Texas Case Law

MENEFEE v. STATE, 06-05-00204-CR (Tex.App.-Texarkana [6th
Dist.] 12-28-2006) MICHAEL D. MENEFEE, Appellant v. THE
STATE OF TEXAS, Appellee. No. 06-05-00204-CR. Court of
Appeals of Texas, Sixth District, Texarkana. December 28,

Appeal from the 188th Judicial District Court Gregg County,
Texas Trial Court No. 32636-A.



Josh R. MORRISS, III, Chief Justice.

Someone strangled Jacqueline James to death and left her
body, naked and in an unnatural position, in her own bed.
In a Gregg County jury trial, James’ recent ex-boyfriend,
Michael D. Menefee, was convicted of murdering James and
was sentenced to forty-five years’ imprisonment. Menefee
appeals. His appeal largely centers on the question of
whether the evidence supports his conviction.

Because we find that (1) the evidence is legally and
factually sufficient to support the conviction, (2) the
trial court did not err in admitting evidence of Menefee’s
fingerprints at the murder scene, (3) the State did not
violate the rules of disclosure stated in Brady v.
Maryland,[fn1] and (4) admitting the victim’s hearsay
statements did not affect Menefee’s substantial rights, we
affirm the trial court’s judgment.

(1) The Evidence Is Legally and Factually Sufficient to
Support the Conviction

In four points of error, Menefee challenges the sufficiency
of the evidence to support his conviction.[fn2]

Our factual sufficiency review looks to all the evidence in
a neutral light and determines whether the evidence
supporting the verdict is so weak that the jury’s verdict
is clearly wrong and manifestly unjust, or whether the
great weight and preponderance of the evidence is contrary
to the verdict. Watson v. State, 204 S.W.3d 404
(Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 7
(Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 134
(Tex.Crim.App. 1996). We review the legal sufficiency of
the evidence by determining whether a rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt after viewing the evidence in a
light most favorable to the prosecution. Cates v. State,
102 S.W.3d 735, 738 (Tex.Crim.App. 2003) (citing Jackson,
443 U.S. at 318-19).

Menefee had a good alibi — that is, until his alibi
started unraveling. Menefee maintained he was home with his
current girlfriend, Anita Owens, when James was killed, not
long after 1:00 a.m. January 15, 2004. Though Owens
originally confirmed Menefee’s alibi to investigators, she
later recanted, relating at least two different stories.
Menefee’s alibi was also debunked by Menefee’s former
neighbor, Craig Hawkes, who testified that on the night of
January 14 he had given Menefee a ride to within six houses
of James’ home, where she was later found dead. Owens
testified that later that same night, when she thought
Menefee was home, he called her from a few blocks away from
James’ house for a ride back to his house.

James’ body was found the morning of Friday, January 16,
2004, by family members. Some degree of decomposition had
set in, leading to the conclusion she had been dead for at
least twelve hours and as long as five days.[fn3] Three
witnesses commented on the cleanliness of James’ home.[fn4]
Perhaps owing to such tidiness, forty-one discrete
fingerprints were found in James’ home. Several were
identified as James’. Although police compared prints found
in the home to those of Ruben Mananita (James’ coworker who
had been in James’ house within a week before the murder,
and with whom she had lunch plans for Friday, January 16)
and Rodney Frasier (an acquaintance of James about whom
little is found in the record other than his name was found
in James’ purse) — neither matched. Two fingerprints
on the headboard of James’ bed were positively identified
as Menefee’s. Menefee admittedly had had a romantic
relationship with James, but said he had last been in her
house on Christmas 2003, about three weeks before her death.

When James’ family members discovered her body, she was
naked in her bed, with the covers pulled up to her chin.
Longview police officers described the position of James’
body as having her head “pushed up against the headboard in
an unnatural position.” James’ “head was pushed up against
the headboard, kind of cocked off to one side. Her left
shoulder was sort of slanted to the left and pulled back
behind her. Her left arm was up under her back. Her left
hand was under her buttocks and actually sticking up
between her legs and her right arm was laid over on top of
her pubic area,” and “her left leg was picked up to the left
side also, bent at the knee.” One officer opined it
“appeared that someone had killed her and placed her in bed
and covered her up.” James’ fingernails had been clipped
very short, and twelve or thirteen nail clippings were
found in the drain of her bathtub. Detective Dan Reigstad
opined the nails had been cut postmortem; and pathologist
Janice Townsend-Parchman testified that, had the nails been
cut while James were still alive, it would have been “quite

In the back of James’ house, a bathroom window had been
broken out, dirt was found on the toilet seat, and items in
the area had been knocked over. Outside the bathroom
window, in the yard, were imprints from shoes, from which
castings were made. In the hallway of James’ house, leading
to her bedroom, was found a clump of hair consistent with a
patch of missing hair on James’ scalp; also in the hallway
was a diamond earring stud matching the stud found in her
left ear, apparently the stud missing from her right ear.

Police contacted Menefee the day James’ body was found.
Menefee agreed to accompany police to the station and be
interviewed. According to Detective Vanover, Menefee said
he knew that James was dead, but never asked officers what
had happened to her. Vanover described Menefee’s behavior
that morning as extremely nervous, though not upset or
distraught at the news of James’ death. “[Menefee] was
evasive, real short in his answers. He was visibly
shaking,” said Vanover of Menefee’s demeanor. Menefee told
Vanover that, on the night of Wednesday, January 14, he had
been home with his girlfriend Anita Owens, who had left his
place at 5:00 a.m. Thursday, January 15. Menefee
acknowledged having dated and having had a sexual
relationship with James, but denied harming her.

Initially, Owens corroborated Menefee’s story. Between her
initial statement to police following James’ killing,
though, and Menefee’s trial, Owens changed her story at
least twice. Her testimony at Menefee’s trial came while
she was under indictment for aggravated perjury,[fn5] and
the trial court admonished her that her testimony could be
used against her.

At trial, Owens said she was at Menefee’s house the evening
of January 14; she went to bed around 9:30 p.m., and
Menefee was still up playing video games. Around 2:00 a.m.
(January 15), Menefee telephoned Owens, asking her to pick
him up at the intersection of Birdsong and Mobberly in
Longview. From a map of the area introduced into evidence,
this intersection appears to be approximately six to eight
blocks from James’ house. The State introduced cellular
telephone records showing Menefee called Owens at 1:42,
2:37, and 2:38 a.m. January 15. Owens said that, when she
brought Menefee home, he carried a bag with him.

Craig Hawkes, at the time of James’ death, lived next door
to Menefee. On January 14, Menefee asked Hawkes if Hawkes,
around 10:30 p.m. that night, would give Menefee a ride to
Menefee’s mother’s house. Menefee had never asked Hawkes
for a ride before. Around 10:30 that night, Menefee came to
Hawkes’ door, dressed in a dark outfit and carrying some
kind of travel bag. Menefee told Hawkes that he was going to
his mother’s house because Menefee had had a fight or
trouble with his girlfriend. Hawkes thought it odd that
Menefee would leave his own house rather than have the
girlfriend leave. Hawkes also thought it odd that Menefee
did not have Hawkes drop him at a specific location, which
Hawkes offered, but rather at a street corner. Hawkes
testified he thought he dropped Menefee around the corner
of 12th and Raney. Raney does not appear on the maps
introduced in evidence. In the course of the investigation,
Hawkes took a detective to the intersection where he had
dropped Menefee. Detective David Cheatham testified that
intersection was about six houses north of James’ house.
Another map shows that 1114 Hutchings, home of Menefee’s
mother, is about 1.1 miles from James’ home.

The jury was presented with evidence that Menefee’s
fingerprints were found within inches of James’ body, on
the headboard of her bed. Menefee uncharacteristically
asked his neighbor to take him to within a block of James’
house at 10:30 at night, then later asked that neighbor not
to tell anyone he had given Menefee that ride. Although
Menefee claimed he had been with Owens all night on the
night of January 14-15, she testified she had previously
lied about being with Menefee, and in fact that he had
called her in the wee hours of the morning to pick him up
from the neighborhood of the murder.

Viewing this evidence in a light most favorable to the
prosecution, we find a rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt. The evidence is legally sufficient to
support the jury’s verdict.[fn6]

Menefee appropriately emphasizes the circumstantial nature
of the evidence in this case, and urges that there are
other reasonable potential scenarios in which Menefee was
not the killer. When the evidence suggests the existence of
a reasonable alternative hypothesis, the reviewing court
must consider it in our factual sufficiency analysis.
Harris v. State, 133 S.W.3d 760, 763-64 (Tex.App.-Texarkana
2004, pet. ref’d); Richardson v. State, 973 S.W.2d 384, 387
(Tex.App. — Dallas 1998, no pet.). The existence of
an alternative reasonable hypothesis may be relevant to a
factual sufficiency review, but the mere existence of such
hypothesis is not determinative. See Wilson, 7 S.W.3d at
141. The mere existence of an alternative reasonable
hypothesis does not render the evidence factually
insufficient; the standard of review remains the same.
Richardson, 973 S.W.2d at 387. A verdict may be overturned
only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Escamilla v.
State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). We cannot
reverse the verdict if reasonable minds could differ about
the conclusions to be drawn from the evidence. Scott v.
State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.).

Menefee points out that there was some evidence suggesting
the killer took steps to clean up the scene: there was
glass found in a wastebasket, which one detective, along
with Menefee’s trial counsel, speculated could have been
from the broken bathroom window. Police were not able to
positively identify the fingerprints found on an ammonia
bottle behind the kitchen sink, nor on a dustpan in James’
house. There was, however, still broken glass and dirt on
the bathroom floor and dirt on the toilet seat.

Menefee makes much of fingerprints on the dustpan and
ammonia bottle, saying these point to another perpetrator.
But Detective Reigstad testified the dustpan prints were
only “borderline” useable; he said some of the prints were
not useable. Further, this hypothesis presumes the killer
actually used the dustpan and ammonia bottle, for which
there is no support[fn7] in the record. Menefee’s
hypothesis that these unidentified fingerprints belonged to
the killer is not supported by any evidence.

Menefee posits the State should have obtained and conducted
DNA analysis on Ruben Mananita, James’ coworker, and Rodney
Frasier, whose name was found in James’ purse. He
criticizes the State’s failure to conduct comparisons of
castings of the shoe prints found outside the broken
bathroom window.[fn8] His defensive theory was to raise
inferences of other persons who could have committed the
murder, or to raise doubt that Menefee was the killer. But
nowhere does he point to any part of the record which could
be said to constitute evidence to support these hypotheses.
Police did compare Mananita’s and Frasier’s fingerprints to
those found in James’ house; none matched.

Menefee attacks the reasonableness of the time line
proffered by the State, wherein James’ whereabouts were
accounted for until about 1:00 a.m. Thursday, January 15.
Menefee relies on testimony from James’ neighbor, Betty
King, that another woman, Arnetta Simon, from King and
James’ neighborhood, had told King that Simon had seen James
on Thursday, January 15. Menefee does not, however, assert
that he made any attempt to get Simon’s testimony at trial.
This thirdhand allegation is hardly so contrary to the
overwhelming weight of the rest of the evidence as to
suggest that the verdict is clearly wrong and unjust.

Menefee also asserts that King said she twice sent her son
to put a note on James’ door on January 15 and 16. Other
witnesses[fn9] said that, when they went to the door of
James’ house the morning of the 16th, they saw no note. As
with the reported statement of Simon, this is at most a
conflict in testimony which, viewed in the context of all
the evidence presented, does not render the verdict clearly
wrong and unjust. The jury was free to weigh the evidence
and reconcile any conflicts. See Davis v. State, 147 S.W.3d
554, 557 (Tex.App.-Waco 2004, no pet.) (noting jury free to
disbelieve alibi testimony); Lebleu v. State, 192 S.W.3d
205, 210 (Tex.App.-Houston [14th Dist.] 2006, pet. ref’d)
(jury to resolve conflicts in testimony and evaluate
witness credibility).

Two batting gloves were found outside James’ house, one
stuck on top of a chain-link fence, one on the ground at
the base of the fence. There was testimony that one glove
had traces of DNA from two different people, neither of
whom was James or Menefee. Both gloves were examined for
traces of broken glass, without success.

James’ fingernails had been cut back very close, and as
many as thirteen nail clippings[fn10] were found in the
drain of her bathtub. The clippings were tested for the
presence of blood or other DNA samples other than that of
James, again without success.[fn11] Only one of the actual
nail clippings was tested, showing that it did indeed come
from James.

Although these various points may be seen as loose ends
surrounding James’ death, we cannot say that there exists
evidence, contrary to the conviction, so strong that the
standard of proof, beyond a reasonable doubt, could not
have been met, nor that the jury’s verdict is clearly wrong
and manifestly unjust. Escamilla, 143 S.W.3d at 817. The
evidence was factually and legally sufficient to support
the jury’s verdict.

(2) The Trial Court Did Not Err in Admitting Evidence of
Menefee’s Fingerprints at the Murder Scene

Menefee also complains the trial court erred in admitting
evidence of two of Menefee’s fingerprints found on James’
headboard. At trial, Menefee objected that he had not been
told until about four days before trial that Menefee’s
fingerprints were identified as the ones on the headboard.
He did not object that he did not receive notice the State
had fingerprint evidence, only that he was not told his own
prints were among those found.

Menefee’s trial on the merits began August 16, 2005.
Counsel for Menefee lodged an objection to the State’s plan
to introduce evidence that two of Menefee’s fingerprints
had been found on the headboard of James’ bed, where her
body was found. On March 10, 2005, the trial court had
signed a discovery order, approved by attorneys for Menefee
and the State, which had requested the defense be allowed
to inspect “[a]ll fingerprints, palm prints, foot prints,
shoe, tire, or other prints . . . which are related to the
case at bar, and alleged to have some relation to the
Defendant . . . or shall be used by the Stated [sic] in
trial on the merits of this case.”

We review the trial court’s decision to admit or exclude
evidence under an abuse of discretion standard. See Green
v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996);
Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.
1990) (op. on reh’g). We will not reverse a trial court
whose ruling was within the “zone of reasonable
disagreement.” Green, 934 S.W.2d at 102; Montgomery, 810
S.W.2d at 391.

We begin with the fact that Menefee was not denied
discovery of the State’s fingerprint evidence. While the
record is not entirely clear, it seems clear enough that
Menefee had been notified that part of the State’s evidence
included fingerprints. At the hearing where Menefee
presented his objection to the trial court, Menefee
characterized his objection as follows: “Well, our
objection now is that it was not adequately provided in
time for us to review the matter. It was not provided in
any detail other than the fact that a fingerprint existed
on the headboard prior to voir dire.” The State purported
to show the trial court a “lift log” of fingerprints from
the scene and where they were located. The trial court
stated, “So, [defense attorney]’s objection is that
although this was timely provided, the information as to the
match wasn’t given to him until Thursday of last week?”
Menefee’s attorney answered, “That is correct.”

Failure to effectuate discovery will not result in
reversible error unless it can be shown that the evidence
withheld would have affected the outcome of the trial in
the defendant’s favor. Butler v. State, 736 S.W.2d 668, 672
(Tex.Crim.App. 1987) (no error in failing to divulge to
defendant absence of fingerprints on knife) (citing Quinones
v. State, 592 S.W.2d 933 (Tex.Crim.App. 1980)). A defendant
does not have a general right to discovery of evidence in
the State’s possession. Quinones, 592 S.W.2d at 940; see
TEX. CODE CRIM. PROC. ANN. art. 39.14 (Vernon Supp. 2006).
A defendant’s right to discovery is limited to exculpatory
or mitigating evidence. Dickens v. Court of Appeals, Second
Supreme Judicial Dist. of Tex., 727 S.W.2d 542, 551
(Tex.Crim.App. 1987). Beyond that, the scope of discovery is
within the trial court’s discretion. TEX. CODE CRIM. PROC.
ANN. art. 39.14; Quinones, 592 S.W.2d at 940.

The State claims Menefee should have asked for a
continuance, rather than exclusion of the proffered
fingerprint evidence. There is support for this argument.
See Barnes v. State, 876 S.W.2d 316, 328 (Tex.Crim.App.
1994) (defendant claimed error because witness’ name not
furnished before trial, despite court order to do so; any
error in allowing witness to testify, over defendant’s
claim of surprise, rendered harmless by defendant’s failure
to move for continuance); Murray v. State, 24 S.W.3d 881,
893 (Tex.App.-Waco 2000, pet. ref’d) (statement from cell
mate wherein Murray confessed to crime obtained by State
5:30 Friday afternoon and faxed to Murray’s attorney at
6:00 p.m. Friday before Monday trial; to preserve complaint
that the late production of the statement resulted in
unfair surprise, Murray required to request trial court
continue the trial so he could review the newly-disclosed
evidence); see also Youens v. State, 742 S.W.2d 855, 860
(Tex.App. — Beaumont 1987, pet. ref’d) (citing
Hubbard v. State, 496 S.W.2d 924, 926 (Tex.Crim.App.

The trial court did not err in admitting evidence of
Menefee’s fingerprints found at the murder scene.

(3) The State Did Not Violate the Rules of Disclosure
Stated in Brady v. Maryland

Menefee complains the State violated the doctrine of Brady,
which mandates that the State is required to provide
potentially exculpatory information to the defense.[fn12]
See also Thomas v. State, 841 S.W.2d 399 (Tex.Crim.App.
1992). The Due Process Clause of the Fourteenth Amendment
to the United States Constitution is violated when a
prosecutor fails to disclose evidence which is favorable to
the accused and that creates a probability sufficient to
undermine the confidence in the outcome of the proceeding.
Id. at 404. Further, the information must be disclosed to
the accused in time to put it to effective use at trial.
See Palmer v. State, 902 S.W.2d 561, 563 (Tex.App.-Houston
[1st Dist.] 1995, no pet.). This includes disclosure of any
favorable information in the possession of police agencies
or other parts of the “prosecutorial team.” Ex parte
Mitchell, 977 S.W.2d 575, 578 (Tex.Crim.App. 1998) (citing
Kyles v. Whitley, 514 U.S. 419 (1995)). A reasonable
probability of a different result is shown when the
government’s evidentiary suppression undermines confidence
in the outcome of the trial. Kyles, 514 U.S. at 435.

Menefee’s complaint is that the State failed to develop
evidence that might have been exculpatory or that might
have supported a reasonable hypothesis of the guilt of
another. Menefee complains that castings of shoe prints,
found outside the bathroom with the broken window, and
presumptively the point of entry for James’ killer, were not
compared to shoes belonging to Menefee or Ruben Mananita, a
coworker of James who saw her the night she was killed and
who had a lunch date with her set for Friday, January 16.

Menefee, however, does not cite any authority saying the
State had a duty to do such investigation or analysis.
Menefee’s argument is that a possibility exists that, if
the shoe print castings had been compared to Mananita’s
shoes and if Mananita’s DNA had been submitted to the
Department of Public Safety crime laboratory, an
alternative, reasonable hypothesis of James’ killer might
have been produced. Menefee has not demonstrated or shown
any evidence which was known to the State but not Menefee
and that was favorable to Menefee. The purpose of Brady “is
not to displace the adversary system as the primary means
by which truth is uncovered, but to ensure that a
miscarriage of justice does not occur.” United States v.
Bagley, 473 U.S. 667, 675 (1985). “The mere possibility
that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the
trial, does not establish `materiality’ in the
constitutional sense.” Hampton v. State, 86 S.W.3d 603, 612
(Tex.Crim.App. 2002) (quoting United States v. Agurs, 427
U.S. 97, 109-10 (1976)). Rather, the inquiry is whether the
failure of the evidence’s disclosure undermines confidence
in the jury’s verdict. Lempar v. State, 191 S.W.3d 230, 241
(Tex.App.-San Antonio 2005, pet. ref’d) (citing Ex parte
Richardson, 70 S.W.3d 865, 870 n. 22 (Tex.Crim.App. 2002)).

Here, there has been no showing of any evidence that was
withheld. Brady does not impose a duty on the State to
provide facts known to or discoverable by the defendant.
See Havard v. State, 800 S.W.2d 195, 204-05 (Tex.Crim.App.
1989). The State has no duty to seek out exculpatory
information independently on the defendant’s behalf. Palmer
v. State, 902 S.W.2d 561, 563 (Tex.App.-Houston [1st Dist.]
1995, no writ) (“purpose [of Brady rule] is not to displace
the adversary system”) (quoting Bagley, 473 U.S. at 675)).
Further, a Brady violation does not arise if the defendant,
using reasonable diligence, could have obtained the
information. Westley v. Johnson, 83 F.3d 714, 726 (5th Cir.

Menefee cites Brandley as support for his argument that the
State’s “failure to develop evidence amounts to [a]
violation of due process.” See Ex parte Brandley, 781
S.W.2d 886 (Tex.Crim.App. 1989). Brandley involved the
State refusing to obtain and analyze DNA samples of other
individuals seen near the scene of the crime and
suppressing the fact that others were seen at or near the
scene around the time of the murder. The Texas Court of
Criminal Appeals concurred with the “trial court’s finding
that the State’s investigation was flawed.” Id. at 892.
Weighing the cumulative effects of the State’s poor
investigation and the totality of the circumstances
surrounding Brandley’s conviction, the court found a
violation of due process. Id. at 894. Menefee’s case is
distinguishable; there has been no finding of inadequate
investigation and no evidence the State affirmatively
misled Menefee or suppressed evidence. All of the evidence
and theories asserted by Menefee were available to him to
investigate at trial. Menefee has not demonstrated a
violation of the Brady doctrine or a deprivation of due

Menefee also claims error in the trial court’s denial of a
new trial on this basis. The granting or denying of a
motion for new trial lies within the discretion of the
trial court. We do not substitute our judgment for that of
the trial court, but rather decide whether the trial
court’s decision was arbitrary or unreasonable. Salazar v.
State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001); Lewis v.
State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). Based on the
foregoing discussion concluding the State did not have a
duty to investigate Menefee’s defense or argue it, the
trial court cannot be said to have abused its discretion in
failing to grant a new trial. (4) Admitting Victim’s
Hearsay Statements Did Not Affect Menefee’s Substantial

During the State’s case-in-chief, it presented the
testimony of James’ neighbor, Betty King. King testified to
about four statements made by James to King, regarding
James’ relationship with Menefee:

(a) James told King that James had been to Menefee’s
house where she found a woman (Owens), hiding in the
closet. The woman ran from the house when James discovered
her. James was upset and “real mad” and “angry” when she
told King about it, the day it occurred.

(b) James asked King to take James to Menefee’s house to
retrieve James’ car. At the time, James was “real upset”
and “very angry.”

(c) On or around New Year’s Eve 2003, about two weeks
before her death, James told King she’d broken up with
Menefee. King described James as “a little mad” at that

(d) On January 4, 2004, James came to King’s home to use
the telephone. James called Longview police and told them
Menefee was sitting on her porch. King said that, while
this happened, James was not crying but was upset and
appeared frightened.

Menefee complains these statements did not properly fall
within any hearsay exception.[fn13] We review the trial
court’s decision to admit or exclude evidence under an
abuse of discretion standard. Green, 934 S.W.2d at 101-02;
Montgomery, 810 S.W.2d at 379-80; see also Wall v. State,
184 S.W.3d 730, 743 (Tex.Crim.App. 2006) (trial court’s
admission of evidence under excited utterance exception
reviewed for abuse of discretion).

We note, at the outset, that only two components of the
four referenced bits of testimony contain hearsay. In item
(a), the information that James had seen, hiding in a
closet in Menefee’s house, a woman who ran when discovered,
and in item (c), the information that James had broken up
with Menefee, are the hearsay elements.

Hearsay testimony regarding the declarant’s emotion or
“mental feeling”[fn14] is admissible so long as it does not
include a statement of memory or belief to prove the fact
remembered or believed. See Glover v. State, 102 S.W.3d
754, 762-63 (Tex.App.-Texarkana 2002, pet. ref’d)
(statements not admissible under Rule 803(3) because they
went beyond statements of declarant’s emotional state to
describe past acts). In Salazar v. State,[fn15] hearsay
statements of two counselors were deemed properly admitted.
The statements referred to comments made by child sexual
assault victims who described feeling angry, afraid,
frightened, alone, and helpless. The Fourteenth Court of
Appeals held these statements to be admissible under Rule
803(3). Salazar, 127 S.W.3d at 362-63. Also cf. Martinez v.
State, 17 S.W.3d 677, 688 (Tex.Crim.App. 2000) (declarant’s
statement she was afraid fit exception in 803(3)). In
McDonald v. State,[fn16] the court found that the wife’s
statement to her mother that she had changed the locks at
her home to protect herself from her husband was admissible
as a “mental feeling,” namely, fear; and thus was properly
admitted under Rule 803(3). Under Rule 803(3), a witness is
allowed to testify that a person was afraid of another
person because such testimony would be considered a mental
or emotional condition of the victim. Buhl v. State, 960
S.W.2d 927, 932 (Tex.App.-Waco 1998, pet. ref’d).

But it is not permissible to admit hearsay evidence
regarding facts that reveal why the person was afraid.
Skeen v. State, 96 S.W.3d 567, 576 (Tex.App.-Texarkana
2002, pet. ref’d) (statements of victim that defendant had
been partying, tearing things up, and smoking marihuana,
are beyond the mental or emotional condition exception);
Buhl, 960 S.W.2d at 933 (distinguishing between statements
showing mental or emotional condition of fear, and such
statements being offered to prove truth that victim had
pulled guns on defendant); see also Pena v. State, 864
S.W.2d 147, 149 (Tex.App.-Waco 1993, no pet.) (testimony
victim wanted to leave defendant but felt economically
trapped was offered to show victim’s state of mind, not to
prove truth of victim’s statements); Williams v. State, 927
S.W.2d 752, 764-65 (Tex.App. — El Paso 1996, pet.
ref’d) (victim’s statements to her mother regarding fear
husband would hurt mother or daughter revealed only state of

While the conduct and statements of James, as related by
neighbor King, can be characterized as statements revealing
James’ mental or emotional condition,[fn17] there are also
hearsay elements that at least arguably are beyond the
mental or emotional condition exception. But, because any
error in their admission would not have affected Menefee’s
substantial rights, we need not determine whether the
admission of any portion of the challenged testimony was

The import of the hearsay components in the challenged
testimony — James finding a woman in Menefee’s
closet, the woman running away when discovered, and James
and Menefee breaking up — was essentially that the
relationship between James and Menefee was strained or
broken. That import was already in the record, even without
the hearsay testimony. Menefee, himself, in a videotaped
interview placed before the jury, admitted that he and
James had had recent difficulty in their relationship and
that he had been told, about two weeks before James’ death,
that James did not want to see him and that he should let
things “cool off.” We conclude that admitting the
challenged hearsay testimony, even if error, did not affect
Menefee’s substantial rights. Therefore, any such error
must be disregarded. See TEX. R. APP. P. 44.2(b).

We affirm the trial court’s judgment.

[fn1] 1373 U.S. 83 (1963).

[fn2] Menefee’s first four points of error assert that (1)
the evidence was legally insufficient under state law, (2)
the evidence of motive was insufficient to support a
conviction, (3) the evidence to convict was legally
insufficient under federal law, and (4) the evidence was
factually insufficient under state law. Regarding point two,
it is not necessary that the evidence establish a
conclusive motive for murder. Smith v. State, 965 S.W.2d
509, 519 (Tex.Crim.App. 1998). We construe point three as a
claim that the evidence is insufficient to meet the
requirements of Jackson v. Virginia, 443 U.S. 307 (1979).
Otherwise, as all these points complain of the sufficiency
of the evidence, they will be addressed together.

[fn3] Notwithstanding that broad range for the possible time
of death based on the condition of the body, James had been
alive and at work the evening of January 14. Therefore, she
could not have been dead many days.

[fn4] Neighbor Betty King said she had been in James’ house
about three times and found James to be a “very neat”
housekeeper and it was “very unusual . . . wasn’t like her”
to have one of the carpet runners in the hallway kicked up;
Detective Kirk Haddix, describing his first entrance to
James’ home, said, “[t]he house is pretty neat. It looks to
be fairly clean.” Detective Seth Vanover said, “[t]he house
was really clean,” and “[t]o be a homicide scene it’s
awfully clean. It had been picked up.” Vanover said that,
while he knew Menefee had been in James’ house before, he
did not expect to find Menefee’s fingerprints “[b]ased on
how clean the house was, the way she kept it.”

[fn5] Owens admitted lying to the grand jury which indicted
Menefee. Originally, Owens told police she had been with
Menefee at his house from about 5:00 p.m. January 14 to
about 5:00 a.m. January 15. Later, to the grand jury, she
altered her story and said she had gone to Wal-Mart about
1:30 a.m. to buy sleepwear and tampons. The State countered
with testimony from a Wal-Mart employee, with register
receipts and records, showing no such sales had occurred at
the time Owens claimed to have made her purchase.

[fn6] As regards Menefee’s arguments that there were
alternative reasonable hypotheses pointing to another
person being the killer, the Texas Court of Criminal
Appeals has rejected the reasonable hypothesis construct as
a measure of legal sufficiency. See Wilson v. State, 7
S.W.3d 136, 141 (Tex.Crim.App. 1999); Geesa v. State, 820
S.W.2d 154, 161 (Tex.Crim.App. 1991).

[fn7] Or at best, inferential support: although shards of
glass were found in a wastebasket, there was no evidence
this glass was from the broken bathroom window, or that the
dustpan had been used to gather the glass.

[fn8] Menefee’s videotaped interview conducted by the police
the day James’ body was found, and before Menefee was
arrested, shows Menefee agreeing to provide his shoes for
comparison with the footprints outside the bathroom window.
It does not appear the police ever did that comparison.

[fn9] James’ brother, who discovered her body; Ruben
Mananita, who knocked on James’ door the morning of January

[fn10] At one point, the clippings were referred to as
“particles,” which might explain why there seem to have
been more clippings than James had fingers.

[fn11] In the noncustodial videotaped interview, Menefee
complied with the police request to raise his shirt on
camera, demonstrating he had no visible scratches on his

[fn12] Brady, 373 U.S. at 87.

[fn13] The State initially offered the statements under the
authority of Article 38.36 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.36
(Vernon 2005). Following argument, objections, and
reconsideration, the trial court admitted the testimony as
either excited utterances or statements of then-existing
emotional, physical, or mental conditions. Article 38.36,
however, “in no way broadens or otherwise affects the rules
of evidence which apply, or the way in which they apply in
any given homicide case.” Bush v. State, 958 S.W.2d 503,
505 (Tex.App.-Fort Worth 1997, no pet.) (quoting Fielder v.
State, 756 S.W.2d 309, 318 (Tex.Crim.App. 1988)). The State
therefore had the burden to show that these statements
qualified under an exception to the hearsay rule, to the
extent they were hearsay.

[fn14] The trial court’s ruling was that, “I think these
fall under these exceptions under 803 — two and
three. If that’s the basis of your objection I do agree
with you, they have to have an independent basis for their
admissibility other than 38[.]36, but I think the State’s
established that.” The trial court did not specifically
state its decision was based on either excited utterance or
then-existing mental condition; however, the basis of the
court’s ruling is irrelevant to our determination. If a
trial court’s decision to admit certain testimony is
correct on any theory or law applicable to the case, we will
uphold its decision. Romero v. State, 800 S.W.2d 539, 543
(Tex.Crim.App. 1990) (en banc).

[fn15] 127 S.W.3d 355 (Tex.App.-Houston [14th Dist.] 2004,
pet. ref’d).

[fn16] 911 S.W.2d 798, 806 (Tex.App.-San Antonio 1995, pet.

[fn17] Having come from Menefee’s house where James found a
woman hiding in a closet, King described James as “real
angry” and “upset.” King said she could “tell in [James’]
voice she was hurt.” King said James related the incident
to her the day of its occurrence. King said about a week
later, James came to King’s house asking a favor. James
asked King to take James to Menefee’s house to retrieve
James’ car. King described James as “real upset” and “very
angry that day.”

About a month later, on New Year’s Eve, shortly before
James was killed, King said she “could tell in [James’]
voice that she was a little mad” when she told King that
James had broken up with Menefee. “[James] was the type
person she never just let on — you had to ease in
the conversation to ask her something,” King explained.
Finally, on January 4, James came to King’s house to use
the telephone. James had discovered Menefee sitting on
James’ porch. King said James was “upset” and “appeared to
be scared because [James] said she came out the side window
and ran around to the back of the house to come” to King’s.