                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-10-00488-CR


ROBERT JACKSON                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

            FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                      ----------

                           MEMORANDUM OPINION1

                                      ----------

      A jury convicted Appellant Robert Jackson of two counts of aggravated

robbery and sentenced him to forty years’ confinement for each count.          In a

single point, Jackson argues that the trial court erred by omitting an article 38.14

accomplice witness instruction and that he suffered egregious harm. We will

affirm.

      1
          See Tex. R. App. P. 47.4.
      Kelli Richey lives in Oklahoma and has had two children with Jackson. On

September 18, 2009, Richey, Jackson, Rolando Spratt, and Spratt’s girlfriend,

Deyonne, drove from Oklahoma to Dallas in Richey’s Isuzu Ascender to attend a

party. Not long after arriving in Dallas, however, Richey and Deyonne headed

back to Oklahoma with the Isuzu in tow because it had broken down, but they

soon returned to Dallas in Richey’s other vehicle, a white Ford Mustang with

racing stripes, to retrieve Jackson and Spratt.

      On the way back to Oklahoma, the four decided to stop for the night at a

Royal Inn and Suites hotel in Denton. After Richey checked into the hotel, she

and Jackson went to a nearby Dollar General store to look for a shirt. Jackson

remained in the vehicle when Richey went inside. Richey did not find what she

was looking for, and she and Jackson returned to the hotel.

      Soon thereafter, Jackson told Richey to take him and Spratt to the Dollar

General store. They arrived around 9:30 p.m., near closing time, and Richey

waited in the Ford Mustang while Jackson and Spratt went inside. After asking

Colby Nissen, a store employee, about some merchandise, Jackson pulled a gun

on Nissen and told him to take them to the manager’s office, where Janice Foust-

Vallon, the store’s manager, was counting money. Foust-Vallon opened the door

when she heard a knock, and Jackson entered the office, shoved Foust-Vallon to

the ground, and demanded money, pointing the gun at her. Foust-Vallon gave

Jackson the cash that was in the office while Spratt detained Nissen on the floor.




                                         2
Holding the gun to Foust-Vallon’s ribs, Jackson then escorted her to the front of

the store, where she gave Jackson the money from Nissen’s cash register.

Jackson and Spratt left the store, and Foust-Vallon called the police.

      Richie, Jackson, and Spratt returned to the Royal Inn and Suites to pick up

Deyonne before leaving immediately for Oklahoma. Richie later claimed that she

did not know that Jackson and Spratt had robbed the Dollar General until

Jackson said that they had done so during the drive back to Oklahoma.

      Authorities investigating the armed robbery learned that Jackson, Richey,

Spratt, and Deyonne had stayed at the Royal Inn and Suites on September 20,

2009, and they recovered video recordings taken by the hotel’s surveillance

cameras.     Investigators also obtained a surveillance video from the Dollar

General store. Police eventually arrested Richey, Spratt, and Jackson. Like

Jackson, Richey was indicted for aggravated robbery, but she testified against

Jackson at trial in exchange for ten years’ deferred adjudication.

      Jackson argues in his only point that he suffered egregious harm due to

the trial court’s error in failing to include an accomplice witness instruction in the

jury charge at the guilt phase of his trial.

      In our review of a jury charge, we first determine whether error occurred; if

error did not occur, our analysis ends. See Abdnor v. State, 871 S.W.2d 726,

731–32 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26




                                               3
(Tex. Crim. App. 2009). If error occurred, we then evaluate whether sufficient

harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731–32.

      The statutory accomplice witness instruction 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. Ann. art. 38.14 (West 2005). 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. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).

If a prosecution witness is an accomplice as a matter of law, the trial court is

under a duty to instruct the jury accordingly. Herron v. State, 86 S.W.3d 621,

631 (Tex. Crim. App. 2002). Failure to do so is error. Id.

      Here, Richey was indicted for aggravated robbery. Therefore, she was an

accomplice as a matter of law, and the trial court erred by failing to instruct the

jury accordingly. The State impliedly concedes this.

      Having found error in the charge, we must now evaluate whether sufficient

harm resulted from the error to require reversal. See Abdnor, 871 S.W.2d at

731–32. An article 38.14 instruction ―merely informs the jury that it cannot use

the accomplice witness testimony unless there is also some non-accomplice

evidence connecting the defendant to the offense.‖ Herron, 86 S.W.3d at 632.

―Once it is determined that such non-accomplice evidence exists, the purpose of




                                        4
the instruction is fulfilled . . . . Therefore, non-accomplice evidence can render

harmless a failure to submit an accomplice witness instruction by fulfilling the

purpose an accomplice witness instruction is designed to serve.‖ Id.

      ―In determining the strength of a particular item of non-accomplice

evidence, we examine (1) its reliability or believability and (2) the strength of its

tendency to connect the defendant to the crime.‖           Id.   In addressing the

sufficiency of non-accomplice evidence, the court of criminal appeals also

recently stated,

             When reviewing the sufficiency of non-accomplice evidence
      under Article 38.14, we decide whether the inculpatory evidence
      tends to connect the accused to the commission of the offense. The
      sufficiency of non-accomplice evidence is judged according to the
      particular facts and circumstances of each case. The direct or
      circumstantial non-accomplice evidence is sufficient corroboration if
      it shows that rational jurors could have found that it sufficiently
      tended to connect the accused to the offense. So when there are
      conflicting views of the evidence—one that tends to connect the
      accused to the offense and one that does not—we will defer to the
      factfinder’s resolution of the evidence.     Therefore, it is not
      appropriate for appellate courts to independently construe the non-
      accomplice evidence.

Smith, 332 S.W.3d at 442 (footnotes omitted).

      Jackson concedes that he failed to object to the absence of an accomplice

witness instruction; therefore, he must show that he suffered egregious harm

from the error to obtain reversal.      Herron, 86 S.W.3d at 632.        Under the

egregious harm standard, the omission of an accomplice witness instruction is

generally harmless unless the corroborating (non-accomplice) evidence is ―so




                                         5
unconvincing in fact as to render the State’s overall case for conviction clearly

and significantly less persuasive.‖ Id.

      Here, Foust-Vallon identified Jackson at trial as the person who entered

the manager’s office, pointed the gun at her, and demanded money from her

during the robberies.

      Narinder Singh testified that he was the manager on duty at the Royal Inn

and Suites on September 20, 2009, and that he observed two men with Richey

after she checked in. When the State showed Singh several still photographs

from the hotel’s video surveillance, he identified the two men depicted in the

photographs as the same two men who were with Richey at the hotel on

September 20, 2009. One of the men was wearing a white T-shirt with a cross

on it. Singh testified that he went to the Dollar General store to view footage of

the robberies captured by the store’s surveillance video and that the two men

that he observed in the video were the same two men that he had seen with

Richey at the hotel.

      Clint McCoy, an investigator with the Denton Police Department, testified

that he was called to the scene after the robberies and that he viewed the

surveillance videos from both the Dollar General and the Royal Inn and Suites.

McCoy opined that the two men that he saw in the surveillance video from the

Dollar General were the same two men that he saw in the surveillance video from

the Royal Inn and Suites.




                                          6
      Michael Behrens, an officer with the Denton Police Department, testified

that a white Ford Mustang with racing stripes was used in the robberies and that

police in Oklahoma confirmed that a white Ford Mustang was located at Richey’s

house the morning after the robberies. Singh also recalled that Richey and the

others that she was with at the Royal Inn and Suites drove a white Ford Mustang

with stripes.

      When authorities visited Richey at her house in Oklahoma the day after the

robberies, they seized a pair of black, gold, and white shoes. Detective Keith

Martin of the Denton Police Department testified that the shoes looked identical

to the shoes worn by one of the suspects in the surveillance video from the Dollar

General. Detective Martin also testified that he showed Richey photographs of

the two robbery suspects and that she identified the one wearing the T-shirt with

the cross on it as Jackson.

      Accordingly, affording deference to the jury’s resolution of the factual

issues and considering the reliability of the testimony, we hold that the non-

accomplice witness testimony sufficiently tends to connect Jackson to the

aggravated robberies at the Dollar General. We cannot conclude that the non-

accomplice witness evidence was ―so unconvincing in fact as to render the

State’s overall case for conviction clearly and significantly less persuasive‖;




                                        7
therefore, the trial court’s charge error was harmless. See Herron, 86 S.W.3d at

632. We overrule Jackson’s sole point and affirm the trial court’s judgment.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 2, 2012
