The opinion
Opinion issued July 7, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00280-CR
———————————
JEMARCUS LATRON GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1398059
OPINION
Appellant Jemarcus Latron Green was charged by indictment with capital
murder. A jury found Green guilty, and the trial court assessed punishment at life,
without the possibility of parole, in the Texas Department of Criminal Justice,
Institutional Division. By four issues, Green contends that the trial court erred
because (1) it failed to instruct the jury that his girlfriend, Kristan Daniels, was an
accomplice as a matter of law; (2) its accomplice-in-fact charge failed to instruct
the jury that Daniels could be an accomplice as a co-conspirator; (3) Daniels’s
accomplice witness testimony was not adequately corroborated; and
(4) insufficient evidence supports Green’s conviction. We affirm.
Background
On August 6, 2012, Jimmy Wooten was shot and killed outside his home.
Green supplied the murder weapon and was tried for Wooten’s murder.
Wooten’s Murder
Wooten’s lifelong friend, Louis Hines, witnessed the shooting. Hines
testified that he was sitting on the front porch of a nearby house with Kevin
Mitchell, waiting for Wooten to go clubbing. When Wooten came out of his house
a couple doors down, Hines saw two black men approach Wooten. Hines
described one of the men as tall and dark-skinned and described the other as
lighter-skinned and slightly shorter. Hines watched briefly as the men talked to
Wooten, before turning back to talking with Mitchell. Hines testified that his
attention only turned back to Wooten and the two men when he heard Wooten
loudly say, “you got me fucked up.” Then Hines heard a gunshot, which he
testified was fired by the taller, darker man. Hines testified that Mitchell took off
running at the sound of the first shot. Hines saw Wooten fall to the ground, and
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then the shooter turned and started firing at Hines, leading Hines to conclude that
he was using an automatic.
Hines testified that a friend drove up and “snatched [Hines into] the car.” As
his friend drove away, Hines jumped out of the car and ran back to check on
Wooten. As he turned the corner, he saw the shooter taking Wooten’s pants and
shoes. Hines testified that he watched from a distance as the shooter then ran off
between the houses.
Wooten died at Ben Taub Hospital later that night. Dr. Sara Doyle with the
Harris County Medical Examiner’s Office performed Wooten’s autopsy and
determined that cause of death was a single gunshot wound to his neck, which
perforated his cervical spine. Dr. Doyle testified that she observed soot and
stippling around the wound, suggesting that the weapon was held within six inches
of Wooten’s body when fired.
Officer N. Castillo of the Houston Police Department (“HPD”) responded to
the shooting. Officer Castillo testified that HPD officers found four spent shell
casings at the scene. Officer E. Aguilera with the Crime Scene Unit added that the
shell casings were all either 9-millimeter Luger Blazers or Luger Wins. Officer
Aguilera testified that he had not determined whether all four shell casings were
fired by the same weapon.
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Officer B. Nabors of HPD’s Homicide Division investigated Wooten’s
murder. After speaking with Wooten’s girlfriend, Regina Flakes, Nabors and his
partner interviewed Kristan Daniels, who was Green’s girlfriend at the time. After
their first interview with Daniels, they developed Green and a second man known
as “K.D.” as suspects.
Daniels’s Testimony
At trial, Daniels asserted her Fifth Amendment privilege against self-
incrimination. The State moved to compel her testimony on the promise of use
immunity, and the trial court granted the motion.
According to Daniels, at the time of the charged offense, she had been living
with Green at his father’s house for roughly six months. On the date of the
offense, she and Green spent the daytime hours together watching television and
smoking marijuana. Later in the day, two of Green’s friends joined them: K.D.
and Pac. Daniels testified that the four of them were driving around in her car that
afternoon when Green, K.D., and Pac started talking about needing “some quick
money.” According to Daniels, Green hatched the idea to make some quick money
by robbing Jimmy Wooten. Daniels did not know Wooten, but Green knew him as
a local drug dealer and reasoned that Wooten’s line of work would keep him from
reporting a robbery. Daniels testified that K.D. and Pac agreed to rob Wooten, and
Green started to drive the group back to his house. As they were driving, Green
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pointed Wooten out to K.D. by saying, “There go Woo right there.” When they
got back to Green’s house, Green went inside to get a gun and gave the gun to
K.D.
Daniels testified that she stayed at Green’s house while Green dropped K.D.
off near Wooten’s, which took roughly three minutes. Shortly after Green got back
to the house, Daniels heard four gun shots. Daniels testified that she and Green
were both shocked to hear the gun shots. Green hopped back into her car, telling
her that he was off to look for K.D. Green returned to the house alone sometime
later, and the two waited at Green’s house.
Daniels testified that, later that night, K.D. arrived at Green’s house covered
in dirt with $140 in cash. According to Daniels, K.D. said someone had shot at
him and he shot back with the gun Green had given him. K.D. explained to
Daniels and Green that he had since been hiding in the crawl space under
Wooten’s house. K.D. returned the gun to Green and, on Green’s suggestion, K.D.
split the $140 stolen with Green.
Daniels testified that, the next morning, Green wanted to get rid of the gun,
but Daniels’s car had broken down, so Green called a “crack head” for a ride.
Daniels testified that Green provided the directions and his friend drove them out
of the area to discard the gun. Green got out of the car alone and threw the gun
into a pond. The pond was a couple of blocks from where Daniels grew up, but
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she maintained that Green had directed his friend to drive to that location. On
cross-examination, however, she testified that she had suggested they drive to that
location to discard the gun.
Green’s Statements to Police
Nabors and his partner twice interviewed Green regarding Wooten’s murder,
and both interviews were audio-recorded and admitted at trial. After initially
denying any involvement in Wooten’s murder and denying knowing K.D., Green
eventually told the officers that Wooten was killed by a “little wild young nigger”
called “Loco,” “because he crazy man.” At the second interview, Nabors and his
partner told Green that HPD had recovered the murder weapon and that they knew
“K.D.” was “Loco.” In response, Green admitted giving a weapon to K.D. and
stated that K.D. robbed Wooten because he needed money. He also admitted that
he received $60 of the $140 K.D. took from Wooten and that his mother’s “dope
fiend” ex-boyfriend drove him to the pond near Daniels’s grandparents’ home to
dispose of the murder weapon.
Accomplice Witness
By his first issue, Green contends that Kristan Daniels’s accomplice-witness
testimony was not sufficiently corroborated, as required by article 38.14 of the
Texas Code of Criminal Procedure.
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A. Applicable Law
An accomplice is someone who participates with the defendant before,
during, or after the commission of a crime and acts with the required culpable
mental state.1 Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).
Under Texas law, a criminal conviction cannot be based on accomplice testimony
unless corroborated by other evidence tending to connect the accused to the
offense committed. TEX. CODE CRIM. PROC. ANN. art. 38.14.
In order to review the sufficiency of corroborating evidence, “we exclude
the accomplice testimony from our consideration and determine whether there is
any independent evidence that tends to connect the defendant with the commission
of the offense.” Hernandez v. State, 454 S.W.3d 643, 647 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d). However, “it is not appropriate for appellate courts to
independently construe the non-accomplice evidence.” Smith v. State, 332 S.W.3d
1
Regarding criminal responsibility for conduct of another, section 7.02 of the Texas
Penal Code provides:
(a) A person is criminally responsible for an offense committed by the
conduct of another if:
...
(2) Acting with intent to promote or assist the commission of the
offense, he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense; . . .
(b) If, in the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all conspirators
are guilty of the felony actually committed, though having no intent to
commit it, if the offense was committed in furtherance of the unlawful
purpose and was one that should have been anticipated as a result of the
carrying out of the conspiracy.
TEX. PENAL CODE § 7.02.
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425, 442 (Tex. Crim. App. 2011). Instead, we view corroborating evidence in the
light most favorable to the verdict. Brown v. State, 270, S.W.3d 564, 567 (Tex.
Crim. App. 2008). “[W]hen there are conflicting views of the evidence—one that
tends to connect the accused to the offense and one that does not—we will defer to
the factfinder’s resolution of the evidence.” Smith, 332 S.W.3d at 442.
Corroborating evidence need not directly connect the defendant to the crime,
and standing alone, it need not be sufficient to establish guilt. Cathey v. State, 992
S.W.2d 460, 462 (Tex. Crim. App. 1999). More simply, the evidence need only
link the accused to the offense in some way such that a rational trier of fact could
conclude that the evidence tended to connect the accused to the offense. Simmons
v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). Corroborating evidence
may be direct or circumstantial. Smith, 332 S.W.3d at 442.
B. Analysis
Assuming arguendo that Kristan Daniels was an accomplice witness, we
conclude that independent evidence tends to connect Green to Wooten’s murder,
such that her testimony was sufficiently corroborated under article 38.14. In his
recorded statements to police, which were played for the jury, Green identified
K.D. as the shooter and explained that K.D. robbed Wooten because he needed
money. Green further admitted in his statements that he provided K.D. with a gun,
received a portion of the money stolen from Wooten, and disposed of the gun after
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K.D. returned it to him. Based on this evidence, the jury could have rationally
found that the corroborating evidence tended to connect Green to Wooten’s
murder. Smith v. State, 436 S.W.3d 353, 370–71 (Tex. App.—Houston [14th
Dist.] 2014, pet. ref’d) (concluding that nonaccomplice evidence of defendant’s
flight, connection to weapon, and association with accomplice at or near time of
offense sufficiently connected defendant to offense)
We overrule Green’s first issue.
Jury Charge
Green’s second and third issues challenge the adequacy of the jury charge.
In his second issue, Green contends that the trial court erred by failing to instruct
jurors that Daniels was an accomplice as a matter of law. In his third issue, Green
contends that the trial court’s accomplice-in-fact instruction was inadequate
because it failed to instruct jurors that Daniels could be an accomplice as a co-
conspirator.
A. Standard of Review
In analyzing a jury-charge issue, our first duty is to decide if error exists.
See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g);
Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d). Only if we find error do we then consider whether an objection to the
charge was made and analyze for harm. Tottenham, 285 S.W.3d at 30; see also
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Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to
preserve jury-charge error is not a bar to appellate review, but rather it establishes
the degree of harm necessary for reversal.”).
“The degree of harm necessary for reversal depends upon whether the error
was preserved.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
Error properly preserved by a timely objection to the charge will require reversal
“as long as the error is not harmless.” Almanza, 686 S.W.2d at 171. The Court of
Criminal Appeals has interpreted this to mean that any harm, regardless of degree,
is sufficient to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.
App. 1986). However, when the charging error is not preserved “and the accused
must claim that the error was ‘fundamental,’ he will obtain a reversal only if the
error is so egregious and created such harm that he ‘has not had a fair and impartial
trial’—in short ‘egregious harm.’” Almanza, 686 S.W.2d at 171.
B. Applicable Law
An accomplice participates before, during, or after the commission of a
crime and acts with the required culpable mental state. Paredes v. State, 129
S.W.3d 530, 536 (Tex. Crim. App. 2004) (citing Kutzner v. State, 994 S.W.2d 180,
187 (Tex. Crim. App. 1999)). “The participation must involve an affirmative act
that promoted the commission of the offense with which the accused is charged.”
Id. (citing Kutzer, 994 S.W.2d at 187).
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If one is susceptible to prosecution for the offense charged against the
accused or a lesser included offense, that individual is an accomplice as a matter of
law. Kutzner, 994 S.W.2d at 187; Blake v. State, 971 S.W.2d 451, 454–55 (Tex.
Crim. App. 1998). “The trial court is under no duty to instruct the jury unless there
exists no doubt or the evidence clearly shows that a witness is an accomplice
witness as a matter of law.” Paredes, 129 S.W.3d at 536. If, however, the
evidence is conflicting such that it is not clear whether the witness is an
accomplice, then the trial court must instruct the jury to determine whether that
inculpatory witness is an accomplice as a matter of fact. Paredes, 129 S.W.3d at
536; Blake, 971 S.W.2d at 455.
C. Analysis
1. Accomplice as a matter of law
The charge instructed the jury that it could find that Daniels was an
accomplice. Green contends that the trial court erred by not instructing the jury
that Daniels was an accomplice as a matter of law whose testimony thus could not
be relied upon unless corroborated by other evidence tending to connect Green
with the charged offense. Even were we to find error, Green was not egregiously
harmed by the omission. Because Green offered no objections to the jury charge,
to be entitled to reversal, he must show that such error was so egregious and
created such harm that he was deprived of a fair and impartial trial. Almanza, 686
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S.W.2d at 171. “Under the egregious harm standard, the omission of an
accomplice witness instruction is generally harmless unless the corroborating (non-
accomplice) evidence is ‘so unconvincing in fact as to render the State’s overall
case for conviction clearly and significantly less persuasive.’” Herron v. State, 86
S.W.3d 621, 632 (Tex. Crim. App. 2002) (citing Saunders v. State, 817 S.W.2d
688, 692 (Tex. Crim. App. 1991)). To determine the strength 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.” Id. “[A]s the corroborating
evidence gains in strength to the point that it becomes implausible that a jury
would fail to find that it tends to connect the accused to the commission of the
charged offense, then . . . the only resultant harm is purely theoretical and . . . there
is no occasion to reverse the conviction . . . .” Casanova v. State, 383 S.W.3d 530,
539–40 (Tex. Crim. App. 2012).
As already discussed, here, strong corroborating evidence—including
Green’s own statements to police—connects Green to the charged offense. An
eyewitness at the scene provided a description of the shooter matching K.D. By
Green’s own admissions, the jury was told (1) that K.D. wanted money, (2) that
Green knew Wooten was a drug dealer, and thus relatively unlikely to report a
robbery, (3) that Green sold or loaned a gun to K.D., (4) that K.D. returned the gun
to Green after the shooting, (5) that Green disposed of the weapon the next day,
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and (6) that K.D. split the money he took from Wooten with Green. This evidence
tends to connect Green with the commission of the offense. Green’s statements to
police are not inherently incredible and Green does not argue that his statements
are unreliable. Given the strength of the evidence, we conclude that Green has
failed to show that he suffered egregious harm. See Casanova, 383 S.W.3d at
539–40; Herron, 86 S.W.3d at 632.
We overrule Green’s second issue.
2. Accomplice-in-fact instruction
Green further contends that the trial court erred by failing to instruct the jury
that Daniels could be an accomplice as a co-conspirator. An accomplice-witness
instruction is required when the evidence raises the question of whether a witness
is an accomplice under a party-conspirator theory. Zamora v. State, 411 S.W.3d
504, 512 (Tex. Crim. App. 2013). Here, the trial court’s jury charge instructed
jurors that Green could be held criminally responsible for Wooten’s death
individually, as a party, or as a co-conspirator. In applying the law, the charge
identified K.D. “and/or” Daniels as potential parties or co-conspirators. In
instructing the jury with regard to accomplice-witness testimony, however, the trial
court’s charge did not explain that a co-conspirator could be an accomplice-
witness. We agree that the evidence raised a question as to whether Daniels might
be an accomplice under a party-conspirator theory, and thus conclude that the trial
13
court erred in omitting co-conspirator liability from its accomplice-witness
instruction. See id.
Having found error, we next consider whether the error egregiously harmed
Green. Because Green did not offer an objection to the trial court’s charge, he is
entitled to reversal only upon a showing of egregious harm. Almanza, 686 S.W.2d
at 171. As discussed above, sufficient non-accomplice testimony was presented at
trial to tend to connect Green to the charged offense such that only theoretical
harm could result from the trial court’s failure to instruct the jurors that Daniels
could be an accomplice-witness as a co-conspirator. Thus, we conclude that Green
has not demonstrated that he was egregiously harmed by the trial court’s failure to
include conspirator liability in its accomplice-witness instruction. See Herron, 86
S.W.3d at 633–34 (concluding that appellant not egregiously harmed by error in
omitting accomplice-witness instruction because non-accomplice evidence clearly
connected appellant to offense).
We overrule Green’s third issue.
Sufficiency of the Evidence
In his fourth issue, Green challenges the sufficiency of the evidence to
support his conviction for capital murder under a conspirator theory of liability
because the State failed to show that he should have anticipated that murder could
result from robbing Wooten at gunpoint.
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A. Standard of Review
When evaluating the legal sufficiency of the evidence, we view the evidence
in the light most favorable to the verdict and determine whether any rational trier
of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015); Brooks v. State,
323 S.W.3d 893, 902 (Tex. Crim. App. 2010). The standard is the same for both
direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex.
Crim. App. 1995). We consider the sufficiency of the evidence measured against
the elements of the offense as defined by a hypothetically correct jury charge—i.e.,
one that accurately sets out the law and adequately describes the offense charged
without increasing the State’s burden of proof or restricting the State’s theories of
liability. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “When the
trial court’s charge authorizes the jury to convict on more than one theory, as it did
in this case, the verdict of guilt will be upheld if the evidence is sufficient on any
of the theories.” Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007) (citing
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).
On appeal, we do not resolve any conflict of fact, weigh any evidence, or
evaluate the credibility of any witnesses, as this is the function of the trier of fact.
See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore
15
resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,
819 S.W.2d 839, 843 (Tex. Crim. App. 1991), and “defer to the [trier of fact’s]
credibility and weight determinations . . . .” Marshall v. State 210 S.W.3d 618,
625 (Tex. Crim. App. 2006).
B. Applicable Law
Under Texas law, a person commits the offense of capital murder if he
intentionally causes the death of an individual in the course of committing or
attempting to commit kidnapping, burglary, robbery, aggravated sexual assault,
arson, obstruction or retaliation, or terroristic threat. TEX. PENAL CODE
§ 19.03(a)(1)–(2).
Pursuant to section 7.01 of the Texas Penal Code, an individual can be
convicted as a party to an offense if that offense was committed by his own
conduct, by the conduct of another for which he is criminally responsible, or both.
TEX. PENAL CODE § 7.01(a). A person is criminally responsible for an offense
committed by the conduct of another if, acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid
the other person to commit the offense. TEX. PENAL CODE § 7.02(a)(2). If, in the
attempt to carry out a conspiracy to commit one felony, another felony is
committed by one of the conspirators, all conspirators are guilty of the felony
actually committed, though having no intent to commit it, if the offense was
16
committed in furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy. TEX. PENAL
CODE § 7.02(b).
C. Analysis
By a general verdict, Green was found guilty of capital murder for causing
Wooten’s death in the course of robbing Wooten, in violation of section
19.03(a)(2) of the Texas Penal Code. The trial court’s jury charge allowed the jury
to find Green guilty individually, as a party, or as a co-conspirator, pursuant to
sections 7.01, 7.02(a)(2), and 7.02(b) of the Texas Penal Code. Where, as here, the
jury charge authorizes conviction on multiple theories, we must uphold the jury’s
verdict if the evidence is sufficient under any of the multiple theories. Hooper,
214 S.W.3d at 14. We conclude that sufficient evidence supports Green’s
conviction as a conspirator.
To convict Green for capital murder as a conspirator, the State was required
to prove beyond a reasonable doubt that (1) Green was a party to a conspiracy to
commit aggravated robbery, (2) in the attempt to commit aggravated robbery, one
of Green’s co-conspirators intentionally caused Wooten’s death, (3) Wooten’s
murder was committed in furtherance of the conspiracy to commit aggravated
robbery, and (4) Green should have anticipated Wooten’s murder could result from
carrying out the aggravated robbery. See TEX. PENAL CODE §§ 7.02(b),
17
19.02(b)(1), 19.03(a)(2); see also Canfield v. State, 429 S.W.3d 54, 66–67 (Tex.
App.—Houston [1st Dist.] 2014, pet. ref’d).
Green argues that insufficient evidence supports his conviction as a
conspirator because the evidence does not show that he should have anticipated
that Wooten’s murder could result from carrying out the conspiracy to commit
aggravated robbery. Green maintains that, based on his familiarity with Wooten
and the fact that Wooten was a drug dealer, he would not have anticipated that
Wooten would resist being robbed. Green further maintains that, given his limited
familiarity with K.D., he would have had no reason to expect K.D. to be violent or
impulsive.
Notwithstanding Green’s contrary arguments, viewing the evidence in the
light most favorable to the verdict, we conclude that sufficient evidence supports
Green’s conviction as a conspirator. In the course of his first interview, Green
explained to the investigating officers that K.D. was a member of the Crypt gang,
associated with both Crypts and Bloods, and was called “Loco” “because he crazy
man.” According to testimony from Daniels, Green provided K.D., or “Loco,”
with a loaded weapon. Green acknowledged to officers in his recorded statement
that HPD might find his DNA on the murder weapon, if recovered, because he had
given it to “Loco.” Green was familiar with Wooten and knew that he was a drug
dealer. Daniels testified that Green pointed out Wooten to K.D. shortly before the
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offense. In sum, the evidence showed that Green conspired with a known gang
member referred to as “Loco” to rob a known drug dealer at gunpoint. Based on
such evidence, we conclude that the State adduced evidence from which a rational
trier of fact could have determined beyond a reasonable doubt that Green should
have anticipated Wooten’s murder could result from carrying out the conspiracy to
commit aggravated robbery. See Canfield, 429 S.W.3d at 66–70 (concluding that
murder should have been anticipated when armed conspirator robbed drug dealer);
Love v. State, 199 S.W.3d 447, 453 n.1 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d) (“Evidence that a defendant knew his co-conspirators might use guns in the
course of the robbery can be sufficient to demonstrate that the defendant should
have anticipated the possibility of murder occurring during the course of the
robbery.”); Whitmire v. State, 183 S.W.3d 522, 526–27 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d) (concluding that murder should have been anticipated
in attempting aggravated robbery of drug dealer).
Accordingly, we overrule Green’s fourth issue.
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Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Brown, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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