PETITIONS FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF
APPEALS WILLIAMSON AND TRAVIS COUNTIES
Rex Allen Nisbett and George Delacruz were convicted of
murder in unrelated trials. Although the cases are factually
unrelated, there are many factual similarities between the
two, including that, in each case, the victim's body and
the murder weapon were never recovered. In Nisbett's
case, the court of appeals held the evidence to be
insufficient to support the conviction and rendered a
judgment of acquittal. In Delacruz's case, a different
(but overlapping) panel of that court affirmed the
conviction. We granted review and consolidated these
cases to address the appropriate analysis when the
victim's body and the murder weapon are not found. We
ultimately hold that the evidence was legally sufficient to
support both convictions. Consequently, we reverse the court
of appeals's judgment in Nisbett's case and affirm
the judgment in Delacruz's case.
and his wife Vicki had a troubled relationship and were
getting a divorce. Vicki had moved to an apartment with their
three children, but she allowed Nisbett to live with them
during the days leading up to Christmas of 1991. On December
14, Vicki had plans to attend a company Christmas party with
a co-worker. Vicki and Nisbett argued about Vicki going to
the party, and at some point during the altercation Nisbett
choked her. Vicki did not meet the co-worker as she had
planned to do, and she never showed up at the party. In fact,
after December 14, 1991, Vicki was never seen or heard from
again. Nisbett had previously made statements suggesting a
wish to murder his wife, he engaged in suspicious activity
and made suspicious statements to law enforcement and others
on or after the date of Vicki's disappearance, he wrote a
check on Vicki's bank account after her disappearance,
there was circumstantial evidence linking him to Vicki's
car after her disappearance, and there was physical evidence
indicating that Vicki had been killed. Her body, however, was
never recovered, and law enforcement never located a possible
forth the facts developed at trial in further detail below.
Nisbett and Vicki's Troubled Relationship
and Vicki were high school sweethearts. They married shortly
after high school and they had three sons together. Around
ten years later, on November 15, 1991, Vicki filed for
divorce and moved with the children to a new apartment.
Nisbett opposed the divorce. He wanted to stay near the boys
during the holidays, so Vicki allowed him to stay with them,
with the understanding that it was a temporary situation and
that she was still moving forward with the divorce.
Fryer, the Nisbetts' pastor, testified that he had
developed a relationship with Nisbett and Vicki through the
Trinity Christian Center and that part of his ministry
included helping couples who were experiencing difficulty in
their relationships. Fryer had been counseling Vicki and
Nisbett together, and he also counseled Vicki individually.
During his last meeting with Vicki, two or three days before
she disappeared, she was crying and appeared to be
"extremely fearful." She declined Fryer's offer
to help arrange a different place for her to stay during this
Nisbett's Statements Suggesting Desire to Murder
once told Vicki's brother that he would kill Vicki before
he let her divorce him and take his three boys. Nisbett told
a co-worker that he had caught his wife cheating on him and
thought about killing her, but "that wouldn't be the
Christian thing to do." Nisbett had also previously gone
to his brother Mike's property with Vicki's brother
Mark. Nisbett showed Mark excavation holes that had been dug
and said, "You could throw a body in there and no one
would ever find it."
Suspicious Circumstances on the Day Vicki
Saturday, December 14, 1991, Vicki had plans to attend her
company Christmas party with co-worker Julie Coen Tower.
Tower spoke with Vicki several times throughout the day to
confirm their plans. When Tower first called Vicki at around
2:30 p.m., she overheard Nisbett and Vicki arguing. Vicki was
agitated and upset, and she explained that she wanted to keep
her plans with Tower but that she was arguing with Nisbett
because he did not want her to go to the party. When Tower
called a few hours later, at 5:00 p.m., the arguing had not
abated. Vicki told her that Nisbett had choked her and left
bruise marks on her neck and throat. Vicki sounded
"pretty hysterical" during that phone conversation,
and Tower told Vicki to get her stuff and come to Tower's
apartment immediately and they could get ready for the party
there. When Vicki failed to show up after thirty or
forty-five minutes, Tower called her again. Nisbett answered
the phone and said that Vicki had just left and was headed to
the party or to Tower's place. Thirty minutes later,
around 6:00 or 6:30 p.m., after Vicki still had not arrived,
Tower called again. This time, Nisbett told Tower that Vicki
had told him that Tower had "slowed her down a little
bit and she just went ahead and went straight to the
party." Vicki was not seen at the Christmas party.
Castleberry also spoke with Vicki on that Saturday. Wayne had
met Vicki at a local nightclub, and they had exchanged
numbers. They later met for lunch and talked during the week
on the phone. Vicki had explained to Wayne that she was going
through a divorce but would like to see more of him after
Nisbett moved out. When Wayne called Vicki's apartment
the afternoon of December 14, Nisbett picked up another phone
extension to eavesdrop. In a harsh tone, Nisbett accused
Vicki of talking about him and told her to hang up the phone.
Vicki's demeanor changed and she responded suddenly with,
"I have to get off the phone," and hung up. Wayne
and Vicki had planned to meet after the Christmas party, but
he never heard from her again.
"Bubba" Smith lived in the same apartment complex
as Vicki with his sister, Lana Faye Reed. Bubba recalled that
Nisbett came over late one afternoon in December and asked to
borrow his car, a 1969 Nova. Nisbett also asked Bubba to
watch his three boys. Nisbett returned the car to Bubba the
next morning, but it was damaged-there was damage to the
chrome rims around the headlights and "the trunk lock
was knocked out." Bubba could not recall the exact time or
date that Nisbett borrowed his car, but his sister Lana
remembered because she rented movies for the children when
they were asked to babysit. Lana corroborated these details
by providing investigators with a receipt for the movie
rentals dated December 14, 1991. Bubba had never babysat for
the boys before.
9:30 and 9:35 p.m. on December 14, a police officer saw a car
traveling northbound on South Bell Road (also known as
highway 183) in Cedar Park. The car was traveling slowly in
the left lane, so the officer ran the license plate number.
The license plate was from Vicki's car. The officer was
going initiate a traffic stop, but he received a more serious
call from dispatch to which he needed to immediately respond.
The location where the car was seen was between where Vicki
lived when she disappeared and where she and appellant used
to live-Liberty Hill-before Vicki filed for divorce.
No Sign of Vicki after the Day She Disappeared
Monday, December 16, Vicki did not show up for work. Her
unexplained absence concerned her supervisor, Sheila
Vanderwood, because it was out of character for Vicki to miss
work without calling in. When Vanderwood called Vicki's
apartment, Nisbett picked up the phone and said that he had
not seen her since she left for the party. Vanderwood told
Nisbett that she intended to report Vicki missing. Shortly
after she did so, Nisbett also reported Vicki missing.
Officer Proctor arrived at Vicki's apartment to file the
missing persons report, two days after she disappeared, her
apartment was immaculately clean. This was uncharacteristic
of Vicki's apartment, which was usually cluttered and in
a state of disarray, with things strung around, in a way that
is normal for a home with children. All of Vicki's
personal effects were still in her bathroom, which led
Officer Proctor to believe that she had not left town.
Vicki's family members ever saw or heard from her again,
nor did anyone at Vicki's place of employment. After
December 14, Vicki did not write any checks or withdraw any
money from her bank account. She did not renew her
driver's license when it expired. The Department of
Public Safety's Missing Persons Clearinghouse pored
through various databases looking for any electronic evidence
that Vicki was still alive and could find none. No activity
involving her social security number could be found. There
were no vehicle registrations, no phone bills, and no
municipal utility bills connected to her. In addition,
Vicki's fingerprints, dental records, and DNA profile
were in national databases, and no hits were received on any
of these. At the time of trial, the Clearinghouse had been
actively searching for Vicki, alive or dead, for over 22
was also testimony from Vicki's mother, pastor, and a
co-worker that Vicki was a good mother who would not abandon
Nisbett's Suspicious Behavior and Statements to Law
morning after the Christmas party, Nisbett called Tower and
asked where his wife was. Tower responded, "You tell me.
What did you do with her?" Nisbett hung up.
did not contact Vicki's mother, Carol Johnson, for
several months after Vicki disappeared, and he did not allow
her to spend time with her grandsons until seven or eight
months later. He then limited her visits and exposure to the
boys-not allowing her to spend time alone with them. This was
a significant departure from the relationship Carol had
enjoyed with her grandsons before Vicki disappeared. Nisbett
explained that he needed to monitor the visits because he
needed to "protect himself."
apartment was designated a crime scene in January of 1992.
Chief Richard Elliott told the apartment complex manager,
Lori Johnston, that he suspected foul play at Vicki's
apartment, and she gave Elliott consent to investigate.
Nisbett showed up twice while investigators searched
Vicki's apartment. He first arrived at 6:30 p.m. and
wanted to know what the investigators were doing. Elliott
explained that they were looking for evidence in the master
bedroom. Nisbett assured everyone that Vicki was ok-that she
had just run away-and suggested that the investigators were
wasting their time. Chief Elliott testified that, although it
was cold in January, Nisbett was visibly sweating and
appeared to be "extremely nervous." Nisbett
returned later that evening at around 9:30 p.m. to inquire
about what the investigators discovered. Elliott told Nisbett
that he would have a preliminary report from the Crime Lab
the next day, and he invited Nisbett to come to his office at
the station then to go over all the information and his
theory about what happened to Vicki. Nisbett did not show up
at Elliott's office the next day. Instead, an attorney
called Elliott to say that Nisbett would not be showing up,
and he asked Elliott to refrain from speaking to Nisbett.
into the investigation, Elliot arranged for Vicki's
mother to get a message to Nisbett that investigators had
found Vicki's body. Elliott's hope was that this news
would spook Nisbett into some sort of action that would lead
them to evidence of Vicki's whereabouts, or perhaps the
remains of her body. Elliott set up unmarked patrol cars and
surveillance around Nisbett's apartment and waited for
Vicki's mother to give Nisbett the message. Elliott's
team watched Nisbett come outside of his apartment two times
and walk around in the parking lot for a few minutes before
going back inside. Nisbett was picked up by a female, and she
drove him up Highway 183. They went down a road that had
several large wooded areas, and they finally arrived at
Blockhouse Creek Elementary School. Elliott testified that he
later searched some of those areas with cadaver dogs, but the
wooded area was enormous, and the search was not fruitful.
Vicki disappeared, Nisbett gave various stories about where
he thought Vicki might be. He initially told investigators
that he believed Vicki had run off with another man because
she had done so on other occasions. Later into the
investigation, however, he stated that he thought Vicki was
visiting a girlfriend in Galveston. In the days after
Vicki's disappearance, Nisbett told Vicki's mother
that he did not know where Vicki was. Nisbett claimed that he
had hired a private investigator for $30, 000 to locate
Vicki, but he never provided the investigator's name or
was able to confirm that he had actually hired anyone. In
April of 1992, when notorious serial killer Kenneth McDuff
made the news in Texas as a possible serial killer, Nisbett
approached law enforcement to share his belief that McDuff
must have been responsible for Vicki's disappearance.
Chief Elliott testified that there were no leads or evidence
to support a theory that Kenneth McDuff was linked to
initially denied having any physical altercation with Vicki
on the evening of her party but later told investigators that
he pushed her away after she initiated a physical
altercation. He also told investigators that he stayed at
home with the kids the entire night Vicki disappeared, but
this statement was contradicted by his neighbors'
testimony that they babysat the kids and watched movies while
Nisbett borrowed Bubba's car.
The Check Nisbett Forged and Vicki's Car
days after Vicki's disappearance, Nisbett forged
Vicki's signature on one of her checks to pay for
gasoline. The check number was 698, and Vicki's bank
account indicated that this check had been written out of
sequence with other checks that Vicki had previously written
on the account. Nisbett appeared to be surprised to learn
that investigators were monitoring Vicki's checking
account, and he admitted that he had signed the check with
Vicki's name. This check was the only check that posted
to Vicki's account after she disappeared.
the sheriff's office released the license plate number of
Vicki's missing car in an attempt to locate it, Nisbett
called to ask why and seemed to be "a little upset and
concerned about that." About two months after Vicki
disappeared, police found the car in an HEB parking lot.
There was testimony that, before the car was recovered, it-or
a car that looked like it-had been seen intermittently at the
HEB parking lot.
though Nisbett's name was listed on the vehicle
registration, he refused consent to search the car. When
officers finally did search it, they found Vicki's
checkbook. Investigators noted an out-of-sequence check
missing from the checkbook that was later confirmed to be the
same check that Nisbett used to buy gas. Investigators
also discovered that the car's interior dome light had
been removed, disabling any automatic light function when the
Vicki's Blood in the Apartment and Appellant's
investigators initiated a search of Vicki's apartment
five weeks after she disappeared, when Nisbett was evicted. A
serologist observed stains on the carpet and on the sheetrock
on the walls. The stains were visible to the naked eye, but
it was not possible to determine what the stains were just by
looking. The results of a chemical test performed on the
stains confirmed that they were human blood.
serologist also sprayed luminol across the master bedroom and
discovered what appeared to be blood stains and drag marks.
Investigators pulled up the carpet and discovered a larger
concentration of blood that had soaked into the padding.
Using the same technique with the luminol spray,
investigators discovered what appeared to be a handprint, in
blood, on the wall next to a light switch. The investigators
excised the part of the sheetrock with the bloody handprint
and cut out sections of the bloody carpet and padding, and
sent the evidence to other laboratories for DNA and
bloodstains on the wall in Vicki's bedroom and on the
carpet and carpet padding in the bedroom closet were
determined to be made of Vicki's blood. The bloody
handprint on the wall was also determined to be made from
Elliott executed a search warrant in 1992 to procure sample
evidence of Nisbett's hair, blood, and finger and palm
prints. Nisbett told the officers that, regardless of the
warrant, he would not voluntarily give them any samples-they
would have to obtain the evidence by force. Elliott responded
that they would oblige Nisbett, but after he explained the
consequences of a physical altercation, Nisbett cooperated
and allowed investigators to take the samples. Latent print
specialists determined that the bloody handprint on the
sheetrock matched Nisbett's prints.
and his wife Julie had a troubled relationship and were
getting a divorce. Julie had moved out of Delacruz's
home, but she went there to pick up their daughter on March
26, 2010. She was never seen or heard from again. Electronic
evidence indicates that Delacruz deviated significantly from
his usual routine on the day Julie disappeared, that he
possessed Julie's cell phone, that he used her credit
card, and that he fabricated text messages and social media
posts purporting to be from Julie. Delacruz had made
statements disparaging his wife, and he engaged in suspicious
activity and made suspicious statements to law enforcement
and others on and after the date she disappeared. There was
also evidence that he dug a hole designed to bury a human
body, that Cadaver dogs alerted near this hole, and that
something had been burned near the hole. Julie's body,
however, was never recovered, and law enforcement never
located a possible murder weapon.
forth the facts developed at trial in further detail below.
Julie Was Known as a Responsible Person and Caring Mother
Who Had Many Close Relationships
and Julie married young and had a daughter together, L.D.
Julie was widely known as a mature and responsible individual
and as a caring and attentive mother who doted on her
daughter. Julie's mother, Sandra Soto, described Julie as
a very responsible person and observed that, even though
Julie prioritized her education and work, nothing was more
important to her than L.D. L.D. had asthma, and she required
medication. Julie was always prompt to take L.D. to her
doctor visits and to administer L.D.'s medicine when
worked as a pharmacy technician at Walgreens, and by all
professional accounts, she was a model employee. Her
supervisor considered Julie to be her best pharmacy
technician, and the one upon whom she depended the most. The
store manager found that Julie was capable of handling any
task and was never late for work. Julie was a very
happy-go-lucky person who got along with everyone, and she
never had any problems with co-workers or customers.
spent a great deal of time with her sister Samantha-going to
movies or dinner during the week, talking on the phone
"constantly," and "hanging out" together
every other weekend. Michael Soto, Julie's cousin, had a
close relationship with Julie and considered her to be more
like a sister. Julie was best friends with Natasha Navarro
and Amanda Hays, and the three of them "did everything
together." Julie was described by members of
Delacruz's own family-his mother, sister, and cousin-as
"smart," "kind," and valuing education.
Julie and Delacruz's Troubled Relationship
and Delacruz met during their last year of high school, and
they moved in together after graduation in 2006. They had a
daughter, L.D., and married in May of 2009. They moved in
with Delacruz's mother, Victoria Delacruz, where they
lived for a time with their young daughter and Delacruz's
three younger sisters.
after they married, Julie began to complain to her friends
and family that she was having problems in her marriage.
Delacruz was obsessed with playing video games, sometimes
playing for six or seven hours at a time. He spent most of
his time playing video games instead of maintaining a job,
attending to domestic duties, or caring for L.D. He even
played video games at the hospital while Julie was in labor.
Julie became concerned with Delacruz's ability to
adequately care for their daughter and would often express
concerns about leaving L.D. alone with him. According to
Julie's aunt, Julie did not like to go home because she
and Delacruz would argue about his incessant video gaming.
She would also often come home to find L.D. dirty, unfed, and
in need of her medication.
and Delacruz separated in November of 2009, and Julie moved
into her grandparents' house in Dripping Springs. Julie
used her tax refund to buy a new car, a 2006 Chevrolet
Impala. Julie was excited about having this new car-something
she could call her own-and it appeared to many that it
represented her financial achievement and personal
cousin Michael observed that Julie and Delacruz's
relationship became increasingly complicated after the birth
of L.D. and that Delacruz became controlling of Julie's
time and attention. Michael knew that Delacruz had physically
and verbally abused Julie more than once.
and Delacruz "hung out about three or four times"
over the course of a month after the separation until his
mother and Julie advised him to stop. Delacruz took Michael
to the mall to buy clothes, they went to a tattoo parlor
together, and they would sometimes "just drive around
and smoke." Michael believed that Delacruz was
attempting to remain in Julie's life by hanging out with
him, because whenever they spent time together, Delacruz
pried for information about Julie. Specifically, Delacruz
wanted to know what Julie was doing or if she was seeing
separation from Delacruz was difficult, and their
relationship was rocky. She had filed divorce papers, but
Delacruz refused to sign them. Despite their difficulties,
Julie always tried to maintain good communication with
Delacruz for L.D.'s sake. Matters were more difficult
when Julie had to interact with Delacruz in person while
picking up or dropping off L.D., and she typically went with
her cousin Michael on those occasions. In February of 2010,
Julie asked Michael and one of his friends to accompany her
to Delacruz's house to collect some of her possessions.
Although the visit was without incident, Michael's friend
thought that Delacruz was trying to get Julie alone in a
room, so Michael and the friend kept a watchful eye on the
supervisor at work received complaints that Delacruz was
"lingering around the pharmacy" in the waiting area
and watching Julie work. Delacruz called the pharmacy several
times while Julie was working, and Julie's
"productivity wasn't going very well because he was
totally trying to control every little situation."
Delacruz's behavior became so distracting that
Julie's supervisor had to kick him out of the store. Over
the course of her separation from Delacruz, Julie confided in
her supervisor. She said she was in fear for her life, that
Delacruz had said that if he couldn't have Julie or L.D.,
nobody would, and that he followed her around in his car.
Julie told her supervisor that "if anything ever
happened to her, it was him."
told her mother that she felt that Delacruz "was up to
something." The last time she talked to her sister
before her disappearance she kept repeating "that she
had a bad feeling."
inmate incarcerated with Delacruz after his arrest would
later recount a conversation in which Delacruz admitted to
physically assaulting a girlfriend and causing her to become
Julie's New Boyfriend
the same time that she separated from Delacruz, Julie started
to date Aaron Breaux, a man with whom she had shared an
on-again, off-again relationship in the past. After running
into each other at a grocery store, Julie and Aaron rekindled
their relationship through email and eventually started to
see each other regularly.
two or three months into her new relationship with Aaron,
Julie began staying over at his apartment. Although Julie was
initially cautious about bringing L.D. into her relationship
with Aaron, the relationship soon evolved to a point where
Julie was comfortable involving her daughter in her life with
Aaron. Photographs showed Julie, Aaron, and L.D. together at
the zoo, and Aaron's roommate was aware that Aaron
sometimes took L.D. fishing. L.D. frequently stayed overnight
at Aaron's apartment with Julie, where she also kept some
of her daughter's belongings.
Dear was Aaron's roommate of three years. According to
Josh, Julie and Aaron were taking the prospect of building a
future together seriously: they planned to eventually move
into their own apartment; they discussed their financial
situations; and they made itemized lists about how they could
meet the bills at the end of the month. And they discussed
the timing of their work schedules to figure out how to best
care for L.D.
March 25, 2010, Julie went to dinner with her friend Amanda
and with Aaron. According to Amanda, Julie was
"excited" and "overjoyed" at dinner.
Julie and Aaron talked happily about their future and made
plans to look at houses in which they could live together.
After dinner, Julie and Aaron returned to Aaron's
apartment where they watched a movie and stayed overnight.
Delacruz's Disparaging Online Statements About Julie