 
 




                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00459-CR
                           ____________________

                  ERIC BERNARD MCGOWEN, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                    On Appeal from the 75th District Court
                           Liberty County, Texas
                         Trial Cause No. CR28585
________________________________________________________            _____________

                         MEMORANDUM OPINION

      A jury found Eric Bernard McGowen guilty of aggravated sexual assault of

a child and assessed his punishment at ninety-nine years in prison. McGowen

argues that the evidence was insufficient to support his conviction, that trial

counsel was ineffective, and that there was reversible error in the jury charge. We

find no merit to McGowen’s challenges and affirm the conviction.




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                                                               BACKGROUND

              R.S., an eleven-year-old girl, was sexually assaulted by a group of males

over a two month period at different locations. On one of the occasions, R.S. was

taken to the “baby room” in the “blue house” where she was sexually assaulted by

several males, and then later that day was again sexually assaulted by various

males in a brown trailer. R.S. testified there were probably more than twenty males

that assaulted her that day, and the record reveals she was at the blue house and the

trailer for several hours. Brad Lewis, Isaiah Ross, Marcus Porchia, and appellant,

Eric McGowen, were among those indicted for the aggravated sexual assault of

R.S.

              The jury not only found that McGowen committed aggravated sexual

assault, but also found that he acted in concert with another who engaged in

aggravated sexual assault of the child.1 The effect of both of those findings is to

increase punishment from a minimum of five years to a minimum of twenty-five

years. See Tex. Penal Code Ann. § 22.021(a)(1)(B), (2)(A)(v), (b)(1), (e), (f) (West

Supp. 2013).



                                                            
              1
         The “acting in concert” element makes the offense an aggravated sexual
assault. See Tex. Penal Code Ann. § 12.32 (West 2011), § 22.021(a)(1)(B),
(2)(A)(v), (b)(1), (e), (f) (West Supp. 2013).
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                       ACCOMPLICE-WITNESS INSTRUCTION

      In issue one, McGowen argues that the trial court erred in failing to include a

jury-charge instruction regarding accomplice-witness testimony, and that the error

caused him egregious harm. The accomplice-witness instruction is set out in article

38.14 of the Texas Code of Criminal Procedure and provides as follows:

      A conviction cannot be had upon the testimony of an accomplice
      unless corroborated by other evidence tending to connect the
      defendant with the offense committed; and the corroboration is not
      sufficient if it merely shows the commission of the offense.

Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). “A prosecution witness who is

indicted for the same offense with which the defendant is charged is an accomplice

as a matter of law.” Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002).

It is undisputed that Lewis, Ross, and Porchia were accomplices as a matter of law,

and they each testified at McGowen’s trial. “If a prosecution witness is an

accomplice as a matter of law, the trial court is under a duty to instruct the jury

accordingly.” Id. “Failure to do so is error.” Id.; see also Casanova v. State, 383

S.W.3d 530, 533 (Tex. Crim. App. 2012).

      Under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on

reh’g), the appropriate harm standard for such an error depends on whether the

defendant preserved error by bringing the improper omission to the trial court’s

attention. See Herron, 86 S.W.3d at 632; see also Casanova, 383 S.W.3d at 533-34
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(applying Almanza). If the error was properly preserved, the appeals court must

reverse if “some harm” is shown. Herron, 86 S.W.3d at 632. If the defendant

failed to preserve the complaint, however, the error “must be ‘fundamental’” and

requires reversal only “if it was so egregious and created such harm that the

defendant ‘has not had a fair and impartial trial.’” Barrios v. State, 283 S.W.3d

348, 350 (Tex. Crim. App. 2009) (quoting Almanza, 686 S.W.2d at 171). Under the

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

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

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

significantly less persuasive.’” Herron, 86 S.W.3d at 632 (quoting Saunders v.

State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)). The reviewing court “must

take the entire record into account, as in any Almanza analysis[.]” Casanova, 383

S.W.3d at 534.

                         ACCOMPLICE-WITNESS TESTIMONY

      Lewis, Ross, and Porchia each admitted to having sex with R.S. Each one

also testified to McGowen’s presence at the scene when the sexual assaults

occurred, but each one also testified he did not see McGowen engage in sexual

relations with R.S. Lewis further testified that approximately one week prior to

trial, McGowen threatened to kill him if he testified at trial.

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      The accomplices’ testimony provided no direct support for the allegation

pleaded in the indictment that McGowen sexually assaulted R.S. But the

accomplice-witness testimony did place McGowen at the scene of the sexual

assaults and did have implications for the “acting in concert” pleading in the

indictment and in the jury charge. Lewis testified that McGowen was one of the

males who picked R.S. up and brought her to the place where she was subjected to

what is commonly known as “gang rape.” Ross indicated he saw McGowen stick a

beer bottle in R.S.’s sexual organ. Porchia testified he saw McGowen standing

around in the room and watching as R.S. was being sexually assaulted by various

other males. Had the accomplice-witness instruction been given, the jury could not

have considered this accomplice evidence unless corroborating, non-accomplice

evidence tended to connect McGowen with the crime committed, including the

“acting in concert” element of the offense.

                         THE NON-ACCOMPLICE EVIDENCE

      There was non-accomplice evidence tending to connect McGowen to the

offense. R.S. testified McGowen and Jared Cruse picked her up in a car and took

her to a room known as the “baby room.” She recognized some of the males there,

including McGowen. One of the sexual assaults was recorded on videotape. The

prosecutor questioned R.S. about its contents. In response to the prosecutor’s

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question, R.S. agreed there were people “hollering in the background” while the

sexual assault was taking place, and she indicated McGowen was one of those

doing the “hollering.” The voice heard on the videotape is urging the perpetrator

on, while the sexual assault is being committed. R.S. testified the males present

took turns with her.

      The males then took R.S. to a brown trailer (the “brown house”). R.S.

testified that during the course of the various sexual assaults she had sex with

McGowen, and she performed oral sex on him. He also stuck a beer bottle in her

sexual organ. A videotape of that act was admitted into evidence and played for

the jury.

      Other non-accomplice, corroborating evidence included McGowen’s

written, signed statement and his videotaped statement in which he confessed that

R.S. performed oral sex on him. The jury also heard evidence that multiple males

used condoms, and numerous condoms and condom wrappers were recovered from

the scene. The testimony of the forensic scientist with the Texas Department of

Public Safety supported a finding that DNA from McGowen and R.S. was present

on one of the condoms found at the scene. Ashley Huynh, the forensic nurse

examiner who examined R.S., testified that R.S. told her that once she was at her

“home boy’s house,” McGowen and other males threatened R.S. with bodily harm

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if she did not “get naked[.]” She complied. R.S. also explained to Huynh that

McGowen put the glass beer bottle in her sexual organ, and then took her in a room

and sexually assaulted her with his sexual organ. The nurse’s examination occurred

on December 3, 2010, a few days after the November 2010 sexual assaults. Almost

two years later, during the August 2012 trial, R.S. testified she did not remember

whether she had sex with McGowen at the baby room that day, or whether she had

vaginal sex with McGowen at the brown house.

      Whether the trial court’s error in failing to submit an accomplice-witness

instruction is harmful is “a function of the strength of the corroborating evidence.”

Casanova, 383 S.W.3d at 539. The strength of the non-accomplice evidence is a

“function of (1) its reliability or believability and (2) how compellingly it tends to

connect the accused to the charged offense.” Id. As detailed herein, there was

significant non-accomplice evidence that tended to connect McGowen to the

aggravated sexual assault of R.S. and to his having acted in concert with others to

commit the offense. The non-accomplice evidence was not so unconvincing in fact

as to render the State’s overall case for conviction clearly and significantly less

persuasive. We find the failure to give the accomplice-witness instruction was

harmless, and we overrule issue one.




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                       INEFFECTIVE ASSISTANCE OF COUNSEL

      In issue two, McGowen argues his trial counsel was ineffective for failing to

request an accomplice-witness instruction. If counsel had done so, he would only

have had to show “some harm” rather than egregious harm. McGowen contends

that had trial counsel obtained the instruction, his counsel “could have argued that

the accomplices’ testimony should be discounted and dismissed by the jury, thus

chipping away at the State’s case.”

      To establish ineffective assistance of counsel, McGowen must show by a

preponderance of the evidence that his trial counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable probability

that, but for counsel’s deficiency, the result of the trial would have been different.

Strickland v. Washington, 466 U.S. 668, 687 (1984). “‘Reasonable probability’ is a

‘probability sufficient to undermine confidence in the outcome,’ meaning

‘counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.’” Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App.

2009) (quoting Strickland, 466 U.S. at 687, 694). As the Court of Criminal

Appeals has observed, “[I]t is difficult to envision that any competent attorney

would reasonably forego an accomplice-witness jury instruction as a matter of

strategy based on his theory of the case.” Zamora v. State, No. PD-1395-12, 2013

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WL 5729980, at *8 (Tex. Crim. App. Oct. 23, 2013). We assume, without

deciding, that trial counsel’s failure to request the accomplice-witness instruction

was deficient performance. We turn to the second prong under Strickland.

      In this context, the analysis will turn on “whether there was a substantial

amount of non-accomplice evidence and whether the record reveals any rational

basis on which the jury could have doubted or disregarded that evidence.” Davis v.

State, 278 S.W.3d 346, 353 (Tex. Crim. App. 2009). As we have detailed herein,

the record reflects there was a significant amount of non-accomplice evidence

tending to connect McGowen to the offense. We cannot say that, in the absence of

the testimony of Lewis, Ross, and Porchia, the non-accomplice evidence is so

unconvincing as to render the State’s overall case for conviction clearly and

significantly less persuasive. The record reveals no rational basis on which the jury

could have doubted or disregarded that evidence. Any failure to request an

accomplice-witness instruction was harmless, and there is not a reasonable

probability that, but for defense counsel’s failure to request an instruction, the

result of the trial would have been different. See Smith v. State, 392 S.W.3d 190,

197 (Tex. App.—San Antonio 2012, pet. ref’d). We overrule issue two.




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                   LEGAL SUFFICIENCY OF THE EVIDENCE

      McGowen argues the evidence is legally insufficient to support the finding

of guilt for aggravated sexual assault of a child and the finding that he acted in

concert with another in the commission of the same crime. We review the

sufficiency of the evidence to support a conviction by analyzing “whether, after

viewing the evidence in the light most favorable to the prosecution, 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). The jury has a

duty “to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Id. Our review of all of

the evidence includes evidence that was improperly admitted and properly

admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      The record reflects there is evidence, meeting the beyond-a-reasonable-

doubt standard, that McGowen engaged in oral and vaginal sex with R.S., and that

he acted in concert with other males that day who were engaging in the same

conduct. McGowen appears to argue that in order for “acting in concert” to have

occurred, he must have held R.S. down while another male committed the offense

of aggravated sexual assault. We find no such requirement in statute or case law.

See Arredondo v. State, 270 S.W.3d 676, 679-80 (Tex. App.—Eastland 2008, no

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pet.) (noting that “in concert” not defined in statute, but concluding that “two or

more individuals act in concert if their conduct is preplanned or if they act

conjunctively to achieve a common purpose”). The jury could have concluded

beyond a reasonable doubt that McGowen committed aggravated sexual assault

against R.S. and that he “worked conjunctively” with others in the commission of

the crime. We conclude the evidence is legally sufficient to support the jury’s

finding that McGowen committed aggravated sexual assault.

      We overrule issue three. The judgment is affirmed.

      AFFIRMED.

                                      ________________________________
                                              CHARLES KREGER
                                                   Justice

Submitted on November 8, 2013
Opinion Delivered December 18, 2013
Do Not Publish

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




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