Opinion issued September 4, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00432-CR
                              NO. 01-13-00433-CR
                           ———————————
                          MICHAEL HILL, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 351st District Court
                            Harris County, Texas
                  Trial Court Case Nos. 1277873 and 1320176


                                  OPINION

      A Harris County grand jury indicted Michael Hill on charges of aggravated

sexual assault and aggravated robbery. TEX. PENAL CODE ANN. §§ 22.01, 29.03

(West 2011 & Supp. 2014). After a jury found Hill guilty of both charges, the trial
court assessed punishment of forty-five years’ imprisonment on each charge, with

sentences to run concurrently.

      On appeal, Hill contends that the trial court erred (1) in failing to include a

proper accomplice–witness instruction in the jury charge on his aggravated sexual

assault charge; and (2) in including an accomplice–witness instruction in the jury

charge relating to his aggravated robbery charge. Finding no error, we affirm.

                                    Background

      Adrienne F. met Hill, whom she knew as “Mark” or “Marcus,” near the

mailboxes in her apartment complex. After a short conversation, they exchanged

telephone numbers. A few days later, on September 13, 2010, Hill called Adrienne

and asked to see her. She told Hill, who was at least a foot taller than Adrienne,

that she could use his help in hanging curtains.

      When Hill arrived, the two made small talk for a few minutes before Hill

excused himself to use the bathroom. They continued to converse through the

door. Adrienne asked Hill what he did for a living. The door opened, and Hill

pointed a gun at her. He said, “Actually, I’m working now.” As he pointed the

gun at her right temple, Hill told her to give him her money. Adrienne responded

that she didn’t have any; Hill told her to look through her purses. She gave Hill

$183 that she had set aside to pay her car loan, but Hill did not leave. Id. Instead,

he ushered her to the bed, unbuttoned his pants, and told her to remove her clothes.


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Continuing to hold the gun to Adrienne’s head, Hill ordered her to perform oral

sex, assaulted her vaginally, and then demanded more oral sex. When he finished,

Hill cleaned himself with a towel, dropped it on the floor, buttoned his pants, and

walked out of the apartment.

       A few seconds later, Adrienne wrapped herself in a blanket and ran outside.

She saw Hill entering the front passenger side of a black SUV and noted the

license plate number. She yelled that she would call 9-1-1. Hill looked at her but

did not respond. The SUV started, backed out, and drove off.

       Adrienne returned to her apartment and called the police. When two male

police officers arrived, she told them that Hill had robbed her at gunpoint.

Adrienne testified that she initially did not tell the officers that Hill sexually

assaulted her because she felt embarrassed about having let him into her apartment

in the first place.

       After the officers left, Adrienne called and talked to a friend about the

ordeal, and the friend convinced her to report the assault. Adrienne did so, and the

officers returned to her apartment. This time, they brought a female officer with

them. They spoke with Adrienne again and conducted another search. That search

produced the towel that Hill had used.




                                         3
      In the meantime, the officers located the SUV and apprehended Hill. The

same afternoon, they showed Adrienne a photo array, from which she identified

Hill as the person who had robbed and sexually assaulted her.

      Hill testified in his own defense. Hill explained that he had encountered an

advertisement for escort services that Adrienne had posted on an Internet website

styled backpage.com. He called the telephone number provided in the ad and

arranged to meet her at her apartment. Hill denied having a weapon. He claimed

that he and Adrienne negotiated a $40 fee for oral sex. When he tried to pay her

with a $100 bill, he claimed that she tried to persuade him to have a longer sexual

encounter so that she could receive a higher fee. Hill testified that he was in a

hurry to leave. He saw a purse hanging on the bedroom door, reached in, took $60

out as change, and walked toward the front door. Hill claimed that when Adrienne

accused him of stealing her money, he turned to look at her and saw a knife in her

hand. He recounted that, as he left the apartment, she continued to yell at him

about stealing her money and threatened to call the police.

      Adrienne admitted placing an ad on backpage.com, but denied having met

Hill through the website. She explained that she had placed the ad to earn extra

money while in graduate school; she had offered companionship in the ad, but not

sex. Adrienne had gone on several dates as a result of the ad, but took it down

immediately after the assault, about a month after the original posting.


                                          4
      To rebut Hill’s testimony that the sexual contact with Adrienne had been

consensual, the State offered testimony from Harris County resident Stacie R.

Stacie recounted an experience involving Hill that occurred the afternoon of

Sunday, September 12, 2010—the day before the assault on Adrienne.

      Stacie had met Hill at a social event several weeks before.          He had

introduced himself as “Red,” and the two exchanged telephone numbers. That

Sunday afternoon, Hill called Stacie from his car and told her that he was near her

townhome. He asked if he could come by for a visit. Stacie assented.

      When Hill arrived, Stacie noticed that he was sweating profusely. She

offered him a glass of water. While Stacie was in the kitchen, Hill said he left

something in his truck and walked out the front door. Hill returned with two men.

All three were armed. Hill held a gun to Stacie’s face. While the other men

ransacked Stacie’s home, Hill forced her to perform oral sex on him. When the

two other men were ready to leave, Hill, still holding the gun, fastened his pants

and left with them. Shaken, Stacie called her brother. She reported the incident to

the Houston Police Department two days later. In response to the State’s question,

Stacie averred that she has never posted an ad for escort services. Further, she

confirmed that Hill used the same pink gun when he assaulted her that Adrienne

described Hill using in her assault. Hill returned to the stand to testify to his

version of the second incident. He denied having a gun or any involvement in the


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robbery. He claimed that he also had found a posting for Stacie’s escort services

on backpage.com, and that the sexual encounter was consensual, whereupon the

State presented rebuttal testimony. One of the other assailants, Angelo Gonzalez,

corroborated Stacie’s version of the assault; he testified that he witnessed Hill’s

sexual assault of Stacie as he was coming down the stairs of the apartment.

                                  Charge Error

      On appeal, Hill complains that the trial court improperly instructed the jury

with respect to the accomplice–witness rule.

Standard of review

      A trial court must submit to the jury “the law applicable to the case.” See

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2012); Bolden v. State, 73 S.W.3d

428, 431 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).          When a statute

requires an instruction under the circumstances, that instruction is the “law

applicable to the case,” and the trial court must instruct the jury “whatever the

statute or rule requires.” Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim.

App. 2008). We review a trial court’s decision to deny a requested accomplice-

witness jury instruction for an abuse of discretion. See Smith v. State, 332 S.W.3d

425, 439–40 (Tex. Crim. App. 2011); Paredes v. State, 129 S.W.3d 530, 538 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). A trial court abuses its discretion only if

its decision is “so clearly wrong as to lie outside the zone within which reasonable


                                         6
people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.

2008).

Accomplice–witness instruction

      “An accomplice is someone who participates with [a] defendant before,

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

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

Texas Code of Criminal Procedure prohibits a conviction based on an accomplice

witness’s testimony, unless other, non–accomplice evidence that tends to connect

the accused to the offense corroborates it. See TEX. CODE CRIM. PROC. ANN. art

38.14 (West 2005). To be an accomplice, a witness must have participated in some

affirmative act that promotes the commission of the offense with which the

defendant is charged. Druery, 225 S.W.3d at 498. If the evidence shows that a

witness is not an accomplice, a trial court need not instruct the jury on the

accomplice–witness rule. Smith, 332 S.W.3d at 440.

      If the witness cannot be prosecuted for the defendant’s charged offense or a

lesser–included offense, then the witness is not an accomplice witness as a matter

of law. Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986). Further,

“complicity with an accused in the commission of another offense” does not

compel an accomplice witness instruction when there is no evidence that the

witness was complicit in committing the charged offense. Id.


                                        7
      Hill complains that the trial court improperly used its accomplice–witness

instruction in connection with the extraneous aggravated robbery of Stacie but not

with the instruction on the sexual assault charge. We reject this complaint.

      Aggravated sexual assault charge

      The trial court was not required to instruct the jury regarding the accomplice

witness rule with respect to Hill’s sexual assault charge. Because the State had

charged Angelo Gonzalez with the aggravated robbery of Stacie, Gonzalez was an

accomplice as a matter of law for that offense. But the conviction stems from

Hill’s later sexual assault of Adrienne; the evidence at trial was that Hill alone

committed that crime. Because the jury heard no accomplice–witness testimony in

connection with the aggravated sexual assault charge involving Adrienne, and no

evidence showed that Gonzalez was complicit in that offense, an accomplice-

witness instruction would not have been proper. Id.

      Although the trial court admitted testimony from Stacie and Gonzalez as

extraneous-offense evidence under Rule 404(b), this evidence does not compel a

different result. Extraneous offense evidence is admissible to rebut the contention

that the State’s theory is fabricated. See Wheeler v. State, 67 S.W.3d 879, 887 n.22

(Tex. Crim. App. 2002) (admitting extraneous–offense evidence to rebut defensive

theory of frame–up when extraneous misconduct is similar to charged offense and

when witness lacked motive to lie); Montgomery v. State, 810 S.W.2d 372, 382


                                         8
(Tex. Crim. App. 1990) (upholding admission of testimony by appellant’s ex–wife

concerning his inappropriate behavior and remarks around his children); Blackwell

v. State, 193 S.W.3d 1, 12 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)

(involving frame–up defensive theory motivated by “bad blood” among family

members). With regard to this evidence, the trial court instructed the jury on the

sexual assault charge:

      if there is any evidence before you in this case regarding the
      defendant’s committing an alleged offense or offenses other than the
      offense alleged against him in the indictment in this case, you cannot
      consider such evidence for any purpose unless you find and believe
      beyond a reasonable doubt that the defendant committed such other
      offense or offenses, if any, and even then you may only consider the
      same in determining the motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident of the
      defendant, if any, in connection with the offense, if any, alleged
      against him in the indictment and for no other purpose.

The trial court was not obliged to add an accomplice–witness instruction for the

jury to properly determine the weight and credibility of Gonzalez’s testimony,

because Gonzalez was not an accomplice to the charged offense.

      Aggravated robbery charge
      Hill further complains that the trial court erred in submitting an accomplice–

witness instruction to the jury in connection with the aggravated robbery against

Stacie, contending that it allowed the jury to find Hill guilty by finding that

Gonzalez’s testimony regarding the extraneous offenses was corroborated. We

disagree.

                                         9
      Following the application paragraph of the aggravated robbery charge

appears a Rule 404(b) instruction identical to the one given above in the

aggravated sexual assault charge. Following that instruction appears the following:

             In regard to the charge involving complainant Stacie R[.]: An
      accomplice, as the term is here used, means anyone connected with
      the crime charged, as a party thereto, and includes all persons who are
      connected with the crime by unlawful act or omission on their part
      transpiring either before or during the time of the commission of the
      offense, and whether or not they were present and participated in the
      commission of the crime.
            A person is criminally responsible as a party to the offense if
      the offense is committed by his own conduct by the conduct of
      another for which he is criminally responsible or both. Mere presence
      alone, however, will not constitute one a party to an offense. 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, aids, or attempts to
      aid the other person to commit the offense. The term “conduct”
      means any act or omission and its accompanying mental state.

             You are instructed that a conviction cannot be had upon the
      testimony of an accomplice unless the accomplice’s testimony is
      corroborated by other evidence tending to connect the defendant with
      the offense charged, and the corroboration is not sufficient if it merely
      shows the commission of the offense, but it must tend to connect the
      defendant with its commission.
            The witness, Angelo Gonzalez, is an accomplice, if an offense
      was committed, and you cannot convict the defendant upon his
      testimony unless you further believe that there is other evidence in
      this case, outside of the testimony of Angelo Gonzalez tending to
      connect the defendant with the offense committed, if you find that an
      offense was committed, and the corroboration is not sufficient if it
      merely shows the commission of the offense, but it must tend to
      connect the defendant with its commission, and then from all the
      evidence you must believe beyond a reasonable doubt that the
      defendant is guilty of the offense charged against him.
                                         10
Hill’s contention disregards the opening sentence of the instruction, in which the

trial court instructed the jury that Gonzalez’s testimony relates to a different

offense—not the charged offense tried before them—and that it should consider

the evidence, if at all, for the purpose of evaluating Gonzalez’s credibility. The

instruction also reiterates that the jury must believe that Hill was guilty of the

charged offense to convict.

       “On appeal, we generally presume the jury follows the trial court’s

instructions in the manner presented.” Thrift v. State, 176 S.W.3d 221, 224 (Tex.

Crim. App. 2005). Nothing in the record refutes the presumption that the jury

limited its consideration of Gonzalez’s testimony in the manner that the charge

directs.

                                    Conclusion

       We hold that the trial court did not err in submitting the aggravated sexual

assault charge without an accomplice-witness instruction. We further hold that the

trial court did not err in submitting the jury instructions addressing Gonzalez’s

testimony. We therefore affirm the judgment of the trial court.



                                             Jane Bland
                                             Justice

Panel consists of Justices Jennings, Bland, and Massengale.

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