                                                                                 ACCEPTED
                                                                             01-14-01005-CR
                                                                  FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                         8/3/2015 2:18:34 PM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK

                             NO. 01-14-01005-CR

                 IN THE FIRST COURT OF APPEALS     FILED IN
                                             1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                            HOUSTON, TEXAS           8/3/2015 2:18:34 PM
                                                     CHRISTOPHER A. PRINE
                                                             Clerk



         HAROLD JOSEPH NORWOOD, JR., APPELLANT
                          V.
             THE STATE OF TEXAS, APPELLEE



              BRIEF FOR THE STATE OF TEXAS

                    CAUSE NUMBER 13CR1311
             IN THE 405th JUDICIAL DISTRICT COURT
                 OF GALVESTON COUNTY, TEXAS

                  ATTORNEYS FOR THE STATE OF TEXAS

REBECCA KLAREN               ASSISTANT CRIMINAL DISTRICT ATTORNEY
                             STATE BAR NO. 24046225

JACK ROADY                   CRIMINAL DISTRICT ATTORNEY

600 59TH STREET, SUITE 1001
GALVESTON TX 77551
(409) 770-6004, FAX (409) 621-7952
rebecca.klaren@co.galveston.tx.us

ORAL ARGUMENT WAIVED
                     IDENTITY OF PARTIES AND COUNSEL



Presiding Judge                           Honorable Michelle Slaughter

Appellant                                 Harold Joseph Norwood, Jr.

Appellee                                  The State of Texas

Attorney for Appellant                    James Bennett

      (Trial Only)                        Alvin, Texas

Attorney for Appellant                    Zachary S. Maloney

      (Appeal Only)                       League City, Texas

Attorney for State                        Matthew Shawhan & Bill Reed

      (Trial Only)                        Galveston, Texas

Attorney for State                        Rebecca Klaren

      (Appeal Only)                       Galveston, Texas




                                    ii
                                   TABLE OF CONTENTS

SECTION                                                                          PAGE

Identity of Parties and Counsel                                                  ii

Table of Contents                                                                iii

Index of Authorities                                                             iv

Summary of the Argument                                                          2

Statement of Facts                                                               3

First Issue                                                                      15
              There must be evidence a witness is an accomplice before a court
              is required to include an accomplice witness instruction in its
              charge. If the court should’ve included the instruction, but the
              defendant didn’t object, the defendant must show he was
              egregiously harmed.

              How’s there harmful reversible error when there’s no evidence
              Lacy was an accomplice, Norwood didn’t object to the charge,
              and Norwood made no argument he was egregiously harmed?

       Argument and Authorities                                                  15

       I.       Accomplice Witness Applicable Law                                15

       II.      Lacy Was Not An Accomplice                                       17

       III.     Norwood Wasn’t Egregiously Harmed: The Non-Accomplice
                Evidence Corroborates Lacy & Tends To Connect Norwood
                To The Murder                                                    20

       IV.      Conclusion: No Ground For Reversal                               24




                                              iii
Second Issue                                                                    25
          Video proves Norwood walked towards the crime scene minutes
          before the victim’s car was stolen. Video proves Norwood was
          driving the car minutes after the victim was left dying in his
          bakery parking lot. Norwood had the victim’s car, his car key,
          and his cellphone.

             Viewing the evidence in the light most favorable to the verdict,
             how’s there insufficient evidence to prove Norwood murdered
             the victim?

       Argument and Authorities                                                 25

       I.      Relevant Sufficiency Law                                         25

       II.     The Evidence Proves Norwood Killed The Victim                    27

Conclusion and Prayer                                                           30

Certificate of Service                                                          31

Certificate of Compliance                                                       31




                                             iv
                                         INDEX OF AUTHORITIES


CASES 

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) ....................................25

Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). .......................................20

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) ..................................17

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) ......................................17

Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. App. 1995)....................................16

Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984) .......................................22

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). ....................................26

Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996)....................................21

Ex parte Flores, 387 S.W.3d 626, 641 (Tex. Crim. App. 2012) .....................................25

Flores v. State, 551 S.W.2d 364, 369 (Tex. Crim. App. 1977) .......................................28

Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012). .....................................26

Gaston v. State, 324 S.W.3d 905, 908 (Tex. App.---Houston [14th Dist.] 2010, pet. ref'd)
 ...............................................................................................................................16

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) .........................................26

Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App. 2011). ......................................26

Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). .............. 16, 17, 21, 23, 24

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). ..........................................26



                                                                v
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) .........................................................26

Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007). .....................................21

Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) .....................................21

Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998). ......................................20

Miller v. State, 177 S.W.3d 177, 184 (Tex. App.---Houston [1st Dist.] 2005, pet. ref’d)
 ........................................................................................................................ 28, 29

Moron v. State, 779 S.W.2d 399, 401 (Tex. Crim. App. 1985).......................................21

Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013). .......................................20

Palomo v. State, 352 S.W.3d 87, 90-91 (Tex. App.---Houston [14th Dist.] 2011, pet.
 ref’d).......................................................................................................................27

Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). ................... 15, 16, 17, 19

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) ......................................25

Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). ....................................20

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). ...................................26

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). ..................................26

Wygel v. State, 555 S.W.2d 465, 469 n.3 (Tex. Crim. App. 1977)..................................19

Zamora v. State, 411 S.W.3d 504, 511 (Tex. Crim. App. 2013) .............................. 15, 16


STATUTES 

TEX. CODE CRIM. PROC. ANN. art. 38.14. ..................................................................16

TEX. PENAL CODE § 19.02(b)(2). ...............................................................................27


                                                               vi
TEX. PENAL CODE §7.01 ...........................................................................................15

TEX. PENAL CODE §7.02(a) .......................................................................................15

TEX. PENAL CODE §7.02(b) ................................................................................ 15, 18




                                                        vii
                                    NO. 01-14-01005-CR


                                           IN THE

                                  COURT OF APPEALS

                                         FOR THE

                              FIRST DISTRICT OF TEXAS

                                   HOUSTON, TEXAS


                  HAROLD JOSEPH NORWOOD, JR., Appellant
                                 V.
                      THE STATE OF TEXAS, Appellee


                       Appealed from the 405th Judicial District
                         Court of Galveston County, Texas
                                Cause No. 13CR1311



                        BRIEF FOR THE STATE OF TEXAS




TO THE HONORABLE COURT OF APPEALS:

       Now comes Jack Roady, Criminal District Attorney for Galveston County, Texas,

and files this brief for the State of Texas.


  The one-volume Clerk’s Record is referred to in the State’s Brief as “C.R. page”. The Reporter’s
  Record is multiple volumes and is referred to as “R.R. volume number: page”.
                         SUMMARY OF THE ARGUMENT

       Harold Norwood raises two issues in an attempt to reverse his murder

conviction. First, he claims he was egregiously harmed because the Trial Court didn’t sua

sponte include an accomplice witness instruction in its charge. Norwood hasn’t shown

there was an accomplice witness. Norwood has presented no evidence there was a

conspiracy. And even if there should’ve been an instruction, Norwood has made no

attempt to show he was egregiously harmed.

       In his second issue, Norwood claims the evidence was “factually” insufficient

because driving the victim’s car doesn’t prove he committed the murder. Norwood’s

argument ignores the overwhelming circumstantial evidence. The evidence proves he

was near the scene of the murder, minutes before the murder. He had the victim’s car

key, car, and cellphone immediately after the assault. He made admissions that a crime

had occurred. Viewing the evidence in the light most favorable to the verdict, Norwood

killed the victim and took his car.




                                            2
                                 STATEMENT OF FACTS

       Juan Navarro owned the Navarro Bakery located on Broadway and 38th Street in

Galveston.1 Navarro also owned a silver Lexus SUV.2 His bakers came in at 5 a.m. and

the bakery closed at 10 p.m.3 He usually stopped at the bakery after 11 p.m. to turn the

alarm on.4

       After the bakery closed one night in January 2013, Navarro took a co-worker and

his family to dinner.5 They parted ways around 12 a.m.6 Navarro drove to the bakery.

       At 12:23 a.m., Navarro turned into the parking lot.7 He left his blinker on, but

never went into the bakery.8 He may’ve fallen asleep in the car.

       At 1:04 a.m., an officer responding to an unrelated dispatch,9 noticed what

appeared to be a Lexus SUV in the bakery’s parking lot with its turn signal continuously

blinking.10 The doors were closed and the headlights were on.11 The officer’s in-car

video was not on.12 But, as the officer was returning to the police station to complete the

dispatch, her in-car video was recording.13 At 1:28 a.m., the in-car video shows the


1
  R.R. III: 46.
2
  R.R. III: 54.
3
  R.R. III: 47.
4
  R.R. VI: 219.
5
  R.R. III: 30.
6
  R.R. III: 32.
7
  R.R. VI: 67; State’s Exhibit 1 (bakery videos).
8
  R.R. VI: 67; State’s Exhibit 1; State’s Exhibit 25 (Chevron video showing continuous blinking).
9
  R.R. VI: 89.
10
   R.R. III: 112-13.
11
   R.R. III: 113.
12
   R.R. III: 114-15.
13
   R.R. III: 115-16; State’s Exhibit 24 (in-car video).

                                                 3
blinking light at the bakery.14

          At 1:37 a.m., a surveillance video at the Mercadito restaurant across Broadway

from the bakery showed a single man dressed in all dark walk away from the bakery.15

          At 1:41 a.m., the video shows the man return.16 The man was alone.17 He walked

passed the restaurant and towards the bakery.18 Two of Norwood’s friends identified

him as the man on the video.19 They explained they identified him based on his unique

walk.20

          At 1:49 a.m., the videos from the Chevron station across Broadway from the

bakery and the bakery’s indoor surveillance video show the blinking stopped.21 The

Lexus’ headlights were turned on and it pulled onto 38th Street, away from Broadway.22

          At 1:59 a.m., Officer Ticas noticed a man lying in the bakery parking lot.23 He

stopped and found Navarro gravely injured.24 He called EMS.25

          Meanwhile, between 12 a.m. and 2 a.m., Richard Lacy testified he was at his


14
   R.R. VI: 32-33, 89; State’s Exhibit 24; State’s Exhibit 353 (screen shot of in-car video showing
Lexus and blinking light at bakery).
15
   R.R. III: 33-34; VI: 137-38; State’s Exhibit 59 (Mercadito video). The lead detective testified she
checked each video against the dispatch time. R.R. VI: 77-78. Evidently each video was a few
minutes off. Id. So she adjusted the times to be consistent with dispatch. Id.
16
   R.R. VI: 137-38; State’s Exhibit 59.
17
   State’s Exhibit 59.
18
   R.R. VI: 137-38; State’s Exhibit 59.
19
   R.R. V: 57-58, 71-72.
20
   R.R. V: 58-59; 72.
21
   R.R. VI: 24-25; State’s Exhibit 1 (bakery videos); State’s Exhibit 25 (Chevron video).
22
   R.R. VI: 67-68; State’s Exhibit 25.
23
   R.R. III: 94-95.
24
   R.R. III: 94.
25
   R.R. III: 94.

                                                  4
neighbor’s house on 38th Street drinking and using drugs with several people, including

James Nolan.26 The house was about a block behind the bakery.27 Close to 2:00 a.m., he

saw a silver SUV on 38th coming from Broadway.28 Lacy thought it was his friend

Joseph.29 It wasn’t Joseph, it was Norwood.30 Lacy, who’d known Norwood for a few

days, had never seen Norwood drive the Lexus before.31 Norwood asked Lacy where

there was a Coinstar.32 Lacy told Norwood the only one available at that time was at

Kroger on 50th and the Seawall.33

        James Nolan testified that on the night of the murder, he was with Lacy at a

house.34 Nolan heard the conversation about the coins between Norwood and Lacy.35

Nolan said Lacy left with Norwood.36

        At 1:58 a.m., the silver Lexus parked at Kroger.37 Norwood, wearing all dark

clothes, got out of the driver’s seat.38 Lacy testified Norwood had the car key.39 Lacy,

wearing a yellow jacket and khaki pants, got out of the passenger seat.40 The men


26
   R.R. IV: 107-08.
27
   R.R. VI: 68-69.
28
   R.R. IV: 110.
29
   R.R. IV: 109-10.
30
   R.R. IV: 110.
31
   R.R. IV: 112.
32
   R.R. IV: 113.
33
   R.R. IV: 113.
34
   R.R. IV: 65-66.
35
   R.R. VI: 65, 67.
36
   R.R. IV: 67.
37
   R.R. IV: 52-53; VI: 42-43; State’s Exhibit 62 (Kroger parking lot video).
38
   R.R. IV: 53-54, 120; State’s Exhibit 62.
39
   R.R. IV: 121.
40
   R.R. IV: 53-54, 120; State’s Exhibit 62.

                                                   5
entered Kroger and went to the Coinstar.41 Lacy testified Norwood had a cloth bag full

of coins.42 Lacy testified the men cashed the coins and Norwood made him keep the

cloth bag until after they left Kroger.43 The Coinstar receipt for $117.15 was issued at

2:01 a.m.44

        At 2:11 a.m., Lacy and Norwood left Kroger.45 Norwood had the car key.46 Lacy

testified he drove as they left because Norwood’s driving was erratic.47 As they drove,

Norwood told Lacy he was taking a penitentiary chance in the vehicle.48 Lacy thought he

meant something was going on with the car or that it was stolen.49 Lacy testified

Norwood might’ve said he hit a lick (which could mean taking something from

someone or taking something without permission).50 Lacy testified Norwood told him

he shouldn’t say anything about the car.51 They got more drugs.52

        At the hospital, a trauma surgeon tried to save Navarro.53 Unfortunately, his

injuries were not survivable and he died at 8:13 p.m.54

        At 2:30 a.m., the on-call detective (Detective Sollenberger) was called to the

41
   R.R. IV: 114-15.
42
   R.R. IV: 117-18.
43
   R.R. IV: 114-15, 134; State’s Exhibit 63 (video of inside Kroger).
44
   R.R. IV: 48-50; State’s Exhibit 64 (Coinstar receipt).
45
   R.R. VI: 69.
46
   R.R. IV: 121.
47
   R.R. IV: 114.
48
   R.R. IV: 122.
49
   R.R. IV: 122.
50
   R.R. IV: 139-40.
51
   R.R. IV: 137.
52
   R.R. IV: 123.
53
   R.R. IV: 8-9.
54
   R.R. IV: 15-16.

                                                   6
scene.55 When she first got to the bakery, she noticed a dry void in an otherwise wet

parking lot.56 It was the size of a car.57 The wet spot was consistent with an air

conditioning drip spot, as if a vehicle had been sitting and running.58 The victim’s key

ring was laying next to him, but there was no car key on the ring.59

        Detective Sollenberger testified she was able to pull up a photograph of the

bakery owner.60 The first officer on the scene identified him as the injured man.61 The

bakery was locked and nothing looked disturbed inside it.62

        An officer went to the victim’s home to learn why Navarro may’ve been at the

bakery that late and to ask if there was a missing car.63 The victim’s wife told the police

about the missing Lexus.64 The detective sent out a regional broadcast about the missing

Lexus.65 Multiple officers looked for the Lexus.66 Detective Sollenberger also posted a

Facebook post to the police account asking for information on the stolen car.67

        The next day, the police got a tip that the car was parked on 38th Street.68 The car



55
   R.R. VI: 9.
56
   R.R. VI: 11-12.
57
   R.R. VI: 12.
58
   R.R. VI: 14.
59
   R.R. VI: 20.
60
   R.R. VI: 15.
61
   R.R. VI: 15.
62
   R.R. VI: 14, 16.
63
   R.R. VI: 15.
64
   R.R. VI: 16.
65
   R.R. VI: 16-17.
66
   R.R. III: 168-69, 183.
67
   R.R. VI: 17.
68
   R.R. VI: 25-26.

                                              7
was warm and the air conditioning condenser was dripping.69 This indicated to the

officers that the car was recently driven.70 An officer looked under the car and noticed

what appeared to be blood in the driver’s side wheel well.71 The officers decided to tow

the car to the police department for processing.72

        While the police were still at the scene where the Lexus was found, a woman

came up to them and said she feared Norwood was dead in the car.73 The police also got

a call from Norwood’s brother.74 He too feared Norwood was dead in the car.75

Norwood wasn’t. Several agencies began looking for Norwood.76 On February 16, 2013,

a Houston police officer arrested Norwood.77

        At the Galveston Police Department, the officers dusted the car for

fingerprints.78 They found swipe marks on the driver’s door.79 This indicated to the

officers that someone tried to wipe the door clean.80 Fortunately, the officers were still

able to get a fingerprint.81 The fingerprint matched Norwood.82



69
   R.R. III: 186; VI: 26.
70
   R.R. III: 186-87; VI: 26.
71
   R.R. III: 188, 191-92.
72
   R.R. III: 193.
73
   R.R. III: 194-98.
74
   R.R. VI: 29.
75
   R.R. VI: 29-30.
76
   R.R. VI: 53-54.
77
   R.R. V: 141-43.
78
   R.R. IV: 88; V: 178.
79
   R.R. V: 200-01.
80
   R.R. V: 200-01.
81
   R.R. V: 179.
82
   R.R. V: 147, 149, 151.

                                            8
       The police officers immediately tried to locate the victim’s cellphone.83 They

called it and had the service provider ping it.84 The pings didn’t provide an exact

location.85 However, the officers were able to get the phone’s call logs.86 There were

several calls made after the victim was found.87 The officers determined each person

called knew Norwood.88 The officers also determined that a call was made to check

someone’s bank account balance.89 The bank recorded the telephone call.90 Dietrich

Simmons made the call to the bank.91 She testified she got the cellphone from

Norwood.92

       The day after the murder, Richard Lacy spoke to his brother about Norwood.93

Lacy knew he’d been in the car.94 His brother urged Lacy to do the right thing.95 Lacy

called 911 to say he had information.96 Lacy voluntarily went to the police station twice

and gave two statements.97 He told the police what he knew about Norwood.98 Lacy said



83
   R.R. VI: 17-18.
84
   R.R. VI: 17-18.
85
   R.R. VI: 18.
86
   R.R. V: 132.
87
   R.R. V: 133-36.
88
   R.R. V: 137-38; VI: 44-48.
89
   R.R. VI: 45.
90
   R.R. VI: 45.
91
   R.R. VI: 45.
92
   R.R. V: 59-60.
93
   R.R. IV: 137.
94
   R.R. IV: 137.
95
   R.R. IV: 137.
96
   R.R. IV: 127-28.
97
   R.R. VI: 34, 36-37.
98
   R.R. IV: 128-29.

                                            9
he’d seen Norwood continue to drive the Lexus after their Kroger trip.99 He said

Norwood used a cloth to wipe the car down every time he got out of it.100

        Lacy testified he thought he also told the police that the night before the murder,

he and Norwood walked by the bakery and on the way to the corner store.101 Norwood

said to Lacy “That’s a nice car.”102

        On cross-examination, Lacy agreed Norwood didn’t say he stole a car, hurt

someone, or killed someone.103 Lacy agreed he didn’t see Norwood steal the Lexus or

hurt anyone.104 Lacy said he didn’t assume the car was stolen until after Norwood said

he was taking a penitentiary chance by driving it and Norwood wiped the car down.105

        During Norwood’s case-in-chief, he recalled Lacy.106 He questioned Lacy about

his criminal history.107 Lacy said he saw Norwood drive the Lexus for 4 or 5 days.108

When Norwood asked if Lacy would be surprised the car was recovered within 2 days of

the murder, Lacy said he could be wrong about the days.109

        Lacy voluntarily gave the police a DNA sample and the clothes he was wearing.110



99
   R.R. IV: 125.
100
    R.R. IV: 126.
101
    R.R. IV: 136.
102
    R.R. IV: 136.
103
    R.R. IV: 144.
104
    R.R. IV: 145-46.
105
    R.R. IV: 147.
106
    R.R. VII: 53.
107
    R.R. VII: 54.
108
    R.R. VII: 60-67.
109
    R.R. VII: 68.
110
    R.R. IV: 129.

                                             10
He also gave the police the shoes he leant to Norwood.111 None of the victim’s DNA

was on Lacy’s clothes or Norwood’s shoes.112 One of Lacy’s shoes tested positive for

presumptive blood.113 The DNA test showed it was a mixture.114 Lacy was the major

contributor.115 The data regarding the minor contributor was too small to make an

identification.116

        Lacy told the jury he had a prior felony conviction for forgery and for possession

of a controlled substance.117 He admitted he has a drug problem.118 He told the jury he

was under arrest for a misdemeanor offense of obstructing a passageway, but didn’t have

a deal with the State for his testimony.119

        Detective Sollenberger testified that initially Lacy was a suspect because he was

on the Kroger video 10 minutes after the vehicle was stolen.120 She testified, however,

that Lacy was ruled out as a suspect early in the investigation.121 The detective explained

that the police were able to speak to Lacy’s roommates, including James Nolan, and

corroborated what Lacy told them.122 The Kroger and Mercadito surveillance videos also



111
    R.R. IV: 129-30.
112
    R.R. VI: 194, 199; State’s Exhibit 360 (DNA laboratory report).
113
    State’s Exhibit 359 (forensic toxicology laboratory report); State’s Exhibit 360.
114
    State’s Exhibit 360.
115
    State’s Exhibit 360.
116
    State’s Exhibit 360.
117
    R.R. IV: 105.
118
    R.R. IV: 108.
119
    R.R. IV: 106.
120
    R.R. VI: 138.
121
    R.R. VI: 138.
122
    R.R. VI: 138, 143.

                                                   11
corroborated Lacy.123 Lacy was not with Norwood when he assaulted the victim and

took his car.

        The Medical Examiner testified Navarro had abrasions on his head, face,

forehead, check, ear, both knees, and his elbow.124 He had 2 broken ribs.125 Navarro had

a hemorrhage under both sides of his scalp and a hemorrhage over the left side of his

brain.126 He had a basal skull fracture stretching from one ear to the other.127 There was

blood coming out of his ears, which is a characteristic of the skull injury.128 The Medical

Examiner testified a basal skull fracture is most commonly seen in car accidents where

the person’s head is moving very quickly and suddenly stops or when people fall from a

height and there’s a hyperflexion.129 He said a basal skull fracture is always fatal.130 The

doctor said Navarro could’ve been struck while his head was still or could’ve been

pushed over and his head struck a fixed object.131 The Medical Examiner testified the

manner of death was homicide and the cause of death was blunt force head trauma.132

        The Medical Examiner testified he reviewed the crime scene pictures of the

scene.133 Based on the scene, the doctor explained the victim’s facial abrasions and the

123
    R.R. VI: 138, 144.
124
    R.R. V: 17.
125
    R.R. V: 38-39.
126
    R.R. V: 17-18.
127
    R.R. V: 18.
128
    R.R. V: 22.
129
    R.R. V: 27.
130
    R.R. V: 27.
131
    R.R. V: 33.
132
    R.R. V: 33.
133
    R.R. V: 34-35.

                                             12
pattern on his chest could’ve been caused from a fight, from getting rolled over by a

vehicle and being caught under the undercarriage, or getting his head slammed to the

ground.134 The doctor explained that the vehicle could’ve caused the basal skull fracture

if the victim was lying flat on the ground, with his head up and as the tire came across

his chest, slamming his head back.135 The doctor agreed that the victim could’ve been

trying to get up when the car rolled over his chest.136 The doctor also agreed that

Navarro could’ve been standing up or in his vehicle and received a blow to the head that

caused the brain hemorrhages.137 The doctor testified, based on the crime scene photos,

the rib fractures could’ve been caused by the vehicle rolling over the victim’s chest.138

The Medical Examiner testified a vehicle, used to run over someone in this way, is a

deadly weapon.139

        Norwood did not request any instructions in the jury charge and affirmatively

stated he had no objections to the charge.140 There was no accomplice witness language

in the charge.141

        The jury convicted Norwood of murder and made an affirmative finding of a

deadly weapon.142

134
    R.R. V: 35.
135
    R.R. V: 35-36.
136
    R.R. V: 36-37.
137
    R.R. V: 37-38.
138
    R.R. V: 38-39.
139
    R.R. V: 39.
140
    R.R. VII: 81-82.
141
    C.R. 159.
142
    C.R. 164, 166.

                                           13
          The jury heard Norwood had 17 convictions---7 for drug convictions, a failure to

identify conviction, 3 evading arrest convictions, 3 theft convictions, and 3 assault

convictions.143 The jury found both enhancements for possession of a controlled

substance true and sentenced Norwood to 80 years confinement.144

          This appeal followed.




143
      R.R. VIII: 37-44.
144
      C.R. 174.

                                             14
                                       FIRST ISSUE
       There must be evidence a witness is an accomplice before a court is
       required to include an accomplice witness instruction in its charge.
       If the court should’ve included the instruction, but the defendant
       didn’t object, the defendant must show he was egregiously harmed.

       How’s there harmful reversible error when there’s no evidence Lacy
       was an accomplice, Norwood didn’t object to the charge, and
       Norwood made no argument he was egregiously harmed?



                      ARGUMENT AND AUTHORITIES

       Norwood doesn’t cite to any evidence from any source that Lacy was a co-

conspirator accomplice witness. Consequently, the Trial Court did not err by omitting a

sua sponte jury instruction that he was. Even if there was error, Norwood wasn’t

egregiously harmed by the omission because the non-accomplice evidence corroborates

Lacy’s testimony by tending to connect Norwood to the crime.

       V.      Accomplice Witness Applicable Law

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

commission of the offense with the requisite culpable mental state.145 A person can be

an accomplice as a direct party or as a co-conspirator.146


145
   Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
146
   Zamora v. State, 411 S.W.3d 504, 511 (Tex. Crim. App. 2013) (citing TEX. PENAL CODE §7.01
(person is “criminally responsible” for his own conduct or for “conduct of another for which he is
criminally responsible”); TEX. PENAL CODE §7.02(a) (describing criminal responsibility as a direct
party); TEX. PENAL CODE §7.02(b) (describing criminal responsibility for a party as a co-

                                                15
       If a witness is an accomplice, Code of Criminal Procedure article 38.14 requires

a jury instruction that a conviction cannot rest on the testimony of the accomplice

witness “unless corroborated by other evidence tending to connect the defendant with

the offense committed; and the corroboration is not sufficient if it merely shows the

commission of the offense.”147 The accomplice witness rule reflects “the legislative

determination that accomplice testimony must be taken with a certain degree of

caution.”148 “Accomplices often have an incentive to lie, such as to avoid punishment

or shift blame to another person.”149

       The evidence in the particular case dictates whether an accomplice-witness

instruction is required.150 A witness may be considered an accomplice as a matter of

law or as a matter of fact.151 A prosecution witness who is indicted for the same

offense as the defendant or a lesser-included offense is an accomplice as a matter of

law.152 “If a prosecution witness is an accomplice as a matter of law, the trial court is

under a duty to instruct the jury accordingly.”153 “Failure to do so is error.”154 When,

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

conflicting—then the court may instruct the jury to determine the witness’s
conspirator)).
147
    Zamora, 411 S.W.3d at 509-10; TEX. CODE CRIM. PROC. ANN. art. 38.14.
148
     Gaston v. State, 324 S.W.3d 905, 908 (Tex. App.---Houston [14th Dist.] 2010, pet. ref’d); see
Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. App. 1995).
149
    Smith, 332 S.W.3d at 439.
150
    Id.
151
    Id.
152
    Id.; Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002).
153
    Herron, 86 S.W.3d at 631.
154
    Id.

                                                16
accomplice status as a fact issue.155

       When the evidence clearly shows that the witness is not an accomplice, then

the court is not required to instruct the jury on the accomplice-witness rule at all.156

       If the trial court improperly omitted an accomplice witness instruction, the

appropriate harm standard depends on whether the defendant preserved his

complaint by bringing the omission to the trial court’s attention.157 If the error was

properly preserved, the appeals court must reverse if “some harm” is shown.158 But if

the defendant failed to preserve the complaint, the error “must be ‘fundamental’”

“and requires reversal only if it was so egregious and created such harm that the

defendant has not had a fair and impartial trial.”159

       VI.     Lacy Was Not An Accomplice

       Norwood claims the Trial Court erred by not sua sponte including an

accomplice witness instruction in its jury charge because Lacy was Norwood’s co-

conspirator. Norwood is wrong.

       According to the Penal Code, a person is a co-conspirator and is criminally

responsible for another,

               If, in the attempt to carry out a conspiracy to commit one
               felony, another felony is committed by one of the
155
    Smith, 332 S.W.3d at 439-40.
156
    Id. at 440.
157
    See Herron, 86 S.W.3d at 632.
158
    Id.
159
    Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984)).

                                                 17
                 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.160

          Notably, Norwood doesn’t identify the supposed conspiracy Lacy and

Norwood entered into. Norwood doesn’t cite to any evidence and there is no

evidence from any source that there was a conspiracy.

          Norwood speculates that Lacy might’ve been a co-conspirator in some kind of

conspiracy because the night before the murder he went for a walk with Norwood. As

they walked by the bakery on their way to a store, Norwood said he liked the Lexus

parked at the bakery. There’s no evidence Lacy and Norwood formulated a plan or

had a common understanding to take the car. There’s no evidence Lacy knew

Norwood was going to steal the car the following night and kill the owner. There’s no

evidence Lacy anticipated or reasonably should’ve anticipated Norwood was going to

steal the car and run over the victim.

          Norwood argues Lacy was a conspirator because there was blood on his shoe

when he talked to the police in the days after the murder. There’s no evidence tying

the blood to the victim. There’s no evidence explaining when the blood got onto the

shoe. This is no evidence of a conspiracy.

          Norwood further claims Lacy was a co-conspirator because he was in the


160
      TEX. PENAL CODE §7.02(b).

                                             18
Lexus after the murder and drove the Lexus when they left Kroger. This argument is

based solely on Lacy’s presence in the car after the murder. Mere presence doesn’t

make a person an accomplice161 or a conspirator.162

        To be clear, there’s no testimony or evidence that Lacy was with Norwood

when Norwood committed the murder. To the contrary, the evidence establishes

Norwood was alone. The Mercadito video shows Norwood was alone when he

walked away from the bakery and then 4 minutes later returned and walked towards

the bakery.

        The video is not the only evidence that proves Lacy was not at the bakery.

Nolan testified Lacy was with him at a house before Norwood showed up to ask if

there was a nearby coin machine. There’s no evidence Lacy intended Norwood to

commit any crime when Lacy was using drugs and drinking with Nolan at a house

blocks away from the bakery.

        Because there’s absolutely no testimony and no evidence that would make Lacy

an accomplice as a matter of law and because there’s also no conflicting evidence

suggesting Lacy was an accomplice as a matter of fact, the Trial Court wasn’t

obligated to instruct the jury on the accomplice witness rule as it could apply to

Lacy.163


161
    See Smith, 332 S.W.3d at 439.
162
    See Wygel v. State, 555 S.W.2d 465, 469 n.3 (Tex. Crim. App. 1977).
163
    See Smith, 332 S.W.3d at 439-40.

                                                   19
       VII. Norwood              Wasn’t Egregiously Harmed: The Non-

               Accomplice Evidence Corroborates Lacy & Tends To

               Connect Norwood To The Murder

       Because Norwood didn’t object to the jury charge and affirmatively stated he

had no objections to the charge,164 this Court reviews the alleged error to determine

whether the omission caused Norwood egregious harm.165

       Norwood made no effort to explain how he was egregiously harmed by the

absence of an accomplice witness instruction in his brief. Norwood’s failure to brief

doesn’t impact the outcome of this case because he wasn’t harmed and certainly

wasn’t egregiously harmed.

       Jury charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory.166 The

error must have been so harmful as to effectively deny the defendant a fair and

impartial trial.167 The egregious harm standard “is a difficult standard to meet.”168

       The omission of the accomplice witness instruction is generally harmless unless

the corroborating (non-accomplice) evidence is “so unconvincing in fact as to render




164
    R.R. VII: 81-82.
165
    See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998).
166
    Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
167
    See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).
168
    Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013).

                                                  20
the State’s overall case for conviction clearly and significantly less persuasive.”169 In

other words, if the non-accomplice evidence corroborates the accomplice testimony

by tending to connect the defendant to the crime, the failure to give the instruction is

generally harmless.170

        Evidence corroborating an accomplice need not directly link the accused to

the offense or be sufficient in itself to establish guilt; instead, the corroborating

evidence need only tend to connect the accused to the crime committed.171 “Even

apparently    insignificant    incriminating     circumstances      may     sometimes      afford

satisfactory evidence of corroboration.”172 Furthermore, there need only be some

non-accomplice evidence tending to connect the defendant to the crime, not to every

element of the crime.173

       The evidence tends to connect Norwood to the murder.

       While a defendant’s mere presence at the crime scene is insufficient to

corroborate accomplice testimony, “‘[p]roof that the accused was at or near the scene

of the crime at or about the time of its commission, when coupled with other

suspicious circumstances, may tend to connect the accused to the crime so as to

furnish sufficient corroboration to support a conviction.’”174 The Mercadito, the


169
    Herron, 86 S.W.3d at 632.
170
    Id.
171
    Moron v. State, 779 S.W.2d 399, 401 (Tex. Crim. App. 1985).
172
    Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).
173
    Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007).
174
    Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Brown v. State, 672 S.W.2d

                                                21
Chevron, and the bakery videos establish the Lexus was at the bakery when 1 man

walked by the Mercadito restaurant. The Mercadito video shows the man was alone

and was wearing dark clothes. The Mercadito video then shows the man in dark was

still alone when he walked towards the bakery 4 minutes later. Two people identified

Norwood as the man walking on the Mercaidtio video.

          The Mercadito, the Chevron, and the bakery videos show the SUV’s blinking

light turned off 8 minutes after Norwood walked towards the bakery. The Chevron

video shows the SUV turned onto 38th Street when it left the bakery. Nolan testified

he heard Norwood discuss coins with Lacy and then the men left the house on 38th

Street.

          It’s certainly a suspicious circumstance that 10 minutes after the victim’s Lexus

left the bakery, the Kroger video shows Norwood park it. Norwood was still wearing

dark colored clothes. He cashed coins and left the Kroger in the victim’s SUV.

          Norwood’s fingerprint on the SUV corroborates the videos and the witnesses.

The wipe marks on the SUV shows Norwood’s effort to destroy evidence.

          To add to the suspicious circumstances, Norwood also had the victim’s

cellphone after the murder. He gave it to Simmons, who called the bank to check an

account’s balance. All the other calls made with the phone after the assault were to

people Norwood knew.


487, 489 (Tex. Crim. App. 1984)).

                                              22
       The timeline, the physical evidence, and the witnesses’ testimonies tend to

connect Norwood to the murder.175 Lacy’s testimony was corroborated.176

       Additionally, the jury was well aware Lacy may not be truthful. Norwood

attacked Lacy’s credibility when he crossed him, when he recalled him in his case-in-

chief, and during his closing argument.

       During the testimony, Norwood highlighted Lacy’s criminal history. He

attempted to show Lacy was only testifying because he was hoping for a deal on his

recent obstruction of a passageway arrest. And he illustrated Lacy was wrong when he

testified that Norwood drove the car for 4 or 5 days.

       In closing statements, Norwood reminded the jury that Lacy is a repeat

convicted felon.177 He argued Lacy couldn’t keep his story straight.178 He argued Lacy

had every reason to lie because he was in the car after the murder, helped Norwood

cash the coins, drove the car away from Kroger, had blood on his shoe two days later,

and the car was found in front of his house.179 Norwood told the jury it was more




175
    See Herron, 86 S.W.3d at 632 (“[N]on-accomplice evidence can render harmless a failure to submit
an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is
designed to serve.”).
176
    See id. (“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.’”).
177
    R.R. VII: 112-13.
178
    R.R. VII: 113.
179
    R.R. VII: 113-14.

                                                 23
likely Lacy committed the crime.180 The jury was aware that it could take Lacy’s

testimony with caution.

           VIII. Conclusion: No Ground For Reversal

           There was significant non-accomplice evidence that tended to connect

Norwood to the murder. The non-accomplice evidence was not so unconvincing as to

render the State’s overall case for conviction clearly and significantly less persuasive.

The purpose of the accomplice witness instruction was fulfilled and any error was

harmless.181

           Norwood’ first issue should be overruled.




180
      R.R. VII: 114.
181
      See Herron, 86 S.W.3d at 632.

                                              24
                                     SECOND ISSUE
       Video proves Norwood walked towards the crime scene minutes
       before the victim’s car was stolen. Video proves Norwood was
       driving the car minutes after the victim was left dying in his bakery
       parking lot. Norwood had the victim’s car, his car key, and his
       cellphone.

       Viewing the evidence in the light most favorable to the verdict,
       how’s there insufficient evidence to prove Norwood murdered the
       victim?



                       ARGUMENT AND AUTHORITIES

       III. Relevant Sufficiency Law

       Norwood only challenges the factual sufficiency of the evidence. He doesn’t

challenge the legal sufficiency of the evidence. He argues that proving he drove the

victim’s Lexus after the murder isn’t sufficient to establish he committed the murder.

       The Court of Criminal Appeals has determined and repeatedly affirmed182 that

the Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing

court should apply in determining whether the evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a reasonable


182
   See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (“As the court of appeals properly
noted, this Court now applies only one standard ‘to evaluate whether the evidence is sufficient to
support a criminal conviction beyond a reasonable doubt: legal sufficiency.’”); Ex parte Flores, 387
S.W.3d 626, 641 (Tex. Crim. App. 2012) (noting that court “did away with” factual sufficiency
review in Brooks ); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson
standard is only standard for courts to apply in determining sufficiency of evidence).

                                                 25
doubt.183 Therefore, in analyzing Norwood’s challenge to the sufficiency of the evidence,

this Court applies only the Jackson v. Virginia standard.

       When reviewing the sufficiency of the evidence, the appellate court views all of

the evidence in the light most favorable to the verdict and determines, based on that

evidence and any reasonable inferences therefrom, whether a rational jury could have

found the elements of the offense beyond a reasonable doubt.184 The reviewing court

also considers both direct and circumstantial evidence, as well as any reasonable

inferences that may be drawn from the evidence.185 Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.186 The evidence is insufficient when

the record contains no evidence, or merely a “modicum” of evidence, probative of an

element of the offense.187

       The reviewing court does not reevaluate the weight and credibility of the evidence

or substitute its judgment for that of the factfinder.188 Because the jury is the sole judge

of the credibility of witnesses and of the weight given to their testimony, any conflicts or

inconsistencies in the evidence are resolved in favor of the verdict.189


183
    See Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App. 2011).
184
    See Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S.
307, 318–19 (1979)).
185
    See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
186
    See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
187
    See Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).
188
    See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
189
    See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

                                                  26
       To obtain a conviction for murder, the State must prove the defendant intended

to cause serious bodily injury and committed an act clearly dangerous to human life that

caused the death of an individual.190

       IV. The Evidence Proves Norwood Killed The Victim

       Norwood claims the evidence is factually insufficient to prove murder because it

only shows he drove the victim’s car. Norwood is misstates the evidence.

       The timeline of events is detailed above. In short, nobody else could’ve

committed the crime within the established timeframe. To summarize, Norwood was

near the scene 7 minutes before the Lexus left the parking lot. He was alone. Two of his

friends identified him as the man in dark clothes walking towards the bakery. Norwood

stopped on 38th Street, blocks from the bakery, and asked Lacy about a coin machine.

Nolan overheard the conversation. Lacy left with Norwood. Norwood drove to and

parked the victim’s Lexus at the Kroger 10 minutes after leaving the bakery. Detective

Sollenberger testified she repeatedly timed the drive from 38th to the Kroger.191 On

average the drive takes 7 ½ to 8 ½ minutes.192 There was no time for anyone else to

have committed the murder, stolen the car, have a conversation about a coin machine,

and then drive Lacy to the Kroger.193

       When Norwood and Lacy left Kroger, Norwood told Lacy he was taking a
190
    TEX. PENAL CODE § 19.02(b)(2).
191
    R.R. VI: 70, 33-34.
192
    R.R. VI: 70.
193
    See Palomo v. State, 352 S.W.3d 87, 90-91 (Tex. App.---Houston [14th Dist.] 2011, pet. ref’d)
(circumstantial evidence of guilt include proximity to the murder scene near the time of the murder).

                                                 27
penitentiary chance by driving the car. He said Lacy shouldn’t tell anyone about the car.

And he told Lacy he hit a lick. The jury could reasonably conclude that Norwood’s

admissions, coupled with the other evidence, was proof his consciousness of guilt.

        The jury also knew Norwood had both the victim’s car key and his cellphone

after the assault. When the police got to the bakery, they found the victim’s keyring next

to him. The Lexus key was missing. Lacy testified Norwood had the key when he was

driving the Lexus minutes after the victim was hurt. Simmons testified Norwood gave

her the victim’s cellphone. The jury could reasonably conclude car keys and a cellphone

would’ve been on the victim or in his immediate reach. The car key was never found.

Based on his injuries and the timing, the jury could reasonably infer that only the

murderer would have those items.194

        Lacy testified Norwood had a cloth bag with coins. Norwood made Lacy pull the

bag out of the Kroger trash can. Lacy testified Norwood threw the bag out as they drove

away. The victim’s wife testified her husband kept coins in a cloth bag. The jury could

reasonably infer Norwood’s action of disposing of the cloth bag was an inference of

guilt.195

        Throwing the coin bag away and hiding the car key were not Norwood’s only

attempt to conceal evidence. Lacy testified Norwood wiped the car down every time he

194
    See Flores v. State, 551 S.W.2d 364, 369 (Tex. Crim. App. 1977) (holding a defendant’s unexplained
possession of a victim’s stolen property may be sufficient to sustain a conviction).
195
     See Miller v. State, 177 S.W.3d 177, 184 (Tex. App.---Houston [1st Dist.] 2005, pet. ref’d)
(attempting to hid evidence is circumstantial evidence of guilt).

                                                 28
got out of the car. When the police processed the car for fingerprints, they found wipe

marks. They also found Norwood’s fingerprint. This is more proof of Norwood’s

guilt.196

            Viewing the evidence in the light most favorable to the jury’s verdict, the

evidence establishes Norwood murdered the victim and took his SUV.

            Norwood’s second issue should be overruled.




196
      See id.

                                              29
                           CONCLUSION AND PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment

of the Trial Court be affirmed in all respects.

                                           Respectfully submitted,

                                           JACK ROADY
                                           CRIMINAL DISTRICT ATTORNEY
                                           GALVESTON COUNTY, TEXAS


                                                  /s/ Rebecca Klaren
                                           REBECCA KLAREN
                                           Assistant Criminal District Attorney
                                           State Bar Number 24046225
                                           600 59th Street, Suite 1001
                                           Galveston, Texas 77551
                                           Tel (409)770-6004/Fax (409)621-7952
                                           rebecca.klaren@co.galveston.tx.us




                                             30
                           CERTIFICATE OF SERVICE

      The undersigned Attorney for the State certifies a copy of the foregoing brief was

sent via email, eFile service, or certified mail, return receipt requested, to Zachary S.

Maloney, attorney for Harold Joseph Norwood, Jr., at zachmaloeny@gmail.com or

2925 Gulf Freeway South Suite B #295, League City, Tx 77573, on August 3, 2015.




                                              /s/ Rebecca Klaren
                                         REBECCA KLAREN
                                         Assistant Criminal District Attorney
                                         Galveston County, Texas



                       CERTIFICATE OF COMPLIANCE

      The undersigned Attorney for the State certifies this brief is computer generated,

and consists of 6,284 words.




                                              /s/ Rebecca Klaren
                                         REBECCA KLAREN
                                         Assistant Criminal District Attorney
                                         Galveston County, Texas




                                           31
