                                         NO. 12-14-00255-CR

                                IN THE COURT OF APPEALS

                   TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

DENNIS MONTRELL BENDY,                                    §        APPEAL FROM THE 241ST
APPELLANT

V.                                                        §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                  §        SMITH COUNTY, TEXAS

                                         MEMORANDUM OPINION
        Dennis Montrell Bendy appeals his conviction for murder. In two issues, Appellant
argues that the nonaccomplice evidence is insufficient to support the verdict and that the trial
court erred in denying his requested jury instruction on the lesser included offense of
manslaughter. We affirm.


                                                  BACKGROUND
        During the evening of July 13, 2013, Darrian Lee drove his friend Ke’Avier Wilson-Hurd
to a local park in Tyler, Texas, to meet a group of women. Lee and Wilson-Hurd were gang
members.1 The park was located in a rival gang’s territory, and they knew they might encounter
trouble. Appellant is a member of the rival gang.2 Wilson-Hurd and Lee walked to the park
pavilion to determine whether any rival gang members were present. Wilson-Hurd was nervous
and held a handgun in plain view. Once they determined that no members of the rival gang were
present, they began socializing with the women. Brianna Young, the victim, was one of the
women. She was at the park with her young son.

        1
            Wilson-Hurd and Lee were in different gangs, but they were not rival gangs.
        2
         Wilson-Hurd met Appellant earlier in the day and agreed to a truce. Lee was present at this meeting. Lee
acknowledged that entering the territory of Appellant’s gang would be a violation of that truce.
        Members of the group noticed that a white Hyundai Elantra circled the park two or three
times. On the final time, Lee noticed that someone exited the vehicle and then the vehicle
circled around to their location. Almost immediately thereafter, shots were fired just outside the
vehicle, and separately, next to a bathroom in the park near where the individual was let out of
the vehicle. The shooters fired from opposing positions at Wilson-Hurd indicating that this was
a coordinated ambush designed to cut off any escape routes. Wilson-Hurd ran towards Lee’s
vehicle, and the shooters tracked his movement as they continued firing. Young rushed to aid
her son, who was in the area where the shots were fired. During that process, two bullets struck
Young, and she died shortly thereafter.
        None of the witnesses at the park could identify the shooters. However, investigating
officers were led to Rakheem Goldstein, who ultimately admitted to having been involved in the
shooting. Goldstein is in the same gang as Appellant, and Appellant and their gang had a feud
with Wilson-Hurd and his gang. A few hours before the incident at the park, Appellant told
Goldstein that Wilson-Hurd had just shot at Appellant and that Goldstein needed to meet with
Appellant for retribution.3 They learned that Wilson-Hurd was at the park. According to
Goldstein, Appellant planned to switch vehicles with Goldstein’s girlfriend so they would not be
recognized. The pair brought a change of clothes to make it more difficult to identify them after
the act was carried out. They also obtained a Glock handgun and an AK-47 assault rifle.
Appellant drove the vehicle because Goldstein did not have a driver’s license. The purpose of
this was to minimize the chance of a vehicle search in the event they were detained by police. A
search would have revealed their possession of the weapons. They also picked up fellow gang
member Elisha Williams, who possessed a Ruger handgun.
        Goldstein stated that as they drove to the park, Appellant devised a plan to let Williams
out of the vehicle so that he could cut off Wilson-Hurd’s escape route. Goldstein explained
further that as they circled around the park, Appellant jumped out of the vehicle and began firing
almost simultaneously with Williams, but from an opposing direction. Appellant returned to his
vehicle and sped away.4 Goldstein denied that he actively participated in the shooting.


        3
            Wilson-Hurd’s shooting at Appellant apparently took place on the same day after the truce meeting
occurred.
        4
            Appellant did not wait for Williams after the shooting occurred. Williams escaped by other means.




                                                          2
        Goldstein eventually told officers that they went to Katyron Barrett’s home to dispose of
the Glock and the AK-47. Barrett claimed he declined to handle the weapons and told Tyiska
Gray, a friend smoking marijuana at the house with him, to dispose of them. Barrett also
claimed that Gray dumped the weapons in the woods.                    During the investigation, Barrett
ultimately disclosed the location of the Glock and the AK-47, which were recovered by the
authorities. Williams told Goldstein that he gave the Ruger to Stephan Whitemon, who turned
the Ruger over to detectives. Ballistics testing on the firearms revealed that the two bullets that
struck the victim matched the Ruger that the detectives recovered.5
        Appellant pleaded “not guilty,” and the case proceeded to a jury trial. The jury found him
guilty of murder.        After a punishment hearing, the trial court sentenced Appellant to
imprisonment for life. This appeal followed.


                         SUFFICIENCY OF THE CORROBORATIVE EVIDENCE
        Appellant contends in his first issue that absent the accomplice witness evidence, the
evidence is insufficient to support the verdict.
Standard of Review and Applicable Law
        A conviction cannot be secured upon the testimony of an accomplice unless that
testimony is corroborated by other evidence tending to connect the defendant to the offense.
TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); Cocke v. State, 201 S.W.3d 744, 747 (Tex.
Crim. App. 2006). The corroboration is not sufficient if it merely shows the commission of the
offense. TEX. CODE CRIM. PROC. ANN. art. 38.14. In analyzing a challenge to the sufficiency of
corroborative evidence, we view the evidence in the light most favorable to the jury’s verdict.
Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008).
        To evaluate the sufficiency of corroboration evidence, we must eliminate all accomplice
testimony from consideration and examine the remaining portions of the record to see if any
evidence tends to connect the accused with the commission of the crime. Castillo v. State, 221
S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborating evidence need not be sufficient by
itself to establish guilt. Id. The nonaccomplice evidence need not link appellant directly to the
crime or establish guilt beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 613 (Tex.


        5
            Goldstein admitted to possessing the AK-47 during the shooting, but said he never fired it.   The
investigating officers did not obtain any shell casings matching the AK-47.


                                                     3
Crim. App. 1997). And the accomplice testimony need not be corroborated on every element of
the offense. Griffin v. State, 936 S.W.2d 353, 357 (Tex. App.—Houston [14th Dist.] 1996, pet.
ref’d). There need only be other evidence tending to connect the defendant to the offense. Id.
Corroboration is sufficient if there is any evidence that confirms a “mere detail” of the offense
even if it does not independently establish the elements of that offense. Lee v. State, 29 S.W.3d
570, 577 (Tex. App.—Dallas 2000, no pet.).          This may include “apparently insignificant
circumstances.” Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999).
       When there are two permissible views of the evidence, one tending to connect the
defendant to the offense and the other not tending to connect the defendant to the offense,
appellate courts should defer to that view of the evidence chosen by the factfinder. Simmons v.
State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). The issue is not how an appellate court
independently would assess the nonaccomplice evidence, but whether a rational factfinder could
conclude that the nonaccomplice evidence tends to connect the accused to the offense. Id. at
509. Direct or circumstantial nonaccomplice evidence is sufficient corroboration if it shows that
rational jurors could have found that it sufficiently tended to connect the accused to the offense.
Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).
       Each case must be judged on its own facts, and there is no set amount of nonaccomplice
corroboration evidence that is required. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App.
2008). Proof that the accused was at or near the scene of the crime at or about the time of its
commission, when coupled with other suspicious circumstances, may tend to connect the
accused to the crime so as to furnish sufficient corroboration to support a conviction. Id. But the
presence of a defendant at the scene of a crime, by itself, is insufficient to corroborate
accomplice testimony.      Id.   Therefore, we consider the combined force of all of the
nonaccomplice evidence that tends to connect the accused to the offense. Smith, 332 S.W.3d at
442.
Discussion
       Appellant argues that the nonaccomplice evidence is insufficient to connect him to the
commission of the offense because it at most shows that he was in the area of the offense when it
occurred, and that he may have been aware of the offense or with others involved in committing




                                                4
the offense.6 As part of his argument, Appellant contends that Madeline Wallace, Goldstein’s
girlfriend who supplied the vehicle, along with Kiara Cain, who was her passenger at the time of
the switch, are accomplices. Appellant also contends that Barrett, who helped hide the Glock
and AK-47 after the murder was committed, is an accomplice. We note that Appellant never
contended at trial that these witnesses were accomplices. In any event, none of them are
accomplices as a matter of law under the accomplice witness rule.
        A person who allows the defendant to borrow a vehicle used in the commission of the
offense is not an accomplice under the accomplice witness rule if she did not know that it would
be used to commit the offense and did not otherwise participate or plan the crime. See Sierra v.
State, 157 S.W.3d 52, 61 (Tex. App.—Fort Worth 2004), aff’d, 218 S.W.3d 85 (Tex. Crim. App.
2007). Wallace supplied the vehicle, but there is no evidence that she knew it would be used to
commit the offense. In fact, the record shows that she believed Appellant and Goldstein would
use the vehicle for temporary contract work and that Appellant and Goldstein preferred her fuel
efficient vehicle over Appellant’s large Lincoln.7 The record also shows that it was not unusual
for Goldstein to borrow Wallace’s vehicle. As to Cain, the record reflects that she was Wallace’s
roommate at the time, and was simply along for the ride as a passenger in her vehicle. There is
no evidence that either knew Appellant, Goldstein, and Williams would use the vehicle to
commit a crime. Consequently, they are not accomplices.
        With respect to Barrett, 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. A witness’s assistance in disposing of a weapon after a crime does not make
him an accomplice witness without evidence of an affirmative act promoting the commission of
the murder. See Druery v. State, 225 S.W.3d 491, 500 (Tex. Crim. App. 2007); Cruz v. State,
690 S.W.2d 246, 250–51 (Tex. Crim. App. 1985); Wincott v. State, 59 S.W.3d 691, 698 (Tex.
App.–Austin 2001, pet. ref’d). Appellant and Goldstein eventually traveled to Barrett’s home to

        6
           Appellant points out that the DNA profiles obtained from the firearms specifically exclude him, making
his connection to the offense even more tenuous. Specifically, Kimberlee Mack, the forensic scientist who tested
the guns, obtained a partial DNA profile from the grip of the Ruger, which excluded Williams. She found three
DNA partial profiles on the Glock, and those excluded Appellant. However, we view the corroborative evidence in
the light most favorable to the verdict. Brown, 270 S.W.3d at 567. Mack stated that the shooters could have been
wearing gloves when handling the firearms or they could have wiped them prior to relinquishing possession of the
weapons to third parties for disposal. She also noted that there was no DNA profile on the trigger of the Ruger or
the Glock.
        7
            Goldstein did not own a vehicle or have a valid driver’s license.


                                                            5
dispose of the weapons. The evidence shows at most that Barrett learned of the crime for the
first time after the fact and helped dispose of the weapons. He had no affirmative role in
planning or participating in the commission of the offense. Therefore, he is not an accomplice
under the accomplice witness rule.
       Turning to the nonaccomplice witness testimony, we conclude that the evidence tends to
connect Appellant to the commission of the offense. Cain and Wallace testified that they
switched vehicles with Appellant and Goldstein.       The investigating detectives learned the
location of the car switch from them and obtained a video recording confirming that Appellant
and Goldstein obtained the white Hyundai Elantra shortly before the murder was committed.
Lee and the group of women at the park confirmed at trial that they observed a white or light
colored Hyundai Elantra circled the park two or three times. Lee testified that he saw a person
exit the vehicle shortly before the shooting, and he knew the person who exited the vehicle was
the shooter close to the bathroom.
       The detectives obtained Appellant’s cellular phone records and determined he was at or
near the location of the murder at the time it occurred. See Brown v. State, 672 S.W.2d 487, 489
(Tex. Crim. App. 1984) (“Proof that the accused was at or near the scene of the crime at or about
the time of its commission, when coupled with other suspicious circumstances, may tend to
connect the accused to the crime so as to furnish sufficient corroboration to support a
conviction.”). The detectives were also able to speak with Barrett, who confirmed that Appellant
arrived at his house in the white Elantra and asked him to dispose of the weapons. See Roys v.
State, 416 S.W.3d 229, 235 (Tex. App.—Amarillo 2013, pet. ref’d) (evidence that defendant
gave weapons used in committing the offense to a third party for disposal tends to connect him
with the murder). Barrett also led the detectives to the Glock and the AK-47. Separately, the
detectives obtained the Ruger. Ballistics testing on the firearms showed that the Glock, fired by
Appellant, was fired at least eight times and the Ruger, fired by Williams, was fired at least
eleven times. See Cockrum v. State, 758 S.W.2d 577, 582 (Tex. Crim. App. 1988) (“Proof that
connects an accused to a weapon used in an offense is proper corroborative evidence.”). The
shot that killed Young came from the Ruger. We conclude that the nonaccomplice evidence
sufficiently tends to connect Appellant to Young’s murder.
       Appellant’s first issue is overruled.




                                               6
                                             JURY INSTRUCTION
       In his second issue, Appellant argues that the trial court erred in denying his requested
jury instruction on the lesser included offense of manslaughter.
Standard of Review
       We apply a two-step process to determine whether a defendant was entitled to an
instruction on a lesser offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012).
First, we determine whether the offense qualifies as a “lesser included offense” under Texas
Code of Criminal Procedure Article 37.09. See TEX. CODE CRIM. PROC. ANN. art. 37.09 (West
2006); Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). This is a question of law.
Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). Next, we determine whether there
is some evidence that would have permitted the jury to rationally find that, if the defendant was
guilty, he was guilty only of the lesser offense. Id. at 536.
       Although the threshold showing for an instruction on a lesser included offense is low—
more than a scintilla of evidence—the evidence must establish that the lesser included offense is
a valid and rational alternative to the charged offense. Hall, 225 S.W.3d at 536. “[I]t is not
enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must
be some evidence directly germane to a lesser included offense for the factfinder to consider
before an instruction on a lesser included offense is warranted.” Bignall v. State, 887 S.W.2d
21, 24 (Tex. Crim. App. 1994).
Applicable Law
   A person commits murder, in pertinent part, if he

   (1) intentionally or knowingly causes the death of an individual; [or]

   (2) commits or attempts to commit a felony, other than manslaughter, and in the course of and in
       furtherance of the commission or attempt, or in immediate flight from the commission or attempt,
       he commits or attempts to commit an act clearly dangerous to human life that causes the death of
       an individual.

TEX. PENAL CODE ANN. § 19.02 (b)(1), (3) (West 2011).
       A person acts “intentionally” with respect to the nature of his conduct or to a result of his
conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
Id. § 6.03(a) (West 2011). A person acts “knowingly” with respect to the nature of his conduct
or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that




                                                        7
the circumstances exist. Id. § 6.03(b). A person acts knowingly with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to cause the result. Id.
       A person commits manslaughter if he recklessly causes the death of an individual. Id.
§ 19.04(a) (West 2011). A person acts “recklessly” if with respect to circumstances surrounding
his conduct or the result of his conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or the result will occur.       Id.
§ 6.03(c). The risk must be of such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person would exercise under all the
circumstances as viewed from the actor’s standpoint. Id.
Discussion
       The parties correctly agree that manslaughter is a lesser-included offense of murder as
charged in this case. See Cavazos, 382 S.W.3d at 384; Moore v. State, 969 S.W.2d 4, 9 (Tex.
Crim. App. 1998). Thus, the first step of the two-step test is satisfied.
       Appellant contends Goldstein’s testimony demonstrates that a rational jury could have
found him guilty only of manslaughter. Specifically, Appellant argues the record shows only
that he had a desire to retaliate, and not necessarily to kill, Wilson-Hurd.         He relies on
Goldstein’s statements that Goldstein did not believe an actual shooting would take place and
that he did not believe there was a specific plan to kill Wilson-Hurd. As they arrived at the park,
Goldstein discussed with Appellant the danger to bystanders of shooting in a crowded area such
as the park. In response, Appellant assured Goldstein, “Man, I got aim. You know, I got this.”
This evidence, Appellant argues, shows that he was aware of a substantial risk to others, that he
chose to ignore it, and consequently the jury could rationally find that he was guilty only of
manslaughter.
       However, this evidence shows that Appellant actually intended to shoot Wilson-Hurd.
See Patterson v. State, 950 S.W.2d 196, 200-01 (Tex. App.—Dallas 1997, pet. ref’d) (holding
that shooting at vehicle occupied by rival gang members might allow jury to find involuntary
manslaughter, but evidence that defendant chased victim’s car and shot at it, with other
testimony that he intended to “do” them, failed to show he was not guilty of murder, and lesser
included offense manslaughter instruction not warranted).         The fact that the bullets hit an
unintended victim does not entitle Appellant to a charge on a lesser included offense, because his
intent with regard to his intended victim transfers to the actual victim. See TEX. PENAL CODE



                                                  8
ANN. § 6.04(b) (West 2011); see also Forest v. State, 989 S.W.2d 365, 368 (Tex. Crim. App.
1999); Harrell v. State, 659 S.W.2d 825, 827 (Tex. Crim. App. 1983).
       Moreover, the evidence at trial shows that Appellant (1) heard K.J. was at the park, (2)
planned to “get that n----r” according to Goldstein, (3) exchanged cars to avoid detection, (4)
drove around the park a few times and crafted a plan for Williams to come from another
direction to ambush Wilson-Hurd, (5) jumped out of the car and shot at least eight times into the
crowd, (6) disposed of the guns, and (7) exchanged vehicles again to avoid being identified. At
the time Appellant and Williams fired into the crowded group, their shots followed Wilson-Hurd
as he ran to Lee’s vehicle. Unfortunately, Young was killed in the process.
       In sum, the evidence shows that the crime was intentionally planned by Appellant, and
there is no evidence in the record that would have permitted the jury to rationally find that if
Appellant was guilty, he was guilty only of manslaughter. See Cavazos, 382 S.W.3d at 385 (no
evidence directly germane to recklessness, as pulling out a gun, pointing it at someone, pulling
the trigger twice, fleeing the scene, and later telling a friend “I didn’t mean to shoot anyone”
does not rationally support an inference that Appellant acted recklessly at the moment he fired
the shots); Robinson v. State, 945 S.W.2d 336, 342-43 (Tex. App.—Austin 1997, pet. ref’d)
(holding that shooting between the defendant and intended victim earlier in the day, the
defendant’s “haste to procure an automatic rifle,” and his “intentional firing” at an apartment
negated a finding of manslaughter and supported the trial court’s denial of that instruction in the
jury charge).
       Furthermore, the evidence mandates that the jury could find only that Appellant, at a
minimum, knowingly caused Young’s death when he fired the weapon. When a defendant uses
a deadly weapon in a deadly manner by firing it into a crowd, he knows that death or serious
bodily injury that could result in death could occur. See Medina v. State, 7 S.W.3d 633, 639
(Tex. Crim. App. 1999) (holding that a defendant was not entitled to a lesser included instruction
on manslaughter where evidence showed that defendant fired into a crowd without the intent to
kill any particular person); Vuong v. State, 830 S.W.2d 929, 934 (Tex. Crim. App. 1992)
(holding that “[a]ppellant’s use of a deadly weapon in a tavern filled with patrons supplies ample
evidence for a rational jury to conclude beyond a reasonable doubt that Appellant had the
requisite intent to kill”); Godsey v. State, 719 S.W.2d 578, 580-81 (Tex. Crim. App. 1986);
Rojas v. State, 171 S.W.3d 442, 447 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (“The



                                                9
evidence supports the inference that appellant knew his shooting the gun in the general direction
of a group of people including the four-year-old victim was reasonably certain to result in a
death.”).
         Since the evidence does not show that Appellant is guilty only of consciously
disregarding a known substantial and unjustifiable risk that serious bodily injury or death would
occur, he was not entitled to an instruction on the lesser included offense of involuntary
manslaughter.       Accordingly, the trial court did not err in refusing to instruct the jury on the
lesser included offense of manslaughter.
         Appellant’s second issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered July 22, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                         10
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 22, 2015


                                         NO. 12-14-00255-CR


                                  DENNIS MONTRELL BENDY,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-1575-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
