                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-12-00067-CR

CODY RAY WALTERS,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                            From the 12th District Court
                               Walker County, Texas
                               Trial Court No. 24,998


                           MEMORANDUM OPINION


       Cody Ray Walters was convicted of murder and sentenced to 35 years in prison.

TEX. PENAL CODE ANN. § 19.02 (West 2011). Because the trial court did not err in

refusing to instruct the jury to determine whether three witnesses were accomplice

witnesses as a matter of fact, the trial court’s judgment is affirmed.

BACKGROUND

       Walters and six of his friends went to a bar in Huntsville. When they left, they

noticed a man standing near the pickup in which they had arrived at the bar. Walters
recognized the man, John Wayne McCrary. Eventually, Walters broke a neighboring

car window with a trailer hitch and McCrary reached in the car and retrieved several

purses. McCrary then ran away. Walters pursued him. After a conversation with

McCrary, Walters returned to the pickup. He then returned to McCrary’s location

where McCrary challenged Walters to fight. As Walters turned to leave, McCrary

advanced. Walters turned around and stabbed McCrary four times. McCrary later died

from his injuries.

ACCOMPLICE INSTRUCTION

        In three issues, Walters complains that the trial court erred in refusing to instruct

the jury to determine whether three of Walters’s friends who were with Walters that

night, Kyle Parish, Bradley Phillips, and Jamaica Gamboa, were accomplice witnesses as

a matter of fact.

        An accomplice is a person who participates in the offense before, during, or after

its commission with the requisite mental state. Smith v. State, 332 S.W.3d 425, 439 (Tex.

Crim. App. 2011); Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). Presence

at the crime scene does not make a person an accomplice; an accomplice must have

engaged in an affirmative act that promotes the commission of the offense that the

accused committed. Smith, 332 S.W.3d at 439; Kunkle v. State, 771 S.W.2d 435, 439 (Tex.

Crim. App. 1986)). A person is not an accomplice even if the person knew about the

offense and failed to disclose it or helped the accused conceal it. Smith, 332 S.W.3d at


Walters v. State                                                                       Page 2
439; Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987). A State's witness may

be an accomplice as a matter of fact, and the evidence in each case will dictate whether

an accomplice as a matter of fact instruction is required. Cocke v. State, 201 S.W.3d 744,

747 (Tex. Crim. App. 2006); Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998).

        When there is doubt as to whether a witness is an accomplice (i.e., the evidence is

conflicting), the trial judge may instruct the jury to determine a witness's status as a fact

issue. Smith, 332 S.W.3d at 439-440; Druery, 225 S.W.3d at 498-499. But, when the

evidence clearly shows that a witness is not an accomplice, the trial judge is not obliged

to instruct the jury on the accomplice witness rule—as a matter of law or fact. Smith, 332

S.W.3d at 440; Gamez, 737 S.W.2d at 322.

Kyle Parrish

        Kyle Parrish was with Walters when Walters stabbed McCrary, followed him

when Walters ran off after the stabbing, and was with Walters when Walters disposed

of the knife the next day. He failed to report the incident for two years. There is no

evidence in the record, however, that Parrish engaged in any affirmative act that

promoted McCrary’s murder by Walters. That Parrish was present at the scene of the

crime, present when the knife was disposed of, and failed to report the crime did not

make Parrish an accomplice.




Walters v. State                                                                       Page 3
Bradley Phillips

        The seven friends rode to the bar in Bradley Phillips’s pickup. Phillips was

airing up his back tire when the stabbing occurred. He picked up Walters and Parrish

after Walters had run off. He saw Walters with a knife when Walters got in the pickup

and heard Walters say that he stabbed McCrary. He also did not report the crime.

Again, there is no evidence in the record that Phillips engaged in any affirmative act that

promoted the murder. That Phillips gave Walters a ride after the murder, saw the knife,

heard Walters say he stabbed McCrary, and failed to report the crime did not make

Phillips an accomplice.

Jamaica Gamboa

        While waiting for Phillips to air up his tire, Gamboa heard McCrary scream that

he was being stabbed. He did not ask questions when Walters returned to the pickup.

The next day, he found out McCrary had died. Walters then offered a knife to Gamboa

who refused to take it. Even though he thought Walters was trying to dispose of

evidence, he did not report the incident to the police. There is no evidence in the record

that Gamboa engaged in any affirmative act that promoted McCrary’s murder. It is of no

consequence that he failed to report what happened that night.

        The evidence clearly shows Parrish, Phillips, and Gamboa were not accomplices,

and the trial court was not required to give the requested instructions. Walters’ three

issues are overruled.


Walters v. State                                                                     Page 4
CONCLUSION

        Having overruled each issue on appeal, we affirm the trial court’s judgment.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 11, 2013
Do not publish
[CRPM]




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