Howard Dale Bellamy v. State

Opinion issued December 17, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00534-CR

____________

HOWARD DALE BELLAMY, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1037846

MEMORANDUM OPINION

A jury convicted appellant, Howard Dale Bellamy, of capital murder and the

court assessed punishment at life in prison. See Tex. Penal Code Ann. § 19.03

(Vernon 2003). Appellant contends that the evidence adduced at trial is legally and

factually insufficient to support his conviction for capital murder. Further, appellant

contends that the trial court erred by failing to instruct the jury that Domonique

Alston was an accomplice as a matter of law, and that Geoffrey Harris was an

accomplice as a matter of law and as a matter of fact. We affirm.

Background

Around lunchtime on August 11, 2005, appellant and his girlfriend,

Domonique Alston, went to Joseph Fiorenza Park in southwest Houston to take their

two pitbull puppies on a walk. Appellant noticed complainant, Akhil Chopra, enter

the park alone. After Chopra walked by, appellant asked Alston to take the puppies

and leave the park. Confused, Alston questioned why appellant wanted her to leave,

but appellant refused to explain. Appellant "snap[ped]" and again told Alston to get

in the car and take the dogs. Alston did what she was told and started to drive north

on Eldridge Road.

Medical testimony revealed that Chopra died while lying on his back and was

subsequently rolled over on his side to remove the wallet from his back pocket.

Based on this and other evidence presented at trial, the prosecution theorized that

once Alston left the park, appellant walked up to Chopra with a .38 caliber revolver

and demanded he relinquish his wallet. Because of contusions and abrasions to

Chopra's face and hands that occurred just prior to his death, the prosecution

suggested that Chopra refused to give appellant his wallet, and a struggle ensued

during which appellant pistol-whipped and shot Chopra in the temple at point-blank

range.

After initially driving north on Eldridge Road for a couple of miles, Alston

turned around, intending to return to the park because she was "curious" about what

was going on. Alston found appellant walking away from the park at the intersection

before the entrance to the park's parking lot. Alston stopped and let appellant into

the car. Alston testified that, after appellant got into the car, he told her that he "had

the wallet from the man in the park." Alston observed appellant holding a brown

leather wallet. Although Alston testified that she did not see appellant with his gun

on the day in question, she also testified that appellant wore clothing that was about

two sizes too large and he could have kept the gun tucked in his waistband.

Appellant directed Alston to drive him to the apartment of his friend, Geoffrey

Harris. Once at the apartment, appellant told Alston to stay in the car while he went

inside. Harris and his girlfriend, Angel Coleman, were inside the apartment with their

newborn child. Both Harris and Angel saw appellant enter the apartment with a gun

and set it on a table. Harris took the gun and placed it under the sofa cushion because

he did not want the weapon around his child. Angel observed what appeared to be

blood on appellant's fingertips and one of his shoes. After Alston had been waiting

in the car for a few minutes, Harris emerged and told Alston to come inside the

apartment. Both Angel and Alston overheard appellant telling Harris how he had just

robbed and shot a man in the park. Appellant and Harris divided the contents of

Chopra's wallet, with Harris taking a debit card belonging to Chopra. Appellant later

admitted to investigators that he gave the debit card to Harris.

In the early morning hours of August 16, 2005, Houston Police Department

("HPD") Officer Curtis Scales apprehended Harris attempting to use Chopra's debit

card. While in custody, Harris initially told officers that he received the debit card

from a Corey Gibson but, later, told officers that appellant was the true perpetrator

of the offense. At trial, Harris testified that he initially lied to officers in an effort to

protect appellant. Harris testified that he was a member of the same gang as

appellant, and there was a "code about snitching."

Based on information from Harris, Alston, and Angel Coleman, an arrest

warrant was issued for appellant. Alston informed police that appellant was staying

at his mother's apartment, and Alston spoke with appellant on a land line at the

apartment just minutes before police officers arrived. Believing that the police

officers were coming to arrest him, appellant fled when he noticed what he believed

to be unmarked police cars pull into the apartment complex. Appellant testified he

spent that night "just roaming about on the streets."

At appellant's mother's apartment, HPD Officer Christopher Duncan recovered

a backpack containing several live and spent .38 caliber cartridges. The backpack

also contained several McDonald's paycheck statements in appellant's name. In

addition to the backpack, Officer Duncan found a loaded .38 caliber revolver with

a bullet chambered and a blue bandanna wrapped around the grip. The bullet

recovered from Chopra's body during the autopsy came from a firearm of the same

class as the pistol recovered from the apartment. The blue bandanna wrapped around

the pistol contained DNA from at least three different individuals. Appellant could

not be excluded as a possible contributor of the DNA.

Appellant was ultimately apprehended at the apartment of the mother of his

child, Kathy Whitson. Despite Whitson's lying to police officers that appellant was

not at the apartment, appellant was found hiding underneath a bed in a rear bedroom

of the apartment. Once apprehended, appellant admitted to HPD officers that the

firearm found at his mother's apartment belonged to him and that he had intended to

wipe the revolver clean of fingerprints before getting rid of it.

At trial, appellant claimed Harris was the true perpetrator of the offense and

that he received the revolver from Harris after Harris killed Chopra. Appellant also

claimed that Harris and Alston were conspiring together to frame him.

Appellant testified that, on the day of the offense, he and Alston were attending

orientation at a temporary employment agency. After the orientation, appellant stated

that he went to his grandmother's house around lunchtime and then spent the rest of

the day at Alston's apartment. In support of his alibi, appellant offered the testimony

of his cousin, Alton Coleman. Alton, who lived with his grandmother, testified he

heard appellant come into his room around noon on August 11, 2005. Alton testified

that he remembered that day specifically because his little brother had gone to school

to purchase books. However, according to a school district calendar, the school was

not open to students on August 11, 2005.

Appellant also offered the testimony of William Horn and Craig Vincent. Horn

testified that Harris called him around noon on August 11, 2005 and asked if he could

come over. Horn said that he heard sirens in the background of the call and that

Harris seemed "kind of nervous." Horn testified that Harris didn't say where he was

but then, said that Harris mentioned he was at or by a park. Horn refused to let Harris

come over but said he saw Harris later that day at Harris's apartment, where they

"chilled" for about 20 minutes. Horn went over to another apartment and saw Harris

again later that night. Horn also testified that he met with Harris a few days later at

a motel room Harris had rented. Horn testified that, while at the motel, he saw Harris

put a pistol wrapped in a blue bandanna in Corey Gibson's car trunk, and then, he saw

Harris give the pistol to appellant. On cross-examination, Horn stated that when he

spoke with Officer Scales and the prosecutor a week before trial , he failed to tell them

about the phone call from Harris asking to come over on the day of the offense, his

meeting Harris at the motel room, or his seeing the pistol. When he spoke with the

police, he told them that all he knew was that Harris had the credit card of a dead man

and was buying people gas.

Vincent testified that, on August 13, 2005, Harris called him saying he could

fill Vincent's truck with gas. At the gas station, Harris paid for Vincent's gas with

a credit card, and Vincent did not have to pay Harris anything in exchange. Harris

told Vincent that he had just "hit a lick," which Vincent understood to mean that he

robbed or killed someone. Vincent testified that he had seen Harris with the revolver

in question. Vincent was a member of the gang, the Crips, along with appellant,

Harris, and Horn. Vincent testified that there was a code among gang members that

"you look out for each other." Under cross-examination, Vincent testified he was

currently in jail and had several convictions, including theft, felony evading arrest

with a motor vehicle, and felony possession of a controlled substance. Vincent also

testified that he had met with a District Attorney Investigator a week prior to the trial.

When he met with the investigator, he was very concerned about being recorded and

only talked after the investigator assured him he was not being recorded. When he

spoke with the investigator, he did not mention seeing Harris with the pistol.

Appellant also presented Robert Benjamin as an expert on forensic DNA

analysis to testify regarding the DNA found on the bandanna. Benjamin testified that,

after his review of the DNA reports from the HPD, he concluded that Harris would

be just as likely to be a contributor of the DNA on the bandanna as appellant.

However, the lab Benjamin works with is accredited only as a paternity lab, not as a

forensics lab. Benjamin had never tried to become accredited in forensics. Benjamin

also testified that the HPD would probably not send work to his lab because "for

evidence work, they would most definitely want to use an accredited lab."

The jury returned a guilty verdict of capital murder. The court then sentenced

appellant to life in prison.

Analysis

A. Sufficiency of the Evidence

In his first two issues, appellant contends that the evidence is legally and

factually insufficient to support his conviction for capital murder.

1. Standard of Review

In our legal-sufficiency review, we view the evidence in the light most

favorable to the verdict and ask whether any rational trier of fact could have found

the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia , 443

U.S. 307, 319 , 99 S.Ct. 2781, 2789 (1979); Laster v. State , 275 S.W.3d 512, 517

(Tex. Crim. App. 2009). The standard is the same for both direct and circumstantial

evidence cases. Laster , 275 S.W.3d at 517-18 . We do not resolve any conflict of

fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the

function of the trier of fact. See Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim.

App. 1999).

In our factual-sufficiency review, we view all of the evidence in a neutral light.

Laster , 275 S.W.3d at 518 . We will set aside the verdict only if (1) the evidence is

so weak that the verdict is clearly wrong and manifestly unjust or (2) the proof of

guilt is against the great weight and preponderance of the evidence. Johnson v. State ,

23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see Laster , 275 S.W.3d at 518 . Under the

first prong of Johnson , we cannot conclude that a conviction is "clearly wrong" or

"manifestly unjust" simply because, on the quantum of evidence admitted, we would

have voted to acquit had we been on the jury. Watson v. State , 204 S.W.3d 404, 417

(Tex. Crim. App. 2006). Under the second prong of Johnson , we also cannot declare

that a conflict in the evidence justifies a new trial simply because we disagree with

the jury's resolution of that conflict. Id. Before finding that evidence is factually

insufficient to support a verdict under the second prong of Johnson , we must be able

to say, with some objective basis in the record, that the great weight and

preponderance of the evidence contradicts the jury's verdict. Id. In our

factual-sufficiency review, we must also discuss the evidence that, according to

appellant, most undermines the jury's verdict. Sims v. State , 99 S.W.3d 600, 603

(Tex. Crim. App. 2003).

The jury is the ultimate judge of credibility. Lancon v. State, 253 S.W.3d 699,

705 (Tex. Crim. App. 2008); see Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon

2007), art. 38.04 (Vernon 1984). The fact-finder alone determines the weight to be

to given contradictory testimonial evidence because that determination depends on

the fact-finder's evaluation of credibility and demeanor. Lancon , 253 S.W.3d at 706 .

The fact-finder may choose to believe all, some, or none of the testimony presented.

Id. at 707 .

In our sufficiency review, direct and circumstantial evidence are treated as

equally probative in establishing guilt, and circumstantial evidence alone can be

sufficient. Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). A

factfinder may draw an inference of guilt from the circumstances of flight. Id. at 780 .

2. Elements of Capital Murder

To establish that appellant committed capital murder, the State had the burden

to prove beyond a reasonable doubt that appellant intentionally caused the death of

an individual in the course of committing or attempting to commit a robbery. See

Tex. Penal Code Ann. §19.02 (b)(1) (Vernon 2003), § 19.03(a)(2) (Vernon Supp.

2009). A person commits a robbery if, in the course of committing theft and with

intent to obtain or maintain control of the property, he intentionally, knowingly, or

recklessly causes bodily injury to another, or intentionally or knowingly threatens or

places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. §

29.02 (a) (Vernon 2003).

3. Legal Sufficiency

In his first issue, appellant contends that the evidence is legally insufficient to

support his conviction. Specifically, appellant argues that the evidence is so weak

against appellant and so strong against Harris that no rational trier of fact could have

found beyond a reasonable doubt that appellant committed the offense. Appellant

recites selected facts (in several instances misstating the record), while failing to

mention other evidence, and concludes the jury should have believed that Harris

committed the offense. In other words, appellant argues that we should accept his

assessment of the evidence and substitute it for that of the jury.

Appellant's argument is misplaced. In our legal sufficiency review, we do not

resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any

witnesses, as this was the function of the trier of fact. Dewberry , 4 S.W.3d at 740 .

Here, testimony was given by Alston placing appellant at the scene of the crime

at the time of the offense. Alston saw appellant with Chopra's wallet walking away

from the park where the offense occurred. Appellant told Alston that he got the

wallet from the man in the park. Harris, Alston, and Angel all testified that appellant

said he shot Chopra, took his wallet, and then divided the contents of the wallet with

Harris. Appellant admitted to investigators that he gave Chopra's Wells Fargo card

to Harris. A firearm matching the kind used to kill Chopra was found with

appellant's belongings at his mother's apartment. Appellant could not be excluded

as the contributor of DNA on the bandanna wrapped around the firearm.

Appellant testified that he fled from his mother's apartment when he saw police

officers arriving because he believed they were there to arrest him. He was finally

apprehended several days later hiding under a bed at the apartment belonging to the

mother of his child. The jury would be justified in considering the circumstances of

his flight and apprehension as a piece of incriminating circumstantial evidence. See

Clayton , 235 S.W.3d at 780 .

Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational jury could have found beyond a reasonable doubt that appellant

intentionally caused the death of an individual in the course of committing or

attempting to commit a robbery. See Tex. Penal Code Ann. §§ 19.02 (b)(1),

19.03(a)(2). Therefore, the evidence is legally sufficient.

We overrule appellant's first issue.

4. Factual Sufficiency

In his second point of error, appellant argues that the evidence is factually

insufficient to support his conviction. Specifically, appellant argues that the Court

should substitute its assessment of the credibility of the witnesses for that of the jury

and should find that the verdict is contrary to the overwhelming weight of the

evidence. In addition, appellant continues argue the theory of the case he presented

at trial.

In his brief, appellant repeatedly misstates the record. First, he contradicts the

record when he argues that Alston testified that she never "s[aw] the victim of this

offense." (1) Again, appellant misstates the record when he argues that Alston never

testified that appellant said anything about robbing a man of his wallet at the park. (2)

Appellant argues Alston never saw the wallet that was taken from complainant.

However, the record reflects that Alston testified appellant had the wallet with him

when he got into the car, and she described it as a brown leather wallet. In addition,

appellant argues that on cross-examination Alston "maintained her story that . . . she

had never seen appellant with a gun and never knew appellant to handle or possess

a gun." (3) This is directly contrary to Alston's testimony at trial. Alston identified a

picture of the firearm at trial and testified she had seen it before and it belonged to

appellant.

Also, appellant misstates the record when he argues that testimony of Alston

and Harris was the only evidence that the State had against appellant other than the

fact that he was found with the gun. Appellant fails to mention that the testimony of

Alston and Harris was corroborated by Angel Coleman, Angel testified that appellant

had blood on his hands and one shoe, there was DNA evidence linking appellant to

the firearm, and appellant told investigators he gave the Wells Fargo card to Harris.

At trial, the jury was presented with two conflicting theories: the State's and

appellant's. In his defense, appellant offered an alibi that he was at his grandmother's

house around the time of the shooting. Appellant's cousin testified as an alibi

witness. His cousin said he remembered that day specifically because his little

brother went to buy books at school, but according to a school district calendar, the

school was not open to students on August 11, 2005. Thus, the jury was free to

disbelieve the cousin's testimony. See Lancon, 253 S.W.3d at 707 (holding the jury

may choose to believe some testimony and disbelieve other testimony). Similarly, the

jury was free to disbelieve the testimony of Vincent and Horn, the defense witnesses

whose trial testimony differed from statements given earlier to investigators. See id.

Appellant continues to argue his own theory on appeal. However, the jury was

able to assess the credibility and demeanor of the witnesses who testified at trial, and

we cannot disturb their credibility determination on appeal. See id. at 705 . (holding

that jury is in best position to judge credibility of witness, as opposed to appellate

court who relies on cold record). From the guilty verdict, it is clear that the jury

rejected appellant's exculpatory explanation.

Weighed in a neutral light, the evidence is not so weak that the verdict is

clearly wrong and unjust. See Laster , 275 S.W.3d at 518 . Also, there is no objective

basis in the record to conclude that the great weight and preponderance of the

evidence contradicts the jury's verdict. Id . Thus, we find the evidence is factually

sufficient to support the jury's determination of guilt.

We overrule appellant's second issue.

B. Accomplice Witness Jury Instruction

In his third and fourth points of error, appellant complains the trial court erred

in failing to instruct the jury regarding accomplice witness testimony. Specifically,

appellant claims the trial court committed reversible error by failing to instruct the

jury that Domonique Alston was an accomplice as a matter of law. Additionally,

appellant claims the trial court committed reversible error by failing to instruct the

jury that Geoffrey Harris was an accomplice as a matter of law or alternatively,

allowing the jury to determine if Harris was an accomplice as a matter of fact. The

trial court did give an accomplice-as-a-matter-of-fact instruction allowing the jury to

determine whether Alston was an accomplice. The charge instructed that, if the jury

found Alston to be an accomplice, the jury should not convict the defendant based on

her testimony, unless it found her testimony to be true, found other evidence in the

case tending to connect appellant with the offense charged in the indictment, and then

found from all the evidence beyond a reasonable doubt that appellant was guilty. See

Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). The trial court did not give

the instructions appellant claims it should have given.

1. Standard of Review for Jury Charges

A claim of jury-charge error is reviewed using the procedure set out in

Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). First, we determine

whether there is error in the charge. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim.

App. 2005) (citing Middleton v. State , 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)).

If error exists and the appellant objected to the error at trial, reversal is required if the

error "is calculated to injure the rights of the defendant," which is defined to mean

that there is "some harm." Almanza , 686 S.W.2d at 171 . If the error was not objected

to, it must be "fundamental" and will require reversal only if it was so egregious and

created such harm that the defendant "has not had a fair and impartial trial." Id.

Under both standards, we look to the actual degree of harm in light of the entire jury

charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel, and any other relevant information

revealed by the record of the trial as a whole. Id.

2. Types of Accomplices

An accomplice is an individual who participates with a defendant in the

commission of a crime by doing some affirmative act with the requisite culpable

mental state that promotes the commission of that offense. Cocke v. State , 201

S.W.3d 744, 748 (Tex. Crim. App. 2006) (citing Paredes v. State , 129 S.W.3d 530,

536 (Tex. Crim. App. 2004)). A defendant cannot be convicted upon the testimony

of an accomplice unless that testimony is corroborated by other evidence tending to

connect the defendant to the offense. See Tex. Code Crim. Proc. Ann. art. 38.14

(Vernon 2005). A witness may be an accomplice either as a matter of law or as a

matter of fact. Cocke, 201 S.W.3d at 747 . The evidence in the case determines what

instruction, if any, is appropriate to give to the jury. Id.

3. Omission of Instruction on Accomplice as Matter of Law

Appellant contends Harris and Alston were accomplices as a matter of law. As

a general rule, a person is an accomplice witness as a matter of law only when there

is uncontradicted evidence or evidence so persuasive a jury could not reasonably

disregard facts that conclusively make the witness guilty of the crime. Roseman v.

State, 382 S.W.2d 261, 263 (Tex. Crim. App. 1964). Additionally, there are

situations in which a person's status as an accomplice witness as a matter of law turns

not upon the evidence indicating guilt or innocence of the offense but rather upon the

witness's legal status. See Cocke , 201 S.W.3d at 747-48 . A witness is an accomplice

as a matter of law if the evidence clearly shows that he, like the defendant, could be

prosecuted for the offense or a lesser-included offense. Id. Where a witness is under

indictment for or has been convicted of the same offense or a lesser included offense

on which the defendant is on trial, the witness is an accomplice witness as a matter

of law. Id.; see also Burns v. State , 703 S.W.2d 649, 651 (Tex. Crim. App. 1985).

Neither Harris nor Alston was an accomplice as a matter of law. With regard

to both Alston and Harris, the evidence is not uncontradicted or so persuasive that the

a jury could not reasonably disregard facts that conclusively make the witness guilty

of the crime. Furthermore, neither witness's legal status makes him or her an

accomplice as a matter of law: neither Harris nor Alton was charged with capital

murder, murder, or robbery arising out of the transaction. See Roseman, 382 S.W.2d

at 263 . Harris was found guilty of credit card abuse, but that offense is not a lesser-included offense of capital murder, as it shares none of the same elements as capital

murder. See Tex. Penal Code Ann. § 19.03 (Vernon 2003), § 32.31 (Vernon Supp.

2009). Thus, we conclude that the trial court did not err in failing to provide an

instruction regarding Harris and Alston as accomplices as a matter of law.

4. Omission of Instruction on Accomplice as Matter of Fact

Appellant also contends that Harris was an accomplice as a matter of fact,

entitling him to an instruction allowing the jury to determine if Harris was an

accomplice.

Upon a timely request, the trial court is required to instruct the jury on any

defensive issue raised by the evidence at trial, whether that evidence is weak or

strong, unimpeached or contradicted, and regardless of what the trial court may think

about the credibility of the evidence. Tex. Code Crim. Proc. Ann. art. 36.14

(Vernon 2007); Granger v. State , 3 S.W.3d 36, 38 (Tex. Crim. App. 1999) . The trial

judge should include an instruction to allow the jury to decide whether a witness is

an accomplice if the evidence is conflicting and it is unclear whether a witness is an

accomplice. Druery v. State , 225 S.W.3d 491, 498-99 (Tex. Crim. App. 2007). The

instruction should define the term "accomplice," and instruct the jury on how to treat

the testimony if it finds the witness to be an accomplice. Id.

An imperfect objection to the proposed charge is sufficient to preserve error if

the record demonstrates that the trial judge understood appellant's request to

encompass the matters about which appellant now complains. Bennett v. State , 235

S.W.3d 241, 243 (Tex. Crim. App. 2007). The defendant need not invoke any "magic

words" in the jury charge request, as long as it is enough to bring the issue to the

court's attention. Id

The record of the charge conference does not reflect an objection or request for

the inclusion of an accomplice witness instruction. The record shows, however, that

trial counsel did object and that the trial court did overrule the objection. At a hearing

before the trial court following the trial, the trial court acknowledged on the record

that appellant's attorney did make a timely objection before the charge was read to

the jury, but the objection was inadvertently left off the record. Appellant requested

an "accomplice witness rule instruction as a matter of law as to both Geoffrey Harris

and Domonique Alston" and "alternately, an accomplice rule jury instruction as to

Geoffrey Harris and Domonique Alston as a matter of fact." The court included an

instruction allowing the jury the option of making a finding as to whether or not

Alston was an accomplice. With regard to the requested instructions as to Harris, the

court found that "the facts did not raise him as an accomplice in fact or at law." The

court's inclusion of the Alston instruction in the charge indicates that the court

understood appellant's request and that the request was timely made. Thus, error was

sufficiently preserved. See id.

Error in the charge, if subject to a timely objection, requires reversal if the error

is "calculated to injure the defendant's rights," meaning there is "some harm."

Almanza , 686 S.W.2d at 171 . Appellant must have suffered actual, rather than

merely theoretical, harm from the error. Warner v. State , 245 S.W.3d 458, 463 (Tex.

Crim. App. 2008).

Assuming without deciding that the trial court erred by not including an

accomplice witness instruction as to Harris, we proceed to a harm analysis. Here,

appellant made a timely objection so we apply the "some harm" standard.

A court's failure to submit an accomplice-as-a-matter-of-fact instruction may

amount to harmless error if some non-accomplice evidence exists tending to connect

the accused to the offense. Herron v. State , 86 S.W.3d 621, 632 (Tex. Crim. App.

2002). Under such circumstances the omission of the instruction is harmless because

its purpose has been fulfilled. Id. The purpose of the instruction is not to cast

suspicion on the testimony provided by the accomplice or to encourage jurors to give

it less weight than other testimony. Cocke , 201 S.W.3d at 747 . Rather, the

instruction merely reminds the jury that it cannot use the accomplice's testimony to

convict the defendant unless there also exists some non-accomplice testimony tying

the defendant to the offense. Id. (citing Herron , 86 S.W.3d at 632 ).

In determining the strength of a particular item of non-accomplice evidence,

we examine (1) its reliability or believability and (2) the strength of its tendency to

connect the defendant to the crime. Herron , 86 S.W.3d at 632 . Under the "some

harm" standard, the reliability inquiry may be satisfied if: (1) there is non-accomplice

evidence, and (2) there is no rational and articulable basis for disregarding the

non-accomplice evidence or finding that it fails to connect the defendant to the

offense. Id. Additionally, the weakness of the evidence of accomplice status may

affect the harm analysis. See Medina v. State , 7 S.W.3d 633, 643 (Tex. Crim. App.

1999) (finding failure to include accomplice as a matter of fact instruction harmless

under the "some harm" standard where there was a substantial amount of

non-accomplice evidence and the evidence of the witness's accomplice status was

tenuous and barely enough to support submission as an accomplice as a matter of

fact).

The jury was given an instruction regarding Alston as an accomplice as a

matter of fact. Because the jury was not asked disjunctively whether it found Alston

to be an accomplice, we cannot tell from the verdict whether the jury found her to in

fact be an accomplice. The testimony of one accomplice may not corroborate the

testimony of another accomplice. Chapman v. State , 470 S.W.2d 656, 662 (Tex.

Crim. App. 1971). We conduct our harm analysis assuming both Alston and Harris

are accomplices.

Even without the testimony of Alston and Harris, there is substantial evidence

of appellant's guilt, including:

•Angel Coleman's testimony corroborated Alston and Harris's accounts

of the conversation between Harris and appellant, in which appellant

admitted to shooting a man in the park because he would not give up his

wallet.

•Angel Coleman testified that appellant came over to the apartment she

shared with Harris and saw appellant with a gun and a brown wallet.

•Angel Coleman testified she saw blood on appellant's shoes and fingers.

•The pistol used in the offense was found with appellant's belongings at

his mother's home.

•Live and spent cartridges matching the pistol were found in appellant's

backpack.

•Appellant admitted to HPD officers that the pistol used in the offense

was his gun and that he intended to wipe the pistol clean of fingerprints

before getting rid of it.

•Appellant admitted to investigators that he gave the debit card to Harris.

•The blue bandanna wrapped around the pistol contained traces of DNA,

and appellant could not be excluded as a contributor of the DNA.

•When appellant believed the police were coming to arrest him at his

mother's home, he fled from the apartment and was later apprehended

hiding under a bed at the mother of his child's home.

Additionally, the evidence of Harris's accomplice status is tenuous at best, further

indicating the error was harmless. See Medina , 7 S.W.3d at 643 (holding that failure

to give accomplice jury instruction was harmless under the "some harm" standard

where there was substantial evidence of guilt and the evidence of accomplice status

was weak).

Taken together, rational jurors could conclude that evidence, excluding Harris

and Alston's testimony, sufficiently tended to connect appellant with the commission

of the crime. Here the corroborating evidence of guilt is sufficient to find that the

failure to instruct the jury was harmless. Any error the trial court may have

committed in failing to give the requested instruction was not harmful.

Because we find that the trial court did not err in not providing a jury

instruction regarding Harris and Alston as accomplices as a matter of law and that any

err in failing to instruct the jury regarding Harris as an accomplice as a matter of fact

was harmless, we overrule points three and four.

Conclusion

Having overruled appellant's four points on appeal, the judgment of the trial

court is affirmed.

George C. Hanks, Jr.

Justice

Panel consists of Justices Keyes, Alcala and Hanks.

Do not publish. See Tex. R. App. P. 47.2(b).

1. Alston testified that she remembered that a man walked by appellant and her as he was

entering the park. She testified that the man was alone and came from the direction of the

parking area.

2. Alston testified that, in the car, "He spoke first," and "He just said he had the wallet from the

man in the park."

3. While it is true that Alston told a private investigator hired by appellant that she never knew

appellant to have a gun, she testified at trial that she lied to the investigator to protect

appellant.