“[a] failure to instruct on the law of accomplice witnesses, especially where no charge was requested, is not reversible error where the evidence clearly warrants a conviction independent of the accomplice’s testimony”
How later courts described this case
- “[a] failure to instruct on the law of accomplice witnesses, especially where no charge was requested, is not reversible error where the evidence clearly warrants a conviction independent of the accomplice’s testimony”
- addressing egregious harm standard under Almanza in the context of failure to submit an accomplice-witness instruction
Written by the judges who cited it.
The opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00274-CR
NO. 03-12-00275-CR
Samuel Jones, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NOS. D-1-DC-12-904013 & D-1-DC-12-904014
HONORABLE CLIFFORD BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Samuel Jones of aggravated assault with a deadly weapon
and burglary of a habitation. See Tex. Penal Code §§ 22.02, 30.02. Jones was sentenced to forty-
five years’ imprisonment for the aggravated assault with a deadly weapon and forty-five years’
imprisonment for the burglary of a habitation. In a single point of error, Jones contends he suffered
egregious harm as a result of jury charge error. For the reasons that follow, we affirm the judgments
of conviction.
BACKGROUND
The jury heard evidence that on May 1, 2011, James Harper was cleaning his
backyard pool. Shortly after noticing a white Honda car with a loud muffler drive by, Harper saw
someone rolling his red power washer away from his garage. He immediately ran onto the street
and confronted an individual holding the power washer, positioning himself between the individual
and the white Honda. A confrontation ensued as the individual drew a knife and began swinging
it at Harper. The individual then ran down the street and jumped into the passenger side of the
white Honda. Harper was able to see the license plate number as the white Honda drove away. He
contacted police immediately, and they put out a “be on the lookout” (BOLO) alert for a car
matching that description and license plate number.
On May 20, 2011, Austin Police Department Officer Brian Narciso stopped a vehicle
matching the description of the white Honda and spoke with the car’s driver, Jarrod Burkett. Burkett
denied any involvement or knowledge in the crime, but mentioned he had loaned his car to an
individual named “Sam” around the time in question. At Officer Narciso’s instruction, Burkett
contacted the investigating detective and provided appellant’s name, Samuel Jones.
Although Burkett initially denied any involvement in the incident, he later entered
into an immunity agreement with the State and testified at trial. He testified that he had driven Jones
“to hit a lick,” as he described stealing something. Jones noticed a home with an open garage and
a visible power washer, so Burkett pulled the car over for Jones to get out. While waiting for Jones
to return, Burkett was able to see through the rearview mirror as Jones swung a knife at Harper.
Harper identified Jones in a photo lineup less than a month after the incident, saying
he was “very 100 percent confident” in his identification. When asked at trial if there was anything
distinctive about the man who attempted to stab him, Harper answered that the suspect’s teeth
were “really crooked” and “very, very brown.” With that recollection, Harper again identified Jones
as the assailant at trial.
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DISCUSSION
In his sole point of error, Jones contends the trial court erred by failing to provide the
jury an accomplice-witness instruction under article 38.14 of the code of criminal procedure because
Burkett was an accomplice as a matter of law.1 See Tex. Code Crim. Proc. art. 38.14 (explaining
corroboration of accomplice-witness testimony). Because Jones did not request such an instruction
at trial, to prevail on appeal he must show this alleged error resulted in egregious harm. See
Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991) (addressing egregious harm
standard under Almanza in the context of failure to submit an accomplice-witness instruction);
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (addressing unpreserved error).
The Accomplice-Witness Rule
An accomplice is someone “who participates with a defendant before, during, or
after the commission of the crime and acts with the requisite culpable mental state.” Cocke v. State,
201 S.W.3d 744, 748 (Tex. Crim. App. 2006). To be considered an accomplice, the witness “must
have engaged in an affirmative act that promotes the commission of the offense that the accused
committed.” Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (citing Druery v. State,
225 S.W.3d 491, 498 (Tex. Crim. App. 2007)). Evidence must exist connecting the alleged
accomplice to the offense as a “blameworthy participant,” but “whether the alleged accomplice-
witness is actually charged or prosecuted for his participation is irrelevant.” Cocke, 201 S.W.3d
at 748 (citing Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998)).
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Jones’s indictments were consolidated for trial.
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The evidence at trial dictates whether a witness may be an accomplice as a matter
of law or as a matter of fact. Smith, 332 S.W.3d at 439 (citing Cocke, 201 S.W.3d at 747). An
accomplice as a matter of law is a witness susceptible for prosecution for the same or lesser-included
offenses as the accused or who implicates himself in the same offense for which the defendant is
charged. Kerns v. State, 550 S.W.2d 91, 94 (Tex. Crim. App. 1977). The trial court is required to
give the jury an accomplice-witness instruction if a witness is an accomplice as a matter of law.
Cocke, 201 S.W.3d at 748. If the evidence does not clearly show the witness is an accomplice as a
matter of law, or if the parties present conflicting evidence as to whether the witness is an
accomplice, the trial court should allow the jury to decide whether the witness is an accomplice
as a matter of fact with an instruction defining the term “accomplice.” Druery, 225 S.W.3d at 498-
99; Cocke, 201 S.W.3d at 747-48 (citing DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim.
App. 1990)).
The evidence presented at trial shows Burkett acted with a culpable mental state,
actively participated with Jones before, during, and after the commission of the offenses, and acted in
a manner to promote the offenses with which Jones was charged. See Castillo v. State, 221 S.W.3d
689, 691 (Tex. Crim. App. 2007). Burkett knew that the very purpose of driving around with Jones
was to “hit a lick,” and his trial testimony implicated him in these offenses while also affirming his
voluntary participation. See Kerns, 550 S.W.2d at 94. The record also shows Burkett’s participation
continued beyond simply giving Jones a ride, with Burkett pulling the car over for Jones to steal the
power washer, waiting for his return, and driving away once Jones was back in the car. On these
facts, Burkett was an accomplice as a matter of law.
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When the evidence “clearly shows— i.e., there is no doubt— that a witness is an
accomplice as a matter of law,” the trial court has a duty to provide an accomplice-witness
instruction. Druery, 225 S.W.3d at 498. Such an instruction “merely informs the jury that it
cannot use the accomplice witness testimony unless there is also some non-accomplice evidence
connecting the defendant to the offense.” Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim.
App. 2002). Because Burkett was an accomplice as a matter or law, failure to submit an accomplice-
witness instruction was error.
Egregious Harm
Failure to submit an instruction on accomplice-witness testimony, absent objection
or request for such instruction at trial, is not reversible error where the evidence clearly warrants
a conviction independent of the accomplice’s testimony—egregious harm must be shown. Solis
v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). The egregious harm standard requires
“appellate review [to] inquire whether the jurors would have found the corroborating evidence
so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly
less persuasive.” Casanova v. State, 383 S.W.3d 530, 539 (Tex. Crim. App. 2012) (citing Saunders,
817 S.W.2d at 692). Reversal is required if the error “created such harm that he [the defendant] has
not received a fair and impartial trial—in short, egregious harm.” Solis, 792 S.W.2d at 98 (citing
Almanza, 686 S.W.2d at 171-72).
While the facts support the submission of an accomplice-witness instruction, the
prosecution’s case for conviction was not “actually made clearly and significantly more persuasive
by the error.” Saunders, 817 S.W.2d at 692. Sufficient corroborating non-accomplice evidence
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existed to connect Jones to the crimes, such as Harper’s “very 100 percent confident” identification
of Jones in a pretrial photo lineup and then again at trial. See Solis, 792 S.W.2d at 98 (quoting
Thompson v. State, 493 S.W.2d 913, 916 (Tex. Crim. App. 1971) (“[a] failure to instruct on the law
of accomplice witnesses, especially where no charge was requested, is not reversible error where the
evidence clearly warrants a conviction independent of the accomplice’s testimony”)). Although
Jones challenges a discrepancy between Harper’s description of the suspect’s height versus Jones’s
actual height, we defer to the factfinder’s resolution of any conflicts in the evidence and do not
independently construe non-accomplice evidence. Id.; Smith, 332 S.W.3d at 442.
Viewing the record in its entirety, we conclude that the corroborating evidence
from sources other than the accomplice is sufficient to connect Jones to the offenses, and as such
he did not suffer egregious harm due to the lack of an accomplice-witness instruction in the charge.
We overrule Jones’s sole point of error.
CONCLUSION
Having overruled Jones’s only point of error, we affirm the judgments of conviction.
Jeff Rose, Justice
Before Justices Puryear, Pemberton and Rose
Affirmed
Filed: August 14, 2013
Do Not Publish
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