                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-308-CR


JAMES CURNEL                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                               I. INTRODUCTION

     Appellant James Curnel appeals his conviction for capital murder.     In

three points, Curnel argues that the trial court erred by not including an

accomplice-witness instruction in the jury charge, that his trial counsel was

ineffective for not requesting an accomplice-witness instruction in the jury




     1
         … See Tex. R. App. P. 47.4.
charge, and that the trial court erred by denying his motion for instructed

verdict. We will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Cavit Sevenler owned a moving truck. He and his helper Walter Oriana

picked up a load near Grand Prairie on January 11, 2007, and they parked the

truck in a motel parking lot in Grand Prairie for the night. Sevenler was on his

laptop talking to one of his two young daughters when three black men

approached his truck and one asked to borrow a phone. Oriana told Sevenler

to roll up the window because he “felt like something was going to happen.”

The men asked to borrow a phone again, cussed, and then left. Oriana went

to the sleeping compartment of the truck for the night. Shortly thereafter,

Oriana heard a gunshot and heard Sevenler call for him. Oriana went to the

front of the truck and saw that Sevenler had been shot. He ran to the road and

flagged down a police officer.

      An eyewitness told police that she had seen four black men leaving the

scene in a white Ford Taurus with license plate number H20 RLV.           Video

surveillance from the motel showed several men getting out of and back into

a Ford Taurus in the parking lot. The video did not capture the shooting.

      The day after the shooting, Detective Heath Wester, the detective

assigned to the case, received a call from an anonymous tipster giving him an

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address for a duplex in Arlington. Detective Wester, along with three other

detectives, went to the address. They found a white Ford Taurus with license

plate number H20 RYV, one digit different than the license plate number given

by the eyewitness, parked in the duplex’s parking lot. Emanuel Phillips lived at

the address given to Detective Wester.       Phillips answered the door and

immediately began telling the detectives about the shooting, without any

questioning from the detectives. While talking to the detectives, Phillips saw

Curnel and Chris Johnson leaving the duplex next door, and he pointed out the

two men to the detectives. Johnson’s mother owned the duplex next door to

Phillips’s, and Curnel had been staying there with Johnson.

      The detectives arrested Phillips, Curnel, and Johnson.      Police found

shotgun shells and a box of ammunition under a mattress in Johnson’s home.

They found paperwork belonging to Johnson’s cousin, Toborish Roberson, next

to the mattress. The police also arrested Roberson.

      Detective Wester interviewed Johnson, Roberson, and Phillips, and all

three men said that Curnel was the shooter. Johnson told officers that the

murder weapon, a shotgun belonging to Curnel, was hidden inside a mattress

in Johnson’s duplex. Police obtained a search warrant and searched Johnson’s

home a second time; they found a silver single-shot twelve-gauge shotgun

inside a mattress in Johnson’s bedroom, where Curnel and Johnson slept.

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      Detective Wester compiled two photospreads, one containing Johnson’s

photo and one containing Curnel’s photo. Oriana identified both men from the

photospreads. Curnel was indicted for capital murder for shooting Sevenler “in

the course of committing or attempting to commit the offense of robbery of

Cavit Sevenler.”

      At Curnel’s trial, Phillips testified that he had been at Johnson’s duplex

on the day of the shooting watching the movie Killa Season with Johnson,

Curnel, and Roberson.       Johnson, Phillips, and Roberson were smoking

marijuana, although Phillips did not recall Curnel smoking.       The four men

decided to go exchange Curnel’s shotgun for a pistol. They took Phillips’s Ford

Taurus to meet another man at a motel to trade the guns. The man was not

at the motel so they decided to drive around until he returned.           Phillips

explained at trial that they saw a man walking and decided to “jack him”; when

they approached, the man started acting scared so they decided to leave. They

then drove to the motel where Sevenler’s truck was parked and saw Sevenler

in the cab with his laptop open. Phillips testified that Curnel said, “That’s a

lick,” which means an easy robbery or “fast cash.” The men parked and tried

to come up with a plan to rob Sevenler. Curnel, Roberson, and Johnson walked

up to the truck while Phillips stayed by the car; Curnel had the shotgun. Phillips



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had only taken a few steps away from the car when he heard the gunshot, and

everyone ran back to the car. Curnel said, “He’s dead. He’s dead,” and “I

know how to hit a lick, and that’s how you do it in the movies.”        Phillips

testified that he was originally arrested for capital murder in connection with

Sevenler’s death but that he agreed to testify for the State in exchange for a

ten-year sentence for aggravated robbery.

      Johnson also testified against Phillips in exchange for a twelve-year

sentence for aggravated robbery. He testified that Curnel had been staying

with him for several months; they shared a bunkbed in Johnson’s room. He

testified that he, Curnel, Phillips, and Roberson were watching Killa Season,

smoking weed, and talking about getting away with murder on the day of the

incident. They left to exchange Curnel’s shotgun for a pistol, and while driving

around, a man stopped them and asked if they had any drugs. They then saw

Sevenler inside his truck. Curnel said it was “a lick”; when asked what “a lick”

means, Johnson testified that it could mean “numerous things” and that, in that

particular situation, he “didn’t think of it meaning anything.” He said that the

“last thing on [his] mind was robbery.” He explained that after they parked at

the motel, everyone but Phillips got out, “James shot the gun; we all left.”

      Laurel Hall testified that she lives near Johnson’s duplex, that she has



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known Johnson since elementary school, and that she was friends with Curnel.

She testified that on the night that Sevenler was shot, Curnel went to her

house and told her that he had shot somebody. A letter that Curnel wrote Hall

while in jail was also introduced at trial. In the letter, Curnel wrote, “I dont

know if its true or not but word is lil Chris [Johnson] ain’t the only sni[t]ch.”

Hall testified that she was upset because she thought Curnel was suggesting

that she “was snitching” even though she had not talked to police.

Additionally, Hall and Hall’s mother both testified that when Curnel went to

their house that night, he wanted to watch Channel 4 news because “they pick

up things real quick.”

      Curnel called Aaron Russell to testify on his behalf. Russell testified that

he and Curnel are friends and that he saw Curnel on the night of Sevenler’s

death. Curnel was upset and told Russell that he could not tell him the whole

story but that “someone was killed, and there was a robbery.” Russell also

testified that Johnson had told him that Curnel was in jail for something he did

not do.

      Scotty Bryant also testified for the defense. He testified that he had been

in jail with Johnson and that Johnson had confided to him that he was the one

who shot Sevenler “just to prove that he could kill somebody.”



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      The jury convicted Curnel of capital murder. Acknowledging that the

State had waived the death penalty, the trial court sentenced Curnel to life in

prison.

                                  III. J URY C HARGE

      In his first point, Curnel argues that the trial court erred by failing to

include an accomplice-witness instruction in the jury charge.               Curnel

acknowledges that his defense counsel did not object to the exclusion of the

accomplice-witness instruction, but he argues that he suffered egregious harm

as a result of the trial court’s error.

                              A. Standard of Review

      Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v.

State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).            Initially, we must

determine whether error occurred. If it did, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d

at 731–32.

      If there is error in the court’s charge but the appellant did not preserve it

at trial, we must decide whether the error was so egregious and created such

harm that the appellant did not have a fair and impartial trial—in short, that



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“egregious harm” has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19

(Vernon 2006); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008);

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm

is the type and level of harm that affects the very basis of the case, deprives

the defendant of a valuable right, or vitally affects a defensive theory. Allen,

253 S.W.3d at 264 & n.15; Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex.

Crim. App. 2006); Almanza, 686 S.W.2d at 172.

      In making an egregious harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument

of counsel and any other relevant information revealed by the record of the trial

as a whole.” Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d

at 172–74. The purpose of this review is to illuminate the actual, not just

theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious

harm is a difficult standard to prove and must be determined on a case-by-case

basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch,

922 S.W.2d at 171.




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                     B. Accomplice-Witness Instruction

      Article 38.14 of the code of criminal of 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.”   Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).              A

prosecution witness “who is indicted for a lesser included offense based upon

alleged participation in commission of the greater offense is also an accomplice

as a matter of law.” Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App.

1991). If a prosecution witness is an accomplice as a matter of law, the trial

court is under a duty to instruct the jury accordingly, and failure to do so is

error. Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002).

      The instruction does not require that the jury should be skeptical of

accomplice-witness testimony or give less weight to such testimony than to

other evidence. Id. The instruction merely informs the jury that it cannot use

the accomplice-witness testimony unless some non-accomplice evidence

connects the defendant to the offense. Id.

      The test for sufficient corroboration is whether, after excluding the

accomplice’s testimony, other evidence of an incriminating character tends to



                                       9
connect the defendant with the commission of the offense. Burks v. State,

876 S.W.2d 877, 887 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1114

(1995); Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993).

Corroborating evidence need not directly connect the defendant to the crime or

be sufficient by itself to establish guilt; instead, the combined weight of the

corroborating evidence need only tend to connect the defendant to the offense.

Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999), cert. denied,

528 U.S. 1082 (2000); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim.

App.), cert. denied, 522 U.S. 844 (1997).       Additionally, the corroborative

evidence may be circumstantial or direct, and the accomplice testimony need

not be corroborated on every element of the offense. Brosky v. State, 915

S.W.2d 120, 138 (Tex. App.—Fort Worth, pet. ref’d), cert. denied, 519 U.S.

1020 (1996).

      Non-accomplice evidence can render harmless a failure to submit an

accomplice-witness instruction by fulfilling the purpose an accomplice-witness

instruction is designed to serve. Herron, 86 S.W.3d at 632. The omission of

an accomplice-witness instruction is generally harmless under the egregious

harm standard unless the corroborating non-accomplice evidence is “‘so

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



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and significantly less persuasive.’” Id. (quoting Saunders v. State, 817 S.W.2d

688, 692 (Tex. Crim. App. 1991)).

                            C. No Egregious Harm

      Here, Curnel was indicted for and convicted of capital murder for killing

Sevenler in the course of committing or attempting to commit robbery. See

Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2009). Both Phillips and

Johnson testified that they had been indicted for aggravated robbery for their

participation in this crime; consequently, they were accomplices as a matter of

law, and the trial court erred by not including the accomplice-witness

instruction in the jury charge. See Zepeda, 819 S.W.2d at 876. We must

consider whether Curnel suffered egregious harm as a result of this error. See

Herron, 86 S.W.3d at 631.

      The non-accomplice evidence in this case consisted of (1) Oriana’s

identification of Curnel from a photospread and in court, (2) the videotape

showing four men in a Ford Taurus at the scene of the crime and an

eyewitness’s report of four black men at the scene in a white Ford Taurus, (3)

the shotgun found in the room where Curnel slept, (4) Hall’s testimony that

Curnel had told her that he shot someone, (5) Hall’s and her mother’s testimony

that Curnel had wanted to watch Channel 8 news at their house after the



                                      11
shooting because “they pick up things real quick,” (6) Curnel’s letter to Hall

suggesting that someone else was a “snitch,” and (7) Russell’s testimony that

Curnel had seemed nervous and had told him “someone was killed, and there

was a robbery.”

      Curnel does not dispute that non-accomplice evidence linked him to

murdering Sevenler, and the non-accomplice evidence—including his admission

to Hall that he had shot someone—certainly connects Curnel to Sevenler’s

murder and shows that he was the shooter. See id. However, Curnel argues

that no non-accomplice evidence tends to connect him to robbery in the course

of a murder as required to establish his guilt for capital murder. But the non-

accomplice evidence need not prove all the elements of the alleged offense or

directly link Curnel to the commission of the offense; rather, it is sufficient if it

tended to connect him to the offense.         See Cathey, 992 S.W.2d at 462;

Brosky, 915 S.W.2d at 138. Moreover, Russell’s testimony—that Curnel had

told him “someone was killed, and there was a robbery” does connect Curnel

with robbery.

      We hold that the corroborating non-accomplice evidence is not “‘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



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Saunders, 817 S.W.2d at 692). Consequently, we hold that the trial court’s

error in failing to include an accomplice-witness instruction in the jury charge

did not result in egregious harm to Curnel such that he did not have a fair and

impartial trial. 2 See Tex. Code Crim. Proc. Ann. art. 36.19; Allen, 253 S.W.3d

at 264; Hutch, 922 S.W.2d at 171; Almanza, 686 S.W.2d at 171.                 We

overrule Curnel’s first point.

                      IV. M OTION FOR INSTRUCTED V ERDICT

      In his second point, Curnel argues that the trial court erred by denying his

motion for instructed verdict at the close of the State’s case because no

corroborative non-accomplice evidence existed to support the accomplice-

witness testimony that he was guilty of capital murder.

       A challenge to the denial of a motion for instructed verdict is actually a

challenge to the legal sufficiency of the evidence. Canales v. State, 98 S.W.3d

690, 693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003); McCown v.

State, 192 S.W.3d 158, 160 (Tex. App.—Fort Worth 2006, pet. ref’d).

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in


      2
       … Curnel argues that we should apply the harm analysis set forth in
Davis v. State, 278 S.W.3d 346 (Tex. Crim. App. 2009), which applies to
ineffective assistance claims. We decline to do so but note that we apply Davis
to Curnel’s third point below and find no harm under that standard as well.

                                       13
order 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, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      In this case, Curnel is specifically challenging the legal sufficiency of the

non-accomplice evidence corroborating the accomplice-witness testimony that

Curnel, along with Phillips, Johnson, and Roberson, committed robbery or

attempted robbery. As we explained in addressing Curnel’s first point above,

the corroborating non-accomplice evidence sufficiently tended to connect

Curnel to the offense.     Curnel argues that we cannot consider Russell’s

testimony because he testified during the defense’s case-in-chief, after Curnel

had moved for an instructed verdict. However, our review of the evidence is

not limited to the evidence presented before Curnel’s motion for instructed

verdict, and we may consider Russell’s testimony in our review.                See

Montgomery v. State, 198 S.W.3d 67, 85 (Tex. App.—Fort Worth 2006, pet.

ref’d).

      Viewing the evidence in the light most favorable to the prosecution, we

hold that a rational trier of fact could have found that Curnel committed robbery

or attempted to commit robbery and that the accomplice-witness testimony



                                       14
was corroborated by Russell’s testimony.       Consequently, we hold that the

evidence is legally sufficient to support Curnel’s conviction for capital murder

and that, consequently, the trial court did not err in refusing an instructed

verdict for Curnel. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,

235 S.W.3d at 778. We overrule Curnel’s second point.

                      V. E FFECTIVE A SSISTANCE OF C OUNSEL

      In his third point, Curnel argues that his trial counsel was ineffective

because he did not request an accomplice-witness instruction be included in the

jury charge.

      We apply a two-pronged test to ineffective assistance of counsel claims.

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

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.

State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Hernandez v. State, 988

S.W.2d 770, 770 (Tex. Crim. App. 1999); Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999). To establish ineffective assistance of counsel, an

appellant must show by a preponderance of the evidence that his 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, 466 U.S. at 687, 104 S. Ct. at



                                        15
2064; Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 62–63; Thompson,

9 S.W.3d at 812. There is no requirement that we approach the two-pronged

inquiry of Strickland in any particular order, or even address both components

of the inquiry if the defendant makes an insufficient showing on one

component. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (1984).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with

a reliable result. Id. at 687, 104 S. Ct. at 2064. In other words, the appellant

must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Id. at 694, 104 S. Ct. at 2068.        A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. at 694, 104 S. Ct. at

2068. The ultimate focus of our inquiry must be on the fundamental fairness

of the proceeding in which the result is being challenged. Id. at 697, 104 S.

Ct. at 2070.

      In Davis v. State, the court of criminal appeals discussed the appropriate

analysis for an ineffective assistance claim in which defense counsel failed to

request an accomplice-witness instruction. 278 S.W.3d at 352–53. The court

held that the issue of prejudice “will generally turn on whether there was a



                                        16
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.” Id. at 353.

      In this case, we need not address whether, under the first Strickland

prong, Curnel’s attorney was ineffective for not requesting an accomplice-

witness instruction because Curnel has not satisfied the second Strickland

prong. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. As we explained

above, the non-accomplice evidence, if believed, established that Curnel

admitted to Hall that he had killed someone and wrote her a letter suggesting

that someone “snitch[ed],” that Oriana identified Curnel as one of the men who

approached Sevenler’s truck immediately before Sevenler was shot, that a

videotape showed four men in a Ford Taurus at the scene of the crime, that an

eyewitness reported four black men at the scene in a white Ford Taurus, that

police found a shotgun in the room where Curnel slept, that Curnel told Hall and

her mother to turn the television to Channel 8 because “they pick up things real

quick,” and that Curnel nervously told Russell that someone was killed and

there was a robbery.

      As detailed above, the record reflects a significant amount of non-

accomplice evidence that tended to connect Curnel to the offense committed.



                                      17
Furthermore, the record reveals no rational basis on which the jury could have

doubted or disregarded that evidence. See Davis, 278 S.W.3d at 352.         We

find no reasonable probability that, but for counsel’s alleged deficient

performance, the result of the guilt-innocence stage would have been different.

See id. at 352–53. Accordingly, we overrule Curnel’s third point.

                               VI. C ONCLUSION

      Having overruled Curnel’s three points, we affirm the trial court’s

judgment.

                                                 PER CURIAM

PANEL: WALKER, LIVINGSTON, and DAUPHINOT, JJ.

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

DELIVERED: January 28, 2010




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