                                                                                ACCEPTED
                                                                           07-15-00079-CR
                                                              SEVENTH COURT OF APPEALS
                                                                        AMARILLO, TEXAS
                                                                     12/22/2015 7:51:25 PM
                                                                          Vivian Long, Clerk


                        NO. 07-15-00079-CR
                                                 STATE REQUESTS
                                                 ORAL ARGUMENT
                                                         FILED IN
                                                  7th COURT OF APPEALS
                                               ONLY IF   APPELLANT
                                                      AMARILLO,  TEXAS
                                             REQUESTS    ARGUMENT
                                                  12/22/2015 7:51:25 PM
                                                        VIVIAN LONG
                             IN THE                        CLERK


                       COURT OF APPEALS

                            FOR THE

             SEVENTH JUDICIAL DISTRICT OF TEXAS

                        AMARILLO, TEXAS
******************************************************************
                     KENYA ABDULE MARTIN,
                                        APPELLANT,

                               VS.

                      THE STATE OF TEXAS,
                                         APPELLEE
******************************************************************
           ON APPEAL FROM THE 47TH DISTRICT COURT
                        CAUSE NO. 69,825-A
                     POTTER COUNTY, TEXAS
               HONORABLE DAN SCHAAP, PRESIDING
******************************************************************
                          STATE’S BRIEF
******************************************************************
                          RANDALL SIMS, DISTRICT ATTORNEY

                         JOHN L. OWEN, SBN 15369200
                         ASSISTANT DISTRICT ATTORNEY
                         501 S. FILLMORE, SUITE 5A
                         AMARILLO, TEXAS 79101
                         (806) 379-2325
                         jackowen@co.potter.tx.us
                         ATTORNEYS FOR THE STATE
                                1
                         TABLE OF CONTENTS


                                                                  PAGE

TABLE OF CONTENTS…………………………………………………………2

LIST OF AUTHORITIES…………………………………………………….... 3

THE CASE IN BRIEF…………………………………………………………...…4

STATEMENT OF THE CASE…………………………………………………….5

STATE’S RESPONSIVE POINT……………………………………….                6
(ADDRESSED TO APPELLANT’S “ISSUES PRESENTED” ONE THROUGH
FOUR ):
    No egregious harm to appellant is presented in the jury charge instructions
    relating to accomplice witness testimony, or in the omission of accomplice
    witness instructions for the witnesses Marquis Wilkins and Korntee Fennell.


FACT STATEMENT ……………………………………………                                           7

RESPONSIVE POINT RESTATED………………………………………….                                  15

CONCLUSION AND PRAYER……………………………………………                                     24

CERTIFICATE OF SERVICE……………………………………………                                     25

CERTIFICATE OF COMPLIANCE…………………………………………… 25




                                     2
                                LIST OF AUTHORITIES

                                                                                             Page

Cases

Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1991.)................................          19
Cocke v. State, 201 S.W.3d. 744, 747 (Tex.Crim.App. 2006) ........................... 20
Coutta v. State, 385 S.W.3d 641, 655 (Tex.App. - - El Paso 2012, no pet.) ......                23
Delacerda v. State, 425 S.W.3d 367, 396(Tex.App. - - Houston [1st Dist], pet.
ref’d)…………………………………………………………………………….22
Druery v. State, 225 S.W.3d 491, 498-99 (Tex.Crim.App. 2007.)...............               20, 21
Herron v. State, 86 S.W.3d 621, 633 (Tex.Crim.App. 2002) .......................           19, 20
McCallum v. State, 311 S.W.3d 9, 14 (Tex.App. - - San Antonio 2010, no pet.) 19, 20
Saunders v. State, 817 S.W.2d 688, 6923 (TexCrim.App. 1991).......................              20
Smith v. State, 332 S.W.3d 425, 439-40 (Tex.Crim.App. 2011) ........................            23
Zamora v. State, 411 S.W.3d 504, 513 (Tex.Crim.App. 2013) ........ 19, 20, 21, 22


Statutes

Tex. Penal Code Ann. Sec. 19.03 (a)(2)(West. Supp. 2015) ..................................... 5

Tex. Code Crim. Proc. Ann. Art. 38.14 (West. 2005) ............................................. 19




                                                3
                              NOS. 07-15-00079-CR

                                     IN THE

                              COURT OF APPEALS

                                    FOR THE

                  SEVENTH JUDICIAL DISTRICT OF TEXAS

                        AMARILLO, TEXAS
******************************************************************
                     KENYA ABDULE MARTIN,
                             Appellant,

                                VS.
                      THE STATE OF TEXAS,
                             Appellee.
******************************************************************
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW the State of Texas, appellee in the above entitled and

numbered appeal, by and through its 47th District Attorney, and submits its brief in

response to the brief of appellant, Kenya Abdule Martin. Appellant was convicted

in the 47th Judicial District Court of Potter County, Texas of capital murder; the

State having waived the death penalty, punishment was fixed at life imprisonment

without parole, according to law.




                                         4
                         STATEMENT OF THE CASE

      Appellant brings this appeal from his capital murder conviction and resulting

life prison sentence. See Tex. Penal Code Ann. Sec. 19.03 (a)(2)(West Supp.

2015). He here alleges egregious harm resulted from the trial court’s omission of

accomplice witness instructions relative to the witnesses Marquis Wilkins and

Korntee Fennell; further, he sees egregious harm in the accomplice witness

instruction the court did give respecting the witness Andrea Brown.


      The Potter County grand jury on December 17, 2014 indicted appellant for

the capital murder offense, which was alleged to have occurred on or about May 1,

2013. CR: 5. The State waived the death penalty.


      After a trial had February 17-20, 2015, a jury convicted appellant of the

indicted offense. CR: 65. Punishment at life imprisonment without parole was

automatic; the court imposed sentence on February 20, 2015. CR: 65. Appellant

timely, on March 2, 2015, filed a notice of appeal. CR: 61.




                                         5
                     STATE’S RESPONSIVE POINT

(ADDRESSED TO APPELLANT’S “ISSUES PRESENTED” ONE THROUGH
FOUR ):
    No egregious harm to appellant is presented in the jury charge instructions
    relating to accomplice witness testimony, or in the omission of accomplice
    witness instructions for the witnesses Marquis Wilkins and Korntee Fennell.




                                     6
                               FACT STATEMENT

      Appellant does not directly contest the evidence’s sufficiency to support his

conviction. He does assert that the trial court should have given accomplice

witness instructions relating to the witnesses Korntee Fennell and Marquis

Wilkins; for that reason, the State here provides a brief narrative of the trial

evidence to set a context for its response.


      The State’s theory of prosecution, in a nutshell, was as follows: Four

persons, including appellant, at about 6:00 a.m. on May 1, 2013, drove from the

apartment they shared to the victim Edward Pendleton’s residence. Three of the

confederates broke into the residence, and appellant shot the victim; that group

then fled with a purse believed to contain money and returned to the automobile

whose waiting driver then drove from the scene.


      Appellant’s defense, advanced through his cross-examination of the State’s

witnesses, was that the group did not include appellant. The following is a re-cap

of evidence relevant to appellant’s complaints here.


      Danielle Luce (“Danielle”) testified that, before the offense occurred, she

had been in bed with her husband, the victim. RR2: 214. She was awakened by a

loud noise, which she thought was their television following from its stand in the

living room. RR2: 216. The victim quickly left their bed and ran into the living


                                              7
room; Danielle then heard two gunshots. RR2: 217. She went to the door of their

bedroom, and saw, in the living room, a black male wearing dark pants and a dark

hoodie standing over the victim lying on the floor; that man then shot the victim in

the back. RR2: 217, 234. Danielle later described the gun to police as a black

semi-automatic pistol with brown wooden grips. RR2: 219, 256. She also saw

another black male in the living room wearing white; that man had no gun. RR2:

217, 220.


      Danielle retreated into the bedroom and slammed the door, pleading with the

intruders not to hurt her young son. RR2: 220. The two men pushed open the door

and demanded to know where the money was. RR2: 220. Danielle pointed to a

purse in a bassinet, and the man not holding a gun grabbed it. RR2: 220. The men

went through the victim’s pants pockets, then left the residence. RR2: 220-21.


      The victim had been involved in drug trafficking, Danielle acknowledged.

RR2: 212, 223, 261. That circumstance was a point of contention between her and

the victim, Danielle noted, and she had forbidden such activity to occur in their

house. RR2: 213.


      After the men left the house, Danielle went to the victim and tried to stop the

bleeding from his wounds. RR2: 221. The victim was still alive, and repeated the




                                         8
name “Damarrus, Damarrus. RR2: 221. When she went to get water for the victim,

Danielle called 911. RR2: 221.


      Amarillo police officers and paramedics arrived at the victim’s residence

shortly after 7:00 a.m. RR2: 252; RR3: 14. Paramedics transported the victim to

Amarillo’s Northwest Texas Hospital. RR3: 18. The victim was pronounced dead

at 8:37 a.m. RR3: 19.


      The causes of the victim’s death were gunshot wounds to the arm and torso,

Lubbock forensic pathologist Thomas Parsons testified. RR3: 51. Dr. Parsons

noted three gunshot wound pairings: an entrance wound below the right clavicle

and exit through the back; an entrance through the upper arm deltoid area, and exit

near the clavicle; and an entry wound to the left buttock, with the bullet lodged

beneath the skin on the right side of the chest. RR3: 52, 63. The upper arm/torso

bullet would not necessarily have been fatal; but, the wounds from the other two

gunshots would have been, respectively, either potentially or probably fatal

individually, Dr. Parsons opined. RR3: 57, 58, 63.


      Later at the police station, Danielle was shown a photographic lineup. RR2:

227, 263-265. Danielle was unable to positively identify anyone in the

photographic array as a perpetrator. RR2: 265. Nonetheless, she became upset




                                         9
upon viewing the photograph of Damarrus Ary, reiterating, though, that she could

not be 100% certain. RR2: 271-72.


      Possible suspects in the crime were identified when Amarillo police officer

Marcum spoke with the victim’s family and friends at the hospital, after a doctor

had told them of the victim’s death. RR3: 30. When Marcum asked who could

have been responsible, one of those present gave him Facebook photographs from

a phone with internet capability. RR3: 32. Marcum forwarded those photographs to

an officer at the murder scene so that officer could then convey them to the police

Special Crimes Unit. RR3: 33. The investigation narrowed when Damarrus Ary, at

about 1:00 p.m., contacted police about threats he had received. RR3: 137. After

interviewing Ary at the Special Crimes Unit office, officers became interested in

searching the apartment Ary shared with other persons. RR3: 143.


      Two significant State’s witnesses were Andrea Brown (“Andrea”) and

Marquis Wilkins (“Marquis”). Those witnesses figure in appellant’s complaints

about the jury charge.


      Andrea was connected with the offense on trial. Pursuant to a plea bargain,

she pled guilty to aggravated robbery and was sentenced to 5 years imprisonment;

as part of the plea bargain, she promised to testify truthfully in the trial of the other

participants in the crime. RR3: 184.


                                           10
      At the time in question, Andrea related, she lived in apartment with her

friend Korntee Fennell, Korntee’s boyfriend, Marquis, and Marquis’ friend, Zyrus

Williams (“Zyrus”). . RR3: 153. Also staying at the apartment sometimes were

Stevon Polk (“Stevon”) and Demarrus Ary. RR3: 153. A day or two before May 1,

Stevon brought a new friend “K,” later identified as appellant, to the apartment.

RR3: 154. At some point prior to the offense, Andrea saw appellant in the

bathroom holding bullets in his shirt to avoid touching them, and loading them into

a gun. RR3: 175.


      The morning of May 1, Demarrus and Stevon asked her for a ride to “hit a

kick.” RR3: 158. She agreed, and appellant also accompanied them. RR3: 158. En

route to the destination Stevon directed her to, the men discussed who was going to

kick the door open. RR3: 160. She parked a block over from the destination

residence, and sat in her car and waited after the men exited. RR3: 163. A time

later, she saw Demarrus running toward her car with a purse in hand, followed by

Stevon and appellant; appellant was carrying a gun. RR3: 163.


      Back in the car, Stevon looked like he was in shock, Demarrus looked

scared, and appellant looked angry and upset. Appellant said, “I clapped that

nigger.” Further, appellant remarked that “things wouldn’t have happened like that

if everyone had done what they were supposed to.” RR3: 165. Stevon interjected

that what happened was not what was planned. RR3: 187. Andrea drove back to
                                        11
their apartment. RR3: 170. Later, Demarrus left when his brother came to pick

him up; appellant admonished Demarrus not to talk about what had happened.

RR3: 171, 173.

      After Demarrus had left, Andrea agreed to take appellant and Stevon to get

marijuana. RR3: 176. While on that mission, she was stopped by police. RR3: 178.


      According to Marquis in his testimony, he remained in the apartment

throughout the day in question. That morning, he recounted, he arose early to

baby-sit his niece and daughter. RR4: 18. Shortly after he got up, Stevon, Andrea,

and appellant left the apartment. RR4: 19. Later, they returned; Stevon came into

his room and, looking frightened, said, “We had to burn a nigger.” RR4: 21.

Stevon repeated that declaration when Marquis asked what he was talking about.

RR4: 22. Marquis put his daughter to bed, and entered the living room. There,

appellant told him what had happened: Stevon kicked open the door to the victim’s

residence; the victim came running around the corner and appellant shot him; and,

appellant walked inside the residence and shot the victim two more times. RR4: 25.


      Marquis saw a purse between appellant and Andrea; appellant, Stevon, and

Andrea rifled through the purse. RR4: 26. Stevon was wearing Marquis’ Adidas

shoes. R4: 29. That evening, Marquis and Zyrus left the apartment for food. Police

officers intercepted them and took them to the police station. RR4: 32.


                                         12
       In April, 2013, Marquis acknowledged, he, Stevon, and Korntee’s brother

committed an aggravated robbery at a convenience store. RR4: 14. At the time of

the occurrence on trial, police were unaware of Marquis’ involvement in the earlier

robbery. RR4: 17. In the search of the apartment following Marquis’ detention,

evidence was found to partially solve the earlier robbery. RR4: 33. Aided by

counsel, Marquis pled guilty to the April 2013 robbery, and at the time of

appellant’s trial was serving a six-year prison sentence. RR4: 14, 33.


       Less directly, Korntee’s testimony tended to incriminate appellant. The

morning of May 1, Korntee related, she noticed that some of the apartment

occupants were gone when she awoke. She went back to sleep, and upon

awakening again, realized those persons had returned. RR3: 246 Stevon came into

her room “looking terrified.” RR3: 247. Korntee left the apartment for her job, and

later, school. RR3: 247.     When she returned home from school, Stevon and

appellant were talking. Stevon said appellant had shot the gun; appellant was

sitting with a gun on his lap. RR3: 253. Andrea, Stevon, and appellant left. Later,

after Marquis and Zyrus left for food, police officers arrived at the apartment to

execute a search warrant. RR3: 255. Korntee admitted she did not tell police

investigators all she knew because she “didn’t think it was her business.” RR3:

256.



                                         13
      Other evidence incriminating appellant was: a gun was recovered under the

seat where appellant was sitting in Andrea’s car when officers stopped her, RR4:

82; the ammunition in the magazine of that gun was the same brand and caliber as

the ammunition found in a search of the apartment where appellant was staying,

RR4: 96; appellant’s finger and palm prints were recovered from the ammunition

box, RR4: 136; appellant’s fingerprints were found on the gun and its magazine,

RR4: 152; in a recorded telephone conversation with a female appellant identified

as his sister while he was in the Potter County Detention Center, appellant tacitly

admitted to participating in the crime, RR4: 211-12; a Department of Public Safety

expert, after testing, determined that the spent bullets recovered from the murder

scene came from the gun recovered from where appellant was sitting in Andrea’s

car, RR4: 220-22; and, the clothing appellant was wearing when arrested was

similar to what Danielle described as the gunman’s clothes. RR3: 238, State’s

Exhibits 173-178


      Appellant did not testify. Beyond cross-examination of the State’s witnesses,

he presented no evidence in his behalf.




                                          14
                        STATE’S RESPONSIVE POINT

(ADDRESSED TO APPELLANT’S “ISSUES PRESENTED” ONE THROUGH
FOUR (RESTATED):
      No egregious harm to appellant is presented in the jury charge instructions
      relating to accomplice witness testimony, or in the omission of accomplice
      witness instructions for the witnesses Marquis Wilkins and Korntee Fennell.


                                  I.     Background

   The trial court included, either at appellant’s request or with his acquiescence,

an accomplice witness instruction in the jury charge. That instruction was as

follows:


            A conviction cannot be had upon the testimony of an accomplice

      unless the jury first believes that the accomplice’s evidence is true and that it

      shows the defendant is guilty of the offense charged against him, and even

      then you cannot convict unless the accomplice’s testimony is corroborated

      by other evidence tending to connect the defendant with the offense charged,

      and the corroboration is not sufficient if it merely shows the commission of

      the offense, but it must tend to connect the defendant with its commission.


            You are further instructed that mere presence of the accused in the

      company of an accomplice witness shortly before or after the time of the




                                          15
     offense, if any, is not, in itself, sufficient corroboration of the accomplice

     witness’ testimony.


           You are further instructed that while the testimony of an accomplice

     must be corroborated by proof that tends to connect the defendant to the

     crime, the defendant’s knowledge or intent may be established by the

     uncorroborated testimony of the accomplice.


           You are charged that ANDREA BROWN was an accomplice if any

     offense was committed, and you are instructed that you cannot find the

     defendant guilty upon the testimony of ANDREA BROWN unless you first

     believe that the testimony of the said ANDREA BROWN is true and that it

     shows the defendant is guilty as charged in the indictment; and even then

     you cannot convict the defendant unless you further believe that there is

     other evidence in this case, outside the evidence of said ANDREA BROWN,

     tending to connect the defendant with the commission of the offense charged

     in the indictment and then from all the evidence you must believe beyond a

     reasonable doubt that the defendant is guilty.


           An accomplice as the word is here used, means anyone connected

     with the crime charged as a party to the offense.


CR: 56-57; RR5: 17-18.

                                        16
         II.    What Appellant Sees as Egregious Harm From the Charge

   Appellant faults the trial court for not sua sponte giving instructions on the

witness Marquis Wilkins as an accomplice as a matter of law or as a matter of fact.

Further, says appellant, the court should have instructed the jury on witness

Korntee Fennell as an accomplice as a matter of fact. Appellant identifies certain

trial facts, as the State here paraphrases them, as having entitled him to such

accomplice witness instructions:


      - Stevon Polk may have been wearing Marquis’ shoe when kicking in the

         victim’s door and walking in the victim’s blood;

      - Marquis had committed an aggravated robbery a couple of weeks before

         the offense on trial;

      - Marquis “harbored” Stevon Polk at the apartment after the offense;

      - Police initially, upon detaining Marquis, deemed him a suspect;

      - Korntee initially was not forthcoming to police, presumably to protect

         Marquis.


Finally, appellant takes issue with the wording of the accomplice witness

instruction the court did give, as set out above. By the court’s definition, an

accomplice is one who is charged with the offense, appellant points out; implicitly

excluded from being an accomplice, under that definition, is one who could be


                                        17
charged with offense. The consequence, appellant posits, is that the jury would

deem itself foreclosed from considering the possibility a witness other than Andrea

Brown was an accomplice whose testimony required corroboration. The charge

errors he notes allowed the jury to give undue weight to the testimony of Marquis

and Korntee, resulting in egregious harm, appellant submits.


                      III.    Summary of the State’s Response

   No evidence was presented of an affirmative act by either Marquis or Korntee

to assist in the victim’s murder; neither was evidence presented those witnesses

had any involvement as co-conspirators. No basis existed, then, for the trial court

to give accomplice witness as a matter of law or fact instructions as to either

witness, even if such had been requested. Even if, as appellant contends, the

court’s definition of “accomplice” should have also included one who could be

charged with the offense, no error is shown; again, no evidence was advanced any

testifying witness other than Andrea Brown participated in the offense.




                             IV.   Argument and Authority

      Our legislature has provided that




                                          18
                   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. Ann. Art. 38.14 (West 2005).


An accomplice witness instruction is a matter of entitlement if the evidence

supports characterization of a witness as an accomplice. An accomplice witness

instruction under that circumstance is “the law of the case,” not a defensive theory

which is altogether forfeited on appeal if the instruction is not requested at trial.

Zamora v. State, 411 S.W.3d 504, 513 (Tex.Crim.App. 2013).


      In the trial court, appellant did not seek accomplice witness instructions

respecting the witnesses Marquis Wilkins and Korntee Fennell; neither did he

complain about the wording of the accomplice witness instruction the court gave

vis a vis Andrea Brown. To gain a reversal on appeal, then, appellant must show

egregious harm. Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002), citing

Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). Under the egregious

harm standard, omission of an accomplice witness instruction is generally harmless

unless the corroborating (non-accomplice) evidence is ‘so unconvincing in fact as

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


                                         19
persuasive.’ Herron v. State, 86 S.W.3d at 632, citing Saunders v. State, 817

S.W.2d 688, 692 (Tex.Crim.App. 1991).


      Our Court of Criminal Appeals in Zamora v. State succinctly synthesized the

principles governing a trial court’s provision of an accomplice witness instruction:


                   A proper accomplice-witness instruction informs the jury either

             that a witness is an accomplice as a matter of law or that he is an

             accomplice is a matter of fact. Cocke v. State, 201 S.W.3d 744, 747

             (Tex.Crim.App. 2006). The evidence in each case will dictate the type

             of accomplice-witness instruction that needs to be given, if any. Id. A

             witness is an accomplice as a matter of law when the witness has been

             charged with the same offense as the defendant or a lesser-included

             offense, or ‘when the evidence clearly shows that the witness could

             have been so charged.’ Cocke, 201 S.W.3d at 747-48; Druery [v.

             State], 225 S.W.3d [491,] at 499 [Tex.Crim.App. 2007]. For

             accomplice witnesses as a matter of law, the trial court affirmatively

             instructs the jury that the witness is an accomplice and that his

             testimony must be corroborated. See Druery, 225 S.W.3d at 498-99.

             In contrast, when the evidence presented by the parties as to the

             witness’s complicity is conflicting or inconclusive, then the

             accomplice-witness instruction asks the jury to (1) decide whether the
                                         20
             witness is an accomplice as a matter of fact, and (2) apply the

             corroboration requirement, but only if it has first determined that the

             witness is an accomplice. Id.

411 S.W.3d at 510.


      To be considered an accomplice witness, the witness’s participation must

have involved some affirmative act that promotes the commission of the offense

with which the defendant is charged. Druery v. State, 225 S.W.3d at 498. Or, the

evidence must show the witness was involved under a party-conspirator theory.

Zamora v. State, 411 S.W.3d 513.


      A witness is not an accomplice merely because he knew of the offense and

did not disclose it, or even if he concealed it. Druery, 225 S.W.3d at 498.

Evidence must be present the witness did an affirmative act to assist in the

commission of the charged offense to warrant an accomplice witness instruction;

that obtains whether an accomplice as a matter of law or an accomplice as a matter

of fact instruction is sought. Id. at 499.


      Here, no evidence whatever was presented to suggest either Marquis or

Korntee was at the scene during the victim’s murder. Neither was there any

indication in the trial evidence they had participated in any discussion about the

robbery/murder beforehand. Marquis’s allowing Stevon to wear Marquis’s shoe,

                                             21
if that happened, does not implicate Marquis in the offense; nor does his not

ejecting Stevon from the apartment upon learning of the murder. That Marquis,

upon leaving the apartment hours after the murder with Zyrus, was detained by

police is inconsequential; the immediate concern of the officers was to secure the

apartment for execution of a search warrant. Ultimately, after the search of the

apartment, Marquis was arrested for an earlier robbery; but, investigating officers

did not seek to develop a case against him for the instant offense. Likewise,

Korntee’s reluctance to share information when officers questioned her did not

make her an accomplice.


      The essence of Marquis’ and Korntee’s connection to this case was that they

knew the persons who committed the robbery/murder and did not enthusiastically

assist police investigators. That barest of connection did not warrant an accomplice

witness instruction for those witnesses. See Druery v. State, supra, 225 S.W.3d at

499 (accused’s former girlfriend and younger friend were neither accomplices as a

matter of law or as a matter of fact; they were with accused when he killed the

victim and helped dispose of the victim’s body and murder weapon, and received

money from the accused, but did not affirmatively assist in the murder);

Delacerda v. State, 425 S.W.3d 367, 396 (Tex.App. - - Houston [1st Dist.] 2011,

pet. ref’d)( pickup owner, who rode as a passenger, did not demand that the driver

avoid a confrontation with a group of young men, did not interfere with the

                                         22
accused’s get-away, and disposed of shell casings after drive-by shooting; she did

not perform any affirmative act to make her an accomplice); and, McCallum v.

State, 311 S.W.3d 9, 14 (Tex.App. - - San Antonio 2010, no pet.)(accused’s

stepson and wife were not accomplice witnesses in criminally negligent homicide

prosecution; stepson was with accused during assault on victim and disposed of the

victim’s wallet, wife pawned the victim’s bracelet, and both witnesses were

uncooperative with police; still, neither acted affirmatively to promote the offense).


      When the evidence clearly shows a witness is not an accomplice, the trial

court is not required to provide an accomplice witness instruction. Smith v. State,

332 S.W.3d 425, 439-40 (Tex.Crim.App. 2011). Such was the case here; Marquis

and Korntee were not accomplices.        That circumstance     moots the complaint

encompassed in appellant’s fourth “Issue Presented,” in which he contends the

court incorrectly defined the term “accomplice.” See Coutta v. State, 385 S.W.3d

641, 655 (Tex.App. - - El Paso 2012, no pet)(error in including accomplice witness

instruction accused not entitled to was inconsequential).


   By his four “Issues Presented,” appellant has shown no cause for disturbing the

judgment. The Issues should be decided in favor of the judgment.




                                          23
                 CONCLUSION AND PRAYER

WHEREFORE, the State prays that the judgment of conviction be affirmed .


                                          Respectfully submitted,


                                          RANDALL SIMS
                                          District Attorney
                                          Potter County, Texas



                                          __/s/ John L. Owen___

                                          John L. Owen
                                          Assistant District Attorney
                                          Potter County Courts Bldg.
                                          Suite 5A
                                          501 S. Fillmore
                                          Amarillo, Texas 79101
                                          (806) 379-2325
                                          FAX (806) 379-2823
                                          SBN 15369200
                                          jackowen@co.potter.tx.us

                                          Attorneys for the State




                                24
                         CERTIFICATE OF SERVICE

      I hereby certify that on this 22nd        day of December, 2015 a true copy of

the foregoing State’s brief was served on appellant's attorney, John Bennett, at Post

Office Box 19144, Amarillo, Texas 79114, by depositing the same in the United

States Mail, postage prepaid, and by email.




                                                __/s/ John L. Owen___
                                                Assistant District Attorney




                      CERTIFICATE OF COMPLIANCE

      In accordance with Tex.R.App. 9.4 (i)(3), I hereby certify that the foregoing

brief contains, as reflected in the computer word count, 4,424 words. That count

includes word in portions of the brief which, under the Rule, are excluded from the

prescribed word limit. The brief is printed in 14-point typeface.




                                                      __/s/ John L. Owen___
                                                      Assistant District Attorney




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