Opinion issued June 18, 2015




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-14-00656-CR
                         ———————————
                     RONALD ROBINSON, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 209th District Court
                          Harris County, Texas
                      Trial Court Cause No. 1036165




                        MEMORANDUM OPINION

     A jury found Ronald Robinson guilty of the offense of capital murder.

Because the State did not seek the death penalty, the trial court assessed

Robinson’s punishment at life imprisonment. On appeal, Robinson contends that
(1) the trial court erred by not giving the jury an accomplice-witness instruction in

reference to certain witness testimony; and (2) he was deprived of constitutionally

effective assistance of counsel. We conclude that the trial court did not err when it

did not give the accomplice-witness instruction with respect to the witness that

Robinson contends was an accomplice witness.            We further conclude that

Robinson has failed to demonstrate that ineffective representation affected the

outcome of the trial. We therefore affirm.

                                   Background

      This case arises from a cold case murder that occurred in the early 1990s.

The decedent, Jimmy Sims, worked nights as a machinist, and he coached boys in

a boxing club in his spare time. At some point during the 1980s, Sims met

Robinson’s wife, Flor, through coaching her son, Ronnie. Though both were

married, Sims and Flor began an affair that lasted several years. In the late 1980s,

Robinson and Sims’s wife, Jeneanne, discovered the affair.          After Jeneanne

confronted her husband about the affair, he ended it. The couple decided to stay

together and work on their marriage.

      Robinson, however, reacted badly when he found out about his wife’s affair

with Jimmy Sims. Over the next year and a half, he threatened and stalked both of

the Simses. He made belligerent phone calls to the Simses’ residence. During one

of these calls, Sims and Jeneanne overheard Robinson assaulting Flor in the


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background. Robinson also wrote provocative letters, signed them with Flor’s

name, and sent them to the Simses. On several occasions, Jeneanne observed

Robinson sitting in his van outside of the Simses’ residence around the time that

Sims would leave for work.

      In early 1991, Robinson hid inside the Simses’ garage and confronted

Jeneanne. During this episode, Robinson’s son Ronnie and Ronnie’s friends stood

outside near Robinson’s van. Robinson told Jeneanne that he had brought Ronnie

and his friends to “settle this once and for all.” On another occasion in early 1991,

Robinson went to the Simses’ house and reported that Ronnie had tried to steal his

gun because he wanted to “take care of Mr. Sims.” A few months before Sims’s

murder, Robinson drove by the Sims’s residence, brandishing a gun.

      On September 5, 1991, at approximately 10:00p.m., Sims left his house for

work. Shortly after he left, Jeneanne heard gunshots. She grabbed a pistol and ran

outside. Jeneanne saw two individuals shooting at Sims and she realized that he

had been shot.    The individuals wore knit caps with their faces covered by

bandanas. She screamed at them to leave, and they pointed their guns at her. They

eventually fled westward down the street. Sims died from his injuries. The police

investigated Sims’s murder without immediate success.

      J. Martinez testified at trial, and the jury was instructed to regard his

testimony as accomplice-witness testimony. He testified that he was close friends


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with Ronnie and another man, Bob Mason. Martinez drove Mason to meet with

Robinson. Robinson wanted Mason to hurt someone who was having an affair

with his wife. Mason and another friend, J. Salodiur, asked Martinez to drive them

to Sims’s house at the time that Sims would be leaving for work. He agreed and

drove them to a park near Sims’s house so that no one could identify the getaway

car. Jonue Salodiur, who accompanied them, carried a long stick with him. Mason

and Salodiur headed toward the Simses’ residence.         Martinez heard several

gunshots a few minutes later. Salodiur and Mason returned to the car; Mason was

holding a gun.

      Greg Fuentes also testified.    He knew Mason, Martinez, and Salodiur.

Around the time of the murder, Mason and another man went to Fuentes’s house

with ski masks and gloves. They announced that they had shot someone. Fuentes

refused to keep the masks and gloves. Mason also asked for help in getting rid of a

gun. Fuentes then drove Mason to Robinson’s house. In Fuentes’s presence,

Mason told Robinson: “I took care of your problem. He’s dead.” Robinson called

to one of his children to bring him his wallet, and Robinson gave Mason some

money.

      K. Martinez dated Mason in the early 1990s. A couple of days after Sims’s

murder, Mason told her that he had shot someone, and Salodiur was with him

when it happened. Mason told her that Robinson had paid Mason to kill Sims


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because Sims had had an affair with his wife. Mason also pointed a gun at a

woman who was screaming at the scene of the crime.

      H. Cook, who lived near Sims’s house, testified that he was outside his

house at approximately 10:00 on the night of Sims’s murder when he heard a

woman screaming. He then observed a male running and walking intermittently,

traveling westward, and looking over his shoulder, as he carried a long tube. He

also observed another male following the first one and carrying something under

his jacket.

      I. Guerra, Robinson’s co-worker, discussed Sims’s murder with Robinson in

2004. Robinson told him that one of his son’s friends had murdered Sims.

      In 2005, the police department began to work on the cold case file again.

The renewed investigation led to Robinson’s indictment.

      Course of proceedings

      A jury convicted Robinson of capital murder in 2007. Robinson v. State,

266 S.W.3d 8, 9 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Robinson

appealed, contending that the trial court erred in setting forth the applicable law in

the jury charge. Id. Our court agreed, and we reversed and remanded the case for

a new trial. Id. The Court of Criminal Appeals refused a petition for discretionary

review. See Order refusing State’s PDR, Case No. PD-1384-08 (Feb. 25, 2009).




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On remand, the State again tried Robinson for capital murder. The jury found

Robinson guilty.

                                     Discussion

      I.      Accomplice-Witness Instruction

      Standard of Review

      We review jury charge error in a two-step process. Ngo v. State, 175 S.W.3d

738, 744 (Tex. Crim. App. 2005). First, we determine whether error exists in the

charge. Id. If it does, we review the record to determine whether the error caused

sufficient harm to require reversal of the conviction. Id. When the defendant has

not objected to the error, we will not reverse for jury-charge error unless the record

demonstrates egregious harm to the defendant. Id. at 743–44.

      Accomplice testimony

      Under Article 38.14 of the Texas Code of Criminal Procedure, “A

conviction cannot be had upon the testimony of an accomplice unless corroborated

by other evidence tending to connect the defendant with the offense committed;

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

offense.” TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2013). An accomplice is

a person who participates in the offense before, during, or after its commission,

with the requisite mental state. Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim.

App. 2007).


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      An accomplice witness may be characterized as an accomplice as a matter of

law or as a matter of fact. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App.

2011). A trial judge has no duty to instruct a jury that a witness is an accomplice

as a matter of law unless no doubt exists that the witness is an accomplice.

Druery, 225 S.W.3d at 498. If the evidence presented is conflicting on the issue of

whether a witness is an accomplice, then the trial judge should submit whether the

witness is an accomplice witness as a matter of fact to the jury, defining an

accomplice and instructing the jury that it must first find corroborating evidence

before it considers the testimony of a witness it finds to be an accomplice. Id. at

498–99. To raise a fact issue and warrant an accomplice-witness instruction, some

evidence must show an affirmative act on the part of the witness to assist in the

commission of the charged offense. Id. at 499.

      Analysis

      Robinson argues that Fuentes was an accomplice to capital murder and thus

the trial court erred in refusing to instruct the jury to appropriately consider

corroborating evidence before relying on Fuente’s testimony.         We disagree,

because Robinson has not shown that Fuentes committed an affirmative act in

furtherance of the capital murder. To warrant such an instruction, Fuentes must

have engaged in an affirmative act that promoted Sim’s murder. See Paredes v.

State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).           A witness is not an


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accomplice simply because he knew about the commission of the offense and did

not report it; nor because he helped the accused to conceal it. Smith, 332 S.W.3d at

439 (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987)).

      Robinson contends that the following testimony made some showing that

Fuentes acted as an accomplice to the capital murder: (1) Fuentes was friends with

Mason and Salodiur; (2) Fuentes was the leader of a gang in which Fuentes and

Mason participated in committing crimes generally; (3) Fuentes drove Mason to a

meeting with Robinson where Mason told Robinson that Sims was dead; (4) at the

meeting, Fuentes witnessed Robinson pay Mason for committing the murder;

(5) Fuentes and Mason both routinely carried guns; (6) Fuentes helped Mason

leave the country to avoid the police; (7) Mason stayed at Fuentes’s residence after

he returned to the country; (8) Mason and another man came to Fuentes’s residence

with ski masks, gloves, and guns and stated that they had shot someone;

(9) Fuentes helped Mason get rid of the murder weapon, knowing Mason had shot

someone; (10) Fuentes traveled with Mason to attempt a murder of another person;

and (11) Fuentes testified he had been convicted of a different attempted murder.

      Fact issues 1, 2, 5, 10, and 11 concern activity wholly separate from the

offense in this case.    To be an accomplice, one must have engaged in an

affirmative act promoting the offense at issue, not a different crime. See Paredes,

129 S.W.3d at 536.      Fact issues 3, 4, 6, 7, 8 and 9 demonstrate Fuentes’s


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knowledge of Mason’s murder of Sims and his understanding that Robinson was

involved, but a witness is not an accomplice simply because of his knowledge of

the offense, even if he does not report the offense or helps to conceal the

offense. See Smith, 332 S.W.3d at 439.        In particular, Fuente’s assistance in

disposing of a weapon after a crime does not make him an accomplice witness to

the crime without evidence of an affirmative act promoting the commission of the

murder. Here, there is no such evidence. See Druery, 225 S.W.3d at 500 (“[W]e

have previously held that merely assisting after the fact in the disposal of a body

does not transform a witness into an accomplice witness in a prosecution for

murder. The witness must still be susceptible to prosecution for the murder itself

by having affirmatively assisted in committing the offense. The same logic applies

to assisting [the defendant] in disposing of the gun after the murder; the fact that

[the witness] did so does not make him an accomplice witness to the capital

murder.”).

      We hold that the trial court did not err in refusing to instruct the jury to

consider whether Fuentes was an accomplice as a matter of fact. See id.

      II. Ineffective Assistance of Counsel

      To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) his counsel’s performance was deficient; and (2) a reasonable

probability exists that the result of the proceeding would have been different.


                                         9
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Lopez

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Trial counsel in this case

was retained rather than appointed, but the Strickland test applies to retained, as

well as appointed, counsel. See Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim.

App. 2005) (quoting Cuyler v. Sullivan, 446 U.S. 335, 344–45, 100 S. Ct. 1708,

1716 (1980)) (“[W]e see no basis for drawing a distinction between retained and

appointed counsel that would deny equal justice to defendants who must choose

their own lawyers.”).

      The first prong of the Strickland test requires the defendant to show that

counsel’s performance fell below an objective standard of reasonableness; in that

counsel made such serious errors that he was not functioning effectively as

counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Lopez, 343 S.W.3d at

142. Thus, the defendant must prove objectively, by a preponderance of the

evidence, that his counsel’s representation fell below professional standards.

Lopez, 343 S.W.3d at 142; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.

2002). We indulge a strong presumption that counsel’s conduct was within the

wide range of reasonable professional assistance, and the appellant must overcome

the presumption that the challenged action might be sound trial strategy. Williams

v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (quoting Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001)). When direct evidence is not available,


                                        10
we will assume that counsel’s strategy was reasonable if any reasonably sound

strategy can be imagined. Lopez, 343 S.W.3d at 143; see also Garza v. State, 213

S.W.3d 338, 348 (Tex. Crim. App. 2007).

      Strickland’s second prong requires the defendant to show a reasonable

probability that, if not for counsel’s errors, the result of the proceeding would have

been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Lopez, 343 S.W.3d

at 142.    A reasonable probability is “a probability sufficient to undermine

confidence in the outcome.” Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

App. 1999) (citing Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.

1986)). We consider whether the defendant has shown by a preponderance of the

evidence that counsel’s actions “so compromised the proper functioning of the

adversarial process that the trial court cannot be said to have produced a reliable

result.” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (citing

Strickland, 466 U.S. at 686, 104 S. Ct. at 2064)).

      Analysis

      Robinson contends that his trial counsel was ineffective because he elicited

testimony from a police witness that Mason is serving a life sentence for Sims’s

murder, and because he failed to object to the State’s questions that clarified on

redirect that Mason’s conviction was for the capital murder for hire and that

Robinson had hired Mason. On redirect, the witness testified:


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       Counsel: I believe that you were asked on cross-examination about that Bob
       Mason is currently serving a life sentence for this case, right?

       Fikaris: Yes, sir.

       Counsel: And he is serving a life sentence for this case, right?

       Fikaris: That’s correct.

       Counsel: And when you charged him with capital murder, was the
       aggravating factor in the charges you filed that he committed murder-
       for-hire by Ronald Robinson?

       Fikaris: Yes, sir.

       Counsel: And that’s what he was convicted of?

       Fikaris: That’s correct.

       Robinson cites Ex parte Hill to argue that if defense counsel opens the door

to evidence of a co-defendant’s conviction for the same offense, counsel was

ineffective, and the defendant should be given a new trial. See Ex parte Hill, 863

S.W.2d 488 (Tex. Crim. App. 1993). In Hill, defense counsel proffered the co-

defendant as an alibi witness and opened the door to the State’s introduction of

evidence of the witness’s guilty plea, undermining the alibi of his client. Id. at

489.

       In this case, Mason was not an alibi witness. Defense counsel instead

elicited testimony from a police witness that Mason was a gang member, had an

extensive criminal record, and was in prison for a violent crime; thus, his

statements implicating Robinson were not trustworthy. Defense counsel could

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have introduced evidence of Mason’s conviction as part of a reasonable trial

strategy to demonstrate that Mason was not credible and attempted to implicate

Robinson during his own trial. See Heiman v. State, 923 S.W.2d 622, 626–27

(Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (holding that failure to object to

inadmissible testimony about extraneous offenses could have been trial strategy

demonstrating victim’s lack of credibility).     Assuming without deciding that

counsel erred in eliciting the testimony that Mason was convicted because

Robinson hired him to murder Sims, Robinson fails to show that the outcome of

the proceeding would have been different had his counsel not elicited testimony

about Mason’s fate. The State proffered abundant evidence of Robinson’s guilt,

including Robinson’s threatening behavior toward Sims and Jeneanne, his presence

in front of the Simses’ house in the evenings before Sims left for work, J.

Martinez’s testimony about Mason’s meeting with Robinson, Fuentes’s testimony

that Robinson had paid Mason to kill someone, and K. Martinez’s testimony that

Robinson paid Mason to kill Sims because of Sims’s affair with Robinson’s wife.

      We conclude that Robinson has failed to meet the second prong of

Strickland. See Ex parte Martinez, 330 S.W.3d 891, 904 (Tex. Crim. App. 2011)

(“It is unlikely, in the face of all the evidence with which the jury was presented,

that the jury would have reached a different conclusion in the absence of the gang-

related evidence.”).


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       Because Robinson has failed to show a reasonable probability that, but for

counsel’s actions, the result of the proceeding would have been different, we hold

that Robinson has failed to satisfy the second prong of an ineffective assistance

claim. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Lopez, 343 S.W.3d at

142.

                                    Conclusion

       We hold that the trial court did not err in not giving the jury an accomplice-

witness instruction with respect to Fuentes’s testimony. We further hold that

Robinson has not shown that he received ineffective assistance of counsel at trial.

We therefore affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Do not publish. See TEX. R. APP. P. 47.2(b).




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