Opinion issued April 17, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00296-CR
                           ———————————
                       DAVID GLEN MAYS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 163rd District Court
                            Orange County, Texas
                      Trial Court Case No. B-120056-R


                         MEMORANDUM OPINION

      Appellant David Glen Mays was indicted for two counts of attempted capital

murder. A jury found him guilty of both counts and assessed punishment at life in

prison. Mays appeals, contending that (1) the evidence was insufficient to support
his conviction and (2) the State did not present sufficient evidence to corroborate

an accomplice’s testimony. We affirm.

                                   Background

      In May 2011, Mays was living with his girlfriend, Tiffany Thompkins, in a

mobile home. Based on information that Mays was selling drugs from the mobile

home, City of Orange Police Department officers obtained a no-knock search

warrant.

      On May 29, 2011, five officers executed the warrant. Sergeant R. Estrello

testified that he and Sergeant R. Ashworth, III, were on the front porch by the door

because they were assigned to enter the residence first, and the other officers were

lined up behind them. Although the officers had a no-knock warrant, Ashworth

knocked on the door because they could not open the locked burglar bars on the

front door.

      Estrello testified that when Ashworth knocked, a male voice responded from

inside the mobile home, “Who is it?” Ashworth yelled, “It’s the police. Open up.”

Estrello testified that no one opened the door and the officers heard someone

running around in the mobile home. Ashworth testified that he announced the

search warrant a second time and heard someone running around inside and saw

the figure of a person, through a curtain, running to the right of the front door,

toward the northern side of the mobile home.



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      Constable R. Straus from the Orange County Sherriff’s Department testified

that at that point—when the officers heard someone running inside the mobile

home—he observed a female looking out of the window that was to the left of the

front door—on the southern side of the mobile home. Estrello and Ashworth

started ramming the locked burglar bars, attempting to make a forced entry, and the

officers continuously yelled, “Search warrant. Police. Search warrant.” Estrello,

Ashworth, and Straus testified that they heard the male voice—coming from the

northern side of the mobile home—ask again, “Who is it?” Officer J. Laughlin of

the City of Orange Police Department, who also assisted in executing the search

warrant, likewise testified that he twice heard the male voice coming from the

northern side of the mobile home.

       While the other officers were seeking to gain entry though the front door,

Straus used his flashlight to break the window above the kitchen sink where he had

seen the woman standing. After Straus broke the window, the officers heard a

gunshot. Ashworth testified that the gunshot came from the same area in which

they had heard the male voice—the northern part of the mobile home. Estrello and

Ashworth testified that after the gunshot, they heard someone running towards the

southern end of the mobile home. Straus testified that once he gained entry, he

saw Mays running to the bathroom in the southern end of the mobile home.




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      Straus found Thompkins and Mays in the bathroom. Thompkins was “kind

of hunkered down on her knees with her hands up towards her head” and Mays

was leaning over the bathtub.      Straus testified that Mays was irate, verbally

abusive, and resisted arrest, even after he was handcuffed. Mays and Thompkins

were the only people in the mobile home.

      After handcuffing Mays and Thompkins and placing them in patrol cars, the

officers searched the mobile home. Lieutenant K. Reneau of the Pinehurst Police

Department testified that he found a firearm—a .40 caliber Glock, loaded with a

live round in the chamber—in the clothes hamper in the bathroom where Mays and

Thompkins were found. Reneau also testified that there was a .40 caliber shell

casing in the hallway, and Laughlin testified that the bullet’s shell casing was

found on the floor to the right of the front door. Identification technician Stephen

Ward was called to the scene to process the gunshot evidence and testified that

there was a bullet hole in the sheetrock immediately to the right of the front door,

which was the northern side of the door.

      Both Mays’s and Thompkins’s hands were swabbed for gunshot residue.

Russell Thomas White, a chemist with the Department of Public Safety Crime

Laboratory Service, testified that both samples tested positive for gunshot primer

residue particles and that he could not determine who shot the firearm from the

residue samples. White testified that primer residue can reach the hands of anyone



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near the shooter and that a person can get gunshot primer residue on their hands

from being near a weapon when it was fired or from touching the weapon after it

was fired.

      The indictment charged Mays with attempted capital murder of Ashworth

and Estrello.   Thompkins pleaded guilty to felony possession of a controlled

substance, but she was not indicted for attempted capital murder. In exchange for

her testimony, Thompkins received probation.

      Thompkins testified at trial that when the officers executed the warrant she

was cooking fried chicken in the kitchen while Mays was cutting and bagging

crack cocaine in the living room.     Thompkins testified that Mays was acting

nervous and told her that somebody had told him that the “laws was riding.”

Thompkins testified that when Straus broke the window, she ran to the bathroom,

which was in the southern end of the mobile home, and shut the door because she

was scared.

      Thompkins testified that she did not shoot the firearm and was already in the

bathroom when she heard the gunshot. Thompkins testified that after she heard the

gunshot, Mays entered the bathroom, dropped a firearm on the floor in front of

Thompkins, and attempted to dispose of the cocaine in the bathtub. Thompkins

picked up the firearm, placed it in the clothes hamper, and then hid behind the

door. Thompkins testified that although she saw Mays holding the firearm when



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he went in the bathroom to hide, she did not see him shoot the firearm. She

testified that at the time, she thought that the police, not Mays, fired the shot.

Thompkins admitted that she lied when she told the officers at the scene that she

did not know anything about the firearm.

                                        Discussion

      In two issues, Mays (1) contends that he was wrongly convicted on the

uncorroborated testimony of his accomplice, Thompkins, and (2) challenges the

sufficiency of the evidence to support his conviction.

                   Uncorroborated Accomplice Witness Testimony

A.    Applicable Law and Standard of Review

      An accomplice is a person who participates in an offense, before, during, or

after the commission of a crime and acts with the required culpable mental state.

Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004); Herron v. State, 86

S.W.3d 621, 631 (Tex. Crim. App. 2002) (en banc). To participate in an offense,

the witness must affirmatively act to promote the commission of the offense.

Paredes, 129 S.W.3d at 536.

      A witness is not an accomplice simply because he knew of the offense and

did not disclose it. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)

(en banc); Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986). And

evidence showing that a witness was present during the commission of the crime



                                           6
and participated in concealing the crime is not necessarily sufficient to raise the

issue of accomplice-witness status. Smith v. State, 721 S.W.2d 844, 851 (Tex.

Crim. App. 1986) (“Since there was no evidence adduced at trial to show anything

other than Thompson’s presence at the scene of the offense and his aid in carrying

the body to appellant’s truck, we hold that the trial court did not err in refusing to

instruct the jury that he was an accomplice witness.”); see also Gamez v. State, 737

S.W.2d 315, 322 (Tex. Crim. App. 1987) (“If a State’s witness has no complicity

in the offense for which an accused is on trial, his or her testimony is not that of an

accomplice witness whatever may have been his complicity with the accused in the

commission of other offenses.” (citations omitted)).        The critical question is

whether there is sufficient evidence in the record to support a charge for the same

offense against the witness alleged to be an accomplice. Blake, 971 S.W.2d at 455.

Whether the person is actually charged and prosecuted for his or her participation

is not relevant; what matters is the evidence in the record. Id.

B.    Analysis

      In his second issue, Mays contends that Thompkins was an accomplice and

that he was wrongly convicted on her uncorroborated testimony because it was the

only evidence linking him to the crime.

      To be an accomplice, a person must affirmatively promote the commission

of the offense. Paredes, 129 S.W.3d at 536. The evidence reflects that Thompkins



                                          7
was first in the kitchen and had run to the bathroom by the time the shot was fired.

No evidence places Thompkins on the northern side of the mobile home from

which the testimony of both the on-scene officers and forensic investigator

demonstrated the shot was fired.      Likewise, no evidence suggests Thompkins

encouraged Mays to fire the weapon.

      Mays argues that Thompkins became an accomplice by placing the firearm

in the clothes hamper and falsely denying knowing about the firearm. But a

witness does not become an accomplice by concealing evidence after a crime. See

Druery v. State, 225 S.W.3d 491, 500 (Tex. Crim. App. 2007) (holding that

witness who merely assisted after the fact in the disposal of a body and firearm

after a murder was not an accomplice to murder); Roys v. State, 416 S.W.3d 229,

234 (Tex. App.—Amarillo 2013, pet. ref’d) (holding that assisting murderer in

disposing of murder weapon after murder does not make one an accomplice);

Roden v. State, 338 S.W.3d 626, 630 (Tex. App.—Fort Worth 2011, pet. ref’d)

(holding that accomplice-witness instruction not required when evidence showed

that witness was inside appellant’s house with stolen property but also showed that

witness did not enter burglarized house and steal property); Navarro v. State, 863

S.W.2d 191, 202 (Tex. App.—Austin 1993, pet. ref’d) (holding that witness was

not accomplice even though he was present at the time of the murder, he failed to




                                         8
disclose the crime, and hid the weapon after the murder). Accordingly, we hold

that Thompkins was not an accomplice.1

      We overrule Mays’s second issue.

                            Sufficiency of the Evidence

A.    Standard of Review

      When evaluating the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the verdict and determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (en banc). The

standard is the same for both direct and circumstantial evidence cases. King v.

State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (en banc).

      We do not resolve any conflict of fact, weigh any evidence, or evaluate the

credibility of any witnesses, as this is the function of the trier of fact.           See

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore


1
      The trial court did not submit an instruction to the jury on Thompkins’s status as
      an accomplice witness as a matter of law or as a question of fact. Mays did not
      request an accomplice instruction and did not object to the charge on that basis.
      To the extent Mays is complaining about the trial court failing to submit an
      instruction on accomplices to the jury, we conclude that the trial court did not err
      because we hold Thompkins was not an accomplice. See Cocke v. State, 201
      S.W.3d 744, 747–48 (Tex. Crim. App. 2006) (stating that the trial court is not
      required to give the jury an accomplice witness instruction when the evidence is
      clear that the witness is not an accomplice either as a matter of law or as a matter
      of fact).

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resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,

819 S.W.2d 839, 843 (Tex. Crim. App. 1991) (en banc), and “defer to the jury’s

credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625

(Tex. Crim. App. 2006).

B.    Applicable Law

      Under section 19.02(b)(1), a person commits murder if he intentionally or

knowingly causes the death of another person or intends to cause serious bodily

injury and commits an act clearly dangerous to human life that causes the death of

another. TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (West 2011); Temple v. State,

390 S.W.3d 341, 359 (Tex. Crim. App. 2013). In the absence of other evidence,

the jury may presume the intent to kill from the use of a deadly weapon. Arnold v.

State, 234 S.W.3d 664, 672 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see

also Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) (quoting

Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (en banc) (holding

that when “a deadly weapon is used in a deadly manner, the inference is almost

conclusive that [the appellant] intended to kill . . .”)). A firearm, such as a

handgun, is a deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West

2011).

      A person commits capital murder when he commits murder under section

19.02(b)(1) and the murder is committed upon “a peace officer . . . who is acting in



                                         10
the lawful discharge of an official duty and who the person knows is a peace

officer.” TEX. PENAL CODE ANN. § 19.03(a)(1) (West Supp. 2013). A police

officer is a peace officer. TEX. CODE CRIM. PROC. ANN. ART. § 2.12(3) (West Supp.

2013). A person commits the offense of attempted capital murder if, with specific

intent to commit capital murder, the person “does an act amounting to more than

mere preparation that tends but fails to effect the commission of the offense

intended.” TEX. PENAL CODE ANN. § 15.01(a) (West 2011).

C.    Analysis

      We conclude the evidence supports Mays’s conviction. It is undisputed that

only two people—Mays and Thompkins—were in the mobile home when the shot

was fired. Officers Estrello, Ashworth, Straus, and Laughlin, who helped execute

the warrant, each testified that immediately before the gunshot, they heard a male

say, “Who is it?” They each also testified that the voice and the gunshot came

from the northern side of the mobile home. Laughlin, who was present when the

shell casing was found, and Ward, who later investigated the scene, also testified,

based on their investigation, that the gunshot came from the northern side of the

mobile home.

      Straus testified that he saw Thompkins in the kitchen, on the southern side of

the mobile home, just before the shot was fired, and that he saw Mays running

from the northern side of the mobile home towards the southern end just after. The



                                        11
only evidence of Thompkins’s whereabouts placed her on the opposite side of the

mobile home just before the gunshot. She testified that she did not shoot the

firearm and that she was in the bathroom when the shot was fired. Thompkins also

testified that after she heard the gunshot, Mays ran into the bathroom holding the

firearm.

      Mays contends the evidence was insufficient to prove he committed the

attempted capital murder because none of the officers saw Mays shoot the firearm,

and there was legally insufficient evidence to show that Mays, not Thompkins,

who admitted lying about the firearm, was the shooter.               But eyewitness

identification is not required for a conviction, Greene v. State, 124 S.W.3d 789,

792 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (eyewitness identification is

not necessary to identify perpetrator), and Thompkins’s credibility was a factor for

the jury to consider in weighing the evidence. See Brooks v. State, 323 S.W.3d

893, 899 (Tex. Crim. App. 2010) (stating that appellate courts must defer to the

jury’s determinations of witnesses’ credibility); Lancon v. State, 253 S.W.3d 699,

705 (Tex. Crim. App. 2008) (stating “[t]he jury is in the best position to judge the

credibility of a witness because it is present to hear the testimony, as opposed to an

appellate court who relies on the cold record”); Lowe v. State, No. 14-10-01049-

CR, 2011 WL 7984631, at *2 (Tex. App.—Houston [14th Dist.] Feb. 16, 2011,

pet. ref’d) (mem. op., not designated for publication) (holding that appellant’s



                                         12
argument that evidence was insufficient to support conviction because witness was

not credible because witness had lied to police was not persuasive).

      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational juror could have found beyond a reasonable doubt that Mays

committed the offense of attempted capital murder.        See Garza v. State, 398

S.W.3d 738, 745 (Tex. App.—Corpus Christi 2010, pet. ref’d) (holding that

although no one actually saw appellant pull trigger of firearm and shoot victim,

evidence that immediately after victim was shot, appellant was only person

standing nearby holding firearm and appellant left the scene was sufficient to

support murder conviction); Grayson v. State, No. 14-04-00226-CR, 2005 WL

1669537, at *2–3 (Tex. App.—Houston [14th Dist.] July 16, 2005, pet. ref’d)

(mem. op., not designated for publication) (holding evidence that appellant had

weapon and witnesses heard shots fired from a place at which appellant had been

standing, even though no one saw appellant actually fire the weapon, was

sufficient to support murder conviction).

      Accordingly, we hold the evidence was legally sufficient to support the

judgment and overrule Mays’s first issue.




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                                   Conclusion

      We affirm the trial court’s judgment.



                                                        Rebeca Huddle
                                                        Justice


Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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