Full opinion text
OPINION BOB PEMBERTON, Justice. We withdraw our opinion and judgment dated February 19, 2009, and substitute the following in its place. We overrule Hall’s motion for rehearing and the State’s “Supplemental Prayer for Relief on Appellant’s Motion for Rehearing.” In Pitonyak v. State, 253 S.W.3d 834 (Tex.App.-Austin 2008, pet. ref'd), this Court affirmed the conviction of Colton Pitonyak, an intermittent University of Texas student, for the murder of twenty-one year-old Jennifer Cave, whose dismembered body was found in Pitonyak’s West Campus-area condominium. Piton-yak was apprehended after fleeing to Mexico in the company of Laura Ashley Hall, a fellow UT student. This appeal arises from subsequent criminal proceedings against Hall Following a jury trial, Hall was convicted of the felony offense of tampering with physical evidence — namely, a human body or body part — and the misdemeanor offense of hindering apprehension. See Tex. Penal Code Ann. § 37.09(c), (d)(1) (West 2003), § 38.05(a), (c) (West Supp.2008). Punishment was assessed at five years’ imprisonment for the evidence-tampering offense and one year’s imprisonment for hindering apprehension. Hall appeals, bringing seven points of error. In her first two points, Hall seeks a new trial based on the State’s advocacy of what she contends were inconsistent factual theories during her trial and Pitonyak’s trial. Her third and fourth points raise claims of charge error. In her fifth and sixth points, Hall seeks a new trial based on allegations that the State suppressed or withheld evidence in violation of a discovery order and the Due Process Clause of the Fifth and Fourteenth Amendments, as construed in Brady v. Maryland and its progeny. In her seventh point, Hall seeks, in the alternative, a new punishment trial based on an additional claimed Brady violation. We agree with Hall that the State suppressed evidence in violation of a discovery order and Brady. While we conclude that these actions ultimately did not cause reversible error in Hall’s convictions, they do require a new trial on her punishment. BACKGROUND Although Hall does not challenge the sufficiency of the evidence supporting her convictions, several of her appellate points must be evaluated in the context of the evidence presented at trial. We accordingly review the evidence in some detail. Jennifer Cave’s disappearance, death, and discovery When last seen alive, Jennifer Cave was with Colton Pitonyak in Austin’s Sixth Street district during the late evening hours of Tuesday, August 16, 2005. On this particular evening, the pair was celebrating a new job that Cave had obtained with an Austin law firm, which she was to start the following day. By all accounts, Cave was very excited about her new professional opportunity. A friend of Cave, Michael Rodriguez, testified at trial that he spoke with Cave via cell phone several times that evening, the latest at 1:05 a.m. on Wednesday, August 17. During that final conversation, according to Rodriguez, Cave indicated that she was still with Pi-tonyak, who was beating on car windows and urinating in public. At approximately 3:00 a.m. that morning, according to witness Nora Sullivan — a former UT student whose connections to the underlying events included being a “good friend” of Pitonyak and down-the-hall neighbor in his condominium complex — Pitonyak showed up at her door alone indicating that he had misplaced his cell phone and asking to borrow hers. Sullivan recounted that Pitonyak, who appeared to her to be intoxicated, claimed to have exchanged gunfire at his condo with “two or three Mexican guys.” Sullivan testified that Pitonyak remained at her condo for approximately half an hour while the two visited and smoked cigarettes on her balcony. During their visit, Sullivan ascertained that Pitonyak had a handgun in his possession, which he unloaded in her presence. She added that Pitonyak also asked her if she noticed any blood on him. She noted a “smudge” of blood on Piton-yak’s arm. Despite her observations and Pitonyak’s statements, Sullivan did not contact police. She told the jury that she had simply dismissed Pitonyak’s tale of a gunfight as false because she had not heard any shots. That afternoon, Pitonyak purchased several items from Breed & Company, a hardware store located about four blocks from his condo: bathroom tissue, shop towels (described as a type of heavy-grade paper towel), 55-gallon drum liners, carpet cleaner, a quart of ammonia, Febreze odor eliminator, a two-pack of latex gloves, a small plastic-handled hack saw, and dust masks. These items, as well as a corresponding receipt, were later recovered from Piton-yak’s condo. The receipt indicated that the purchases were made on August 17 at 3:18 p.m. Jeffrey Breed, an owner of the hardware store, testified that he assisted a young man that afternoon in purchasing these items from what appeared to be a handwritten list. According to Breed, the young man was alone. Another receipt later recovered from Pitonyak’s condo reflected a purchase from a nearby Burger King at 3:26 p.m. In the meantime, Jennifer Cave had not shown up for work at her new job. The law firm attempted unsuccessfully to reach her by phone, and eventually sent someone to look for her at her apartment. Again having no success in finding her, the firm called Sharon Cave, Jennifer Cave’s mother, expressing concern. Sharon testified that after receiving the call, she made •several calls to Jennifer’s cell phone but did not get an answer. Sharon proceeded to contact Jennifer’s cell phone provider, obtained a list of her daughter’s incoming and outgoing calls the preceding evening, and began calling those numbers in an effort to locate her daughter. Through her calls, Sharon was able to determine that Jennifer had been out with Pitonyak the preceding evening. Piton-yak’s number had also appeared among Jennifer’s incoming or outgoing calls, and Sharon attempted unsuccessfully to reach him. Pitonyak later returned her call. Pitonyak, according to Sharon, acknowledged that he had been with Jennifer the preceding evening but claimed they had parted ways around midnight. At the same time, Sharon happened to be on a different phone line with Michael Rodriguez, the friend who had spoken with Jennifer by phone at 1:05 a.m. Rodriguez overheard Pitonyak’s statements and informed Sharon that Pitonyak was lying because Jennifer had indicated during their later call that she was still with Pi-tonyak. Sharon confronted Pitonyak with that assertion. Pitonyak, according to Sharon, “just got mad and hung up.” Around 6:30 p.m., Scott Engle, a former boyfriend of Jennifer, called Pitonyak. Engle testified that “I had previously called him [Pitonyak] toying to find Jennifer as well and left him a message and told him that I believed the cops were on their way to his house because we knew Jennifer’s car was over there.” Engle added that Pitonyak’s demeanor during this call was “[t]alking fast, jittery, nervous.” Sharon further testified that her fiancé, Jim Sedwick, was assisting her search efforts and had left a message that evening for Pitonyak to call him. Pitonyak called back, and Sharon answered. She confronted Pitonyak, “Colton, I know that you were with Jennifer. I want to know where she is.” Pitonyak, according to Sharon, responded, “Dude, I’m eating pizza with my friends. Leave me alone.” Thereafter, Sharon contacted Austin police to report her daughter missing. On the following morning, Thursday, August 18, 2005, Sharon, accompanied by Sedwick, drove from Corpus Christi to Austin, where they met another of Sharon’s daughters and continued efforts to locate Jennifer. Sharon testified that while en route, Austin police contacted them and advised that Jennifer’s car had been located at Pitonyak’s condominium building. Concerned about Jennifer’s safety and fearing that Pitonyak was somehow involved in her disappearance, Cave and Sedwick ultimately broke into Pitonyak’s condominium. Sedwick entered the unit. He discovered Jennifer’s body in the bathtub of the unit’s bathroom. Sed-wick immediately left the condo and called the police. Sedwick and Austin police found a gruesome scene in Pitonyak’s bathroom. Jennifer Cave’s head and hands had been severed and placed in plastic garbage bags found on the bathroom floor. A plastic-handled hacksaw — one of the items Piton-yak had purchased at the hardware store the preceding afternoon — was found laying on top of Cave’s headless torso. There were blood stains in the bathroom sink and on the carpeted floor of the condo’s living area. Police also found two bullet or shell casings on a table in the condo’s living room. An additional shell casing was found in the bathtub with Cave’s body. On the living room table was also found a folding buck knife and one of the blue shop towels. Each of these items, as well as the hacksaw, later tested positive for blood. A dishwashing machine in the unit’s kitchen area contained a machete and a steak knife. Also found in the unit were the other hardware items, an “Ace Hardware” bag, and the hardware store receipt, previously described. A pair of women’s flip flops was also found on the bathroom floor near the bathtub and toilet. Medical examiner Elizabeth Peacock performed an autopsy on Cave’s body and testified on its results at trial. She determined that Cave had been killed by a gunshot that had passed through Cave’s right arm into her chest, severing her aorta, before the bullet lodged near her back. Peacock could not determine an exact time of death, but opined that unconsciousness and death would have followed quickly after Cave had been shot. Based on the absence of gunpowder residue on Cave’s body, Peacock determined that the fatal shot had been fired from at least eighteen inches away. On Cave’s left hand was a stab wound that, according to Peacock, occurred at or shortly after the time of death. Peacock acknowledged that the wound might have been defensive in nature. There were also clusters of stab wounds in Cave’s upper right chest and on the right side of her face and neck. The stab wounds were determined to have been made by the same knife and were described as symmetrical and in line, although some intersected into “Vs.” Peacock opined that the stab wounds, as well as the severing cuts to Cave’s head and hands, were made between four and twenty-four hours after death. The severing cuts, according to Peacock, would have been “difficult” to make, especially the cut through the spine. During the autopsy, Peacock also discovered a bullet inside Cave’s skull. She determined that the bullet had been fired into the head post-mortem through Cave’s severed neck. Pitonyak’s car was found outside the condominium building. Inside it was a semi-automatic handgun. Forensics tests determined that the two bullets found inside Cave’s body and the three shell casings found in the condo were fired from this gun. A warrant subsequently issued for Pi-tonyak’s arrest for murder. With the assistance of Mexican authorities, Pitonyak was eventually located in a hotel room in Piedras Negras. He was in the company of appellant Hall. Mexican authorities expelled the pair from the country at the Del Rio border crossing on August 23, 2005, where Pitonyak was promptly arrested by U.S. authorities. He was later indicted for murder, convicted, and sentenced to a fifty-five-year prison term. As noted, this Court affirmed his conviction on appeal. See Pitonyak, 253 S.W.3d at 844-57. Criminal proceedings against Hall On September 20, 2005, Hall was indicted on a felony count of hindering apprehension or prosecution. See Tex. Penal Code Ann. § 38.05. Section 38.05 of the penal code provides, in relevant part, that a person commits an offense “if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense ... he: (1) harbors or conceals the other; [or] (2) provides or aids in providing the other with any means of avoiding arrest or effecting escape.” See id. § 38.05(a)(1), (2). The offense is a Class A misdemeanor unless “the person who is harbored, concealed, [or] provided with a means of avoiding arrest or effecting escape ... is under arrest for, charged with, or convicted of a felony ... and the person charged under this section knew that the person they harbored, concealed, [or] provided with a means of avoiding arrest or effecting escape ... is under arrest for, charged with, or convicted of a felony,” in which case the offense is a third-degree felony. See id. § 88.05(c), (d). Hall’s indictment for this offense alleged in two separate paragraphs that Hall “on or about August 19, 2005, in the County of Travis, and State of Texas, did then and there, with intent to hinder the arrest, prosecution, conviction or punishment of Colton Pitonyak for the offense of murder,” and while knowing “that the said Colton Pitonyak was charged with a felony, namely, Intentional Murder,” (1) “harbor or conceal Colton Pitonyak” and (2) “provide or aid Colton Pitonyak with means of avoiding arrest of effecting escape, to-wit: the Defendant assisted Col-ton Pitonyak in his flight from the State of Texas and provided transportation for Col-ton Pitonyak in his flight from the State of Texas.” On June 7, 2007, after Pitonyak was convicted of murder, Hall was indicted on a second-degree felony count of tampering with physical evidence. See id. § 37.09 (West 2003). Under the version of section 37.09 applicable to this case, a person committed an offense if the person, “knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense.” Id. § 37.09(d)(1) (West 2003). The offense was a third-degree felony. Id. § 37.09(c) (West 2003). Hall’s indictment for this offense alleged that Hall, “on or about August 17, 2005” — the date Cave was discovered missing and Pitonyak made his hardware store purchases — and “in the County of Travis, and State of Texas, did then and there, knowing that an offense, to wit: a murder, had been committed, alter or destroy or conceal a thing, to wit: a human body and biological evidence, with intent to impair its verity or availability as evidence in any subsequent investigation of or official proceeding related to the offense.” The two charges against Hall were consolidated for trial. Neither Hall nor Piton-yak testified at her trial. Hall’s participation in the Mexico trip The evidence implicating Hall in the charged offenses included the undisputed facts that during the evening of August 17, 2005 — after Pitonyak learned that authorities might be suspecting him of being involved in Jennifer Cave’s disappearance— Hall and Pitonyak left Austin and drove to Mexico in Hall’s car. Hall and Pitonyak’s cell phone records tracked the pair’s path south through New Braunfels during the 10 o’clock hour, then westward along U.S. 90 to Del Rio and the Mexican border. Along the way, Hall received a speeding ticket in Val Verde County, an indication that she was driving. The pair crossed the border into Mexico at 2:36 a.m. on the morning of August 18. Surveillance photographs from the border checkpoint shows the license plates on Hall’s Cadillac, and the car was later recovered by authorities when the pair was apprehended in Mexico. There was no evidence that Hall sought assistance from the authorities she encountered on her way to Mexico with Pitonyak. The jury also heard evidence that Hall made preparations for the trip earlier in the day. A receipt recovered from Hall’s Cadillac reflected a 3:47 p.m. purchase of approximately 19 gallons of gasoline and a car wash from a station located on East Oltorf in southeast Austin. This purchase occurred at roughly the same time as Pi-tonyak’s purchases from the hardware store and Burger King several miles away near the UT campus. The State conceded during closing argument that there was “no doubt” Pitonyak and Hall “were not together the entire day,” but urged that Hall’s gassing up and washing her car a few hours before leaving town was probative of a common plan with Pitonyak that included their respective “errands.” Later that evening, but before the pah- left Austin, Hall, accompanied by Pitonyak, stopped off at the apartment of some friends and picked up a bottle of rum or vodka she had previously left there. One of the roommates, Star Salzman, testified that Hall appeared “normal” and not in fear in any way. Hall’s presence at the crime scene The State also presented evidence of contemporaneous eyewitness perceptions, physical evidence, and phone records tending to show that Hall had been to Pi-tonyak’s condo on August 17 before the pah' left for Mexico. Cell phone records reflected a series of text and phone communications between Hall and Pitonyak beginning in the early morning hours of August 17. At the time, Hall had been staying overnight at the apartment of Star Salzman and his roommates (the apartment to which she later returned to pick up her liquor on her way out of town). Another of the roommates, Ryan Martin-dill, testified that Hall woke him at around 7:00 a.m. and asked him to drive her to her apartment so she could pick up her car. He did. According to Martindill, he understood that Hall was going to meet with Pitonyak and that “I think she said he was going to be leaving soon and she wanted to go spend some time with him.” The jury heard testimony about DNA testing performed on numerous items and sites at the crime scene, including the hacksaw, machete, buck knife, bloodstains in the living room and bathroom, various cloths or towels, and two dust masks found in the bathroom. Hall was statistically excluded as a contributor of DNA found on every item and site except for a blue shop towel found on a living room table — one of the items Pitonyak had purchased from the hardware store during the afternoon of August 17 — and one of the women’s flip-flops found in the bathroom. Neither Pi-tonyak nor Hall could be excluded as contributors of DNA found on the shop towel, and the probability of Hall being excluded as a contributor was 1:43. As for the DNA found on the flip-flop, neither Piton-yak, Hall or Cave could be excluded as contributors, and the probability of Hall being excluded as a contributor was 1:402. DNA testing was also performed on the handgun recovered from Pitonyak’s car. Neither Pitonyak nor Hall could be excluded as contributors of DNA found on the pistol’s grip, slide, or magazine. The probability of Hall being excluded as a contributor of DNA found on the grip was 1:1,112 and, for the slide and magazine, 1:88. The State’s DNA expert, Cassie Carri-dine, acknowledged that Hall’s probabilities of exclusion fell below the astronomical levels that would have constituted a conclusive “match.” By comparison, Car-ridine explained that Hall was determined conclusively to be the contributor of DNA found on women’s underwear and a pair of sweat pants recovered from her car; her possibility of exclusion for each of these items was 1:18.71 quadrillion. As another example, Cave was determined conclusively to be the contributor of DNA found on the hacksaw — her probability of exclusion was 1:130.1 quadrillion — and Pitonyak and Hall were excluded as possible contributors. Carridine also acknowledged that DNA testing - could not necessarily determine when a contributor had contact with a tested item or whether the item had been moved. During its subsequent deliberations, the jury asked for Cassidine’s testimony “in relation to the blue shop rags, the sandals from the bath room and the gun grip and magazine” to be read back to them. The jury also heard evidence tending to establish that anyone who had been in Pitonyak’s condo during the day on August 17 would have known about Cave’s shooting and death. Police investigators described Pitonyak’s condo as a one-bedroom efficiency, with a living and sleeping area, kitchen area, and single bathroom. The jury could reasonably have inferred that in this small area, Hall could not have missed such telltale signs as shell casings and a blood stain in the living room — -much less overlooked a dead body in the bathtub if she had entered the bathroom. Hall’s motive The State also presented evidence that Hall was highly motivated to protect Pi-tonyak or otherwise seek his favor without regard to his involvement in a grisly crime and even if it meant breaking the law. It was undisputed that Hall had a very strong and somewhat obsessive romantic interest in Pitonyak, while it appeared that Pitonyak was somewhat less interested. Joseph Smith, a deputy U.S. marshal present when Pitonyak was arrested at the border, testified that Hall “made statements regarding her love for Colton, that she wanted to get him out of jail, that she wanted to make a phone call.to talk to his attorney to get him out of jail, that she wanted to stand by him no matter what happened, and things to that effect.” Smith added that, “if someone had injured Colton, I believe she said that she would kill anyone who hurt Colton.” He added that Hall expressed the view “that it should be up to the friends of a murder victim to avenge them and it should not be a police matter.” Two days later, Hall returned to Austin, where she spent some time with Salzman and Martindill. Despite the murder charges pending against Pitonyak and what the record reflects was knowledge among her friends regarding the widely publicized macabre scene in his condo, Hall obtained a new tattoo of the name “Colton.” Hall and the State advanced competing theories during trial to explain her interest in Pitonyak. Hall’s counsel attempted to portray her essentially as the manipulated victim of a “sociopath,” who, at most, had exhibited bad youthful judgment in falling sway to the wrong kind of guy. The State portrayed Hall as a more menacing figure. There was evidence that Hall — like other friends of Pitonyak, including Cave — was aware that Pitonyak dealt drugs, was somewhat unstable, brandished guns or knives, and cultivated a gangster or “bad guy” persona. The State presented evidence to the effect that Hall reveled in the role of the gangster’s girlfriend and shared Pitonyak’s dark traits. It was able to introduce a printout of Hall’s Facebook page — last updated on August 15, 2005— reflecting, among other things, that Hall’s “Summer Plans” included “I should really be more of a horrific person. Its in the works.” Hall’s self-incriminating admissions To fill in the remaining gaps in its theory that Hall not only helped Pitonyak flee the country to avoid a murder charge, but helped dismember Cave’s body with intent to impede its use as evidence, the State relied on the testimony of four witnesses— Said Aziz, Henriette Langenbach, Nora Sullivan, and Javier Rosalez. Each of these witnesses recounted alleged self-incriminating admissions by Hall during the months before tidal. Said Aziz Aziz testified that he had been a friend of Hall, Cave and Pitonyak while a student at UT. He recounted that Hall had called him seeking advice during the early morning hours of August 23, 2005, a few hours after she and Pitonyak were expelled from Mexico. Aziz ultimately spoke with Hall three times that day. During their first conversation, at approximately 6:30 a.m., Hall, according to Aziz, described the Mexican police kicking in the door to the hotel room where she was staying with Pitonyak and taking him away, adding, “I can’t believe they found us so fast.” Aziz, who had previously heard that authorities had been looking for Pitonyak in connection with a murder, asked Hall how long she had been involved in the situation. Hall, Aziz claimed, replied, “I have been all up in this shit since two hours after it started.” Hall, according to Aziz, indicated she would tell the police that she “just thought they were on vacation.” Aziz responded “that my advice would be to start talking to police and tell the truth in order to stay out of trouble.” He concluded their first call by telling Hall that he was going back to sleep and would call her again later. They next spoke around 11:30 a.m. According to Aziz, “Laura said that she wanted to protect Colton and help him.... I do recall specifically that I became more agitated and I angrily told Laura that I could understand it being accidental if Col-ton had just shot Jennifer one time. I couldn’t believe that it was accidental with him stabbing her repeatedly and the other stuff.” Aziz asked Hall how the pair got to Mexico. Hall replied that she drove, adding that they went in her own car. Aziz then “asked Laura why she would want to help somebody who killed a girl very much like herself, to which she replied that she loves him, and, quote, ‘that’s just how she rolls.’ ” Hall, according to Aziz, also said she was not going to turn her back on Pitonyak, to which Aziz exclaimed that “I thought she was crazy and I was revolted by this crime.” He also indicated that “She refused to believe that people would help the police. I don’t understand necessarily why.” Aziz contacted the Austin Police Department and agreed to give a statement. At 3:35 p.m., as Aziz was in the parking lot by police headquarters preparing to go inside, he spoke to Hall again. Aziz described Hall as confused and distraught. She told him that the police were at her parents’ house investigating her involvement in the matter. Hall, according to Aziz, now claimed that “she didn’t know what was happening until the Mexican police came in.” Aziz “asked her to clarify” in light of the inconsistency with her prior statements, and asked her point-blank if she was lying then or had lied in her previous statements. Hall, Aziz indicated, stated that she had lied in first statement. He continued, “I asked her if she had just been blustering to appear tough and hard. She replied that she guessed so.” Henriette Langenbach After she was charged with hindering apprehension, Hall was held for a period of time in the Travis County Jail. She shared a cell with Henriette (also known as Erika) Langenbach, who was being held on two felony counts of securing the execution of a document by deception and a felony count of misappropriating property by a fiduciary. At the time of trial, Langenbach was on probation for these offenses. She provided by far the most detailed account implicating Hall in the charged offenses. Langenbach, who was in her early sixties, claimed that she developed a “motherly relationship” with Hall during their time together and that they had extensive conversations about Pitonyak and the Cave matter. Langenbach claimed that Hall professed that “she loved [Pitonyak] very much.” She added that Hall seemed to perceive the murder victim, Cave, as a romantic rival, appeared to be “extremely jealous” of Cave, and would typically refer to Cave as “Packing waitress ho.” Langenbach provided the jury essentially a step-by-step narrative of events in Pitonyak’s condo during the hours before Hall and Pitonyak left for Mexico. According to Langenbach, Hall “told me that when Colton called her at 5:30 in the morning, and when she arrived there, that he took her to the bathroom and showed her the body.” Langenbach claimed Hall told her that Pitonyak admitted shooting Cave and stabbing her body to make sure she was dead. After viewing the body in the bathtub, Hall then supposedly recounted that she and Pitonyak “first sat on the couch and talked about things.” Later, Hall purportedly told Langenbach, she used the bathroom toilet — in the same bathroom where Cave’s body lay — after Pitonyak closed the shower curtain to conceal the body in the bathtub. Hall, according to Langenbach, described Pitonyak’s demeanor at the time as drunk, drugged, “just beside himself,” “worth nothing,” and “freaking out.” Hall supposedly claimed that Pitonyak initially wanted to flee to Detroit or his parent’s house, but that she had convinced him this plan was foolish because he would get caught. Hall also allegedly revealed that “it was their plan to dispose of the hands, the feet and her head and put it in Colton’s car and drive it to a lake somewhere and dispose of the car that way with the body parts in it.” When asked if Hall indicated whose idea it was to dismember Cave’s body, Langenbach testified that Hall “gave me the impression that she was in charge of this operation” by portraying herself as “the one with the cool head,” while “all [Pitonyak] did was either scream or cry or swear.” Hall also supposedly boasted that Pitonyak had originally sought her out for help precisely because of her cool-headed character. Hall, Langenbach continued, claimed that she “told Colton to get the stuff he was supposed to get” and made him a list. The pair then separated to run errands. Hall went to the bank and to get gas, cigarettes, and something to eat and drink. Langenbach testified that she asked Hall, with apparent reference to Breed & Company, why Pitonyak went “to a small place like that” rather than “Home Depot.” Hall allegedly remarked that “the sweetheart, he’s extremely intelligent, but when it comes down to this, he just doesn’t know.” According to Langenbach, Hall told her she rejoined Pitonyak at a pizza restaurant. While Pitonyak was eating, Hall purportedly recounted, he received a call from Sharon Cave, “freaked out,” and “basically rushed through lunch.” The pair went back to Pitonyak’s condo “because they had made the decision already to go to Mexico then and they needed stuff from the apartment.” Hall allegedly “told me that she was the one that made the decision to go to Mexico because ... she speaks fluent Spanish.” While gathering belongings, Hall, according to Langenbach, observed that Cave’s head and hands had been placed in black and white plastic bags, a desciiption consistent with the evidence from the crime scene. The pair then drove to Mexico. Langenbach claimed that Hall described her time with Pitonyak in Mexico as “the six happiest days of her life.” Langenbach further testified that Hall told her the pair sought out a hotel with an Internet connection “to stay on top of things because they were worried that they had found the body in the meantime and that they would be looking for Col-ton.” Hall purportedly also indicated that they had planned to sell her car to get money to travel to Switzerland or Brazil, but ran into the obstacle that Hall had not brought the car’s title. Hall also allegedly admitted to Langenbach that she and Pi-tonyak discussed different versions of the “story that they would have for the police.” Langenbach also testified that Hall described details about the dismemberment, including where Cave’s hands were severed, and further observed, “if you cut up a dead body, there wouldn’t be that much blood” because blood would no longer be circulating. She also accused Hall of bragging, “How many grandmothers can tell their grandchildren that they cut up a body?” Langenbach described Hall’s demeanor regarding the horror of these acts “as just very cold, very unfeeling.” She added that Hall attributed her ability to run errands, eat, and perform other everyday tasks under these circumstances to Hall’s opinion that “intelligent people are able to compartmentalize things.” Langenbach further testified that Hall claimed she “didn’t understand what the big fuss was about” because, as Hall supposedly put it, Cave “was nothing. She was nobody. Colton had a full paid scholarship and Jennifer was just a waitress.” Nora Sullivan Sullivan was the friend of Pitonyak whom he had visited at approximately 3:00 a.m. on August 17. After giving her account of Pitonyak’s visit, which we have previously summarized, Sullivan testified that she had visited Pitonyak in the Travis County Jail between five and ten times, and that Hall had accompanied her on one of those visits in the spring of 2006. Over vigorous objections from Hall’s counsel, Sullivan was permitted to testify that Hall had made several key admissions following the jail visit. The basis of Hall’s objection was that the State had violated a discovery order by failing to disclose Hall’s alleged self-incriminating statements prior to trial. Hall, according to Sullivan, acknowledged that she had been in Pitonyak’s apartment after Cave’s death and that Pi-tonyak had been engaged in “his task” of dismembering Cave’s body. Sullivan further claimed that Hall “said that he [Piton-yak] was procrastinating and sitting in the living room and watching TV and drinking beer” and that she had “tried to motivate” Pitonyak “to get him to do it ... to convince him and get him moving.” When asked if Hall had indicated whether she played any direct role in the mutilation or dismemberment or Cave’s body, Sullivan testified, “She didn’t outright say so, but that was the impression I was given.” Javier Rosalez During the summer of 2006, Hall was working as a server at the Baby Acapulco restaurant on Austin’s Barton Springs Road. One of Hall’s co-workers was Javier Rosalez, who acknowledged having pri- or felony convictions for drugs and DUI for which he had served prison time. Ro-salez testified that restaurant staff had heard the “buzz” about the Cave death and dismemberment and became aware that the co-worker they knew as “Ashley”— Laura Ashley Hall — had been implicated in some manner. Rosalez probed Hall about it. He claimed that Hall was initially reluctant to discuss the matter, citing an ongoing investigation, but eventually opened up to him and “almost seemed kind of boasting at times.” Hall, according to Rosalez, “said she had — she had helped and then masterminded the escape to Mexico.” However, Rosalez testified that Hall did not further elaborate on the extent or nature of her “help.” He also denied that Hall had claimed to be the “mastermind” of Cave’s dismemberment. Rosalez added that Hall claimed “they would have gotten away with it” if she had not called her father from Mexico, which had prompted her father to turn them in. Rosalez also testified that he got into a heated argument with Hall after she once dismissed the incident as “a victimless crime” and opined that “they deserved to get away with it because they had already been locked up and they had learned them lessons.” On cross-examination, Rosalez admitted that he had gossiped to his co-workers about Hall’s purported statements to him, but did not contact police. He acknowledged that he divulged these statements to police only after police, having eventually heard about Rosalez’s statements to his coworkers, showed up at his house. At the time, Rosalez was still on parole. Hall’s trial counsel urged the jury to infer that Rosalez, fearing adverse parole consequences, had spread false or greatly embellished rumors about Hall, then stuck by these stories after authorities confronted him. The State countered by suggesting that Rosalez had far more to fear from a perjury charge if his account of Hall’s admissions proved to be false. Verdict The district court submitted the felony charge of hindering apprehension or prosecution with the lesser-included offense of misdemeanor hindering apprehension or prosecution. See Tex. Penal Code Ann. § 38.05(a), (c), (d) (offense is a felony if the defendant “knew that the person they harbored, concealed, [or] provided with a means of avoiding arrest or effecting escape ... is under arrest for, charged with, or convicted of a felony,” and is otherwise a misdemeanor). The jury found Hall not guilty of the felony offense but convicted her of the lesser-included misdemeanor. The district court separately submitted the offense of tampering with physical evidence with a lesser-included offense of attempted tampering with physical evidence. See id. § 37.09(d)(1) (West 2003). It refused a timely request from Hall to submit a lesser-included offense charge on the offense of failure to report human remains. See id,. § 37.09(d)(2) (West 2003). The jury found Hall guilty of tampering with physical evidence as charged in the indictment. Punishment phase The issue of Hall’s punishment was then tried to the jury. The State called a single additional witness, Douglas Conley. Conley testified that he was working as a taxi driver during the morning of August 6, 2006, when he picked up a woman, “Ashley,” from a West Campus-area residence and drove her to the Baby Acapulco’s on Barton Springs Road. In the courtroom, Conley identified the “Ashley” from his cab as Hall. The State elicited Conley’s testimony that Hall had made disparaging comments about Cave and exhibited a demeanor toward the victim that he characterized as “just cold, callous.” Conley recounted that he and “Ashley” had a conversation in which she divulged that she was having trouble getting into law school because of a pending felony charge. Upon inquiry, “Ashley” told Conley that the charge was harboring a fugitive, further indicating that the fugitive was her boyfriend, that he was charged with murder, and that he was innocent. Conley claimed that “Ashley” referred to the murder victim as “some bitch.” According to Conley, “Ashley” elaborated that the victim had caused her “a lot of difficulty” and that the person was “Jennifer Cave.” Hall presented her father, Loren Hall. He testified that his daughter had a history of academic success; working for prominent Austin law firms and lawyers; and participating in wholesome activities like debate, swimming, and rowing. According to Loren, his daughter’s personality and demeanor changed dramatically for the worse after she met Pitonyak. These changes, he claimed, included frequent use of derogatory terms for women. Loren added that after enduring her “trauma and things she was through with Colton,” Hall had been taking medication to control her affect and moods, that she had improved, and that “she is trying to improve herself ... building herself back up, having more respect for people.” Loren pleaded with the jury to give his daughter probation, urging that she would work hard to rehabilitate herself if given the chance. He cited an example of Hall having worked hard to overcome difficulties and succeed in a college math course. Hall also called Jason Mack, a former roommate of Pitonyak who also had known Hall and Cave. Mack testified that Piton-yak had borrowed money from Hall because he had needed to pay some “pretty bad characters.” Mack recounted that Hall came to Pitonyak’s condo two days before Cave’s murder to discuss the money issue with him. At the time, according to Mack, Pitonyak was drinking, drugged, “spazing out” because his anxiety medication had run out, and “had been up about nine days.” Mack claimed that Pi-tonyak physically threw Hall out of his condo. While Hall “was outside on the steps crying because [Pitonyak] had thrown her out,” Pitonyak, Mack indicated, pulled a gun out of a drawer and stated, “This bitch is getting on my f*cking nerves. I’m going to shoot her.” Mack eventually calmed him down, but later warned Hall that “you are going to get yourself killed” and that Pitonyak “is not in his right mind,” “hadn’t slept in nine days,” and “is getting delusional.” The jury imposed a sentence of five years’ incarceration for the evidence-tampering conviction, the maximum one year for hindering apprehension, and did not recommend community supervision for either conviction. Post-judgment proceedings Hall filed a motion for new trial or, alternatively, a new punishment trial. Of relevance to this appeal, Hall argued that the State had wilfully violated a discovery order by failing to disclose Hall’s alleged statements to Nora Sullivan. She also asserted that the State had violated Brady by failing to disclose impeachment evidence against Henriette Langenbach and Douglas Conley that she had discovered after trial. Both sides presented affidavits and documentary evidence. After a hearing, the district court overruled Hall’s motion in its entirety and subsequently entered findings of fact and conclusions of law. This appeal followed. ANALYSIS Inconsistent theories Hall’s first two points of error are predicated on her assertion that the State advocated a factual theory of her involvement in Cave’s dismemberment during her trial that was inconsistent with its theory during the Pitonyak trial. Citing excerpts from the closing arguments at each trial, Hall argues that during the Pitonyak trial “the State argued that it was Pitonyak’s idea to mutilate the body and the evidence showed appellant did not participate,” while “the theory and argument were exactly opposite” in her trial. In her first point of error, Hall argues that this claimed inconsistency violated her due process rights. See Thompson v. Calderon, 120 F.3d 1045, 1056-59 (9th Cir.1997) (en banc), rev’d on other grounds, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998); see also Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir.2000) (holding “that use of inherently factually contradictory theories violates the principles of due process.”). In her second point of error, Hall similarly contends that the State should have been judicially estopped from advocating its “inconsistent” theory in her trial. See Arroyo v. State, 117 S.W.3d 795, 798 (Tex.Crim.App.2003). The State disputes whether Hall preserved her due process complaint and asserts several reasons why it believes neither doctrine is implicated on the record here. We need only hold that there is no inconsistency between the State’s theories at each trial that would implicate either due process or judicial estoppel. During his trial, Pitonyak attempted to refute the mens rea element of murder by claiming that he had no recollection of shooting Cave and that he would not have harmed her intentionally. As for what Cave’s subsequent dismemberment and his flight might imply about his awareness of guilt, Pitonyak attempted to shift the blame for those acts to Hall. He denied any personal recollection of cutting the body himself and claimed that, after purchasing the hardware items, “I tried to go in there and do some cutting, but couldn’t.” During closing argument, the State attacked Pitonyak’s claims by emphasizing the relative amounts of DNA evidence linking Pitonyak to the dismemberment as compared to Hall: That mutilation shows you, that flight to Mexico shows you, he had a guilty conscience. He knew what he had done, he knew he shouldn’t have done it, and he was going to get out of there. They again want to blame [Laura Hall] for all of that. That’s all her doing. But, ladies and gentlemen, the evidence doesn’t support that.... That mutilation and trip to Mexico was Colton Pitonyak’s idea. And I will tell you why I know that. Look at the DNA. The only five places in this case [where] you see DNA of Laura Hall are two items of female clothing in a backpack that came back from Mexico, on a blue shop towel on the coffee table in front of the couch, on that handgun and on a sandal by the toilet in the bathroom. Those are the only five places. And these two men want you to believe that this one hundred whatever pound girl mutilating a body for hours, causing all sorts of injuries, doing what Dr. Peacock [the medical examiner] described as all kinds of work, she managed to do it without leaving any DNA. She is an absolute genius. The evidence doesn’t support that. There is a green washcloth with his blood. There is a pair of jeans in the washer with his blood. There is a faucet knob with a combination of Jennifer and Colton. There is a smear on the wall, blood, and Colton. There is a smear in the bathtub, Jennifer and Colton. That same shop towel that had Laura Hall, Colton Pitonyak, and he, too, is on that gun.... You don’t get injured, you don’t bleed as a result of an accidental gunshot being feed. You get injured mutilating a body in a bathtub. During Hall’s trial, the State argued: If you have any doubt that Jennifer Cave was altered, destroyed or concealed, (demonstrating), that is Jennifer Cave. And the manner in which she was found was altered, it was destroyed, it was concealed in bags. That’s the offense. You know Laura Hall was involved in that because of what she told people.... “All up in that” does not mean that you had no idea there was a body in that bathtub. She knew from two hours after he killed Jennifer Cave what they needed to do to avoid his conviction, his prosecution, his punishment and conviction. And that plan went into action with a 13-minute phone call at 6:00 a.m. on August 17th. The next statement would be Hen-riette Langenbaeh.... There were two white bags, one for the hands, one for the head. She told you that Laura Hall told her that the feet, the hands and the head are used for identification purposes. ... The course of actions during the next day. He ... went to Breed’s, I went to gas the car.... The next statement she made was to Nora Sullivan after her release from jail ... Nora told you what Laura said, is that she was the mastermind behind the tampering with the evidence[].... Nora told you she [Hall] was frustrated because Colton wouldn’t do what Colton needed to do.... She acted with the intent to make sure that he didn’t get arrested, convicted, punished for the offense of murder. In doing so, she helped him get to Mexico, she helped get him out of Apartment 88 at 2529 Rio Grande. She helped mutilate that body, and she did whatever she could to try to make sure those items were not available in any subsequent proceeding against Colton Pitonyak. And yes, they failed to finish the job, but that does not get you to attempt. Attempt is only if you find that she [Cave] was not altered or concealed or destroyed. Hall characterizes the State’s arguments before the Pitonyak jury as tantamount to an assertion that she was innocent of any involvement in Cave’s dismemberment. To the contrary, as the district court observed when rejecting this argument below, “[i]t looks like [the State] is saying that [Hall] alone could not have done that,” not that Hall had not participated in the dismemberment to any extent. The State’s theory in the Pitonyak trial, in other words, was that Pitonyak must have been heavily involved in the dismemberment because Hall left relatively little DNA and this fact was inconsistent with the sort of struggle Hall would have had if she had acted alone in cutting through Cave’s spine and hands. This theory does not logically foreclose or contradict the State’s theory during Hall’s trial that “[s]he helped mutilate that body” in some manner and was culpable at least as a party. At most, there may be some potential tension between the State’s current depiction of Hall as the “mastermind” of the evidence-tampering scheme and its arguments before the Pitonyak jury that the “mutilation and trip to Mexico was Colton Pitonyak’s idea.” However, these two views can be reconciled to the extent that Hall could have been the mastermind of a plan for accomplishing a dismemberment that Pitonyak had initially conceived. To violate due process, an irreconcilable inconsistency must exist at the core of the State’s cases. See Groose, 205 F.3d at 1050-52 (due process violated by contradictory theories in murder trials of co-defendants — in one case, that the victims had been killed before a defendant began to participate in a burglary, and in the other, that the victims had been killed after the defendant began to participate in the burglary). There was no such inconsistency here. We overrule Hall’s first point of error. We similarly conclude that judicial estoppel is not implicated here. Judicial estoppel prohibits a party who has taken a position in an earlier proceeding from subsequently taking a contrary position. Davidson v. State, 737 S.W.2d 942, 948 (Tex.App.-Amarillo 1987, pet. ref'd); see Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 11-13 (Tex.2008) (“The doctrine of judicial estoppel precludes a party from adopting a position inconsistent with one that it maintained successfully in an earlier proceeding.”) (citations omitted). The doctrine is not, strictly speaking, es-toppel, but rather “arises from positive rules of procedure based on justice and sound public policy.” Davidson, 737 S.W.2d at 948. Its essential function is to prevent litigants from taking contradictory positions in successive proceedings. Id. Concluding that there is no inconsistency in the State’s theories against which justice or sound public policy would require judicial estoppel’s application here, we overrule Hall’s second point of error. Charge error Refusal to submit failure to report human remains The offense of tampering with physical evidence for which Hall was convicted was defined in section 37.09(d)(1) of the penal code. See Tex. Penal Code Ann. § 37.09(d)(1) (West 2003). Subsection (d)(2) of that statute defined a misdemean- or offense of failure to report human remains. See id. § 37.09(d)(2) (West 2003). In her third point of error, Hall argues that the district court abused its discretion in refusing her request to submit a lesser-included-offense charge on failure to report human remains with the court’s charge on tampering with physical evidence. We review the district court’s decision regarding a lesser-included-offense charge for abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App.2004). A trial court may instruct the jury on a lesser-included offense if (1) the offense in question is a lesser-included offense under article 37.09 of the Texas Code of Criminal Procedure, and (2) the record contains some evidence that would permit a rational jury to find the defendant guilty only of the lesser-included offense. See Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App.2005). This two-pronged test is often referred to as the Aguilar/Rousseau test. See id. (citing Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993)). An offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4)it consists of an attempt to commit the offense charged or an otherwise included offense. Tex.Code Crim. Proc. Ann. art. 37.09 (West 2006). Hall urges that the offense of failure to report human remains is a lesser-included offense because it is established by proof of the same or less than all the facts required to establish the commission of the charged offense of tampering with physical evidence. See id. art. 37.09(1). The court of criminal appeals has explained that “the facts required to establish the commission of the charged offense” under this analysis refers to the facts as alleged in the charging instrument. See Hall v. State, 225 S.W.3d 524, 534-35 (Tex.Crim.App.2007). Therefore, “the determination of whether a lesser-included offense is involved should be made by comparing the elements of the greater offense, as the State pled it in the indictment, with the elements of the statute that defines the lesser offense.” Peavey v. State, 248 S.W.3d 455, 467 (Tex.App.-Austin 2008, pet. ref'd). This component of our analysis presents a question of law. Hall, 225 S.W.3d at 535. Hall’s indictment for tampering with physical evidence alleged, in relevant part: that Laura Hall, on or about the 17th day of August, 2005, and before the presentment of this indictment, in the County of Travis, and State of Texas, did then and there, knowing that an offense, to wit: a murder, had been committed, alter or destroy or conceal a thing, to wit: a human body and biological evidence, with intent to impair its verity or availability as evidence in any subsequent investigation of or official proceeding related to the offense. As the offense was alleged in the indictment, the State was required to prove the following elements: (1) Hall; (2) knowing that a murder had been committed; (3) altered, destroyed, or concealed a human body; (4) with intent to impair its verity or availability as evidence in any subsequent investigation or official proceeding related to the offense. The statutory elements of the offense of failure to report human remains were: (1) a person, (2) “observes human remains under circumstances in which a reasonable person would believe that an offense had been committed,” (3) “knows or reasonably should know that a law enforcement agency is not aware of the existence of or location of the remains,” and (4) “fails to report the existence of and location of the remains to a law enforcement agency.” Tex. Penal Code Ann. § 37.09(d)(2) (West 2003). Hall argues that the indictment allegations that she knew a murder had been committed and intentionally concealed a human body contains the failure-to-report-human-remains statutory element of “observes human remains under circumstances in which a reasonable person would believe that an offense had been committed.” Similarly, Hall contends that the indictment allegation that she “concealed” a human body contains the statutory element of “fails to report the existence of and location of the remains to a law enforcement agency.” However, the State could prove each element of evidence-tampering as alleged in the indictment without needing to prove the statutory element that Hall “knows or reasonably should know that a law enforcement agency is not aware of the existence of or location of the remains.” To the contrary, Hall could, knowing that a murder had been committed, alter, destroy or conceal a human body with intent to impair its verity or availability as evidence even if she knew or reasonably should have known that law enforcement officers already were aware of the remains’ existence and were on their way to the scene. Consequently, the offense of failure to report human remains would not be established by proof of the same or less than all the facts required to establish the commission of the charged evidence-tampering offense. The first step of the Aguilar/Rousseau test is not met. We need not reach the second step. See Peavey, 248 S.W.3d at 468. We hold that the offense of failure to report human remains was not a lesser-included offense of tampering with physical evidence as alleged in the indictment. The district court did not abuse its discretion in refusing to submit a lesser-included offense charge on failure to report human remains. We overrule Hall’s third point of error. Failure to define “murder ” Tracking the indictment, the jury charge on tampering with physical evidence required the State to prove, among other elements, that Hall acted “knowing that an offense, to wit: a murder had been committed.” Under the penal code, a person commits “murder” if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b) (West 2003). The penal code further provides that “[a] person acts intentionally, or with intent, with respect to ... a result of his conduct when it is his conscious objective or desire to ... cause the result.” Id. § 6.03(a) (West 2003). “A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Id. § 6.03(b). Reading the jury charge together with the penal code’s definition of “murder” would mean that the State was required to prove that Hall was aware at the time of her alleged acts that Pitonyak had shot Cave with the conscious objective or desire to kill her or cause her serious bodily injury, with awareness that his act was reasonably certain to kill her, or in the course of and in furtherance of his commission or attempted commission of a felony other than manslaughter. However, the jury charge did not include this definition of “murder” from the penal code, or any definition of the term. In her fourth point of error, Hall argues that the district court reversibly erred in failing to include the penal code’s definition of “murder” in the jury charge on evidence-tampering. She urges that without this definition, the jury could “apply their own personal definitions” and “was free to convict appellant even if they found the homicide was committed recklessly or with criminal negligence.” See id. §§ 19.04 (manslaughter, or recklessly causing the death of an individual), 19.05 (criminally negligent homicide) (West 2003). We review Hall’s claim under the two-pronged test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). Under the first prong of the test, we determine whether charge error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). The State concedes in its brief that “[s]ince the jury necessarily had to use the term ‘murder’ in properly resolving the issues in this case,” the district court erred in failing to supply the penal code’s definition of the term. See Arline v. State, 721 S.W.2d 348, 352 n. 4 (Tex.Crim.App.1986) (“[A] statutorily defined word or phrase must be included in the charge as part of the ‘law applicable to the case.’”). Because the State concedes that error exists, our disposition of Hall’s complaint turns solely on the second prong of the Almanza test— whether the error caused “harm.” Ngo, 175 S.W.3d at 743. The degree of harm required for reversal depends on whether Hall preserved her charge error complaint in the district court. If she preserved the complaint by timely objection, the record must show only “some harm” for reversal. Almanza, 686 S.W.2d at 171. By contrast, if Hall failed to preserve the complaint, the error would require reversal only if it resulted in “egregious harm.” See Neal v. State, 256 S.W.3d 264, 278 (Tex.Crim.App.2008). The State argues that Hall failed to preserve her complaint and that the error did not cause egregious harm. Hall acknowledges that she never specifically objected to the district court’s failure to define “murder” in the charge, but suggests that she “[a]rguably” called the error to the district court’s attention when arguing a motion for instructed verdict on the evidence-tampering offense. Hall relies on the following statements by her trial counsel: Your honor, I want my record to be complete. Both sides having closed as to the indictment on tampering, again, the defendant would request an instructed verdict as to this charge. Looking straight at the face of the indictments, it requires actual knowledge that an offense, a specific offense, murder, had been committed. Murder is a legally defined term of art. It is not synonymous with lulling. It is not synonymous with death. Murder is a legally defined conclusion, and there is no evidence that Ms. Hall could have known a murder could have been committed. For that reason — and there is no proof, there is nothing in the record to show that she knew at any point that a murder had been committed.... Murder being a term of art defined by law, we believe that we are entitled to an instructed verdict on that as well. We cannot agree that these statements preserved Hall’s c