the determination that [Ford] was following too closely” or “attempt to discredit Peavy’s expertise or qualifications to make such a determination.”

III. Analysis

Burden of Proof

To suppress evidence on an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Once the defendant has made this showing, the burden of proof shifts to the State where it is required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable.

In this case, the suppression hearing began with the State stipulating that this case involved a warrantless arrest. Because the stipulation shifted the burden of proof to the State, whether Ford attempted to refute the existence of sufficient suspicion is irrelevant to the reasonable-suspicion analysis. Contrary to both the court of appeals’s and the dissent’s position, Ford was not charged with the responsibility of challenging whether Peavy had specific facts warranting the detention. The State bore the burden of establishing the reasonableness of the war-rantless detention.

Reasonable Suspicion

An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. A reasonable-suspicion determination is made by considering the totality of the circumstances.

In evaluating the totality of the circumstances, we use a bifurcated standard of review. We give almost total deference to the trial court’s determination of historical facts and review de novo the trial court’s application of law to facts not turning on credibility and demeanor. Because the trial court did not make explicit findings of fact in this case, we review the evidence in a fight most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact supported by the record.

Application

Ford asserts that the court of appeals erred in holding the evidence presented at the suppression hearing supported the trial court’s finding of reasonable suspicion. We agree.

The court of appeals stated that “Trooper Peavy testified that he saw [Ford] following another car at a distance that Peavy believed was insufficient and, thus, in violation of the statute.” While this may be a permissible interpretation of Peavy’s “following too close” testimony, it does not change its conclusive character into specific, articulable facts. And attempting to do so requires a strained reading of the record. As indicated from Peavy’s testimony, Peavy only stated that Ford was “following too close.” The record reveals an absence of any facts allowing an appellate court to determine the circumstances upon which Peavy could reasonably conclude that Ford actually was, had been, or soon would have been engaged in criminal activity. Instead, the trial court was presented only with a conclusory statement that Ford was violating a traffic law. We do not quarrel with the notion that Peavy may have in fact believed that Ford was following another car too closely. Nor do we dispute that the trial judge is free to believe or disbelieve Peavy’s testimony. But without specific, articulable facts, a court has no means in assessing whether this opinion was objectively reasonable.

When a trial court is not presented with such facts, the detention cannot be “subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.” And “[w]hen such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.” Allowing a police officer’s opinion to suffice in specific facts’ stead eviscerates Terry’s reasonable suspicion protection. If this Court were to hold as the dissent suggests, we would be removing the “reasonable” from reasonable suspicion. Therefore, we adhere to the principle that specific, articula-ble facts are required to provide a basis for finding reasonable suspicion. Mere opinions are ineffective substitutes for specific, articulable facts in a reasonable-suspicion analysis.

The court’s opinion further reasoned that the evidence regarding Peavy’s training, experience, and his duties enforcing traffic laws qualified him “to make a judgment as to whether, ‘considering the speed of the vehicles, traffic and the conditions of the highway,’ [Ford] was following the car in front of him too closely.” It is true that law enforcement training or experience may factor into a reasonable-suspicion analysis. The United States Supreme Court has stated, “objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion.” But reliance on this special training is insufficient to establish reasonable suspicion absent objective factual support.

Conclusion

The evidence before the trial court indicated only that in Peavy’s judgment, Ford was following another car too closely in violation of Transportation Code § 545.062(a). The State failed to elicit any testimony pertinent to what facts would allow Peavy to objectively determine Ford was violating a traffic law in support of his judgment. Even viewing the evidence in the light most favorable to the trial court’s ruling, the record does not support a finding of reasonable suspicion. Because the record fails to reveal any objective facts, we hold that the trial court erred in denying Ford’s motion to suppress.

We reverse the judgment of the court of appeals and remand the case to the trial court so that Ford can answer the charges in the indictment.

KELLER, P.J., filed a dissenting opinion in which WOMACK and COCHRAN, JJ„ joined.

KELLER, P.J.,

dissenting in which WOMACK and COCHRAN, JJ., joined.

This case presents a difficult question: how specific must an officer’s testimony about his observations be in order to support a finding of reasonable suspicion? At issue here is an officer’s opinion, based on his observations, that the accused was “following too close.” I would hold that the officer’s opinion constituted prima facie evidence sufficient to support a finding of reasonable suspicion, but the defendant or the trial court could have requested greater specificity, and if greater specificity were not forthcoming, then the evidence would have been subject to suppression. Because greater specificity was not requested in this case, I would affirm the trial court’s judgment.

In Terry v. Ohio, the fountainhead case on the “reasonable suspicion” standard applicable to “stops,” the Supreme Court said that a police officer had reasonable suspicion if he could “point to specific and articulable facts which, if taken together with rational inferences from those facts, reasonably warrant” the intrusion in question. The requirement of “specific and articulable facts” serves the function of subjecting the police officer’s actions to meaningful judicial review:

The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.

That meaningful judicial review carries over to the appellate context, which requires a de novo review of the circumstances relied upon to support a trial court’s finding that reasonable suspicion did indeed exist. But it is also true that appellate courts must give “due weight” to the “factual inferences drawn by resident judges and local law enforcement officers.” Texas recognized these principles in Guzman v. State, where we explained that, in the search and seizure context, “almost total deference” should be given to questions of historical fact, and application-of-law-to-fact questions turning on credibility and demeanor, while other application-of-law-to-fact questions are reviewed de novo.

Whether the bare testimony “he was following too close” is sufficient to support a trial court’s finding of reasonable suspicion has not been squarely addressed in any jurisdiction. There are a handful of published appellate opinions in which “following too close” or “tailgating” was at issue, and in each of these cases, the appellate court found the observed conduct to be sufficient to show reasonable suspicion or probable cause. In two of these cases, the court recited a specific fact testified to by the officers in support of their conclusions: following less than two seconds behind another vehicle. In the other cases the appellate court simply remarked that the officer had validly pulled over the accused on the basis of an anti-tailgating traffic law. None of these cases addressed whether the testimony in question was sufficiently specific.

The testimony at issue is an opinion based on a witness’ perception. As such, it implicates the concerns underlying Texas Rule of Evidence 701, which provides that the opinion of a witness is admissible if it is “rationally based on the perception of the witness” and “helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Our Rule 701 is based on its federal counterpart, which was adopted in part due to the “practical impossibility” of determining what is a “fact,” as opposed to mere opinion, “demonstrated by a century of litigation.” The advisory committee for the federal rules cited McCormick’s treatise for the proposition that “a standard for permitting opinions and conclusions has proved too elusive and too unadaptable for purposes of satisfactory judicial administration.” As a result of the immense difficulty in sorting “fact” from “opinion,” a recent edition of McCormick’s treatise has concluded that trial courts should be “accorded a wide range of discretion at least in classifying evidence as ‘fact’ or ‘opinion’ and probably in admitting evidence even where found to constitute opinion.”

We have recognized the role of Rule 701 in permitting the admission of opinions, where the opinion constitutes a “shorthand rendition of the facts.” These types of opinions, sometimes also called “collective facts,” are permitted because a “catalogue of particulars may be inadequate to convey important ideas that lay witnesses are competent to express.” The opinion “may sum up and give the full flavor and character of the particulars (to which the witness also testifies) or may substitute for a catalogue the witness may be unable to provide.” “Prototypical” examples of this type of opinion include those relating to “the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light and darkness, sound, size, weight, [and] distance.” Other common examples include speed and intoxication.

Authority considering the intersection of Rule 701 with search and seizure law appears to be sparse, but one interesting case was decided in Minnesota. In State v. Nolting, a law enforcement agent requested a warrant to search a particular piece of mail based in part on his declaration that “I was advised that the parcel was found [in the post office by a mail clerk], who has discovered numerous parcels of this type containing controlled substances.” Although the defendant argued that the clerk’s statement was conclusory and should be given no weight, the Supreme Court of Minnesota found it to be a legitimate opinion of the type covered by Federal Rule of Evidence 701. The court remarked:

The conclusion drawn by the mail clerk is a simple one, drawn directly from his personal sensory experience. It is the kind of conclusion that courts and juries may legitimately credit in resolving factual questions.
If the affidavit had set forth the respects in which the parcel resembled the earlier packages, the magistrate might have been more certain of the clerk’s conclusion. But we think detailing the basis of this conclusion, while desirable, goes to its probative value to establish probable cause and not to whether the conclusion can be considered by a magistrate.

The fact that a Rule 701 type of opinion can be considered in determining a search and seizure question does not necessarily mean that the opinion is sufficient to support the trial court’s resolution of the issue. But a key to how to review this type of evidence may be found in one of the reasons that has been given for liberally allowing its admission: abuses can be effectively checked by cross-examination. The federal rules advisory committee explained:

The rule assumes that the natural characteristics of the adversary system will generally lead to an acceptable result, since the detailed account carries more conviction than the broad assertion, and a lawyer can be expected to display his witness to the best advantage. If he fails to do so, cross-examination and argument will point up the weakness.

The officer’s opinion that appellant was “following too close” is a broad factual assertion based on the officer’s observations. Substantiating that factual assertion with more detail — the number of car lengths separating appellant’s vehicle from the one being followed, or the number of seconds between the time each vehicle passed a fixed point, for example — would be preferable, but the officer’s unchallenged assertion of what he observed was a sufficient basis for the trial court to rule as it did. The trial court could reasonably infer from the officer’s testimony that he did indeed observe appellant following too closely. The information imparted was enough to convey to the trial court a factual basis for believing that appellant may have broken the law.

Cross-examination might have shown otherwise. If, upon cross-examination, the officer could offer no basis whatsoever for his conclusion that appellant was following too closely, the trial court might then have been required to find that the officer’s “following too close” conclusion did not constitute specific, articulable facts to support a stop. Or perhaps cross-examination would have revealed that the officer’s definition of “following too close” was not in fact a description of conduct proscribed by the statute in question. On the other hand, cross-examination might have elicited details further supporting the officer’s conclusion. The trial court could have chosen to disregard the officer’s testimony due to its generality, but it was also within the trial court’s discretion to credit the testimony, and under the circumstances present here, I believe the testimony was sufficient to support the trial court’s finding of reasonable suspicion.

I respectfully dissent.

      . Tex. Transp. Code Ann. § 545.062(a) (Vernon Supp.2004).

      . Ford v. State, No. 01-02-00643-CR, slip op. at 10-11, 2003 WL 22310499, at *3 (Tex.App.Houston [1st Dist.] 2003, pet. granted).

      . Id.

      . Id.

      . Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim. App.1986).

      . Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim.App.2002).

      . Id.

      . See id.

      . Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim.App.2002).

      . Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim.App.2001).

      . Id.

      . Id.

      . Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997).

      . Balentine, 71 S.W.3d at 768.

      . See Garcia, 43 S.W.3d at 530.

      . Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

        .See Balentine, 71 S.W.3d at 768.

      . U.S. v. Cortez, 449 U.S. 411, 419, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

      . Id.

      . See id.

      . 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

        . Id.

      . United States v. Arvizu, 534 U.S. 266, 275, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

      . Id. at 273-274, 122 S.Ct. 744.

      . 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

      . United States v. Perez, 200 F.3d 576, 577-579 (8th Cir.2000); United States v. Lyton, 161 F.3d 1168, 1169-1170 (8th Cir.1998); United States v. Beck, 140 F.3d 1129, 1132-1134 (8th Cir.1998); United States v. Rivera, 867 F.2d 1261, 1262-1264 (10th Cir.1989); Peters v. State, 859 So.2d 451, 452-454 (Ala. Crim.App.2003); State v. Cohen, 549 So.2d 884, 886 (La.App.1989), cert. denied, 559 So.2d 135 (La.1990); State v. McGinnis, 8 Neb.App. 1014, 1016-1020, 608 N.W.2d 605, 608, 610 (2000).

      . Perez, 200 F.3d at 578; McGinnis, 608 N.W.2d at 608.

      . Lyton, 161 F.3d at 1169-1170; Beck, 140 F.3d at 1132-1134; Rivera, 867 F.2d at 1262-1263; Peters, 859 So.2d at 452; see also Cohen, 549 So.2d at 886 (rejecting challenge against constitutionality of anti-tailgating statute). The discussion in Peters strongly suggests that the officer did not give more specific testimony, but the court’s remark about the sufficiency of this testimony to support the stop was dicta. See Peters, 859 So.2d at 452-454.

      . See previously cited cases.

      . Tex.R. Evid. 701.

      . Advisory Committee Notes, Fed.R.Evid. 701.

      . Id.

      . McCormick on Evidence, 5th ed., § 11, p. 46 (1999).

      . Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim.App.2001); Fairow v. State, 943 S.W.2d 895, 900 (Tex.Crim.App.1997).

      . Mueller & Kirkpatrick, Federal Evidence, 2nd ed., § 346 (1994).

      . Id.

      . Advisory Committee Notes, 2000 Amendments to Rule 701 (quoting Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3rd Cir.1995)) (bracketed material and emphasis added).

      . Mueller & Kirkpatrick, supra; Ho v. United States, 331 F.2d 144 (9th Cir.1964).

      . Mueller & Kirkpatrick, supra; United States v. Lechuga, 888 F.2d 1472, 1480 (5th Cir.1989); Loof v. Sanders, 686 P.2d 1205, 1212-1213 (Alaska 1984) (citing Esquivel v. Nancarrow, 104 Ariz. 209, 450 P.2d 399, 403 (1969)).

      . 312 Minn. 449, 450-451, 254 N.W.2d 340, 342 (1977) (bracketed material substituted for original, emphasis in original).

      . Id. at 454-455, 454 n. 3, 254 N.W.2d 340.

      . Id. at 454-455, 254 N.W.2d 340 (ellipsis inserted).

      . Advisory Committee Notes, Fed.R.Evid. 701.

      . See State v. Ross, 32 S.W.3d 853 (Tex. Crim.App.2000). And nothing prevents the trial court from asking the witness for more specificity before deciding to credit the opinion testimony. See McCormick, § 11, p. 50 ("provided personal knowledge is adequately established the witness need not recite the observed matters that are the basis of opinion, although the judge has discretion to require preliminary testimony abut the facts observed " — emphasis added).


author: HERVEY, J., PRICE, J.,

text:
    Xavier Hernandez BAROCIO, Appellant, v. The STATE of Texas.
    No. PD-1980-03.
    Court of Criminal Appeals of Texas.
    March 9, 2005.
    Norman J. Silverman, Houston, for Appellant.
    Eric Kugler, Assist. DA, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court in which

KELLER, PJ., MEYERS, WOMACK, KEASLER and COCHRAN, JJ., joined.

After the trial court denied his motion to suppress, appellant pled no contest to misdemeanor possession of marijuana. We address whether probable cause and exigent circumstances existed to justify a warrantless police entry into appellant’s home, during which the police saw the marijuana in plain view.

The evidence from the suppression hearing shows that two sheriffs deputies (Wyatt and Kirsch) had probable cause to suspect a possible, ongoing burglary of appellant’s home. See Barocio v. State, 117 S.W.3d 19, 21-22 (Tex.App.-Houston [14th Dist] 2003) and at 32-34 (Guzman, J., dissenting). While on patrol, these deputies noticed an illegally parked car, with its driver’s door open and the keys in the ignition, in front of a home. See id. When they approached the home to investigate, they saw pry marks on the front door lock and a surveillance camera aimed at the front door. See id. The deputies knocked on the front door. See id. While waiting for someone to answer the door, they heard a lot of noise inside the home, and they smelled burnt marijuana. See id. Kirsch testified that, in his experience, it would not be unusual for burglars to smoke marijuana in a home that they were burglarizing. See id. Several minutes later, appellant opened the door, and the odor of burnt marijuana became stronger. See id. The deputies repeatedly requested appellant’s identification. See id.

At this point, the testimony of the deputies conflicted. See id. Wyatt testified that appellant refused to provide identification and that he detained appellant on the porch while Kirsch entered the home to conduct a “protective sweep” and to investigate “the smell of marijuana.” See id. Kirsch testified that appellant eventually indicated that his identification was inside the home. See id. Kirsch told appellant to get his identification. See id. Kirsch and Wyatt followed appellant when he went inside the home. See id. Kirsch testified that he followed appellant to investigate the marijuana odor and the possible burglary. See id. Once inside the home, the deputies saw the marijuana in plain view. See id. They eventually learned that the home belonged to appellant and that appellant was not a burglar when appellant’s wife arrived and identified appellant.

The Court of Appeals accepted the deputies’ testimony that they entered the home to investigate the odor of burnt marijuana and a possible burglary. See Barocio, 117 S.W.3d at 23 (“decision in this case does not turn on the credibility or demean- or of the witnesses because the [deputies’] testimony, even if entirely believed, is insufficient to justify the warrantless entry into appellant’s home”). The Court of Appeals also accepted that the deputies had probable cause to believe that appellant was burglarizing the home when they detained appellant on the porch. See Barocio, 117 S.W.3d at 24-25.

Relying on this Court’s decision in State v. Steelman, 93 S.W.3d 102 (Tex.Cr.App. 2002), the Court of Appeals decided that the odor of burnt marijuana alone did not justify the warrantless entry into the home. See Barocio, 117 S.W.3d at 24 (“odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home”) quoting Steelman, 93 S.W.3d at 108. The Court of Appeals also decided that, while police can enter a home to investigate a burglary in progress, they may not do so “after detaining the sole suspect.” See id. (emphasis in original). We exercised our discretionary authority to review this decision. The three grounds upon which we granted discretionary review state:

1) The published one-judge plurality opinion below failed to view the evidence in the light most favorable to the trial court’s ruling on the motion to suppress and incorrectly reviewed the trial court’s ruling under a de novo standard when there were many witnesses who gave conflicting or inconsistent testimony that could have been the basis for the trial court’s ruling.
2) The published one-judge plurality opinion below incorrectly applied State v. Steelman (citation omitted), in reversing the trial court’s denial of a motion to suppress where evidence at the suppression hearing showed that the officers reasonably believed that they were investigating a burglary and that other suspects might be inside the residence.
3) The published one-judge plurality opinion below incorrectly held that the State had waived the issue of attenuation by allegedly failing to argue that issue during the suppression hearing when the trial court ruled in favor of the State at that hearing.

We initially note that this case is distinguishable from Steelman because, unlike in Steelman, the deputies entered the home based on more than just the odor of burnt marijuana. They also had probable cause to suspect a possible, ongoing burglary and exigent circumstances allowed them to enter the home without a warrant to investigate the situation further. And, we do not agree with the decision of the Court of Appeals that police may not enter a home to investigate a possible burglary after detaining what ultimately turns out to be the sole suspect in the burglary. See Barocio, 117 S.W.3d at 24-25. We agree with the analysis of the dissenting opinion in the Court of Appeals:

Kirsch testified that he was investigating a possible burglary of appellant’s home when he made the warrantless entry. The possibility that a burglary is in progress or has recently been committed may provide officers with exigent circumstances to justify a warrantless entry. (Citations and footnote omitted). Because suspects or victims may still be in the residence, and because there is an immediate and urgent need to protect the resident and his property, the war-rantless police entry may be justified as exigent depending upon the specific circumstances of the case. For example, police may properly enter to look for other perpetrators or victims. Indeed, as one federal court has observed, it would “defy reason” to force officers to leave the scene of a possible burglary-in-progress to obtain a warrant thereby “leaving the putative burglars free to complete their crime unmolested.” (citation omitted).

See Barocio, 117 S.W.3d at 33 (Guzman, J., dissenting). This opinion is also consistent with our recent decision in Estrada v. State, 154 S.W.3d 604, 608-10 (Tex.Cr. App.2005) (police had probable cause to believe that criminal activity was occurring inside the defendant’s home based on, among other things, the odor of marijuana emanating from the home, from the defendant and from her friends, and exigent circumstances, the need to prevent the destruction of evidence because others were present in the home, justified warrantless entry and search of home).

We sustain the State’s second ground which makes it unnecessary to address the first and third grounds, which we dismiss. The judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed.

PRICE, J., filed an opinion concurring in the judgment, in which JOHNSON and HOLCOMB, JJ., joined.

PRICE, J.,

filed an opinion concurring in the judgment, in which JOHNSON and HOLCOMB, JJ., joined.

I agree with the majority that the trial court did not err denying the appellant’s motion to suppress. I write separately to explain my reasons.

The appellant filed a motion to suppress statements and tangible evidence obtained by a warrant that he claims was obtained in violation of the United States and Texas Constitutions. Specifically, the appellant claimed that sheriffs deputies entered his home without a warrant and then applied for a warrant based on information obtained while they were illegally in his home.

The trial court held a hearing on the motion. There were many discrepancies in the testimony given by Deputies Wyatt, Kirsch, and Monfort.

The evidence admitted during the hearing on the motion to suppress showed that Wyatt found a car parked in front of the appellant’s trailer. It was parked partially in the roadway and heading in the wrong direction. The driver’s door was wide open, and upon stopping, Wyatt discovered that the keys to the car were in the ignition. He called for back up.

Kirsch responded to Wyatt’s call for back up, and the two deputies went to knock on the appellant’s door to find out about the car. The deputies noticed that there were pry marks on the front door. Wyatt testified that, at this point, he could smell marihuana and heard a lot of noise in the trailer. Kirsch testified that he did not hear noises and that he smelled no marijuana at that point. They both saw surveillance cameras pointing at the front porch and the street in front of the trailer.

The deputies knocked on the door and waited two to five minutes before the appellant came to the door. When the door was opened, Kirsch smelled a strong odor of marihuana for the first time and Wyatt said that he smelled it stronger than before. One of the deputies questioned the appellant about the car. The appellant told them that it was his. The deputies also asked the appellant for identification. The appellant was uncooperative and appeared to be nervous.

Wyatt testified that he detained the appellant on the porch and that Kirsch went inside to see if anyone else was in the trailer. While Kirsch was inside, he saw some marihuana lying loose on the kitchen counter near a plastic bag. Wyatt testified that he never entered the trailer until the search warrant had been obtained and that he never told anyone that he had. He talked to Monfort to obtain a search warrant.

Kirsch testified that he and Wyatt directed the appellant to go inside to get his identification and that Wyatt followed the appellant and Kirsch followed Wyatt. When they were in what was called the foyer of the trailer, Kirsch said that he saw marihuana on the kitchen counter. The appellant was taken outside to the patrol car, and Kirsch performed a protective sweep to see if anyone else was in the trailer.

Monfort, who was not at the trailer, obtained the search warrant. He said that Wyatt told him that he had seen the marihuana while standing outside the trailer on the porch. This along with the other information about the incident appeared in the affidavit supporting the warrant.

The trial court denied the motion to suppress. It concluded that the smell of marihuana provided exigent circumstances to allow the deputies to enter the home. The trial court did not have the benefit of our opinion in State v. Steelman, when it made its ruling. Even so, if the trial court’s decision is correct on any theory of law applicable to the case, the decision will be sustained.

The Court of Appeals concluded that, under our holding in Steelman, the facts did not give rise to exigent circumstances in this case. It also held that exigent circumstances did not exist regarding a possible burglary because the deputies had the sole suspect in custody.

Under the Fourth and Fourteenth Amendments, a search or seizure conducted in the home without a warrant issued upon probable cause is presumptively unreasonable. When exigent circumstances exist, however, the warrantless search of a home is authorized. Exigent circumstances are found when there is some danger to the officer or victims, an increased likelihood of apprehending a suspect, or the possible destruction of evidence.

The appellant conceded during the hearing on the motion for new trial that the deputies had probable cause to obtain a warrant to search the appellant’s trailer because of the smell of marihuana. The only question is whether exigent circumstances existed to permit the deputies to enter before they obtained the warrant.

The record shows that a car in the street was left open with the keys in the ignition. Wyatt and Kirsch found pry marks on the front door of the trailer where the car was parked. Wyatt heard a lot of noise while he was standing on the front porch. The appellant took a long time to come to the door after the deputies knocked. When he came to the door, he was uncooperative and appeared to be nervous. The appellant either was unable to or refused to produce his identification showing that he owned the car and was an occupant of the trailer. These facts gave rise to probable cause to believe that a burglary had taken place or was still going on. A reasonable police officer with knowledge of these facts could have concluded that other perpetrators or potential victims were inside the trailer. These facts support the conclusion that exigent circumstances existed for the deputies to search the house for potential suspects or victims.

I want to make clear that the smell of marihuana and the surveillance cameras were not particularly relevant to the finding of exigent circumstances because of a potential burglary. But I do agree that these facts supported probable cause for a search warrant on the basis that there were drugs inside the trailer.

With these comments, I concur in the Court’s judgment.

      . In the record, the name is spelled Monford. The name and signature on the affidavit supporting the search warrant is spelled Monfort.

      . State v. Steelman, 93 S.W.3d 102, 108 (Tex. Crim.App.2002) (holding that the smell of burning marihuana alone does not authorize the warrantless search and seizure in a home).

      . State v. Ross, 32 S.W.3d 853, 855-856 (Tex. Crim.App.2000).

      . Barocio v. State, 117 S.W.3d 19, 24 (Tex. App.-Houston [14th Dist.] 2003).

      . Ibid.

      . McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim.App.1991).

      . Ibid.

      . Id., at 107.


author: KEASLER, J., KELLER, P.J., COCHRAN, J.,

text:
    Kenneth VODOCHODSKY, Appellant, v. The STATE of Texas.
    No. AP-74129.
    Court of Criminal Appeals of Texas.
    March 16, 2005.

      Richard E. Langlois, San Antonio, for Appellant.
    Jennifer Beldon Rosenblatt, Assist. DA, San Antonio, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court in which

PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ., joined.

We withdraw our previous opinion and substitute this one. We deny the State’s motion for rehearing.

In February 2001, a jury convicted Kenneth Vodochodsky of killing a peace officer who was acting in the lawful discharge of an official duty. Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced Vodochodsky to death. Direct appeal to this Court is automatic. Vodo-chodsky raises four points of error. We sustain his second point of error, which alleges that the evidence is factually insufficient. We reverse his conviction and sentence.

A. The Victims

In the early evening hours of October 12, 1999, Atascosa County Sheriffs Deputies Thomas Monse and Mark Stephenson and Texas Department of Public Safety Trooper Terry Miller were ambushed and killed by multiple gunshots. Monse died from eighteen gunshot wounds caused by rifle, shotgun, and handgun fire. Two of his wounds were caused by close range handgun fire to his face. Stephenson died from eleven gunshot wounds caused by rifle and handgun fire. Stephenson also had wounds which were caused by close-range handgun fire to his face. Miller received two wounds from rifle fire. The shot through his head killed him. Several other officers involved in the conflict were also injured.

At the end of the incident, the shooter, Jeremiah Engleton, killed himself with a gunshot wound to his head. Near his body lay an SKS Norenco 7.62 x 39mm semiautomatic rifle, a Mossberg 12-gauge pump-action shotgun, a Ruger 9mm semiautomatic handgun, and a Glock .40-caliber semiautomatic handgun. The police also found a Lorcin .380-caliber semiautomatic handgun in Engleton’s pants’ pocket and a suicide note in his right shoe.

Vodochodsky was subsequently indicted for intentionally or knowingly causing Monse’s death by shooting him with a firearm. The indictment further charged that “the said Thomas Monse was then and there a peace officer ... who was acting in the lawful discharge of an official duty, and [Vodochodsky] knew Thomas Monse was a peace officer.” At trial, the jury was instructed on the law of parties and authorized to find Vodochodsky guilty if they found that he acted “with intent to promote or assist Jeremiah Engleton to commit the offense of capital murder, and did then and there solicit, encourage, direct, aid or attempt to aid Jeremiah Engleton to commit the offense.... ”

B. The Crime Scene

Jeremiah Engleton, his wife Violet, their infant daughter, Violet’s sister Sara Lopez, her two children, and her boyfriend Kenneth Vodochodsky (who had been Engle-ton’s friend since they were small boys) lived in a three-bedroom home in rural Atascosa County just east of Pleasanton. A thickly overgrown field surrounded by a barbed-wire fence sits across Corgey Road to the north of the residence. Two driveways enter the property-from Corgey Road to the north and from Coughran Road to the west. In the field to the north of Corgey Road, the barbed wire fence had been cut, apparently to facilitate the shooter’s movement between the field and the residence. The field was littered with over a hundred spent rifle and shotgun casings, and the police found several locations in the field that appeared to be shooting positions.

Monse and Stephenson were gunned down near their vehicles at the north end of the residence. Miller was shot as he backed his vehicle away from the residence. Others were wounded as they stood behind Miller’s vehicle trying to assess the situation.

C. The Sequence of Events

On October 11, 1999, Engleton came home late in the evening and immediately got into an argument with Violet. He struck her and pointed a gun at her head. Around midnight, in response to Engle-ton’s violent behavior, Violet called the Atascosa Sheriffs Office, and Deputy Monse was dispatched to their residence. About the time Monse was exiting his vehicle, Engleton asked Vodochodsky, “Do you remember what we’ve been talking about? I’m going to do it right now.” According to Sara, Vodochodsky replied, “No, it’s not worth it.” Sara testified that she didn’t ask any questions because she “didn’t want to hear the answers.” She “felt” that Vo-dochodsky knew something but she “didn’t want to hear it out of his mouth.” Monse then arrested Engleton but allowed him to leave Vodochodsky his wallet and $1,000.00 to bail him out the next day. Engleton was booked into jail at 1:10 a.m. on October 12,1999.

Later that morning, Engleton commented to his cellmate, Orlando Garcia, that “[tjhese motherfuckers don’t know what they got coming,” and that it was going to make the front page. Garcia also overheard a telephone call Engleton placed to Vodochodsky, during which Engleton told Vodochodsky to make sure that Violet did not take his “SK” (an SKS Chinese-or Russian-made semi-automatic assault rifle) or his “nine” (a 9 millimeter semiautomatic pistol). Engleton also told cellmate Phillip Darrah that he had been arrested for domestic violence and that when he got out he “had plans and planned to make some headlines.” Darrah also overheard a telephone conversation between Engleton and Vodochodsky during which Engleton asked Vodochodsky to take care of his belongings and specifically mentioned the “SK.” En-gleton also told Vodochodsky to bring the $1,000.00 he left him to make his bail.

While Engleton sat in jail, Sara and Violet moved some of Violet’s property into a storage facility and obtained a restraining order requiring Engleton to vacate the residence by 5:00 p.m. that evening. Shortly after noon, they packed up more of Violet’s property and left for Vo-dochodsky’s parents’ house in’ nearby Floresville.

At 2:12 p.m., Vodochodsky posted En-gleton’s bail. Between 3:30 and 4:30 p.m., the two men went to a Pleasanton gun shop where Engleton purchased several boxes of ammunition. Wayne Balzen testified that he was working at the gun shop the day that Engleton and Vodochodsky came in to buy ammunition. He testified that they came in together but Engleton asked for the ammunition while Vodochod-sky was farther down the counter, “peering and looking at guns.” Engleton asked for a number of different kinds of ammunition, including some “softnose” rounds. Balzen testified that “hardnose” rounds are generally used for target shooting and “softnose” rounds are primarily for hunting. He also testified that Engleton asked for “subsonic” ammunition, which is special because it is “loaded with hydroshock bullets” and is primarily used by law enforcement.

After purchasing the ammunition, Vodo-chodsky and Engleton returned to their residence. Around 5:30 p.m., Sara called the house and Vodochodsky told her that Engleton had left. Sara, Violet, and Vodo-chodsky’s brother Anthony then left Floresville and drove toward the residence. When they arrived, they saw En-gleton’s vehicle and continued on to a grocery store in Pleasanton. Sara then called Vodochodsky again. At first Vodochodsky acted like he was angry because they had not shown up, but then he dropped his voice to a whisper and told Sara not to come home. Instead, he told Sara that he would meet her at Anthony’s house later. Sara and Anthony left Violet with a friend and went to Anthony’s house. After that, the events occurred in the following order:

7:45 p.m. A neighbor, Edward Essary, drove past Vodochodsky’s residence on his way to Wal-Mart. As he passed the residence, he saw Vodo-chodsky loading “stuff’ into his vehicle.

8:07 Police received a “911” call to the Atascosa County Sheriffs Office from Engleton’s home. Vodochodsky was still at the residence.

8:13 Monse and Stephenson were dispatched to the residence.

8:28 Monse arrived at the residence and apparently was immediately shot and killed from a position about 75 feet away, from the field across Corgey Road from the Engleton residence.

8:30 Stephenson arrived.

8:31 Stephenson very faintly radioed in that he had been hit. At approximately this same time, Vodochodsky’s neighbor, Robert Hutton, heard several gunshots. As he sat in his car at the adjacent intersection, Hutton saw two patrol cars on Vodochodsky’s property with their headlights on. He also, noticed that the security light in the back of the residence was off. Further, Hutton noticed a flashlight moving on top of Vodochodsky’s residence and concluded that a person was walking around on the roof. He noted that the individual was on the backside of the pitched roof near the north end of the residence overlooking the deputies’ vehicles. Later, seven fresh shell casings were found behind the house, close enough to the house that it appeared that they had rolled off the roof. After 45 seconds to a minute, Hutton drove away.

8:37 Miller was dispatched to the residence to check on Monse and Stephenson because they could not be reached by radio. Also around this time period, but before Miller arrived at the residence, Essary returned from Wal-Mart. As he passed Vodo-chodsky’s home, he noticed the two deputies’ vehicles in Vodochodsky’s north driveway. After arriving home and putting away his purchases, Es-sary became concerned about the events at Vodochodsky’s house. ■ He then got back in his car and drove toward the house.

8:51 Miller arrived at the residence.

8:52 Miller radioed in “officer down” and requested assistance. As Miller was backing away from the residence in his vehicle, he was shot and killed while still in his vehicle. As Essary approached Vodochodsky’s house, he saw a highway patrol vehicle backing away from the residence and heard gunfire. As Essary passed the residence, he saw a flashlight on the ground at the north end of the residence. Essary turned the corner and made his way to another neighbor’s house.

8:56 Pleasanton Police Department Officer Louis Tudyk arrived at the intersection adjacent to the house. He parked his vehicle behind Miller’s vehicle.

8:57 Retired United States Border Patrol Special Agent Carl Fisher pulled his truck up alongside Tudyk’s vehicle.

8:58 Tudyk and Fisher were shot and wounded.

9:00 Vodochodsky arrived at Anthony’s house, which is located 21.7 miles from his own. He told Anthony that he drove straight there from his house, a trip which should take 21 to 23 minutes depending upon speed and traffic. Vodochodsky told Sara that Engleton was going to kill himself, and that he wanted to watch the news. Sara told Vodochodsky that Engleton’s suicide would not be on television. Sara wanted to go to the residence to help Engleton, but Vodo-chodsky did not want to go. Over Vodochodsky’s objection, Sara called Violet to tell her that Engleton planned to kill himself. Vodochodsky eventually agreed to go to the residence.

10:47 Vodochodsky and Sara arrived at one of the roadblocks attempting to get to the residence, but they were not allowed through. They then went to pick up Violet and returned to Anthony’s house. After arriving at Anthony’s house, Vodochodsky gave Violet a farewell letter from Engleton. Throughout this time period, many other officers arrived at the residence and took part in the standoff. Finally, with the help of officers in a San Antonio Police Department helicopter, ground officers pursued Engleton. Before they reached him, Engleton shot himself in the head and died.

Either the night of the killings or the next day, October 13, Vodochodsky admitted to Sara that he was at the residence when the bogus 911 call was made, but he denied making it himself. Around 2:00 p.m. on October 13, Vodochodsky spoke with Texas Ranger Tony Leal about the events of the previous day. Vodochodsky told Leal that he left his house at 8:00 p.m. the previous evening and drove directly to his brother’s house in Poteet. Vodochod-sky also indicated to Leal that he did not know about Engleton’s plans regarding the night of the murders.

Around 1:00 p.m. on October 14, Vodo-chodsky talked to Essary about the killings. During this conversation, Essary showed Vodochodsky where he had seen the flashlight the night of the killings. In response, Vodochodsky stated, “Yeah, that’s where one of the pigs — that’s probably where one of the pigs got shot at.” Vodochodsky also told Essary that he bailed Engleton out of jail “[t]o do this.” Essary unequivocally told the jury that Vodochodsky made the statement in a tone that indicated that he was proud of his actions.

Vodochodsky told Essary that Engleton wanted to do this the night that the police came to arrest him for assaulting Violet, but Vodochodsky told Engleton, “No, ... we ain’t got nothing planned yet.” Vodo-chodsky told Essary that Engleton was going to kill himself and “take some pigs with him.” Vodochodsky then stated that “that would be less pigs in the world.” Vodochodsky told Essary that, after he bailed Engleton out, the two of them went to the gun store and bought “$200 worth of the best ammo.” He said that, after they returned home, Engleton kept four guns and Vodochodsky loaded the rest in his car as well as some other items “because the police were coming and he took the stuff that they would confiscate.” Along with other weapons, Vodochodsky also took some tools, the “papers” to the house, and the “papers” to Engleton’s boat. When Essary commented about how the police cut up the fence across the street, Vodo-chodsky responded, “No, that’s where [En-gleton] cut it up” and “that’s where he was shooting at.” Vodochodsky further commented to Essary that he knew that En-gleton had gone “over the edge” when he took the deputy’s gun. He also told Es-sary that he was still at the house when Engleton made the 911 call.

Lisa Sandberg, a reporter for the San Antonio Express News, testified that she interviewed Vodochodsky in the spring of 2000. During that interview, he told her that Engleton had been very upset about his arrest and at one point had said that he wanted to kill some deputies. Vodochod-sky said that he had not taken Engleton seriously and had told him, “Don’t worry about it. I’ll get you out of jail.” He said that he had told Engleton, “it’s not worth it.” Vodochodsky told Sandberg that, after he bailed Engleton out of jail, they had gone “to a gun shop where they bought ammunition” to use at a firing range. Vo-dochodsky also told Sandberg that he had not had any “prior knowledge” of Engle-ton’s “plan” and that he had had no idea that Engleton “would use the more than 300 rounds of ammunition to fatally shoot the officers.” Vodochodsky told Sandberg that he left the residence at 7:45 p.m. on the night of the murders. Sandberg also testified that, when she was interviewing him, Vodochodsky asked her what section of the newspaper the article would appear in. When she told him that it might appear on the front page, Vodochodsky said that that was interesting.

Violet Engleton testified that she, En-gleton and Vodochodsky watched the movie “Set it Off’ often, and that they all liked it. In that movie, she testified, four girls rob a bank and then die in a shoot-off with police officers. She testified that Engleton said that that is the way that he would like to die. Sara Lopez also testified that En-gleton and Vodochodsky watched that movie a lot. She testified that when she watched “Set it Off’ with Engleton, he told her that “if he was ever wanted by the law, that’s how he would go out” and that Vodo-chodsky “said the same thing.”

Some time after Vodochodsky was incarcerated, jail personnel found in his possession a note containing numbers and simple mathematical calculations. Beside one number was the word “bond” and beside another number was the word “bullets.”

D. Analysis

In his first point of error, Vodo-chodsky asserts that the evidence is legally insufficient to support the jury’s verdict of guilty of capital murder. In his second point, he asserts that the evidence is factually insufficient. As previously noted, Vo-dochodsky was indicted for intentionally or knowingly causing the death of Thomas Monse, a person he knew to be a peace officer acting in the lawful discharge of his duty, by shooting him with a firearm. After the presentation of evidence, the court charged the jury that it could find Vodo-chodsky guilty if it found that he acted with the intent to promote or assist Engle-ton in committing the offense of capital murder, and Vodoehodsky did then and there solicit, encourage, direct, aid or attempt to aid Engleton in committing the offense. It is well settled, and Vodochod-sky does not contest the rule, that the law of parties need not be pled in the indictment. Further, Vodoehodsky does not challenge the fact that Engleton intended to kill a peace officer who was acting in the lawful discharge of his duties. Instead, Vodoehodsky contends that he was merely present at the scene and, therefore, cannot be held responsible for Engleton’s acts.

In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. In determining whether evidence is sufficient to convict, we must examine the totality of the circumstances. Texas Penal Code § 7.01(a) states that “[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” A person is criminally responsible for the conduct of another if “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[J”

A rational jury could conclude from this evidence that Vodoehodsky was present during the shoot-out and that he participated in part of it. The evidence established that Engleton was shooting from the field across Corgey Road, approximately 75 feet away, while another person was shooting from the roof of the house. Vodochodsky’s statements about when he left the house were inconsistent-he told Sandberg and Leal that he left before the 911 call was made, but admitted to Sara and Essary that he left after the 911 call had been made. He told Anthony that he had driven from his house directly to Anthony’s house, but it is only a 28-minute drive and he arrived at Anthony’s house at 9:00 p.m. Vodoehodsky was also inconsistent about whether he was aware of the plan to murder police officers, telling Sandberg and Leal that he was unaware of the plan but telling Sara and Essary that he knew of the plan.

The night before the offense, Engleton expressed a desire to “do it right now” and Vodoehodsky told him they did not yet have a plan. A rational jury could conclude from this evidence that Engleton had a plan to kill a peace officer, that Vodochod-sky was aware of Engleton’s plan, and that Vodoehodsky wanted to wait until the plan was foolproof. On the day of the crime, Vodoehodsky bailed Engleton out of jail, later telling Essary that he bailed him out “to do this.” A rational jury could conclude from this evidence that Vodoehodsky bailed Engleton out of jail specifically to carry out the plan to kill peace officers. Knowing that the police were coming and knowing that Engleton intended to commit suicide after his killing spree, Vodoehod-sky took many items from the house. A rational jury could conclude from this evidence that Vodochodsky sought to help Engleton wrap up his affairs as part of his participation in the plan. Finally, Vodo-chodsky commented to Essary after the crime that he knew that Engleton had “gone over the edge” when he took the deputy’s gun. A rational jury could conclude from this evidence that Vodochodsky was still at the residence and witnessed at least Monse’s murder, despite any claims to the contrary.

In light of this evidence, we hold that a rational jury could have found beyond a reasonable doubt that Vodochodsky acted with an intent to promote or assist Engle-ton in committing this offense. Point of error one is overruled.

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if “proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by. contrary proof.” In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it. We are authorized to disagree with the jury’s determination even if probative evidence exists which supports the verdict, but we must avoid substituting our judgment for that of the fact-finder.

In this case, the overwhelming weight of the evidence mitigates against the conclusion that Vodochodsky solicited, encouraged, directed, aided or attempted to aid Engleton in committing the offense. All of the evidence that could legally support a rational jury’s conclusion is nevertheless so weak that our confidence in the jury’s verdict is undermined. Although there was some evidence of a second shooter on the roof, this was not established. While Vodoehodsky’s statements were inconsistent, the inconsistencies were minor. When Engleton expressed a desire to “do it right now” and Vodochodsky told him they did not yet have a plan, neither man specifically mentioned killing a peace officer. When Vodochodsky told Essary that he bailed Engleton out of jail “to do this,” he did not specifically state that he bailed him out as part of a plan to kill police officers. Vodochodsky removed belongings from the house, but there is no proof that he did so as part of a murderous plot. And Vodochodsky’s comment to Essary that Engleton had “gone over the edge” when he took the deputy’s gun could just as reasonably have been a speculative comment, not one indicating that Vodochodsky had witnessed Monse’s murder.

Indeed, none of that evidence necessarily suggests that Vodochodsky acted with intent to promote or assist Engleton. None of his statements directly refer to killing police officers. His statements are devoid of information on the details of the alleged murder plot, and there is no other information in the record suggesting that Vodochodsky was planning the event with Engleton.

Furthermore, other evidence suggests that Vodochodsky was not working with Engleton. His whispered warning to Sara could indicate that while he may have known of Engleton’s plan, he was not a party to it. He did not participate in the purchase of ammunition. There is no evidence that Vodochodsky actually did any affirmative act to assist Engleton with the plan. Instead, Vodochodsky had the bad luck of being the friend and roommate of a man determined to kill police officers and himself.

We conclude that proof of Vodochod-sky’s guilt was so weak as to undermine confidence in the jury’s determination. This evidence was factually insufficient to convict. Point of error two is sustained.

We reverse the judgment of the trial court and remand this case for Vodochod-sky to answer the charges in the indictment.

KELLER, P.J., filed a dissenting opinion in which MEYERS, J., joined.

COCHRAN, J., filed a concurring opinion.

HERVEY, J., did not participate.

KELLER, P.J.,

filed a dissenting opinion in which MEYERS, J., joined.

The Court withdraws its opinion on original submission and substitutes an opinion that addresses matters raised in the State’s motion for rehearing, and the Court denies rehearing. I believe the better course would be to grant rehearing before issuing the new opinion, but in keeping with the Court’s action, I withdraw my previous opinion and substitute this one.

Two things are basically required to establish liability as a party under § 7.02(a)(2): (1) intent to promote or assist the offense and (2) an act that solicits, encourages, directs, aids, or attempts to aid in the commission of the offense. Both of these elements are shown in the present case. Appellant’s culpable intent was shown by his own admissions. According to Essary, on the night of Engle-ton’s arrest, appellant told Engleton not to do anything because “we don’t have anything planned yet.” Appellant admitted to his girlfriend and to Essary that he knew, before the events, that Engleton was going to commit suicide and kill police officers. His girlfriend’s testimony further shows that appellant saw Engleton’s guns laid out in preparation for this event. Essary’s testimony indicates that appellant was present when Engleton made the 911 call and that appellant also knew that Engleton had cut the fence. Essary also testified that appellant said he bailed Engleton out of jail “to do this” and that appellant sounded proud when he said it. When challenged by defense counsel on whether appellant could have been in shock when he made that statement, Essary maintained that appellant said it proudly.

Appellant’s admissions and circumstantial evidence indicate that appellant performed acts that encouraged or aided the commission of the crime. Essary testified that appellant “Said they went to the gun store and bought $200 worth of the best ammo.” That testimony indicates that appellant was a participant in buying the ammunition even if that participation was not apparent to the proprietor of the store. That appellant participated in buying the ammunition is also supported by a handwritten note retrieved by the jail librarian from a book appellant had checked out and later turned in. This note contained numbers that added up to $2000, including $200 for bond and $200 for bullets. The evidence also indicated that appellant was with Engleton for several hours. When talking about that time to Ranger Antonio Leal, appellant became nervous and asked for a cigarette. He told Leal that he and Engleton watched “Saving Private Ryan,” starting at 5:30, but Leal thought that was unlikely because the movie was three hours long. From appellant’s admitted knowledge of Engleton’s activities and his attempts to cover up his own involvement, the jury could have rationally inferred that appellant participated in helping Engleton set up the scene for the subsequent confrontation.

Moreover, there is circumstantial evidence that appellant was still at the scene when deputies Monse and Stephenson were killed. Appellant told Essary that Engleton made a mistake in taking Deputy Monse’s gun — a fact that, two days after the offense — did not appear to be widely publicized. Moreover, at least one officer testified that it takes approximately twenty-three minutes to drive from Engleton’s residence to Anthony Vodochodsky’s residence. There was evidence that appellant arrived at Anthony’s residence at approximately 9:00 p.m. Since the deputies arrived at 8:28 and 8:30, and their murders occurred shortly after that, appellant could have observed or even participated in those events. At about that time, a passerby saw on the roof a shining flashlight, which could have been carried by appellant. Because Trooper Miller did not arrive until 8:51, there could have been as much as twenty minutes after the deputies’ deaths before appellant left the scene of the crime.

In its motion for rehearing, the State points out the irony of this Court’s conclusion that appellant’s warning to Sara to stay away was exculpatory, indicating that “while he may have known of Engleton’s plan, he was not a party to it,” when just two weeks later we cited a similar warning as evidence supporting a capital murder conviction.

I believe the evidence was legally and factually sufficient to support the conviction. I respectfully dissent from the Court’s judgment reversing the conviction and from its decision to deny the State’s motion for rehearing.

COCHRAN, J.,

filed a concurring opinion.

I join all of the Court’s opinion except the paragraph on page 509 beginning with the sentence, “A rational jury could conclude from this evidence that Vodochodsky was present during the shoot-out and that he participated in part of it.” I do not believe that a rational jury could conclude that appellant, Kenneth Vodochodsky, was present during any part of the shoot-out. Here is why.

It is undisputed that appellant was present at the time the bogus 911 call was made, but I believe that the record is clear that appellant was not present at the time of any of the killings. No witness and no physical evidence places appellant at En-gleton’s residence at the time Deputy Monse was killed. And the evidence shows that it was nearly impossible for him to have been present.

George Gorman, Jr., one of Engleton’s neighbors, returned home after visiting with a neighbor sometime between 8:15 and 8:28 p.m. Gorman saw Deputy Monse turn onto Engleton’s property. Minutes later, he saw Deputy Stephenson turn onto the property. Gorman did not see appellant’s car. Judging from the State’s numerous diagrams and photographic exhibits showing the intersection, the corner property, the position of the trailer, and the lack of trees or other foliage on the property, if appellant’s car were still at the trailer, Mr. Gorman would have seen it in the headlights of both of the patrol cars.

Similarly, Robert Hutton was unable to place appellant at Engleton’s residence at the time Deputy Monse was killed. Hutton testified that he went outside to play with his dogs for a couple of minutes — “a little bit after 8:00 p.m.” According to Hutton’s testimony, he heard gunfire “[r]ight after [he] got outside.” Hutton said that when he drove past Engleton’s trailer shortly after Deputy Stephenson had arrived (only two minutes after Deputy Monse had arrived), he looked at the trailer for approximately 45 seconds to one minute and saw that the headlights of both patrol cars had lit up the front of the house.

Mr. Hutton testified that, although he saw only the two patrol cars in the front yard, he had seen a flashlight moving around on the back of the trailer roof between 8:30 and 8:33 p.m. Perhaps he did, but there is no evidence that this person could have been appellant rather than Engleton. Spent casings were found on the ground near the trailer that might have been consistent with a shooter on the roof. Those casings were .9 mm and .380 casings. Nine millimeter and .380 handguns were found next to Engleton’s body when he later killed himself in the open field across the road.

Jesus Garza, another neighbor of Engle-ton’s, could not place appellant’s car at the trailer at the time Deputy Monse was killed. Mr. Garza testified that he saw appellant pull Engleton’s blue Monte Carlo up to the front of the trailer, where appellant’s car was parked, sometime between 8:00 p.m. and 8:15 — right before Mr. Garza went inside to take a shower. When he finished his shower, Mr. Garza heard noises outside and saw the deputies’ cars over near the trailer. He did not see the blue Monte Carlo or any other car except those of the deputies. Not hearing anything more, he went back inside, but came out again when he heard the highway patrol car coming up Corgey Road.

Alex Sanchez, another neighbor, testified that he could see the front of Engle-ton’s trailer and saw only the two patrol cars.

Like George Gorman, Robert Hutton, Jesus Garza, and Alex Sanchez, Edward Essary saw many of the events before, during, and after the murders. Mr. Es-sary, a tank commander in Saudi Arabia during Desert Storm, used his binoculars to look straight across his property to watch the fire fight, but he could not see the shooter. He, too, thought appellant was not present during the shoot-out. During cross-examination he testified:

Q: How do you suppose Kenny knew about the officers on the 14th — that he knew the officers’ guns had been used on them if he wasn’t even there?
A: That’s your guess is as good as mine.
Q: I mean, because you’ve said he’s gone—
A: He said it.
Q. He’s gone, right?
A. Yeah. When I got past the deputy’s car he was not there.
Q. He was gone. I mean, his car was gone?
A. Was gone.
Q. And if people said he was in Poteet 35 or 40 minutes later you wouldn’t have any reason to doubt that, would you? You can get to Poteet from here in 35 or 40 minutes, right?
A. Yeah.
Q. So he was gone when all the shooting happened as far as you know?
A. As far as I know.

Mr. Essary’s testimony explicitly placed appellant’s car right in front of the trailer when Essary passed by at 7:45 p.m. Except for two mounds of dirt, the area around the trailer is barren and treeless; there is no place where appellant’s Hyundai could be parked and not be visible from either of the two intersecting roads. Several witnesses saw the first two police cars turn into the trailer area or saw them as soon as they had stopped. No one saw appellant’s car reflected in the headlights. No one saw appellant’s car, which had been parked immediately in front of where the two patrol cars pulled in. No one saw appellant or any indication that appellant was present. No witness at trial stated or suggested that appellant was there.

Indeed, the State’s expert crime-scene investigator, John Martin, meticulously walked the jury through his recreation of the shooting' — a version in which Engleton was the sole shooter and only perpetrator present at the scene. Officer Martin checked the roof of the trailer that night because someone had said that “maybe” someone had been on the roof. He found no evidence that anyone had been on the roof that night. He testified that he found no crime-scene evidence that led him to think that appellant was involved in the shoot-out.

Furthermore, it is undisputed that appellant arrived in Poteet by 9:00 p.m. The drive is 21.7 miles from the trailer. Deputy Monse was killed at 8:28 p.m. Any theory that supposes appellant was present on the trailer roof shooting at something or someone between 8:30 and 8:33 when Mr. Hutton saw what he thought was a flashlight on the roof must also account for the fact that appellant’s car, which had needed a jump start shortly after 8:00 p.m., was invisible to several passersby at or immediately before and after that time, and that appellant had to have scrambled down from the roof after shooting, found Engleton, wiped any fingerprints from the guns, given Engleton those guns which were later found next to Engleton’s body, found his hidden car, gotten into it, started it up, passed by five watching neighbors without being seen by any of them, and driven to Anthony’s house in Poteet, all in less than thirty minutes. This is an extraordinary feat in itself. Moreover, there is no evidence to support its occurrence.

      . Tex. Penal Code Ann. § 19.03(a)(1).

      . Art. 37.071, § 2(g). Unless otherwise indicated this and all future references to Articles refer to the Code of Criminal Procedure.

      . Art. 37.071, § 2(h).

      . Marable v. State, 85 S.W.3d 287 (Tex.Crim.App.2002)(and cases cited therein).

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981).

      . See Denton v. State, 911 S.W.2d 388, 389-90 (Tex.Crim.App.1995); Miller v. State, 667 S.W.2d 773, 776 (Tex.Crim.App.1984); Rucker v. State, 599 S.W.2d 581, 591 (Tex.Crim.App.1979); Reynolds v. State, 506 S.W.2d 864, 867 (Tex.Crim.App.1974). See also Garcia v. State, 887 S.W.2d 862, 870 (Tex.Crim.App.1994).

      . Tex Penal Code § 7.02(a)(2).

      . Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000); see also Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Crim.App.2001).

      . Johnson, 23 S.W.3d at 7.

      . Id.; Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997).

      . "A person is criminally responsible for an offense committed by the conduct of another if ... acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”

      . Vodochodsky v. State, 2004 WL 840121, 2004 Tex.Crim.App. LEXIS 663, at 18 (April 21, 2004); see also Court’s op. at 511.

      . Ross v. State, 133 S.W.3d 618, 621 (Tex.Crim.App.2004). Ross did not have an accomplice, but that factual difference does not seem to me to be sufficient to convert a plainly incriminating fact into an exculpatory fact.

      . Mr. Hutton may have been a little confused about the timing because Deputy Monse was not killed until 8:28 p.m. and Deputy Stephenson was not shot until 8:31 p.m.

      . After the murders, the State undertook a "thump test” in which one officer tossed casings into the air while standing on Engleton's trailer roof to see whether those casings, had they been ejected from one of the murder weapons, might have hit the roof and rolled down to land near the back door where numerous spent casings were found. The result of that “thump test” was that it was possible. Commendably, the State admits that "[tjhere is no evidence that the dead and wounded individuals were actually shot from a position on the rooftop.”

      .Spent .9 mm and .380 casings were found all over Engleton’s property as he frequently shot his guns around his trailer. Crime scene investigators did not collect or preserve any of the casings that appeared old, tarnished, or were partly buried in the dirt.

      . On October 24th, the local newspaper reported that Engleton shot two of the deputies with one of their own guns. Two days later, on October 26th, Mr. Essary went to the police station and told the officers that, when he gave his written statement to the police immediately after talking with appellant on October 14th, he had forgotten to include the fact that appellant had told him that Engleton “had gone too far when he shot the deputies with their own gun.”

      . Sara Lopez testified that, when appellant arrived at his brother’s house at 9:00 p.m., she asked him why he had taken so long. Appellant told her that his car wouldn’t start. He said that he had jumper cables and that he had had to move Engleton's car up next to his and jump start his car. Jesus Garza testified that he saw appellant drive Engleton’s car around to the front of the trailer at this time, which is consistent with what appellant told Sara 45 minutes later.

      . Jesus Garza was watching; George Gorman was watching; Robert Hutton was watching; Alexander Sanchez was watching; Ed Essary was watching. None of them saw appellant or appellant’s car after 8:15 p.m.