Alex Morris v. State

Opinion issued April 5, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00515-CR

———————————

alex morris, Appellant

V.

The State of

Texas , Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Case No. 1010110

MEMORANDUM OPINION

A

jury convicted Alex Morris of murder and sentenced him to thirty-five years’

imprisonment. [1]

Morris appeals on the ground that the trial court erred in its refusal to

submit an accomplice-witness jury instruction, either as a matter of law or as

a matter of fact. We affirm.

Background

The

State charged Morris with murder, and Morris pled not guilty. At trial,

witnesses testified about an altercation between Morris’s cousin, Johnson, and

another man, Burnett. As a result of that altercation, Morris, Johnson, and a

third companion, “Brandon,” went to Burnett’s dorm room to confront him.

Burnett and his roommate initially did not answer the door, but Burnett, his

roommate, and a group of others at the dorm then caught up with Morris,

Johnson, and Brandon in a parking lot outside of the dorm. Among the people in

the group that went to the parking lot was Ashley Sloan. During the confrontation

in the parking lot, someone in Morris’s group discharged a gun in the direction

of the group in which Burnett was standing. One of the bullets struck Sloan in

the head, causing her death.

Several witnesses identified Morris

as the shooter. One of these witnesses was Morris’s cousin, Johnson. While

other witnesses testified that they actually saw Morris shoot the gun, [2] Johnson testified only that

he heard shots and turned to see Morris with a gun, his arm raised. [3] Johnson was never charged

with any crime, but he received immunity for his testimony. Morris requested

that the trial court instruct the jury that Johnson was an accomplice-witness

as a matter of law or, alternatively, to decide whether Johnson was an

accomplice-witness as a matter of fact. The trial court refused the

instruction.

The jury convicted Morris of murder

and sentenced him to thirty-five years’ confinement. Morris filed this appeal,

challenging the trial court’s ruling on his request for an accomplice-witness

instruction in two issues.

Standard of Review

If the evidence at trial raises a

question of fact as to whether a witness is an accomplice, the trial court must

instruct the jury to decide whether the witness is an accomplice; if the

evidence conclusively establishes that a witness is an accomplice, the trial

court must instruct the jury that the witness is an accomplice as a matter of

law. Druery v. State , 225 S.W.3d 491 , 498–99 (Tex. Crim. App.

2007). We review a trial court’s determination of whether the evidence supports

either accomplice-witness instruction under an abuse of discretion standard. Paredes v. State , 129 S.W.3d 530, 536 (Tex. Crim. App.

2004).

Accomplice-Witness Instruction

Under

article 38.14 of the Code of Criminal Procedure, a criminal conviction may not

be based on the testimony of an

accomplice-witness unless the testimony is “corroborated by other evidence

tending to connect the defendant with the offense committed.” Tex. Crim. Pro. art .

38.14 (West 2011). A witness is an accomplice-witness

only if he participates in the crime with the defendant, taking “an affirmative

act . . . to assist in the commission of the [crime]” before, during, or after

the commission of the crime, with the required culpable mental state for the

crime. Druery ,

225 S.W.3d at 498–99; see also Paredes , 129 S.W.3d at 536 . Mere presence at the scene

of the crime does not render a witness an accomplice. Druery , 225 S.W.3d at 498 ; Cocke v. State , 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). Neither is a

witness an accomplice-witness merely because he knew of the crime and failed to

disclose it or even concealed it. Druery , 225 S.W.3d at 498 .

The fact that Johnson was not charged

with a crime does not establish that he was not an accomplice, and the fact

that Johnson received immunity for his testimony does not establish that he was

an accomplice. See Cocke , 201 S.W.3d at 748 (“whether the

alleged accomplice-witness is actually charged or prosecuted for his

participation is irrelevant”); Moulton v.

State , 508 S.W.2d 833, 836 (Tex. Crim. App. 1974) (rejecting argument that

immunity from State made witness an accomplice-witness as a matter of law). Morris

asserts that Johnson was an accomplice to the crime because he: (1) “brought an

armed companion” with him to confront Burnett after their altercation, (2) “pointed

out [Burnett] immediately before the perpetrator fired shots,” (3) “fled with the

perpetrator,” and (4) “made a false report to the police.”

With respect to his first contention, Morris does not

identify any evidence that Johnson knew that Morris (or anyone) had a gun

before the shots were fired. The only evidence Morris cites regarding the gun

before the shooting is the testimony of Burnett’s roommate, Kimbrough.

Kimbrough testified that, leading up to the confrontation in the parking lot,

someone knocked on the door of the dorm room he shared with Burnett. He looked

through the peephole in the door and saw Johnson, Morris, and Brandon. He

testified that Morris was standing behind Johnson and that Morris had a gun

“discreetly” tucked into his waistband. Kimbrough’s testimony does not

establish that Morris’s gun was within Johnson’s sight, and Johnson expressly

testified that he did not know that Morris had a gun before the shooting. [4]

With respect to Morris’s second contention—that Johnson

pointed out Burnett immediately before Morris began shooting—Morris does not

provide a citation to the record to support this contention. Elsewhere in his

appellant’s brief, Morris asserts, “Johnson pointed at [Burnett,]” citing to

testimony in the record from Burnett. In the cited testimony, Burnett referred

to someone by Johnson’s first name, stating that the person pointed at him,

then took out a gun and began shooting. Taken in the context of Burnett’s

testimony as a whole, however, it is clear that Burnett is referencing Morris, who

Burnett repeatedly identified as the person with a gun who did the shooting, rather

than Johnson. [5]

Morris’s contentions that Johnson “fled with the perpetrator”

and “made a false report to the police”

are also unpersuasive. Johnson testified at trial that he ran away after

hearing the gun shots and that Morris and “Brandon” caught up to him at the

corner of Wentworth and Tierwester , where they

stopped and conversed briefly about what had happened. They then ran together

to a friend’s house.

Johnson also testified that when he reported the shooting to

campus police the next morning, he did not identify Morris as the shooter. He

testified that he did not identify Morris to the police until the following

Monday, when they came to his apartment to ask him more questions.

Even if this evidence demonstrates that Johnson fled the

crime scene with Morris and failed to disclose everything he knew to the police

when he filed his initial police report, it is not evidence that Johnson took

an affirmative act to assist Morris in the murder. See Rushing v. State , 813 S.W.2d 646 , 648–49 (Tex. App.—Houston

[14th Dist.] 1991, pet. ref’d) (holding that witness who was at scene of crime

and fled crime with perpetrator was not accomplice-witness because “there was

no evidence that [he] committed an affirmative act to assist appellant in the

stabbing”). Flight from a crime scene and failure to report a crime after the

fact may subject a witness to prosecution as an accessory to a crime but does

not, alone, subject the witness to prosecution for murder. See id. (“[The witness’s] flight from the crime scene and failure

to report the murder immediately made him subject to prosecution as an

accessory pursuant to [section 38.05 of the Penal Code]. The record, however,

includes no evidence that actually links [the witness] to the murder, but

instead tends to prove that he attempted to intercede and prevent harm to the

victim.”) ( citing Tex.

Penal Code Ann. § 38.05 (Vernon 1974)); see also McCallum v. State , 311 S.W.3d 9, 13 (Tex. App.—San

Antonio 2010, no pet.) (“Simply having knowledge of the offense and not

disclosing that information, or even trying to conceal the information, does

not render a witness an accomplice.”) ( citing Cocke , 201 S.W.3d

at 748 ). “If the witness cannot be prosecuted for the offense with which the

accused is charged, then the witness is not an accomplice witness as a matter

of law.” Rushing , 813 S.W.2d at 649 .

Moreover, even if Johnson saw Morris’s gun, it is not

evidence that Johnson took an affirmative act to assist Morris in the murder. See Delacerda v. State , No. 01-09-00972-CR,

2011 WL 2931189 , at *2–3 (Tex. App.—Houston [1st Dist.] July 21, 2011, no pet.).

In Delacerda ,

Rogelio Delacerda was convicted of murder in a

drive-by shooting that occurred after another passenger in the vehicle, David, had

been “jumped” at school by members of a gang. Id. at *2. On the day of the

shooting, Delacerda , along with David’s cousin and

the cousin’s girlfriend, picked up David and his friends Carlos and Tommy after

school in the girlfriend’s truck. Id. David,

Carlos, and Tommy jumped into the bed of the truck, where

they laid down to avoid being seen. Id. Delacerda , David’s cousin, and his girlfriend were in the

front of the truck. Carlos testified that David said to him, “you’re going to

find out about a drive-by.” Id. at *23.

Carlos also testified that David had showed him a gun earlier in the day, and

that he handed the gun to Delacerda while they were in

the truck. Id. at

*2. He testified that, when they drove by a group of students walking

down the road, someone in the front of the truck asked David, “Is that them?” Id. David responded, “I think so.” Id. Delacerda

then asked David if David wanted him to shoot them. Id. David responded, “I don’t know.” Id. Delacerda then discharged the gun

five to six times in the direction of the group, fatally wounding the complainant.

Id. at *1.

Delacerda argued that the evidence raised a fact

issue as to whether Carlos was an accomplice-witness because he saw David with

the gun, knew that David had been having difficulties with classmates, heard

David say “you’re going to find out about a drive-by,” was hiding in the back

of the truck, did not go to the police and tell them what happened, and

initially identified David as the shooter rather than Delacerda .

Id. at *22–23. The Court rejected

this argument because the evidence did not indicate that Carlos “‘performed any

affirmative act to assist in the commission of [the murder] or a

lesser-included offense,’ or that any of [his] actions were made with the

required culpable mental state.” Id.

at *23.

The same is true here. Morris identifies no evidence that

Johnson took an affirmative act to assist in the murder or a lesser-included

offense. With respect to Johnson’s state of mind, Morris points out that

Johnson expected to engage in a physical altercation with Burnett when he,

Morris, and “Brandon” went to Burnett’s dorm room. But this is not the state of

mind necessary for murder, and Burnett does not argue that Johnson could have

been convicted of any particular lesser-included offense. See Tex. Penal Code Ann.

§ 19.02(b)(1) (requiring that person “intentionally or knowingly cause[d] the

death of an individual”). Johnson’s testimony that he expected only a “regular

fight” was uncontroverted. Absent evidence of an affirmative act and the

necessary mental state, Morris cannot meet his burden of demonstrating that the

trial court abused its discretion in determining not to submit an

accomplice-witness instruction to the jury, either as a matter of law or as a

matter of fact. See Druery ,

225 S.W.3d at 498, 499 ; see also Paredes , 129 S.W.3d at 536 . We therefore overrule

Morris’s first and second issues.

Conclusion

We affirm the trial court’s judgment.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

Do

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

[1]

See Tex.

Penal Code Ann. § 19.02(b) (West 2011).

[2]

Both Burnett and Burnett’s

roommate, Kimbrough, testified to witnessing Morris shoot Sloan.

[3]

Johnson gave conflicting

testimony as to whether he saw the gun in Morris’s hand at this point.

[4]

Johnson did testify that he had

seen Morris with a gun on one prior occasion.

[5]

Immediately after Burnett’s

statement referencing “that [Johnson] dude,” counsel for the State clarified

with Burnett that the person he was talking about was “the person [he saw] in

the courtroom.” In the testimony that followed, Burnett clearly identified

Morris as the person he saw draw a gun and begin firing. Burnett revisited

these events later in his testimony, again clearly identifying Morris as the

person who pointed at him and fired his gun.