Opinion issued April 18, 2013.




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-11-00654-CR
                            ———————————
                MICHAEL DESHAWN WINFREY, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 240th District Court
                            Fort Bend County, Texas
                     Trial Court Cause No. 09-DCR-052456


                          MEMORANDUM OPINION

      A jury found Michael Deshawn Winfrey guilty of capital murder. The trial

court assessed punishment at life imprisonment without the possibility of parole.

See TEX. PENAL CODE ANN. § 12.31(a)(2) (West 2011). On appeal, Winfrey

contends that the trial court erred in failing to instruct the jury on the accomplice
witness rule for two witnesses. We hold that the trial court erred in part, but that

this error is harmless in light of the corroborating evidence of other non-

accomplice witnesses and the trial record as a whole. We therefore affirm.

                                   Background

      In April 1994, Winfrey, Dalton Boudreaux, Kenneth Mouton, Otterrel

Boutte, and Wilton George were cooking out, drinking, and smoking marijuana.

Boudreaux drove the group to a nearby convenience store to buy beer. At the store,

the men noticed Jeffrey Brown talking on a payphone, and wearing expensive-

looking jewelry. Winfrey suggested robbing Brown. The men then went to another

store across the street.

      As the men came out of the second store, they observed Brown in the

parking lot. Winfrey told the others that he was going to rob Brown. George

testified that he believed that Winfrey was joking. Boudreaux replied that he did

not want any part of it, and he suggested that whoever wanted to leave to avoid

being a part of Winfrey’s proposed crime should get back in the car. Mouton and

George got into the car with Boudreaux. Boutte was using a payphone to call his

mother and told the men that he could walk back to the house.

      Brown sat in his car in the store parking lot with two of his young children.

Winfrey walked up to Brown’s car with a revolver and demanded that Brown give

him everything. He threatened to shoot Brown’s son. Winfrey shot Brown twice


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and fled. Bleeding from his wounds, Brown dragged himself into the store.

Paramedics treated Brown at the scene, but he later died as a result of his gunshot

wounds.

      The evidence was conflicting about whether Brown and Winfrey struggled

before the shots. The evidence was also conflicting about whether Boudreaux’s car

was waiting at a stop sign on an adjacent street or was exiting the parking lot at the

time of the shots.

      George, Boutte, Mouton, Boudreaux, and one of the Brown children testified

that, after shooting Brown, Winfrey ran to Boudreaux’s car on the street and

jumped into the open back window. The other child, however, testified that

Winfrey entered through the back door. One child testified that it appeared that the

driver of the car was trying to get away from Winfrey by driving off. George

testified that Mouton exited the car after the shots, chased Brown, and pulled the

necklaces off Brown’s neck as Brown dragged himself toward the convenience

store. Neither of the children recalled seeing anyone exit the car after the shooting,

and Mouton denied doing so. Boudreaux, Mouton, and George testified that they

fought with Winfrey after getting back to the house, because they were angry that

he had robbed the man. Boutte testified that he had observed the robbery and the

shooting from the payphone, but that he did not know what Winfrey was doing

until after the shooting.


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      The men later learned while watching the news that Brown had died. After

hearing this, Boudreaux reported his car stolen, and, with Boutte’s assistance, he

broke the steering column and parked the car several blocks away. None of the

men notified the police about the crime.

      Fifteen years later, in 2009, Boutte contacted the police to provide

information about the 1994 shooting, hoping this would help reduce his pending

sentence for drug charges in Louisiana. It did not.

      Winfrey did not testify in his own defense, but he had denied all knowledge

of the shooting in previous conversations with police. He never indicated that any

of the other men were responsible. Each of the two Brown children identified

Winfrey in a photo line-up. At trial, the State agreed to accomplice witness

instructions for Boudreaux and Mouton. Winfrey requested an accomplice witness

instruction as to Boutte and George, as well. The trial court refused the instruction.

                                     Discussion

Standard of Review

      Winfrey contends that the trial court erred in failing to instruct the jury on

the accomplice witness rule as to Boutte and George. We review the decision of

the trial court denying a request for accomplice witness instructions for an abuse of

discretion. See Paredes v. State, 129 S.W.3d 530, 538 (Tex. Crim. App. 2004). A

trial court abuses its discretion only if the court’s decision is “so clearly wrong as


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to lie outside the zone within which reasonable people might disagree.” Taylor v.

State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Roberts v. State, 29 S.W.3d

596, 600, (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A trial court’s ruling

falls within this zone if the record and the law applicable to the case reasonably

support it. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

Analysis

      A conviction cannot rest on an accomplice witness’s testimony unless the

testimony is corroborated by other, non-accomplice evidence that tends to connect

the accused to the offense. See TEX. CODE CRIM. PROC. ANN. art 38.14 (West

2005). Witnesses may be accomplices as a matter of law or as a matter of fact.

Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). A witness who is

indicted for the same offense or a lesser-included offense as the accused is an

accomplice as a matter of law, and the trial court must instruct the jury

accordingly. Id. If the evidence shows that a witness is not an accomplice, the trial

court should not give an accomplice witness instruction. Id. at 440. If evidence of

the witness’s role in the offense is conflicting, then the trial judge should instruct

the jury to determine whether a witness is an accomplice. Id. at 439–40.

      An accomplice is a person who participates in the offense before, during, or

after its commission, with the requisite mental state. Druery v. State, 225 S.W.3d

491, 498 (Tex. Crim. App. 2007). An accomplice must have engaged in an


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affirmative act that promotes the commission of the offense that the accused

committed. Id. A witness is not an accomplice simply because he was present at

the crime scene and knew about the offense but did not report it. Smith, 332

S.W.3d at 439; Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986) (en

banc) (holding that a witness was not an accomplice although he was present

during the crime, did not abandon the group who committed the crime). Similarly,

a witness generally is not an accomplice for concealing an offense, or evidence of

an offense, after the offense occurred. Druery, 225 S.W.3d at 498; see e.g., Alanis

v. State, 891 S.W.2d 737, 743 (Tex. App.—Houston [1st Dist.] 1994) (holding that

a witness that concealed a murder weapon, without more evidence of involvement

in the crime, was not an accomplice witness). However, evidence of flight or guilty

conscience, coupled with other corroborating circumstances, may tend to connect

an accomplice with the crime. See Hernandez v. State, 939 S.W.2d 173, 178 (Tex.

Crim. App. 1997) (en banc).    Because neither Boutte nor George was charged

with a crime related to the shooting, they were not accomplice witnesses as a

matter of law. See Smith, 332 S.W.3d at 439. We therefore determine whether

Boutte and George were accomplice witnesses as a matter of fact.

      The evidence was conflicting regarding Boutte’s role as an accomplice.

Boutte accompanied the group to the scene, exited the car, and went to a payphone

near Brown. He watched the shooting, and later assisted Boudreaux in hiding the


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car in which Winfrey and the others had fled. Alone, neither Boutte’s presence at

the scene nor his attempt to conceal the car Winfrey used to flee would make

Boutte an accomplice witness. See Smith, 332 S.W.3d at 439; Druery, 225 S.W.3d

at 498–99. Together, these facts raise an issue about whether Boutte was an

accomplice. See Druery, 225 S.W.3d at 498. Boutte’s concealing the car was an

affirmative act to promote the crime and is evidence of Boutte’s guilty conscience.

See Hernandez, 939 S.W.2d at 178. Combined with his presence at the scene, this

is evidence from which a reasonable jury could find that Boutte was an

accomplice. See Druery, 225 S.W.3d at 498. As there was conflicting evidence

about whether Boutte was an accomplice, the trial court abused its discretion in not

instructing the jury to determine whether Boutte was an accomplice witness. See

Smith, 332 S.W.3d at 439–40.

      The evidence concerning George’s role, on the other hand, does not bear out

Winfrey’s contention that George, too, was an accomplice witness. George was

present during the commission of the offense and failed to report the offense. As a

passenger in the car, though, there was no evidence that George engaged in any

affirmative act to promote the offense—or to conceal the offense, as with Boutte. It

is well established that presence at the scene of the offense and knowledge of and

failure to report an offense does not give rise to accomplice liability. See Smith,

332 S.W.3d at 439. Nor does George’s failure to abandon the group after the


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offense make him an accomplice. See Kunkle, 771 S.W.2d at 439 (holding that

witness was not accomplice although he was present during crime, did not abandon

group that committed crime, and did not report crime). Thus, the trial court

properly concluded that Winfrey was not entitled to an accomplice witness

instruction as to George.

Harm Analysis

      Because the trial court erred in failing to instruct the jury to find whether

Boutte was an accomplice witness, we must determine whether it warrants a new

trial. Failure to give an accomplice witness instruction is harmful if the error

resulted in “some harm” if, as here, the defendant has preserved error regarding the

omitted instruction. See Herron v. State, 86 S.W.3d 621, 633 (Tex. Crim. App.

2002) (citing Almanza v. State, 686 S.W.2d 157, 157 (Tex. Crim. App. 1984)).

Such an error is harmless unless the corroborating evidence is “so unconvincing in

fact as to render the State’s overall case for conviction clearly and significantly less

persuasive.” Herron, 86 S.W.3d at 632. In reviewing the strength of the

corroborating evidence, we examine its reliability and its tendency to connect the

defendant to the crime. Under the “some harm” standard, the reliability inquiry

may be satisfied if: (1) the record contains sufficient non-accomplice evidence, and

(2) no rational basis exists for disregarding that evidence. Id.

      The jury heard ample non-accomplice evidence that connected Winfrey to


                                           8
the murder. Both Brown children identified Winfrey in a photo line-up as the man

who shot their father, corroborating Boutte’s testimony that Winfrey shot Brown.

George corroborated Boutte’s accomplice-witness testimony that Winfrey had

discussed robbing Brown before Winfrey shot Brown. Nothing in the record

suggests that the testimony from the Brown children and George is unreliable, and

thus, no rational basis to disregard this evidence exists. See Herron, 86 S.W.3d at

632. Accordingly, we conclude that the error was harmless. See Brooks, 990

S.W.2d at 287.

                                     Conclusion

      We hold that the trial court properly refused an accomplice-witness

instruction for George, but erred in failing to give one for Boutte. We further hold

that the error did not cause the rendition of an improper judgment. We therefore

affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).



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