                                                                                 ACCEPTED
                                                                            01-14-00656-CR
                                                                   FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                       2/23/2015 9:57:19 AM
                                                                        CHRISTOPHER PRINE
                 No. 1-14-00656-CR                                                   CLERK

                            In the
                      Court of Appeals
                           For the                         FILED IN
                   First District of Texas          1st COURT OF APPEALS
                                                        HOUSTON, TEXAS
                         At Houston
                                                    2/23/2015 9:57:19 AM
                                         CHRISTOPHER A. PRINE
                        No. 1036165                         Clerk
                 In the 209th District Court
                  Of Harris County, Texas
                 
               RONALD ROBINSON,
                         Appellant
                            V.
              THE STATE OF TEXAS
                     Appellee
                 
            STATE’S APPELLATE BRIEF
                 

                                     DEVON ANDERSON
                                     District Attorney
                                     Harris County, Texas

                                     KIMBERLY APERAUCH STELTER
                                     Assistant District Attorney
                                     Harris County, Texas
                                     TBC No. 19141400
                                     stelter_kimberly@dao.hctx.net

                                     LANCE LONG
                                     Assistant District Attorney
                                     Harris County, Texas

                                     1201 Franklin, Suite 600
                                     Houston, Texas 77002
                                     Tel: (713) 755-5826
                                     FAX: (713) 755-5809

                                     Counsel for Appellee

ORAL ARGUMENT REQUESTED ONLY IF GRANTED TO APPELLANT
               STATEMENT REGARDING ORAL ARGUMENT



      Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral

argument is granted to the appellant.


                    IDENTIFICATION OF THE PARTIES



Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Kimberly Aperauch Stelter  Assistant District Attorney on appeal

      Lance Long Assistant District Attorney at trial

Appellant or criminal defendant:

      Ronald Robinson

Counsel for Appellant:

      Ken Goode Counsel on appeal

      Charles Medlin Counsel at trial

Trial Judge:

      J. Michael Wilkinson Presiding Judge




                                         i
                                           TABLE OF CONTENTS
                                                                                                                        Page

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT PRESENTED ................................................ 7

REPLY TO APPELLANT’S FIRST POINT OF ERROR ....................................... 7

   Trial Counsel did not render ineffective assistance of counsel since introduction
   of Mason’s prior conviction was trial strategy and did not prejudice appellant’s
   case. ........................................................................................................................7
REPLY TO APPELLANT’S SECOND POINT OF ERROR ................................ 13

   The trial court did not err in failing to sua sponte give a jury charge on Fuentes
   being an accomplice witness when the evidence did not establish that Fuentes
   was an accomplice either as a matter of law or fact and there was more than
   sufficient corroboration of Fuentes’ testimony. ...................................................13
CONCLUSION ........................................................................................................ 18

CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 19




                                                               ii
                                   INDEX OF AUTHORITIES



CASES
Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh'g) ............................... 15, 19
Blake v. State,
  971 S.W.2d 451 (Tex. Crim. App. 1998) ...................................................... 16, 17
Bone v. State,
  77 S.W.3d 828 (Tex. Crim. App. 2002) .............................................................8, 9
Casanova v. State,
  383 S.W.3d 530 (Tex. Crim. App. 2012) .............................................................20
Druery v. State,
  225 S.W.3d 491 (Tex. Crim. App. 2007) .............................................................18
Ex Parte Hill,
  863 S.W.2d 488 (Tex. Crim. App. 1993) .............................................................12
Ex Parte Imoudu,
  284 S.W.3d 886 (Tex. Crim. App. 2009) ...............................................................8
Ex Parte Martinez,
  330 S.W.3d 891 (Tex. Crim. App. 2011) .............................................................14
Heiman v. State,
 923 S.W.2d 622 (Tex. App.—
 Houston [1st Dist.] 1995, pet. ref'd) .....................................................................13
Herron v. State,
 86 S.W.3d at 621 (Tex. Crim. App. 2002) ...........................................................19
Kunkle v. State,
  771 S.W.2d 435 (Tex. Crim. App. 1986) .............................................................18
Lewis v. State,
  448 S.W.3d 138 (Tex. App.—
  Houston [14th Dist.] 2014, pet. ref’d) ...................................................................21
Mallett v. State
 65 S.W.3d 59 (Tex. Crim. App. 2001) ...................................................................9



                                                     iii
McCallum v. State,
 311 S.W.3d 9 (Tex. App.—
 San Antonio 2010, no pet.)...................................................................................18
Neal v. State,
  256 S.W.3d 264 (Tex. Crim. App. 2008) .............................................................19
Ngo v. State,
  175 S.W.3d 738 (Tex. Crim. App. 2005) .............................................................15
Paredes v. State,
  129 S.W.3d 530 (Tex. Crim. App. 2004) .............................................................17
Roys v. State,
  416 S.W.3d 229, 234 (Tex. App.—
  Amarillo 2013, pet ref'd) ......................................................................................18
Rylander v. State,
  101 S.W.3d 107 (Tex. Crim. App. 2003) ...............................................................9
Saunders v. State,
  817 S.W.2d 688 (Tex.Crim.App.1991) ................................................................20
Strickland v. Washington,
  466 U.S. 668 (1984) .........................................................................................8, 13
Thompson v. State,
  9 S.W.3d at 808, 813 (Tex. Crim. App. 1999) .......................................................9
Thompson v. State,
  915 S.W.3d 897 (Tex. App.—
  Houston [1st Dist.] 2006, pet. ref’d) .....................................................................10
Williams v. State,
 301 S.W.3d 675 (Tex. Crim. App. 2009) ...............................................................8


STATUTES
TEX. CODE CRIM. PROC. 38.14 .................................................................................14


RULES
TEX. R. APP. P. 39....................................................................................................... i
TEX. R. APP. PROC. 44.2 ...........................................................................................12


                                                            iv
TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      Appellant was charged with capital murder (CR.–203). He pled not guilty to

the charge, and the case was tried to a jury (CR. –203). The jury found him guilty

and assessed punishment at life in the Institutional Division of the Texas

Department of Criminal Justice on July 31, 2014 (CR –203). The appellant filed

notice of appeal that same day, and the trial court certified his right to appeal (CR –

206-207).



                            STATEMENT OF FACTS

      Jimmy Sims worked as a machinist, but his passion and hobby was running

a boxing club where he coached young men and boys (RR. II-63). Appellant’s son

Ronnie was a member of the boxing club (RR. II-65, III-87). Appellant’s wife Flor

would take Ronnie to the gym for boxing lessons and became friends with Sims

(RR. III-88). Their relationship progressed beyond friendship, however, and

eventually turned into a long-term affair, lasting several years (RR. III-88).

      Sims’ wife Jeneanne discovered the affair in 1989 (RR. III-70). She

confronted her husband about it, and they agreed to stay together and work on the

marriage (RR. III-71). Appellant also found out about the affair in 1989 (RR. III-

92). Appellant, who had been physically abusive to Flor in the past, escalated the
violence, beating her on a daily basis (RR. III-102). He also called Sims and his

wife several times, and seemed more angry and belligerent as time went on (RR.

III-78).

          Sims and his wife began to receive letters, purporting to come from Flor, 1

that were very sexually explicit (RR. 87, III-90, State’s exhibit No. 42-48).

Appellant also sent a letter, which he signed, insulting Sims for not having any

“guts” and challenging Sims to meet him “in any ring.” (State’s Exhibit no. 49).

Appellant repeatedly came by the Sims’ home and sat outside the house as Sims

left to go to work for his night shift at 10:00 p.m. (RR. III-95). There were several

other incidents where appellant showed up at the Sims’ household threatening

retaliation against Sims or exhibiting threatening behavior (RR. III-102, 105, 107).

The harassment was such that over the course of two years Sims became convinced

that he was going to be killed (RR. III-107).

          On the morning of September 5, 1991, Sims’ premonition came true. He left

for work at the usual time, 10:00 p.m., and Jeneanne saw him off (RR. III-110).

Sims had forgotten his pager, so Jeneanne went inside to get it (RR. IIII-111). As

she was coming back outside she heard gunshots, so she grabbed a pistol that the

family kept on top of the refrigerator (RR. III-111). Once outside she saw her



1
    Flor testified that she never sent any letters to Jimmy or Jeneanne (RR. III-105).

                                                    2
husband lying in the driveway (RR. III-112). Two men were standing over him

firing their guns at him (RR. III-112). They were wearing caps and bandanas, but

Jeneanne could tell they were young and looked to be Hispanic (RR. III-114, 134).

Jeneanne pointed her pistol at the two and told them to leave (RR. III-113). They

pointed their guns at Jeneanne in return, but soon complied and ran off (RR. III-

113).

        Jeneanne did her best to help her husband, but she could not move him due

to his severe injuries (RR. III-115). Help soon arrived and Sims was transported

by Life Flight to the hospital (RR. III-116). Sims died the next day from the

multiple gunshot wounds he received during the attack (RR. III-121, State’s

Exhibit No. 61, R. III-133).

        Jeneanne suspected from the beginning that appellant was responsible for

the shooting, but the investigation seemed to go nowhere (RR. III-116, 123).

Appellant was interviewed, and admitted to writing the letters purporting to come

from his wife, but denied any involvement in Sims’ murder (RR. III-142, 157).

        Nothing new transpired in the investigation for many years, until Officer

Fikaris, who worked cold cases in the homicide division, reopened the case (RR.

III-161, 166). His investigation led to the discovery of several new leads.

        Javier Martinez was one such lead. Javier testified that he was involved in a

gang and a number of criminal activities when he was a teenager back in 1991, but

                                          3
had since straightened out his life (RR. VI-10). Bob Mason, Greg Fuentes and

Jonue Saldivar were part of that gang, and together they sold dope, stole cars, and

fought a lot (RR. VI-8). A few days before September 5, 1991, Mason asked

Martinez to give him a ride over to a park in Northshore (RR. VI-15). Once there,

Martinez watched as Mason went up to a van and got in (RR.VI-17). When he

returned, Mason was carrying an envelope (RR. VI-18). Mason told Martinez that

he had met with Ronnie’s dad, and that Ronnie’s dad wanted him to “hurt

somebody that was having an affair with his wife.” (RR. VI-18).2 Later Martinez

saw Mason with a .45 caliber gun (RR. VI-19). Mason said Ronnie’s dad had

given him the gun as “payment” (RR. VI-20).

       On the day of the murder Mason asked Martinez to drive him and another

friend, Jonue Saldivar, over to Jimmy Sims’ house (RR. VI-21). Martinez let the

two out in an area by Sims’ house and waited (RR. VI-26). He heard gunshots and

then saw Mason and Saldivar running back to the car (RR. VI-27). The two got in

the car, and they all quickly left the scene (RR. VI-29-30). Martinez, not wanting

to get involved, did not ask any questions about what happened (RR. VI-30).

       Greg Fuentes was a friend of Martinez, Mason, and Saldivar and knew them

from having grown up together (RR. VI-135). In late summer or early fall of 1991,



2
  Mason was close friends with appellant’s son Ronnie and had known him since they went to
elementary school together (RR. VI-14).
                                              4
Mason came to Fuentes’ house with black ski masks and gloves (RR. VI-143). He

also asked for Fuentes’ help in getting rid of a gun he had used in a shooting,

though he did not describe any of the details of the shooting at the time (RR. VI-

146-147). Fuentes put Mason in touch with someone who could help him get rid of

the gun (RR. VI-146-147). Fuentes also gave Mason a ride over to appellant’s

house because Mason did not have a car (RR. VI-148). Once there, Mason got out

of the car and walked up to appellant, who was outside his house with his children

(RR. VI-149). Mason told appellant, “I took care of your problem. He’s dead.”

(RR. VI-149). Appellant told one of his kids to go inside and bring him his wallet

(RR. VI-149). When he got his wallet, appellant gave Mason some money (RR.

VI-150). As they drove off, Fuentes tried to question Mason about what was

meant by “he’s dead,” but Mason just shook his head and didn’t say much about it

(RR. VI-150).

       Mason did, however, talk to Kim Conroy,3 his ex-girlfriend at the time (RR.

VI-176). Appellant told Conroy that he and Saldivar had shot a man who had been

having an affair with Ronald Robinson’s wife and that he had been paid $1,000

and a gun to commit the killing (RR. VI-186 187). Mason described details of the

crime, including where it occurred, the man’s wife being present, and how he had


3
 At the time of the crime Kim Martinez was known by her maiden name, Kim Conroy (RR. III-
172). The State will use her maiden name in this statement of facts to avoid any confusion with
another witness, Javier Martinez
                                               5
shot the man at night when the man was coming out of his house (RR. VI-186).

Mason told Conroy that appellant’s son Ronnie had brokered the deal (RR. VI-

188).

        A few weeks later Saldivar was killed while attending a party (RR. VI-31).

Martinez, Fuentes, Mason and another friend flew down to the valley to attempt a

revenge killing (RR. VI-31-32). On their way back, Officer Furstenfeld happened

to question the group at the airport because he suspected that they might be drug

dealers (RR.III-190). Furstenfeld did not find any drugs on the men, but did

recover two .45 caliber guns. He also found an editorial about the drive-by

shooting of Jimmy Sims in Mason’s pocket (RR. III-196).4 Furstenfeld was not

conducting a murder investigation, but he thought the article was significant, so he

copied it and kept it in his files until someone from the district attorney’s office

called him about the case in 2005 (RR. III-196-197).

        Israel Guerra worked with appellant from 1999 to 2004, several years after

Sims’ murder (RR. VI-66). During the time they worked together, appellant often

angrily talked about his ex-wife having an affair with Jimmy Sims (RR. IV-67).

Guerra asked if appellant was the one who killed Sims (RR. VI-72). Appellant just

smiled and said “no” in a way which led Guerra to believe that appellant had


4
 Appellant gave the false name of Robert Garcia to Officer Furstenfeld, but Javier identified a
photo of Robert Garcia, taken by Furstenfeld at the time, as being Bob Mason, and the tattoo on
“Garcia’s” neck matched Mason’s tattoo (RR. VI-33-34).
                                               6
something to do with the murder. When Guerra asked him who killed Sims,

appellant told him it was one of his son’s friends (RR. IV-73).



           SUMMARY OF THE ARGUMENT PRESENTED

      Trial counsel did not provide ineffective assistance of counsel when it could

have been trial strategy to introduce evidence of Mason’s conviction for capital

murder and where introduction of such evidence did not prejudice appellant. The

trial court did not err in failing to give an accomplice witness instruction on Greg

Fuentes since Fuentes was not an accomplice witness as a matter of law or fact.

Even if an accomplice witness instruction had been warranted, appellant has shown

no harm, since there was ample independent corroboration tying appellant to the

commission of the crime.



            REPLY TO APPELLANT’S FIRST POINT OF ERROR

      Trial Counsel did not render ineffective assistance of counsel since
introduction of Mason’s prior conviction was trial strategy and did not
prejudice appellant’s case.


      Appellant claims that his counsel was ineffective for allowing and

introducing into evidence the fact that Bob Mason was charged and convicted of

capital murder in relation to this case.



                                           7
Standard of Review on Ineffective Assistance of Counsel

      To show ineffective assistance of counsel, a defendant must demonstrate

both (1) that his counsel’s performance fell below an objective standard of

reasonableness and (2) that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668 (1984); Ex Parte Imoudu, 284 S.W.3d 886,

869 (Tex. Crim. App. 2009). Failure to make either one of these required showings

defeats an ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex.

Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the Strickland

test negates a court’s need to consider the other prong.”).

      Courts indulge a strong presumption that counsel’s conduct fell within the

wide range of reasonable professional assistance; therefore, appellant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Williams, 301 S.W.3d at 687. This review is highly deferential to

counsel, and courts do not speculate regarding counsel’s trial strategy. Bone v.

State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To prevail on an ineffective

assistance claim, the appellant must provide an appellate record that affirmatively

demonstrates that counsel’s performance was not based on sound strategy. Mallett

v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001);Thompson v. State, 9 S.W.3d at

                                          8
808, 813 (Tex. Crim. App. 1999) (holding that record must affirmatively

demonstrate alleged ineffectiveness). Because the reasonableness of trial counsel’s

choices often involves facts that do not appear in the appellate record, the Court of

Criminal Appeals has stated that trial counsel should ordinarily be given an

opportunity to explain his actions before a court reviews that record and concludes

that counsel was ineffective. See Rylander v. State, 101 S.W.3d 107, 111 (Tex.

Crim. App. 2003); Bone, 77 S.W.3d at 836; Mitchell v. State, 68 S.W.3d 640, 642

(Tex. Crim. App. 2002).

      Appellant has not Rebutted the Presumption of Sound Trial Strategy

      Mason never testified, although he was brought into the courtroom for

identification purposes (RR. III-176, VI-188). What Mason said and how he acted

after the crime, however, was a major part of the State’s case against appellant. For

example, the State presented evidence that Mason met with appellant, claimed to

have received a gun from him, and told his ex-girlfriend that appellant hired him to

commit the murder.

      The evidence against Mason was strong, and his comments to others about

appellant’s involvement were uncontradicted. As a result, defense counsel never

tried to establish Mason’s innocence or to argue that Mason did not implicate

appellant. Rather, counsel’s trial strategy was to argue that the evidence tying

appellant to the crime came primarily from Mason, that Mason was not credible,

                                         9
and that Mason had some ulterior motive in implicating appellant (RR. V-12, 21-

22).

       Closing argument is one of the areas where trial strategy is most evident.

Thompson v. State, 915 S.W.3d 897, 903 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) This case is no exception, as counsel repeatedly stressed Mason’s lack

of credibility and bias in closing:

             I think we can all agree that [Mason] was a career criminal – is a
             career criminal, a lifelong gang member. He’s out only for only
             himself. He’s a liar and a drug dealer, a thief, and a murderer. You
             probably can’t name a crime that he hasn’t done. And now the
             Government is asking you to make him the keystone on convicting
             Ronald Robinson based on what he said to other people. And it’s up
             to y’all, up to you. What do you do with the hearsay statements from
             a liar, killer? Do you use it to convict [appellant] or do you take it as
             the words of someone that’s a liar and a criminal, and that you have to
             be cautious with how you evaluate it? (RR. V-21).

       Counsel then compared the State’s case to an inverted pyramid, with Mason

and Fuentes being the cube on which the entire State’s case was based, and argued

again that Mason’s statements to others were not credible:

             If you have a reasonable doubt as to the credibility of [Mason] as a
             source of information, that he could have his own agenda, that he
             could say, oh, wouldn’t it be terrible if he said something bad about
             someone else and it wasn’t true? Is he capable of telling a lie about
             somebody else? What do you think? Do you think he would hesitate?
             Do you think that perhaps he was mitigating himself, that he was
             making himself into some kind of hero? I don’t know. He had his
             own agenda. That’s what we all know about him, and if you find him
             to be credible, then that’s a conviction, but if you doubt – if you have
             doubts about that credibility, those are reasonable doubts and you
             have to find [appellant] not guilty. (RR. V-23).
                                         10
       That Mason had been convicted of and was serving a life sentence for Sims’

murder did not contradict defense counsel’s theory that Mason had been lying to

everyone about appellant’s involvement. It merely showed that this lie, which

appellant would have had no reason (or likely opportunity) to contest at Mason’s

trial, had been Mason’s explanation of the crime all along. This fact was already

established by Kim Conroy’s testimony, and dovetailed nicely with counsel’s

argument that Mason was a professional hit man who had his own agenda in

claiming appellant’s involvement.5

       Appellant cites Ex Parte Hill, 863 S.W.2d 488 (Tex. Crim. App. 1993), for

the proposition that opening the door to a co-defendant’s conviction for the same

offense constitutes ineffective assistance of counsel (Appellant’s brief, p. 12). Hill,

however, involved an entirely different scenario, where the co-defendant was being

called as an alibi witness, but in fact had entered a plea of guilty to the offense

prior to trial. Ex Parte Hill, 863 S.W.2d at 489. Furthermore, there was a

developed record in that case establishing that defense counsel failed to investigate

whether this witness had pled guilty prior to trial. Id. (“Trial counsel, while having

the affirmative duty to investigate, failed to inquire into the witness’s status

regarding the offense”). In the instant case, the trial strategy was exactly the


5
 “I think he probably is [a professional hit man.] But what you have to decide is, does that
credential make him a believable source of information because that’s what this case really
comes down to. (RR. V-12) (emphasis added).
                                               11
opposite. Defense counsel knew of Mason’s conviction and used it to fit in with

his theory of Mason having his own agenda in claiming appellant’s involvement in

this case. Introduction of this evidence was clearly a deliberate choice of trial

strategy. Heiman v. State, 923 S.W.2d 622 (Tex. App.—Houston [1st Dist.] 1995,

pet. ref’d) (finding failure to object to extraneous offenses could have been sound

trial strategy where there was no record to indicate otherwise and evidence could

have arguably supported defense theory of victim being less credible).


         Appellant cannot show he was prejudiced, and thus has not met his
             burden of showing ineffective assistance of counsel.

      Even if appellant had presented a record establishing that there was no trial

strategy for the introduction of Mason’s capital murder conviction, he would fail

under the second prong of Strickland. The Strickland prejudice prong presents a

more difficult burden than does the harm analysis under TEX. R. APP. PROC. 44.2,

requiring that the reviewing court look to the totality of the circumstances and

evidence presented to determine if there is a reasonable probability that, but for

counsel’s deficient performance, the result of the proceeding would have been

different. Ex Parte Martinez, 330 S.W.3d 891, 903 (Tex. Crim. App. 2011).

      Evidence of appellant’s guilt in this case was strong, from his motive to the

method. Ex Parte Martinez, 330 S.W.3d 904 (finding it unlikely, given ample

evidence of the defendant’s guilt, that the jury would have reached a different


                                        12
conclusion despite the introduction of inadmissible evidence). Furthermore, the

charge instructed the jury that “[A]ny evidence that any witness has been convicted

in any case or cases was admitted before you for the purpose of aiding you, if it

does aid you, in passing upon the credibility of the witness and the weight to be

given his or her testimony, and you will not consider the same for any other

purpose.” (CR. 196)(emphasis added). Defense counsel stressed this page of the

charge in his closing argument (RR. V-13).       Appellant has not met the second

prong of the Strickland test.

      For all the above reasons, appellant’s first point of error is without merit and

should be overruled.



        REPLY TO APPELLANT’S SECOND POINT OF ERROR

The trial court did not err in failing to sua sponte give a jury charge on
Fuentes being an accomplice witness when the evidence did not establish that
Fuentes was an accomplice either as a matter of law or fact and there was
more than sufficient corroboration of Fuentes’ testimony.


      Claims of jury charge error are reviewed under a two-pronged test. Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). The first

determination is whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex.

Crim. App. 2005). If error exists, the reviewing court should then evaluate the

harm caused by that error. Ngo, 175 S.W.3d at 743. The degree of harm required

                                         13
for reversal depends on whether error was preserved in the trial court. When error

is preserved in the trial court by timely objection, the record must show only “some

harm.” Almanza, 686 S.W.2d at 171. If error was not objected to, then it must be

“fundamental error” and requires reversal only if it was so egregious and created

such harm that the defendant has not had a fair and impartial trial. Id. In the instant

case, counsel did not object, and so the “fundamental error” test applies.

       Art. 38.14 of the Texas Code of Criminal Procedure provides that a

conviction may not be obtained on the uncorroborated testimony of an accomplice

to the crime. TEX. CODE CRIM. PROC. 38.14. A person is considered an accomplice

as a matter of law if he could be prosecuted for the same offense as the defendant

or for a lesser included offense. Blake v. State, 971 S.W.2d 451, 454–55 (Tex.

Crim. App. 1998). If the evidence is conflicting, it is proper to leave the question

of whether an inculpatory witness is an accomplice witness as a matter of fact to

the jury under instructions defining the term accomplice. Id

      In the case at hand, the jury was instructed on the law of accomplice witness

testimony as it applied to Javier Martinez (CR.-192). Specifically, the jury was

instructed that Javier Martinez was an accomplice witness as a matter of fact, and

that they could not convict appellant unless they found that there was other

evidence, outside that of Javier Martinez’ testimony, which tended to connect

appellant with the offense committed (CR.-192-193). Such an instruction was

                                          14
proper, since Martinez knew that Mason planned to kill or harm Jimmy Sims,

drove Mason and Saldivar to the scene of the crime, and quickly drove them away

from the scene after the shooting.

      Greg Fuentes, by contrast, did not commit any act raising the issue of

whether he was an accomplice, and so the trial court did not err in failing to give

an accomplice witness charge regarding this witness The fact that Fuentes was

close friends with Mason, that he had committed other crimes with Mason, and that

he had been convicted of other non-related crimes was irrelevant, since an

accomplice’s participation must involve an affirmative act that promotes the

commission of the charged offense. Paredes v. State, 129 S.W.3d 530, 536 (Tex.

Crim. App. 2004).

      Nor do any actions taken by Fuentes after the murder serve to establish him

as an accomplice witness. Fuentes testified Mason asked for a ride over to

appellant’s house. When he arrived, Fuentes heard Mason tell appellant “I took

care of your problem. He’s dead” and saw appellant give Mason some money.

Fuentes, however, did not know who Mason had shot, or what the meeting was

about (RR. 147, 150). Specifically, Fuentes testified that “[w]henever we left and I

turn around and said ‘he’s dead,’ questioning it and he kind of shook his head and

like yeah, didn’t say much about it.” (RR. VI-150). While Fuentes might have

known from Mason’s comments and actions that a crime was committed, this does

                                        15
not make him an accomplice to the crime. Blake v. State, 971 S.W.2d at 454–455

(“[O]ne is not an accomplice for knowing about a crime and failing to disclose it,

or even concealing it.”); see generally Kunkle v. State,771 S.W.2d 435, 439 (Tex.

Crim. App. 1986) (discussing what acts do not rise to the level entitling one to an

instruction on accomplice witness as a matter of fact). Similarly, while Fuentes

later put Mason in touch with someone that could help him get rid of a gun, this

did not make him an accomplice to the capital murder of Sims (RR. III-146-147).

Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (witnesses who were

present at offense and assisted in disposal of murder weapon were not accomplices

because they committed no affirmative act promoting commission of the offense);

see also McCallum v. State, 311 S.W.3d 9, 14 (Tex. App.—San Antonio 2010, no

pet.) (witness who disposed of evidence after the crime not an accomplice); Roys v.

State, 416 S.W.3d 229, 234 (Tex. App.—Amarillo 2013, pet ref’d) (same).

      Even if the trial court had been required to give an instruction on Fuentes

being an accomplice witness, reversal would not be required. Since there was no

objection to the charge, appellant must establish “egregious harm” such that

appellant was denied a “fair and impartial trial.” Neal v. State, 256 S.W.3d 264,

278 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171. A determination of

egregious harm requires an examination of “the entire jury charge, the state of the

evidence, including the contested issues and weight of probative evidence, the

                                        16
argument of counsel and any other relevant information revealed by the record of

the trial as a whole.” Id. Under this standard, improper omission of an accomplice

witness instruction is generally considered 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 persuasive.” Herron v. State, 86

S.W.3d at 621, 632 (Tex. Crim. App. 2002) (quoting Saunders v. State, 817

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

      In the present case, the non-accomplice evidence consisted of: (1)

appellant’s continued threatening behavior toward Sims over a period of two years

(2) evidence that appellant knew Sims’ schedule and repeatedly appeared outside

his home at the time he left for work, which corresponded to the time of the

shooting (3) Kim Conroy’s testimony that Mason told her appellant had hired him

to commit the murder (4) appellant’s statement to his co-worker Israel Guerra that

the victim was killed by his son’s friend, and (5) Mason’s possession of a

newspaper clipping regarding the murder, found in Mason’s pocket a few weeks

after the shooting. These five pieces of evidence are more than sufficient to

corroborate the accomplice witness’ testimony and connect appellant to the

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

(finding no egregious harm from the absence of an accomplice witness

instruction); Lewis v. State, 448 S.W.3d 138 (Tex. App.—Houston [14th Dist.]

                                        17
2014, pet. ref’d) (same). Appellant’s second and final point of error is without

merit, and should be overruled.


                                  CONCLUSION

      It is respectfully submitted that all things are regular and the conviction
should be affirmed.
                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas

                                                 /s/ Kimberly Aperauch Stelter
                                                 KIMBERLY APERAUCH STELTER
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 TBC No. 19141400
                                                 stelter_kimberly@dao.hctx.net




                                       18
             CERTIFICATE OF SERVICE AND COMPLIANCE

      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 4,320 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

      Ken Goode
      Attorney at Law
      P.O. Box 590947
      Houston, Texas 77259
      Goodedke@msn.com


                                                  /s/ Kimberly Aperauch Stelter
                                                  KIMBERLY APERAUCH STELTER
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  TBC No. 19141400
     February 11, 2015                            stelter_kimberly@dao.hctx.net




                                       19
