Affirmed and Opinion Filed June 8, 2015




                                            Court of Appeals
                                                              S      In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-14-00376-CR

                                             FREDRICK CARSON, Appellant
                                                         V.
                                             THE STATE OF TEXAS, Appellee

                                 On Appeal from the 203rd Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. F-1354167-P


                                            MEMORANDUM OPINION
                                   Before Justices Francis, Lang-Miers, and Whitehill
                                              Opinion by Justice Whitehill

           Fredrick Carson appeals his capital murder conviction with five issues1 arguing that (1)

the evidence is insufficient to support his conviction; (2) the trial court did not instruct the jury

on the accomplice–witness rule; (3) the trial court did not properly limit the jury charge’s

definitions of “intentionally” and “knowingly” to the offense’s relevant conduct elements; (4) the

trial court lacked jurisdiction; and (5) his automatic life sentence without parole violates the

Eighth Amendment. We affirm for the reasons discussed below.




   1
       Although the parties discuss Carson’s issues as points of error, we refer to them as issues.
                                        I. BACKGROUND

       The evidence showed that on March 21, 2013 the complainant, Anthony Scott, was shot

during a robbery outside his home. He died of his injuries shortly thereafter. Appellant was

arrested and charged with capital murder for intentionally killing Scott in the course of robbing

him. He pleaded not guilty. A jury found him guilty, and the trial court imposed a mandatory

life sentence.

                                         II. ANALYSIS

A.     Issue 1: Was the evidence identifying appellant as the shooter sufficient to support
       his conviction?

       Appellant’s first issue argues that the evidence, excluding accomplice testimony under

the accomplice–witness rule, was insufficient to establish that he was the person who shot and

killed Scott. The State responds, in part, that appellant erroneously calls two State’s witnesses

accomplices when no evidence showed they were. We conclude that the evidence (which

included non-accomplice and forensic evidence connecting Carson to the offense) was sufficient

to support appellant’s conviction.

       1.        Applicable law

       When reviewing a sufficiency of the evidence challenge, we consider all the evidence in

the light most favorable to the verdict and determine whether the jury was rationally justified in

finding guilt beyond a reasonable doubt. Bell v. State, 326 S.W.3d 716, 720 (Tex. App.—Dallas

2010, pet. dism’d, untimely filed). We defer to the jury’s determinations of the witnesses’

credibility and the weight given to their testimony because the jury is the sole judge of these

matters. Id.

       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.
                                             –2–
TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). An accomplice is one who participates

with a defendant before, during, or after the crime was committed and who acts with the requisite

culpable mental state.     Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006).

“Participation requires an affirmative act that promotes the commission of the offense with

which the defendant is charged.” Id. “Mere presence at a crime scene does not make an

individual an accomplice, nor is an individual an accomplice merely because he has knowledge

about a crime and fails to disclose that knowledge.” Id.

       2.      Application of the law to the facts

       Part of our analysis focuses on two testifying eyewitnesses: Miracle Lynch and Derek

Morgan. Appellant says that Lynch and Morgan were accomplices; the State disagrees. As

shown below, their testimony did not require corroboration because there is no evidence that

they were accomplices.

                                              Harris

       Scott’s friend Matt Harris was the first witness to describe the crime. Harris was with

Scott the evening of March 21, 2013. At around 7 p.m., Harris drove Scott to a store near Kiest

and Cedar Crest to get some food. After they made their purchases, Harris drove them back to

Scott’s residence. Harris noticed that he was followed by a pick-up truck. Nevertheless, he

drove on to Scott’s duplex, and the pick-up followed him into that area. When Harris and Scott

exited Harris’s truck, someone in a ski mask got out of the other truck, pulled out a gun, and

fired. Scott ran towards the front of his home, and the gunman went after him. Harris ran the

opposite direction and heard another shot. When Harris reached a ditch about fifty or sixty yards

from Scott’s home, he hid in the ditch for about twenty minutes. When he heard police sirens, he

left the ditch and saw Scott surrounded by paramedics. Scott later died at the hospital.




                                               –3–
                                                                   Lynch

           Miracle Lynch, who was 18 at the time of trial, testified that she was at the Kiest Market

in Oak Cliff on March 21, 2013, with several other people. Appellant was there, along with Eric

Huckaby,2 Steven Spriggs, Derek Osaroekee, and Derek Morgan. Other evidence explained that

Lynch traveled to the Kiest Market with Huckaby, Spriggs, Osaroekee, and Morgan, and

appellant met them there.

           While they were there, Spriggs, Osaroekee, Huckaby, and appellant planned a robbery.

Lynch and the four others left the store in a pick-up truck and followed another truck. Lynch

rode in the back seat with Huckaby3 and Osaroekee. She saw two guns. Osaroekee had one and

appellant had the other. Osaroekee put on a ski mask, and appellant put on a bandanna.

           They stopped behind the other truck they had been following, and two men got out of that

truck. Osaroekee and appellant got out of their truck and “started opening fire.”

           When asked what she was doing at the time, Lynch testified, “Scared. Sitting in the car.”

She also said that Morgan never left the vehicle. She saw appellant chase a man towards the side

of the house, and Osaroekee chased the other man towards some woods. After she heard the

gunshots, she saw “a body land on the floor” face down, and she saw appellant walking away.

Appellant came back to the truck, and someone asked appellant questions like “how much

money did he have and what did you get.” They drove away to another house, and Lynch called

her father and went home.

                                                                  Morgan



     2
        Although Lynch initially testified that “Eric Huckaby” was present, she later referred to someone with the nickname “Juice,” and she said
that she wasn’t sure if Juice’s name was Eric Huckaby. Derek Morgan, whose testimony is discussed below, testified that Huckaby’s nickname
was Juice.
     3
      To be precise, Lynch testified that she rode in the back seat with Juice and “Bravo,” who was identified in other testimony as Osaroekee.
Huckaby also testified, and he said that he stayed behind at the Kiest Market while the others left to commit the robbery. The discrepancy
between his testimony and Lynch’s does not affect our analysis.



                                                                     –4–
       Derek Morgan testified that he was a senior in high school on the day of the crime. He,

Osaroekee, Huckaby, and Lynch were at Spriggs’s house. They went to the Kiest Market in a

four-door pick-up truck. While they were there, appellant arrived in his own car. Morgan

noticed that Osaroekee had a ski mask, and Morgan put the ski mask on and joked with

Osaroekee about it. Then Huckaby ran out of the store saying something like “get the burners,”

and when Morgan heard about the robbery plan he gave the mask back.

       Appellant got in the truck and produced two revolvers, one silver and one black. With

Spriggs driving, they followed a white truck that “they said they was going to rob.” Appellant

handed the silver gun to Osaroekee and kept the black one.

       When they pulled into an apartment complex, Morgan suggested that they just turn

around and keep going because he did not want any part of a robbery. Nevertheless, Spriggs

followed the white truck and pulled up behind it.

       Morgan testified that appellant and Osaroekee jumped out of the truck and ran towards

the two men in the other truck. Morgan then testified:

       I lost track of what [Osaroekee] was doing. And I seen [appellant], and he went
       right there behind the building and the dude fell like this on his back, and he came
       out of his pocket and threw the money. And then I hear the shot go off and
       [appellant] was standing over them. The shot went off, pow, and then he came
       back.

       The State then questioned Morgan about the crime step by step:

       Q.      [D]id you actually see [appellant] holding a gun pointed at this man?

       A.      Yes.

       Q.      Did you see [appellant] pull the trigger?

       A.      Yes.

       Q.      Did you hear the gun discharge as [appellant] pulled the trigger?

       A.      Yes.

       Q.      What happened next as far as what [appellant] was doing?
                                               –5–
       A.      Got into the car and they all got into the back seat, and as we was pulling
               off, he was, like, look, I shot him or whatever.

Morgan said that they drove off after the robbery and went to Spriggs’s house and separated

from there.

       Appellant asserts that Lynch and Morgan were accomplices, but he does not support his

argument with any facts or with any record citations. Lynch, Morgan, Huckaby and Spriggs all

testified against appellant at trial, but none of them identified any affirmative conduct by Lynch

or Morgan that furthered the robbery.

       We find no record evidence that either Lynch or Morgan committed any “affirmative act

that promote[d] the commission of the offense” with which appellant was charged. See Cocke,

201 S.W.3d at 748. “A witness is not an accomplice where there is no evidence that the witness

was involved in the planning of or assisted in the preparation for the offense.” Turner v. State,

No. 05-03-01717-CR, 2005 WL 1524586, at *5 (Tex. App.—Dallas June 29, 2005, pet. ref’d)

(not designated for publication) (citing Paredes v. State, 129 S.W.3d 530, 537–38 (Tex. Crim.

App. 2004)); see also Cocke, 201 S.W.3d at 748 (“Mere presence at a crime scene does not make

an individual an accomplice . . . .”). Because there is no evidence that Lynch and Morgan were

accomplices, the accomplice–witness rule does not apply to their testimony.

       Other evidence also supported appellant’s guilt. Detective Eric Barnes testified that two

firearms were later recovered in Desoto. They were tested for DNA. Forensic biologist Amanda

Webb testified that DNA recovered from one of the two guns matched appellant’s DNA profile

and did not match the DNA profiles of Osaroekee or Spriggs. That gun was a black and grey

revolver. Morgan had previously testified that appellant had a black revolver, while Osaroekee

had a silver one.

       Reviewing the testimony of Harris, Lynch, and Morgan and the other evidence presented

at trial, in the light most favorable to the verdict, we conclude that the evidence was sufficient to
                                                –6–
support the jury’s finding that appellant was the person who shot and killed Scott. We thus

resolve appellant’s first issue against him.

B.     Issue 2: Did the trial court commit reversible error by failing to give the jury an
       accomplice–witness instruction?

       Appellant’s second issue argues that the trial court erred by failing to give the jury an

accomplice–witness instruction. The State concedes error but says the error was harmless. We

agree with the State.

       1.      Applicable law

       If the evidence raises the accomplice–witness rule, the trial court must sua sponte instruct

the jury about its requirements. See Zamora v. State, 411 S.W.3d 504, 512 & n.4 (Tex. Crim.

App. 2013). If the defendant does not object to an omitted accomplice–witness instruction that is

required by the evidence, the error is reversible only if the defendant suffered egregious harm.

See id. at 512–13; see also Zamora v. State, 432 S.W.3d 919, 924 (Tex. App.—Houston [14th

Dist.] 2014, no pet.).

       Egregious harm arises from error that affects the very basis of the case, depriving the

defendant of a valuable right or vitally affecting a defensive theory. See Cosio v. State, 353

S.W.3d 766, 777 (Tex. Crim. App. 2011).

       Omitting an accomplice–witness instruction egregiously harms a defendant if the jurors

would have found the corroborating evidence so unconvincing as to render the State’s overall

case clearly and significantly less persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex.

Crim. App. 1991). As the corroborating evidence’s strength increases, the degree of harm

decreases. See Casanova v. State, 383 S.W.3d 530, 539–40 (Tex. Crim. App. 2012).

       And a failure to give the instruction is generally harmless if the non-accomplice evidence

corroborates the accomplice testimony by tending to connect the defendant to the crime. Lee v.

State, No. 05-12-01498-CR, 2014 WL 1022380, at *3 (Tex. App.—Dallas Feb. 13, 2014, pet.

                                               –7–
ref’d) (mem. op., not designated for publication) (citing Herron v. State, 86 S.W.3d 621, 632

(Tex. Crim. App. 2002), and article 38.14).

       2.      Application of the law to the facts

       The State concedes that the trial court should have given the jury an accomplice–witness

instruction because two accomplices (Huckaby and Spriggs) testified against appellant. But we

conclude that appellant was not egregiously harmed by the error.

       As we discussed above, two non-accomplice witnesses corroborated the accomplice

testimony against appellant. Lynch saw appellant walking away from the victim’s body after the

robbery. Morgan saw appellant point his gun at the victim and pull the trigger. This evidence so

strongly and directly connected appellant with the crime that we “may safely conclude that the

only resultant harm is purely theoretical.” Casanova, 383 S.W.3d at 540.

       Because the non-accomplice testimony was not so unconvincing as to make the State’s

case clearly and significantly less persuasive, appellant did not suffer egregious harm from the

lack of an accomplice–witness instruction. See Saunders, 817 S.W.2d at 692; see also Lee, 2014

WL 1022380, at *3 (error is generally harmless if the non-accomplice evidence tends to connect

the defendant to the offense).

       We thus resolve appellant’s second issue against him.

C.     Issue 3: Did the trial court reversibly err by not limiting the “intentionally” and
       “knowingly” definitions to the offense’s relevant conduct elements?

       Appellant’s third issue argues that the trial court erred by not limiting the jury charge’s

definitions of “intentionally” and “knowingly” to the relevant elements of robbery. The State

admits error but says it was harmless. We agree with the State.

       1.      The jury charge and appellant’s complaints

       The relevant parts of the jury charge are:



                                               –8–
               Our law provides that a person commits the offense of murder when he
       intentionally or knowingly causes the death of an individual.

              A person commits the offense of capital murder if the person commits
       murder, as defined above, and the person intentionally commits the murder in the
       course of committing or attempting to commit robbery.

               A person commits the offense of robbery if, in the course of committing
       theft and with intent to obtain or maintain control of the property of another, the
       person intentionally or knowingly threatens or places another in fear of imminent
       bodily injury or death.

              “In the course of committing theft” means conduct that occurs in an
       attempt to commit, during the commission, or in immediate flight after the
       commission of theft.

              A person commits the offense of theft if the person unlawfully
       appropriates property with intent to deprive the owner of the property.

              ...

               With regard to the offense of capital murder, a person acts intentionally, or
       with intent, with respect to a result of his conduct when it is his conscious
       objective or desire to cause the result.

                With regard to the offense of robbery, a person acts intentionally, or with
       intent, with respect to the nature of his conduct or to a result of his conduct when
       it is his conscious objective or desire to engage in the conduct or cause the result.

               With regard to the offenses [sic] of robbery, a person acts knowingly, or
       with knowledge, with respect to the nature of his conduct or to circumstances
       surrounding his conduct when he is aware of the nature of his conduct or that the
       circumstances exist. A person acts knowingly, or with knowledge, with respect to
       a result of his conduct when he is aware that his conduct is reasonably certain to
       cause the result.

The application paragraph of the charge provided:

       Now bearing in mind the foregoing instructions, if you believe from the evidence
       beyond a reasonable doubt that [appellant] intentionally caused the death of
       Anthony Scott . . . by shooting the deceased with a firearm, a deadly weapon, and
       [appellant] was then and there in the course of committing or attempting to
       commit the offense of robbery of [Anthony Scott], then you will find [appellant]
       guilty of the offense of capital murder as charged in the indictment . . . .

       Appellant complains that the trial court did not limit its definitions of “intentionally” and

“knowingly” as to three relevant conduct elements of robbery. Specifically, appellant complains


                                               –9–
that the abstract portion of the charge did not define:        (1) “intentionally” specifically in

connection with the element of threatening or placing another in fear of imminent bodily injury

or death; (2) “with intent” in connection with the element of unlawfully appropriating property;

and (3) “knowingly” or “with knowledge” regarding the element of committing robbery in the

course of committing theft.

       Without conceding appellant’s complaints, the State agrees that in the abstract portion of

the charge the trial court should have limited the definitions of “intentionally” and “knowingly”

to the conduct elements of the offense to which they applied. See Williams v. State, No. 05-12-

01465-CR, 2014 WL 3756305, at *6 (Tex. App.—Dallas July 30, 2014, pet. ref’d) (mem. op.,

not designated for publication) (“The failure to limit the culpable mental state definitions to the

conduct element or elements of the offense to which they apply is error.”).

       2.      Harmful-error standard

       Appellant did not raise these charge complaints below. We thus reverse only if the error

was so egregious that it deprived him of a fair and impartial trial. Id. at *4. In assessing harm,

we examine the entire jury charge, the state of the evidence including contested issues, counsel’s

arguments, and any other relevant information. Ash v. State, 930 S.W.2d 192, 195 (Tex. App.—

Dallas 1996, no pet.).

       3.      Application to the facts

       In determining whether there is egregious harm, we may consider the jury charge as a

whole, the state of the evidence, the arguments of counsel, and any other elevant information (the

“Almanza elements”). See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g). Reviewing the entire record, we conclude that appellant was not egregiously harmed

by the failure to limit the definitions of “intentionally” and “knowingly” regarding the elements

of robbery in the charge’s abstract portion. Aside from brief cross-examinations of the State’s


                                              –10–
witnesses, appellant introduced no evidence at trial. During closing arguments, both sides

focused on whether the State had proved that appellant acted with the specific intent to kill

Scott—not whether appellant had possessed the requisite mental state as to any element of

robbery. Neither side referred to the charge’s robbery definitions.

       Although the jury sent out some notes during deliberations, none of the notes referred to

the charge, and none suggested any jury confusion about the charge or its robbery definitions.

       The evidence regarding the elements of robbery was very strong. Although appellant

says the error caused him egregious harm, he does not explain the nature of that harm.

       Based on our record review, we conclude that appellant was not egregiously harmed by

the trial court’s failure to limit the definitions of “intentionally” and “knowingly” regarding the

elements of robbery in the abstract portion of the jury charge. See Williams, 2014 WL 3756305,

at *6 (appellant was not egregiously harmed by charge’s failure to limit culpable-mental-state

definitions to relevant conduct elements); Lane v. State, 957 S.W.2d 584, 587 (Tex. App.—

Dallas 1997, pet. ref’d) (omission of culpable mental state from application paragraph did not

cause egregious harm because defendant’s mental state was not a contested issue).

       For these reasons, we resolve appellant’s third issue against him.

D.     Issue 4: Did the trial court lack jurisdiction because there was no transfer order?

       Appellant’s fourth issue argues that the trial court lacked jurisdiction because the grand

jury was impaneled in a different court and there is no order of transfer assigning the case to the

trial court. We reject this argument for the reasons stated in Bourque v. State, 156 S.W.3d 675,

678–79 (Tex. App.—Dallas 2005, pet. ref’d).

E.     Issue 5: Does appellant’s sentence violate the Eighth Amendment?

       Appellant’s fifth issue argues that his automatic life sentence without parole pursuant to

Texas Penal Code § 12.31(a) violates his Eighth Amendment right to be free of cruel and


                                              –11–
unusual punishment.      He says the Eighth Amendment compels the State to engage in

individualized sentencing and to permit the introduction of mitigating evidence before imposing

a sentence of life without parole.

       Appellant did not object in the trial court, so this issue is not preserved for review. See

Kim v. State, No. 05-14-00138-CR, 2015 WL 1935948, at *5 (Tex. App.—Dallas Apr. 29, 2015,

no pet. h.) (mem. op., not designated for publication).

       Even had he preserved this argument, we would reject it. The Eighth Amendment

generally does not bar mandatory sentencing in non-death-penalty cases, even if the penalty is

life without parole. Murkledove v. State, 437 S.W.3d 17, 30 (Tex. App.—Fort Worth 2014, pet.

dism’d, untimely filed) (citing Harmelin v. Michigan, 501 U.S. 957, 994–95 (1991)). There is an

exception for persons who are under the age of 18 when they commit an offense. Id. (citing

Miller v. Alabama, 132 S. Ct. 2455 (2012)).           This exception aside, Texas courts have

consistently held that § 12.31(a)’s mandatory life sentence does not violate the Eighth

Amendment. Id. (collecting cases); see also Kim, 2015 WL 1935948, at *5; Desormeaux v.

State, 362 S.W.3d 233, 240 (Tex. App.—Beaumont 2012, no pet.); Cienfuegos v. State, 113

S.W.3d 481, 495–96 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Appellant does not

assert that he was under the age of 18 when he committed this crime, so Miller v. Alabama is

inapplicable.

       For these reasons, we conclude that appellant’s sentence does not violate the Eighth

Amendment and resolve this issue against him.




                                               –12–
                                       III. CONCLUSION

       For the foregoing reasons, we affirm the trial court’s judgment.




Do Not Publish
TEX. R. APP. P. 47
140376F.U05                                        /Bill Whitehill/
                                                   BILL WHITEHILL
                                                   JUSTICE




                                              –13–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

FREDRICK CARSON, Appellant                         On Appeal from the 203rd Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-00376-CR        V.                       Trial Court Cause No. F-1354167-P.
                                                   Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                       Justices Francis and Lang-Miers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered June 8, 2015.




                                            –14–
