                                   NO. 12-17-00389-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 LAMISHA MARSHALL WILSON,                      §          APPEAL FROM THE
 APPELLANT

 V.                                            §          COUNTY COURT AT LAW NO. 2

 THE STATE OF TEXAS,
 APPELLEE                                      §          SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Lamisha Marshall Wilson appeals her conviction for theft. In two issues, Appellant
contends the trial court erred in admitting accomplice witness testimony and should have given
the jury an accomplice witness instruction. We affirm.


                                          BACKGROUND
       On August 24, 2016, Appellant and Jernisha Amie returned several items without a receipt
to the J.C. Penney’s store in Tyler. Amie presented her identification to the cashier for the return.
Once the return was completed, the cashier presented Amie with a store voucher for $276.04.
After the ladies received the store voucher, they went throughout the store and selected items to
purchase. They returned to the same cashier to make their purchase. Two pairs of shoes the ladies
selected were excluded from their purchase because they exceeded the amount of the voucher.
Amie and Appellant then returned to the store’s shoe department.
       John Hentze, the store’s loss prevention officer, was notified by both his computer system
and the cashier when Appellant and Amie made their large return. Hentze began watching the
ladies on the store’s video surveillance system. He observed the ladies return to the shoe
department and saw Appellant place two pairs of sandals and another pair of shoes into her bag.
Hentze left his office to observe Appellant in person. The ladies used the remainder of the voucher
to purchase lingerie and proceeded to leave the store without paying for the shoes in Appellant’s
bag. Hentze attempted to stop Appellant from leaving, but she fled the scene. Hentze managed to
grab Appellant’s bag, which contained the shoes, before Appellant fled. When Hentze spoke with
Amie, she gave him the wrong name instead of identifying Appellant. Hentze allowed Amie to
leave because she had not, per the company’s rules, stolen anything. Hentze subsequently
reviewed photographs in a J.C. Penney’s database for customers who previously made large
returns. In reviewing the photographs, Hentze identified Appellant as the person who attempted
to steal the shoes and fled the scene. He contacted the Tyler Police Department, which conducted
an investigation.
        Appellant was later arrested and charged by information with theft of property valued more
than $100 but less than $750. Appellant pleaded “not guilty” and the matter proceeded to a jury
trial. The jury found Appellant “guilty” and sentenced her to 180 days confinement and a $2,000
fine. This appeal followed.


                    CORROBORATION OF ACCOMPLICE WITNESS TESTIMONY
        In her first issue, Appellant argues that the evidence is insufficient to support her conviction
because the accomplice witness testimony was not sufficiently corroborated.
Standard of Review and Applicable Law
        In reviewing the sufficiency of the evidence, the appellate court must determine whether,
considering all the evidence in the light most favorable to the verdict, the trier of fact was rationally
justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010). Considering the evidence “in the light most favorable to the verdict” under this
standard requires the reviewing court to defer to the trier of fact’s credibility and weight
determinations, because the trier of fact is the sole judge of the witnesses’ credibility and the
weight to be given their testimony. Brooks, 323 S.W.3d at 899; see Jackson, 443 U.S. at 319, 99
S. Ct. at 2789. A “court faced with a record of historical facts that supports conflicting inferences
must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443
U.S. at 326, 99 S. Ct. at 2793. Circumstantial evidence is as probative as direct evidence in




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establishing the guilt of an actor and can alone be sufficient to establish guilt. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
       Article 38.14 of the Texas Code of Criminal Procedure provides that a conviction cannot
be had upon the testimony of an accomplice unless it is corroborated with other evidence tending
to connect the defendant with the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005).
When evaluating the sufficiency of corroborative evidence, we “‘eliminate the accomplice
testimony from consideration and then examine the remaining portions of the record to see if there
is any evidence that tends to connect the accused with the commission of the crime.’” Malone v.
State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v. State, 49 S.W.3d. 356,
361 (Tex. Crim. App. 2001)). The testimony that is eliminated from consideration is that testimony
given by live witnesses speaking under oath in court. Torres v. State, 137 S.W.3d 191, 196 (Tex.
App.—Houston [1st Dist.] 2004, no pet.). In other words, only an accomplice’s in-court testimony
need be corroborated. Bingham v. State, 913 S.W.2d 208, 211–13 (Tex. Crim. App. 1995).
Moreover, an accomplice’s testimony cannot be corroborated by prior statements made by the
accomplice witness to a third person. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App.
2011). A witness is an accomplice as a matter of law if she has been or could have been indicted
for the same offense. Cocke v. State, 201 S.W.3d 744, 747-48 (Tex. Crim. App. 2008).
Analysis
        Appellant contends that Amie’s statement to Hentze constitutes accomplice witness
testimony and was uncorroborated. She further argues that Hentze would not have been able to
identify Appellant without Amie’s cooperation and that no other evidence connects Appellant to
the offense.
       Amie did not testify at trial. While she was called to testify, she invoked her Fifth
Amendment right against self-incrimination. The only evidence of Amie’s alleged out-of-court
statement to Hentze is from Hentze himself. An accomplice witness’s out-of-court statement need
not be corroborated. See Bingham, 913 S.W.2d at 213. Because Amie did not testify at trial that
Appellant committed the theft or that she and Appellant participated in the theft together, the
accomplice witness rule does not apply. See id.
       However, even if the accomplice witness rule applied, sufficient evidence was presented
to corroborate any such accomplice testimony. Hentze testified that he saw Appellant place three
pairs of shoes in her bag while watching her through the surveillance system. At that point, Hentze



                                                  3
left his office to observe Appellant in person. According to Hentze, after Amie and Appellant
purchased some lingerie, they attempted to leave without paying for the shoes. When Hentze
attempted to stop Appellant, she fled the scene. He spoke with Amie, who gave him an incorrect
name for Appellant. Hentze testified that J.C. Penney’s keeps an internal record of customers who
have made large returns in the past. While reviewing those records, he recognized Appellant as
the person who tried to leave with the shoes and without paying. He then turned that information
over to the Tyler Police Department. Later, Hentze identified Appellant in a photographic lineup
and stated that his identification was “positive to 100 percent.” Furthermore, Hentze identified
Appellant as the perpetrator at trial. This evidence would have been sufficient to corroborate a
testifying accomplice witness under Article 38.14. See Wirth v. State, 361 S.W.3d 694, 697 (Tex.
Crim. App. 2012) (when reviewing the sufficiency of the evidence, we consider events occurring
before, during and after the offense and may rely on the defendant’s actions which show an
understanding and common design to do the prohibited act); see also Goodman v. State, 66 S.W.3d
283, 286 (Tex. Crim. App. 2001) (“Direct evidence of ‘X’ fact is always legally sufficient to
support a finding of ‘X’ fact.”); Cate v. State, 124 S.W.3d 922, 928 (Tex. App.—Amarillo 2004,
pet. ref’d) (positive identification of defendant as perpetrator by non-accomplice sufficient to
support conviction). Accordingly, for the above reasons, we overrule Appellant’s first issue.


                               ACCOMPLICE WITNESS INSTRUCTION
        In her second issue, Appellant urges the trial court erred by refusing to instruct the jury
that Amie was an accomplice as a matter of law and that her testimony must be corroborated by
other evidence.
Standard of Review
        The review of an alleged jury-charge error in a criminal trial is a two-step process. See
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must
determine whether there was error in the jury charge. Id. Second, if there is charge error, the court
must determine whether there is sufficient harm to require reversal. Id. at 731–32. The standard
for determining harm depends on whether the appellant objected. Id. at 732. If the appellant
objected to the error at trial, the appellate court must reverse the trial court’s judgment if the error
“is calculated to injure the rights of the defendant.” TEX. CODE CRIM. PROC. ANN. art. 36.19 (West
2006). This standard requires proof of no more than some harm to the accused from the error.



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Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). An appellant who did not raise
the error at trial can prevail only if the error is so egregious and created such harm that he has not
had a fair and impartial trial. Id. “In both situations the actual degree of harm must be assayed in
light of the entire jury charge, the state of the evidence, including the contested issues and weight
of probative evidence, the argument of counsel and any other relevant information revealed by the
record of the trial as a whole.” Id. In assessing whether the trial court erred by denying a requested
defensive instruction, an appellate court must examine the evidence offered in support of the
defensive issue in the light most favorable to the defense. Id.
Analysis
         Appellant argues that she was entitled to an accomplice witness instruction in the jury
charge because Amie was an accomplice to the theft and, according to Appellant, she identified
Appellant as the perpetrator to Hentze before being permitted to leave the scene of the offense.
However, as explained above, Hentze testified that Amie did not provide him with Appellant’s
correct name. Rather, he discovered Appellant’s identity after reviewing J.C. Penney’s records of
customers who previously made large returns. In addition, Amie did not testify at trial. An
accomplice witness instruction is not required when, as in this case, statements of a non-testifying
accomplice are introduced into evidence. Sexton v. State, 51 S.W.3d 604, 614 (Tex. App.—Tyler
2000, pet. ref’d). Because Amie did not testify at trial, the trial court was not required to provide
the jury with an accomplice witness instruction. We overrule Appellant’s second issue.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, 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)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 10, 2018


                                         NO. 12-17-00389-CR


                                LAMISHA MARSHALL WILSON,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                            Appeal from the County Court at Law No. 2
                        of Smith County, Texas (Tr.Ct.No. 002-80397-17)

                       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.
