Opinion issued March 13, 2014.




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-12-00961-CR
                             ———————————
                        ROBERT CASTILLO, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Case No. 1259905


                           MEMORANDUM OPINION

      A jury found Robert Castillo guilty of capital murder and sentenced him to

confinement for life. 1 Castillo raises five issues on appeal. First, Castillo contends

that the evidence was insufficient to support his conviction. In his second, third,

1
      TEX. PENAL CODE ANN. § 19.03 (West Supp. 2013).
and fourth issues, Castillo contends that the trial court erred in denying his motion

to suppress his videotaped statement to police. He argues that his statement was

involuntary, he invoked his right to counsel, and he did not intelligently waive his

Miranda rights.2 In his fifth issue, Castillo contends that the trial court erred in

denying his request to instruct the jury on the law of accomplice witnesses. We

affirm.

                                    Background

      Castillo, his brother F. “Junior” Castillo, and Chris Washington had been

drinking late one evening when they went for a drive in a small sedan. While

driving, Castillo saw a white Cadillac with expensive rims swerving on the road.

Castillo decided that he wanted the rims, so they followed it. According to Castillo,

they lost sight of the Cadillac but later found it parked with the engine still running

and the driver, David Rodriguez, still in the car. Castillo told police that he and

Chris got into the car.

      Chris held Rodriguez at gunpoint in the backseat, and Castillo drove them to

a secluded road. Junior followed in the small sedan. In his statement to police,

Castillo admitted that Rodriguez plead with them not to hurt him, but claimed that

Chris shot Rodriguez in the head. They tried unsuccessfully to remove the

Cadillac’s rims. When they could not remove the rims, Castillo called his

2
      Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); see also TEX. CODE
      CRIM. PROC. ANN. art. 38.22 (West Supp. 2013).
                                          2
girlfriend, Narsha Washington, and asked her if she had a lug wrench. Then the

men ransacked the car for valuables.

      Just after midnight, a husband and wife familiar with the neighborhood were

driving to a fast-food restaurant and noticed a white Cadillac parked next to a

smaller sedan on a dark street. The couple testified that they saw three people

standing around the Cadillac. On their way home from the restaurant, the couple

again saw the Cadillac, but the people and the smaller sedan were gone. The

couple returned home and called police to report what they had seen.

      In response to the call, Harris County Sheriff Deputy C. Bilinovich was

dispatched to the area. She saw two vehicles matching the reported description run

a stop sign. When Deputy Bilinovich flashed the lights on her squad car, Castillo

increased speed and Bilinovich chased him. Bilinovich testified that when the

Cadillac reached a dead end street, two people jumped out of the car while it was

still moving. Bilinovich caught Chris Washington; Castillo escaped. When

investigators searched the Cadillac, they found that several items had been stripped

from the car. They also found Rodriguez’s lying in a field nearby the car.

      The next morning, Castillo called Narsha Washington and told her that Chris

had been arrested. Later that day, Castillo drove his pickup truck to Narsha’s

apartment, and the two went to get some pain pills. Narsha testified that during

their car ride Castillo told her that he, her brother, Chris, and Junior had stolen a


                                         3
man’s car the previous night. He also told her that “they had to kill a guy.” Narsha

testified that Castillo seemed nervous.

      Harris County Deputy Sheriff R. Gonzales investigated Rodriguez’s death.

He quickly identified Castillo, Chris, and Junior as suspects. Deputy Gonzales

contacted Narsha to discuss Rodriguez’s murder. At that time, law enforcement

knew from the emergency phone call that two vehicles had been on the secluded

road. They also had recovered a cigarette butt from the scene that was the same

brand that Castillo smoked, but they had no other physical evidence related to the

murderer’s identity. Narsha told Deputy Gonzales that on the night of the murder

Castillo had called her and asked her for a lug wrench. She also said that Castillo

admitted to the murder.

      Police arrested Castillo at his apartment. They brought him to a police

station where Deputy Gonzales and Harris County Sheriff’s Office Investigator M.

Quintanilla questioned him about Rodriguez’s murder. Gonzales and Quintanilla

video recorded the entire interview. After Gonzales informed Castillo of his rights,

Castillo answered questions for approximately four hours. During the interview,

Castillo admitted that he stole Rodriguez’s car because he wanted the rims, but he

denied any responsibility for Rodriguez’s murder. He said that Chris held

Rodriguez at gunpoint in the backseat of the car and later shot him. During the




                                          4
interview, Deputy Gonzales played two recorded audio statements from Narsha

and Chris who blamed Castillo for Rodriguez’s murder.

      Castillo was charged with capital murder. While awaiting trial, Castillo met

Bronson Jones in jail. Jones later testified that Castillo told him details about the

murder and claimed that he could not get convicted because he did not have an

attorney present during his interview.

      Before trial, Castillo moved to suppress his statement. He argued that he

invoked his right to counsel, did not intelligently waive his rights, and did not

understand the questions because he was intoxicated. The trial court denied his

motion to suppress. A jury convicted Castillo of capital murder and assessed

punishment at confinement for life.

      Castillo timely appealed.

                           Sufficiency of the Evidence

      In his first issue, Castillo contends that the evidence was “legally

insufficient” to prove beyond a reasonable doubt that he committed capital murder

because there was no forensic evidence connecting him to the crime and there were

numerous factual inconsistencies in the witnesses’ testimony. 3


3
      A person commits capital murder when he “intentionally commits the murder in
      the course of committing or attempting to commit kidnapping, burglary, robbery,
      aggravated sexual assault, arson, obstruction or retaliation . . . .” TEX. PENAL
      CODE ANN. § 19.03 (West Supp. 2013). A person may also be guilty as a party to
      capital murder if he commits the offense by his own conduct, by the conduct of
                                          5
A.    Standard of review

      When reviewing the sufficiency of the evidence, we consider all of the

evidence in the light most favorable to the verdict to determine whether any

rational factfinder could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979); Brooks v. State, 323 S.W.3d 893, 899–902 (Tex. Crim. App. 2010)

(plurality op.); Ervin v. State, 331 S.W.3d 49, 53–55 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref’d). We defer to the jury’s reconciliation of conflicts in

testimony, the weight given to the evidence, and any reasonable inferences drawn

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

The evidence is legally insufficient when the “only proper verdict” is acquittal.

Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2218 (1982).

      The State bears the burden of proving each element of a charged offense.

TEX. PENAL CODE ANN. § 2.01 (West 2011); see also Mullaney v. Wilbur, 421 U.S.

684, 701, 95 S. Ct. 1881, 1891 (1975) (describing the prosecutor’s burden as

“essential” to our system of criminal justice). Direct and circumstantial evidence

are equally probative in establishing guilt, and circumstantial evidence alone can

be sufficient. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007);

see also Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006) (holding

      another for which he is criminally responsible, or by both. TEX. PENAL CODE ANN.
      § 7.01(a) (West 2011).
                                          6
“cumulative force” of all circumstantial evidence can be sufficient to support guilty

verdict).

B.     Sufficient evidence of capital murder

       Both Jones and Narsha testified that Castillo murdered Rodriguez while

trying to steal the rims off of his Cadillac. Narsha testified that, the day after

Rodriguez’s murder, Castillo told her that he and her brother, Chris, had stolen a

car and had gotten into a high-speed car chase with police. Castillo also admitted

that he had killed the owner of the car. Later that day, Castillo visited Narsha and

told her that he had hurt his arm the night before and needed to get pain medicine.

While riding in the car, Castillo told Narsha that he killed a man after “jacking” his

car.

       According to Jones, Castillo told him in jail that Castillo believed the only

people who saw him near the Cadillac when Rodriguez was murdered were too far

away to “really identify” him. According to Jones, Castillo also removed the shell

casing from the murder scene. Though Castillo argues that Jones’s testimony

conflicts with his claim that Chris murdered Rodriguez, we presume that the jury

resolved conflicts in testimony in favor of the prosecution and defer to its rational

resolution of those conflicts. See Clayton, 235 S.W.3d at 778–79 (deferring to

jury’s determination of witness credibility and upholding murder conviction).




                                          7
      Castillo admitted that he was at the scene when the murder occurred.

Evidence placing a defendant near or at a crime scene before the crime was

committed can be sufficient to prove murder. Palomo v. State, 352 S.W.3d 87, 90–

91 (Tex. App.—Houston [14th Dist.] 2011, pet ref’d) (holding sufficient evidence

of murder when defendant was seen at location prior to murder); see also Wolfe v.

State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996) (upholding conviction when

defendant was seen near scene before and after murder). Furthermore, Castillo

admitted that he stole Rodriguez’s Cadillac and tried to flee when a police officer

flashed her lights and tried to pull him over. See Foster v. State, 779 S.W.2d 845,

859 (Tex. Crim. App. 1989) (“Evidence of flight is admissible as a circumstance

from which an inference of guilt may be drawn.”).

      The jury also could have relied on circumstantial evidence of a freshly

tossed cigarette butt found near Rodriguez’s body that matched the brand Castillo

smokes. See Temple v. State, 390 S.W.3d 341, 359–60 (Tex. Crim. App. 2013)

(“[I]t is not necessary that every fact and circumstance point directly and

independently to the defendant’s guilt; it is enough if the conclusion is warranted

by the combined and cumulative force of all the incriminating circumstances.”).

      The jury also heard evidence to support the conclusion that Castillo robbed

Rodriguez. When police searched the Cadillac, they found that it had been

“ransacked.” They found that there were two tire irons in the front seat, the car had


                                         8
been stripped of its electrical components, and an air-conditioning vent from the

front dash had been tossed into the trunk.

      We conclude that, when viewed in the light most favorable to the verdict, the

evidence was sufficient to support Castillo’s conviction. Therefore, a reasonable

jury could have concluded, beyond a reasonable doubt, that Castillo was guilty of

murdering Rodriquez.

      We overrule Castillo’s first issue.

                                Motion to Suppress

      In his second, third, and fourth issues, Castillo contends that the trial court

erred in denying his motion to suppress his statement. Castillo contends that the

statement was inadmissible because (1) he did not make the statement voluntarily

and did not intentionally waive his Miranda rights, and (2) he invoked his right to

counsel. We address each of these contentions in turn.

A.    Standard of review

      When a defendant challenges a trial court’s denial of a motion to suppress a

statement, we review the trial court’s ruling for an abuse of discretion. Turrubiate

v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013) (citing Valiterra v. State,

310 S.W.3d 442, 447–48 (Tex. Crim. App. 2010). We grant almost total deference

to a trial court’s determinations of historical facts. Id. We use the same deferential

standard for mixed questions of law and fact that require evaluation of credibility


                                             9
and demeanor. Id. However, we review de novo all other mixed questions of law

and fact that do not fall within that category. Id. When the trial court enters no

findings of facts, we view the evidence in the light most favorable to the trial

court’s ruling to deny the motion to suppress. Id. We imply all necessary findings

of fact that are supported by the record. Valiterra, 310 S.W.3d at 447–48. And, we

must uphold the trial court’s ruling if it was within the zone of reasonable

disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)

(op. on reh’g).

B.    Voluntariness of statement

      In his second and fourth issues, Castillo contends that his statement was

involuntary and that he never waived his rights under Miranda and article 38.22 of

the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.22

(West Supp. 2013). Specifically, Castillo argues that his statement was involuntary

because law enforcement subjected him to “lengthy” questioning, law enforcement

did not attempt to treat his injuries, and he was intoxicated and, therefore, was

unable to voluntarily waive his rights. The State responds that the totality of the

circumstances establishes that Castillo voluntarily gave his statement describing

his involvement in Rodriguez’s robbery and murder.

      The Fifth Amendment to the United States Constitution provides that a

criminal defendant has the right not to be “compelled in any criminal case to be a


                                        10
witness against himself . . . .” U.S. CONST. amend V. In Miranda v. Arizona, 384

U.S. 436, 86 S. Ct. 1602 (1966), the United States Supreme Court interpreted this

right to include the right to remain silent during a police interrogation, to have an

attorney present during custodial interrogation, and to be informed of these rights

before any custodial interrogation. 384 U.S. at 478–79, 86 S. Ct. at 1630. Article

38.22 of the Texas Code of Criminal Procedure statutorily incorporates those

rights. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2013); see Ervin,

333 S.W.3d at 204; see also Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim.

App. 2008) (“A statement that is ‘involuntary’ as a matter of constitutional law is

also ‘involuntary’ under [a]rticle 38.22 . . . .”). When law enforcement fails to

comply with these requirements, the State may not use the statement during the

prosecution of its case. See Ervin, 333 S.W.3d at 204; see also Jones v. State, 119

S.W.3d 766, 772 (Tex. Crim. App. 2003). Once a suspect is informed of his rights,

his statement is admissible if he waives his rights by speaking “freely and

voluntarily without any compelling influences.” Miranda, 384 U.S. at 478, 86 S.

Ct. at 1630; see also TEX. CODE CRIM. PROC. ANN. art. 38.22.

      Whether a defendant’s statement is voluntary presents a mixed question of

law and fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000); see also

Juarez v. State, 409 S.W.3d 156, 164 (Tex. App.—Houston [1st Dist.] 2013, pet.

ref’d). The State has the burden of proving by a preponderance of the evidence that


                                         11
a defendant has validly waived his rights. Joseph v. State, 309 S.W.3d 20, 24 (Tex.

Crim. App. 2010). A defendant need not explicitly waive his rights, nor must he

express his waiver in writing. Id. A defendant’s actions and words may be

sufficient to infer waiver. Id. When a defendant alleges that he involuntarily

waived his rights and made a statement, we consider the totality of the

circumstances including the defendant’s experience, background, and conduct.

Leza v. State, 351 S.W.3d 344, 352 (Tex. Crim. App. 2011). A statement is

involuntary if it was the product of intimidation, coercion, or deception. Joseph,

309 S.W.3d at 26; Juarez, 409 S.W.3d at 164–65.

       Section six of article 38.22 requires the trial court to hold a hearing outside

the jury’s presence to determine whether the defendant voluntarily made his

statement. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West Supp. 2013). The

trial court here found that Castillo’s statement was voluntary. And, as required by

that section, the trial court instructed the jury that it should not consider the

statement for any purpose unless it believed beyond a reasonable doubt that

Castillo voluntarily made the statement. Id.

      1.     Statement not involuntary due to length of questioning

      It is undisputed that Castillo was in custody during the interview and would

not have been able to leave after giving his statement. Throughout the interview,

however, law enforcement offered him water and coffee several times and gave


                                         12
him multiple opportunities to use the restroom. See Ervin, 333 S.W.3d at 205

(listing situations that constitute Miranda custody); see also Gardner v. State, 306

S.W.3d 274, 294 (Tex. Crim. App. 2009) (stating proper inquiry to determine

whether an interview is custodial is “whether there is a ‘formal arrest or restraint

on freedom of movement’ of the degree associated with a formal arrest.”) (citation

omitted). Castillo offers no evidence that police used coercion or deception to elicit

his statement while he was in custody. See Joseph, 309 S.W.3d at 26 (finding

defendant waived right when he made “free and deliberate choice without

intimidation, coercion, or deception” to answer questions). Accordingly, we hold

that the mere length of the questioning does not require the conclusion that

Castillo’s statement was involuntary.

      2.     Statement not involuntary due to alleged lack of medical
             treatment

      Castillo claims that he had visible injuries and that law enforcement

affirmatively denied him access to medical treatment. He also testified at the

motion to suppress hearing that police beat him during a trip to the restroom.

Castillo’s testimony conflicts with testimony from Deputy Gonzales and

Investigator Quintanilla, who both testified that Castillo had no visible injuries that

required medical attention. Cf. Ross, 32 S.W.3d at 855 (deferring to factfinder’s

discretion in weighing witness credibility when reviewing trial court’s denial of

motion to suppress evidence). Moreover, the jury saw the video of his statement

                                          13
and the judge could have made his own determination as to whether Castillo was

injured during the interview. We must defer to the trial court’s determination about

a defendant’s credibility. See Turrubiate, 399 S.W.3d at 150 (granting almost total

deference to trial court’s determinations of credibility). Accordingly, we conclude

that Castillo’s controverted allegation of untreated injuries did not render his

confession involuntary.

      3.    Statement not involuntary because of intoxication

      Castillo also argues that he was intoxicated, did not understand why he was

being questioning, and ignorantly continued to talk to law enforcement. Alleged

ignorance of the purpose of law enforcement questioning is insufficient to render a

defendant’s waiver of Miranda rights “involuntary or insufficiently informed.”

Leza, 351 S.W.3d at 350. In Leza, the Court of Criminal Appeals emphasized that

when a defendant acknowledges that he understands his rights, he agrees that

“anything” may be used against him. Id. (citing Colorado v. Spring, 479 U.S. 564,

577, 107 S. Ct. 851, 859 (1987)).

      Before Castillo made any statement, Officer Gonzales informed him of his

rights. Officer Gonzales confirmed that Castillo said he understood those rights.

After Castillo acknowledged that he understood his rights, he answered questions

for hours. Castillo presents no evidence that he was unable to intelligently

understand the officers’ questions or instructions. Furthermore, neither Officer


                                        14
Gonzales nor Investigator Quintanilla testified that Castillo appeared to be

intoxicated. See Leza, 351 S.W.3d at 352 (“Circumstances unattributable to the

police that nevertheless adversely impact an accused’s ability to resist reasonable

police entreaties to waive his statutory rights, such as intoxication, are ‘factors’ in

the voluntariness inquiry, though they are usually not enough, by themselves, to

render a statement inadmissible under Article 38.22[.]”) (citation omitted). We

presume that the court reconciled any inconsistencies within the witnesses’

testimony and defer to its voluntariness finding. Accordingly, we hold that

Castillo’s claim of intoxication does not require a finding that he was unable to

give a voluntary statement.

      We conclude that the trial court did not abuse its discretion in finding that

Castillo voluntarily waived his rights and voluntarily gave his statement.

C.    Invocation of right to counsel

      In his third issue, Castillo argues that his repeated requests to speak with his

wife “obvious[ly]” invoked his right to counsel. He does not contend that he ever

asked to speak with his lawyer. The State responds that Castillo’s requests to see

his wife did not unambiguously invoke his right to counsel.

      The Fifth and Fourteenth Amendments to the United States Constitution

provide a defendant the right to counsel during a custodial interrogation. Miranda,

384 U.S. at 444, 86 S. Ct. at 1612; U.S. CONST. amends. V, XIV. To benefit from


                                          15
this right, a defendant must affirmatively invoke it: “An invocation must be clear

and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer’ without

more, does not automatically invoke the right to counsel.” Dinkins v. State, 894

S.W.2d 330, 351 (Tex. Crim. App. 1995). While the defendant need not say

“magic words,” his alleged invocation must, under all of the facts and

circumstances, be construed as invoking his right to counsel. Russell v. State, 727

S.W.2d 573, 575 (Tex. Crim. App. 1987); also compare Reed v. State, 227 S.W.3d

111, 116 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (asking whether “he

could get a lawyer if he wanted one” insufficient to invoke right), with State v.

Gobert, 275 S.W.3d 888, 892–93 (Tex. Crim. App. 2009) (stating “I don’t want to

give up any right” clearly invoked right to counsel).

       When a defendant alleges that he invoked his right to counsel, we review the

totality of the circumstances surrounding the interrogation and alleged invocation

and determine whether the defendant actually invoked his right. Dinkins, 894

S.W.2d at 351; Reed, 227 S.W.3d at 116. If a defendant clearly invokes his right to

counsel, law enforcement must cease questioning related to that case. Connecticut

v. Barrett, 479 U.S. 523, 528, 107 S. Ct. 828, 831 (1987); Gobert, 275 S.W.3d at

893.

       Castillo’s requests to speak with his wife were not unambiguous invocations

of his right to counsel because a reasonable officer would not have understood


                                         16
such statements as requests for an attorney. See Reed, 227 S.W.3d at 116 (stating

whether defendant invokes right turns upon “whether a reasonable officer, under

similar circumstances, would have understood the statement to be a request for an

attorney . . . .”). Castillo cites no authority that would support an opposite

conclusion. Castillo simply did not ask to speak to a lawyer. 4 Under these

circumstances we conclude that the trial court did not abuse its discretion in

finding that Castillo did not unambiguously invoke his right to counsel.

      Because the factfinder reasonably could have concluded that Castillo

voluntarily waived his rights, voluntarily gave his statement, and did not invoke his

right to counsel, we conclude the trial court did not abuse its discretion in denying

Castillo’s motion to suppress.

      Accordingly, we overrule his second, third, and fourth issues.

                                   Jury Instruction

      In his fifth issue, Castillo contends that the trial court erred by not

instructing the jury on the law of accomplice witnesses regarding evidence of out-

of-court statements made by Chris.




4
      Castillo only twice mentioned the word “attorney” and did so at the end of the
      four-hour interview. Specifically, Castillo asked whether “they’ll assign[ ] me an
      attorney.” Shortly thereafter, Castillo explained that he wanted to speak to his wife
      to tell her to “sell my truck and my tires . . . to pay for an attorney.” These
      references occurred in the last minute of the interview.
                                           17
A.    Standard of review

      A trial court must deliver to the jury a written charge “distinctly setting forth

the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West

2007). When a defendant alleges that the trial court erred in instructing the jury, we

engage in a two-step inquiry, asking first whether there was any error. Ngo v. State,

175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If we determine that there was error,

we must decide whether the error was harmful. Id. Harmful error requires a

reversal of the conviction. Id.

B.    Jury instruction analysis

      An accomplice witness is “one who participated with another before, during,

or after the commission of a crime and can be prosecuted for the same offense with

which the accused is charged.” Nguyen v. State, 177 S.W.3d 659, 668 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d) (citation omitted). When the State

offers an accomplice witness, article 38.14 of the Code of Criminal Procedure

requires the trial court to instruct the jury on the accomplice rule. Id. at 669; see

also Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002); TEX. CODE

CRIM. PROC. ANN. art. 38.14 (West 2005). Article 38.14 of the Code of Criminal

Procedure states:

      A conviction cannot be had upon the testimony of an 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.

                                          18
TEX. CODE. CRIM. PROC. ANN. art. 38.14. Article 38.14 does not apply to an

accomplice’s out-of-court statements. Nguyen, 177 S.W.3d at 669 (citing Bingham

v. State, 913 S.W.2d 208, 210–13 (Tex. Crim. App. 1995)).

      Castillo argues that the term “testimony” includes accomplice statements to

police outside of trial proceedings and, therefore, Chris’s recorded statement

required an accomplice instruction. Specifically, Castillo argues that while the

video recording of his statement was played at trial, the jury also heard portions of

an audio recording of Chris’s statement, in which Chris identified Castillo as

Rodriguez’s murderer. Chris, however, did not testify at trial and his statement to

police was not directly admitted into evidence. Because article 38.14 only applies

to testimony and not to out-of-court statements, Chris’s statement did not require

an accomplice instruction. 5 See Nguyen, 177 S.W.3d at 669 (holding accomplice

instruction not required because testimony was not adduced in open court by live

witness).

      We conclude that the trial court did not err by not instructing the jury on the

law of accomplices.

      We overrule Castillo’s fifth issue.


5
      Even assuming that Chris’s recorded statement constituted testimony, any error in
      failing to give an accomplice instruction was harmless because his statements
      were corroborated by other witness testimony. See Tex. TEX. CODE CRIM. PROC.
      ANN. art. 38.14 (West 2005) (requiring corroboration of accomplice testimony).

                                            19
                                   Conclusion

      We affirm.




                                                Harvey Brown
                                                Justice

Panel consists of Justices Keyes, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           20
