Affirmed and Opinion Filed December 7, 2015.




                                                     In The
                                    Court of Appeals
                             Fifth District of Texas at Dallas
                                             No. 05-14-01416-CR

                                      VICTOR HILL, Appellant
                                                        V.
                                THE STATE OF TEXAS, Appellee

                            On Appeal from the Criminal District Court No. 5
                                         Dallas County, Texas
                                 Trial Court Cause No. F-1357879-L

                                   MEMORANDUM OPINION
                             Before Justices Fillmore, Stoddart, and O’Neill1
                                      Opinion by Justice Stoddart

       A jury convicted Victor Hill of capital murder. The trial court sentenced him to life

imprisonment without parole. See TEX. PENAL CODE ANN. § 12.31(a)(2) (West 2014). Hill raises

three issues on appeal: (1) the court’s jury instruction on an accomplice witness was a comment

on the weight of the evidence; (2) the trial court failed to make written findings regarding the

voluntariness of his recorded statements to police; and (3) he was denied a public trial during

voir dire. We affirm the trial court’s judgment.

       After responding to a grass fire, a fire rescue officer found the burned body of Dolores

Gomez-Martinez. The hands of the victim were bound with wire or string. A bottle-cap smelling

of gasoline was found nearby. The pathologist who performed the autopsy determined the victim
       1
           The Hon. Michael J. O'Neill, Justice, Assigned
died as the result of homicidal violence, including thermal burns, smoke inhalation, and possible

strangulation.

       Shatyra Johnson lived with Hill as a friend. Other women, who worked as prostitutes,

lived there as well. On July 2, 2013, Hill told Johnson he was going to rob Gomez-Martinez

when Gomez-Martinez came to meet with a prostitute. When Gomez-Martinez arrived, Hill

ordered him to remove his clothing and his valuables from his pockets. Hill ordered Johnson to

restrain Gomez-Martinez with a “stick” with two nails protruding from one end. Hill took cash, a

debit or credit card, car keys, and a phone from Gomez-Martinez. Hill left, but returned with two

other men and demanded the PIN number for Gomez-Martinez’s bank account. One of the men

began beating Gomez-Martinez to force him to reveal the number. The men later bound Gomez-

Martinez’s hands and ankles and kept him at Hill’s house until after dark. Hill then escorted

Gomez-Martinez to Gomez-Martinez’s truck and left. The next morning, Johnson asked Hill

what had happened. Hill eventually admitted to killing Gomez-Martinez by setting him on fire.

Hill told Johnson the other men did not help in killing Gomez-Martinez. Hill tried unsuccessfully

to sell the complainant’s truck and eventually burned it.

       In recorded interviews with police, Hill admitted to being a participant in the offense, but

claimed the other men were responsible for Gomez-Martinez’s death. Other evidence tended to

connect Hill to the offense, including recordings of Hill and one of the men driving the

complainant’s truck and attempting to use his account cards. Witnesses testified Hill attempted to

sell the truck and told one of them he had killed someone.

   A. Jury Charge

       In his first issue, Hill argues the trial court’s instruction to the jury that “the witness,

Shatrya Johnson, is an accomplice, as a matter of law” was a comment on the weight of the

evidence. Hill did not object to the jury charge. Thus, if we find error in the charge, we will


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reverse only if the error was “so egregious and created such harm” that appellant “has not had a

fair and impartial trial.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g); see also Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010) (all jury-charge

errors are cognizable on appeal, but unobjected-to error is reviewed for “egregious harm,” while

objected-to error is reviewed for “some harm.”).

         Texas laws provides that a defendant cannot be convicted on the testimony of an

accomplice unless the testimony is corroborated by other evidence tending to connect the

defendant to the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); see Druery v.

State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (testimony of an accomplice must be

corroborated by “independent evidence tending to connect the accused with the crime”). An

accomplice is someone who, under the evidence, could have been charged with the same or a

lesser included offense as the defendant. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App.

2013).

         A witness may be an accomplice as a matter of law or as a matter of fact. Smith v. State,

332 S.W.3d 425, 439 (Tex. Crim. App. 2011). A witness who is indicted for the same or a lesser

included offense as the defendant is an accomplice as a matter of law. Id. When there is no doubt

from the evidence that a witness is an accomplice as a matter of law, the trial court must instruct

the jury accordingly. Id. When the evidence is conflicting about whether a witness is an

accomplice, the trial court should instruct the jury to determine the status of the witness as a fact

issue. Id. at 440.

         A “proper accomplice-witness instruction informs the jury either that a witness is an

accomplice as a matter of law or that he is an accomplice as a matter of fact.” Zamora, 411

S.W.3d at 510. The jury instruction must also explain the definition of an accomplice and

instruct the jury about the corroboration requirement. Id.

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       On appeal, Hill admits that Johnson was an accomplice as a matter of law because she

was charged with the same offense or a lesser included offense. He does not complain about the

definition of an accomplice in the charge. His complaint is that the court instructed the jury that

Johnson was an accomplice as a matter of law without the words “if an offense was committed.”

Hill contends that without this qualifying language, the charge commented on the weight of the

evidence by instructing the jury that an offense was committed.

       The jury charge instructed the jury about the definition of an accomplice. The next

paragraph instructed:

       You are instructed that the witness, Shatrya Johnson, is an accomplice, as a matter
       of law. You cannot convict the defendant upon the testimony of Shatrya Johnson
       alone, unless you first believe that her testimony is true and shows that the
       defendant is guilty as charged, and then you cannot convict the defendant upon
       said testimony unless you further believe that there is other evidence in the case,
       outside of the evidence of the said Shatrya Johnson tending to connect the
       defendant with the offense committed, if you find that an offense was committed;
       and the corroboration is not sufficient if it merely shows the commission of the
       offense, but it must also tend to connect the defendant with its commission; and
       then, from all of the evidence, you must believe beyond a reasonable doubt that
       the defendant is guilty of the offense charged against him.

       By reading the first sentence of this instruction in isolation, Hill constructs an argument

that the charge commented on the weight of the evidence by assuming an offense was

committed. However, viewing the paragraph in its entirety, it is obvious the instruction did not

assume a disputed fact. Indeed, the trial court instructed the jury that it could not convict Hill on

Johnson’s testimony unless it believed there was other evidence “tending to connect the

defendant with the offense committed, if you find that an offense was committed.” Thus, the

charge did not instruct the jury that an offense was committed.

       Furthermore, there was no factual dispute that Gomez-Martinez died of unnatural causes.

His body was found with the hands bound at the scene of a fire and the pathologist determined

the death was the result of homicidal violence. Thus, whether an offence occurred was not a


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disputed fact issue.

       We conclude the instruction did not comment on the weight of the evidence by telling the

jury an offense was committed. We overrule Hill’s first issue.

   B. Findings of Fact and Conclusions of Law

       Hill’s second issue argues the trial court erred by failing to file written findings of fact

and conclusions of law regarding the voluntariness of his two video-recorded statements to

police. The trial court found both statements were voluntary and admitted them in evidence. As

to one statement, the trial court dictated findings of fact and conclusions of law into the record.

However, there were no written findings and conclusions as to the other statement.

       Section six of article 38.22 provides in part that if a statement of an accused is found to

have been voluntarily made and held admissible as a matter of law and fact by the court in a

hearing in the absence of the jury, “the court must enter an order stating its conclusion as to

whether or not the statement was voluntarily made, along with the specific finding of facts upon

which the conclusion was based, which order shall be filed among the papers of the cause.” TEX.

CODE CRIM. PROC. ANN. art. 38.22, § 6 (West Supp. 2015); Vasquez v. State, 411 S.W.3d 918,

920 (Tex. Crim. App. 2013) (written findings are required in all cases concerning voluntariness).

       We abated this appeal and directed the trial court to make the required findings and

conclusions. See Vasquez, 411 S.W.3d at 920; see also Urias v. Stale, 155 S.W.3d 141, 142 (Tex.

Crim. App. 2004) (“The proper procedure is that the trial judge be directed to make the required

written findings of fact and conclusions of law.”). The trial court has submitted written findings

and conclusions regarding Hill’s statements and they are now part of the record. We overrule

Hill’s second issue as moot.

   C. Public Trial

       Hill’s third issue argues his right to a public trial was violated during voir dire because so


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many potential jurors were summoned, there was no room in the courtroom for the public. Hill’s

counsel admits that the record is not clear whether the courtroom was closed to the public and

that trial counsel did not object on this ground. However, he requests that we take judicial notice

of the seating capacity of the courtroom and argues that the number of venire persons summoned

exceeded that capacity, leaving no room for the public.

       A complaint that a defendant’s right to a public trial was violated is subject to forfeiture.

Peyronel v. State, 465 S.W.3d 650, 653 (Tex. Crim. App. 2015), cert. denied, (U.S. Nov. 30,

2015). An appellant has the burden of stating the grounds for the ruling sought from the trial

court with “sufficient specificity to make the trial court aware of the complaint, unless the

specific grounds were apparent from the context.” TEX. R. APP. P. 33.1. Trial counsel never

objected that Hill’s right to a public trial was violated in any manner. Nor is there any indication

in the record that members of the public attempted but were unable to view the voir dire

proceedings. We conclude Hill failed to preserve error. We overrule Hill’s third issue.

   D. Conclusion

       Having overruled Hill’s issues on appeal, we affirm the trial court’s judgment.




                                                      /Craig Stoddart/
                                                      CRAIG STODDART
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
141416F.U05




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                              Court of Appeals
                       Fifth District of Texas at Dallas
                                       JUDGMENT

VICTOR HILL, Appellant                             On Appeal from the Criminal District Court
                                                   No. 5, Dallas County, Texas
No. 05-14-01416-CR        V.                       Trial Court Cause No. F-1357879-L.
                                                   Opinion delivered by Justice Stoddart,
THE STATE OF TEXAS, Appellee                       Justices Fillmore and O’Neill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 7th day of December, 2015.




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