Affirmed and Memorandum Opinion filed November 13, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00742-CR

             KIRBY HALL A/K/A KENDELL DAVIS, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 228th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1394653

                 MEMORANDUM                      OPINION


      Appellant Kirby Hall a/k/a Kendell Davis appeals his conviction for
aggravated assault against a public servant challenging the sufficiency of the
evidence to support his conviction. See Tex. Penal Code § 22.02(b)(2)(B). Finding
sufficient evidence to support appellant’s conviction, we affirm.

                                 I. BACKGROUND

      On September 1, 2011, Harris County Sheriff’s Deputy Alan Whitlock was
dispatched to a disturbance in an apartment complex. As he drove to the location of
the disturbance Whitlock heard shots fired. Soon after hearing the shots fired,
Whitlock observed a white Cadillac and a black car driving very close together.
Whitlock testified this was suspicious in that it was approximately 2:00 a.m. and
there were no other cars in the area. When Whitlock pulled behind the white
Cadillac he noticed the passengers of the car making furtive, suspicious
movements. Whitlock turned on his emergency lights to stop the Cadillac. When
the driver of the car did not stop, Whitlock turned on his siren and followed the
car. As the car went around a curve Whitlock saw the passenger in the back left
side behind the driver lean out of the window with a gun. Whitlock could not
identify the individual with the gun other than his race, which was African-
American. Whitlock then heard gunfire and felt a bullet hit his chest.

      Juan Ybarra, the owner of the white Cadillac, testified that on the day of the
offense, he went to Richard Rodriguez’s house to drink and to smoke marijuana
with six or seven of their mutual friends including Jose Gonzalez, Brianna Garza,
and appellant. At some point in the evening, Ybarra planned to drive Gonzalez and
Garza home. Appellant left the house for a few minutes, returned with a rifle, and
said to Ybarra, “Let’s go shoot this.” At that point, Ybarra, Rodriguez, and
appellant decided to shoot the gun, then drive Gonzalez and Garza home.
Rodriguez knew of a location where neighbors shot guns without anyone calling
the police.

      When they arrived at the location described by Rodriguez, Ybarra stopped
the car, appellant got out, shot the gun in the air four or five times, and got back in
the front passenger seat of the car. Ybarra then drove to Gonzalez’s house. After
Gonzalez got out of the car, the rest of the passengers changed positions.
Rodriguez moved to the front passenger seat, Garza sat behind Rodriguez in the

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right back passenger seat, and appellant sat behind Ybarra in the left back
passenger seat. As Ybarra drove out of Gonzalez’s neighborhood, Rodriguez
leaned out of the front passenger seat and fired the gun once. Ybarra became
nervous about Rodriguez and appellant shooting the gun, and decided to drive
them back to Rodriguez’s house before taking Garza home. Ybarra testified, “I
wanted to get that gun out of my car as quick as I could.”

      As Ybarra was driving toward Rodriguez’s house he saw two patrol cars
pass. One of the cars shined its spotlight on the car and activated its emergency
lights. Although appellant told him not to stop, Ybarra stopped the car. At this
time, Ybarra testified that everyone was afraid because the gun was sitting in the
front seat of the car. Ybarra told Rodriguez to throw the gun out of the window.
Appellant told Rodriguez to shoot the police officer. Rodriguez gave the gun to
appellant explaining that he did not want to shoot the police officer. At this point,
Ybarra sped up because he was afraid if he stopped for the police car that appellant
would shoot him. As Ybarra was driving he heard three to four gun shots in quick
succession. Shortly after the shooting, when Ybarra slowed the car to make a turn,
Rodriguez and Garza jumped out of the moving car. Later, appellant jumped out of
the car. Ybarra eventually pleaded guilty to evading arrest with a motor vehicle.

      Brianna Garza testified and gave an account similar to that of Ybarra. Garza
testified that it was her understanding that she would be driven home before the
men began shooting the gun. She recounted the initial shooting in the field,
Rodriguez shooting the gun while the car was moving, the police attempting to
stop them, appellant telling Rodriguez to shoot the officer, and Rodriguez refusing
to do so. When appellant took the gun and said he was going to shoot the officer,
Garza hit the back of the gun in an attempt to stop appellant from shooting. Garza
thought that appellant attempted to point the gun at Ybarra because Ybarra was

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stopped for the police car and did not want to flee. Garza testified that as appellant
began shooting, she and Rodriguez jumped out of the car. Garza and Rodriguez ran
to Rodriguez’s house. Appellant returned to Rodriguez’s house approximately ten
minutes later, but left again when the police arrived. Garza pleaded guilty to
evading arrest.

      Appellant was convicted of aggravated assault against a public servant and
sentenced to 50 years in prison.

                        II. SUFFICIENCY OF THE EVIDENCE

      In a single issue appellant claims the evidence is insufficient to support his
conviction. Specifically, appellant contends that the evidence does not sufficiently
corroborate the testimony of the accomplice witnesses.

      In evaluating the sufficiency of the evidence, we must view all of the
evidence in the light most favorable to the verdict 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 U.S. 307, 319 (1979).

      The accomplice-witness rule 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; and the corroboration is not
sufficient if it merely shows the commission of the offense.” Tex. Code Crim.
Proc. art. 38.14. The rule derives from the legislative determination that
accomplice testimony must be taken with a degree of caution. Nolley v. State, 5
S.W.3d 850, 852–53 (Tex. App.—Houston [14th Dist.] 1999, no pet.). The
underlying rationale is that the accomplice is a corrupt source who may well have
improper incentives when testifying against the accused—e.g., to redirect blame or
to gain favor with the State in exchange for a reduced punishment. Wincott v. State,


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59 S.W.3d 691, 698 (Tex. App.—Austin 2001, pet. ref’d). For these reasons, an
accomplice witness is a “discredited witness,” and regardless of how completely
the accomplice may outline the facts of a case, the jury may not convict the
accused without additional corroborating evidence. Walker v. State, 615 S.W.2d
728, 731 (Tex. Crim. App. 1981); Gaston v. State, 324 S.W.3d 905, 908–09 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d).

       Before turning to whether the evidence was sufficiently corroborated, we
review whether Ybarra and Garza were accomplice witnesses.1 An accomplice is
an individual 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, 747 (Tex. Crim. App. 2006); Yost v. State, 222 S.W.3d
865, 871 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Such participation
must involve an affirmative act that promoted the commission of the offense with
which the accused was charged. Paredes v. State, 129 S.W.3d 530, 536 (Tex.
Crim. App. 2004).

       To sustain a conviction for aggravated assault of a public servant the
evidence must demonstrate that: (1) the person intentionally or knowingly
threatened another with imminent bodily injury, (2) the person used or exhibited a
deadly weapon during the commission of the assault, and (3) the offense was
committed against a person the actor knew was a public servant while the public
servant was lawfully discharging an official duty. Tex. Penal Code §§ 22.01(a)(2),
22.02(a)(2), (b)(2)(B). Pursuant to Texas Penal Code sections 7.01 and 7.02, an
individual can be convicted as a party to an offense if that offense was committed
by his own conduct, by the conduct of another for which he is criminally
       1
         In his brief appellant contends that Ybarra, Garza, and Rodriguez were accomplice
witnesses. Rodriguez, however, did not testify; therefore, we confine our review to Ybarra and
Garza.

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responsible, or both. Tex. Penal Code § 7.01. A person is criminally responsible
for an offense committed by the conduct of another if, acting with intent to
promote or assist the commission of the offense, he solicits, encourages, directs,
aids, or attempts to aid the other person to commit the offense. Tex. Penal Code §
7.02(a)(2). Therefore, we review the record to determine whether the evidence
reflects that Ybarra and Garza could have been convicted as parties to the offense
of aggravated assault of a public servant. Appellant did not request an accomplice
witness instruction at trial, nor does he argue that Ybarra and Garza were
accomplices as a matter of law. Therefore, we address whether Ybarra and Garza
were accomplices as a matter of fact. See Druery v. State, 225 S.W.3d 491, 497–98
(Tex. Crim. App. 2007) (jury instruction is given on an accomplice as a matter of
law when witness is charged or could be charged with the offense or lesser-
included offense; when the evidence is conflicting as to whether witness was
accomplice, jury decides whether witness is an accomplice as a matter of fact).

      The record reflects that Ybarra and Garza were present when the offense
occurred, and that they participated in the offense of evading arrest or detention.
Ybarra was charged with evading arrest or detention in a motor vehicle, a state jail
felony. See Tex. Penal Code § 38.04(b)(1)(B). Garza was charged with evading
arrest on foot, a Class A misdemeanor. See id. § 38.04(a). However, the record
does not reflect that Ybarra and Garza participated with appellant before, during,
or after the commission of the offense of aggravated assault of a public servant, or
acted with the requisite culpable mental state to commit that offense.

      Both Ybarra and Garza testified that they knew a gun was in the car and that
appellant and Rodriguez intended to shoot it in an open area. Garza expected to be
dropped off at her home before any shooting began. Ybarra testified he attempted
to stop the car when the police initiated the traffic stop, and that he only drove

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away because he feared appellant would shoot him. Ybarra further testified that he
instructed Rodriguez to throw the gun out of the window. Similarly, Garza testified
that she hit the back of the gun in an attempt to prevent appellant from shooting
Whitlock. There is no evidence that Ybarra or Garza took any affirmative act to
assist in shooting Whitlock. While they knew of the gun and the plan to shoot it
prior to commission of the offense, they believed appellant and Rodriguez intended
to shoot the gun in an open area. Ybarra and Garza did not anticipate that appellant
would shoot a police officer, nor did they act with the requisite culpable mental
state to commit the offense of aggravated assault of a public servant. The fact that
Ybarra and Garza were in the car, coupled with their knowledge of the weapon
when appellant shot Whitlock, does not render them accomplice witnesses to the
charged offense. See Zuniga v. State, 393 S.W.3d 404, 414 (Tex. App.—San
Antonio 2012, pet. ref’d) (witness was not an accomplice simply because he was a
passenger in the car at scene of murder).

      Appellant further argues that Ybarra and Garza participated in a conspiracy
to shoot the weapon, and could be considered accomplices under section 7.02 of
the Texas Penal Code. 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 carrying out the conspiracy. Tex. Penal
Code § 7.02(b); Zamora v. State, 432 S.W.3d 919, 922 (Tex. App.—Houston [14th
Dist.] 2014, no pet.).

      Appellant argues that Ybarra and Garza knew that the gun was in the car and
discussed a plan to shoot the gun in an open area. Therefore, appellant argues, the
parties should have “foreseen that shooting a firearm into a neighborhood might

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attract the attention of law enforcement and that in entering into that conspiracy
someone might get shot.”

      The record does not reflect that Ybarra and Garza were accomplice
witnesses because they were criminally responsible for appellant’s actions under
the conspiracy theory of party liability. Appellant argues that by planning to
discharge a firearm in the city, the group should have anticipated the potential for
the offense of aggravated assault of a public servant.

      Appellant’s theory is not supported by the evidence or the Penal Code
definition of co-conspirators. Section 7.02(b) of the Penal Code provides that a
person can be held criminally responsible under the law of parties if, in the attempt
to carry out a conspiracy to commit one felony offense, another felony is
committed by one of the conspirators. See Hooper v. State, 214 S.W.3d 9, 13–14
(Tex. Crim. App. 2007). Discharging a firearm in a municipality is a misdemeanor,
not a felony. See Tex. Penal Code §§ 42.01 (a)(7), (d) (discharge of a firearm in a
public place is a Class B misdemeanor) & 42.12(a), (b) (discharge of a firearm
inside the corporate limits of a municipality having a population of 100,000 or
more is a Class A misdemeanor). The record does not contain evidence of a
conspiracy to commit a felony.

      Appellant’s argument is predicated on the idea that Ybarra and Garza were
accomplices to aggravated assault of a public servant. The record does not support
appellant’s assertion. The record reflects that Ybarra and Garza did not participate
in the shooting of the police officer, did not conspire to shoot a police officer, nor
could they have anticipated when they got in the car with appellant that he would
shoot a police officer. If a State’s witness has no complicity in the offense for
which an accused is on trial, the witness’s testimony is not that of an accomplice
witness whatever may have been the witness’s complicity with the accused in the

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commission of other offenses. Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim.
App. 1987). There is no evidence that Ybarra and Garza were appellant’s
accomplices as a matter of fact; therefore, there is no requirement of corroboration.
See Tex. Code Crim. Proc. art. 38.14.

      Based on all the evidence presented, including the testimony of Ybarra and
Garza, viewed in the light most favorable to the verdict, we conclude a rational
jury could have found the essential elements of the offense beyond a reasonable
doubt. See Jackson, 443 U.S. at 319. We therefore overrule appellant’s sole issue,
and affirm the trial court’s judgment.




                                         /s/       Tracy Christopher
                                                   Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).




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