Opinion issued July 7, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00280-CR
                           ———————————
                  JEMARCUS LATRON GREEN, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Case No. 1398059


                                  OPINION

      Appellant Jemarcus Latron Green was charged by indictment with capital

murder. A jury found Green guilty, and the trial court assessed punishment at life,

without the possibility of parole, in the Texas Department of Criminal Justice,

Institutional Division. By four issues, Green contends that the trial court erred
because (1) it failed to instruct the jury that his girlfriend, Kristan Daniels, was an

accomplice as a matter of law; (2) its accomplice-in-fact charge failed to instruct

the jury that Daniels could be an accomplice as a co-conspirator; (3) Daniels’s

accomplice    witness    testimony    was       not   adequately   corroborated;     and

(4) insufficient evidence supports Green’s conviction. We affirm.

                                     Background

      On August 6, 2012, Jimmy Wooten was shot and killed outside his home.

Green supplied the murder weapon and was tried for Wooten’s murder.

Wooten’s Murder

      Wooten’s lifelong friend, Louis Hines, witnessed the shooting.               Hines

testified that he was sitting on the front porch of a nearby house with Kevin

Mitchell, waiting for Wooten to go clubbing. When Wooten came out of his house

a couple doors down, Hines saw two black men approach Wooten.                      Hines

described one of the men as tall and dark-skinned and described the other as

lighter-skinned and slightly shorter. Hines watched briefly as the men talked to

Wooten, before turning back to talking with Mitchell. Hines testified that his

attention only turned back to Wooten and the two men when he heard Wooten

loudly say, “you got me fucked up.” Then Hines heard a gunshot, which he

testified was fired by the taller, darker man. Hines testified that Mitchell took off

running at the sound of the first shot. Hines saw Wooten fall to the ground, and



                                            2
then the shooter turned and started firing at Hines, leading Hines to conclude that

he was using an automatic.

      Hines testified that a friend drove up and “snatched [Hines into] the car.” As

his friend drove away, Hines jumped out of the car and ran back to check on

Wooten. As he turned the corner, he saw the shooter taking Wooten’s pants and

shoes. Hines testified that he watched from a distance as the shooter then ran off

between the houses.

      Wooten died at Ben Taub Hospital later that night. Dr. Sara Doyle with the

Harris County Medical Examiner’s Office performed Wooten’s autopsy and

determined that cause of death was a single gunshot wound to his neck, which

perforated his cervical spine.   Dr. Doyle testified that she observed soot and

stippling around the wound, suggesting that the weapon was held within six inches

of Wooten’s body when fired.

      Officer N. Castillo of the Houston Police Department (“HPD”) responded to

the shooting. Officer Castillo testified that HPD officers found four spent shell

casings at the scene. Officer E. Aguilera with the Crime Scene Unit added that the

shell casings were all either 9-millimeter Luger Blazers or Luger Wins. Officer

Aguilera testified that he had not determined whether all four shell casings were

fired by the same weapon.




                                         3
      Officer B. Nabors of HPD’s Homicide Division investigated Wooten’s

murder. After speaking with Wooten’s girlfriend, Regina Flakes, Nabors and his

partner interviewed Kristan Daniels, who was Green’s girlfriend at the time. After

their first interview with Daniels, they developed Green and a second man known

as “K.D.” as suspects.

Daniels’s Testimony

      At trial, Daniels asserted her Fifth Amendment privilege against self-

incrimination. The State moved to compel her testimony on the promise of use

immunity, and the trial court granted the motion.

      According to Daniels, at the time of the charged offense, she had been living

with Green at his father’s house for roughly six months. On the date of the

offense, she and Green spent the daytime hours together watching television and

smoking marijuana. Later in the day, two of Green’s friends joined them: K.D.

and Pac. Daniels testified that the four of them were driving around in her car that

afternoon when Green, K.D., and Pac started talking about needing “some quick

money.” According to Daniels, Green hatched the idea to make some quick money

by robbing Jimmy Wooten. Daniels did not know Wooten, but Green knew him as

a local drug dealer and reasoned that Wooten’s line of work would keep him from

reporting a robbery. Daniels testified that K.D. and Pac agreed to rob Wooten, and

Green started to drive the group back to his house. As they were driving, Green



                                         4
pointed Wooten out to K.D. by saying, “There go Woo right there.” When they

got back to Green’s house, Green went inside to get a gun and gave the gun to

K.D.

       Daniels testified that she stayed at Green’s house while Green dropped K.D.

off near Wooten’s, which took roughly three minutes. Shortly after Green got back

to the house, Daniels heard four gun shots. Daniels testified that she and Green

were both shocked to hear the gun shots. Green hopped back into her car, telling

her that he was off to look for K.D. Green returned to the house alone sometime

later, and the two waited at Green’s house.

       Daniels testified that, later that night, K.D. arrived at Green’s house covered

in dirt with $140 in cash. According to Daniels, K.D. said someone had shot at

him and he shot back with the gun Green had given him. K.D. explained to

Daniels and Green that he had since been hiding in the crawl space under

Wooten’s house. K.D. returned the gun to Green and, on Green’s suggestion, K.D.

split the $140 stolen with Green.

       Daniels testified that, the next morning, Green wanted to get rid of the gun,

but Daniels’s car had broken down, so Green called a “crack head” for a ride.

Daniels testified that Green provided the directions and his friend drove them out

of the area to discard the gun. Green got out of the car alone and threw the gun

into a pond. The pond was a couple of blocks from where Daniels grew up, but



                                          5
she maintained that Green had directed his friend to drive to that location. On

cross-examination, however, she testified that she had suggested they drive to that

location to discard the gun.

Green’s Statements to Police

      Nabors and his partner twice interviewed Green regarding Wooten’s murder,

and both interviews were audio-recorded and admitted at trial. After initially

denying any involvement in Wooten’s murder and denying knowing K.D., Green

eventually told the officers that Wooten was killed by a “little wild young nigger”

called “Loco,” “because he crazy man.” At the second interview, Nabors and his

partner told Green that HPD had recovered the murder weapon and that they knew

“K.D.” was “Loco.” In response, Green admitted giving a weapon to K.D. and

stated that K.D. robbed Wooten because he needed money. He also admitted that

he received $60 of the $140 K.D. took from Wooten and that his mother’s “dope

fiend” ex-boyfriend drove him to the pond near Daniels’s grandparents’ home to

dispose of the murder weapon.

                                Accomplice Witness

      By his first issue, Green contends that Kristan Daniels’s accomplice-witness

testimony was not sufficiently corroborated, as required by article 38.14 of the

Texas Code of Criminal Procedure.




                                         6
A.    Applicable Law

      An accomplice is someone who participates with the defendant before,

during, or after the commission of a crime and acts with the required culpable

mental state.1 Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).

Under Texas law, a criminal conviction cannot be based on accomplice testimony

unless corroborated by other evidence tending to connect the accused to the

offense committed. TEX. CODE CRIM. PROC. ANN. art. 38.14.

      In order to review the sufficiency of corroborating evidence, “we exclude

the accomplice testimony from our consideration and determine whether there is

any independent evidence that tends to connect the defendant with the commission

of the offense.” Hernandez v. State, 454 S.W.3d 643, 647 (Tex. App.—Houston

[1st Dist.] 2014, pet. ref’d). However, “it is not appropriate for appellate courts to

independently construe the non-accomplice evidence.” Smith v. State, 332 S.W.3d

1
      Regarding criminal responsibility for conduct of another, section 7.02 of the Texas
      Penal Code provides:
            (a) A person is criminally responsible for an offense committed by the
                conduct of another if:
                    ...
                    (2) Acting with intent to promote or assist the commission of the
                    offense, he solicits, encourages, directs, aids, or attempts to aid the
                    other person to commit the offense; . . .
            (b) If, in the attempt to carry out a conspiracy to commit one felony,
                another felony is committed by one of the 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.
      TEX. PENAL CODE § 7.02.

                                            7
425, 442 (Tex. Crim. App. 2011). Instead, we view corroborating evidence in the

light most favorable to the verdict. Brown v. State, 270, S.W.3d 564, 567 (Tex.

Crim. App. 2008). “[W]hen there are conflicting views of the evidence—one that

tends to connect the accused to the offense and one that does not—we will defer to

the factfinder’s resolution of the evidence.” Smith, 332 S.W.3d at 442.

      Corroborating evidence need not directly connect the defendant to the crime,

and standing alone, it need not be sufficient to establish guilt. Cathey v. State, 992

S.W.2d 460, 462 (Tex. Crim. App. 1999). More simply, the evidence need only

link the accused to the offense in some way such that a rational trier of fact could

conclude that the evidence tended to connect the accused to the offense. Simmons

v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). Corroborating evidence

may be direct or circumstantial. Smith, 332 S.W.3d at 442.

B.    Analysis

      Assuming arguendo that Kristan Daniels was an accomplice witness, we

conclude that independent evidence tends to connect Green to Wooten’s murder,

such that her testimony was sufficiently corroborated under article 38.14. In his

recorded statements to police, which were played for the jury, Green identified

K.D. as the shooter and explained that K.D. robbed Wooten because he needed

money. Green further admitted in his statements that he provided K.D. with a gun,

received a portion of the money stolen from Wooten, and disposed of the gun after



                                          8
K.D. returned it to him. Based on this evidence, the jury could have rationally

found that the corroborating evidence tended to connect Green to Wooten’s

murder. Smith v. State, 436 S.W.3d 353, 370–71 (Tex. App.—Houston [14th

Dist.] 2014, pet. ref’d) (concluding that nonaccomplice evidence of defendant’s

flight, connection to weapon, and association with accomplice at or near time of

offense sufficiently connected defendant to offense)

      We overrule Green’s first issue.

                                   Jury Charge

      Green’s second and third issues challenge the adequacy of the jury charge.

In his second issue, Green contends that the trial court erred by failing to instruct

jurors that Daniels was an accomplice as a matter of law. In his third issue, Green

contends that the trial court’s accomplice-in-fact instruction was inadequate

because it failed to instruct jurors that Daniels could be an accomplice as a co-

conspirator.

A.    Standard of Review

      In analyzing a jury-charge issue, our first duty is to decide if error exists.

See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g);

Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). Only if we find error do we then consider whether an objection to the

charge was made and analyze for harm. Tottenham, 285 S.W.3d at 30; see also



                                         9
Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to

preserve jury-charge error is not a bar to appellate review, but rather it establishes

the degree of harm necessary for reversal.”).

      “The degree of harm necessary for reversal depends upon whether the error

was preserved.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

Error properly preserved by a timely objection to the charge will require reversal

“as long as the error is not harmless.” Almanza, 686 S.W.2d at 171. The Court of

Criminal Appeals has interpreted this to mean that any harm, regardless of degree,

is sufficient to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.

App. 1986). However, when the charging error is not preserved “and the accused

must claim that the error was ‘fundamental,’ he will obtain a reversal only if the

error is so egregious and created such harm that he ‘has not had a fair and impartial

trial’—in short ‘egregious harm.’” Almanza, 686 S.W.2d at 171.

B.    Applicable Law

      An accomplice participates before, during, or after the commission of a

crime and acts with the required culpable mental state. Paredes v. State, 129

S.W.3d 530, 536 (Tex. Crim. App. 2004) (citing Kutzner v. State, 994 S.W.2d 180,

187 (Tex. Crim. App. 1999)). “The participation must involve an affirmative act

that promoted the commission of the offense with which the accused is charged.”

Id. (citing Kutzer, 994 S.W.2d at 187).



                                          10
      If one is susceptible to prosecution for the offense charged against the

accused or a lesser included offense, that individual is an accomplice as a matter of

law. Kutzner, 994 S.W.2d at 187; Blake v. State, 971 S.W.2d 451, 454–55 (Tex.

Crim. App. 1998). “The trial court is under no duty to instruct the jury unless there

exists no doubt or the evidence clearly shows that a witness is an accomplice

witness as a matter of law.” Paredes, 129 S.W.3d at 536. If, however, the

evidence is conflicting such that it is not clear whether the witness is an

accomplice, then the trial court must instruct the jury to determine whether that

inculpatory witness is an accomplice as a matter of fact. Paredes, 129 S.W.3d at

536; Blake, 971 S.W.2d at 455.

C.    Analysis

      1.     Accomplice as a matter of law

      The charge instructed the jury that it could find that Daniels was an

accomplice. Green contends that the trial court erred by not instructing the jury

that Daniels was an accomplice as a matter of law whose testimony thus could not

be relied upon unless corroborated by other evidence tending to connect Green

with the charged offense. Even were we to find error, Green was not egregiously

harmed by the omission. Because Green offered no objections to the jury charge,

to be entitled to reversal, he must show that such error was so egregious and

created such harm that he was deprived of a fair and impartial trial. Almanza, 686



                                         11
S.W.2d at 171.       “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.’” Herron v. State, 86

S.W.3d 621, 632 (Tex. Crim. App. 2002) (citing Saunders v. State, 817 S.W.2d

688, 692 (Tex. Crim. App. 1991)). To determine the strength of non-accomplice

evidence, “we examine (1) its reliability or believability and (2) the strength of its

tendency to connect the defendant to the crime.” Id. “[A]s the corroborating

evidence gains in strength to the point that it becomes implausible that a jury

would fail to find that it tends to connect the accused to the commission of the

charged offense, then . . . the only resultant harm is purely theoretical and . . . there

is no occasion to reverse the conviction . . . .” Casanova v. State, 383 S.W.3d 530,

539–40 (Tex. Crim. App. 2012).

      As already discussed, here, strong corroborating evidence—including

Green’s own statements to police—connects Green to the charged offense. An

eyewitness at the scene provided a description of the shooter matching K.D. By

Green’s own admissions, the jury was told (1) that K.D. wanted money, (2) that

Green knew Wooten was a drug dealer, and thus relatively unlikely to report a

robbery, (3) that Green sold or loaned a gun to K.D., (4) that K.D. returned the gun

to Green after the shooting, (5) that Green disposed of the weapon the next day,



                                           12
and (6) that K.D. split the money he took from Wooten with Green. This evidence

tends to connect Green with the commission of the offense. Green’s statements to

police are not inherently incredible and Green does not argue that his statements

are unreliable. Given the strength of the evidence, we conclude that Green has

failed to show that he suffered egregious harm. See Casanova, 383 S.W.3d at

539–40; Herron, 86 S.W.3d at 632.

      We overrule Green’s second issue.

      2.    Accomplice-in-fact instruction

      Green further contends that the trial court erred by failing to instruct the jury

that Daniels could be an accomplice as a co-conspirator. An accomplice-witness

instruction is required when the evidence raises the question of whether a witness

is an accomplice under a party-conspirator theory. Zamora v. State, 411 S.W.3d

504, 512 (Tex. Crim. App. 2013). Here, the trial court’s jury charge instructed

jurors that Green could be held criminally responsible for Wooten’s death

individually, as a party, or as a co-conspirator. In applying the law, the charge

identified K.D. “and/or” Daniels as potential parties or co-conspirators.           In

instructing the jury with regard to accomplice-witness testimony, however, the trial

court’s charge did not explain that a co-conspirator could be an accomplice-

witness. We agree that the evidence raised a question as to whether Daniels might

be an accomplice under a party-conspirator theory, and thus conclude that the trial



                                          13
court erred in omitting co-conspirator liability from its accomplice-witness

instruction. See id.

      Having found error, we next consider whether the error egregiously harmed

Green. Because Green did not offer an objection to the trial court’s charge, he is

entitled to reversal only upon a showing of egregious harm. Almanza, 686 S.W.2d

at 171. As discussed above, sufficient non-accomplice testimony was presented at

trial to tend to connect Green to the charged offense such that only theoretical

harm could result from the trial court’s failure to instruct the jurors that Daniels

could be an accomplice-witness as a co-conspirator. Thus, we conclude that Green

has not demonstrated that he was egregiously harmed by the trial court’s failure to

include conspirator liability in its accomplice-witness instruction. See Herron, 86

S.W.3d at 633–34 (concluding that appellant not egregiously harmed by error in

omitting accomplice-witness instruction because non-accomplice evidence clearly

connected appellant to offense).

      We overrule Green’s third issue.

                           Sufficiency of the Evidence

      In his fourth issue, Green challenges the sufficiency of the evidence to

support his conviction for capital murder under a conspirator theory of liability

because the State failed to show that he should have anticipated that murder could

result from robbing Wooten at gunpoint.



                                          14
A.    Standard of Review

      When evaluating the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the verdict and determine whether any rational trier

of fact 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);

Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015); Brooks v. State,

323 S.W.3d 893, 902 (Tex. Crim. App. 2010). The standard is the same for both

direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex.

Crim. App. 1995). We consider the sufficiency of the evidence measured against

the elements of the offense as defined by a hypothetically correct jury charge—i.e.,

one that accurately sets out the law and adequately describes the offense charged

without increasing the State’s burden of proof or restricting the State’s theories of

liability. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “When the

trial court’s charge authorizes the jury to convict on more than one theory, as it did

in this case, the verdict of guilt will be upheld if the evidence is sufficient on any

of the theories.” Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007) (citing

Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).

      On appeal, we do not resolve any conflict of fact, weigh any evidence, or

evaluate the credibility of any witnesses, as this is the function of the trier of fact.

See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore



                                          15
resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,

819 S.W.2d 839, 843 (Tex. Crim. App. 1991), and “defer to the [trier of fact’s]

credibility and weight determinations . . . .” Marshall v. State 210 S.W.3d 618,

625 (Tex. Crim. App. 2006).

B.    Applicable Law

      Under Texas law, a person commits the offense of capital murder if he

intentionally causes the death of an individual in the course of committing or

attempting to commit kidnapping, burglary, robbery, aggravated sexual assault,

arson, obstruction or retaliation, or terroristic threat.       TEX. PENAL CODE

§ 19.03(a)(1)–(2).

      Pursuant to section 7.01 of the Texas Penal Code, an individual can be

convicted as a party to an offense if that offense was committed by his own

conduct, by the conduct of another for which he is criminally responsible, or both.

TEX. PENAL CODE § 7.01(a). A person is criminally responsible for an offense

committed by the conduct of another if, acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid

the other person to commit the offense. TEX. PENAL CODE § 7.02(a)(2). If, in the

attempt to carry out a conspiracy to commit one felony, another felony is

committed by one of the conspirators, all conspirators are guilty of the felony

actually committed, though having no intent to commit it, if the offense was



                                         16
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. TEX. PENAL

CODE § 7.02(b).

C.    Analysis

      By a general verdict, Green was found guilty of capital murder for causing

Wooten’s death in the course of robbing Wooten, in violation of section

19.03(a)(2) of the Texas Penal Code. The trial court’s jury charge allowed the jury

to find Green guilty individually, as a party, or as a co-conspirator, pursuant to

sections 7.01, 7.02(a)(2), and 7.02(b) of the Texas Penal Code. Where, as here, the

jury charge authorizes conviction on multiple theories, we must uphold the jury’s

verdict if the evidence is sufficient under any of the multiple theories. Hooper,

214 S.W.3d at 14.       We conclude that sufficient evidence supports Green’s

conviction as a conspirator.

      To convict Green for capital murder as a conspirator, the State was required

to prove beyond a reasonable doubt that (1) Green was a party to a conspiracy to

commit aggravated robbery, (2) in the attempt to commit aggravated robbery, one

of Green’s co-conspirators intentionally caused Wooten’s death, (3) Wooten’s

murder was committed in furtherance of the conspiracy to commit aggravated

robbery, and (4) Green should have anticipated Wooten’s murder could result from

carrying out the aggravated robbery.         See TEX. PENAL CODE §§ 7.02(b),



                                        17
19.02(b)(1), 19.03(a)(2); see also Canfield v. State, 429 S.W.3d 54, 66–67 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d).

      Green argues that insufficient evidence supports his conviction as a

conspirator because the evidence does not show that he should have anticipated

that Wooten’s murder could result from carrying out the conspiracy to commit

aggravated robbery. Green maintains that, based on his familiarity with Wooten

and the fact that Wooten was a drug dealer, he would not have anticipated that

Wooten would resist being robbed. Green further maintains that, given his limited

familiarity with K.D., he would have had no reason to expect K.D. to be violent or

impulsive.

      Notwithstanding Green’s contrary arguments, viewing the evidence in the

light most favorable to the verdict, we conclude that sufficient evidence supports

Green’s conviction as a conspirator. In the course of his first interview, Green

explained to the investigating officers that K.D. was a member of the Crypt gang,

associated with both Crypts and Bloods, and was called “Loco” “because he crazy

man.” According to testimony from Daniels, Green provided K.D., or “Loco,”

with a loaded weapon. Green acknowledged to officers in his recorded statement

that HPD might find his DNA on the murder weapon, if recovered, because he had

given it to “Loco.” Green was familiar with Wooten and knew that he was a drug

dealer. Daniels testified that Green pointed out Wooten to K.D. shortly before the



                                       18
offense. In sum, the evidence showed that Green conspired with a known gang

member referred to as “Loco” to rob a known drug dealer at gunpoint. Based on

such evidence, we conclude that the State adduced evidence from which a rational

trier of fact could have determined beyond a reasonable doubt that Green should

have anticipated Wooten’s murder could result from carrying out the conspiracy to

commit aggravated robbery. See Canfield, 429 S.W.3d at 66–70 (concluding that

murder should have been anticipated when armed conspirator robbed drug dealer);

Love v. State, 199 S.W.3d 447, 453 n.1 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d) (“Evidence that a defendant knew his co-conspirators might use guns in the

course of the robbery can be sufficient to demonstrate that the defendant should

have anticipated the possibility of murder occurring during the course of the

robbery.”); Whitmire v. State, 183 S.W.3d 522, 526–27 (Tex. App.—Houston

[14th Dist.] 2006, pet. ref’d) (concluding that murder should have been anticipated

in attempting aggravated robbery of drug dealer).

      Accordingly, we overrule Green’s fourth issue.




                                        19
                                    Conclusion

      We affirm the trial court’s judgment.




                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Keyes, Brown, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




                                        20
