                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-148-CR


DANIEL ERIC ROOF                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

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      A jury convicted Appellant Daniel Eric Roof of engaging in organized

criminal activity and aggravated assault with a deadly weapon.       The jury

assessed punishment at ninety-nine years’ confinement for engaging in

organized criminal activity and twenty years’ confinement for aggravated

assault. The trial court then sentenced him accordingly, with the sentences to




      1
          … See Tex. R. App. P. 47.4.
run concurrently.     In three issues, Appellant argues that (1) the trial court

abused its discretion and violated his rights to due process of law, compulsory

process, and a fair trial under both the state and federal constitutions by

refusing to grant a necessary and proper continuance; (2) the trial court abused

its discretion in failing to grant the requested accomplice witness instruction for

Jennifer Gomez-Perez; and (3) the cumulative total of the errors committed by

the trial court amounts to reversible error. Because we hold that the trial court

reversibly   erred   in   denying   Appellant’s   requested   accomplice   witness

instruction, we reverse the trial court’s judgment and remand this cause for a

new trial.

                                        Facts

      Appellant was arrested and charged with two counts of engaging in

organized criminal activity, one count of murder, and one count of aggravated

assault with a deadly weapon. The testimony at trial showed that on May 6,

2006, Aryan Circle members Robert Byrd, Shawn Goodrich, Johnny Freeman,

and Appellant met with fellow Aryan Circle member James Newell and his

mother, Ruth Adkins, at a Diamond Shamrock convenience store.               Atkins

complained to them that her daughter, Jennifer Newell, had begun shooting

methamphetamine with James Padgett, Jennifer’s boyfriend, and that he was




                                          2
“spinning [her] out.” “Spinning out” refers to being high on methamphetamine

to the point of unconsciousness.

      Byrd, Goodrich, Freeman, and Appellant then drove to Padgett’s home in

Granbury, Texas.    The truck they were driving belonged to one of Byrd's

friends, Jennifer Gomez-Perez, who was riding with them. Padgett was not at

home, but the group encountered him in his truck as they left his subdivision.

The four men got out of the truck; Appellant and Byrd were armed with knives.

Both men’s knives had black blades and handles, but Appellant’s knife also had

holes in the handle.    Freeman punched Padgett in the mouth, and both

Appellant and Byrd stabbed Padgett.

      The men then got back in the truck, and as they drove away, Appellant

used beer to clean off his knife, which he then threw out of the truck

somewhere behind the front gate of the subdivision. Appellant complained that

his knife had been “too dull to do anything,” but Byrd stated that he “got

[Padgett] good enough.”

      Padgett was taken to the hospital after he was found by people driving

through the area.      Relying on a tip from Goodrich, a sheriff’s deputy

subsequently found a knife that Goodrich identified as Appellant’s. Padgett

suffered from multiple complications from his injuries and died about a year

after the attack.

                                      3
      Appellant was indicted on four charges and brought to trial. The jury was

ultimately charged on two of the offenses for which Appellant had been

indicted: engaging in criminal activity (count three) and aggravated assault with

a deadly weapon (count four). The jury found him guilty on both counts.

                    Accomplice Witness Instruction Required

      Appellant requested a jury instruction regarding the testimony of Jennifer

Gomez-Perez, asking that the jury be instructed to determine whether she was

an accomplice as a matter of fact; the trial court denied his request. In his

second issue, Appellant complains of this denial.        The code of criminal

procedure provides, “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.” 2 A witness may be an

accomplice either as a matter of law or as a matter of fact.3        Unless the

evidence clearly shows that the witness is an accomplice as a matter of law,

in that the witness has been or could have been indicted with the same offense,

the question of whether the witness is an accomplice is properly left to the jury



      2
          … Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).
      3
      … Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006), cert.
denied, 549 U.S. 1287 (2007).

                                       4
as an issue of fact.4        The instruction in that case must define the term

“accomplice” and instruct the jury that, if the jury determines that the witness

is an accomplice as a matter of fact, the jury may not convict on the

accomplice testimony unless the testimony is corroborated by other evidence

tending to connect the defendant with the offense committed, and that the

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

offense.5

      In determining whether a person is an accomplice, courts may look to

events before, during, and after commission of the offense, including actions

that show an understanding and common design to do a certain act.6 To be an

accomplice witness, there must be some affirmative act on the witness’s part

to assist in the commission of the offense.7      A witness is not deemed an

accomplice because he knew of the crime but failed to disclose it or even




      4
          … Id. at 747–48.
      5
          … Id. at 747; see also Tex. Code Crim. Proc. Ann. art. 38.14.
      6
       … See Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986),
cert. denied, 492 U.S. 925 (1989).
      7
          … Kutzner v. State, 994 S.W.2d 180, 187 (Tex. Crim. App. 1999).

                                         5
concealed it.8 Likewise, mere presence at the scene or acting as accessory

after the fact is not sufficient to make a witness an accomplice.9

      The record shows the following. Gomez-Perez lived with Robert Byrd.

She owned the Dodge truck used to transport the group to and from the crime

scene. Gomez-Perez, Appellant, Goodrich, and Byrd drove to Freeman’s house

in Granbury to pick him up. They then went to a convenience store. Freeman

and Byrd got out of the truck to go talk to James Newell and his mother in the

parking lot. They talked for a few minutes and then got back into the truck.

The group then drove to James Padgett’s house.       They discussed killing a

person in general as they drove around. Although Gomez-Perez claimed that

Freeman drove, not she, and that she had ridden along only because she was

concerned about the welfare of her truck, she admitted that she had heard the

men talking about going to find James Padgett. She also admitted that she

knew Robert Byrd and Appellant were members of an Aryan gang and that she

had met them through her involvement with drugs.




      8
       … Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998); Harris
v. State, 738 S.W.2d 207, 215–16 (Tex. Crim. App. 1986), cert. denied, 484
U.S. 872 (1987); Russell v. State, 598 S.W.2d 238, 249 (Tex. Crim. App.),
cert. denied, 449 U.S. 1003 (1980).
      9
          … Blake, 971 S.W.2d at 454; Harris, 738 S.W.2d at 215–16.

                                      6
      When Gomez-Perez, Appellant, and the others arrived at Padgett’s house,

a female was standing on the porch. Byrd asked if Padgett was there, and she

said that he was not. The driver turned the truck around to leave. As they

were leaving the subdivision, they saw Padgett coming in. As they passed

Padgett, according to Gomez-Perez’s testimony, Freeman turned the truck

around and pulled in front of Padgett. Gomez-Perez testified that Appellant,

Freeman, and Byrd got out of the truck and that Appellant and Byrd were

carrying knives.   They took the knives with them as they walked behind

Gomez-Perez’s truck. Gomez-Perez made no attempt to drive her truck away

from the scene but instead stayed inside, waiting. She testified that she was

not curious about what the men were going to do with their knives.

      When they came back to the truck, the men were breathing heavily and

were still carrying their knives; their clothes had blood on them. As they drove

off in the pickup, Byrd threw the knives out of the truck after “[t]hey were

wiped off.” Gomez-Perez claimed that Freeman was still driving. They drove

down country roads until they ended up at a Wal-Mart. Although Gomez-Perez

claimed to be afraid of the men, she went into the Wal-Mart store with them

to buy clothes to replace their bloody clothing, she paid for their new clothes,

and she stayed with them as they drove to Desoto. She rented a room for all

of them, and they all went into the room. Byrd and Freeman took her phone

                                       7
and her keys to her truck and left. She stayed in the room with Appellant and

Goodrich.

      Goodrich, who admitted that he was with the group on the day they

stabbed Padgett, testified that he stayed in the truck with Gomez-Perez while

the others got out to talk to James Newell and his mother at the convenience

store. Goodrich testified that when they pulled over in front of Padgett, he

thought there was just going to be a fight.         But he also admitted that

beforehand, while riding in the pickup, he heard Byrd talking about killing

someone. Again, this conversation occurred during the pickup truck ride before

the attack occurred. Goodrich said that Byrd was trying to pump up Appellant

to see if he had “ever done that before” and to see if Appellant would be able

to stab Padgett. The men got out of the truck carrying their knives. Goodrich

saw the attack begin, and he heard it finish. He testified that when Appellant

got back in the truck, Appellant said that his knife was too dull to do anything.

Goodrich testified that, in his opinion, based on what he saw that day and

based on what he knew about the men in the Aryan Circle gang, the stabbing

of James Padgett was done “in furtherance of the gang.”

      Gomez-Perez claimed that she was sitting in the back seat the entire day

of the attack. But there is also some evidence that she was in the front seat.

Jennifer Newell testified that when Appellant came by looking for Padgett at

                                       8
the house she shared with Padgett, she saw Gomez-Perez seated in the front

seat of the pickup beside the driver.

      James Lanningham saw the men running from the scene of the stabbing

to Gomez-Perez’s truck. Lanningham testified that he saw the men who had

stabbed Padgett notice him, and then they turned around and fled. They ran

toward Gomez-Perez’s truck, and he watched them jump into it. He did not

remember whether the truck doors were open. He did not remember seeing

anybody get in via the driver’s door. They got in through the rear driver’s side

door and the front and back passenger side doors. He testified that that fact

led him to believe that someone he had not seen was behind the wheel.

      Gomez-Perez testified that Freeman had been driving before he got out

of the truck to attack Padgett, and Jennifer Newell testified that Gomez-Perez

was sitting beside the driver. If, as Lanningham suggested, neither Freeman nor

any other man got into the driver’s seat after the assault, that is some evidence

that Gomez-Perez was the getaway driver. In contrast to Lane v. State,10 this

is not a case of “mere presence.”

      Considering the evidence as a whole—

•     the truck belonged to Gomez-Perez,




      10
           … 991 S.W.2d 904, 907 (Tex. App.—Fort Worth 1999, pet. ref’d).

                                        9
•     she knew the men were members of the Aryan Circle,

•     she went with them in her truck to the Diamond Shamrock,

•     she saw them talking to James Newell and his mother (although there is
      no evidence that she heard what they discussed),

•     in the truck, the group discussed killing a person, asking whether
      Appellant was up to it and trying to pump him up,

•     Gomez-Perez accompanied the men to Padgett’s house, looking for him
      and asking about his whereabouts,

•     they pulled over Padgett’s truck, she waited in her truck while the men
      got out with knives and stabbed Padgett, and she may have been the
      getaway driver, and

•     although their clothes were bloody when they got back in the truck, and
      they wiped off their knives and threw them out of the truck, she
      nevertheless went with them to Wal-Mart and bought them new clothes,
      and then to DeSoto where she rented them a motel room, and then she
      gave her keys to Freeman so he and Byrd could drive her truck away—

we hold that there is some indication that Gomez-Perez acted as an accomplice

by providing the truck and the gasoline, accompanying the attackers, staying

in the truck as a lookout would, keeping the truck at the crime scene to be

available for the attackers to escape, and then acting as the getaway driver.

This evidence is more than sufficient to permit the jury to conclude as a matter

of fact that Gomez-Perez was an accomplice. The trial court, therefore, erred

in refusing to submit an instruction on accomplice as a matter of fact.




                                      10
                         Appellant Suffered Some Harm

      Next, under Almanza, we must determine whether Appellant suffered any

harm.11 There was no physical evidence connecting Appellant to the offense.

Although there is evidence from various witnesses concerning his participation,

all of the witnesses who testified concerning the acts they viewed at or near

the time of the offense were accomplice witnesses, except for Jennifer Newell

and Lanningham. Lanningham could not identify Appellant as one of the men

he saw running to the truck. Jennifer Newell testified that she saw Appellant

in the truck, but there was also evidence that she had a very serious drug

problem and fell off the porch when she came outside in response to

Gomez-Perez’s truck’s approach. Jennifer Newell’s testimony conflicted with

Gomez-Perez’s testimony concerning where Gomez-Perez was sitting in the

truck. It is unclear whether the jury found Jennifer Newell a credible witness.

      The only evidence connecting Appellant to the offense itself was the

testimony of the accomplices, including Gomez-Perez. Applying the appropriate

test, we therefore hold that Appellant suffered some harm as a result of the

trial court’s error in refusing to instruct the jury to consider whether




      11
           … See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).

                                      11
Gomez-Perez was an accomplice as a matter of fact. We sustain his second

issue.

                                      Conclusion

         Because his second issue is dispositive, we do not address Appellant’s

remaining issues,12 except to note, in the interest of judicial economy, that he

is entitled to the previous testimony of the witnesses for purposes of cross-

examination.13 Having sustained Appellant’s second issue, we reverse the trial

court’s judgment and remand this cause for a new trial.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 26, 2009




         12
              … See Tex. R. App. P. 47.1.
         13
       … See Tex. R. Evid. 615; Enos v. State, 889 S.W.2d 303, 305 (Tex.
Crim. App. 1994) (explaining the Gaskin rule).

                                            12
