author: WILLIAM C. KOCH, JR., J.,

text:
    STATE of Tennessee v. Mike BROTHERTON.
    Supreme Court of Tennessee, at Jackson.
    April 6, 2010 Session.
    Sept. 27, 2010.

      Robert E. Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Rachel E. Willis, Assistant Attorney General; Hansel McCadams, District Attorney General, and Steven Jackson, Assistant District Attorney General, for the appellant, State of Tennessee.
    Matthew M. Maddox, Huntingdon, Tennessee, for the appellee, Mike Brotherton.
   OPINION

WILLIAM C. KOCH, JR., J.,

delivered the opinion of the Court,

in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK, GARY R. WADE, and SHARON G. LEE, JJ„ joined.

This appeal involves an intoxicated driver who was stopped after a law enforcement officer saw what he believed to be a broken taillight on the driver’s automobile. In his prosecution for driving under the influence in the Circuit Court for Carroll County, the driver asserted that the taillight did not provide the officer with reasonable suspicion to stop his automobile. After the trial court denied his motion, the driver pleaded guilty to driving under the influence but reserved the question of the legality of the traffic stop in accordance with Tenn. R.Crim. P. 37(b)(2). The Court of Criminal Appeals reversed the conviction and dismissed the indictment after finding that the officer lacked reasonable suspicion to make the traffic stop. State v. Brotherton, No. W2007-02016-CCA-R3-CD, 2009 WL 1097446 (Tenn.Crim.App. Apr. 23, 2009). We granted the State’s application for permission to appeal to address the application of the reasonable suspicion standard in circumstances involving apparently broken taillights. Based on the undisputed facts, we conclude that the trial court’s determination that the trooper had reasonable suspicion to initiate a traffic stop was correct.

I.

Trooper Michael Sullivan was patrolling State Route 219 in Carroll County on February 4, 2007. Shortly after midnight, he passed an automobile traveling in the opposite direction. Looking in his driver’s side mirror, Trooper Sullivan saw a “bright light” shining from the other automobile’s passenger’s side taillight area as the automobile slowed to approach a railroad crossing. Because it was “obvious” to him that the taillight was broken, Trooper Sullivan turned around and began following the other automobile.

Trooper Sullivan followed the automobile for almost three miles. During that time, he noticed that the automobile was weaving within its lane, but he did not observe the driver commit any other moving violations. Eventually, Trooper Sullivan decided to stop the automobile to investigate the broken taillight. Accordingly, he activated his emergency lights and signaled the driver of the automobile to pull over.

When Trooper Sullivan approached the automobile, he discovered that Mike Brotherton, the driver, smelled of alcohol. He also observed a twelve-pack of beer on the right front floorboard of Mr. Brother-ton’s automobile. When questioned about his activities that evening, Mr. Brotherton admitted to Trooper Sullivan that he had just left a bar where he had consumed “five or six beers.” He also confessed to drinking three to four more beers from the twelve-pack. Trooper Sullivan arrested Mr. Brotherton for driving under the influence and for violation of the implied consent law. He also cited Mr. Brotherton for driving without a seatbelt, having a broken taillight, and failing to change his address on his driver’s license.

At a preliminary hearing held on April 26, 2007, the charges against Mr. Brother-ton for violating the seatbelt law, failing to change the address on his driver’s license, and operating a vehicle with a broken taillight were dismissed. The broken taillight charge was dismissed because Mr. Broth-erton had “repaired” the taillight on his automobile sometime after his February 4 arrest. The remaining charges were bound over to the Carroll County grand jury. On May 7, 2007, the grand jury indicted Mr. Brotherton for driving under the influence, second offense, and for violation of the implied consent law.

On May 29, 2007, Mr. Brotherton filed a Tenn. R.Crim. P. 12(b)(3) motion in the Circuit Court for Carroll County, seeking to suppress all statements and other evidence obtained as a result of the February 4, 2007 traffic stop. At a hearing on the motion conducted on May 29, 2007, Trooper Sullivan testified at length about the stop, the appearance of the taillight on Mr. Brotherton’s automobile, and his understanding of the statutory requirements for lights on motor vehicles.

Trooper Sullivan testified that the taillight lens on Mr. Brotherton’s automobile was broken and that it had been repaired using red taillight tape. Pictures of Mr. Brotherton’s automobile depicted that red taillight repair tape covered more than 50% of the taillight lens. Trooper Sullivan testified that the taillight he observed on February 4, 2007 was covered with “old, weathered tape that had a hole in the center ... with light shining through.” Trooper Sullivan also testified that he believed that the taillight violated Tenn.Code Ann. § 55-9-402(b)(2) which prohibits “glaring” or “dazzling” lights on stoplights. Trooper Sullivan construed the statute to prohibit broken taillights patched with taillight repair tape with a hole in the tape that allows bright white light to escape.

The trial court also reviewed photographs showing that the red taillight repair tape covered over 50% of the taillight lens. Based on the photographs and Trooper Sullivan’s testimony, the court concluded that the stop was “based on specific and articulable facts” and refused to suppress the evidence against Mr. Brotherton. On July SO, 2007, the trial court filed an order denying Mr. Brother-ton’s motion to dismiss.

Realizing the futility of a trial with the overwhelming weight of the evidence against him, Mr. Brotherton negotiated a plea agreement with the State in which he agreed to plead guilty to driving under the influence, first offense, and, in return, the State would agree to drop the remaining implied consent charge. However, Mr. Brotherton conditioned his plea on his ability to reserve a certified question under Tenn. R.Crim. P. 37(b)(2) regarding the validity of the stop. Mr. Brotherton filed a timely notice of appeal.

The Court of Criminal Appeals reversed the trial court. The court based its analysis on whether Mr. Brotherton’s taillight “was ‘in good condition and operational’ according to Tennessee Code Annotated section 55-iM02(c).” State v. Brotherton, No. W2007-02016-CCA-R3-CD, 2009 WL 1097446, at *3 (Tenn.Crim.App. Apr. 23, 2009). Looking to the facts that the taillight illuminated when the vehicle’s brakes were applied and that Mr. Brotherton had made an attempt to repair the light with taillight tape, the court held that Trooper Sullivan lacked reasonable suspicion to initiate a traffic stop. State v. Brotherton, 2009 WL 1097446, at *5. We granted the State’s Tenn. R.App. P. 11 application for permission to appeal to address the legality of the traffic stop.

II.

When reviewing the correctness of a trial court’s decision in response to a motion to suppress, we will defer to the trial court’s findings of fact unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). The party who prevailed in the trial court is entitled to the strongest legitimate view of the evidence, as well as all reasonable inferences that may be drawn from the evidence. State v. Odom, 928 S.W.2d at 23. The facts here are undisputed. It is the application of the law to those facts that is at issue. Accordingly, we review the trial court’s legal conclusions de novo without a presumption of correctness. State v. Day, 263 S.W.3d 891, 900 (Tenn.2008).

III.

The Fourth Amendment to the United States Constitution proscribes “unreasonable searches and seizures” and provides that “no Warrants shall issue, but upon probable cause ... particularly describing ... the persons ... to be seized.” Likewise, Article I, Section 7 of the Tennessee Constitution states that “the people shall be secure in their persons ... from unreasonable searches and seizures.” Because traffic stops constitute seizures entitling a vehicle’s occupants to the full protections of the United States and Tennessee Constitutions, Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Pulley, 863 S.W.2d 29, 30 (Tenn.1993), the authorities must act reasonably when initiating a traffic stop.

The United States Supreme Court has interpreted this requirement to mean that the authorities must have probable cause or an “articulable and reasonable suspicion” to believe that a traffic violation has occurred when they initiate a traffic stop. Whren v. United States, 517 U.S. at 810, 116 S.Ct. 1769; Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); accord State v. Vineyard, 958 S.W.2d 730, 736 (Tenn.1997). Reasonable suspicion exists when “specific and articulable facts ... taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An investigatory traffic stop under Terry “is a far more minimal intrusion [than an arrest pursuant to probable cause], simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.” Illinois v. Wardlow, 528 U.S. 119, 126, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). However, officers must have some reasonable basis to warrant investigation; a mere “inchoate and unparticularized suspicion or ‘hunch’” is not enough to generate reasonable suspicion. Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868.

Tennessee’s courts have also had ample opportunity to apply the reasonable suspicion standard. We have held that reasonable suspicion is “a particularized and objective basis for suspecting the subject of a stop of criminal activity.” State v. Binette, 33 S.W.3d 215, 218 (Tenn.2000). The courts must look to the totality of the circumstances, State v. Levitt, 73 S.W.3d 159, 172 (Tenn.Crim.App.2001) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)), to determine whether an officer reasonably believed that the operator of a vehicle had either committed a crime or was about to commit a crime. State v. Levitt, 73 S.W.3d at 172; State v. England, 19 S.W.3d 762, 766 (Tenn.2000). It is constitutionally permissible to stop a vehicle for an equipment violation in Tennessee. State v. England, 19 S.W.3d at 766 (approving lower court holding that a violation of Tenn.Code Ann. § 55-9-404 created a reasonable suspicion incident to a traffic stop).

IV.

The statute at issue in this case contains three requirements with regard to taillights that are relevant to this appeal. First, it requires that all motor vehicles be equipped “with two (2) red tail lamps and two (2) red stoplights on the rear of the vehicle.” Tenn.Code Ann. § 55-9-402(b)(1). Second, it requires that the stoplight “shall not project a glaring or dazzling light.” Tenn.Code Ann. § 55-9-402(b)(2). Third, it requires that each lamp and stoplight “shall be in good condition and operational.” TenmCode Ann. § 55-9-402(c).

The Court of Criminal Appeals, bypassing the first two statutory requirements, focused its attention on the requirement that the stoplight be in “good condition.” Noting that the statute does not define or describe what “good condition” means, the court decided that the taillight on Mr. Brotherton’s automobile was in good condition and operational because Mr. Broth-erton had repaired it with taillight tape.

To support its conclusion that Mr. Brotherton’s taillight was in good condition for the purpose of TenmCode Ann. § 55-9-402, the Court of Criminal Appeals compared the condition of his taillight with the condition of another broken taillight that had provided grounds to stop a vehicle. The United States Court of Appeals for the Sixth Circuit had found that a broken taillight “with a piece of the red plastic missing” provided a sufficient basis for the stop of a vehicle that led to an arrest for drug trafficking. United States v. Johnson, 242 F.3d 707, 708-10 (6th Cir.2001). In an effort to distinguish Mr. Brother-ton’s circumstances from Mr. Johnson’s, the Court of Criminal Appeals attached great significance to the fact that Mr. Brotherton, unlike Mr. Johnson, had tried to repair his broken taillight and concluded that Mr. Brotherton’s taillight “was not in perfect condition nor was it in pristine condition [but] it was in working condition.” State v. Brotherton, 2009 WL 1097446, at *5. Based on this distinction, the court concluded that Trooper Sullivan lacked reasonable suspicion to believe that a traffic violation had occurred. State v. Brotherton, 2009 WL 1097446, at *5.

The Court of Criminal Appeals erred by considering only whether the taillight on Mr. Brotherton’s automobile was “in good condition and operational” for the purpose of Tenn. Code Ann. § 55-9-402(c). A showing of reasonable suspicion does not require an actual violation of the law because “Terry accepts the risk that officers may stop innocent people” to investigate further. Illinois v. Wardlow, 528 U.S. 119 at 126, 120 S.Ct. 673. Thus, the proper inquiry should have been whether Trooper Sullivan had an “articulable and reasonable suspicion” that Mr. Brotherton’s taillight violated TenmCode Ann. § 55-9-402, not whether Mr. Brotherton’s taillight, in fact, violated Tenn.Code Ann. § 55-9-402. See United States v. Johnson, 242 F.3d at 709-10 (“[T]he question is not whether a Tennessee court would have found defendant guilty of the traffic infraction, but whether the officers had probable cause to believe that a violation had occurred.”); see also United States v. Fowler, 402 F.Supp.2d 1338, 1340-41 (D.Utah 2005) (upholding the validity of a stop when the trooper mistook a fog light for a brake light because it reasonably appeared to violate the lighting laws under the circumstances).

Under the totality of the circumstances in this case, we agree with the trial court that Trooper Sullivan had an articu-lable and reasonable suspicion that Mr. Brotherton’s taillight violated TenmCode Ann. § 55-9-402(b). Even though Mr. Brotherton may have attempted to repair his broken taillight, the tape he used to repair the taillight had a hole in it that permitted a bright white light to shine through, in much the same way that the missing piece of the plastic lens on Mr. Johnson’s taillight permitted light to shine through. Because of the hole in the tape on Mr. Brotherton’s taillight, his repaired taillight did not appear to be in good condition for the purpose of Tenn.Code Ann. § 55-9-402(c).

The bright white light shining from the hole in the tape on Mr. Brother-ton’s taillight likewise provided a basis for an articulable and reasonable suspicion that Mr. Brother-ton’s taillight violated Tenn.Code Ann. § 55 — 9—402(b)(l). This provision requires vehicles to have two “red” taillights and two “red” stoplights. See State v. Patterson, 140 Idaho 612, 97 P.3d 479, 482 (Idaho Ct.App.2004) (upholding a stop where a cracked taillight allowed white light to show through); State v. Kenyon, 651 N.W.2d 269, 270-71, 274 (S.D.2002) (upholding a stop where the taillight repair tape had come off thereby allowing white light to show through).

By the same token, the bright light shining through the hole in the taillight repair tape provided a basis for an articulable and reasonable suspicion that Mr. Brotherton’s taillight violated the prohibition against “glaring or dazzling light[s]” in Tenn.Code Ann. § 55-9-402(b)(2). The common understanding and plain meaning of the terms “glaring” and “dazzling” coincide with Trooper Sullivan’s description of the light he observed coming from the taillight of Mr. Brother-ton’s automobile. Trooper Sullivan testified: “I think a glaring light would be a brighter light than what would normally be on the vehicle, and with a hole in the red tape, you’re going to have a bright white light.” Clearly, Trooper Sullivan had a firm understanding of the law he was enforcing. The fact that the taillight on the passenger’s side of Mr. Brother-ton’s automobile emitted a bright white light created reasonable suspicion for Trooper Sullivan to stop his vehicle.

Our review of the essentially undisputed facts prompts us to conclude that Trooper Sullivan had multiple bases for initiating an investigatory stop of Mr. Brotherton’s automobile. We are not finding that Tenn. Code Ann. § 55-9-402 requires taillights to be maintained in the same condition that they were in when the automobile left the showroom or that taillights repaired with taillight repair tape are per se violations of Tenn.Code Ann. § 55-9-402. We have concluded in this case only that an automobile being operated with a broken taillight that has been repaired with taillight repair tape that is itself in disrepair may provide the authorities with a reasonable suspicion sufficient to justify an investigative stop to ascertain the status of the taillight.

V.

Accordingly, we reverse the judgment of the Court of Criminal Appeals, affirm the judgment of conviction entered by the trial court, and remand the case to the trial court for whatever further proceedings may be required. We tax the costs of this appeal to Mike Brotherton for which execution, if necessary, may issue.

      . This rule was subsequently redesignated as Tenn. R.Crim. P. 12(b)(2)(C).

      . See Tenn.Code Ann. § 55-9-402 (Supp. 2007).

      . A sample package of Tail Light Tape is included in the record. It is a red film that ''[rjesists [w]eather and [m]oisture” and is "[firanslucent like an [ojriginal [l]ens." It is used to temporarily patch cracks or holes in a vehicle’s plastic taillight lens until the lens can be replaced. Apparently some automobile owners use the tape indefinitely in order to avoid the expense of replacing the broken lens.

      . Mr. Brotherton authenticated these photographs and testified that they accurately depicted the condition of his automobile on February 4, 2007.

      . The Oxford English Dictionary defines "glaring” as that which "gives out or reflects a dazzling light ... excessively bright.” 6 The Oxford English Diclionary 556 (2d ed. 1989). Similarly, il defines "dazzling” as that which "dazzles the eyes (esp. with brightness); bright to a degree that dazzles.” 4 The Oxford English Dictionary 279 (2d ed.1989).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James Lee SWEED, Petitioner, v. Jay L. NYE et al., Respondents.
    No. 09-0465.
    Supreme Court of Texas.
    Oct. 22, 2010.
    James Lee Sweed, El Paso TX, pro se.
    Patrick Gregory O’Brien, Scott Tyler Williams, Andrew Forest Newman, Ryan Thomas Cosgrove, Akin Gump Strauss Hauer & Feld, LLP, Dallas TX, for Petitioner.
    Jay L. Nye, El Paso TX, pro se.
    Demetri Anastasiadis, Office of the Attorney General of Texas, Attorney General Greg W. Abbott, Attorney General of Texas, Clarence Andrew Weber, First Assistant Attorney General, David S. Morales, Office of the Attorney General of Texas, Deputy First Assistant Attorney General, David A. Talbot Jr., James P. Sullivan, Assist. Attorney General, Office of the Attorney General, James C. Ho, Solicitor General of Texas, Austin TX, for Respondent.
   PER CURIAM.

Five and a half months after the trial court dismissed his case, James Lee Sweed filed a notice of appeal that did not contain all the information required for a notice of restricted appeal. A month later he amended the notice to include the missing information. The court of appeals dismissed the appeal, holding that Sweed’s original, incomplete notice of restricted appeal was insufficient to invoke its jurisdiction, and the amended notice was not timely filed. We conclude that Sweed’s original notice of appeal invoked the court of appeals’ jurisdiction even though it was incomplete. We reverse the court of appeals’ judgment.

Sweed sued Jay L. Nye (a public defender), Jaime Esparza (El Paso District Attorney), the Office of the District Attorney, the State of Texas, and the Texas Attorney General for malicious prosecution and false imprisonment. Eventually the defendants moved to dismiss for want of prosecution. The clerk’s office mistakenly sent notice of a status conference and notice of the hearing on the motion to dismiss to Sweed at the wrong address. Both notices were returned unclaimed. Sweed did not appear at the hearing, and the trial court granted the motion to dismiss. The dismissal order was signed on November 6, 2006.

Sweed filed a notice of appeal on April 24, 2007, five and a half months after the trial court dismissed his claim. See Tex. R.App. P. 26.1(c) (providing that in a restricted appeal, notice must be filed within six months after the judgment or order is signed). The court of appeals sent Sweed a letter stating that his notice of appeal did not contain the required information for a notice of restricted appeal and he needed to amend his notice. See Tex.R.App. P. 25.1(d)(7) (requiring that a notice of appeal in a restricted appeal state that the appellant did not participate in the hearing that resulted in the judgment and the appellant did not timely file a post judgment motion or notice of appeal). Sweed filed an “Amended Notice of Appeal” on May 21, 2007, which was over six months after the trial court dismissed his case. See Tex. R.App. P. 25.1(f) (permitting an amended notice of appeal correcting a defect or omission in a prior notice). The court of appeals held that the notice of restricted appeal was not timely filed and dismissed the case for want of jurisdiction. See Tex. R.App. P. 26.1.

In this Court, Sweed argues that the court of appeals erred by dismissing his appeal because his original notice of appeal, although defective, was sufficient to invoke the court of appeals’ jurisdiction. Esparza, the Office of the District Attorney, the State, and the Attorney General (collectively “the State”) agree that the court of appeals improperly dismissed Sweed’s appeal. Nye, however, maintains that Sweed’s original notice of appeal did not invoke the court of appeals’ jurisdiction because it did not contain the required information for a notice of restricted appeal and was outside the thirty-day filing period for a traditional notice of appeal. Nye also argues that Sweed’s amended notice of appeal, which included the information required for a notice of restricted appeal, did not invoke the court of appeals’ jurisdiction because it was filed outside the six-month time period for a notice of restricted appeal. We disagree with Nye’s position.

The court of appeals treated Sweed’s notices as two separate notices of appeal: the first as a general notice of appeal and the second as a notice of restricted appeal. But Sweed’s Amended Notice of Appeal stated that it was amending his previously filed notice of appeal, cited the rule allowing for amendments, included the restricted-appeal information, and was filed before he filed his brief. It was and should have been considered an amendment to the original notice of appeal.

Rule of Appellate Procedure 25.1 states that “an appeal is perfected when a written notice of appeal is filed with the trial court clerk.” Tex.R.App. P. 25.1(a). The rule contemplates that information might be omitted from a notice of appeal and specifically authorizes a party to file an amendment to “correct[] a defect or omission in an earlier filed notice” before the appellant’s brief is filed. Tex.R.App. P. 25.1(f). And this Court has consistently held that a timely filed document, even if defective, invokes the court of appeals’ jurisdiction. Grand Prairie Indep. Sch. Dist. v. S. Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991) (“If the appellant timely files a document in a bona fide attempt to invoke the appellate court’s jurisdiction, the court of appeals, on appellant’s motion, must allow the appellant an opportunity to amend or refile the instrument required by law or our Rules to perfect the appeal.”); see Warwick Towers Council of Co-Owners v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex.2008); Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex.1994); Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex.1989); Woods Exploration & Producing Co. v. Arkla Equip. Co., 528 S.W.2d 568, 570 (Tex.1975).

The original notice of appeal was timely filed insofar as a restricted appeal is concerned. It properly invoked the court of appeals’ jurisdiction, was timely amended, and the court of appeals erred by dismissing the appeal.

Although the State now concedes that the court of appeals should not have dismissed Sweed’s restricted appeal, it nonetheless argues that Sweed’s petition for review should be denied because his underlying case lacks merit.

We do not agree that the merits of Sweed’s case are a consideration in determining whether he procedurally invoked the court of appeals’ jurisdiction. He is entitled to proper application of the appellate rules regardless of the merits of his underlying case. Furthermore, our decisions construing the appellate rules have not favored disposing of appeals on harmless procedural defects. Higgins v. Randall County Sheriffs Office, 257 S.W.3d 684, 688 (Tex.2008) (“Indigency provisions, like other appellate rules, have long been liberally construed in favor of a right to appeal.” (quoting Jones v. Stayman, 747 S.W.2d 369, 370 (Tex.1987))); see also Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997).

We grant the petition for review. Without hearing oral argument, we reverse the court of appeals’ judgment. See Tex. R.App. P. 59.1. We remand to the court of appeals for further proceedings.


author: HERVEY, J., COCHRAN, J.,

text:
    Richard Lynn WINFREY, Appellant, v. The STATE of Texas.
    No. PD-0987-09.
    Court of Criminal Appeals of Texas.
    Sept. 22, 2010.
    Rehearing Denied Nov. 10, 2010.

      Shirley Baccus-Lobel, Dallas, for Appellant.
    Bill Burnet, Crim. D.A., Coldspring, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   HERVEY, J.,

delivered the opinion of the Court

in which KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HOLCOMB and COCHRAN, JJ., joined.

OPINION

Charged with the capital murder of Murray Wayne Burr, appellant was convicted of the lesser offense of murder and sentenced to seventy-five years in prison. We reverse the court of appeals and render an acquittal.

I. Factual & Procedural Background

In August 2004, Murray Wayne Burr was found murdered in his home. Evidence at trial indicated that the victim had been stabbed twenty-eight times and had received multiple blunt-force injuries, including a broken right-eye orbit and a broken jaw. There was no evidence of forced entry into the victim’s home. The evidence indicated that the victim was dragged from his living room to his bedroom where his body was found. Family members reported that the only item missing from the victim’s home was a Bible.

Investigators collected a variety of forensic evidence from the crime scene including: a partial bloody fingerprint, a bloody shoe print, and several hair samples. Neither the prints nor the hair samples matched appellant. Investigators were able to obtain a DNA profile from evidence at the crime scene, however, the profile excluded appellant and his family members. Appellant’s children, Megan (then 16 years of age) and Richard Winfrey Jr. (then 17 years of age), became persons of interest in the murder investigation. Texas Rangers interviewed appellant approximately two weeks after the murder. Appellant was not considered a suspect at this time. During the interview, appellant stated that he had known the victim, that he had never been in the victim’s house, that he had not seen the victim in four to five years, and that he assumed he was the number one suspect.

In July 2006, the Sheriffs Department received new information about the Burr murder from David Campbell, an inmate in the Montgomery County Jail. Campbell testified at the trial that, while he was sharing a cell with appellant, appellant relayed information that he claimed to have heard about the murder; specifically, that “some kind of gun and some knife collection” were taken from the Burr residence. Appellant related other details to Campbell that he claimed to have heard about the murder, such as the victim’s body being dragged from one room to another and the lack of forced entry. Appellant did not tell Campbell that he was involved in the murder.

To assist in the investigation, Texas Ranger Grover Huff contacted Deputy Keith Pikett, a dog handler with the Fort Bend County Sheriffs office. Deputy Pik-ett testified about a “scent lineup” that he conducted nearly three years after the murder in August 2007. He used his three bloodhounds, Quincy, James Bond, and Clue. This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including appellant. The dogs were “pre-seented” on the scent samples obtained from the victim’s clothing. The dogs then walked a line of paint cans containing the scent samples of the six white males. All three dogs alerted on the can containing appellant’s scent sample.

Based on this, Deputy Pikett concluded that appellant’s scent was on the victim’s clothing. Deputy Pikett testified on cross-examination that an alert only establishes some relationship between the scent and objects and that scent detection does not necessarily indicate person-to-person contact. Deputy Pikett also testified on cross-examination that his understanding of the law was that convicting a person solely on a dog scent is illegal.

Appellant complained on direct appeal that the evidence is legally and factually insufficient to support a conviction of murder. In its published opinion affirming the trial court, the court of appeals addressed the sufficiency of the evidence in a two-paragraph analysis. Concluding that the evidence was legally and factually sufficient, the court of appeals specifically found: (1) Deputy Pikett’s canine-scent testimony provided direct evidence placing appellant in direct contact with Burr’s clothing; (2) the jury could have reasonably concluded that appellant was in Burr’s house at the time of the murder and that he had significant physical contact with Burr; (3) appellant shared information about the murder with Campbell that was not known, even by the police; and (4) appellant identified himself as the “number one suspect” in the murder at a time when the police did not consider him a suspect. Winfrey v. State, 291 S.W.3d 68, 75 (Tex.App.-Eastland 2009).

Pursuant to Rule 68 of the Texas Rules of Appellate Procedure, appellant timely filed a petition for discretionary review. We granted review to address the following grounds presented to this court:

(1) An important question implicating the administration of justice is presented by the Court of Appeals’ reliance upon a dog scent lineup to sustain the legal sufficiency of the evidence without regard to the inherent limitations of such evidence.
(2) An important question implicating the administration of justice is also presented by the Court of Appeals’ failure to properly evaluate the factual sufficiency of the evidence by addressing the inherent limitations of dog scent lineup evidence.

Appellant contends the evidence, when viewed in a neutral light, is factually insufficient to support a conviction of murder. He further contends that the evidence, even when viewed in the light most favorable to the verdict, is legally insufficient to support a conviction of murder. The State argues that the court of appeals applied the proper standards of review for legal and factual sufficiency and that a jury could have reasonably concluded that appellant murdered Murray Wayne Burr.

II. Standard of Review

We begin our analysis by addressing the question of legal sufficiency. When reviewing a case for legal sufficiency, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Consequently, we “determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007) (citing Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.2007)). It has been said, quite appropriately, that “[t]he appellate scales are supposed to be weighted in favor of upholding a trial court’s judgment of conviction, and this weighting includes, for example, the highly deferential standard of review for legal-sufficiency claims.” Haynes v. State, 273 S.W.3d 183, 195 (Tex.Crim.App.2008) (Keller J., dissenting) (citing Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781). We must therefore determine whether the evidence presented to the jury, viewed in the light most favorable to the verdict, proves beyond a reasonable doubt that appellant intentionally or knowingly caused the death of Murray Wayne Burr.

III. Analysis

A. Appellant’s Statement to Authorities

During trial, Texas Ranger Grover Huff testified that he interviewed appellant in 2004 and that appellant indicated that he was the number one suspect.

Q. And did he indicate whether he had ever been in Murray Burr’s home?
A. He stated that he had never been inside of Murray Burr’s residence.
Q. Did he indicate whether he thought he was a suspect?
A. Yes.
Q. What did he indicate?
A. His statement to me was he was the number one suspect.

In closing arguments, the prosecution emphasized this statement as evidence of appellant’s guilt.

I think defense counsel said in closing there is nothing to put Richard Lynn Winfrey, Sr., in that trailer. Nothing to put Megan Winfrey or Richard Winfrey, Jr. First of all, early in the investigation, when they were looking at Megan Winfrey and Richard Lynn Winfrey, Jr., Ranger Huff said he went and talked to Richard Sr. They were looking at the kids. Kind of interesting, what was Richard Lynn Winfrey, Sr.’s, words, “Well, I guess I’m the primary suspect here.” He said he is the primary suspect at that point in time.

In its briefs to the court of appeals and to this Court, the State relies on appellant’s statement as evidence of his guilt. Indeed, in affirming appellant’s conviction, the court of appeals relied on appellant’s statement, concluding that “appellant identified himself as the ‘number one suspect’ in the murder at a time when the police did not consider him a suspect.” Winfrey, 291 S.W.3d at 75. This statement is not tantamount to an admission of guilt. At no time during the interview did appellant admit to any involvement. Nor did the police consider him a suspect, much less a primary one. The Texas Ranger who interviewed appellant placed little emphasis on the statement and acknowledged that even after the statement, appellant was not a suspect. In fact, he was not arrested until nearly three years later.

B. Cellmate

The court of appeals also found it significant that appellant “shared information about the murder with Campbell that was not even known by the police” and that “would only be known by the murderer or murderers.” Winfrey, 291 S.W.Sd at 74. According to the court of appeals, appellant “told Campbell that ‘some kind of a gun and some knife collection’ had been taken from Burr’s house.” id.

The evidence, however, is that appellant told Campbell that he heard that “some kind of a gun and some knife collection” were taken from the victim’s home. That appellant stated that he had heard that a gun or knife collection was taken is a subtle, yet significant distinction. Appellant never told Campbell that he was involved in the murder. Campbell himself made it clear that his entire testimony was based on information that appellant had heard.

Q. [Defense] The things that you said that Mr. Winfrey told you while in Montgomery County jail was [sic] things that Mr. Winfrey told you that he had heard: is that correct?
[Campbell] Yes. C
[Defense] Things that he had heard, it had been two years since the death of Mr. Burr. And the things that Mr. Winfrey told you was [sic] things that he told you that he had heard? G?
[Campbell] Yes, that’s what I said, hearsay.
Q. [State] When he told you about Murray being beaten and stabbed, no one in law enforcement had contacted you?
A. [Campbell] It was all hearsay what I heard from him, just hearsay.
Q. [State] And he told you about the penis, nobody had talked to you about anything?
A. [Campbell] It is just hearsay from what he was going to be charged with.
Q. [State] And when he told you that somebody had let the actor in the house, nobody from law enforcement had talked too [sic] you about a murder at that time?
A. [Campbell] No sir, just hearsay directly from him.

The court of appeals found that appellant “told Campbell that ‘some kind of a gun and some knife collection’ had been taken from Burr’s house. Before Sheriff Rogers’s interview of Campbell, the police had no information that guns had been taken from the house. Thus, appellant shared information about the murder with Campbell that was not even known by the police.” Winfrey, 291 S.W.3d at 74. Appellant never admitted involvement in the murder and claimed only to have heard information about the crime not known to the police. Thus, it is possible that the information appellant heard could have come from the actual murderer or murderers.

C. Dog-Scent Lineup

At the request of the Texas Rangers, Deputy Keith Pikett performed the dog-scent lineup. Deputy Pikett, a certified peace officer who specializes in canine handling, testified that he had been training bloodhounds since 1989. At trial, Deputy Pikett explained the scent lineup procedure:

We use 6-quart paint cans that have numbers on them. They’re just clean paint cans, and I put a piece of wood on the bottom of them so they are more stable and they’re numbered. I set the paint cans out. I typically go like ten walking steps, put a can down; ten walking steps, put a can down. The cans are placed so there — with a crosswind — so if the can is here and the next can is here, the wind is going either this way or this way. We don’t want the scent from can 2 blowing toward 3 or toward can 1. We want the wind to be blowing away, so it’s not going to cross-contaminate that way. So we check that. Then I set the cans out.

On August 22, 2007, a scent lineup was conducted, and appellant’s scent was placed in paint can number four. Deputy Pikett had no knowledge where appellant’s scent was placed. He used three bloodhounds during this scent lineup: James Bond, Quincy, and Clue. All three alerted to appellant’s scent in paint can number four.

This however, is not proof positive that appellant came in contact with the victim. Even when viewed in the light most favorable to the verdict, the dog-scent lineup proves only that appellant’s scent was on the victim’s clothes, not that appellant had been in direct contact with the victim, as the court of appeals decided.

This important distinction is highlighted in the Federal Bureau of Investigation’s publication, Forensic Science Communications, which explains that “[ijdentiiying someone’s scent at a crime scene is not an indication of complicity. It simply established] a direct or indirect relationship to the scene.” Rex A. Stoekham et al., Specialized Use of Human Scent in Ciiminal Investigations, 6 Forensic Sci. Comm. 3, 6 (2004). This sentiment was echoed in Deputy Pikett’s testimony.

Q. [Defense Counsel] All it does is establish a scent relationship between the articles?
A. [Deputy Pikett] You mean between the person and the clothing?
Q. [Defense Counsel] The scent matches, yes.
A. [Deputy Pikett] Yes.

During his testimony, Deputy Pikett acknowledged, “It’s possible to transfer scent.... If I shake hands with you, I can give you the scent on my hand.” The ease of transferring scents is well documented and is also accepted by law enforcement agencies such as the FBI. Id. at 1 (“Because human scent is easily transferred from one person or object to another, it should not be used as primary evidence. However, when used in corroboration with other evidence, it has become a proven tool that can establish a connection to the crime.”).

At oral argument, the State conceded that “dog scent alone is not enough [to convict the defendant].” Deputy Pikett also recognized the limitations of the scent lineup in his testimony when he stated that: “We never convict anybody solely on the dog. It is illegal in the State of Texas.... You cannot convict solely on the dog’s testimony.” However, the record indicates, and the State acknowledged, that the jury gave significant weight to the canine-scent evidence. The jury submitted a note asking, “Is it illegal to convict solely on the scent pad evidence?” No eye witnesses put the appellant at the crime scene. The State was unable to match the appellant to the fingerprint or to any of the footprints found at the crime scene. The appellant did not match the DNA profile obtained from the crime scene. Criminologists microscopically compared seventy-three hairs recovered from the crime scene, yet none of the hairs were consistent with appellant’s. None of the victim’s belongings were found in appellant’s possession. Not a Bible, a gun, or a knife collection. Winfrey, 291 S.W.3d at 72 (“In summary, none of the items tested at the DPS crime laboratories tied appellant to the murder scene.”).

The Jackson v. Virginia legal-sufficiency standard requires the reviewing court to view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. At most, the evidence here shows: (1) appellant indicated that he believed he was the number one suspect in a murder investigation; (2) appellant shared information with Campbell that appellant claimed to have heard about the murder; and (3) appellant’s scent was on the victim’s clothes. It is the obligation and responsibility of appellate courts “to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.” Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). Furthermore, “[i]f the evidence at trial raises only a suspicion of guilt, even a strong one, then that evidence is insufficient [to convict].” Urbano v. State, 837 S.W.2d 114, 116 (Tex.Crim.App.1992), superseded in part on other grounds, Herrin v. State, 125 S.W.3d 436, 443 (Tex.Crim.App.2002). Based on our review of this record, we find that the evidence, even when viewed in the light most favorable to the verdict, merely raises a suspicion of guilt and is legally insufficient to support a conviction of murder beyond a reasonable doubt. Because we find the evidence legally insufficient, we need not address appellant’s factual-sufficiency claim.

We note, however, that the science underlying canine-scent lineups has been questioned; thus, we think it proper to briefly address the issue. Law-enforcement personnel have long utilized canines in crime management. For example, dogs have been employed for detecting narcotics and explosives, for tracking trails, in search-and-rescue operations, for locating cadavers, and for discriminating between scents for identification purposes. In thousands of cases, canines and their handlers have performed with distinction. Despite this success, we acknowledge the invariable truth espoused by Justice Souter that “[t]he infallible dog, however, is a creature of legal fiction.” Illinois v. Caballes, 543 U.S. 405, 411, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (Souter J., dissenting).

This case pertains to canines used to discriminate among human scents in order to identify a specific person in a lineup. This process is often referred to as human-scent discrimination. Some courts, including the Fourteenth Court of Appeals, have determined that for purposes of admissibility, “there is little distinction between a scent lineup and a situation where a dog is required to track an individual’s scent over an area traversed by multiple persons.” Winston v. State, 78 S.W.3d 522, 527 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (citing Roberts v. State, 298 Md. 261, 469 A.2d 442, 447-48 (1983)). Other courts, such as the Supreme Court of Florida, have distinguished scent lineups from dog tracking. Ramos v. State, 496 So.2d 121, 123 (Fla.1986) (“[I]t is important to recognize that using a dog to track a human or to detect the presence of drugs or explosives is distinctive from using a dog to directly identify a specific human from items in a lineup.”).

Cases involving the use of dogs, usually bloodhounds, to track humans are abundant and the law is well settled in regards to admissibility of such evidence with only a minority of courts outright rejecting bloodhound evidence. People v. Cruz, 162 Ill.2d 314, 205 Ill.Dec. 345, 643 N.E.2d 636, 662 (1994); Brafford, v. State, 516 N.E.2d 45, 49 (Ind.1987); State v. Storm, 125 Mont. 346, 238 P.2d 1161, 1181-82 (1952); Brott v. State, 70 Neb. 395, 97 N.W. 593, 594 (1903). Fewer courts have addressed the question of whether dog evidence is sufficient to sustain a conviction when it is the only evidence. However, as early as 1913, our colleagues at the Supreme Court of Mississippi held that dog tracking evidence, alone and unsupported, to be insufficient to affirm a conviction. Carter v. Mississippi, 106 Miss. 507, 64 So. 215, 215 (1913). And as recently as 1983, the Supreme Court of Washington agreed. State v. Loucks, 98 Wash.2d 563, 656 P.2d 480, 483 (1983). In fact, our research suggests the courts that have passed on this issue have concluded that dog-scent evidence, when admissible, is insufficient, standing alone, to sustain a conviction. State v. Taylor, 118 N.H. 855, 395 A.2d 505, 507 (1978); State v. Cheatham, 458 S.W.2d 336, 339 (Mo.1970); State v. Green, 210 La. 157, 26 So.2d 487, 489 (1946); Buck v. State, 77 Okla.Crim. 17, 138 P.2d 115, 123 (1943); Copley v. State, 153 Tenn. 189, 281 S.W. 460, 461 (1926).

Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. “Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups.” Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of Dog Scenting, 42 Hastings L.J. 15, 42 (1990) (explaining that drug detection canines need only determine whether a specific scent is present. Tracking dogs, on the other hand, have the benefit of using both vegetative scents and human scent, while canines performing scent lineups must find one specific scent among many competing, similar scents). The FBI agrees, noting that tracking canines use human scent and environmental cues to locate the track of an individual. Allison M. Curran, et al., Analysis of the Uniqueness and Persistence of Human Scent, 7 Forensic Sci. Comm. 2 (2005). Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction. Like the Supreme Court of Washington, we believe that “[t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence.” Loucks, 656 P.2d at 482. To the extent that lower-court opinions suggest otherwise, we overrule them and expressly hold that when inculpatory evidence is obtained from a dog-scent lineup, its role in the court room is merely supportive.

The State argues in its brief:

During the videotaped canine scent lineup on August 22, 2007, all the dogs made positive hits on [appellant’s] scent pads, indicating that [appellant] had been in contact with the clothes [the victim] was wearing at the time of his death. This is significant because in the earlier interview with [appellant] in 2004, he indicated that he had NEVER been in [the victim’s] home and had not seen [the victim] in five years.
An effort was made by defense counsel to advance a theory of “transferred scent” or “casual contact” to explain how [appellant’s] scent would be on the clothes the victim had on at the time of death. Keith Pikett testified that the scent is essentially from skin cells sloughed off by the provider of the skin cells. Pikett testified that, based on the scent lineups, [appellant’s daughter, appellant’s son and appellant] had left their scent on the clothes the victim was wearing at the time of his death. Following cross-examination, Pikett also indicated that a boyfriend and girlfriend would have significant contact with each other, more than with family members. But none of the dogs hit on Christopher Hammond’s scent pads. In that regard the jury could certainly draw the inference that if [appellant’s daughter’s] boyfriend at the time of the murder was Christopher Hammond, then under the transferred scent or casual contact theory, it would be MORE likely that if she touched [the victim’s] clothes, Hammond’s scent rather than her father, [appellant’s] scent would have been transferred.

(Emphasis in original and record reference omitted).

It cannot be denied that the jury and the court of appeals found the dog-scent lineup evidence in this case to be compelling. In 2004, two different dogs alerted only to the scents of appellant’s son and daughter. In 2007, three different dogs alerted only to appellant’s scent. But, the question essentially presented in this case is whether dog-scent lineup evidence alone can support a conviction beyond a reasonable doubt. And, while this evidence may raise a strong suspicion of appellant’s guilt, we nevertheless decide that, standing alone, it is insufficient to establish a person’s guilt beyond a reasonable doubt.

The judgment of the court of appeals is reversed, and a judgment of acquittal is entered. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1, (1978) (holding if the record evidence is legally insufficient under the Jackson rule, the reviewing court must render a judgment of acquittal).

COCHRAN, J., filed a concurring opinion in which WOMACK, JOHNSON and HOLCOMB, JJ., joined.

MEYERS, J., did not participate.

COCHRAN, J.,

concurring, in which WOMACK, JOHNSON and HOLCOMB, JJ., joined.

Appellant did not object at trial to Deputy Pikett’s “dog scent line-up” testimony. Therefore, neither the court of appeals nor this Court has had an occasion to review or determine the admissibility of that evidence under either Kelly v. State or Nen-no v. State. But, as the majority holds, even if Deputy Pikett’s testimony concerning the “dog scent line-up” was properly admissible under Rule 702, the evidence is still legally insufficient to support appellant’s conviction.

With that understanding, I join the majority opinion.

      . According to appellant's discretionary-review petition: 1) appellant and both his children (Megan and Richard Jr.) were indicted for the capital murder of Murray Wayne Burr, 2) Megan was convicted of capital murder and conspiracy and her appeal is currently pending, and 3) Richard Jr. was acquitted of capital murder and conspiracy.

      . The videotaped interview was not included in the appellate record, although the Texas Ranger who interviewed appellant discussed the conversation in his testimony.

      . An "alert” occurs when the canine matches the scent from the victim's scent pad to the suspect's scent pad. A similar "scent lineup” was conducted in August 2004 on scent samples from appellant's children with two dogs, Quincy and Jag. Both of these dogs alerted on the children's scent samples.

      . The State seems to claim that Pikett testified that the results of the dog-scent lineup established direct contact between appellant and the victim’s clothes at the time of the victim’s death. We do not so read Pikett's testimony. Pikett testified on direct examination:
      Q. [State] Now, based on the results of that final scent lineup, do you believe that the scent of [appellant] is on the scent on the clothing of [the victim]?
      A. [Pikett] Yes.
      Pikett testified on cross-examination:
      Q. [Defense Counsel] All it does is that it establishes a relationship, does it not?
      A. [Pikett] It puts that person in contact with something.
      Q. It puts the person in contact with something, not necessarily person-to-person, does it?
      A. No. Without knowing the specifics of anything, no, you can't say that.
      Q If I come up and I shake your hand, am I going to get some of your skin cells?
      A. Yes.
      Q. Now, if I come over here and grab [one of the prosecutors] on the arm, have your skin cells transferred to him?
      A. Yes.
      Q. Did you touch him?
      A. No.

      Q. Again, an alert by a dog is nothing but to establish some sort of a relationship between the scents and the objects, would you agree?
      A. Yes.

        On redirect examination, Pikett testified:
      Q. [State] So that’s essentially what you’ve been testifying to all along, physical contact?
      [Defense] I object to that, Your Honor, physical contact made between objects, if you would clarify that.
      Q. [State] Physical contact where someone else leaves their scent on someone else through physical contact.
      A. Yes.

      Q. And that's what we’re talking about, significant physical contact.
      A. Yes.
      Q. And that’s all your dogs are looking for; is that correct?
      A. Yes.
      On recross-examination, Pikett testified:
      Q. All it does is establish a scent relationship between the articles.
      A. You mean between the person and the clothing?
      Q. The scent matches, yes.
      A. Yes.

      . In its brief to the court of appeals, the State argued that "Richard Winfrey Sr. indicated to Texas Ranger Grover Huff that he was the primary suspect early in the investigation when Huff was focusing on Winfrey's children.” In its brief to this Court, the State argues "Coupled with the statements made during the interview with Ranger Huff, when Petitioner stated he had never been in the Burr home and had not seen Burr in five years, and at the same time stated he was the 'number one suspect,' the jury, as trier of fact, could certainly attach a great weight to the canine scent evidence in light of Petitioner’s contradictory statements.”

      . In the summer of 2006, the Sheriff’s Department interviewed Jessie Oates, the victim's brother-in-law. Oates informed the Sheriff's department that the victim owned a rifle and a shot-gun, which the victim showed to him about six months before the murder. Oates did not know if these guns were in the victim’s home when he was murdered. Neither of these guns nor a knife collection was ever recovered. It is questionable whether the evidence would support a finding that these guns were taken from the victim's house at the time of the murder. We will, however, assume that, viewed in the light most favorable to the verdict, the evidence supports a finding that "some kind of a gun and some knife collection” were taken from the victim's home.

      . Appellant also told Campbell that he had heard that the victim's penis had been mutilated, a statement that was inaccurate.

      . A scent lineup is a forensic tool where dogs use their enhanced sense of smell to match scents. Using a gauze pad, scent exemplars are obtained from the crime scene or from an object found at the crime scene, as well as from a suspect. The gauze pad with the sus-peel's scent is then placed in a "lineup" with several other scents. Before doing the lineup, the dog sniffs the gauze pad from the crime scene. The dog then walks the lineup and alerts if it recognizes any of the scents.

      . In a written response, the trial court replied, "I can only refer you to the instructions in the charge."

      . We do not read the phrase, "indicating that [appellant] had been in contact with the clothes [the victim] was wearing at the time of his death,” as necessarily meaning that appellant had direct contact with the victim's clothes at the time of the victim's death. Consistent with Pikett's testimony, we understand this phrase to mean that appellant's scent was on the victim's clothes at the time of the victim’s death.

      . Pikett testified that “human beings lose probably conservatively 15 million skin cells a day” and "that’s what the dog is smelling.” Pikett also testified that the dog is trained to smell human skin cells but that he did not know what "ingredient” the dog is smelling. The State argued during closing jury arguments that it could not tell the jury "the mechanics of how the dogs do what they do, but they sure do it.”

      . 824 S.W.2d 568 (Tex.Crim.App.1992) (setting out standards for the admissibility of scientific expert testimony under Tex.R. Evid. 702).

      . 970 S.W.2d 549 (Tex.Crim.App.1998) (setting out standards for the admissibility of non-scientific expert testimony under Tex.R. Evid. 702).


author: KELLER, P.J.,

text:
    Stephen Bernard JONES, Appellant, v. The STATE of Texas.
    Nos. PD-0499-09, PD-0500-09.
    Court of Criminal Appeals of Texas.
    Sept. 29, 2010.
    Rehearing Denied Nov. 10, 2010.

      Stephen B. Jones, pro se.
    Helena F. Faulkner, Asst. Crim. Dist. Atty., Fort Worth, Jeffrey L. Van Horn, State’s Atty., Austin, for State.
   KELLER, P.J.,

delivered the opinion of the Court

in which PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant applied for two loans. On each loan application, he made three false statements. The State charged appellant, under Texas Penal Code § 32.32, with making false statements to obtain property or credit. The State obtained six convictions — one for each false statement made in each loan application. The court of appeals held that the constitutional protection against double jeopardy limits the State to obtaining one conviction per loan application. We disagree.

I. BACKGROUND

In 2005, appellant was employed by Legacy Financial Group, a mortgage company. During this time, he applied for two loans on his own behalf. The loans sought, for two separate residential properties, were for $680,000 and $544,000. On each application, appellant claimed to have two bank accounts that he did not in fact have, and he submitted another person’s credit report as his own. The State obtained two indictments (one for each loan application) and each indictment contained three counts (one for each false statement). Appellant was convicted on all counts in both indictments, for a total of six convictions.

Appellant contended on appeal that double jeopardy was violated when the State obtained six convictions. He argued that the State was entitled to obtain only two convictions — one for each loan application. The State relied upon our previous decision in Cheney v. State and argued that § 32.32 was analogous to the perjury statute.

The court of appeals agreed with appellant. In arriving at its conclusion, the court first distinguished Cheney. The court observed that Cheney, in addressing whether § 32.32 was in pan materia with the theft statute, held that the gravamen of a § 32.32 offense was the making of false statements. But, the court of appeals explained, at the time Cheney was decided, § 32.32 was a misdemeanor regardless of the value of the loan sought. The court found it significant that, in 2001, the legislature amended § 32.32 to make the degree of the offense dependent upon the value of the loan sought. The court of appeals cited to a passage in Cheney that pointed to proof of value as being critical in a theft offense but not required for an offense under § 32.32 at the time. The court of appeals also found Cheney to be distinguishable because it did not involve the same issue we face in this case.

After examining the language of § 32.32, § 32.03, and Chapter 32 in general, the court of appeals concluded that § 32.32 was more analogous to a theft offense for unit-of-prosecution purposes than to the crime of perjury. The court pointed out that Chapter 32, unlike the perjury chapter, contains no definition of “statement” and that, just as with theft offenses, offenses under Chapter 32 could sometimes be aggregated into a single offense. The court found it absurd that a person could be penalized separately for three lies when those three lies were focused only on getting a single benefit. Consequently, the court of appeals held that the gravamen of the offense of “false statement to obtain property or credit” is the property or credit sought, and multiple false statements used to obtain a single loan are simply alternate means of committing the same offense.

II. ANALYSIS

In 2005, the offense of “false statement to obtain property or credit” was defined in § 32.32 as follows:

A person commits an offense if he intentionally or knowingly makes a materially false or misleading written statement to obtain property or credit for himself or another.

In order to decide how many offenses appellant committed, we must determine the allowable unit of prosecution for the statute that proscribes the offense. Although this inquiry resolves the double jeopardy analysis, it is purely one of statutory construction.

A. General Principles of Statutory Construction

In construing a statute, we look first to its literal text. When examining the literal text, “we read words and phrases in context and construe them according to the rules of grammar and usage.” If the statutory language is ambiguous, or leads to absurd results that the Legislature could not possibly have intended, then we may consult extra-textual sources of information.

In this process, we consider any prior judicial construction of the statute. When that construction is longstanding, there is some force to the argument that, if the Legislature did not agree with the judicial interpretation, it would have acted to change the statute. Of course, a judicial construction of a statute is the law, unless we decide to overrule it, and the interests of stare decisis are at then-height for judicial constructions of legislative enactments upon which the parties rely for guidance in conforming to those enactments.

B. Unit of Prosecution

Absent an explicit statement that “the allowable unit of prosecution shall be such-and-such,” the best indicator of legislative intent with respect to the unit of prosecution seems to be the focus or “gravamen” of the offense. In Cavazos and Hawkins, different outcomes were reached because of the gravamen of the offense at issue in each case. The offense in Cavazos was burglary, with two intended victims but only one entry into a home. We held that this single entry could give rise to only one burglary conviction because the gravamen of the offense of burglary is the “unlawful entry” rather than the victim of the crime. The offense in Hawkins was robbery, with two victims but only one item stolen. We held that two robberies were committed because the gravamen of the offense of robbery is the assaultive conduct against the victim, not theft.

As the court of appeals acknowledges, we held in Cheney that the gravamen of the offense of “false statement to obtain property or credit” is the act of making a materially false statement rather than the acquisition of property or credit. A holding that the focus of the offense is upon the materially false statement suggests that multiple materially false statements would give rise to multiple offenses, even if the multiple statements were made in connection with only one application for credit.

In distinguishing this case from Cheney, the court of appeals correctly noted that the issue in Cheney was whether statutes proscribing felony theft and making a false statement to obtain property or credit were in pañ mateña. But regardless of the specific legal issue, Cheney construed the meaning of § 32.32, and the double jeopardy claim before us turns upon the meaning of § 32.32. Whether statutory construction occurs in a double jeopardy context or an in pan maten a context, the issue is the same: the meaning of the statute.

The next question is whether the court of appeals was correct in its assessment that Cheney no longer controls because the Legislature changed the gravamen of a § 32.32 offense by amending the punishment provisions to include various ranges that depend on the value of the property or credit sought. Although Cheney referred to proof of value as a critical factor in the offense of theft that was not required for an offense under § 32.32, this was a brief reference and it was not the primary basis for the holding in that case. Primarily, Cheney contrasted § 32.32’s focus on deception with the theft statute’s focus on acquisition. Moreover, it is unclear that the reference to proof of value has any relationship to Cheney's gravamen discussion because an in pari mate-ria analysis can take into account not only the gravamen of the offenses being compared but also any differences in their respective punishments. The main, if not sole, thrust of Cheney’s gravamen discussion was § 32.32’s focus on deception (rather than acquisition).

And the punishment subsection in § 32.32 is separate from the text that defines the elements of the offense. A unit-of-prosecution inquiry necessarily involves an interpretation of the offense’s elements. Separate punishment provisions are something an appellate court can consider in a unit-of-prosecution inquiry, but they should carry little weight in the analysis. In this case, more weighty factors are available for consideration.

We glean one such factor from the holdings of Cavazos and Hawkins, and from Cheney itself. In Cavazos, we held that unlawful entry is considered the gravamen of burglary because “[t]he offense is complete once the unlawful entry is made, without regard to whether the intended theft or felony is also completed.” In Hawkins, we held that assault is the gravamen of the offense of robbery because the assault must be complete, but the “theft only has to be attempted.” In Cheney, we emphasized that the false statement part of § 32.32 was the gravamen of the offense because the statute penalized the “making” of a false statement but did not require the “actual acquisition” of property or credit. These holdings suggest that the unit of prosecution tends to be defined by the offense element that requires a completed act.

Another aid in determining the focus or gravamen of an offense is grammar. One aspect of grammar is the “eighth grade grammar” approach suggested by Judge Cochran as “a general rule of thumb” for determining legislative intent. Under the “eighth grade grammar” approach, the language that constitutes the gravamen of the offense consists of the subject, the main verb, and the direct object. “Generally, adverbial phrases, introduced by the preposition ‘by1 ... are not the gravamen of the offense.” Analyzing a § 32.32 offense under this approach reveals that the subject is “a person,” the verb is “makes,” and the direct object is “a materially false or misleading written statement.” The phrase “to obtain property or credit for himself or another” is an adverbial phrase modifying “makes.” In any event, the fact that “obtaining property or credit” is part of a prepositional phrase rather than the main structure of the sentence suggests that it is not the gravamen of the offense.

Another aspect of grammar is that a legislative reference to an item in the singular suggests that each instance of that item is a separate unit of prosecution. In Vineyard, we explained that the use of the singular for “film image” in the pornography statute indicated that each film image was a separate unit of prosecution. The use of the singular was also part of the rationale for our previous holdings in Rathmell and Iglehart. In Rathmell, we construed a statute proscribing the death of an individual to allow separate prosecutions for causing the death of more than one individual in a single transaction. In Iglehart, we held that the theft statute allowed for multiple prosecutions when items were taken from multiple owners because the statute made it “an offense” to take property from “the owner.” As with the homicide, theft, and pornography statutes, § 32.32 uses the singular: proscribing the making of “a materially false or misleading written statement.”

Similarly, a number of other jurisdictions have employed what is sometimes known as the “a/any test”: The use of “a” before the proscribed conduct means that the statute unambiguously proscribes each instance of the conduct while the use of “any” is ambiguous, and may or may not proscribe each instance of conduct, depending on the context of the entire statute. One court has criticized the employment of this test while another has cautioned that the “test” is a “valuable but nonexclusive means to assist courts in determining the intended unit of prosecution” that should not be applied “mechanistically.” We do not adopt the “a/any” test as a strict rule, but we find it to be a helpful tool in statutory analysis. The presence of “a” before the term “materially false or misleading statement” in § 32.32 is at least some indication that each “materially false or misleading statement” constitutes a separate unit of prosecution.

Finally, we observe that, in connection with an analogous federal statute proscribing the submission of false statements or documents in connection with a Federal Housing Administration loan application, two federal cases have held that each false statement or document was a separate unit of prosecution.

We conclude that the appropriate unit of prosecution is the “materially false or misleading statement,” not the loan application. Each “materially false or misleading statement” constitutes a separate offense.

The judgment of the court of appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

MEYERS, and JOHNSON, JJ, dissented.

      . Tex. Penal Code § 32.32(b) (West 2004).

      . In a supplemental brief, appellant claims that the court of appeals erred in retaining two convictions because he completed only one handwritten loan application and therefore should have been convicted of only one offense. In a response letter, the State points out that appellant did not file a cross-petition raising this complaint. The State also contends that appellant did not raise this claim before the court of appeals, and that, in any event, the claim is without merit because his handwritten application was converted into two typed applications. We decline to address the issue raised in appellant’s supplemental brief but express no opinion on whether the court of appeals may do so on remand.

      . 755 S.W.2d 123 (Tex.Crim.App. 1988).

      . Jones v. State, 285 S.W.3d 501, 503-05 (Tex.App.-Fort Worth 2009).

      . Jones, 285 S.W.3d at 503-04.

      . Id. at 503 (discussing Cheney, 755 S.W.2d at 129).

      . Id.

        . Id. at 503-04.

      . Id. at 504, 504 n. 7 (citing Cheney, 755 S.W.2d at 130).

      . Id. at 504.

      . Id. at 504-05.

      . Id. at 504.

      . Id. at 504-05.

      . Id. at 505.

      . Tex. Penal Code § 32.32(b) (West 2004). Under the current version of the statute the phrase "for himself or another” has been replaced by a comma and the phrase "including a mortgage loan.” Tex. Penal Code § 32.32(b) (current).

      . Ex parte Hawkins, 6 S.W.3d 554, 555 (Tex.Crim.App.1999) (whether actor's assault on two people while stealing one item of property constitutes one robbery or two); Vineyard v. State, 958 S.W.2d 834, 838 (Tex.Crim.App.1998) (whether possession of a videotape and a photograph at the same time in one location constitutes one offense of child pornography or multiple offenses); Iglehart v. State, 837 S.W.2d 122, 127 n. 6 (Tex.Crim.App.1992) (whether taking distinct items of property belonging to two different victims at the same residence constitutes one theft or two). A different, but related "allowable unit of prosecution” inquiry occurs when the same statutory section lists multiple methods of committing an offense, and this Court is called upon to determine whether these different methods of commission are different offenses or are merely alternate means of committing the same offense. See Gonzales v. State, 304 S.W.3d 838, 848 (Tex.Crim.App.2010) (whether penetration of anus and sexual organ are different aggravated sexual assault offenses or alternate means of committing the same offense). Ex parte Cavazos arguably involved different statutory methods of committing the same offense — burglary with intent to commit theft and burglary with intent to commit sexual assault. 203 S.W.3d 333, 335 (Tex.Crim.App.2006). However, the question addressed was whether a single entry into a single residence could give rise to two burglary prosecutions when there were two victims of the offense. Id. at 336-37.

      . Cavazos, 203 S.W.3d at 336; Hawkins, 6 S.W.3d at 556-59; Vineyard, 958 S.W.2d at 837; Iglehart, 837 S.W.2d at 127. In Hawkins, we noted that "fascinating and difficult” unit of prosecution questions can arise, "but they are ultimately questions of substantive law, questions on which the Double Jeopardy Clause is wholly agnostic. The Clause takes substantive criminal law as it finds it.” 6 S.W.3d at 557.

      . Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991); see also Cavazos, 203 S.W.3d at 336-37 (deciding issue solely on "plain meaning” of the burglary statute); Iglehart, 837 S.W.2d at 127 (same, finding "the plain language of the theft statute to be clear and unambiguous”).

      . Lopez v. State, 253 S.W.3d 680, 685 (Tex.Crim.App.2008); Boykin, 818 S.W.2d at 785 (courts must determine the plain meaning of a statute "when read using the established canons of construction relating to such text”).

      . Boykin, 818 S.W.2d at 785.

      . State v. Medrano, 67 S.W.3d 892, 902 (Tex.Crim.App.2002).

      . Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App.1999).

      . See Cavazos, 203 S.W.3d at 337; Hawkins, 6 S.W.3d at 559-60. See also Gonzales, 304 S.W.3d at 848 (citing Huffman v. State, 267 S.W.3d 902, 907 (Tex.Crim.App.2008), and remarking that we recently ''signaled” as much in determining whether the Legislature intended to define one or multiple offenses when it promulgates alternate methods of commission).

      . 203 S.W.3d at 335.

      . Id. at 337.

      . 6 S.W.3d at 555.

      . Id. at 559-60.

      . Cheney, 755 S.W.2d at 129 ("It is the act of making such statements that is the gravamen of the offense, while the actual acquisition of property or credit is not a required element of the offense.... [Tjhe 'forbidden conduct’ ... is the intentional or knowing making of a materially false or misleading statement to obtain property or credit. The offense is complete once the written, deceptive statement relevant to obtaining property or credit is made.") (emphasis in original).

      . Id. at 130.

      . Id. at 129-30.

      . See Burke v. State, 28 S.W.3d 545, 548 (Tex.Crim.App.2000) (quoting Cheney, 755 S.W.2d at 130, for the proposition that provisions are not in pari materia when they "are two different legislative acts having different elements of proof, different penalties and obviously designed to serve different purposes and objectives.”); Ex parte Wilkinson, 641 S.W.2d 927, 932 (Tex.Crim.App.1982) (statutes are not in pari materia when they "are contained in different legislative acts, provide for different penalties, and are designed to serve different purposes and objectives”).

      . See Tex. Penal Code § 32.32(b), (c) (West 2004).

      . Cavazos, 203 S.W.3d at 337; see also Tex. Penal Code § 30.02(a) (variously proscribing entry or concealment "with intent” to commit other offenses or accompanied by an attempt or the actual commission of other offenses).

      . Hawkins, 6 S.W.3d at 559-60; see also Tex. Penal Code §§ 29.02(a) (when assault occurs "in the course of committing theft"), 29.01(1) ("in the course of committing theft” means "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft”).

      . 755 S.W.2d at 129.

      . Gonzales, 304 S.W.3d at 848 (citing Huffman v. State, 267 S.W.3d at 907).

      . Huffman, 267 S.W.3d at 906.

      . Id. (quoting Stuhler v. State, 218 S.W.3d 706, 718 (Tex.Crim.App.2007), in turn quoting Jefferson v. State, 189 S.W.3d 305, 315-16 (Tex.Crim.App.2006) (Cochran J., concurring)).

      . Id.

      . The phrase could conceivably be an adjectival phrase modifying "statement.”

      . Vineyard, 958 S.W.2d at 837.

      . Id.

      . Ex parte Rathmell, 717 S.W.2d 33 (Tex.Crim.App.1986).

      . Vineyard, 958 S.W.2d at 837.

      . 717 S.W.2d at 35; see also Vineyard, 958 S.W.2d at 837 (discussing Rathmell).

      . 837 S.W.2d at 127 (emphasis in original); see also Vineyard, 958 S.W.2d at 837 (discussing Iglehart).

      . Tex Penal Code § 32.32(b) (West 2004).

      . United States v. Freisinger, 937 F.2d 383, 388-90 (8th Cir.1991) ("A statute that prefaces the object of the offense with the word 'a' unambiguously authorizes singular units of prosecution.”); United States v. Vargas-Castillo, 329 F.3d 715, 721-22 (9th Cir.2003) (quoting United States v. Alverson, 666 F.2d 341, 347 (9th Cir.1982): "Use of the article ‘a’ stands in marked contrast to language in other statutes that have been interpreted to preclude prosecution for each object of the offense. Unlike 'any,' the article 'a' cannot be said to fully encompass plural activity. Rather, it encompasses singular, individualized activity and unambiguously defines the unit of prosecution in singular terms.”) (citations and brackets omitted); Ex parte State of Alabama, 883 So.2d 717, 723 (Ala.2003) (quoting R. Owens, Alabama's Minority Status: A Single Act Injuring Multiple Persons Constitutes Only a Single Offense, 16 Cum. L.Rev. 85, 105-06 (1985-86): "How, then should the unit of prosecution be described so that an intent to allow multiple convictions is clear and unequivocal? Instead of using the word 'any' to describe the unit of prosecution, the singular words 'a' or ‘another’ should be used.”); Grappin v. State, 450 So.2d 480 (Fla.1984) (quoting Alverson ); State v. Kidd, 562 N.W.2d 764, 765-66 (Iowa 1997) ("An” is a euphonic mutation of the article "a.” Concluding that "a” denotes a singular and that the statute referring to "an offensive weapon” was not ambiguous regarding each weapon being a unit of prosecution); State v. Ose, 156 Wash.2d 140, 146-48, 124 P.3d 635, 637-39 (2005) (legislature unambiguously defined the unit of prosecution as one count per access device by using the indefinite article "a” in the clause "a stolen access device”); People v. San Nicolas, 2001 Guam 4, 20-22 (2001) ("statutes using the singular words 'a' or 'another' reveal the intent that each victim be the appropriate unit of prosecution” — statute proscribed subjecting "a child to cruel and unusual treatment”) (emphasis in original). See also State v. Mather, 264 Neb. 182, 195-97, 646 N.W.2d 605, 616 (2002) (Wright, J„ dissenting) (dissenting to majority’s finding multiple units of prosecution when the relevant term was preceded by the word “any” and arguing that the majority’s interpretation would have been supported if the statute had instead used the word "a”); State v. Ravell, 155 N.H. 280, 285-86, 922 A.2d 685, 689-90 (2007) (Duggan, J., dissenting) (same). See also Mather, 264 Neb. at 186-89, 646 N.W.2d at 610-12 ("any” denotes a singular in the context before the court, allowing for multiple prosecutions); Ravell, 155 N.H. at 282-83, 922 A.2d at 687-88 (same); State v. Green, 207 W.Va. 530, 537-38, 534 S.E.2d 395, 402-03 (2000) (same).

      . United States v. Lindsay, 985 F.2d 666, 674-75 (2d Cir.1993) (criticizing Freisinger).

      . Bautista v. State, 863 So.2d 1180, 1188 (Fla.2003). But see id. at 1188 n. 9 ("In fact, only if the criminal statute in question uses the article 'a' is the legislative intent as to the intended unit of prosecution actually determined by the 'a/any' test. This is because the use of the article 'a' is unambiguous.”).

      . Moeller v. United States, 378 F.2d 14, 15 (5th Cir.1967) (rejecting the defendant's contention that two false statements made in a single application were but one offense and holding that "the offense defined by the statute with which he was charged is the making of false statements”); Tripp v. United States, 381 F.2d 320, 321 (9th Cir.1967) (rejecting the defendant’s complaint that the government could not submit "a separate count on each false document even where several of the documents were submitted in support of a single application" because "the filing of each false document would constitute a crime”). At the time these cases were decided, the federal statute provided:
      Whoever, for the purpose of obtaining any loan or advance of credit from any person, partnership, association, or corporation with the intent that such loan or advance of credit shall be offered to or accepted by the Federal Housing Administration for insurance, or for the purpose of obtaining any extension or renewal of any loan, advance of credit, or mortgage insured by such Administration, or the acceptance, release, or substitution of any security on such a loan, advance of credit, or for the purpose of influencing in any way the action of such Administration, makes, passes, utters, or publishes any statement, knowing the same to be false, or alters, forges, or counterfeits any instrument, paper, or document, or utters, publishes, or passes as true any instrument, paper, or document, knowing it to have been altered, forged, or counterfeited, or willfully overvalues any security, asset, or income, shall be fined not more than $5,000 or imprisoned not more than two years, or both.

        Moeller, 378 F.2d at 14 n. 1 (quoting 18 U.S.C.A. § 1010).