                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-166-CR


DARRELL GLENN BELL                                                    APPELLANT

                                              V.

THE STATE OF TEXAS                                                         STATE

                                          ------------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                          ------------

                           MEMORANDUM OPINION 1

                                          ------------

                                    I. Introduction

      Appellant Darrell Glenn Bell appeals his conviction for capital murder. In

twelve points, appellant argues that the evidence is legally and factually

insufficient, that the indictment failed to contain notice of the State’s intent to

establish his criminal responsibility as a party or conspirator under Chapter 7 of

the Texas Penal Code, that the trial court erred by denying his request for a


      1
          … See T EX. R. A PP. P. 47.4.
lesser included offense instruction on conspiracy to commit capital murder and

conspiracy to commit aggravated robbery, that the trial court erred by denying

his request for a benefit of the doubt instruction in the jury charge, that the trial

court erred by denying his request for an accomplice witness instruction, that

the trial court erred by denying his request for an independent impulse rule

instruction regarding the conduct of Tarrence L. Stevenson, that the prosecutor

commented on appellant’s silence, and that Shawntee Abbs’s written statement

should have been excluded from evidence. We affirm.

                               II. Background Facts

      On April 13, 2005, Patrick and Brenda Kilpatrick went to Terry’s Food

Mart at 5500 Hemphill in Fort Worth. Patrick went to the counter to speak

with the store clerk, Syed Karim, while Brenda grabbed some beer and Pepsi.

While Patrick spoke to Syed, a black male walked in and went to the back of

the store. A few minutes later, two more black men dressed in black pants and

sweatshirts with hoodies came in and said, “This is a robbery, fools.” One of

the men wore a mask and had a gun. Syed took out the cash register, set it on

the counter, and begged for his life.

      Patrick and Brenda, who had backtracked down one of the aisles away

from the counter and crouched on the floor, called 9-1-1 when they heard a

shot fired. The men left in a black four-door car. Patrick ran to the front,

                                         2
noticed that the men were gone, and saw Syed holding his stomach before he

fell to the floor. Patrick ran to the Shell station next door where he knew an

ambulance was parked, but the EMTs refused to help until the police cleared

the scene. Syed later died from his wounds at the hospital.

      Based on the information the Kilpatricks provided, the police believed that

only two men were involved in the robbery. However, after viewing the store

surveillance video, police realized a third man had been involved. On April 15,

2005, police received a crime stoppers tip from Maricia Holland. Holland had

overheard a conversation between her girlfriend Shawntee Abbs and appellant

in which appellant told Abbs that he had committed a robbery and had some

money. A couple of days later, Holland, Abbs, and appellant were at Abbs’s

house, and appellant again admitted that he was involved with the robbery and

showed them a “wad” of cash. Appellant also talked about the robbery on

another occasion at Abbs’s house and said that he “got them [his friends]

pumped up” and one of them “got trigger happy.”

      Amanda Bivens testified that she had met appellant two years ago when

he was selling drugs. Bivens had a black, four-door 1998 Oldsmobile Cutlass,

which she would rent to appellant in exchange for drugs. On April 13, 2005,

Bivens was with appellant in her car when he began talking about needing

money to purchase drugs to sell; appellant said he was going to rob a clerk at

                                       3
a convenience store. Appellant, who was driving, stopped at a house and

picked up his friends T.T. and Julian. Bivens waited in the car for about fifteen

minutes until appellant, T.T., and Julian came out wearing black sweatshirts.

Appellant threw a gun in her lap and told her to hold it, but Bivens handed the

gun to T.T. and Julian in the back seat. Appellant drove around and tried to

find another gun, but he could not locate one. Appellant then dropped Bivens

off at a house on Savage Street where she waited for about thirty minutes until

appellant, T.T., and Julian returned. Appellant told Bivens to “[g]et that cash

register out your car” and gave her ten dollars for the use of her car. Bivens

also saw a black sweatshirt and black ski mask in the back seat of her car.

Appellant, T.T., and Julian left in another car.

       Bivens saw the robbery on the news the next morning and, although she

knew appellant and his friends were going to commit a crime the night before,

she did not know that they had shot someone until she saw the story. When

Bivens later saw appellant, she asked him what had happened, but he was

evasive. Appellant changed his story a couple of times; for example, one time

he told her that he had gone into the store but also that he had waited in the

car.

       Several days later, Bivens and Abbs were driving in Bivens’s car when the

police surrounded them.     Bivens and Abbs accompanied the police to the

                                       4
station and told them what they knew. After speaking with police, Bivens went

with a detective to a pay phone at a Chevron station and called appellant to

meet her. When appellant arrived, police arrested him.

      A grand jury charged appellant as follows:

            Darrell Glenn Bell, hereinafter called Defendant, in the County
      of Tarrant and State aforesaid, on or about the 13th day of April
      2005, did

           Then and there intentionally cause the death of an individual,
      Syed Karim, by shooting him with a firearm, and the said defendant
      was then and there in the course of committing or attempting to
      commit the offense of robbery.

A jury convicted appellant of the offense of capital murder, and the trial court

assessed punishment at life imprisonment. Appellant timely filed this appeal.

                        III. Legal and Factual Sufficiency

      In points one and two, appellant argues that the evidence was legally and

factually insufficient to support the jury’s verdict. Specifically, appellant claims

that he lacked specific intent to kill Syed.

A.    Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443


                                         5
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

                                        6
than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal.   Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Moreover, an opinion reversing and remanding on factual insufficiency grounds

must detail all the evidence and clearly state why the finding in question is

factually insufficient and under which ground. Goodman v. State, 66 S.W.3d

283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.




                                       7
B.    Capital Murder and Law of the Parties

      A person commits capital murder if he intentionally or knowingly causes

the death of an individual while in the course of committing or attempting to

commit robbery. T EX. P ENAL C ODE A NN. §§ 19.02(b)(1), 19.03(a)(2) (Vernon

2003 and Vernon Supp. 2008); Johnson v. State, 853 S.W.2d 527, 535 (Tex.

Crim. App. 1992), cert denied, 510 U.S. 852 (1993); Frank v. State, 183

S.W.3d 63, 72 (Tex. App.—Fort Worth 2005, pet. ref’d). The law of parties

applies to the offense of capital murder. Johnson, 853 S.W.2d at 534; Frank,

183 S.W.3d at 72.

      Under the law of parties, “[a] person is criminally responsible as a party

to an offense if the offense is committed by his own conduct, by the conduct

of another for which he is criminally responsible, or by both.” T EX. P ENAL C ODE

A NN. § 7.01(a) (Vernon 2003); Frank, 183 S.W.3d at 72.              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. T EX. P ENAL C ODE A NN. § 7.02(a)(2); Frank, 183 S.W.3d at

72.   Evidence is sufficient to convict under the law of parties when the

defendant is physically present at the commission of the offense and

encourages its commission by words or other agreement. Ransom v. State,

                                        8
920 S.W.2d 288, 302 (Tex. Crim. App.) (op. on reh’g), cert. denied, 519 U.S.

1030 (1996); Frank, 183 S.W.3d at 72–73.            In determining whether a

defendant participated in an offense as a party, the fact finder may examine the

events occurring before, during, and after the commission of the offense and

may rely on actions of the defendant that show an understanding and common

design to commit the offense. Ransom, 920 S.W.2d at 302; Cordova v. State,

698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1101

(1986); Frank, 183 S.W.3d at 73.

      Further, section 7.02(b) of the penal code provides that

            [i]f, 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 the conspiracy.

T EX. P ENAL C ODE A NN. § 7.02(b); Frank, 183 S.W.3d at 73.

      The law of parties need not be pled in the indictment. Marable v. State,

85 S.W.3d 287, 287 (Tex. Crim. App. 2002); Montoya v. State, 810 S.W.2d

160, 165 (Tex. Crim. App. 1989), cert. denied, 502 U.S. 961 (1991); Frank,

183 S.W.3d at 72. This rule applies to the law of parties found in both section

7.02(a)(2) and section 7.02(b). Montoya, 810 S.W.2d at 165.




                                       9
C.    Analysis

      Appellant argues that because he did not intend to kill anyone, the

evidence is insufficient to find him guilty of capital murder. However, because

the jury charge authorized the jury to find appellant guilty of capital murder

under either penal code section 7.02(a)(2) or 7.02(b), we need only consider

whether the evidence is sufficient to prove that Syed’s murder should have

been anticipated as a result of carrying out the robbery. See Love v. State, 199

S.W.3d 447, 453 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

      Evidence that a defendant knew his co-conspirators might use guns

during a robbery can be sufficient to demonstrate that the defendant should

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

robbery. See id.; see also Fuller v. State, 827 S.W.2d 919, 932 (Tex. Crim.

App. 1992), cert. denied, 509 U.S. 922 (1993) (holding that murder should

have been anticipated as a possible result of a robbery when, although appellant

denied participating in any brutality against decedent, he admitted having a

pocketknife with him at the time of entry and that one of his cohorts usually

would have had a knife in that situation); Green v. State, 682 S.W.2d 271,

285–86 (Tex. Crim. App. 1984) (holding murder should have been anticipated

as a possible result of robbery when appellant admitted entering the house

armed with a gun), cert. denied, 470 U.S. 1034 (1985); Smith v. State, 187

                                      10
S.W.3d 186, 190–92 (Tex. App.—Fort Worth 2006, pet. ref’d) (holding that

there was sufficient evidence to support capital murder conviction under law

of parties when appellant participated in a robbery but was not the shooter);

Longoria v. State, 154 S.W.3d 747, 757 (Tex. App.—Houston [14 Dist.] 2004,

pet. ref’d) (holding appellant’s providing his cohort with gun for use in the

robbery was sufficient to support the jury’s conclusion that victim’s death

should have been anticipated as a result of the robbery).

      Here, appellant asserts that none of the people involved in the robbery

intended to kill anyone and that the shooter’s conduct in firing the gun at Syed

startled him. However, the evidence shows that appellant told Bivens that he

needed money to buy drugs to sell and that he was going to commit a robbery.

Appellant planned the robbery by enlisting the help of his friends T.T. and

Julian, and he got them “all pumped up to go” to Terry’s Market to get some

money.   Appellant also provided them with a gun and attempted to locate

another gun. T.T. used the gun supplied by appellant to shoot Syed when he

got “trigger happy.”

      Even assuming that appellant did not intend for the gun to be fired during

the robbery, he should have anticipated that a murder was possible. The fact

that appellant provided a firearm to his cohorts and tried to find a second gun

indicates that he was aware of the dangerousness of the robbery. Based on the

                                      11
evidence, the jury could have reasonably concluded that appellant anticipated,

or should have anticipated, the possibility that T.T. could resort to shooting

someone during the course of the robbery. See Love, 199 S.W.3d at 453.

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

we conclude that a rational trier of fact could have found, beyond a reasonable

doubt, that appellant should have reasonably anticipated the possibility of a

murder occurring in the course of the robbery. See Jackson, 443 U.S. at 319,

99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. Furthermore, viewing the

evidence neutrally, we conclude that the evidence is not so obviously weak that

the jury’s verdict seems “clearly wrong and manifestly unjust” or that proof of

guilt is against the great weight and preponderance of the evidence.            See

Watson, 204 S.W.3d at 414–15, 417; Johnson, 23 S.W.3d at 11.

Accordingly, we hold that the evidence is legally and factually sufficient to

support appellant’s conviction, and we overrule appellant’s points one and two.

                     IV. Law of Parties and the Indictment

      In his third through sixth points, appellant argues that the trial court erred

by allowing the State to argue law of party liability to the jury when it was not

pled in the indictment. Specifically, appellant claims the trial court erred by

denying his motion to quash, by allowing the State to discuss the law of parties

during voir dire, by denying his motion for judgment of acquittal at the close of

                                        12
the State’s evidence, and by including the law of parties in the jury charge.

Appellant alleges that the State’s failure to indict him as a party to the offense

violated his Sixth Amendment and due process rights.

      It is well settled that the law of parties need not be pled in the indictment.

Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App. 2005), cert. denied,

548 U.S. 926 (2006); Frank, 183 S.W.3d at 73.            Additionally, the law of

parties found in section 7.02(b) has often been applied in capital murder cases.

See, e.g., Montoya, 810 S.W.2d at 165; Wood v. State, 4 S.W.3d 85, 90

(Tex. App.—Fort Worth 1999, pet. ref’d).

      Here, the State was not required to plead the law of parties in the

indictment and was not precluded from discussing the theory during voir dire.

See Sorto, 173 S.W.3d at 476; Frank, 183 S.W.3d at 73. Further, the trial

court did not err by including the law of parties in the jury charge. See Sorto,

173 S.W.3d at 476; Frank, 183 S.W .3d at 73.              Therefore, we overrule

appellant’s third, fourth, fifth, and sixth points.

                          V. Lesser Included Offenses

      In appellant’s seventh point, he argues that the trial court erred by

denying his request to include the lesser included offenses of conspiracy to

commit capital murder and conspiracy to commit aggravated robbery in the jury

charge.

                                        13
A.    Jury Charge

      The trial court is obligated to charge the jury on the law applicable to the

case, not expressing any opinion as to the weight of the evidence. T EX. C ODE

C RIM. P ROC. A NN. art. 36.14 (Vernon 2007). Before the charge is read to the

jury, the defendant is entitled to a reasonable time to examine the charge and

present any objections in writing. Id. In addition, both parties are entitled to

a reasonable time to present written instructions to be included in the charge.

Id. art. 36.15 (Vernon 2006).

B.    Lesser Included Offense Instructions

      We use a two-step analysis to determine whether an appellant was

entitled to a lesser included offense instruction. Hall v. State, 225 S.W.3d

524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666,

672–73 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). First, the lesser

offense must come within article 37.09 of the code of criminal procedure. T EX.

C ODE C RIM. P ROC. A NN. art. 37.09 (Vernon 2006); Moore v. State, 969 S.W.2d

4, 8 (Tex. Crim. App. 1998). “An offense is a lesser included offense if . . . it

is established by proof of the same or less than all the facts required to

establish the commission of the offense charged.” T EX. C ODE C RIM. P ROC. A NN.

art. 37.09(1); see also Hall, 225 S.W.3d at 536. This inquiry is a question of

law. Hall, 225 S.W.3d at 535. It does not depend on the evidence to be

                                       14
produced at the trial but is performed by comparing the elements of the offense

as they are alleged in the indictment or information with the elements of the

potential lesser included offense. Id. at 525, 535–36.

      Second, some evidence must exist in the record that would permit a jury

to rationally find that if the appellant is guilty, he is guilty only of the lesser

offense. Hall, 225 S.W .3d at 536; Salinas v. State, 163 S.W.3d 734, 741

(Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. The evidence

must be evaluated in the context of the entire record. Moore, 969 S.W.2d at

8. There must be some evidence from which a rational jury could acquit the

appellant of the greater offense while convicting him of the lesser included

offense. Id. The court may not consider whether the evidence is credible,

controverted, or in conflict with other evidence. Id. Anything more than a

scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.

Hall, 225 S.W.3d at 536.

C.    Conspiracy to Commit Aggravated Robbery

      Neither appellant nor the State requested an instruction on the lesser

included offense of conspiracy to commit aggravated robbery; thus, the trial

court did not err by failing to submit an instruction. The trial court need not

submit a lesser included instruction sua sponte if neither side requests one. See

Delgado v. State, 235 S.W.3d 244, 249–50 (Tex. Crim. App. 2007).

                                        15
Moreover, the defense may not claim error successfully on appeal due to the

omission of a lesser included offense if the defense did not request one. Id. at

250.

D.     Conspiracy to Commit Capital Murder

       Appellant did ask for an instruction on conspiracy to commit capital

murder, so we will review his point with respect to that omitted instruction.

       1.    Applicable Law

       A person commits criminal conspiracy if, with intent that a felony be

committed, (1) he agrees with one or more people that they or one or more of

them will engage in conduct that would constitute the offense and (2) he or one

or more of them performs an overt act in pursuance of the agreement. T EX.

P ENAL C ODE A NN. § 15.02(a) (Vernon 2003).

       A person is criminally responsible for an offense committed by the

conduct of another 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.

Id. at § 7.02(b).




                                       16
      2.    Analysis

      Appellant argues that he should have received an instruction on the lesser

included offense of conspiracy to commit capital murder. Appellant requested

the following jury instruction:

            A person commits criminal conspiracy if, with intent that a
      felony be committed, he agrees with one or more persons that
      they, or one of them, engage in conduct that would constitute the
      offense, and he, or one or more of them, performs an overt act in
      pursuance of the agreement.

            An agreement constituting a conspiracy may be inferred from
      acts of the parties.

             Now, if you find from the evidence beyond a reasonable
      doubt that on or about April 13, 2005 in Tarrant County, Texas,
      the Defendant, Darrell Glenn Bell, did then and there with intent
      that a felony, to wit: aggravated robbery, be committed, agree with
      Tarrence L. Stevenson and Julian Hayley that said Defendant and
      Tarrence L. Stevenson and Julian Hayley engage in conduct that
      would [constitute] said offense of aggravated robbery, to wit while
      in the course of committing theft of property, and with the intent
      to obtain and maintain control of said property, T[a]rrance L.
      Stevenson intentionally caused bodily injury, serious bodily injury
      or the death of Syed Karim by shooting him with a firearm and that
      the Defendant did then and there, if he did, commit an act or acts
      in furtherance of said conspiracy by driving an automobile,
      providing assisting in the surveillance of the store prior to or during
      the robbery and the persons therein, obtaining property from the
      store and sharing in and distributing the proceeds from the
      conspiracy, if he did any of these said acts, then you will find the
      Defendant guilty of the lesser included offense of conspiracy to
      commit capital murder.

            Unless you so find beyond a reasonable doubt, or if you have
      a reasonable doubt thereof, you will acquit the Defendant of the

                                        17
      lesser included offense of conspiracy to commit capital murder and
      next consider whether he is guilty, if at all, of the lesser included
      offense of aggravated robbery.

      Appellant’s proposed instruction states that the jury should find him guilty

of the lesser included offense of conspiracy to commit capital murder if it found

that appellant and his cohorts agreed that Stevenson would intentionally cause

bodily injury or serious bodily injury to Syed or Syed’s death during the course

of committing the aggravated robbery.       The intent to commit murder is a

required element of party liability for capital murder under section 7.02(a);

however, under section 7.02(b), under which appellant was also charged, “all

conspirators are guilty of the felony actually committed, though having no

intent to commit it.”    See T EX. P ENAL C ODE A NN. §§ 19.03(a)(2), 7.02(b)

(emphasis added). Thus, appellant’s proposed conspiracy to commit capital

murder charge, which requires proof that appellant intended for Stevenson to

kill Syed, is not a lesser included offense of capital murder under the State’s

7.02(b) theory of this case, which specifically excluded the need for any intent.

      Moreover, here there is no evidence permitting a rational jury to find that

appellant and both his friends intended for Stevenson to kill Syed as part of the

conspiracy. Accordingly, there is no evidence that if appellant is guilty, he is

guilty only of conspiracy to commit capital murder. See Hall, 225 S.W.3d at

536; Salinas, 163 S.W.3d at 741; Rousseau, 855 S.W.2d at 672–73. Thus,

                                       18
we hold that the trial court did not err by refusing to include an instruction on

the lesser included offense of conspiracy to commit capital murder, and we

overrule appellant’s seventh point.

                            VI. Benefit of the Doubt

      In his eighth point, appellant argues that the trial court erred by denying

appellant’s request for a “benefit of the doubt” instruction regarding lesser

included offenses in the jury charge.

A.    Applicable Law

      As a general rule, if evidence in a case leaves a reasonable doubt as to

the grade or degree of the offense, upon a request by the defendant, the trial

court must give the jury a “benefit of the doubt” instruction. Benavides v.

State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d);

Shelby v. State, 724 S.W.2d 138, 139 (Tex. App.—Dallas 1987) (op. on

reh’g), vacated on other grounds, 761 S.W.2d 5 (Tex. Crim. App. 1988); see

also Mathis v. State, No. 02-06-00355-CR, 2007 WL 2963718, at *4 (Tex.

App.—Fort Worth Oct. 11, 2007, pet. ref’d) (mem. op., not designated for

publication). A “benefit of the doubt” instruction is required even when the

charge includes a proper instruction on reasonable doubt as applied to the

whole case. Shelby, 724 S.W.2d at 139. This additional instruction clears up

confusion when the jury has no reasonable doubt that the defendant committed

                                        19
an offense, but is uncertain concerning the grade or degree of that offense.

Benavides, 763 S.W.2d at 589. A court’s refusal to include a “benefit of the

doubt” instruction is not harmful to the defendant, however, if the charge as

a whole leaves no uncertainty as to how to resolve any doubt. Id.; Shelby, 724

S.W.2d at 140.

B.    Analysis

      In this case, appellant asked for the following to be added to the jury

charge:

            If you should find from the evidence beyond a reasonable
      doubt that the defendant, Darrell Glenn Bell, is either guilty of
      capital murder, or aggravated robbery, but you have a reasonable
      doubt as to which offense he is guilty, then you should resolve that
      doubt in the Defendant’s favor, and in such event, you will find the
      Defendant guilty of the lesser offense of aggravated robbery.

            If you find from the evidence that the Defendant is not guilty
      of capital murder, or aggravated robbery, or if you have a
      reasonable doubt thereof, you will acquit the Defendant and say by
      your verdict “Not Guilty.”

The trial court denied appellant’s request. However, the trial court gave the

jury the following instruction:

            Now, if you find from the evidence beyond a reasonable
      doubt that on or about the 13th day of April, 2005, in Tarrant
      County, Texas, Tarrence L. Stevenson, did then and there
      intentionally cause the death of an individual, Syed Karim, by
      shooting him with a firearm, and the said Tarrence L. Stevenson
      was then and there in the course of committing of attempting to
      commit the offense of Robbery of Syed Karim, and if you further

                                      20
believe from the evidence beyond a reasonable doubt that on said
date in said County and State, the Defendant, Darrell Glenn Bell, as
a party as that term in hereinbefore defined with the intent that the
Capital Murder be committed, aided or attempted to aid the said
Tarrence L. Stevenson in the foregoing action, by providing an
automobile, driving an automobile, providing a firearm, assisting in
the surveillance of the store prior to or during the Robbery and the
persons therein, obtaining property from the store and sharing in
and distributing the proceeds from the conspiracy, if he did; or if
you believe from the evidence beyond a reasonable doubt that the
Defendant, Darrell Glenn Bell, entered into a conspiracy with
Tarrence L. Stevenson and Julian L. Hayley to commit the felony
offense of Robbery and that on the 13th day of April, 2005, in the
County of Tarrant and State of Texas, in the attempt to carry out
this agreement, if any, Tarrence L. Stevenson did then and there
intentionally shoot and kill Syed Karim, if he did, and that such
offense was committed in furtherance of the unlawful purpose to
commit Robbery and was an offense that should have been
anticipated as a result of the carrying out of the agreement, then
you will find the Defendant, Darrell Glenn Bell, guilty of Capital
Murder, though he may have had no intent to commit it, and so say
by your verdict, but if you do not so believe, or if you have a
reasonable doubt thereof, you will acquit the Defendant of Capital
Murder and next consider whether or not the Defendant is guilty of
the lesser included offense of Aggravated Robbery.

      Now, therefore, if you find from the evidence beyond a
reasonable doubt that Tarrence L. Stevenson on or about the 13th
day of April , 2005, in Tarrant County, Texas did then and there
intentionally or knowingly cause bodily injury to Syed Karim by
shooting him with a deadly weapon, to wit: a firearm, while then
and there in the course of committing or attempting to commit the
offense of Aggravated Robbery of Syed Karim, and that the
Defendant, Darrell Glenn Bell, acting with the intent that the
Aggravated Robbery be committed, aided or attempted to aid the
said Tarrence L. Stevenson in the foregoing action by providing an
automobile, driving an automobile, providing a firearm, assisting in
the surveillance of the store prior to or during the Robbery and the
persons therein, obtaining property from the store and sharing in

                                 21
      and distributing the proceeds from the conspiracy, if he did; then
      you will find the Defendant guilty of the lesser included offense of
      Aggravated Robbery.

            Unless you so find beyond a reasonable doubt, or if you have
      a reasonable doubt thereof, you will acquit the Defendant of the
      lesser included offense of Aggravated Robbery and say by your
      verdict “not guilty.”

      Accordingly, the application paragraphs of the court’s charge first asked

the jury to consider whether it found beyond a reasonable doubt that appellant

was guilty of the offense of capital murder. See Benavides, 763 S.W.2d at

589; see also Mathis, 2007 WL 2963718, at *5.               Next, the application

paragraph instructed the jury that if it did not so find, it should acquit appellant

of capital murder and then consider whether he was guilty of aggravated

robbery.   See Benavides, 763 S.W.2d at 589; see also Mathis, 2007 WL

2963718, at *5. It further instructed that if the jury did not find appellant

guilty of aggravated robbery beyond a reasonable doubt, it should acquit

appellant of that offense as well. See Benavides, 763 S.W.2d at 589; see also

Mathis, 2007 WL 2963718, at *5.

      The charge in this case clearly instructed the jury that it should acquit

appellant of the greater offense, i.e., capital murder, if it was not convinced

beyond a reasonable doubt of his guilt. See Benavides, 763 S.W.2d at 589;

see also Mathis, 2007 WL 2963718, at *5. Furthermore, it also instructed the


                                        22
jury that if it had a reasonable doubt about appellant’s guilt concerning the

lesser included offense, aggravated robbery, it should acquit appellant of the

lesser included offense as well. See Benavides, 763 S.W.2d at 589; see also

Mathis, 2007 WL 2963718, at *5. Thus, no additional “benefit of the doubt”

instruction was necessary. See Benavides, 763 S.W.2d at 589; Shelby, 724

S.W.2d at 140; see also Mathis, 2007 WL 2963718, at *5. We hold that the

trial court did not err by refusing the instruction, and we overrule appellant’s

eighth point.

                     VII. Accomplice Witness Testimony

      In his ninth point, appellant argues that the trial court erred by denying

his request that it instruct the jury that Amanda Bivens was an accomplice

witness. Specifically, appellant argues that Bivens was an accomplice because

she knew that appellant and his friends were going to rob someone, she

provided the car they drove, she passed the gun to the person who shot Syed,

and she received proceeds from the robbery.

A.    Applicable Law

      The accomplice witness rule mandates that “[a] conviction cannot be had

upon the testimony of an accomplice unless corroborated by other evidence

tending to connect the defendant with the offense committed.” T EX. C ODE

C RIM. P ROC. A NN. art. 38.14 (Vernon 2005); Druery v. State, 225 S.W.3d 491,

                                      23
498 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 627 (2007); Barnes v.

State, 56 S.W.3d 221, 229 (Tex. App.—Fort Worth 2001, pet. ref’d). An

accomplice witness is one who participates with a defendant before, during, or

after commission of the offense, including engaging in actions that show an

understanding and common design to do a certain act. Druery, 225 S.W.3d at

498; Barnes, 56 S.W.3d at 229. To be considered an accomplice witness, the

witness’s participation with the defendant must have involved some affirmative

act that promotes the commission of the offense with which the defendant is

charged.   Druery, 225 S.W.3d at 498; Barnes, 56 S.W.3d at 229–30.          A

witness is not deemed an accomplice because she knew of the crime but failed

to disclose or conceal it.   Druery, 225 S.W.3d at 498.       In addition, the

witness’s mere presence at the scene of the crime does not render that witness

an accomplice witness. Id.; Barnes, 56 S.W.3d at 230. And complicity with

an accused in the commission of another offense apart from the charged

offense does not make that witness’s testimony that of an accomplice witness.

Druery, 225 S.W.3d at 498. In short, if the witness cannot be prosecuted for

the offense with which the defendant is charged, or a lesser included offense

of that charge, the witness is not an accomplice witness as a matter of law.

Id.




                                     24
      The defendant is entitled to an accomplice witness instruction only if

there is sufficient evidence in the record of the witness’s participation in the

crime to support a charge against the witness for the offense with which the

accused is charged or a lesser included offense. Barnes, 56 S.W.3d at 230.

A witness may be an accomplice either as a matter of law or as a matter of

fact; the evidence in a case determines what jury instruction, if any, needs to

be given. Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006), cert.

denied, 127 S. Ct. 1832 (2007).

      Unless the evidence clearly shows that the witness is an accomplice as

a matter of law, i.e., the witness has been, or could have been, indicted for the

same offense, a question about whether a particular witness is an accomplice

is properly left to the jury with an instruction defining the term “accomplice.”

Druery, 225 S.W.3d at 498–99; Cocke, 201 S.W.3d at 748–49. If a witness

is an accomplice as a matter of law, the trial court is required to provide an

accomplice witness instruction to the jury. Cocke, 201 S.W.3d at 749. A trial

judge, therefore, has no duty to instruct the jury that a witness is an

accomplice witness as a matter of law unless there exists no doubt that the

witness is an accomplice. Druery, 225 S.W.3d at 498.

      If, however, the parties present conflicting or unclear evidence as to

whether a witness is an accomplice, the jury must first determine whether the

                                       25
witness is an accomplice as a matter of fact. Cocke, 201 S.W.3d at 748.

Further, the trial court is not required to give the jury an accomplice witness

instruction when the evidence is clear that the witness is neither an accomplice

as a matter of law nor as a matter of fact. Id.

      The purpose of the instruction, therefore, is not to cast suspicion on the

testimony provided by the accomplice or to encourage jurors to give it less

weight than other testimony.     Id. at 747.    Rather, the instruction merely

reminds the jury that it cannot use the accomplice’s testimony to convict the

defendant unless there also exists some nonaccomplice testimony tying the

defendant to the offense. Id.

B.    Analysis

      Appellant requested an instruction that Bivens was an accomplice as a

matter of law and as a matter of fact.         The trial court included only an

accomplice as a matter of fact instruction in the jury charge.

      Here, the evidence showed that Bivens and appellant were in Bivens’s car

when appellant told her that he needed money to purchase drugs to sell and

that he was going to “run up in a store.” Appellant drove to a house to find his

friends, and Bivens waited in the car while appellant went inside.        When

appellant returned, he threw a gun in her lap and told her to hold it, but

appellant testified that she was not comfortable with guns because her father

                                      26
committed suicide, so she passed it to one of appellant’s friends sitting in the

back seat. Appellant did not produce any evidence that Bivens assisted in

finding or producing a gun.

      Appellant argues that there is evidence that Bivens drove the getaway

car; however, Bivens testified that appellant dropped her off at a friend’s house

and that she was not present at Terry’s Food Mart when the robbery took

place.2 Additionally, the State believed appellant’s girlfriend drove the getaway

car and not Bivens. In fact, Detective Jose Hernandez testified that there was

no credible evidence that Bivens took part in the crime.

      Based on these facts, we conclude that Bivens was not an accomplice as

a matter of law because there is no evidence that she took any affirmative

action to assist or promote the commission of the offense of capital murder.

See Barnes, 56 S.W.3d at 230. She did not help appellant or his accomplices

plan the offense, she did not aid them by obtaining weapons or disguises, she

was not present during the commission of the offense, and she did not

participate in the commission of the offense.     See id. Even though Bivens

allowed appellant to use her car in exchange for ten or twenty dollars and she




      2
       … Appellant made the allegation that Bivens drove the getaway car
before Bivens testified, but he never provided any evidence to support that
assertion.

                                       27
knew that appellant was about to commit a crime, she did not have any details

of the crime, nor did she accompany appellant and his friends. At most, the

evidence shows that Bivens knew appellant wanted to rob someone, that she

allowed him to use her car, which she had previously agreed to in the past in

exchange for drugs, that she received a small amount of cash after the robbery,

and that she concealed her knowledge by not immediately reporting the crime

to law enforcement officials. See Druery, 225 S.W .3d at 498. Under these

facts, it is not clear that Bivens could have been prosecuted for capital murder

or one of the lesser included offenses. See Cocke, 201 S.W.3d at 749; Barnes,

56 S.W.3d at 230. Thus, the trial court properly refused appellant’s requested

accomplice witness instructions as a matter of law, and we overrule appellant’s

ninth point.

                           VIII. Independent Impulse

      In his tenth point, appellant contends that the trial court erred by denying

his request for an “independent impulse” instruction in the jury charge.

A.    Applicable Law

      The Texas Court of Criminal Appeals has held that defendants are not

entitled to instructions on defensive theories not enumerated in the Texas Penal

Code, including a defensive charge on independent impulse. Walters v. State,

247 S.W.3d 204, 210 (Tex. Crim. App. 2007); Solomon v. State, 49 S.W.3d

                                       28
356, 368 (Tex. Crim. App. 2001); Schiffert v. State, 257 S.W.3d 6, 21 (Tex.

App.— Fort Worth 2008, pet. dism’d), untimely filed; Severs v. State, 87

S.W .3d 752, 756 (Tex. App.—Texarkana 2002, no pet.). An instruction on

independent impulse is merely a negation of elements in the State’s case;

therefore its inclusion would be superfluous and, in fact, would be an

impermissible comment on the weight of the evidence.            See Solomon, 49

S.W.3d at 368; Severs, 87 S.W.3d at 756.

B.    Analysis

      Here, the trial court gave instructions tracking the statutory language of

penal code 7.02(b).3 Appellant argues that these instructions were not enough

to cover the independent impulse issue and contends that the trial court should

have submitted the following instruction:

            If you find from the evidence that the defendant, Darrell
      Glenn Bell, left the scene of the offense, if any, prior to the
      shooting, if any, or if you have a reasonable doubt thereof, then
      you will acquit the defendant of capital murder and next consider
      whether he is guilty of the offense of aggravated robbery.

      Appellant’s proposed defensive issue would simply negate the conspiracy

liability element of the State’s case and is inconsistent with current Texas law;

all that is required is for the appropriate portions of the jury charge to track the




      3
          … See Section VI for the jury charge.

                                        29
language of section 7.02(b). See Solomon, 49 S.W.3d at 368. Because the

jury charge tracked the language of section 7.02(b) and because the defense

of independent impulse is not found in the penal code, we hold that the trial

court did not err by refusing to include the instruction and overrule appellant’s

tenth point.

               IX. Prosecutor’s Allegedly Improper Comments
                       on Appellant’s Failure to Testify

      In his eleventh point, appellant argues that the trial court erred by

overruling his objections to the prosecutor’s comments regarding his silence.

A.    Applicable Law

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.

Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493

S.W.2d 230, 231 (Tex. Crim. App. 1973).

      It is well-settled law that the State is entitled to comment on an

accused’s failure to produce testimony from sources other than himself when

it is relevant to a disputed issue. Patrick v. State, 906 S.W.2d 481, 490 (Tex.

Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996); Harris v. State, 122


                                       30
S.W.3d 871, 884 (Tex. App.—Fort Worth 2003, pets. ref’d). Moreover, a

prosecutor’s comment about the subpoena power of a defendant is proper if it

refers to the defendant’s failure to produce evidence from other sources.

Livingston v. State, 739 S.W.2d 311, 338 (Tex. Crim. App. 1987), cert.

denied, 487 U.S. 1210 (1988); Harris, 122 S.W.3d at 884. Accordingly, a

prosecutor’s comment is improper only if it points to the absence of evidence

that could be supplied only by the defendant’s testimony. Fuentas v. State,

991 S.W.2d 267, 275 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999);

Harris, 122 S.W.3d at 884.

B.   Analysis

     During closing arguments in the guilt/innocence phase of the trial, the

following exchange took place:

     [State]:    These are the individuals that he decided he needed to
                 go forth. Follow the money from everybody here, and,
                 see, both sides, when they put on cases from both
                 sides, and we talked about it in voir dire, they have an
                 opportunity just to sit here. But once they open their
                 mouth, they have the equal right to subpoena anybody
                 they want. Did you ever hear anybody about his
                 gainful employment?

     [Defense]: Your Honor, I’m going to object. That’s a comment
                upon my client’s failure to testify.

     The Court: That’s overruled.

     [State]:    Nobody came in to refute what’s there.

                                     31
      [Defense]: Your Honor, I am going to refute again to failure -to-
                 testify comments. And that’s a direct –

      The Court: That’s overruled.

      [State]:    We’re here today because Mr. Bell needed cash.
                  W e’re here today because Mr. Bell decided to go to
                  Terry’s Food Mart and go in and kill Syed. That’s part
                  of the game when you bring a gun to the party.

                   . . . Mo [appellant] made the decision that he needed
                  money that week. And this is the way to get it. Not
                  go get a job and not work hard like everybody else in
                  the community does.

      Here, the prosecutor argued that appellant did not present any evidence

to refute the State’s theory that he decided to commit robbery because he

needed money. After reviewing the prosecutor’s comments in context, we

conclude that the argument at issue refers to appellant’s failure to call other

witnesses or produce testimony from sources other than himself. See Patrick,

906 S.W.2d at 490; Livingston, 739 S.W .2d at 338; Harris, 122 S.W.3d at

884; see also Wolfe v. State, 917 S.W.2d 270, 279 (Tex. Crim. App. 1996)

(holding that a prosecutor cannot comment on the lack of evidence presented

when that comment necessarily refers to the defendant’s failure to testify, but

language that can reasonably be construed as a failure to present evidence

other than the defendant’s testimony is not a comment on the failure to testify).

Thus, the trial court’s overruling of appellant’s objection was not an abuse of


                                       32
discretion because the comment was not improper. See Patrick, 906 S.W.2d

at 490; Livingston, 739 S.W.2d at 338; Harris, 122 S.W.3d at 884.          We

overrule appellant’s eleventh point.

                           X. Evidentiary Challenge

      In his twelfth point, appellant asserts that the trial court abused its

discretion in admitting State’s Exhibit 44, a witness statement made by

Shawntee Abbs, because the statement exceeded the matters inquired into,

produced before the jury prejudicial hearsay, and contained extraneous offenses

or acts of misconduct which were substantially more prejudicial than probative.

The State responds that the statement was properly admitted under the rule of

optional completeness because defense counsel opened the door during cross-

examination.

A.    Standard of Review and Applicable Law

      We review a trial court’s decision to admit evidence under an abuse of

discretion standard. Walters, 247 S.W.3d at 217; West v. State, 121 S.W.3d

95, 100 (Tex. App.—Fort Worth 2003, pet. ref’d). The trial court abuses its

discretion only when the decision lies “outside the zone of reasonable

disagreement.” Walters, 247 S.W.3d at 217; West, 121 S.W.3d at 100.

      Hearsay statements are generally not admissible unless the statement

falls within a recognized exception to the hearsay rule. Walters, 247 S.W.3d

                                       33
at 217.     Rule 107, the rule of optional completeness, is one of these

exceptions. Id. Rule 107 provides that

            [w]hen part of an act, declaration, conversation, writing or
      recorded statement is given in evidence by one party, the whole on
      the same subject may be inquired into by the other, and any other
      act, declaration, writing or recorded statement which is necessary
      to make it fully understood or to explain the same may also be
      given in evidence, as when a letter is read, all letters on the same
      subject between the same parties may be given.

T EX. R. E VID. 107.

      This rule is one of admissibility and permits the introduction of otherwise

inadmissible evidence when that evidence is necessary to fully and fairly explain

a matter “opened up” by the adverse party. Walters, 247 S.W.3d at 218;

West, 121 S.W.3d at 103. It is designed to reduce the possibility of the jury

receiving a false impression from hearing only a part of some act, conversation,

or writing, and it takes effect when other evidence has already been introduced

but is incomplete or misleading.    Walters, 247 S.W.3d at 218; West, 121

S.W.3d at 103. Once an evidentiary door has been opened by one side, this

rule serves to allow the other side to complete the picture. West, 121 S.W.3d

at 103.    Rule 107 does not permit the introduction of other similar but

inadmissible evidence unless it is necessary to explain properly admitted

evidence. Walters, 247 S.W.3d at 218. Further, the rule is not invoked by the

mere reference to a document, statement, or act. Id. And it is limited by Rule

                                       34
403, which permits a trial judge to exclude otherwise relevant evidence if its

unfair prejudicial effect or its likelihood of confusion of the issues substantially

outweighs its probative value. Id.

B.    Analysis

      We first observe that appellant did not object that the complained of

evidence was substantially more prejudicial than probative; he objected only

that the evidence was not admissible under the rule of optional completeness.

Consequently, he failed to preserve his rule 403 complaint for appellate review.

See T EX. R. A PP. P. 33.1(a)(1) (requiring that to preserve a complaint for

appellate review, a party must have presented to the trial court a timely

request, objection, or motion that states the specific grounds for the desired

ruling if they are not apparent from the context of the request, objection, or

motion); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op.

on reh’g), cert. denied, 526 U.S. 1070 (1999).

      Abbs was allowed to use the statement she made to police to refresh her

memory during the State’s examination. See T EX. R. E VID. 612. During cross-

examination, defense counsel also questioned Abbs regarding her previous

statement. Defense counsel specifically asked Abbs about the handwritten

portion of her statement, which read:




                                        35
     Boo n T-T were talking about how the[y] rob[b]ed the store and got
     the money.

     T-T told me that he had shot at somebody or shot somebody when
     he said I bus[t]ed at that nigga.

However, defense counsel further asked Abbs as follows:

     [Defense]: And do you know who shot the clerk.          You know,
                don’t you?

     [Abbs]:     Do I know what?

     [Defense]: You know who shot the clerk, don’t you?

     [Abbs]:     Um.

     [Defense]: Come on.

     [Abbs]:     I heard – I heard different, you know . . . I done heard
                 different stories.

     [Defense]: Uh-huh.

     [Abbs]:     Yeah, but I done heard who shot him or whatever.

     [Defense]: . . . [I]n your own handwriting didn’t you say T.T. said,
                Do you remember when I busted that nigger, and
                that’s when he told you he had shot somebody, T.T.?

     [Abbs]:     Yes.

     [Defense]: Yeah. So is it a fair statement to say that T.T. said –
                and you don’t know his real name, you know him as
                T.T. – let me get it right. I don’t want to misquote you
                here. Right?

     [Abbs]:     Yeah.


                                     36
      [Defense]: Yeah. And that’s your own handwriting, isn’t it?

      [Abbs]:     Yes, sir.

      Defense counsel then showed Abbs pictures of appellant, T.T., and

Julian. When Abbs identified T.T., defense counsel stated,

      This is T.T. that’s the, I busted that nigger, I shot the clerk guy,
      right?

      Abbs responded, “Uh-huh.” Defense counsel also wrote “I busted that

nigger, I shot the clerk” on a large piece of paper and displayed it for the jury.

Later, on redirect examination, the State said:

      [State]:    Ms. Abbs, let’s be accurate about this. See this
                  statement that Mr. Jones put here in quotes, I busted
                  that the [sic] nigger, I shot the clerk. Is that what you
                  wrote on your statement? Are those the words that
                  are written on your statement?

      [Abbs]:     No, its not like that.

      [State]:    Okay. Because that – because that’s not what you
                  said, is it?

      [Abbs]:     No, its not in here.

      The State then offered Abbs’s entire written statement into evidence

under the rule of optional completeness, and the trial court admitted it but only

for the limited purpose of assessing Abbs’s credibility.

      Appellant argues that it was improper to admit Abbs’s statement because

the document was used only to refresh Abbs’s memory. However, because

                                         37
defense counsel misquoted the handwritten portion of Abbs’s statement and

actually created a visual of the misquoted statement for the jury to view, the

rule of optional completeness was properly invoked. See T EX. R. E VID. 107;

Walters, 247 S.W.3d at 217–18; W est, 121 S.W.3d at 103.          The rest of

Abbs’s statement was properly offered into evidence under the rule of optional

completeness to show that the words written by defense counsel were not

included anywhere in the statement and that her statements were taken out of

context. Thus, we hold that the trial court did not abuse its discretion by

permitting the admission of Abbs’s written statement because the decision was

not outside the zone of reasonable disagreement. See Walters, 247 S.W.3d at

217; West, 121 S.W.3d at 100. We overrule appellant’s twelfth point.

                               XI. Conclusion

      Having overruled appellant’s twelve points, we affirm the trial court’s

judgment.




                                                TERRIE LIVINGSTON
                                                JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 29, 2008

                                     38
