Opinion
NO. 01-11-00515-CR
04-05-2012
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. 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.
See TEX. PENAL CODE ANN. § 19.02(b) (West 2011).
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, Johnson testified only that he heard shots and turned to see Morris with a gun, his arm raised. 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.
Both Burnett and Burnett's roommate, Kimbrough, testified to witnessing Morris shoot Sloan.
Johnson gave conflicting testimony as to whether he saw the gun in Morris's hand at this point.
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.
Johnson did testify that he had seen Morris with a gun on one prior occasion.
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.
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.
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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).