                                     In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                             _________________

                              NO. 09-17-00129-CR
                              NO. 09-17-00130-CR
                             _________________

                MICHAEL CHARLES MCCARTY, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
________________________________________________________________________

                   On Appeal from the 75th District Court
                           Liberty County, Texas
                  Trial Cause No. CR31891 (Counts 1 and 2)
________________________________________________________________________

                         MEMORANDUM OPINION

      In a single indictment, the State charged Michael Charles McCarty with two

counts of abuse of official capacity stemming from a series of incidents between

January 1, 2013 and January 1, 2015. Both counts of the indictment alleged abuse of

official capacity in an ongoing scheme or course of conduct. See Act of May 29,

1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 39.02, 1993 Tex. Gen. Laws 3586, 3673–


                                        1
74, amended by Act of May 11, 2009, 81st Leg., R.S., ch. 82, § 1, 2009 Tex. Gen.

Laws 127, 127 (amended 2015) (current version at Tex. Penal Code Ann. § 39.02

(West 2016)).

      Count One of the indictment alleged McCarty misused government personnel

and Count Two alleged McCarty misused government property. Both counts

included specific instances of alleged misuse with values greater than $1,500.00 but

less than $20,000.00. McCarty pleaded not guilty. A jury convicted McCarty on both

counts and determined the value was between $20.00 and $500.00 on each count

which, at the time, was a Class B misdemeanor. See 1993 Tex. Gen. Laws at 3673,

amended by 2009 Tex. Gen. Laws at 127.1 McCarty received a six-month probated

sentence on each count and a fine of $2,000.00. McCarty now appeals.

      McCarty raises these issues on appeal2: (1) The evidence is insufficient to

prove McCarty intentionally or knowingly misused government property or


      1
         The values of misuse and their associated punishments were amended in
2015. See Act of May 31, 2015, 84th Leg., R.S., ch. 1251, § 28, 2015 Tex. Sess. Law
Serv. 4208, 4219–20. Because the amendment directs that it applies only to offenses
committed on or after the effective date of the act, September 1, 2015, and the date
that the commission of any of the elements occurred was prior to the effective date,
in addition to, because the defendant was charged with violating the statute pursuant
to one scheme or continuing course of conduct, we apply the prior law in effect
before the 2015 amendment. See Act of May 31, 2015, 84th Leg., R.S., ch. 1251, §§
30(a), 31, 2015 Tex. Sess. Law Serv. 4208, 4220–21.
       2
         McCarty raises eight issues on appeal, but there are essentially four identical
issues for each count.
                                          2
personnel; (2) the trial court reversibly erred in refusing his requested accomplice-

witness instruction on both counts for Jo Carol Bolt; (3) the trial court reversibly

erred in refusing his request for an accomplice-witness instruction for David Murphy

on both counts; and (4) the trial court erred in denying his motion to quash the

indictment for both counts. We reverse the trial court’s judgment.

                                  I. Background

      McCarty was elected as Liberty County Commissioner of Precinct 1 and took

office in January 2013. By all accounts, he had a more hands-on management style

than prior Precinct 1 Commissioners. Before taking office, McCarty owned several

oilfield service businesses. When he took office, only one of these businesses,

Triangle Petroleum (Triangle), was still operating. Triangle’s operations included a

disposal well where trucks from surrounding oilfields deposited saltwater and

drilling waste. The only person Triangle paid during this time was Clair “Buck”

Gordon. Gordon performed duties for Triangle and helped with McCarty’s small

farming operation.

      Gordon began working for McCarty as a truck driver in 1989 when Triangle

included a trucking operation. Over the years, there were periods where Gordon

worked part-time for McCarty, periods where he worked full-time for McCarty, and



                                         3
yet other times where he was not working for McCarty at all. Every few years,

Gordon would go work elsewhere.

      McCarty became ill in 2010 and was hospitalized from August until

November. McCarty continued receiving treatment for a year after he was

discharged from the hospital. While McCarty was sick, Gordon took care of the

disposal well and farm for him. This was Gordon’s only employment, and McCarty

paid him twenty dollars per hour weekly. McCarty and his wife both wrote checks

to Gordon over the years and did not require detailed time reporting. Gordon told

the McCartys his hours, and they wrote him a check.

      McCarty ultimately recovered and decided to run for commissioner, which

became his primary occupation. McCarty’s election campaign was time-consuming

and took him away from his business and his farm. During the campaign, Gordon

continued taking care of the farm and disposal well. The disposal business eventually

slowed with the downturn of the oil market. Gordon testified McCarty paid him less

regularly during this period, and he voiced these concerns to McCarty. When

McCarty became commissioner, Gordon claimed McCarty owed him $13,000.00 for

work done previously. At trial, however, McCarty testified he did not owe Gordon

any money, and instead, advanced him money sometimes in the past. McCarty

claimed he paid Gordon an extra $200 per week for almost a year. He also asserted

                                         4
he had given Gordon a lawnmower valued at $3,000.00 he expected Gordon to work

off. Contrary to this, McCarty admitted at trial he told the Texas Ranger during the

investigation he owed Gordon about $3,000.00. Gordon eventually went to work for

the county as a “contract employee” for Precinct 1. 3

        Following an investigation by the Texas Rangers, McCarty was indicted. The

specific charges for misuse of government personnel in the amended indictment

were:

        Directing Liberty County personnel to perform tasks related to and in
        furtherance of the Defendant’s private enterprise known as Triangle
        Petroleum Service, thereby resulting in a personal benefit to Defendant,
        and/or

        Directing Liberty County personnel to perform tasks related to and in
        furtherance of the Defendant’s private farming/ranching enterprise,
        thereby resulting in a personal benefit to Defendant, and/or

        Directing Liberty County personnel to purchase supplies and transport
        said supplies to Defendant’s private enterprise known as Triangle
        Petroleum Service, thereby resulting in a personal benefit to Defendant,
        and/or

        Directing Liberty County personnel to perform administrative tasks
        related to or in furtherance of the Defendant’s private enterprise known
        as Triangle Petroleum Service, thereby resulting in a personal benefit
        to Defendant, and/or



        3
        Witnesses, including Gordon and McCarty, consistently referred to Gordon
as a “contract employee.” That said, the county auditor and accountant indicated the
county incurred penalties from the IRS related to Gordon’s employment status.
                                          5
Directing Liberty County personnel to perform repairs on non-
government equipment belonging to Randy Humber, a personal friend
of the Defendant, and/or

Directing Liberty County personnel to perform tasks related to a private
birthday celebration while on county time and while being
compensated as county employees with no benefit to Liberty County;
to wit: delivering supplies and equipment in preparation for the birthday
celebration and retrieving same after the fact, and/or

Directing Liberty County personnel to perform repairs on a vehicle and
or non-government equipment belonging to the Defendant, thereby
resulting in a personal benefit to Defendant, and/or

Directing Liberty County personnel to transport personal cooking
equipment belonging to the Defendant, including numerous barbeque
pits owned by the Defendant to be utilized at a Chamber of Commerce
event thereby resulting in a personal benefit to Defendant, and/or

Directing Liberty County personnel to use equipment belonging to
Liberty County to grade or otherwise improve a private road that
provides access to the Defendant’s private property, thereby resulting
in a personal benefit to Defendant, . . .

THAT HAD COME INTO DEFENDANT’S POSSESSION OR
CUSTODY BY VIRTUE OF HIS OFFICE OR EMPLOYMENT,
AND THE VALUE OF THE MISUSED THING WAS greater than
$1,500 but less than $20,000,

And the MISUSE OF GOVERNMENT PERSONNEL was conducted
pursuant to one scheme or continuing course of conduct which began
on or about the 1st day of January 2013 and continued until on or about
the 1st day of January 2015[.]




                                   6
        The acts charged as misuse of government property in the amended indictment

were:

        Directing Liberty County personnel to use a county-owned motor
        vehicle and or a truck to perform tasks related to and in furtherance of
        the Defendant’s private enterprise known as Triangle Petroleum
        Service, thereby resulting in a personal benefit to Defendant, and/or

        Directing Liberty County personnel to use a county-owned motor
        vehicle and or a truck to perform tasks related to and in furtherance of
        the Defendant’s private farming/ranching enterprise, thereby resulting
        in a personal benefit to Defendant, and/or

        Directing Liberty County personnel to purchase supplies and use a
        county-owned motor vehicle and or a truck and trailer to transport said
        supplies to Defendant’s private enterprise known as Triangle Petroleum
        Service, thereby resulting in a personal benefit to Defendant, and/or

        Directing Liberty County personnel to use county-owned tools and or
        equipment to perform repairs on non-government equipment belonging
        to Randy Humber, a personal friend of the Defendant, and/or

        Directing Liberty County personnel, to use a county-owned motor
        vehicle and or a truck to perform tasks related to a private birthday
        celebration while on county time and while being compensated as
        county employees with no benefit to Liberty County; to wit: delivering
        supplies and equipment in preparation for the birthday celebration and
        retrieving same after the fact, and/or

        Directing Liberty County personnel to use county-owned tools and or
        equipment to perform repairs on a vehicle and or non-government
        equipment belonging to the Defendant, thereby resulting in a personal
        benefit to Defendant, and/or

        Directing Liberty County personnel, to use a county-owned motor
        vehicle and or a truck and trailer to transport personal cooking
        equipment belonging to the Defendant, including numerous barbeque
                                        7
      pits owned by the Defendant to be utilized at a Chamber of Commerce
      event, thereby resulting in a personal benefit to Defendant, and/or

      Directing Liberty County personnel to use county-owned fuel to fill the
      fuel tank of a personal vehicle belonging to the Defendant, thereby
      resulting in a personal benefit to Defendant, and/or

      Directing Liberty County personnel to use county-owned fuel to fill the
      fuel tank of a personal vehicle belonging to Randy Humber, a friend of
      the Defendant, and/or

      Directing Liberty County personnel to use a motor grader belonging to
      Liberty County to grade or otherwise improve a private road that
      provides access to the Defendant’s private property, thereby resulting
      in a personal benefit to Defendant, . . .

      THAT HAD COME INTO DEFENDANT’S POSSESSION OR
      CUSTODY BY VIRTUE OF HIS OFFICE OR EMPLOYMENT,
      AND THE VALUE OF THE MISUSED THING WAS greater than
      $1,500 but less than $20,000,

      And the MISUSE OF GOVERNMENT PROPERTY was conducted
      pursuant to one scheme or continuing course of conduct which began
      on or about the 1st day of January 2013 and continued until on or about
      the 1st day of January 2015[.]

      Several Liberty County Precinct 1 employees and former employees testified

at trial including Gordon, Jo Carol Bolt, John Boston, Koby Box, Kenneth Etheridge,

Randy Humber, James Lartigue, David Murphy, Edward Tanner, and McCarty.

Other county employees who testified included the County Treasurer, Precinct 2

Commissioner, and former County Auditor.



                                        8
      At trial, Gordon testified McCarty had him run errands for Triangle in county

vehicles on county time. Gordon also testified when he began doing contract labor

for the county, McCarty instructed him to keep his county time and Triangle time

separate. After several months working for the county, Gordon testified McCarty

told him to stop segregating his time and submit it all through the county, even

though he continued to perform work for McCarty personally. McCarty disputed

this. McCarty’s secretary, Jo Carol Bolt, testified she noticed irregularities in

Gordon’s time sheets. Even though the County employees worked Monday through

Thursday of each week, Bolt noticed Gordon turned in time for purported work on

Fridays, Saturdays, and Sundays. Bolt testified Gordon at times came in late because

he had to go to the farm or disposal well for McCarty, but McCarty instructed Bolt

to report Gordon’s start time at 7:00 a.m. Bolt also recalled Gordon occasionally

taking county vehicles to attend to McCarty’s private business.

      Several witnesses testified that McCarty directed county employees to retrieve

and deliver equipment he owned to a birthday party. There was conflicting evidence

as to whether county employees delivered the equipment while on county time and

using county vehicles. McCarty denied the employees set up for the birthday party

while on county time but recalled them setting up for the party on a Friday, since

everyone agreed the party occurred on a Saturday. He also denied county employees

                                         9
used a county truck or trailer to do so. Even so, McCarty admitted in his testimony

he had county employees retrieve party supplies the following Monday during a

regular work day. Box testified he spent the better part of the Monday following the

party to tear down and clean the equipment.

      Misuse of county fuel was another issue at trial. Gordon testified McCarty had

him put county fuel in his personal vehicle. Although McCarty denied putting fuel

in his personal vehicle as often as Gordon said, he corroborated a portion of

Gordon’s testimony by admitting he put county fuel in his personal vehicle after

hauling heavy loads for the county with his personal truck. McCarty also admitted

he had Gordon put three gallons of county fuel in Gordon’s personal vehicle once,

even though it went against county policy. McCarty’s justified his action because

Bolt sent Gordon to retrieve automotive parts for the county in his personal vehicle.

      There were various allegations McCarty used county equipment for personal

errands. McCarty admitted at trial he used a county trailer to haul bales of hay from

Beaumont to his property, and he was aware the people of Liberty County owned

that equipment. A State witness also testified about the typical daily rates charged to

rent trailers and other equipment.

      Finally, there were allegations McCarty instructed a county employee to grade

a private road going to Triangle’s disposal site with a county-owned road

                                          10
maintainer.4 McCarty, county employee Edward Tanner, the investigating Texas

Ranger, a mechanic who repaired the grader, the county clerk, and Liberty County

Precinct 2 Commissioner testified about this incident. According to county

employee Edward Tanner, McCarty called him into his office and told him to pick

up the maintainer from a mechanic. McCarty also directed Tanner to test it for leaks

by performing a light grade on a rock road across the street from the mechanic’s

shop. Tanner found it odd that McCarty shut his office door when he gave these

instructions. Tanner testified he made three passes down the road where McCarty

told him to test the machine. Tanner suggested that normally when maintaining a

road, he would make six passes but asserted he was not there to maintain it. Instead,

he was only checking for oil leaks. Tanner’s testimony about the need to check the

equipment for leaks tracked the testimony of McCarty and the mechanic.

      Tanner testified that when he tested the maintainer, he did not know whether

the road was a county road. But after Tanner tested the equipment, Bolt advised him

the road was private and belonged to McCarty. McCarty subsequently asked Tanner

if he told anyone what he did. According to Texas Ranger Ryan Clendennen,

McCarty admitted he instructed an employee to grade a road in the area, which

Ranger Clendennen determined led to the Triangle disposal well site. There was


      4
          Witnesses also referred to this piece of equipment as a “grader.”
                                            11
conflicting testimony from the Precinct 2 Commissioner and the County Clerk about

whether the road at issue was private or county owned. The County Clerk asserted

it was a public road based on maps of the area, while the Precinct 2 Commissioner

testified it was a private road and never maintained by the county. The Precinct 2

Commissioner also testified he was aware of a “no trespassing” sign on the road.

McCarty acknowledged at trial he told the Ranger and the grand jury he believed it

was a private road. McCarty also agreed he may have told the Ranger “[p]art of me

said maybe technically we shouldn’t do this” about the road maintainer.

      In the charge, the trial court instructed the jury that Gordon was an accomplice

witness as a matter of law on both counts, and his testimony required corroboration

before they could consider it. The trial court also instructed the jury that if they

determined Box was an accomplice witness, his testimony must be corroborated as

well. McCarty requested the trial court to include witnesses Bolt and Murphy in the

accomplice witness instruction given for Box, but the trial court denied his request.

      The jury convicted McCarty on both counts, the first of misusing county

personnel and the second of misusing county property. The jury determined the

value to be between $20 and $500 on both counts.




                                         12
                                    II. Analysis

A. Issues One and Two: Legal Sufficiency

      In his first two issues, McCarty argues the evidence is insufficient to prove he

intentionally or knowingly misused government personnel or property. See Tex.

Penal Code Ann. § 39.02(a)(2). When there is a challenge to the sufficiency of the

evidence, we review the evidence in the light most favorable to the verdict to

determine whether any rational factfinder could have found the essential elements

of the offense beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895,

912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307 (1979))

(concluding the Jackson standard “is the only standard that a reviewing court should

apply” when examining the sufficiency of the evidence); Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). We look to all evidence in the record,

including admissible and inadmissible evidence, and direct and circumstantial

evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The jury

is the sole judge of the witnesses’ credibility and weight to be given to their

testimony. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Juries may

draw multiple reasonable inferences from facts so long as each inference is

supported by the evidence presented at trial. Id. Accordingly, we must defer to the



                                         13
jury’s determinations of weight and credibility of the witnesses. See Brooks, 323

S.W.3d at 899.

      McCarty admitted to putting county fuel in personal vehicles and

acknowledged it went against county policy. McCarty also admitted using a county

trailer to haul hay to his farm. There was conflicting testimony about who owned the

equipment used and when county employees delivered supplies to a birthday party,

but McCarty admitted he instructed county employees to retrieve the supplies after

the party while on county time.

      The Penal Code defines “misuse” as dealing with property contrary to:

      (A) an agreement under which the public servant holds the property;
      (B) a contract of employment or oath of office of a public servant;
      (C) a law, including provisions of the General Appropriations Act
      specifically relating to government property, that prescribes the manner
      of custody or disposition of the property; or
      (D) a limited purpose for which the property is delivered or received.

Tex. Penal Code Ann. § 39.01(2) (West 2016).

      In support of his argument the evidence was legally insufficient to support

that he intentionally or knowingly misused government property or personnel,

McCarty contends there was no evidence of any agreement under which McCarty

held the property, whether a contract of employment or oath of office relevant to the

case existed, that any laws applied to the use of the property or personnel in question,

or that the property or personnel was delivered for a limited purpose. We disagree.
                                        14
The former County Auditor testified commissioners were paid about $15,000 per

year as a vehicle allowance to pay for, maintain, and put fuel in their personal

vehicles. So, they were not entitled to use county personnel to work on their vehicles

or to put county fuel in their vehicles. And McCarty agreed it was wrong to put

county fuel in personal vehicle. McCarty also conceded he used a county trailer to

haul hay for his farm. A rational trier of fact may draw logical inferences. Jackson,

443 U.S. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015).

From McCarty’s testimony, a jury could have determined beyond a reasonable doubt

that policies existed prohibiting this type of use of county property and personnel

and McCarty used the county property and personnel in violation of the limited

purpose for which it was entrusted to him, and McCarty was aware of these

prohibitions.

      McCarty attempted to justify the tasks he directed county employees to

perform on his personal equipment and vehicles in addition to his use of county

equipment and personnel by pointing out he allowed the county to use his personal

equipment, tools, and vehicle for the benefit of the county. However, this begs the

question. McCarty’s contends on appeal that he did not intentionally or knowingly

misuse government personnel or property, a separate element of the offense from



                                         15
“intent to obtain a benefit.”5 See Tex. Penal Code Ann. § 39.02 (a)(2). Similarly, in

Campbell v. State, our sister court in Amarillo upheld the conviction of a law

enforcement officer for abuse of official capacity relating to the officer’s use of a

subordinate to install a computer in his home on police department time. 139 S.W.3d

676 (Tex. App.—Amarillo 2003, pet. ref’d). In that case, Campbell argued the

computer was for personal as well as work-related uses, and thus would benefit the

department. Id. at 684. The Amarillo Court rejected that argument noting evidence

of a possible benefit to the department could not render evidence of the appellant’s

intent to obtain a personal benefit legally insufficient. Id. The Texas Supreme Court

examined the predecessor statute to section 39.02 in determining whether a sheriff

had misapplied county resources by directing deputies to patrol an apartment

complex in exchange for free rent. See State ex rel. Hightower v. Smith, 671 S.W.2d

32 (Tex. 1984). The Court held the evidence legally sufficient to support a jury

finding the sheriff committed an illegal act. Id. at 35. Since the evidence supported



      5
         McCarty cites to a recent Texas Court of Criminal Appeals case. See
Reynolds v. Texas, 543 S.W.3d 235, 243 (Tex. Crim. App. 2018). We find that case
to be distinguishable from the one before us. Indeed, in that case, there was no
evidence suggesting the appellant knew her confiscation of a child’s cell phone was
unlawful. Id. at 242. That is not the case here. There was evidence, testimony from
McCarty in particular, that conveyed he knew what he did was against county policy.
Thus, here there was evidence from which a rational trier of fact could determine he
intentionally or knowingly misused government property and personnel.
                                          16
the conclusion the patrols were done for his benefit, the court rejected the sheriff’s

argument there was no misapplication because the patrols fulfilled a legitimate

function of the department. Id. Likewise, we conclude McCarty’s “evidence of a

possible public benefit, even a primary benefit, from his use of government resources

does not negate the State’s proof of the elements of the offense.” 6 See Campbell, 139

S.W.3d at 686.

      When the record supports conflicting inferences, we presume that the jury

resolved the conflicts in favor of the verdict. See Tate, 500 S.W.3d at 413. There was

evidence from which the jury could determine McCarty was aware of the policies

prohibiting the use of county property and personnel in the way he used them when

he instructed them. Viewing all evidence in the light most favorable to the verdict,

we conclude it was legally sufficient, and the jury was rationally justified in finding

McCarty intentionally or knowingly misused government property and personnel.

See Brooks, 323 S.W.3d at 899. We overrule McCarty’s first and second issues.

B. Issues Three through Six: Jury Charge and Accomplice-Witness Instruction

      In his next four issues, McCarty contends the trial court erred by refusing his

request for an accomplice-witness instruction for Jo Carol Bolt and David Murphy



      6
        The Amarillo Court of Appeals performed a factual sufficiency of the
evidence.
                                   17
on both counts. See Tex. Code Crim. Proc. Ann. art. 38.14. (West 2005) The charge

instructed the jury that Gordon was an accomplice as a matter of law, and his

testimony required corroboration. The charge also instructed the jury that if it

determined Koby Box was an accomplice, the jury would have to find his testimony

was corroborated by other evidence before they could consider it. The trial court

refused McCarty’s requested accomplice-witness instruction for Bolt and Murphy.

      Under Almanza, we use a two-step process in reviewing jury charge error. See

Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985). First, we determine whether there was

error in the charge. See Ngo, 175 S.W.3d at 743. Second, we examine whether the

appellant was harmed by the error. See id. The level of harm required for reversal

depends on whether the appellant preserved the error by objecting at the trial court

level. Id. at 743–44; Ferreira v. State, 514 S.W.3d 297, 300 (Tex. App.—Houston

[14th Dist.] 2016, no pet.). If the appellant objected to the charge, we will reverse if

we find “some harm[.]” See Ngo, 175 S.W.3d at 743–44 (citing Almanza, 686

S.W.2d at 171). But if the appellant failed to object to the charge, we will not reverse

unless egregious harm is established by the record. See id. Since error was preserved

by McCarty’s timely request for an accomplice-witness instruction for Bolt and

Murphy, we must reverse if the error is “calculated to injure the rights of

                                          18
defendant[.]” See Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). We must

determine if there was some harm to the defendant. See Trevino v. State, 100 S.W.3d

232, 242 (Tex. Crim. App. 2003) (citing Almanza, 686 S.W.2d at 171). The “some

harm” standard requires us to find “the defendant ‘suffered some actual, rather than

merely theoretical, harm from the error.’” Reeves v. State, 420 S.W.3d 812, 816

(Tex. Crim. App. 2013) (quoting Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim.

App. 2008)). In this analysis, we consider “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.” Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011)

(quoting Almanza, 686 S.W.2d at 171).

      McCarty asserts that by not including an accomplice witness instruction for

Bolt and Murphy, the jury could consider their testimony without any corroborating

evidence to support his conviction. McCarty argues without including all these

witnesses in the accomplice instruction, the testimony of Bolt and Murphy could be

used to corroborate the testimony of Gordon and Box and vice versa in an

“impermissible accomplice witness loop,” which resulted in some harm to him.

      “A conviction cannot be had upon the testimony of an accomplice unless

corroborated by other evidence tending to connect the defendant with the offense

                                        19
committed[.]” Tex. Code Crim. Proc. Ann. art. 38.14; Druery v. State, 225 S.W.3d

491, 498 (Tex. Crim. App. 2007) (explaining accomplice testimony requires

corroboration by “independent evidence tending to connect the accused with the

crime”). An accomplice as a matter of fact is someone, who under the evidence,

could have been charged with the same or a lesser-included offense as that with

which the defendant was charged. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim.

App. 2013) (citing Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006)).

      There are two types of accomplice-witness instructions, and the type of

instruction given depends on the evidence presented. Id. A correct accomplice-

witness instruction advises the jury either that a witness is an accomplice as a matter

of law or requires the jury to determine if the witness is an accomplice as a matter

of fact. Id. For an accomplice as a matter of law, the trial court instructs the jury the

witness is an accomplice and his (or her) testimony must be corroborated. Id.;

Druery, 225 S.W.3d at 498. When the evidence of a witness’s complicity is

conflicting, the instruction given by the trial court “asks the jury to (1) decide

whether the witness is an accomplice as a matter of fact, and (2) apply the

corroboration requirement, but only if it has first determined the witness is an

accomplice.” Zamora, 411 S.W.3d at 510; Druery, 225 S.W.3d 498–99.



                                           20
      The trial court provided the jury an instruction asking them to decide whether

Box was an accomplice as a matter of fact. Box worked for McCarty as a county

employee during the summer of 2014, while on break from college. Box was

acquainted with McCarty and graduated high school with one of McCarty’s

daughters. Box had worked for McCarty on his farm in the past for wages.

McCarty’s daughter informed Box that he might be able to work under her father at

the county maintenance barn for the summer. Box testified he worked around twelve

to fourteen weeks for the county that summer, from Memorial Day to late August.

      Box testified McCarty instructed him to assist the county maintenance crew

however he was needed, and he was often assigned to work with Buck Gordon. On

occasion, estimated at a couple of times per week, McCarty instructed him to

perform personal tasks for him. Box testified that he was directed to pick up hay

from the feed store and put it out for McCarty’s cattle. When McCarty’s horses got

loose, he and other county employees helped to pen the horses. On other occasions,

he was instructed to retrieve McCarty’s tools and mechanical and cooking

equipment from a warehouse owned by McCarty, using a county truck and trailer,

and deliver it for use in various fundraising events in the county for the volunteer

fire department and chamber of commerce. He testified he was also instructed to

pick up equipment and other items and deliver them to a private residence for a

                                        21
birthday party. On the Monday following the birthday party, he and other county

employees were instructed to pick up the items from the party and return them to the

county barn, where they spent much of a day cleaning them. While working for the

county that summer, he was also asked to work on McCarty’s personal lawnmower

and the trailer wiring on McCarty’s personal truck. He estimated he spent from ten

to fifteen percent of his time that summer performing personal tasks for McCarty

rather than doing work for the county.

      Bolt was McCarty’s secretary at the precinct barn. She testified that while she

questioned Gordon’s hours he submitted on his timesheets, she submitted them

anyway. Bolt also testified she was aware Gordon performed non-county work while

on county time. She remembered that Gordon and Box delivered hay to McCarty’s

farm with county equipment. Bolt testified she organized work tickets for Triangle

Petroleum while on county time, but the evidence conflicted about whether she did

that on her own initiative or whether McCarty asked her to do so. While McCarty

admitted Bolt organized Triangle tickets on county time, it was his position that she

did so on her own initiative and he did not ask her to do that for him.

      David Murphy worked as a mechanic for the county for more than ten years.

Murphy testified he helped Gordon and Box set up for a birthday party while on

county time. Murphy admitted that he knew the birthday party was for a friend of

                                         22
McCarty’s and had nothing to do with his job responsibilities for the County.

McCarty and other witnesses maintained the setup for the party did not occur while

on county time and McCarty maintained Murphy voluntarily helped deliver items to

the party on his own time because he wanted to borrow some of the cooking

equipment after the party. Additionally, Murphy testified he worked on a wiring

issue on McCarty’s personal vehicle, which he felt was inappropriate. Murphy

estimated it took two hours to work on the wiring connection during a normal work

day. Again, McCarty justified Murphy’s assignment because a county employee had

damaged the wiring on his personal truck while it was being used for county

purposes.

      Murphy and Bolt both suggested they were simply following McCarty’s

directions. Bolt expressed she had concerns for her job if she refused to comply. Yet

there was no evidence in the record that either Murphy or Bolt participated in the

alleged misuse under duress (i.e., force, threat, or coercion). Absent such threat of

force, they can still be found to be accomplice witnesses. See State v. Trevino, 930

S.W.2d 713, 715–16 (Tex. App.—Corpus Christi 1996, pet. ref’d).

      We conclude as with Box, both Murphy and Bolt could have been charged as

accomplices in this case, as both admitted to knowing the conduct they engaged in

was against county policy. Thus, McCarty was entitled to an accomplice-witness

                                         23
instruction for Bolt and Murphy. Zamora, 411 S.W.3d at 510; Druery, 225 S.W.3d

498–99; see also Zamora v. State, 432 S.W.3d 919, 921 (Tex. App.—Houston [14th

Dist.] 2014, no pet.) (“Zamora II”) The trial court erred in failing to include an

accomplice-witness instruction for Bolt and Murphy.

      Having found error in the charge that was properly preserved by a timely

request for an instruction, we must now determine if McCarty suffered “some harm”

as a result. See Ngo, 175 S.W.3d at 743–44; Almanza, 686 S.W.2d at 171. As stated

above, when considering harm, we look to the entire jury charge, the state of the

evidence, arguments of counsel, and other relevant information revealed by the

record as a whole. See Barron, 353 S.W. 3d at 883 (quoting Almanza, 686 S.W.2d

at 171).

      1. Jury Charge

      While the charge included an accomplice witness as a matter of law

instruction for Gordon on both counts and an accomplice witness as a matter of fact

for Box on both counts, the trial court summarily refused the requested accomplice

as a matter of fact instructions for Bolt and Murphy on both counts. The trial court

included the accomplice as a matter of fact instruction for Box, whose actions were

much like those of Bolt and Murphy in that he admitted in engaging in non-county

business for McCarty while on county time. Although there was some dispute about

                                        24
the level of participation of Bolt and Murphy, there were enough facts in the record

to raise the issue of their accomplice status. The jury members should have been

afforded the opportunity to make that determination for themselves but were unable

to do so given the charge presented.

      2. State of the Evidence

      While there is evidence from non-accomplice witnesses about some of the

alleged misuse in this case, including McCarty’s own admissions about some of the

alleged misuse, there are yet other instances of misuse established solely by evidence

from accomplice witnesses with no independent corroboration. Because the

indictment alleged an ongoing “course or scheme of conduct” with multiple manner

and means, there is no way to distinguish whether the jury used the testimony of Bolt

and Murphy as corroboration for some of the alleged instances of misuse. Murphy’s

testimony was offered to corroborate the testimony of Box and Gordon about setting

up for the birthday party. Murphy’s testimony and Box’s testimony established the

amount of time and hourly rate for the party setup and was uncorroborated by any

non-accomplice witness or other evidence. With respect to Gordon submitting non-

county hours for payment through the county, the jury had only Bolt’s testimony to

corroborate Gordon’s testimony on this issue. The failure of the trial court to provide

the requested accomplice-witness instruction for Bolt and Murphy allowed the jury

                                          25
to consider their testimony without first determining if they were accomplices; and

if they were, to first determine whether their testimony could be corroborated

independent of accomplice testimony before the jury properly considered it. Because

the State charged McCarty’s actions as an ongoing scheme with multiple manner

and means over a period of two years, we are unable to discern whether the testimony

of Bolt and Murphy was used to corroborate the testimony of Gordon and Box.

Absent the accomplice-witness instruction, the jury could have done so, creating an

impermissible accomplice witness loop, where one accomplice’s testimony supports

that of another. See Zamora II, 432 S.W.3d at 924. Nor can we determine whether

their testimony alone was considered as evidence of the misuse alleged by the State

without other corroborating evidence. Indeed, the trial court’s failure to instruct the

jury on the additional accomplices as a matter of fact may have resulted in the jury

convicting McCarty solely on the testimony of either or both Bolt and Murphy, a

circumstance the accomplice evidence rule is designed to prevent. See Tran v. State,

870 S.W.2d 654, 658 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

      3. Arguments of Counsel

      The State spent a significant portion of its closing addressing accomplice-

witness testimony and instructions. Additionally, the State advised the jury that they

did not have to prove each and every incident of misconduct included in the

                                          26
indictment beyond a reasonable doubt, rather they only had to prove some of them

and their value. We find this argument by the State problematic. Because both counts

charged the misconduct occurred as an “ongoing scheme or course of conduct,” there

is no way to ascertain the specific instances of misconduct the jury found credible to

support the conviction in this case and accordingly, whether accomplice-witness

testimony alone was used by the jury to render their verdict. As charged, the State

alleged misuse valued at “$1,500 or more but less than $20,000.” The amounts the

jury found on each count were far less, “$20 or more but less than $500.” Clearly,

the jury rejected much of the manner and means alleged in the indictment, but

because we are unable to discern which of the manner and means the jury found to

support the verdict, we cannot say there is no harm to the defendant.

      4. Other Relevant Information in the Record

      Other relevant information in the record includes testimony provided by

Texas Ranger Clendennen admitting he asked Bolt if “she [wanted] to get something

off her chest,” while assuring her she was not in trouble. Implicit in this testimony

is that while Bolt did something wrong, she was not going to be charged for it

because the State was only looking to charge McCarty. Additionally, there was some

evidence Bolt was responsible for submitting the time sheets of county employees

for payment.

                                         27
      In light of the foregoing analysis, we are unable to conclude McCarty suffered

no harm as a result of the trial court’s error. Rather, after reviewing evidence from

McCarty and other non-accomplice witnesses, the record, the entire jury charge, and

the arguments of counsel, we determine McCarty suffered some harm by the trial

court’s refusal to provide the requested accomplice-witness instructions for Bolt and

Murphy. See Barron, 353 S.W.3d at 883; Reeves, 420 S.W.3d at 816.

      We sustain issues three through six.

C. Issues Seven and Eight: The Indictment

      In issues seven and eight, McCarty complains the trial court erred in denying

his motion to quash count one and count two of the indictment. Because the

sufficiency of the indictment sets the stage for the criminal proceedings, we address

these issues despite our sustaining issues three though six.

      We apply a de novo standard of review when examining a trial court’s

decision on a motion to quash an indictment. See Lawrence v. State, 240 S.W.3d

912, 915 (Tex. Crim. App. 2007). “The sufficiency of an indictment is a question of

law.” State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

      The Texas Code of Criminal Procedure sets out the requirements for an

indictment in article 21.02 and provides that the “offense must be set forth in plain

and intelligible words.” Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009). An

                                         28
indictment is usually legally sufficient if it tracks the penal statute in question. Moff,

154 S.W.3d at 602. An indictment must allege that (1) a person, (2) committed an

offense. Teal v. State, 230 S.W.3d 172, 179 (Tex. Crim. App. 2007) (citing Cook v.

State, 902 S.W.2d 471 (Tex. Crim. App. 1995)). To determine if a charging

instrument alleges an offense, we must decide if the allegations are clear enough that

one can identify the offense alleged. See id. at 180. A trial court and the defendant

must be able to identify what penal code provision is alleged and whether that

provision vests jurisdiction in the trial court. See id. An indictment that tracks the

statutory language generally satisfies constitutional and statutory requirements. State

v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).

      The indictment in this case tracks the statutory language. See id.; see also Tex.

Penal Code Ann. § 39.02. The two counts allege that McCarty, with an intent to

obtain a benefit for himself or with intent to harm and defraud Liberty County,

intentionally or knowingly misused government personnel in Count One and

government property in Count Two. The indictment then sets out several manner

and means by which McCarty allegedly violated the statute. The indictment further

states in both counts that the misuse was conducted pursuant to one scheme or course

of conduct beginning on or about January 1, 2013 and continuing until on or about

January 1, 2015. See Tex. Penal Code Ann. § 39.02(e).

                                           29
      McCarty asserts the indictment “did not provide [him] with sufficient notice

to prepare a defense for trial.” McCarty complains that by failing to provide dates of

his allegedly wrongful actions, the name of the employee he is alleged to have

misused, or the identity of the property he is alleged to have misused, the indictment

did not allow him to prepare adequately for trial.

      Because the indictment tracks the language of the statute and specifically

enumerates multiple ways in which McCarty is alleged to have violated the statute

on each count, we conclude it is sufficient to have put him on notice and allow him

adequately to prepare a defense for trial. The record is clear McCarty was not tried

by ambush or surprise. Indeed, he testified with clarity on each allegation against

him and provided detailed accounts of each incident, along with his rationale for

engaging in the otherwise prohibited conduct.

                                  III. Conclusion

      We conclude the evidence in this case was legally sufficient to support the

jury’s finding that McCarty knowingly or intentionally misused government

personnel and property under the statute. We further determine the indictment was

sufficient to put McCarty on notice and allow him adequately to prepare a defense.

Nevertheless, the trial court erred by failing to submit accomplice-witness

instructions for Bolt and Murphy, and we conclude this resulted in harm “calculated

                                         30
to injure the rights of defendant[, McCarty.]” See Tex. Code Crim. Proc. Ann. art.

36.19 (West 2006). We reverse the judgments of the trial court on both counts and

remand for a new trial on the merits.

      REVERSED and REMANDED.



                                             ________________________________
                                                     CHARLES KREGER
                                                           Justice

Submitted on May 31, 2018
Opinion Delivered October 31, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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