AFFIRM; Opinion Filed February 5, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00171-CR

                              JOHNTA SILVERBURG, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the 416th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 416-81700-2015

                              MEMORANDUM OPINION
                           Before Justices Bridges, Myers, and Schenck
                                   Opinion by Justice Schenck
       Johnta Silverburg appeals his conviction for continuous trafficking of persons. In a single

issue, he contends the trial court erred by denying his request for an accomplice-witness instruction

to be included in the jury charge. We affirm the trial court judgment. TEX. R. APP. P. 47.4.

                                          BACKGROUND

       Appellant met Kayla Matteson in early 2011. At first, he cared for her son while she

worked as a prostitute, and by the end of that year, he came to be managing her prostitution,

requiring her to give him the money she made. Over the years, appellant lived with Matteson and

with other women.

       In early 2015, appellant met C.P. online. He provided C.P.’s information to Matteson, so

that she could purchase a bus ticket for C.P to travel from El Paso to Dallas. C.P. then moved into
a rented house where appellant, Matteson, and two other women were living. Matteson did not

talk to C.P., but she learned from appellant that C.P. was 17, not 18. Matteson attempted to

convince appellant it was not a good idea for a minor to be living with them, but when that attempt

failed, she took C.P. to a runaway shelter. At the shelter, C.P. received a tablet computer that she

used to send nude photographs of herself to appellant.

       A grand jury indicted appellant with seven counts of trafficking of persons, six as to

Matteson and one as to C.P. Appellant proceeded to a trial before a jury at which Matteson

testified. After the State concluded presenting its evidence, appellant challenged the sufficiency

of the evidence presented and moved for an instructed verdict on all counts. The trial court granted

the motion as to two of the counts related to Matteson and as to the sole count related to C.P. At

the conclusion of evidence, and out of the presence of the jury, the trial court asked if either the

State or defense had any objections to the jury charge. Defense counsel answered that he had no

objections but “thought of a special request.”

       DEFENSE COUNSEL: I’m requesting an accomplice witness testimony charge,
       Your Honor.

       THE COURT: Against?

       DEFENSE COUNSEL: That they don’t convict Mr. Silverburg based upon her
       testimony, that she is an accomplice.

       THE COURT: That request is denied.

The jury found appellant guilty of the offense of continuous tracking of persons, and the trial court

sentenced him to forty years in prison. Appellant timely filed this appeal.

                                            DISCUSSION

       An accomplice is someone who, under the evidence, could have been charged with the

same or lesser-included offense as that with which the defendant was charged. See Zamora v.

State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013). A proper accomplice-witness instruction

informs the jury that a witness is either an accomplice as a matter of law or an accomplice as a
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matter of fact. See id. Whether a defendant is entitled to an accomplice-witness instruction is a

function of the evidence produced at trial. Ash v. State, PD-0244-16, 2017 WL 2791727, at *4

(Tex. Crim. App. June 28, 2017). If the record contains evidence that a witness may have been an

accomplice, the issue should be submitted to the jury to decide whether the witness was an

accomplice as a matter of fact. Id.

       A witness is an accomplice as a matter of law in the following situations: (1) if the witness

has been charged with the same offense as the defendant or a lesser-included offense; (2) if the

State charges a witness with the same offense as the defendant or a lesser-included of that offense,

but dismisses the charges in exchange for the witness’s testimony against the defendant; and (3)

when the evidence is uncontradicted or so one-sided that no reasonable juror could conclude that

the witness was not an accomplice. Ash, 2017 WL 2791727, at *5–6.

       When the issue of a trial court’s failure to give an accomplice-witness instruction is raised

on appeal, we first determine whether a trial court erred by failing to sua sponte give that

instruction before it considers whether a defendant preserved his complaint for appeal, a matter

that is pertinent to a harm analysis. See Zamora, 411 S.W.3d at 506. While the State urges that

the standard of review is abuse of discretion, we note the Court of Criminal Appeals has not

conclusively settled that question. But see Smith v. State, 332 S.W.3d 425, 441 (Tex. Crim. App.

2011) (noting trial judge has “some discretion” in determining whether a witness is an accomplice

in law but ultimately avoiding reconsideration of rule treating witness under indictment as per

se accomplice in law); see also Paredes v. State, 129 S.W.3d 530, 537 (Tex. Crim. App.

2004) (noting trial court did not “abuse its discretion” in declining to give any accomplice

instruction in fact or law). However, because we conclude the evidence of Matteson’s involvement

was too weak to compel an instruction as a matter of law regardless of the standard, we have no




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further need to explore the standard of review issue. See Ayala v. State, No. 05-14-00530-CR,

2015 WL 3869722, at *4 (Tex. App.—Dallas June 23, 2015, pet. ref’d).

       Appellant argues Matteson was an accomplice as a matter of law because she was

susceptible to prosecution for the lesser-included offense of trafficking a person. Alternatively, he

argues she was an accomplice as a matter of law because she was susceptible to prosecution for

the offense for which he was charged: continuous trafficking of persons. Finally, he argues she

was an accomplice as a matter of fact. Appellant focuses his arguments on the charge in the

indictment for trafficking C.P. We will do the same.

       A person commits the offense of continuous trafficking of persons if that person engages

two or more times in conduct constituting trafficking of persons under section 20A.02 of the penal

code against one or more victims, during a period that is thirty or more days in duration. See TEX.

PENAL CODE ANN. § 20A.03(a). A person commits the offense of trafficking of persons if the

person knowingly traffics a person and through force, fraud, or coercion causes the trafficked

person to engage in the offense of prostitution. See id. § 20A.02(a)(3)(A). The penal code defines

“traffic” to mean to transport, entice, recruit, harbor, provide, or otherwise obtain another person

by any means. See id. § 20A.01(4). A person also commits the offense of trafficking of persons

if the person knowingly traffics a person younger than 18 years of age and by any means causes

the trafficked person to engage in the offense of sexual performance by a child.             See id.

§§ 20A.01(1), 20A.02(a)(7)(I).     Under the penal code, “sexual performance” includes any

photograph that includes lewd exhibition of the child’s private areas and that can be exhibited

before an audience of one or more persons. See id. § 43.25.

       Regarding whether Matteson was an accomplice as a matter of law, she was never charged

with the same offense as appellant or a lesser-included offense. Thus, the sole question is whether

the evidence was so one-sided that any rational juror would have concluded Matteson was an

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accomplice as a matter of law. See Ash, 2017 WL 2791727, at *5–6. We conclude that it is not

nearly so one-sided. The record shows that while Matteson purchased a bus ticket online for C.P.

and that C.P. then travelled to a home at which Matteson paid the rent, Matteson did not know

C.P. was a minor at that time and that when she learned C.P. was a minor, she took her to a runaway

shelter. Further, there is no evidence from which a rational juror could infer that Matteson had

any intent that C.P. would engage in sexual performance. Thus, there is insufficient evidence from

which any rational juror would have concluded that Matteson knew C.P. was a minor when she

purchased C.P.’s bus ticket or that she caused C.P. to engage in sexual performance by a child.

Therefore, there was insufficient evidence from which any reasonable juror would have concluded

Matteson was an accomplice as a matter of law. See Ash, 2017 WL 2791727, at *5–6.

       Appellant urges in the alternative that Matteson was an accomplice as a matter of fact,

arguing that if the trial court had some reservation about whether Matteson was an accomplice as

a matter of law, she qualified, at least, as an accomplice as a matter of fact. However, as discussed

above, there was no evidence that Matteson knew C.P. was a minor when she purchased C.P.’s

bus ticket or that she caused C.P. to engage in sexual performance by a child. Thus, the record

does not contain evidence that Matteson may have been an accomplice, such that the issue should

have been submitted to the jury to decide whether the witness was an accomplice as a matter of

fact. See Ash, 2017 WL 2791727, at *4.

       We conclude the trial court did not err by not including an accomplice-witness instruction

in the jury charge. Accordingly, we overrule appellant’s sole issue.




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                                         CONCLUSION

       We affirm the trial court’s judgment.




                                                 /David J. Schenck/
                                                 DAVID J. SCHENCK
                                                 JUSTICE


DO NOT PUBLISH
TEX. R. APP. P. 47

170171F.U05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 JOHNTA SILVERBURG, Appellant                      On Appeal from the 416th Judicial District
                                                   Court, Collin County, Texas
 No. 05-17-00171-CR         V.                     Trial Court Cause No. 416-81700-2015.
                                                   Opinion delivered by Justice Schenck,
 THE STATE OF TEXAS, Appellee                      Justices Bridges and Myers participating.

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


Judgment entered this 5th day of February, 2018.




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