                                 NO. 12-12-00381-CR

                       IN THE COURT OF APPEALS

             TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

SHAMS EMIL MASTERS,                               §           APPEAL FROM THE 114TH
APPELLANT

V.                                                §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §            SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Shams Emil Masters appeals his conviction for murder.               In one issue, Appellant
challenges the jury instructions. We affirm.


                                           BACKGROUND
       Appellant was charged by indictment with murder, a first degree felony. Appellant
pleaded ―not guilty,‖ and the case proceeded to a jury trial. At the conclusion of the trial, the jury
found Appellant guilty of murder as charged in the indictment, and assessed his punishment at life
imprisonment. This appeal followed.


                              ACCOMPLICE WITNESS INSTRUCTION
       In his sole issue on appeal, Appellant contends that two witnesses were accomplices.
Consequently, he argues, the trial court erred by failing to sua sponte include an accomplice
witness instruction in the jury charge. Appellant also contends that he was egregiously harmed by
the trial court’s error, and that this court should reverse the judgment and remand the case for a
new trial.
Standard of Review
       In our review of jury charge error, we must first determine whether error occurred, and if
so, whether that error caused sufficient harm to require reversal. Ngo v. State, 175 S.W.3d 738,
743 (Tex. Crim. App. 2005). The degree of harm necessary for reversal depends on whether the
appellant preserved error at trial. Id. When, as here, the appellant fails to object or states that he
has no objection to the charge, we will not reverse unless the record shows ―egregious‖ harm to the
appellant. Id. at 743–44 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984));
see also Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 2008).
Applicable Law
       An accomplice is someone ―who participates with a defendant before, during, or after the
commission of the crime and acts with the requisite culpable mental state.‖ Cocke v. State, 201
S.W.3d 744, 748 (Tex. Crim. App. 2006). An accomplice is also someone who is charged or,
under the evidence could have been charged, with the same offense as the defendant or a
lesser-included offense. Zamora v. State, No. PD-1395-12, 2013 WL 5729980, at *5 (Tex. Crim.
App. Oct. 23, 2013) (not yet released for publication); see also TEX. PENAL CODE ANN.
§ 7.02(a)(2) (West 2011) (relating to criminal responsibility as a party to the offense). To be
considered an accomplice, the witness ―must have engaged in an affirmative act that promote[d]
the commission of the offense that the accused committed.‖ Smith v. State, 332 S.W.3d 425, 439
(Tex. Crim. App. 2011) (citing Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007)).
Evidence must exist connecting the alleged accomplice to the offense as a ―blameworthy
participant,‖ but ―whether the alleged accomplice-witness is actually charged or prosecuted for his
participation is irrelevant.‖ Cocke, 201 S.W.3d at 748 (citing Blake v. State, 971 S.W.2d 451,
455 (Tex. Crim. App. 1998)).
       One is not an accomplice for ―knowing about a crime and failing to disclose it, or even
concealing it.‖ Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999) (quoting Blake, 971
S.W.2d at 454). Even where the evidence shows that the witness participated in concealing the
crime, such evidence is not sufficient to raise the issue of accomplice status. Id. Merely
assisting a murderer in disposing of the murder weapon after the murder does not make one an
accomplice as a matter of law. Roys v. State, No. 07-11-00452-CR, 2013 WL 6017439, at *2
(Tex. App.—Amarillo Nov. 8, 2013, no pet. h.) (not yet released for publication). The ―witness
must still be susceptible to prosecution for the murder itself by having affirmatively assisted in



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committing the offense.‖ Id. (quoting Druery, 225 S.W.3d at 500).
       The evidence at trial dictates whether an accomplice as a matter of law or fact instruction is
required. Smith, 332 S.W.3d at 439 (citing Cocke, 201 S.W.3d at 747). A witness is an
accomplice as a matter of law if he has been, or could have been, indicted for the same offense or a
lesser included offense, or when the evidence clearly shows that the witness could have been so
charged. Cocke, 201 S.W.3d at 748; Druery, 225 S.W.3d at 498. The trial court is required to
give the jury an accomplice witness instruction if a witness is an accomplice as a matter of law.
Cocke, 201 S.W.3d at 748.
       If the evidence does not clearly show the witness is an accomplice as a matter of law, or if
the parties present conflicting evidence as to whether the witness is an accomplice, the trial court
should allow the jury to decide whether the witness is an accomplice as a matter of fact with an
instruction defining the term ―accomplice.‖ Druery, 225 S.W.3d at 498–99; Cocke, 201 S.W.3d
at 747–48. But when the evidence clearly shows that a witness is not an accomplice, the trial
judge is not obliged to instruct the jury on the accomplice witness rule—as a matter of law or fact.
Smith, 332 S.W.3d at 440; Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987).
The Evidence
       Appellant was convicted of murdering William Young on February 15, 1999, by shooting
him with a firearm. He contends that Russell Aaron Tyler was an accomplice witness because
after Tyler learned of the investigation in Young’s death, he buried a handgun that Appellant
borrowed from him. Appellant also argues that Aaron Gene Vaughn was an accomplice witness
because Appellant attempted to solicit Vaughn’s help in robbing Young of drugs and money,
Vaughn drove Appellant to Tyler’s home to borrow a gun the day before Young’s death, and
Vaughn did not immediately divulge what he knew to investigating officers.
Russell Aaron Tyler
       Tyler testified that he met Appellant in 1998 while living in the same apartment complex in
Tyler, Texas. At the time of the murder, he lived in a mobile home in Flint, and owned some
firearms, including a 9-millimeter Smith & Wesson handgun that his father had given him. He
and his roommate testified that Appellant and Vaughn arrived at their mobile home one night in
February 1999. Appellant told Tyler that he was going to the liquor store and asked to borrow a
pistol to shoot on the way to the store or out at the lake. Tyler showed Appellant the 9-millimeter
handgun and said that he could shoot it. However, he asked Appellant to return the handgun by



                                                 3
the next morning and put it under the seat of his truck. He did not know Appellant was borrowing
the gun to murder someone. Before daylight the next day, Tyler saw Appellant return to his
mobile home, get out of the passenger side of the car, put the handgun on the front seat of his truck,
and leave. Tyler said that Vaughn was driving the vehicle.
       Tyler testified that after he saw Appellant on the news, he took both of his pistols to his
father’s house and at that point, he said, his father was ―in charge.‖ He described his father as
very controlling, very large, and a criminal. He and his father checked the 9-millimeter and
noticed that one round was missing. Tyler’s father poured peroxide on the handgun and the
peroxide ―foamed up,‖ meaning that it had been shot. Tyler wiped the pistols down, wrapped
them in a towel, and soaked them in motor oil before burying them on his father’s property.
However, Tyler’s roommate admitted that he actually buried the guns at Tyler’s father’s direction
because Tyler was in a plaster cast from his hip to his toes.
       Tyler stated that law enforcement officers searched his mobile home shortly after
Appellant was arrested. He testified that when he arrived at his mobile home and saw law
enforcement, he fled. Afterwards, his father contacted law enforcement, and Tyler’s roommate
dug up the gun and gave it to the officers. Tyler admitted not contacting law enforcement when
he saw that the peroxide ―foamed up‖ on the handgun. At trial, the evidence showed the bullet
that killed Young appeared to have been fired from the handgun recovered from Tyler.
Aaron Gene Vaughn
       Vaughn testified that he had testimonial immunity in this case. He moved into a house in
August or September 1998, and Appellant moved in with him around Christmas 1998. Vaughn
stated that he and Appellant were using drugs, including crack cocaine. He recalled meeting
Young through Appellant in January or early February 1999. According to Vaughn, Young
stayed at his and Appellant’s house three or four days a week to sell drugs, including crack
cocaine. He stated that at that time, all three of them were selling crack cocaine. Vaughn
testified that Young was the top of the ―food chain,‖ and brought the drugs to the house. He said
that Young sold the drugs directly to him, and then he would sell some to others.
       Vaughn had a vehicle, a Toyota Camry, but it was not registered or inspected, and he did
not have any insurance. Appellant drove Vaughn’s vehicle daily, but mostly at night. His other
roommate had a black vehicle that he and Appellant also drove. At one point in mid-February
1999, Appellant asked Vaughn if he wanted to help him ―jack,‖ or rob, Young for crack cocaine



                                                  4
and money. Vaughn told him he did not want ―anything to do with that.‖ He did not believe that
Appellant and Young were fighting, but stated that they wanted Young to leave their house. He
recalled driving Appellant to Tyler’s house in his roommate’s car on February 15, 1999. Vaughn
denied knowing that Appellant was going to get a gun and believed that they were going to Tyler’s
mobile home for methamphetamine. He denied ever seeing a gun.
       Appellant and Vaughn’s other roommate recalled that Appellant begged to borrow her car
late that night, but she refused and left for work. That night, Vaughn, Appellant, and Young were
watching wrestling. Another witness, Dale Linbaugh, stated that he was present in the house that
night and testified that Young pulled out a large bag of crack cocaine and some scales. According
to Vaughn and Linbaugh, Appellant and Young left the house together. Linbaugh stated that over
an hour later, Appellant returned eating chicken nuggets even though he did not have any money
when he left. Appellant asked for change to clean the car, stating that he had spilled some
ketchup, and left again. Shortly afterwards, Linbaugh also left the house. Vaughn stated that
Appellant returned with a ―whole lot of crack,‖ a lot more than normal. He testified that
Appellant told him he did not think Young would be bothering them anymore. Vaughn said that
he drove Appellant to Tyler’s mobile home early the next morning. Linbaugh testified that the
next day, he returned to Appellant’s house and saw a lot of crack cocaine and the scales. Vaughn
stated that he did not know what happened nor did he want to know. However, he realized that
Appellant had taken his car the night before.
       On February 18, 1999, homicide detectives arrived at Vaughn’s home. He remembered
the detectives asking him the last time he had seen Young. After the detectives left, Vaughn
asked Appellant if he had anything to do with Young being killed. Appellant went ―berserk,‖
telling him that ―[y]ou can’t tell anybody. He’s a drifter. Nobody’s going to know. You can’t
tell them.‖ Appellant told him that no one would ever know that he killed Young unless he,
Vaughn, said something. According to his other roommate, Vaughn appeared to be ―in shock‖
when he heard that Young had been killed.
       On cross examination, Vaughn stated that Appellant told him he killed Young before the
detectives came to his house in February. He did not inform the detectives because he was trying
to protect Appellant and was scared of him. However, this conflicted with his testimony on direct
examination. Vaughn also failed to inform law enforcement after Appellant was arrested that
Appellant told him he killed Young.



                                                5
Analysis
       The evidence shows that Appellant borrowed a handgun from Tyler that later appeared to
have been the weapon that killed Young. Tyler admitted that he loaned the handgun to Appellant.
He also admitted that his roommate later buried the handgun on his father’s property after he saw
Appellant on the news. A person is not an accomplice for loaning and then disposing of a murder
weapon after the murder. See Roys, 2013 WL 6017439, at *2. There is no evidence that Tyler
knew Appellant planned to rob and kill Young or committed an overt act before or after Young’s
murder that indicated he intended to assist the commission of the offense. Nor does the evidence
suggest that Tyler acted with the culpable mental state required for murder. See id. Therefore,
there is no evidence that Tyler could have been charged with Young’s murder or a lesser included
offense or that he engaged in an affirmative act that promoted the commission of the murder. See
Zamora, 2013 WL 5729980, at *5; Smith, 332 S.W.3d at 439. Thus, the trial court did not err in
failing to instruct the jury on the accomplice witness rule as applied to Tyler.
       The evidence also shows that although Vaughn drove Appellant to Tyler’s mobile home,
Appellant, not Vaughn, borrowed the handgun used to kill Young. Linbaugh testified that
Appellant, not Vaughn, was the last person seen with Young while he was still alive. He also
stated that when Appellant returned, he was by himself, eating chicken nuggets, and left to clean
the car. Appellant and Vaughn’s other roommate testified that Appellant, not Vaughn, wanted to
borrow her car that night. Vaughn also appeared to be ―in shock‖ after learning of Young’s death.
None of this evidence shows that Vaughn committed an overt act before or after Young’s murder
that indicated he intended to assist the commission of the offense.
       Vaughn concealed his knowledge that Appellant killed Young.                 But one is not an
accomplice for ―knowing about a crime and failing to disclose it, or even concealing it.‖ See
Medina, 7 S.W.3d at 641. The evidence also shows that Appellant asked Vaughn to help him rob
Young of crack cocaine and money before he was killed. Nonetheless, there is no evidence that
Vaughn helped Appellant rob Young on the night Appellant and Young left the house together.
Linbaugh testified that Appellant, and not Vaughn, left the house with Young the night of the
murder. He also testified that Appellant returned to the house alone and borrowed money to clean
the car. There is no evidence that Vaughn engaged in an affirmative act that promoted the
commission of the murder. See Zamora, 2013 WL 5729980, at *5; Smith, 332 S.W.3d at 439.
Nor does the evidence suggest that Vaughn acted with the culpable mental state required for



                                                  6
murder. See Roys, 2013 WL 6017439, at *2. Thus, the trial court did not err in failing to instruct
the jury on the accomplice witness rule as applied to Vaughn.
         We overrule Appellant’s sole issue.


                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.


                                                                SAM GRIFFITH
                                                                  Justice


Opinion delivered November 26, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                        NOVEMBER 26, 2013


                                         NO. 12-12-00381-CR


                                     SHAMS EMIL MASTERS,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee

                           Appeal from the 114th Judicial District Court
                         Of Smith County, Texas. (Tr.Ct.No. 114-0417-12)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
