                                      NO. 12-17-00326-CR

                             IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

 ROBERT MOBLEY,                                          §       APPEAL FROM THE 349TH
 APPELLANT

 V.                                                      §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                                §       HOUSTON COUNTY, TEXAS

                                      MEMORANDUM OPINION
        Robert Mobley appeals his conviction for aggravated kidnapping. In one issue, he argues
that the trial court erred by failing to include an accomplice witness instruction in the jury charge.
We affirm.


                                               BACKGROUND
        Vanessa Melson went missing in the middle of June 2015. On July 6, Brenna Theurer and
James Henderson contacted the Grapeland Police Department.                       The following day, law
enforcement found Melson’s body buried in a shallow grave near the home of Theurer and
Henderson on County Road 1737 in Houston County.1 Law enforcement investigated Melson’s
death and determined that she was last seen getting into a truck with Appellant. Law enforcement
determined that she died at the home on County Road 1737 in the company of Appellant,
Henderson, and Theurer. Theurer directed law enforcement to a burn pile on the property where
officers located Melson’s purse, cell phone, earrings, and methamphetamine pipe.
        Melson’s body had been buried for weeks and was severely decomposed. The medical
examiner conducted an autopsy, but was unable to determine Melson’s cause of death because her

        1
         The property on which Melson’s body was located belonged to Henderson’s father and uncle, but Henderson
and Theurer lived at the residence on the property when Melson was killed.
body was so badly decomposed. The medical examiner noted non-fatal injuries to Melson’s head
and back that were inflicted antemortem.
        The State charged Appellant and Henderson with aggravated kidnapping, and charged
Theurer with two counts of tampering or fabricating physical evidence.2 Appellant pleaded “not
guilty” and the case proceeded to a jury trial.
        Theurer, who cooperated with authorities, testified at Appellant’s trial.                     Theurer’s
tampering with evidence charges resulted from the fact that she gave Melson’s boots to a female
acquaintance after Melson’s death and allegedly assisted in burning Melson’s possessions.
Theurer admitted giving Melson’s boots to an acquaintance after Melson was killed, but she denied
assisting Henderson with burning Melson’s personal belongings. However, Detective William
Ruland, with the Houston County Sheriff’s office, testified that Theurer assisted Henderson in
burning Melson’s personal items, including her earrings, purse, and phone. Furthermore, Theurer
admitted her guilt on both counts of tampering and those charges were taken into consideration in
her sentencing with a separate drug possession charge.
        Theurer testified that at the time of Melson’s death, she was in a relationship with
Henderson and they lived at the home on County Road 1737. She indicated that both she and
Henderson were heavy methamphetamine users. Theurer testified that, on the day of the offense,
Appellant brought Melson to their home and confined her to the laundry room. She testified that
over several hours, Appellant beat Melson with a club and sexually assaulted her. She further
indicated that Henderson also sexually assaulted Melson and held her down while Appellant beat
her with a club. According to Theurer, Appellant was in possession of methamphetamine and
accused Melson of being a “snitch.” She testified to seeing Appellant and Henderson put a rolled
up rug in the back of Appellant’s truck. Theurer saw hair hanging out of the rug. She further
testified to seeing Appellant outside the house by a tree and holding a shovel.
        Theurer testified that during the course of the evening she asked Appellant to leave, and
asked Henderson to make Appellant leave. She also tried to call for help but Henderson took her
phone and told her to “shut up before [she] got hurt too.” Theurer acknowledged that she waited
weeks to contact authorities and was not forthcoming in her initial interviews. She further admitted



        2
          After a jury found Henderson “guilty” of aggravated kidnapping, he appealed to this Court. See Henderson
v. State, No. 12-17-00314-CR, 2018 WL 23112176 (Tex. App.—Tyler May 8, 2018, no pet.) (mem. op., not
designated for publication). We affirmed Henderson’s conviction. See id.


                                                        2
to lying to investigators initially, telling them that Melson was alive when she left the home. She
indicated lying at Henderson’s behest, as he told her that Appellant would kill her if she told law
enforcement the truth.
         Appellant also testified on his own behalf. He indicated that he and Melson were in a
casual sexual relationship for approximately eight months prior to her death and that, on June 16,
2015, they were at Melson’s father’s house using methamphetamine. He testified to taking Melson
to Henderson’s house at her request, but Theurer did not want her to come inside. Appellant stated
that when they began to drive away, Henderson texted him and told him it was okay for them to
come back to the house. Appellant testified that when they returned to the house, he and
Henderson went outside. When the men came back inside, Theurer and Melson were in a heated
verbal altercation, at which point Appellant left. Appellant returned the next morning to help
Henderson on the property, and neither Theurer nor Melson were at the residence. Appellant
testified that Henderson told him Melson went to her father’s house. Appellant claimed that
Theurer’s testimony was fabricated. He testified that after he discovered Melson was missing, he
had a conversation with Henderson during which Henderson made incriminating statements.3
         At the conclusion of trial, the jury found Appellant “guilty” and the trial court sentenced
him to imprisonment for life. This appeal followed.


                                               JURY INSTRUCTION
         In one issue, Appellant contends the trial court erred in failing to sua sponte give the jury
an accomplice-witness instruction regarding Theurer’s testimony.
Applicable Law
         Texas law provides 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[.]” TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). When the issue of a trial
court’s failure to give an accomplice-witness instruction is raised on appeal, we first must
determine whether the trial court erred by failing to sua sponte give that instruction before we
consider whether the Appellant preserved his complaint for appeal, a matter that is pertinent to a
harm analysis. Zamora v. State, 411 S.W.3d 504, 506 (Tex. Crim. App. 2013).


         3
           The State objected to Henderson’s statements to Appellant as being hearsay, which the trial court sustained;
thus, the substance of the “incriminating” statements was not revealed at trial.


                                                          3
       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). Unless the evidence clearly shows that the witness is an
accomplice as a matter of law, e.g., 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.” Id. at 747–48. 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. Id. at 748. However, if the evidence is conflicting or unclear as to whether a witness is an
accomplice, the jury first must determine whether the witness is an accomplice as a matter of fact.
Id. 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.
       An accomplice is someone who participates with a defendant before, during, or after the
commission of the offense and acts with the requisite culpable mental state. Id. Participation
requires an affirmative act that promotes the commission of the offense with which the defendant
is charged. Id. An individual is an accomplice if he or she, like the defendant, could be prosecuted
for the offense or a lesser included offense. Id. The evidence must be sufficient to connect the
alleged accomplice to the offense as a “blameworthy participant,” but whether the alleged
accomplice-witness actually is charged or prosecuted is not relevant. Id. Mere presence at a crime
scene does not make an individual an accomplice, nor is an individual an accomplice simply
because he has knowledge about a crime and fails to disclose that knowledge. Id.
Analysis
       Appellant contends he was entitled to an accomplice-witness instruction because Theurer
admittedly tampered with evidence and assisted Henderson with burning Melson’s belongings.
Essentially, he argues that Theurer is an accomplice because she assisted Henderson, an
accomplice as a matter of law, with concealing and destroying evidence. We are not persuaded by
this argument.
       Participation requires an affirmative act that promotes the commission of the offense with
which the defendant is charged. Id. Simply having knowledge of the offense and not disclosing
that information, or even trying to conceal that information, does not render a witness an
accomplice. Id.; McCallum v. State, 311 S.W.3d 9, 13 (Tex. App.—San Antonio 2010, no pet.).



                                                  4
Additionally, as previously noted, mere presence at a crime scene does not make an individual an
accomplice. Cocke, 201 S.W.3d at 748; McCallum, 311 S.W.3d at 13.
         The evidence at trial showed that Theurer was home when Appellant brought Melson there
on June 17. Theurer testified that she asked Appellant to leave, asked Henderson to make him
leave, and attempted to call 911 for help when Appellant was beating Melson. Furthermore,
Appellant’s own testimony did not implicate Theurer as an accomplice. Appellant indicated that
Theurer fabricated her testimony. While his testimony that Theurer argued with Melson and
Henderson made an “incriminating” statement to him may imply that Henderson, and possibly
Theurer, were responsible for Melson’s death, Appellant denied any direct knowledge of Melson’s
kidnapping and murder. Simply put, there is no evidence that Theurer either participated in the
kidnapping or murder of Melson or committed any affirmative act to promote commission of the
offense. Rather, the evidence shows that Theurer attempted to stop the commission of the offense,
but was thwarted by Henderson. Nor are Theurer’s actions after Melson’s death sufficient to make
her a “blameworthy participant” in Melson’s kidnapping. See Cocke, 201 S.W.3d at 748; see also
McCallum, 311 S.W.3d at 13 (evidence insufficient to support accomplice witness instruction for
defendant’s stepson or wife); Ex parte Stearnes, 752 S.W.2d 621, 624 (Tex. App.—Amarillo
1988, no writ) (witness not an accomplice where she heard the proposed murders discussed,
without disclosing the information, and was present at the scene of murders and concealed certain
details in her statements to police).
         Thus, we conclude that the evidence does not establish that Theurer was an accomplice as
a matter of law or an accomplice as a matter of fact. See Cocke, 201 S.W.3d at 748. Therefore,
we hold that the trial court did not err in failing to sua sponte give an accomplice witness
instruction. See id. We overrule Appellant’s only issue.


                                                  CONCLUSION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
                                                                 BRIAN HOYLE
                                                                    Justice
Opinion delivered October 10, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

                                             (DO NOT PUBLISH)




                                                          5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 10, 2018

                                         NO. 12-17-00326-CR


                                       ROBERT MOBLEY,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 16CR-058)

                       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.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
