                                                                                       PD-1641-14
                                                                      COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
                                                                   Transmitted 1/14/2015 11:29:58 PM
                                                                      Accepted 1/16/2015 2:09:11 PM
JANUARY 16, 2015
                                   PD-1641-14                                           ABEL ACOSTA
                                                                                                CLERK

                      IN THE COURT OF CRIMINAL APPEALS
                            OF THE STATE OF TEXAS



                                  KIRBY HALL
                                Petitioner/Appellant

                                         v.

                              THE STATE OF TEXAS
                                Respondent/Appellee


     On Petition for Discretionary Review from the Fourteenth Court of Appeals
              In Cause No. 14-13-00742-CR, affirming the conviction in
      Cause No. 1394653 from the 228th District Court of Harris County, Texas


                     PETITION FOR DISCRETIONARY REVIEW



        ORAL ARGUMENT REQUESTED                        ALEXANDER BUNIN
                                                       Chief Public Defender
                                                       Harris County, Texas

                                                       FRANCES BOURLIOT
                                                       Assistant Public Defender
                                                       Harris County, Texas
                                                       Texas Bar No. 24062419
                                                       1201 Franklin, 13th Floor
                                                       Houston, Texas 77002
                                                       Phone: (713) 368-0016
                                                       Fax: (713) 437-4317
                                                       frances.bourliot@pdo.hctx.net

                                                       Counsel for Petitioner
                   IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                                Kirby Hall
                                          TDCJ # 01880638
                                          Alfred Hughes Unit
                                          Route 2 Box 4400
                                          Gatesville, Texas 76597

TRIAL PROSECUTORS:                        Ms. Gretchen Flader
                                          Ms. Jane Waters
                                          Assistant District Attorneys
                                          Harris County, Texas
                                          1201 Franklin, Suite 600
                                          Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:                 Rudy Duarte
                                          2016 Main, Suite 103
                                          Houston, Texas 77002

PRESIDING JUDGE:                          Hon. Marc Carter
                                          228th District Court
                                          Harris County, Texas
                                          1201 Franklin, 16th Floor
                                          Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT:          Frances Bourliot
                                          Assistant Public Defender
                                          Harris County, Texas
                                          1201 Franklin, 13th Floor
                                          Houston, Texas 77002




                                  ii
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................. ii

TABLE OF CONTENTS.......................................................................................... iii

INDEX OF AUTHORITIES ..................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT .........................................................1

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

STATEMENT OF PROCEDURAL HISTORY................................................................1

QUESTION FOR REVIEW ........................................................................................1

         DID THE COURT OF APPEALS ERR WHEN IT FOUND THAT YBARRA AND
         GARZA WERE NOT ACCOMPLICES AND THAT THE EVIDENCE WAS
         LEGALLY SUFFICIENT TO UPHOLD MR. HALL’S CONVICTION?

REASON FOR GRANTING REVIEW ......................................................................... 2

ARGUMENT .......................................................................................................... 2

PRAYER ............................................................................................................... 8

CERTIFICATE OF SERVICE .................................................................................... 9

CERTIFICATE OF COMPLIANCE ............................................................................ 9




                                                           iii
                                               INDEX OF AUTHORITIES

Cases 

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ...................................................... 6

Casanova v. State, 383 S.W.3d 530 (Tex. Crim. App. Nov. 21, 2012).. ........................................ 7

Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007) ..................................................... 7

Curtis v. State, 573 S.W.2d 219 (Tex. Crim. App. 1978). ...................................................... 6

Hall v. State, 14-13-00742-CR, 2014 WL 6085585 (Tex. App.—Houston [14th Dist.]

   Nov. 13, 2014)................................................................................................................... 1, 5

Hooper v. State, 214 SW.3d 9 (Tex. Crim. App. 2007) ........................................................... 2

Jackson v. Virginia, 443 U.S. 307 (1979).............................................................................. 2, 6

Nava v. State, 379 S.W.3d 396 (Tex. App. – Houston [14th Dist.] 2012, aff’d 415 S.W.3d 289

   (Tex. Crim. App. 2013) ............................................................................................................ 6

Temple v. State, 342 S.W.3d 572 (Tex. App.--Houston. [14th Dist.] 2010, no pet.) .......... 6

Thompson v. State, 514 S.W.2d 275 (Tex. Cr. App. 1974) ...................................................... 6

Wincott v. State, 59 S.W.3d 691 (Tex.App.-Austin 2001, pet. ref'd) .................................... 7

Statutes 

Tex. Code Crim. Proc. art. 38.14. ........................................................................................... 5




                                                                   iv
                    STATEMENT REGARDING ORAL ARGUMENT

       Petitioner requests oral argument as it may aid the Court since the analysis of

this case depends upon a detailed review of the record.

                             STATEMENT OF THE CASE

       This petition seeks review of a direct appeal brought after a conviction for

aggravated assault of a peace officer. On August 12, 2013, Mr. Hall’s case was called

for a jury trial; he was arraigned and entered a plea of not guilty. (3 R.R. at 19). On

August 15, 2013, the jury found Mr. Hall guilty as charged in the indictment. (5 R.R.

at 108). On August 16, 2013, the trial court assessed his punishment at fifty (50) years

confinement in the Texas Department of Criminal Justice – Institutional Division. (6

R.R. at 60).

                      STATEMENT OF PROCEDURAL HISTORY

       On November 13, 2014, in an unpublished memorandum opinion, the

Fourteenth Court of Appeals affirmed Mr. Hall’s conviction. Hall v. State, 14-13-

00742-CR, 2014 WL 6085585 (Tex. App.—Houston [14th Dist.] Nov. 13, 2014). See

Appendix. No motion for rehearing was filed.

                              QUESTION FOR REVIEW

       DID THE COURT OF APPEALS ERR WHEN IT FOUND THAT YBARRA AND
       GARZA WERE NOT ACCOMPLICES AND THAT THE EVIDENCE WAS
       LEGALLY SUFFICIENT TO UPHOLD MR. HALL’S CONVICTION?




                                           1
                          REASON FOR GRANTING REVIEW

        The opinion of the Fourteenth Court of Appeals conflicts with decisions by

this Court and the Supreme Court of the United States in that its determination that

the evidence is legally sufficient conflicts with Jackson v. Virginia, 443 U.S. 307 (1979)

and Hooper v. State, 214 SW.3d 9 (Tex. Crim. App. 2007).

                                      ARGUMENT

        DID THE COURT OF APPEALS ERR WHEN IT FOUND THAT YBARRA
        AND GARZA WERE NOT ACCOMPLICES AND THAT THE EVIDENCE WAS
        LEGALLY SUFFICIENT TO UPHOLD MR. HALL’S CONVICTION?

        On the night that this incident occurred, several people including Ybarra,

Garza, and Hall, gathered for a party at Rodriguez’s house. (3 R.R. at 205). Ybarra and

Rodriguez were very close. (3 R.R. at 204). Garza and Rodriguez had recently met and

Rodriguez had picked up Garza to bring her to his party. (4 R.R. at 71-72). Later that

evening, Ybarra agreed to drive Gonzalez and Garza home. (3 R.R. at 212). Hall had

shown them a gun and Rodriguez suggested that they go to an area close to his ex-

girlfriend’s house to shoot the gun. (3 R.R. at 195). Ybarra drove Hall, Rodriguez,

Garza, and Gonzalez to the area Rodriguez suggested to shoot the gun. (3 R.R. at

198-199). The group dropped Gonzalez off at home and, on the way to Garza’s

house, Rodriguez shot the gun out of the window. (3 R.R. at 202-203). Ybarra began

to get nervous that someone would call the police because of the gunshots. (3 R.R. at

204).



                                            2
      Officer Alan Whitlock received a call around 2:00 a.m. and was dispatched to

an apartment complex for a disturbance call. (3 R.R. at 39, 43). As he and the other

units were walking back to the vehicles, they heard several rounds of gunfire in the

area. (3 R.R. at 44). Whitlock observed two suspicious vehicles and decided to activate

his lights and initiate a traffic stop. (3 R.R. at 49-53). Whitlock decided to call for

another unit because he felt the passengers in Ybarra’s car were making furtive

movements; before Whitlock could call for another unit, the Cadillac started to roll

forward slowly and turn left. (3 R.R. at 56-57). Whitlock followed the Cadillac and

then saw the passenger in the back left side lean out of the window with a gun. (3 R.R.

at 60, 62-63). He originally identified the driver as the shooter but in retrospect

decided it must have been the back seat passenger because the car never stopped

moving. (3 R.R. at 61, 94). Whitlock never looked at a photo spread because he did

not believe he would be able to pick out the person who fired the shot. (3 R.R. at 82).

      Ybarra testified that Hall told him not to stop the car after Whitlock had

initiated the stop. After Ybarra stopped the car, Hall allegedly told Rodriguez to shoot

the cop. (3 R.R. at 230-231). Ybarra tried to tell Rodriguez to throw the gun out of the

car. (3 R.R. at 232). Rodriguez, however, passed the gun to Hall. (3 R.R. at 233-236).

As Ybarra was driving off, he heard shots and saw Hall getting back into his seat. (3

R.R. at 233-236). Ybarra never saw Hall lean out of the car and shoot at Whitlock. (4

R.R. at 43). Rodriguez, Garza, and Hall eventually jumped out of the car. (3 R.R. at

238-40).

                                           3
      Ybarra ran to Rodriguez’s aunt’s house and Rodriguez called him while he was

there. (3 R.R. at 218, 4 R.R. at 11-12). Garza ran with Rodriguez to his house. (4 R.R.

at 103). About ten minutes later, Hall arrived at Rodriguez’s house without the gun

and stayed for a short time. (4 R.R. at 103-104).

      Wanting to protect Rodriguez, Ybarra initially told the police that he was with

two black males and a Puerto Rican. (4 R.R. at 15). Garza ran with Rodriguez to his

house. (4 R.R. at 103).

      Ybarra and Rodriguez were both no-billed by the grand jury on charges of

attempted capital murder of a peace officer. (3 R.R. at 193-194, C.R. at 58). In

connection with this case, Ybarra plead guilty to evading arrest in a motor vehicle. (4

R.R. at 23-24). Garza was charged with evading arrest in connection to this case and

she pleaded guilty and received probation. (4 R.R. at 123-124).

      Hall was found hiding in a tree. (5 R.R. at 20). When Hall was arrested and

when he gave his buccal swab, he gave his name as Kendall Davis with a birthdate of

October 9, 1988. (5 R.R. at 19-20). Law enforcement later found out that Kendall

Davis’s real name was Kirby Hall and that his real date of birth is May 10, 1989. (5

R.R. at 51). Hall had a warrant for his arrest out of Louisiana and that warrant was for

an offense where he could get up to life in prison. (5 R.R. at 53).

      GSR samples and buccal swabs were taken from several people, including Hall

and Ybarra. (3 R.R. at 117-118, 125-126). The Cadillac was also swabbed for DNA

residue and fingerprints. (3 R.R. at 175, 178). Hall’s fingerprints were not found in any

                                            4
of the swabs from the Cadillac. (3 R.R. at 182). No latent prints were found on any of

the recovered shell casings. (3 R.R. at 190). The GSR analysis showed no particles

present on Hall’s hands or clothing. (4 R.R. at 179, 185). The GSR analysis of Ybarra

was inconclusive. (4 R.R. at 179). None of the DNA swabs taken from the car

matched Hall. (4 R.R. at 209).

      Ybarra, Rodriguez, and Garza all knew that the gun was in the car and they had

discussed a plan to shoot the gun over in an area that Ybarra and Rodriguez were

familiar with. It should have been foreseen that shooting a firearm into a

neighborhood might attract the attention of law enforcement and that in entering into

that conspiracy someone might get shot. In fact, Ybarra was nervous that someone

would call the police because of the gunshots. (3 R.R. at 204). Officer Whitlock heard

those gunshots and, finding Ybarra’s car suspicious, initiated a traffic stop—Ybarra

drove away from Whitlock. (3 R.R. at 44, 56-57).

      Mr. Hall challenged the legal sufficiency of the State’s evidence regarding the

aggravated assault, arguing that Ybarra and Garza were both accomplices as a matter

of fact and that the independent corroborating evidence was insufficient. On appeal,

the Court of Appeals found the evidence legally sufficient to support the judgment

because: “[t]here is no evidence that Ybarra and Garza were appellant's accomplices

as a matter of fact; therefore, there is no requirement of corroboration. See Tex. Code

Crim. Proc. art. 38.14.”. Hall v. State, 14-13-00742-CR, 2014 WL 6085585, at *4 (Tex.

App.—Houston [14th Dist.] Nov. 13, 2014).

                                           5
       An appellate court is to apply a “rigorous” Jackson v. Virginia analysis of the

sufficiency of evidence. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). See, also, Temple v. State, 342 S.W.3d 572, 628 (Tex. App.--Houston. [14th Dist.]

2010, no pet.) (McCally, J., dissenting to denial of rehearing en banc). In evaluating

the sufficiency of the evidence, the appellate court must view all of the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

       “Where several people act together in pursuit of an unlawful act each one is

liable for collateral crimes, even though unplanned and unintended, if those crimes are

the foreseeable, ordinary and probable consequences of the preparation or execution

of the unlawful act.” Thompson v. State, 514 S.W.2d 275 (Tex. Cr. App. 1974); Curtis v.

State, 573 S.W.2d 219, 223 (Tex. Crim. App. 1978). For example, in Nava v. State, three

co-defendants entered into a conspiracy to commit felony theft by purchasing what

they believed to be stolen televisions from an undercover police officer. While

attempting to make this transaction, one of the co-defendants shot and killed the

undercover officer. Nava v. State, 379 S.W.3d 396, 404-405 (Tex. App. – Houston [14th

Dist.] 2012, aff’d 415 S.W.3d 289 (Tex. Crim. App. 2013). The court held the evidence

was sufficient, finding that because the co-defendants knew that a gun was being

brought to the transaction, the co-defendants who did not shoot the officer should

have anticipated it was a potential result. Nava, 379 S.W.3d at 406.

                                             6
      The same logic applies to the case at bar. All of the parties knew of the gun and

should have anticipated the potential of an aggravated assault. Thus, all are

accomplices under the theory of party liability.

      The testimony of an accomplice is inherently untrustworthy and should be

viewed with caution because “the accomplice is a corrupt source who may well have

improper incentives when testifying against the accused-e.g., to redirect blame or to

gain favor with the State in exchange for a reduced punishment.” Wincott v. State, 59

S.W.3d 691, 698 (Tex.App.-Austin 2001, pet. ref'd). In reviewing the sufficiency of the

corroborating evidence, the appellate court must eliminate from its consideration all

accomplice testimony and review the remaining portions of the record to determine

“if there is any evidence that tends to connect the accused with the commission of the

crime.” Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The

corroborating evidence does not need to be sufficient by itself to convict the accused.

Casanova v. State, 383 S.W.3d 530 (Tex. Crim. App. Nov. 21, 2012).

      Whitlock was not able to identify Hall as the shooter and there was no GSR,

DNA, or fingerprint evidence linking Hall to the incident. None of Hall’s clothes

were found to have GSR even though the accomplices testified that Hall had shot the

gun earlier that evening. In contrast, Ybarra’s right hand had gunshot residue and

Rodriguez’s fingerprints and palm prints were found on the rear driver’s side of the

car. The fact the physical evidence more strongly indicates Ybarra or Rodriguez as the



                                            7
shooter provides a motive to implicate Hall. This motive and attempt to shift blame is

the very reason the accomplice witness rule exists.

      Because there is no evidence other than the uncorroborated accomplice

testimony that identifies Hall as the individual who shot at Whitlock, the evidence is

legally insufficient to support a conviction for aggravated assault of a peace officer.

The Court of Appeals erred in holding that Ybarra and Garza were not accomplices

as a matter of fact and that the evidence was legally sufficient to prove that Mr. Hall

committed an aggravated assault on a peace officer.

                                       PRAYER

      Mr. Hall asks the Court to grant his petition and conduct a full review of his

appeal in the Fourteenth Court of Appeals.

                                               Respectfully submitted,

                                               ALEXANDER BUNIN
                                               Chief Public Defender
                                               Harris County Texas

                                               /s/Frances Bourliot
                                               ______________________________
                                               FRANCES BOURLIOT
                                               Assistant Public Defender
                                               Harris County, Texas
                                               Texas Bar No. 24062419
                                               1201 Franklin, 13th Floor
                                               Houston, Texas 77002
                                               Phone: (713) 368-0016
                                               Fax: (713) 437-4317
                                               frances.bourliot@pdo.hctx.net



                                           8
                           CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing petition for discretionary review
has been served on the District Attorney of Harris County, Texas, by e-file on the
14th day of January, 2015. A copy has also been sent by e-file to the State Prosecuting
Attorney, also on the 14th day of January, 2015.


                                         /s/Frances Bourliot
                                         _________________________________
                                         Frances Bourliot



                              Certificate of Compliance

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1.     This brief contains 2,669 words printed in a proportionally spaced typeface.
2.     This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 13 point font in footnotes produced by
Microsoft Word software.
3.      Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4.       Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.


                                            /s/Frances Bourliot
                                             ________________________________
                                             Frances Bourliot




                                            9
Hall v. State, Not Reported in S.W.3d (2014)


                                                                  in that it was approximately 2:00 a.m. and there were no
                                                                  other cars in the area. When Whitlock pulled behind the white
                  2014 WL 6085585
                                                                  Cadillac he noticed the passengers of the car making furtive,
    Only the Westlaw citation is currently available.
                                                                  suspicious movements. Whitlock turned on his emergency
          SEE TX R RAP RULE 47.2 FOR                              lights to stop the Cadillac. When the driver of the car did not
    DESIGNATION AND SIGNING OF OPINIONS.                          stop, Whitlock turned on his siren and followed the car. As
                                                                  the car went around a curve Whitlock saw the passenger in the
          MEMORANDUM OPINION                                      back left side behind the driver lean out of the window with a
     Do Not Publish—Tex. R.App. P. 47.2(b).                       gun. Whitlock could not identify the individual with the gun
             Court of Appeals of Texas,                           other than his race, which was African–American. Whitlock
               Houston (14th Dist.).                              then heard gunfire and felt a bullet hit his chest.

      Kirby HALL a/k/a Kendell Davis, Appellant
                                                                  Juan Ybarra, the owner of the white Cadillac, testified that
                         v.                                       on the day of the offense, he went to Richard Rodriguez's
            The STATE of Texas, Appellee.                         house to drink and to smoke marijuana with six or seven of
                                                                  their mutual friends including Jose Gonzalez, Brianna Garza,
       No. 14–13–00742–CR.           |   Nov. 13, 2014.
                                                                  and appellant. At some point in the evening, Ybarra planned
On Appeal from the 228th District Court, Harris County,           to drive Gonzalez and Garza home. Appellant left the house
Texas, Trial Court Cause No. 1394653.                             for a few minutes, returned with a rifle, and said to Ybarra,
                                                                  “Let's go shoot this.” At that point, Ybarra, Rodriguez, and
Attorneys and Law Firms                                           appellant decided to shoot the gun, then drive Gonzalez and
                                                                  Garza home. Rodriguez knew of a location where neighbors
Frances Young Bourliot, for Kirby Hall aka Kendell Davis.         shot guns without anyone calling the police.

Alan Curry, for State of Texas.
                                                                  When they arrived at the location described by Rodriguez,
Panel consists of Chief Justice FROST and Justices                Ybarra stopped the car, appellant got out, shot the gun
CHRISTOPHER and BUSBY.                                            in the air four or five times, and got back in the front
                                                                  passenger seat of the car. Ybarra then drove to Gonzalez's
                                                                  house. After Gonzalez got out of the car, the rest of the
                                                                  passengers changed positions. Rodriguez moved to the front
               MEMORANDUM OPINION
                                                                  passenger seat, Garza sat behind Rodriguez in the right back
TRACY CHRISTOPHER, Justice.                                       passenger seat, and appellant sat behind Ybarra in the left
                                                                  back passenger seat. As Ybarra drove out of Gonzalez's
 *1 Appellant Kirby Hall a/k/a Kendell Davis appeals his          neighborhood, Rodriguez leaned out of the front passenger
conviction for aggravated assault against a public servant        seat and fired the gun once. Ybarra became nervous about
challenging the sufficiency of the evidence to support his        Rodriguez and appellant shooting the gun, and decided to
conviction. See Tex. Penal Code § 22.02(b)(2)(B). Finding         drive them back to Rodriguez's house before taking Garza
sufficient evidence to support appellant's conviction, we         home. Ybarra testified, “I wanted to get that gun out of my
affirm.                                                           car as quick as I could.”

                                                                  As Ybarra was driving toward Rodriguez's house he saw two
                    I. BACKGROUND                                 patrol cars pass. One of the cars shined its spotlight on the car
                                                                  and activated its emergency lights. Although appellant told
On September 1, 2011, Harris County Sheriff's Deputy Alan         him not to stop, Ybarra stopped the car. At this time, Ybarra
Whitlock was dispatched to a disturbance in an apartment          testified that everyone was afraid because the gun was sitting
complex. As he drove to the location of the disturbance           in the front seat of the car. Ybarra told Rodriguez to throw the
Whitlock heard shots fired. Soon after hearing the shots fired,   gun out of the window. Appellant told Rodriguez to shoot the
Whitlock observed a white Cadillac and a black car driving        police officer. Rodriguez gave the gun to appellant explaining
very close together. Whitlock testified this was suspicious       that he did not want to shoot the police officer. At this point,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Hall v. State, Not Reported in S.W.3d (2014)


Ybarra sped up because he was afraid if he stopped for the          from the legislative determination that accomplice testimony
police car that appellant would shoot him. As Ybarra was            must be taken with a degree of caution. Nolley v. State, 5
driving he heard three to four gun shots in quick succession.       S.W.3d 850, 852–53 (Tex.App.-Houston [14th Dist.] 1999,
Shortly after the shooting, when Ybarra slowed the car to           no pet.). The underlying rationale is that the accomplice is
make a turn, Rodriguez and Garza jumped out of the moving           a corrupt source who may well have improper incentives
car. Later, appellant jumped out of the car. Ybarra eventually      when testifying against the accused-e.g., to redirect blame
pleaded guilty to evading arrest with a motor vehicle.              or to gain favor with the State in exchange for a reduced
                                                                    punishment. Wincott v. State, 59 S.W.3d 691, 698 (Tex.App.-
 *2 Brianna Garza testified and gave an account similar to          Austin 2001, pet. ref'd). For these reasons, an accomplice
that of Ybarra. Garza testified that it was her understanding       witness is a “discredited witness,” and regardless of how
that she would be driven home before the men began                  completely the accomplice may outline the facts of a case,
shooting the gun. She recounted the initial shooting in             the jury may not convict the accused without additional
the field, Rodriguez shooting the gun while the car was             corroborating evidence. Walker v. State, 615 S.W.2d 728, 731
moving, the police attempting to stop them, appellant telling       (Tex.Crim.App.1981); Gaston v. State, 324 S.W.3d 905, 908–
Rodriguez to shoot the officer, and Rodriguez refusing to           09 (Tex.App.-Houston [14th Dist.] 2010, pet. ref'd).
do so. When appellant took the gun and said he was going
to shoot the officer, Garza hit the back of the gun in an           Before turning to whether the evidence was sufficiently
attempt to stop appellant from shooting. Garza thought that         corroborated, we review whether Ybarra and Garza were
appellant attempted to point the gun at Ybarra because Ybarra       accomplice witnesses. 1 An accomplice is an individual
was stopped for the police car and did not want to flee.            who participates with a defendant before, during, or after
Garza testified that as appellant began shooting, she and           the commission of the crime and acts with the requisite
Rodriguez jumped out of the car. Garza and Rodriguez ran to         culpable mental state. Cocke v. State, 201 S.W.3d 744,
Rodriguez's house. Appellant returned to Rodriguez's house          747 (Tex.Crim.App.2006); Yost v. State, 222 S.W .3d 865,
approximately ten minutes later, but left again when the            871 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd). Such
police arrived. Garza pleaded guilty to evading arrest.             participation must involve an affirmative act that promoted
                                                                    the commission of the offense with which the accused
Appellant was convicted of aggravated assault against a             was charged. Paredes v. State, 129 S.W.3d 530, 536
public servant and sentenced to 50 years in prison.                 (Tex.Crim.App.2004).

                                                                     *3 To sustain a conviction for aggravated assault of a
        II. SUFFICIENCY OF THE EVIDENCE                             public servant the evidence must demonstrate that: (1) the
                                                                    person intentionally or knowingly threatened another with
In a single issue appellant claims the evidence is insufficient     imminent bodily injury, (2) the person used or exhibited a
to support his conviction. Specifically, appellant contends         deadly weapon during the commission of the assault, and (3)
that the evidence does not sufficiently corroborate the             the offense was committed against a person the actor knew
testimony of the accomplice witnesses.                              was a public servant while the public servant was lawfully
                                                                    discharging an official duty. Tex. Penal Code §§ 22.01(a)
In evaluating the sufficiency of the evidence, we must view         (2), 22.02(a)(2), (b)(2)(B). Pursuant to Texas Penal Code
all of the evidence in the light most favorable to the verdict to   sections 7.01 and 7.02, an individual can be convicted as
determine whether any rational trier of fact could have found       a party to an offense if that offense was committed by his
the essential elements of the crime beyond a reasonable doubt.      own conduct, by the conduct of another for which he is
Jackson v. Virginia, 443 U.S. 307, 319 (1979).                      criminally responsible, or both. Tex. Penal Code § 7.01. A
                                                                    person is criminally responsible for an offense committed by
The accomplice-witness rule provides that a “conviction             the conduct of another if, acting with intent to promote or
cannot be had upon the testimony of an accomplice unless            assist the commission of the offense, he solicits, encourages,
corroborated by other evidence tending to connect the               directs, aids, or attempts to aid the other person to commit the
defendant with the offense committed; and the corroboration         offense. Tex. Penal Code § 7.02(a)(2). Therefore, we review
is not sufficient if it merely shows the commission of the          the record to determine whether the evidence reflects that
offense.” Tex.Code Crim. Proc. art. 38 .14. The rule derives        Ybarra and Garza could have been convicted as parties to the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Hall v. State, Not Reported in S.W.3d (2014)


offense of aggravated assault of a public servant. Appellant        *4 Appellant further argues that Ybarra and Garza
did not request an accomplice witness instruction at trial, nor    participated in a conspiracy to shoot the weapon, and could be
does he argue that Ybarra and Garza were accomplices as            considered accomplices under section 7.02 of the Texas Penal
a matter of law. Therefore, we address whether Ybarra and          Code. If in the attempt to carry out a conspiracy to commit one
Garza were accomplices as a matter of fact. See Druery v.          felony another felony is committed by one of the conspirators,
State, 225 S.W.3d 491, 497–98 (Tex.Crim.App.2007) (jury            all conspirators are guilty of the felony actually committed,
instruction is given on an accomplice as a matter of law when      though having no intent to commit it, if the offense was
witness is charged or could be charged with the offense or         committed in furtherance of the unlawful purpose and was
lesser-included offense; when the evidence is conflicting as       one that should have been anticipated as a result of carrying
to whether witness was accomplice, jury decides whether            out the conspiracy. Tex. Penal Code § 7.02(b); Zamora v.
witness is an accomplice as a matter of fact).                     State, 432 S.W.3d 919, 922 (Tex.App.-Houston [14th Dist.]
                                                                   2014, no pet.).
The record reflects that Ybarra and Garza were present when
the offense occurred, and that they participated in the offense    Appellant argues that Ybarra and Garza knew that the gun was
of evading arrest or detention. Ybarra was charged with            in the car and discussed a plan to shoot the gun in an open area.
evading arrest or detention in a motor vehicle, a state jail       Therefore, appellant argues, the parties should have “foreseen
felony. See Tex. Penal Code § 38.04(b)(1)(B). Garza was            that shooting a firearm into a neighborhood might attract the
charged with evading arrest on foot, a Class A misdemeanor.        attention of law enforcement and that in entering into that
See id. § 38.04(a). However, the record does not reflect that      conspiracy someone might get shot.”
Ybarra and Garza participated with appellant before, during,
or after the commission of the offense of aggravated assault       The record does not reflect that Ybarra and Garza
of a public servant, or acted with the requisite culpable mental   were accomplice witnesses because they were criminally
state to commit that offense.                                      responsible for appellant's actions under the conspiracy
                                                                   theory of party liability. Appellant argues that by planning
Both Ybarra and Garza testified that they knew a gun was in        to discharge a firearm in the city, the group should have
the car and that appellant and Rodriguez intended to shoot         anticipated the potential for the offense of aggravated assault
it in an open area. Garza expected to be dropped off at            of a public servant.
her home before any shooting began. Ybarra testified he
attempted to stop the car when the police initiated the traffic    Appellant's theory is not supported by the evidence or the
stop, and that he only drove away because he feared appellant      Penal Code definition of co-conspirators. Section 7.02(b) of
would shoot him. Ybarra further testified that he instructed       the Penal Code provides that a person can be held criminally
Rodriguez to throw the gun out of the window. Similarly,           responsible under the law of parties if, in the attempt to carry
Garza testified that she hit the back of the gun in an attempt     out a conspiracy to commit one felony offense, another felony
to prevent appellant from shooting Whitlock. There is no           is committed by one of the conspirators. See Hooper v. State,
evidence that Ybarra or Garza took any affirmative act to          214 S.W.3d 9, 13–14 (Tex.Crim .App.2007). Discharging a
assist in shooting Whitlock. While they knew of the gun and        firearm in a municipality is a misdemeanor, not a felony. See
the plan to shoot it prior to commission of the offense, they      Tex. Penal Code §§ 42.01(a)(7), (d) (discharge of a firearm
believed appellant and Rodriguez intended to shoot the gun         in a public place is a Class B misdemeanor) & 42.12(a),
in an open area. Ybarra and Garza did not anticipate that          (b) (discharge of a firearm inside the corporate limits of a
appellant would shoot a police officer, nor did they act with      municipality having a population of 100,000 or more is a
the requisite culpable mental state to commit the offense of       Class A misdemeanor). The record does not contain evidence
aggravated assault of a public servant. The fact that Ybarra       of a conspiracy to commit a felony.
and Garza were in the car, coupled with their knowledge of the
weapon when appellant shot Whitlock, does not render them          Appellant's argument is predicated on the idea that Ybarra
accomplice witnesses to the charged offense. See Zuniga v.         and Garza were accomplices to aggravated assault of a public
State, 393 S.W.3d 404, 414 (Tex.App.-San Antonio 2012, pet.        servant. The record does not support appellant's assertion.
ref'd) (witness was not an accomplice simply because he was        The record reflects that Ybarra and Garza did not participate
a passenger in the car at scene of murder).                        in the shooting of the police officer, did not conspire to
                                                                   shoot a police officer, nor could they have anticipated when



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Hall v. State, Not Reported in S.W.3d (2014)



they got in the car with appellant that he would shoot a
                                                                      *5 Based on all the evidence presented, including the
police officer. If a State's witness has no complicity in
                                                                     testimony of Ybarra and Garza, viewed in the light most
the offense for which an accused is on trial, the witness's
                                                                     favorable to the verdict, we conclude a rational jury could
testimony is not that of an accomplice witness whatever may
                                                                     have found the essential elements of the offense beyond a
have been the witness's complicity with the accused in the
                                                                     reasonable doubt. See Jackson, 443 U.S. at 319. We therefore
commission of other offenses. Gamez v. State, 737 S.W.2d
                                                                     overrule appellant's sole issue, and affirm the trial court's
315, 322 (Tex.Crim.App.1987). There is no evidence that
                                                                     judgment.
Ybarra and Garza were appellant's accomplices as a matter of
fact; therefore, there is no requirement of corroboration. See
Tex.Code Crim. Proc. art. 38.14.


Footnotes
1      In his brief appellant contends that Ybarra, Garza, and Rodriguez were accomplice witnesses. Rodriguez, however, did not testify;
       therefore, we confine our review to Ybarra and Garza.


End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   4
