Court of Appeals of Texas, Second District, Fort Worth
[Copyrighted Material Omitted]
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY. HON. ROBERT BRUCE MCFARLING.
FOR APPELLANT: WM. REAGAN WYNN, KEARNEY WYNN, FORT WORTH, TX.
FOR STATE: PAUL JOHNSON, CRIMINAL DISTRICT ATTORNEY, CHARLES E. ORBISON, CARY PIEL, SUSAN PIEL, ASSISTANT CRIMINAL DISTRICT ATTORNEYS, DENTON, TX.
SUE WALKER, JUSTICE.
A jury found Appellant Charles Stobaugh guilty of the offense of murder for causing the death of Kathy Stobaugh and assessed his punishment at 25 years' confinement; the trial court sentenced him accordingly. The State contended at trial that the murder occurred on December 29, 2004, the date that Kathy disappeared. Charles perfected this appeal, raising six points. His first point challenges the sufficiency of the evidence to support his conviction; he points out that Kathy has never been located--dead or alive, either during the seven years before his 2011 trial or since--and contends that no physical, forensic, or direct evidence was presented at trial linking him to the alleged offense of murder. That is, there is no body, no murder weapon, no witnesses, and no blood or DNA evidence; there are no fibers or hairs or any type of forensic evidence establishing that a murder occurred or linking Charles to a murder; and there is no confession or directly incriminatory statement by Charles. Charles argues that the circumstantial evidence presented by the State at trial is insufficient to establish beyond a reasonable doubt that he acted with the requisite mens rea to commit the offense of murder. Charles argues that insufficient evidence exists that he committed any act directed toward Kathy on or about December 29, 2004, much less that, " with intent to cause serious bodily injury to an individual, namely Kathy Stobaugh, [he] commit[ted] an act clearly dangerous to human life that caused the death of said Kathy Stobaugh, by manner and means unknown," as alleged in the indictment, or that he intentionally or knowingly caused Kathy's death by a manner and means unknown as alleged in the indictment. We hold that, viewed in the light most favorable to State, the cumulative force of the circumstantial evidence and any reasonable inferences from that evidence that could be considered incriminating are insufficient to convince any rational factfinder beyond a reasonable doubt that Charles acted with the requisite mens rea necessary to support his conviction for murder. Accordingly, we sustain
Charles's first point and render a judgment of acquittal.
II. The Facts Presented at Trial
A. The Family
Charles and Kathy married in 1984. Their daughter Charee was born in 1988, and their son Tommy was born in 1991. Before Tommy was born, the family purchased a farm and approximately 105 acres of land just outside Sanger, Texas. The farm was their home until Kathy left Charles in 2004. They planted a family garden every summer. They raised and harvested various crops. In addition to the family's house, there were several barns and outbuildings on the farm and several pieces of large farm equipment.
Kathy grew up in Gatesville and has two brothers, Mark Munday and Chris Munday; Mark is the oldest, then Kathy, then Chris. Charles has two brothers: Tim Stobaugh and Toby Stobaugh. Charles is the oldest, then Tim, then Toby. The Stobaugh brothers grew up on a dairy farm in Cooke County; their mother Helen still lived there at the time of trial.
B. Charles and Kathy's Marriage and Separations
In 1989, after Charee was born, but before Tommy was born, Kathy filed for divorce and left Charles. She did not tell Charles where she was going; she lived with her brother Chris for a few days, stayed with her mother and father in Gatesville for a few days, and then lived in Chilton in a rent house that was owned by her brother Mark. Kathy and Charles reconciled, and later that year Tommy was born.
In 2002, Kathy worked at North Central Texas College (NCTC). She told at least one co-worker, Toni Evans, that she was going to complete her college degree, get a job, and divorce Charles. Toni agreed that Kathy had been planning the divorce for two years prior to leaving Charles in 2004. During the next two years--prior to September 2004--Kathy graduated from college with a degree in education, rented a house in Sanger, bought all new furniture for the rent house, took half (approximately $39,000) of the money in the couple's bank account, bought appliances for the rent house, filed for divorce, had Charles served, moved into the rent house, and obtained a job as a kindergarten teacher in Nocona.
In connection with Kathy's filing for divorce, Charles was served with notice of a hearing, an original petition, and a temporary restraining order. The hearing never occurred because Kathy told her lawyer that she was going to try to work out the terms of the divorce with Charles. Charles did not file an answer.
After Kathy rented and furnished the house in Sanger, Charee--who could drive--and Tommy traveled freely between the two households; they could " show up anytime." There was no court-ordered visitation schedule. The rent house was less than a ten-minute drive from the farm.
All through the summer of 2004, Charee never told anyone that her parents were separated or getting a divorce. Charee testified that she did not feel it was her place to say anything about it.
Charee testified that, during a typical day in the summer of 2004, she and Tommy would spend their days at the farm because there was more to do there. Tommy had a dirt bike, there were three-wheelers to ride, and Tommy enjoyed the farming activities. Charee and Tommy usually went to Kathy's rent house for dinner and to spend the evenings because Kathy was a better cook than Charles, because Kathy's house had cable and high-speed Internet service, and because Charee and Tommy had big screen televisions in their bedrooms at Kathy's house. Charles's house at the farm had only an old box television with an antenna attached to it. Charee testified that she and Tommy also enjoyed having pizza delivered at the rent house because the pizza places did not deliver to the farm.
In the fall of 2004, after Tommy's football season was over, the usual daily schedule followed by Charee and Tommy was as follows: they would spend nights with Kathy; Kathy would leave for her work as a kindergarten teacher in Nocona at about 6 a.m.; and Charee would get up later and drive herself and Tommy to school. After school, Charee and Tommy would go to the farm, do their homework, and " mess around outside." Charee said that she would drive herself to the rent house later, after Kathy got home from work. Charles would bring Tommy over to the rent house later--either before dinner or sometimes on his way to his job as a machine operator on the night shift at Tetra Pak. Charee said that Kathy often took Tommy--who was thirteen and could not drive yet--out to the farm. Charee said that Kathy was out at the farm two to three times per week. Linda Janoe, one of Kathy's closest friends and a former co-worker, testified that Kathy allowed Tommy to go to the farm every day.
Charee testified, and Charles said in his statements, that he never set foot in Kathy's rent house because he believed that the restraining order served on him with the divorce papers prohibited him from being anywhere near Kathy's house.
By September 2004, Kathy had taken no further action concerning the divorce. That month, Kathy's attorney sent her a letter asking about the status of the divorce because she had not heard from Kathy since June. Kathy communicated with her lawyer the week after Christmas 2004 and indicated that she wanted to finalize the divorce that week. Kathy went to her lawyer's office for an appointment on December 28, 2004, and her lawyer explained that Kathy needed to determine how she wanted to divide the assets and that they could then obtain a default judgment because Charles had not filed an answer. They planned to meet at the courthouse on the morning of Thursday, December 30 to obtain the default divorce judgment. Kathy communicated her proposed asset division to her attorney's office on December 29, 2004, via an email sent at 11:17 a.m.
Linda Janoe testified that she had spoken with Kathy on either Monday, December 27 or Tuesday, December 28 and that Kathy had told her Charles had finally agreed to the divorce. Kathy had called Linda and relayed to her the conversation she had with Charles concerning the divorce:
he was going to agree to it and wanted to sell everything and split the money. Linda said that this was a change of position by Charles because he had always indicated that he wanted the land and did not want the divorce. Linda said that Kathy was not excited about selling the land and wanted to keep it because Tommy loved the farm. Kathy considered Charles's proposal to just sell everything and split the money, and in a conversation with Linda on Wednesday, December 29, Kathy told Linda that she had decided that she was going to do it a different way--she would keep the land for Tommy and split everything else down the middle.
C. Evidence that Kathy Was and Was Not Afraid of Charles
Mark Munday testified that once in 1989 when Kathy was separated from Charles and living in Mark's rent house in Chilton, she called Mark and asked him to come over because Charles was coming to visit her. Mark said that Kathy wanted him to be there while she talked with Charles because " she was afraid of him." While Mark was there, Charles and Kathy talked, and Charles left without incident.
Toni Campbell, a kindergarten teacher who taught at the same school as Kathy and had known Kathy approximately three and one-half months prior to Kathy's disappearance, testified that Kathy had expressed to her that she felt very afraid of, very skittish of, and very uncomfortable with Charles. Toni had never met Charles.
Linda Janoe testified that based on one conversation she had with Kathy about her marriage, Linda felt " very afraid" for Kathy. Linda never met Charles but once saw him across the room at a going-away luncheon held for Kathy when she left her job at NCTC to return to school full-time.
Keith Jones went to high school with Kathy. They stayed in touch on and off through the years after high school. In 2004, they spoke occasionally via cell phone. He said that Kathy told him she was not happy with the position that she was in and that she was scared something might happen to her.
Charee testified that up until Charles was served with the divorce papers, he was unaware that Kathy had rented a house in Sanger. Before Charles was served with the divorce papers, Kathy had already rented the house in Sanger, she and Charee had already picked out furniture and things for the rent house, and Charee had already been to the rent house. Before Kathy had Charles served with the divorce papers, she moved the guns in the house at the farm to a different location in the house. Kathy instructed Charee that if Charee was at the farm when Charles was served, Charee should take Tommy and go to the rent house. Charee was at the farm when Charles was served. Charles became angry and started yelling; Charee took Tommy and drove to the rent house. Kathy later called Charee and told her to come back to the farm; at that point, Kathy, Charee, and Tommy packed up the items they wanted to move from the farm to the rent house.
Charee, Kim Munday, and Linda Janoe all testified that Kathy continued to go to the farm after she filed for divorce and moved into her rent house. Kim explained that Kathy planted a garden every summer and canned fruits and vegetables and made jams every year. Charee testified that while she lived in the Sanger rent house with her mother, Kathy went to the farm two to three times a week to take care of the garden and also to help with the farm's harvests. During harvests, Kathy would usually drive the truck or the grain truck. Concerning the garden, they
all helped pick the corn, the blackeyed peas, the tomatoes, and the beets. Kathy was the one who canned. In the summer of 2004, Kathy canned at the farm instead of taking all of the canning utensils back to her rent house. Also at the end of the summer of 2004, Kathy, Charee, and Tommy helped Charles put up the crops.
The family spent the 2004 Fourth of July holiday together at the home of Charles's mother, Helen Stobaugh. And they celebrated Tommy's thirteenth birthday together in July 2004. A video taken at Tommy's birthday celebration and played for the jury shows the family interacting amicably.
Charee testified that she never saw Kathy act afraid of Charles and that she never saw Charles hit Kathy. Charee said that one time, after Kathy slapped Charles across the face, she saw Charles grab Kathy's arms, hold them down, and then walk away. Charee said that Charles does not drink; she had never seen him drink an alcoholic beverage, and he had never cursed in front of her.
Linda Janoe and Charee testified that in the fall of 2004, after Kathy had filed for divorce and moved into her rent house, she invited Charles to accompany her, Charee, and Tommy to the State Fair--Kathy had received four free tickets at school. The family attended the 2004 State Fair together and did all of the " usual things."
Charles always maintained the family's automobiles; Charee and Linda Janoe testified that, even after Kathy filed for divorce, Charles continued to perform maintenance on Charee's and Kathy's vehicles, including changing the oil in Kathy's car. Linda Janoe testified that Charles and Kathy were civil to one another; Kathy had a key to the farm and would borrow Charles's tools.
Charee testified that her mother would periodically go to the farm to discuss the divorce with Charles. She said that this typically happened in the evenings and that she and Tommy stayed at the Sanger rent house and did not accompany their mother. Charee said that she assumed that her parents did not want her and Tommy around while they talked about the divorce. Charee said that Kathy never expressed any concern about going to the farm. Charles never changed the locks at the farm after Kathy moved out; Kathy and Charee came and went from the farm as they pleased. Charles would frequently be there when Kathy went to the farm.
D. Kathy's Secret Videotape
Kathy disappeared on December 29, 2004. Two months later, in February 2005, the Munday family collected and boxed up all of the things from Kathy's rent house and put them in storage. Kathy's younger brother Chris testified that they found Kathy's secretly recorded videotapes when they gathered up the things in the rent house; he watched them and turned them over to the State in April or May 2005. One of the videotapes, which was marked at trial as State's Exhibit 15, was admitted into evidence at trial.
State's Exhibit 15 was recorded at the farm on the morning of April 10, 2004--a little over a month before Kathy filed for divorce--after Charles came home from
his 11 p.m. to 7 a.m. shift at Tetra Pak. The video recorder was set up with a view of Charles's chair at the kitchen table; the kitchen is visible in the background.
Chris said that he had watched the video and explained that it " was like a camcorder video that she [Kathy] had been recording" and showed " Kathy and Charles arguing." Charee explained that the night before the events depicted in the video, she had wrecked her car, so she was eavesdropping in on her parents' conversation to try to hear what her punishment would be. During the video, at times when Charles was not present, Kathy picked up and moved the camcorder to different locations and stopped and started it.
The video was played for the jury. After a discussion of Charee's automobile accident, the video depicts Kathy bringing up a variety of complaints to Charles with, as Charee testified, " no transfer to another conversation." Kathy complained that Charles would not pay $400 to get " my car" painted, but Charee testified that Kathy's car was a white Lincoln Towncar, not the car she was calling " my car." Kathy repeatedly asked Charles, " Where have you been? Where have you been?" She repeatedly stated, " What about me, what about me," without connecting it to any issue or conversation. And she asked Charles, " What's more important to you, money or family?" Charles responded, " Family." On the videotape, Kathy complained that she and Charee should not have to go with Charles to pick up Charee's damaged car from a wrecker service because Charles had not helped her pick up her chair or her grill; Charee testified that the chair and grill had nothing to do with the conversation.
Charee testified that she had no idea why her mom would be videotaping her dad. Charee said that she was sure her dad was not aware he was being videotaped because he is a modest person and on the video he undresses down to his underwear in preparation to go to sleep after working the 11 p.m. to 7 a.m. shift at Tetra Pak. Kathy never told Charee that she was secretly recording videos in the house.
E. Kathy's Boyfriend, High School Reunion, and Unknown Callers
Kathy knew Rocky Underwood from high school. Through the years after high school, Kathy maintained contact off and on with Rocky, who was, in 2004, a funeral director in Haskell, Texas. In 2004, Rocky lived alone in a large rent house in Haskell. Kathy and Rocky would talk and occasionally meet for lunch if Rocky was in the area.
After Kathy separated from Charles, she and Rocky talked and met a lot and, according to Rocky, decided to " carry the relationship a little farther." During the summer of 2004, they met in Graham and went to a restaurant and a hotel. Two weeks before Kathy disappeared, on the weekend of December 5, 2004, after completing a teacher workshop in Wichita Falls on Friday afternoon, Kathy went to Haskell and stayed Friday and Saturday nights with Rocky. Rocky testified that their plan for the future of their relationship was to just see each other when they could and see what happened.
Kathy's cell phone records show that before she disappeared on the evening of December 29, 2004, she called Rocky at 5:07 p.m. on December 28, 2004, and the call lasted only one minute. She called him again at 5:32 p.m. on December 28, 2004, and the call lasted two minutes. And she called Rocky a third time at 7:39 p.m. on December 28, 2004, and the call lasted three minutes. Rocky testified at trial that he did not remember the phone calls and did not remember whether he responded. Four emails between Rocky
and Kathy were introduced into evidence. One was sexually explicit.
Texas Ranger Tracey Murphree--who interviewed Charles after Kathy's disappearance and was the State's primary witness at trial--was aware in 2005 of Kathy's sexual relationship with Rocky and was aware in 2005 that Kathy had made three phone calls to Rocky on December 28, 2004, the evening before she disappeared, but did not consider Rocky a suspect.
After Charles was indicted in November 2009, Ranger Murphree and law enforcement obtained employment records documenting Rocky's whereabouts on December 29, 2004. At trial, the State questioned Rocky about records from the funeral home, establishing that there was a viewing in Haskell at the funeral home from 5:00 to 9:00 p.m. on December 29, 2004. Rocky testified that he was in Haskell at the funeral home attending to that viewing on the evening of December 29, 2004.
None of Kathy's family, friends, or confidants, who were called as witnesses by the State, knew of Kathy's intimate relationship with Rocky. Linda Janoe testified that in a conversation with Kathy on December 28 or 29, 2004, she learned that an old high school boyfriend of Kathy's wanted to meet up with her.
Prior to November 2004, Kathy had helped locate and contact her former high school classmates to invite them to their twenty-fifth high school reunion in Gatesville. Kathy was in touch with a lot of her high school classmates during this time. She stayed with her brother Mark and his wife Kim in Gatesville when Kathy attended her high school reunion in November 2004. Kathy and Charles had not lived together since May 2004, and Charles did not attend the reunion with Kathy. Linda Janoe testified that Kathy's high school reunion was in November 2004, approximately one month before Kathy disappeared, and that Kathy had reconnected with individuals at the reunion and had talked to a few old boyfriends and to one in particular.
Charee testified that when she was living with her mom at the rent house, she frequently answered the house phone, a land-line. Charee said that there were occasions when men called on the land-line asking for Kathy; Charee did not recognize their voices. Charee would give the phone to Kathy, and Kathy would usually take the phone into her bedroom to talk. Charee said she did not think anything of this. She just thought Kathy wanted a private conversation.
F. Statements and Testimony about the Evening of December 29, 2004
December 29, 2004 was a Wednesday. That Friday was December 31, New Year's Eve; that Saturday was January 1, 2005. Nocona ISD was closed that week for the Christmas holiday. Kathy drove her white Lincoln Towncar from her rent house in Sanger to the farm on the evening of December 29; she called Charee's cell phone at 9:17 p.m. that night, apparently on her way to the farm. Charee did not answer, and Kathy did not leave a message. Although Kathy's car was parked at the farm on the morning of Thursday, December 30, 2004, she was not there. Kathy was never seen nor heard from again.
There was no evidence of violence or of a struggle at the farm. No forensic evidence or direct evidence was ever located at the farm or anywhere else indicating that a murder had occurred. Kathy's car was confiscated by law enforcement, and the FBI ran tests on it; no forensic evidence that could be related to a murder was found. The other cars at the farm were likewise processed by the FBI for forensic evidence that might be related to a murder, but none was found.
The following witnesses gave the following testimony, statements, or both concerning the events that occurred on the evening of December 29, 2004.
1. Charee's Statement
Sixteen-year-old Charee went to the Sanger Police Department at 4:30 p.m. on January 3, 2005, to report her mother missing. She met with Sanger Police Officer Josh Vest. Officer Vest generated a missing person report while he spoke with Charee; Charee checked the box indicating that her mother was missing under circumstances indicating that the disappearance was not voluntary. Charee made an oral statement to Officer Vest and later, at the Stobaugh farm, made a hand-written statement. Officer Vest testified that Charee's verbal and written statements were consistent.
Charee's written statement was made at 11:10 p.m. on January 3, 2005--seven hours after she went to the Sanger Police Department to report her mother missing. Charee indicated that on the evening of December 29, 2004, she went to a friend's house to watch a movie. She got home around 1:30 a.m. on the morning of December 30, 2004, and saw that her mom was not home; she woke her little brother, Tommy, and asked him where their mother was. He said that she had gone to their father's house to discuss the divorce. Charee said that she went to bed, woke up at 7 a.m., and drove to her dad's house; she saw her mom's car parked there, she assumed that her mom was there too, and she drove back home to sleep some more. She returned to her dad's house at 9 a.m. and saw him standing outside. Her dad told her that Kathy had been there the previous evening but had left; when he woke up, Kathy's car was parked in the driveway but Kathy was not there. Charee wrote in her statement that her mom's friend Linda and her Aunt Kim had called her saying that they had tried to call her mom but that their calls went straight to voice mail. Charee ended her written statement saying that she figured her mom wanted time to cool off by herself, that she did not think anything of it, and that she had called her mom's cell phone periodically to try to reach her.
2. Tommy's Statement
Twelve-year-old Tommy made a written statement on January 4, 2005, at 12:12 a.m., about an hour after Charee wrote her statement. Tommy was at the farm when Officer Vest had him write his statement. Tommy's statement is short, so it is set forth in its entirety below:
My Dad had brought me to my moms [sic] house so he could talk to her about what the lawyer had to say about what was going to happen. I went in and sat down and she said hi and I said hi. Then I asked her if I could was [sic] the dog in the bathtub. Then the phone rang and she talked to my dad. Then wile [sic] I was in the bathroom with the dog my mom said I'll be back and I said bye. After the phone had rung she
started to get some paper work out and started to hum. After that she left and came over here. The last time I saw her.
3. Officer Vest's Testimony
After Charee filed the missing person report with Officer Vest, he asked Charee for the phone numbers of people to contact. Charee gave him the names of Linda Janoe, Toni Campbell, Mark Munday, Mr. and Mrs. Munday, Chris Munday, and Charles. Officer Vest called and spoke with several of these individuals, some of whom expressed concern for Kathy and said that she was going through a divorce. Officer Vest decided that he needed to follow up on the information he had received and to go talk to Charles. He radioed dispatch and requested that a Denton County sheriff's deputy meet him at the Stobaugh farm because it was located in unincorporated Denton County, not within Sanger's city limits. He arrived at the farm around 6:30 to 7:00 p.m. on January 3, 2005, and Denton County Sheriff's Deputy Gibbons met him at the Stobaugh farm.
Officer Vest testified that he saw Kathy's car parked at the residence. Charles seemed calm and " didn't seem too excited about his wife not being anywhere we could locate her." Officer Vest recorded his interview of Charles with his dash-mounted video camera and body microphone. He said that he tried to end his conversation with Charles several times but that Charles kept " going into an explanation of what could have happened."
After Officer Vest finished his recorded conversation with Charles, he got into his patrol car and made two calls: one to Larry Kish, an investigator with the Denton County Sheriff's Office, and one to Texas Ranger Tracey Murphree. Officer Vest met with Investigator Kish and Ranger Murphree later in the evening on January 3, 2005; they went to Kathy's rent house. Nothing in Kathy's rent house indicated that she had left for more than a few minutes. The trio then went back to the Stobaugh farm where Officer Vest obtained Charee's and Tommy's written statements.
Because Charee had indicated in her statement that both Linda Janoe and her Aunt Kim had called her to report that their calls to Kathy's cell phone were going straight to voicemail, meaning that Kathy's cell phone battery must be dead, Ranger Murphree obtained Kathy's cell phone code from Charee and retrieved the missed calls from Kathy's phone. As Ranger Murphree listened to the calls, he called them out to Officer Vest, who wrote them on a scrap of paper. There was a saved call from Kathy's attorney's office canceling an appointment on December 20 and rescheduling it to December 28. Then there were the following missed calls in the following order: two calls from Charee, one call from a realtor named Jennifer Hunter, a call from Kathy's mother--Jeanne Munday, a call from Linda Janoe, another call from Jeanne Munday, two more calls from Charee, another call from Linda Janoe, two more calls from Charee, another call from Jeanne Munday, a call from Kim Munday, another call from Charee, and a call from Toni Campbell.
Around midnight on January 3, Officer Vest, Investigator Kish, Ranger Murphree, and two or three Sanger police officers conducted a search for Kathy at the Stobaugh farm. They searched for a couple of hours. They did not find Kathy and did not find any evidence of any crime. The evening of January 3, 2005, was Officer Vest's last night of investigation on the case; Investigator Kish and Ranger Murphree took over.
4. Ranger Murphree's Testimony
Ranger Murphree testified that he became involved in the investigation of Kathy's disappearance on January 3, 2005. Ranger Murphree met Investigator Kish, Officer Vest, and Charee at Kathy's rent house. In Kathy's house, he did not see any evidence that she had left for a long time; nothing appeared to be missing, like her clothes, her makeup, or her toothbrush. The kitchen table was cluttered with papers--" school teacher" items. He found a black organizer on the kitchen table containing notes about Kathy and Charles's divorce proceedings. One page indicated that Kathy was scheduled to meet with her lawyer on December 28 to talk about a default judgment and another page had four property division options with a box that could be checked by each choice. The paper appeared to have been typed on a computer and printed off. Ranger Murphree pulled out this page and took it with him to question Charles with.
Ranger Murphree decided that he wanted to talk to Charles himself, so he drove back to the farm. Charles had gone to work. Ranger Murphree was driving to Charles's place of employment at Tetra Pak when he received a call that Charles had arrived home at the farm. Ranger Murphree and Investigator Kish asked Charles if he would be willing to go to the Sanger police station and make a statement. Charles agreed. Charles drove his car to the station, where Ranger Murphree and Investigator Kish conducted a three-hour interview, commencing at 1:02 a.m. and concluding at 3:58 a.m. on January 4, 2005.
Ranger Murphree and Investigator Kish later returned to the Stobaugh farm to search for Kathy. Charee told them that she, Charles, and Tommy had already searched and did not find anything. Ranger Murphree and Investigator Kish also later returned to Kathy's rent house where they conducted a more thorough search. Kathy had two computers at the house--one desktop and one laptop. Ranger Murphree and Investigator Kish did not confiscate Kathy's computers.
Ranger Murphree conceded that Kathy had never been found and that no murder weapon had ever been located. But Ranger Murphree testified that he came to his theory of the case as to how Kathy disappeared on January 3 or 4, 2005. During Ranger Murphree's testimony, he explained that the photos of the Stobaugh farm, and specifically photos of the mud room, show a variety of items that could be used as a ligature--belts, rope, sheets, pillowcases, and curtains. Ranger Murphree and the prosecutor performed a strangulation reenactment for the jury; Ranger Murphree pretended to choke and strangle the prosecutor, who " went uhhh," went limp, and fell to the ground. Ranger Murphree testified that this strangulation
reenactment was one of the possible ways Kathy was killed and that " there's just a multitude of ways of killing someone, endless amount of ways, almost, with blood not being there." Ranger Murphree testified that the kitchen area of the Stobaugh farm house where Charles said Kathy was when she became upset and left contained many hard, flat surfaces, including the floor, where Kathy could have hit her head and not left any blood. In sum, Ranger Murphree testified that the State was allowed to indict Charles for killing Kathy in a manner and means unknown and that Ranger Murphree was not " wedded" to any particular possible manner of Kathy's death.
5. Charles's Statements
Charles made four statements concerning the events that occurred on the evening of December 29, 2004. His first statement is the forty-seven minute videotape recorded by Officer Vest's dash-cam and body microphone on January 3, 2005, at around 6:30 p.m. when Officer Vest went to investigate Kathy's whereabouts based on the missing person report filed by Charee at 4:30 p.m. that same day (the dash-cam video statement). The second statement is the three-hour interview of Charles conducted by Ranger Murphree and Investigator Larry Kish at the Sanger Police Department in the early morning hours on January 4, 2005 (the Murphree/Kish statement or the Murphree/Kish interview). The third statement made by Charles is a hand-written statement that he made on March 3, 2005, to Mike Horton, a private investigator hired by Kathy's family, the Mundays (the Horton written statement). Mike Horton also recorded his March 3, 2005 verbal interview of Charles, and that statement is the fourth statement made by Charles concerning the events of the evening of December 29, 2004 (the Horton verbal statement).
a. The State's presentation of Charles's statements
At trial the State did not initially present to the jury the complete version of Charles's statements. Instead, the State created " clips" from the recorded statements, isolating certain answers or phrases spoken by Charles. Defense counsel objected under the rule of optional completeness to the State showing the jury various State-generated, isolated clips from Charles's statements. The trial court overruled the objection.
The State assigned topic captions to each clip that reflected the State's perspective on the information conveyed on the clip and offered into evidence exhibits listing the captions assigned to each clip. The State excerpted the forty-seven-minute dash-cam video statement recorded by Officer Vest into sixteen clips and offered a DVD with the sixteen clips on it into evidence as State's Exhibit 314. The sixteen video clips vary in length, with the shortest being 7 seconds and the longest being 1 minute and 52 seconds. The State excerpted the three-hour Murphree/Kish statement into fifty-five video clips and offered a DVD with the fifty-five clips on it into evidence as State's Exhibit 312. The longest of these clips is 1 minute and 55 seconds; the shortest is 3 seconds. The State excerpted the Horton verbal statement into nine video clips and offered a DVD with the nine video clips into evidence as State's Exhibit 313. The longest is 1 minute and 42 seconds; the shortest is 16 seconds. The State selected certain clips contained on State's Exhibits 312, 313, and 314 to play for the jury; all three of these DVDs that were admitted into evidence also contain clips that were not played for the jury.
The DVDs containing the clips--that is, State's Exhibits 312, 313, and 314--also each include a PowerPoint on the DVD titled, respectively, " Murphree -- categories.ppt," " Horton.ppt," and " Vest.ppt." Each of these PowerPoints were created by the State and contain a Denton County seal in the upper left-hand corner of each PowerPoint slide. Each of the PowerPoints contains an initial PowerPoint screen setting forth text boxes with captions created by the State of what the State contends each clip shows, such as " Convincing the children" or " Assault 1989." Each PowerPoint also contains
some of the clips created by the State from the pertinent statement; some of the PowerPoints contain clips not presented at trial. The PowerPoints themselves were never published to the jury during trial. During closing argument, the prosecutor told the jury that if they wanted to review the clips, they should play the PowerPoints.
During trial, the State did not play the various clips from Charles's statements for the jury in the order that Charles made them during the statements. Most of the clips, especially the clips from the Murphree/Kish statement, do not contain the question that Charles was asked; most of the clips contain only Charles's answer to an unknown question. And many of the clips do not contain Charles's entire answer; the clips cut off mid-sentence or before Charles completes or further elaborates on his answer.
The State then played various clips from Charles's statements for Officer Vest and, primarily, for Ranger Murphree as they testified and asked them to comment on what Charles had said in the clips, to comment on Charles's body language in the clips, and to compare and contrast Charles's statements in the different clips with one another. Ranger Murphree testified that the inconsistencies between statements by Charles in clips from the Murphree/Kish statement, from the dash-cam statement, from the Horton verbal statement, and from the three-paragraph Horton written statement meant that Charles was guilty of murder. At the conclusion of Ranger Murphree's direct examination, which spans almost three-hundred pages in the reporter's record, and after the jury had already heard Ranger Murphree's compare-and-contrast-the-clips testimony, the State played the entire three-hour Murphree/Kish statement for the jury.
b. The dash-cam-statement recorded by Officer Vest at around 6:30 p.m. on January 3, 2005
The State likewise did not play the interview between Officer Vest, Deputy Gibbons, and Charles straight through for the jury. Instead, it appears that the State stopped and started the video--marked as State's Exhibit 283--repeatedly, sometimes playing the same portion over more than once. While the video was paused, Officer Vest gave a narrative of what he was doing at various points on the video and of the identity of people appearing on the video. The video reflects that Officer Vest arrived at the Stobaugh farm at 6:36 p.m. on January 3, 2005. Much of the dash-cam video statement is an audio recording only from Officer Vest's body microphone; the video from the dash cam is focused in only one place, showing people as they walk in front of the dash cam. The following is a summary of the information on the DVD.
The DVD shows Charles speaking freely to Officer Vest, telling him that when he got up on Thursday morning, Kathy's car was parked in the driveway " right there." He said that " of course we had to back it out of the way," and so " we backed it out right there, I did. I had to get a trailer out of the barn." Charles explained that Kathy came to his house on Wednesday night and left around 10 p.m., driving away in her car. Charles told Officer Vest that Kathy taught school at Nocona and that she was off work for the Christmas holidays and was supposed to have taken her car to Muenster to be fixed because it was leaking water. He said that he had called the shop and learned that Kathy had not tried to make an appointment to get the car fixed.
Charles told Officer Vest that Kathy had filed for divorce at the end of May after she had obtained her teaching degree. He explained that Kathy had obtained a job teaching at Nocona. He said that in the past, Kathy had been k nown to leave and be gone for an entire weekend with her cell phone off and not want to be bothered; Charles said that this had happened twice before. Officer Vest asked if Kathy had been living at the farm, and Charles explained that she had moved out the past June. Officer Vest commented that Charles and Kathy had been separated for a while; Charles responded that Kathy's filing for divorce was as much of a surprise to him as it was to her family. Charles said that a strange thing was that Kathy had a cell phone and paid her bill online so that he could not see her cell phone records. He said there could be another man involved.
Charles discussed with Officer Vest the conversation that he had with Kathy on the evening of December 29, 2004. Charles said that Kathy had explained how she wanted the property divided in the divorce. He said that Kathy wanted half the land, wanted to be paid half the value of the farm equipment, and wanted everything out of the house. Charles said that he had asked Kathy whether, if he wanted to contest the way she wanted to divide the property, he would have to get a lawyer
and she said that he would. Charles said he told Kathy that even though he had previously said he was not going to get a lawyer or contest it, he was going to contest it. Kathy asked how he wanted the property divided, and Charles said he wanted everything sold and split down the middle. He said he did not want her coming back later and saying that he had cheated her. Charles said he asked Kathy why she did not want to sell everything and split it down the middle and that Kathy said that was not what she wanted to do. Charles said that was what he wanted to do. Kathy said, " You know, you gotta always have your way," and he replied that he just wanted it to be fair. At that point, Kathy said, " I am leaving, there ain't nobody gonna find me and don't try look for me." Charles explained that he said, " Oh, you're going to do one of them trips, huh." And Kathy responded, " No, I am leaving." Charles said he shut the door and went to bed. He saw her driving away down the driveway.
Charles said when he awoke the next morning, he " saw her car parked right here." He explained that when Kathy had pulled up at the farm that night, she had parked in a different place: " She parked around here--so she did leave." Charles said he did not think much about it. He summed up that " we didn't really get alarmed until this morning [Monday morning, January 3, 2005]." At that point, Officer Vest moved away from Charles, and although Charles was still talking in the background, his words are not discernable on the recording. When the body microphone picked up Charles's voice again, he said, " But that's kind of all of it in a nutshell. Neither one of us has ever laid a hand on each other. . . . My deal is she has never left with somebody, she has always left in the car."
Officer Vest asked Charles to " hang out here" while he and Deputy Gibbons looked at Kathy's car. He asked Charles where he had touched the car, and Charles said that he had touched the steering wheel to move the car and the driver's side door to see if water was leaking in, and it was. The video shows Officer Vest and Deputy Gibbons examining Kathy's car; Officer Vest commented that the car was immaculate. There is twelve minutes of silence on the recording; Officer Vest turned off his body microphone while he inspected Kathy's car.
After completing his inspection of the car, Officer Vest resumed his conversation with Charles and asked whether Kathy had any best friends. Charles said, " That is who I am fixing to call here tonight: Linda Janoe." Officer Vest asked whether Charles had a phone number for Linda Janoe, and Charles said that he did in the house and invited Officer Vest inside. As they entered the house, Charles asked, " Was y'all out here last year when this woman got killed down here?" Officer Vest responded that they were not and explained that the only reason he was at the farm was because Kathy was a resident of Sanger and a missing person report was filed in Sanger.
Charles said, " It's been about a year ago when that woman down here--Marilyn, nice lady," when Officer Vest stated, " Yeah, I knew her, I know her son, I'm trying to think of his name." Charles said, " Lee and Robert, Junior." And Officer Vest said, " Robert. I've known Robert for a long time." Charles stated, " See, first, though Robert's granddad lived right over here and he passed away in November, and then the next month this woman got killed down here and I don't think they've ever found out anything." Officer Vest responded, " Not as far as I know they haven't."
Charles then located Linda Janoe's cell phone number and provided it to Officer
Vest. Charles explained how Kathy knew Linda Janoe and again said he was going to call Linda " tonight." Officer Vest then attempted to wrap up the interview, stating, " If you hear of anything, if she comes and gets the car, let us know so we can get it off the computer." But Charles interjected, " Y'all haven't had any reports of anybody being found or anything have you? It might be all for nothing. I don't know what to tell you. If this was something new, I might have jumped on it, but that woman called from school." Officer Vest confirmed that someone from Kathy's work had called. Charles said that the school had called him about 10:30 that morning looking for Kathy; he was told that it was a teacher workday. He said it was not a big deal, but stated, " We haven't heard anything. Her parents haven't heard anything. You know, you just don't ever know." Officer Vest then asked for the phone numbers for Kathy's parents and brother, and Charles provided Officer Vest phone numbers for Kathy's mother, Jeanne Munday, and her brother, Mark Munday. Charles explained that Chris Munday had just moved and that Kathy did not have his new phone number written down in the address book.
Officer Vest again tried to end the conversation, stating, " Alright, if I hear anything, I'll let you know." Charles indicated that he was going to call " this lady right here, I'm gonna call her--she works with her. Don't even know her last name." Officer Vest responded, " Let me write that down too." Officer Vest then prepared to leave again, stating, " Alright, if I hear anything I will let you know and you let me know if you hear anything." Charles asked, " What number? Do I call that same number?" Officer Vest said, " That's my cell phone." And Charles said, " And you are--Officer Vest. Are you from around here?"
The conversation then turned to where Officer Vest grew up and had worked, and Charles asked whether Officer Vest knew Jackie Norris, who worked with Charles and is from Sanger. Charles said, " Well, I appreciate you coming out. I'll tell you one thing. I don't know what happens, as far as this divorce thing; we know a woman, we went to church with a woman who went back to school in her 40s like my wife did and she ended up in the hospital in a nervous breakdown." Charles then explained that Kathy really changed after taking a psychology class, saying that a man always gets the better jobs, the man always rules, and the man gets all the toys. After that class, Kathy said that the pastor at their church was too dominating. Charles told Officer Vest, " It seemed like ever since then, I don't know, I think that the nerves, I'm not gonna say that she was fixing to have a nervous breakdown, but I figured that after she got out of school--[microphone breaking up]--she couldn't find a job, but then she just substituted and she got pretty depressed about that, then she got this job at Nocona." He continued, " I don't know. It's like her brother told me tonight, 'She kinda lived a private life.'"
Officer Vest asked a few more questions before he left. He asked, " What do you think is going on?" Charles said, " I don't know. That is what her brother was asking me." Officer Vest asked, " What did she do for Christmas?" Charles said, " She went down there, I didn't go. And I asked her brother whether she was acting differently and he said, 'You know, she leads a private life and she lets you know what she wants you to know.'" Charles explained to Officer Vest, " And I said, 'Do you think she is more further distant from y'all than what you used to be?' And he said, 'Oh I don't know.'" Charles then said, " But you know, I got on her a few times about why she didn't let the cell phone bill go through
the mail." Charles said he asked Kathy if she was trying to hide something by paying the bill online. Charles speculated that he could have called AT& T to get the bills, and Officer Vest said he could if his name was on the account. Charles then said that he did not have a cell phone but that Kathy had gotten one for herself and one for Charee.
Charles then volunteered, " There was nothing ever about finances, I've never had to borrow money or nothing." Officer Vest asked how Kathy was doing financially on her own since moving out in May. Charles explained that Kathy took out half of the $80,000 that they had in the bank. Charles said that he had told Mark earlier that night that because Kathy had half of the $80,000, " she ought to have plenty of money." Charles denied that Kathy drank, said she was not on drugs, and had not been prescribed any drugs by a doctor that he knew of. Officer Vest asked whether Kathy went to the doctor regularly, and Charles said she did not.
Charles told Officer Vest, " I told her, you want out after all of these years, I want to make it fair and square, I've been waiting for you to come back but I'm going to get a lawyer, I am going to contest it and split it down the middle. It's the only fair way." Charles said, " That's when she just turned around right by the back door there and said, 'You know, I'm leaving and don't try to look for me. I'm going somewhere nobody is going to find me.'" Charles explained, " She could have called somebody, got on a plane, there's been a thousand things go through my head. I just hope nothing has happened to her."
Finally, Charles concluded, " That's about all I can tell you, that's all of it that I can think of."
c. The Kish/Murphree statement recorded at the Sanger Police Department from 1:02 a.m. to 3:58 a.m. on January 4, 2005
During the interview at the Sanger Police Department, Ranger Murphree and Investigator Kish had Charles sit in a chair in a corner, facing outward, so that Charles appeared on the video, but they did not. Ranger Murphree agreed that he and Investigator Kish " tag-teamed" Charles for three hours during the interrogation. On cross-examination, Ranger Murphree testified that he has conducted thousands of interrogations. Ranger Murphree testified that it is an interrogation technique to interview for a long period of time because the more the person talks, the more information the interviewer is likely to obtain, and that the interviewer is looking for inconsistencies. Ranger Murphree testified that he intentionally put pressure on Charles during the interview and that he was trying to wear Charles down and to create fatigue. According to Ranger Murphree, he proposed different scenarios and different possible motivations to Charles to try to get Charles to confess; the goal of the interrogation was a confession. Ranger Murphree agreed
that Charles did not confess, consistently denied any involvement in Kathy's disappearance, and consistently denied knowing anything about Kathy's whereabouts.
The content of the three-hour interview is set forth below. The person speaking is identified by " M" for Ranger Murphree, " K" for Investigator Kish, and " C" for Charles. The trio entered the interrogation room, Charles shut the door, everyone stated their name for the recording, and the interview began at 1:02 a.m.:
C: I don't know what y'all think, but we didn't jump on this maybe as soon as we should have. But we just kept thinking she would come back.
M: Tell me that story again about the divorce and everything like that.
C: She filed for divorce there at the end of May and moved out around the first of June. There hadn't been any arguments or anything of that nature whatsoever. So I told her, you know, I wasn't going to contest it or anything; just whenever she wanted to make the next move, that was alright with me. Because it kinda took me by a total surprise.
So, it rocked along all during the summer. I seen her at least once a month, if not more. I changed the oil in her car about once a month, every 3,000 miles. She wanted me to do that. And it just rocked along on up til now, while she was off for the holidays. I guess that's when she decided to go to the lawyer and go on through with it. And I asked her two or three times between the summer and Christmas, I " told her I still loved her, if she would reconsider and come back home, I would be there for her."  But she went ahead and made her mind up and told me how she wanted to divide everything up. And that's when she went to that lawyer on Tuesday. And I called her on Wednesday evening to see if she got everything set the way she wanted it. And she said yes. I asked if she was going to tell me and she said she would rather come over and tell me in person. I said that was fine. She arrived about 9:30 and was there probably about 30 minutes because the only thing that was said was about the property division. She told me that she wanted half the land, money for half the machinery that we acquired during the marriage, and most everything out of the house. I asked her, " Well, if I want to contest that, do I have to get a lawyer?" And she said yes. Because I had told her earlier that I wasn't going to fight nothing. But then, after she told me the way she wanted to do it, I said no, I wanted to contest it. I was going to contest it if she didn't do it the way I wanted to do it. And she asked, " Well, how do you want to do it?" I told her I wanted to sell everything and split it down the middle. And we'll just half it. And I think that's the most fair way and that way on down the road you won't be able to come back and think you maybe got been cheated. I could tell she got a
little frustrated, and then she looked at me and said, " Why does the man always have to try to win?" And I said, " I'm not trying to win, I'm trying to do it the fairest way so we'll both be equal when we get out of this."  And I said, " You don't have to do anything if you want to just come back home."  And she said, " No, I've made my mind up." So she got up and she said, " Are you sure you want to contest it?" And I said, " That's the way I want to do it." So right before she got to the back door to walk out she turned around and she just said, " I'm leaving." And I said, " Okay." And she said, " No, I mean I'm leaving." And I said, " What do you mean you're leaving?" And she said, " I'm leaving; don't try to look for me." She said, " I'm leaving, I'm going where no one can find me."  And I just looked at her, and she turned around and walked out and shut the door. I saw the car go down the drive; I didn't see if she turned right or left. She left.
I got up the next morning probably about 8:30. Always go to the front--the kitchen is there on the north where I can see out-- fixed my coffee, and looked outside. You know, I didn't see that car sitting there cause it was pulled up pretty close to the garage. I guess I probably went outside an hour later and when I went around the garage there on the west that's when I saw it. I really didn't know what to think. I went back in the house. I looked around in there. I didn't see anything. I went back outside and looked around the car. I didn't touch anything. I didn't know what to think. But I saw the keys was in it lying on the floorboard. But her purse wasn't in there.
M: Did she bring her purse in the house?
C: No, she didn't. She didn't bring anything in the house.
M: Tell me about the living arrangements of your kids?
C: Just a mutual agreement they could both stay with me or with her. My boy likes to stay with me more, because of being on the farm and stuff. And that was fine with her. There was never any arguments over that.
M: Now did you take him to town earlier?
C: Yes, I did. That's when I come back I called her.
M: Was she there when you dropped him off?
M: Did you talk to her there?
C: No, not at the house, I've never been up to the front door at the house.
[M:] Is there any reason why if she was at the house you didn't just talk to her there?
[C:] No, well, the only reason I took him, he'd been with me several nights after Christmas and he got some games to play on his TV. And I asked him if he wanted to go home and play some of those Nintendo games and he said yes, and I said, " Well I don't blame you. I may call mom and see what she found out."  And she could have told me over the phone, but she said she just wanted to come out. But I guess she wanted to come out to see my reaction.
[M:] Did you tell him he needed to go home because y'all needed to talk about the divorce?
[C:] I just told him we was going to talk. I told him that it really didn't matter. He may have took it that I really wanted him to, but it really didn't matter.
M: When you come around the corner and saw her car there did you look for her?
C: Yes, I did.
M: Where did you look?
C: All over the place.
[M:] What did you think she did?
[C:] I was just bumfuzzled because it didn't make any sense. And the only thing that I could think of was the car, that car had been leaking water on the passenger side floorboard every time it rained and she was going to try to get that fixed or seen about while she was off during the holidays. But she never did or never brought it up. I asked her once about it earlier that week and she said, " I really hadn't thought about it, but I need to get it fixed." But I knew she hadn't got it fixed. So I thought if she brought that up here that don't add up or else she would have said something about it when she was up here earlier. So it didn't make no sense. It just flat didn't make any sense.
But then I got to thinking she's got upset in the past and left a couple of times; she'd be gone for the weekend, cell phone off, not want to be disturbed.
M: How long ago was this?
C: The last time was about probably less than two years ago.
M: Where do you think she's at?
C: I don't know. I think she is with somebody.
M: Why do you think she would park her car at your house?
C: I don't know. That's what's got me. [pause] Unless she planned on really staying away a long time or enough to really give us a scare or something and she just thought well she'd leave that car there.
M: If you sold all of your stuff out there, how much money do you think that would be worth?
C: Quite a bit. Land and everything? I imagine you're looking at . . . I've been told by a realtor out of Fort Worth that that place would bring about a million dollars.
M: So, doing it your way, she's looking at $500,000.
M: And she knows that?.
C: Oh, yeah. And another thing, she's not lacking for money right now. Because we had about $80,000 in the banking account, and when she moved out she told me that she took half of it, and I said, " That's fine." And she's been working, and she's not a big spender, so she's still got plenty of money.
M: Let me ask you this. When the divorce was filed there was a restraining order too. Can you tell me why that was filed?
C: No I cannot. That's what got me. To tell you the truth I just broke down. I've never laid a hand on her and that's why I've never even went to the front door of her rent house. I never got out of the car.
M: Was there a hearing on the 28th?
C: No, I've never received anything.
[M:] Did she talk to you about a default judgment--what that meant if you did not respond to her divorce? That she could get a default judgment and everything would go her way?
[C:] She just said the other night that if I did not respond, and contest anything, that it would go--I took it that it would just go right on through her way.
[M:] That's what she told you Wednesday?
M: What about custody of the kids? What was y'alls thinking on that?
C: We never really discussed it, but she just said the other night probably that I would pay child support. Which I figured that. But I know my boy said that if mom left and that went through, he wanted to live with me, and I said well we'd have to talk that out.
M: Who did she run off with? Was she seeing somebody? She have a boyfriend?
C: The only thing that's got me suspicious and I talked to one of her friends tonight that used to work with her at NTCT in Corinth, I asked her that same thing. She said, " I don't know, I couldn't tell you." But the only thing that's kind a had me suspicious, when she filed was that she never would let the cell phone bill come on through the mail. I don't have a cell phone. She's got one and my daughter's got one.
[M:] Do you know her cell phone number?
[C:] Yes, I do.
[M:] You tried calling her since this disappearance?
[C:] Oh, yeah.
[M:] Have you left messages for her?
[C:] Yeah. She paid it online. And I tried to get into it one time before she moved out, and it's password protected.
I never did call AT& T. And I asked her why she didn't send that bill through the mail and she said it is easier to pay it online.
[M:] How many times you tried to call her since she disappeared?
[C:] Gosh, I don't know.
[M:] You left her a lot of messages on her cell phone?
[C:] Not really that many messages. We just called; my daughter's called.
[M:] What did you tell her on the messages?
[C:] Said once, we wanna know where you're at. As I said, we may have been a little late in callin', but we just kept thinking she'd come home. And then I got to thinking you know she left that car there to show me I've left like I said I was.
M: At the very worst if things don't go her way, and they go your way, she would get half a million dollars. Did she say anything about looking for houses?
C: [Shook head.]
M: Was there ever any mention that if you would buy her a house that would settle everything?
C: On the start she did. On the start she said, " Buy me a house." I said, " Where?" She said, " I don't know, maybe I can build one out here." And I said, " Why would you divorce me and build a house out here by me?" That didn't make any sense to me.
M: Does she have family around here?
C: No. She's from Gatesville.
M: Does she have a brother in Fort Worth?
C: Yes, Chris.
M: Did you ever call him?
C: I couldn't find his phone number. I just called the older brother Mark; he lives in Gatesville.
M: When did you call him?
M: You waited a whole week?
C: That's what I am saying. Nobody from down there ever called me. See she was supposed to go. That's what I told you we kept thinking she would probably come back. But when she didn't go to work this morning and the car was there today and the school secretary called about 10-10:30. We said she's gone. She's definitely gone somewhere.
M: Where would she go?
C: The last time she left she went to Granbury and got in a hotel. She didn't want to be bothered.
M: Do you think she would give up her job that she's worked so hard for because she is mad at you?
C: You wouldn't think so. That don't add up. Not unless she thinks she is going to go ahead and end this and she's going to have a little money and she can make it awhile on that.
M: I talked to the kids, and they said it is not like her to go off and not tell them where she is going.
C: Not the kids.
M: Your voicemails and stuff she might not pay any attention to, but your daughter's she would.
C: Right. I got real alarmed at first, and then I just thought, you know, I just didn't want to get everybody in a panic. I guess nowadays you just don't take no chances. With anything. But knowing her and the way she is, I just thought maybe she's trying to put a scare in everybody. But I can't see putting the kids in a scare like that.
M: Charles, let me tell you where we're at. Basically, you're the last person to see her. She goes out to your house at night. Going through a divorce, she's fixin' to take half of what you have [Murphree lists items]. And you're out in the middle of nowhere; she's not going to walk away from there. She's not going to leave on foot. So if she left with someone, she had to pull back in that driveway in there, someone had to pull in there to get her, open doors, shut doors, and leave without you hearing anything.
C: Yeah, and that very well could have happened.
M: What about your dog out there? Would he bark?
C: No he don't bark. I sleep on the south end of the house, and I've always, well here with the weather, I've got my roaring fan going.
M: Let me tell you another thing. There's no voicemail messages from you on her cell phone. You haven't called one time since she disappeared.
C: Well I dialed it several times.
M: That's not what you told me. You told me you left messages. You told me you called her and you haven't. The only time you got worried about her is when the police came out there to talk to you.
C: I guess I done hung the phone up. But I thought I said one time, " Where you at?"  How many times has it been called?
M: It's been called a lot . . . . [Ranger Murphree lists the individuals who called Kathy's cell phone.] I've listened to the voice messages, but you have not called her one time. Either one, you've made a mistake or you're lying to me.
C: I'm not lying.
M: Either she goes out there and . . . . Let me tell you what it looks like from my point of view. You take your son and get him out of the house, and she comes over there to talk about a divorce where she is going to take half your stuff, that we've talked to other family members and stuff and you weren't real happy about that, the prospect of losing your money and your place. And she's in the middle of nowhere, and now she's disappeared off the face of the earth.
So here's the deal Charles, if something got out of control and you snapped, that's one thing. But if you planned that thing out and planned it for a long time. I don't think she's alive Charles.
C: You don't think so?
M: No I don't. And I think you know that too. You were the last one to see her alive.
C: Yes sir.
M: So tell me what happened.
C: I don't know. That is it. That is all I can tell you. But I thought I did call her once.
M: Charles you haven't called her. You haven't made one call to her phone.
C: From the house.
M: Listen Charles, I've seen them. We got the records. Her brother knew the password. I've been listening to your daughter bawling on the messages. So tell me what happened out there. If something went crazy. It's not making any sense Charles.
C: Well that's all I can tell you.
M: We'll find her. It's not looking good Charles.
C: I know it's not. Cause I told mom tonight, whether she planned that to make it look like I'm some bad guy or something.
M: That doesn't make any sense--she'd walk away from her kids and $500,000 to make you look like a bad guy.
C: But she didn't want to do it that way.
M: She didn't want to do it your way. That's why she walked away?
C: No, because I told her I'd get a lawyer. I've never laid a hand on her. And we've never had--
[M:] You've never laid a hand on her, ever? I know more than what you think I know.
[C:] Well one time when I was leaving to go to work, and no tellin' what she told her, she grabbed me and I grabbed her like this, and I guess I squeezed her arms and it left some bruises on her arm and the kids was there and they saw that. But as far as a knock down drag out, no sir. And I have dialed that number from the house several times. I am devastated.
M: You don't look devastated. You don't sound devastated. You're devastated enough to wait a week to call somebody. And you haven't called nobody. Somebody called you.
C: I know something was wrong when she didn't show up for school, when the school secretary called.
M: A while ago you thought she just went off somewhere, but now you think something's wrong. Which is it?
C: I don't know if she is in a motel or not. What do you think?
M: I'm asking your opinion.
C: I don't know. I wish I knew if she was in a motel or if she was in trouble. But I do know that she did not leave that car there and walk away. Somebody had to come in there. I'm just
saying in the past, she'd get in those moods and have to get away.
M: So, she leaves your house and she is five minutes from her house and she decides to meet with someone and she leaves her car at your house. She won't answer her daughter's calls.
C: Right. And did they find out if she picked up any clothes?
M: No clothes. Her purse is gone, that's it.
C: I do not know what to tell you. I can just tell you what has happened in the past.
M: And see I find it rather hard to believe too, that this thing is so docile is what you are trying to tell me. You're out there talking about divorce and half your shit disappearing and you're out there talking, there's no harsh words and everything is all cordial. Someone's been married twenty years and gonna lose half the stuff they've worked for, ain't nothing cordial about that. And you don't know why. And you're telling me everything is all nice, no harsh words; there had to be voices raised or something. And if something happened and you snapped, that is one thing.
C: No because I'm nearly fifty years old. I'm know I'm probably not going to live a long life, my dad died when he was sixty-five. And what we've accumulated, I wasn't going to fight it.
[M:] That's not what I hear from everybody else I talked to; everybody else says you're not going to let go of your money. You're gonna fight for your money.
[C:] She knows--and she's told her parents, that's all I live for is my money. But she didn't spend much money, and we wasn't big spenders.
M: You said " she knows" and she told her parents. Does that mean that all you care about is your money?
C: No sir.
M: You said that's what she knows, you didn't say that's what she thinks.
C: I know that's probably what she told her parents. We just, we saved; we wasn't big spenders.
M: See, here's the problem I have. I'm getting a divorce and it's amicable and it's fine and it's great and no one is yelling at anyone and I wake up and my wife's car is there and I'm thinking something is wrong, I'm calling the police. And you didn't call anybody, not even her. And now, all of a sudden the police show up, the school calls, and now all of a sudden you're concerned about her. Smooth, I'm going to call; not smooth divorce, I'm going to call because holy crap, they're gonna think I did something. You haven't done anything for a week Charles.
C: I kept thinking she was coming back. I just didn't get that alarmed at first. If I hadn't of known, the way she does get sometimes, and what's happened in the past, I guess it would have been different, but I was more mad than worried. I told Charee, I'm more mad than I am scared. That's the reason I
didn'tt go right in there and call the cell phone. Her leaving that car setting there like that, she probably, most likely had to have left with somebody. She had to leave with somebody. She didn't park that car there and walk off of that hill.
M: What'd you do? You're mad. What'd you do?
C: I didn't do anything.
M: Charles, I'm going to find her.
C: The gas man came that morning about 10 a.m., and I was out of it. I didn't know what to think. I don't know. I do not know. But I think she is with somebody. And I don't know why she wanted to do it that way except to get me riled up. Because she didn't get me riled up. And she could have told me over the phone, but she wanted to come out there to get me riled up. But I didn't get riled up; she got riled up. And it don't make no sense, but that is exactly what happened. If I was twenty or thirty years old, I might have more spunk to get hotheaded; but the way she always was, if I was going to go buy a piece of equipment or something, I would ask her, and then two or three days later she would come back and say, " Why you do that? You shouldn't have done that." 
And then the last thing that really upset her before she filed for divorce and I found out afterwards, but she told my sister-in-law. But my daughter had a wreck in this blue Lincoln car that we've had since 1991. And when she got her driver's license, I give it to her, and she got in a wreck and tore the car up pretty good. We brought it home, and I asked her, " Should I get it fixed?" And she said, " I don't care." And so I decided to fix it. I took it to Dulocks in Gainesville. And I fixed it. And then I brought it home. And of course I cancelled the insurance on it after the wreck. And I just told her no one is driving it for now. I didn't put the insurance back on it. It probably hasn't been drove fifty miles since then. It's sitting in the garage. And I think that is what was eating on her when she filed for divorce. She told her sister-in-law that she couldn't understand why he got that car fixed and let it sit in the garage. She got steamed but didn't tell me that. She told her sister-in-law after she moved out.
K: You said she got riled up out there at the house. How was she acting?
C: She -- just when she stood up and got kinda red faced.
K: How do you act when you get riled up? Do you raise your voice? Different people act different ways.
C: I guess I have raised my voice some. But I didn't that night because I said I'm gonna contest it, I'm gonna get a lawyer, and I want this done, split right down the middle.
K: In the past, how long did she stay gone?
C: Three days, and two days.
K: You know, she's got some pretty good friends that she talks to a lot.
She's made no phone calls. Zero. There's no messages from you.
C: I thought I said once, " Where you at?"
K: The car was near the garage that morning, what did you do? You got a lot of buildings out there.
C: Yeah, I got a hay barn, oat barn, kind of a shop.
K: So between the time you found her car and the gas man came around 10, what did you do?
C: I just messing around, I guess.
[M:] Charles, I have a hard time believing that she is going to be pissed off at you because you want to split the land up and split it all up even. The -- the options she has on this paper that she typed up, one is to sell everything and she is willing to do that. I find it hard to believe that she is going to be so mad at you when she took the time to type this up and one option is to sell all.
[C:] She did not want to do it that night when she come out there because that is exactly what I said I wanted to do. But she said she did not want to split and that was after she went to the lawyer. She told me the option the way she wanted it after she went to the lawyer. And that was not selling all of it. She did not want to sell the land. I've not seen anything she typed up.
M: Here's where we stand right now . . .
C: This is when they filed the divorce and served me the papers.
M: It looks like she asks her lawyer what to do . . . because you wouldn't show up. And she typed this up to try to get an agreement, and the option was half of the market value. She is not going to walk away from $500,000. Here's the deal. I don't think she's alive. I've done this for too long.
C: She's got to be.
M: If when I find her, things got out of hand and some things happened that you wish hadn't a happened, that's one thing, but if this thing is premeditated out and planned, that's another thing.
[C:] What does she got on there [The options sheet Murphree is reading from]?
[M:] I told you Charles, options of division: option one--divide 105 acres into two 52.5 parcels of land; that's one option she's willing to make. The other one, she wants the house and front and back yard and the front acreage with the tank, update the house as previous requests before moving in with access and privileges to all barns and equipment. Option three, half the market value of land and improvements and equipment, and option four, buy her a house worth between $200,000 and $300,000, and she will be satisfied.
C: She did not want to sell it. Don't ask me why, I don't know.
M: I'm going to be talking to her lawyer in the morning. When her lawyer tells me, " Oh yeah, she'd be happy to take half of the value of everything," that's going to blow your story up.
C: That is what she said. . . . I don't know why she didn't want to sell the whole thing and split it in half so it would just be equal to both of us.
M: I understand from talking to some folks you didn't want this divorce, and you were fighting tooth and nail to keep her from leaving.
[C:] That's right.
M: She gave you the ultimatum and she said this is the way it is -- it is going to be, it's over. Did it piss you off? It'd piss me off. You have to see it from my point of view Charles. You're telling me you offered her a half a million dollars, and she got mad, walked out of that house, and drove off. And all of a sudden her car is back. And you are not concerned enough to call anybody.
C: I was going to talk to her family today first.
M: After the school called you and the police showed up.
C: I know it don't look good. But I'm just saying, I hadn't heard anything from them. I finally got ahold of Mark on his cell phone. I told Charee to go to the house to get some phone numbers. Charee stopped by the police station to report her missing because I said I'm gonna call Mark, then we're going to report her missing.
M: No one's heard from her after you talked to her, not her family, her children, not her friends.
C: That don't make no sense. You gotta find her. You gotta find her.
M: Where is she? Tell me where she's at. Let's get this over with. Where is she? You're gonna feel better. Tell me what happened if things got out of hand; I can understand that. Tell me where she's at.
C: I do not know where she's at. I don't know where she's at.
K: Is she on your property out there Charles?
C: No, at least I didn't see her. I walked it all. I walked all over it.
K: Let me just tell you my point of view. There is quite a few deceptions in what you're saying. Knowing the court system, they notify you when it's time to go to court. They have to; it's a legal process.
C: Nobody ever--
K: Let me talk. There's some concerns of mine. This car being there. You not taking any action. You saying you don't know what you did between when you found the car and the gas guy showed up, and now you're saying you walked all over the property; I don't think you're being truthful with us. I think you're holding something back. You're going through a really, really tough time. This divorce is not an easy deal. I don't think you're being truthful with us, but we will find her. And I think you know something that you're
not telling us. Now is the time to tell us. We're going to search and search, and we're going to find her.
C: I want you to find her.
K: If there was voices raised in the house, if there was a disagreement, now is the time to tell us.
C: No, there was none of that.
K: So, she just gets in her car and leaves, drives down the driveway.
C: Yes, sir.
K: What did you do?
C: I went on to bed.
K: Did your daughter call you the next day?
C: She came up about the time the gas man was there or right before. I said, " Is mom down there?" And she said, " No." I looked around there; she wasn't there. She did not park that car and walk off of here. She had to leave with -- left with somebody.
K: Is it normal to leave the keys in the car?
C: Up there we do. The madder I got . . . I thought what is this. I had just told her -- and did not get upset or anything -- I wanted to split everything. It is enough money for me to get a house. I want to split it half and half, and that's when I told her I was going to contest it. And I think that when I told her that I was going to contest it, that is when she got ruffled. And when I was thumbing through those papers and saw that restraining order, I couldn't believe it. I didn't read it; I just took it to mean that I had to stay away from where she was living. Is that true?
K: That's pretty much it.
C: And that's why I never got out of the car when I went down there.
K: Here are some notes about the divorce in her writing. Her lawyer told her they could get a default judgment for failure to respond.
C: She went to the lawyer on Tuesday; she told me she was going to get it straight how she wanted it. And I said, " Are you going to pretty much get that etched in stone?" And she said, " Yes."
K: Would you have a problem with us looking on your property?
C: No sir.
M: Your house, your barns, your pickup?
C: There's nothing there though.
[K:] I just have a hard time with her walking away from the house--
[C:] She didn't walk away from there. No, she didn't walk away from there; no, there's no way. What kind a calls has she made before?
M: How did y'all get along last Christmas, of '03? How's things going then?
C: I don't know.
[M:] She made a few notes about it: Charles off for a week at Christmas, didn't do anything with us or the kids, Charles got upset, Charles didn't want anything for Christmas, did not want to buy me anything. Doesn't sound like a marriage where you'd be shocked if somebody decided to file for divorce.
[C:] We never did buy anything for each other, the kids--
[M:] She is writing this stuff down.
[C:] She was always writing stuff down like that and leaving notes in the house. What we always done for
Christmas, I went with the kids and picked out stuff for her from them, and we'd call it from the kids. And then she'd take the kids and they'd get stuff for me and we'd call it from the kids.
K: Did you look to see if her purse was in her car?
C: I looked in backseat, in front, I opened the trunk, and that was it.
M: Did you work last Thursday through Sunday?
C: No. I had to go in and get everything going today. The plant closed, had to go in and start the equipment.
M: Did you do anything to try to find her?
C: I didn't leave no messages. I just figured she would come back putting a scare in me to make me say, " Hey, okay, we'll do it your way." 
M: Do you still think that? She would put her kids through that?
C: She wouldn't do that to the kids, not this long, no.
M: So you think something's happened now?
C: I think she's with somebody or something happened. She did not park that car there and walk off--
M: Even if she was with somebody, she would probably call her kids, huh?
C: You would think so. I would think so.
K: Unless somebody hurt her, right?
C: Uh huh.
M: You think that's ...