Affirmed and Memorandum Opinion filed May 30, 2019.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00904-CR

                      ADRIAN RASHUN GASTON, Appellant
                                           V.
                        THE STATE OF TEXAS, Appellee

                      On Appeal from the 176th District Court
                              Harris County, Texas
                          Trial Court Cause No. 1524489

                      MEMORANDUM OPINION

         Appellant Adrian Rashun Gaston asserts that the evidence is legally
insufficient to support his conviction for capital murder either as a principal or as a
party.    Appellant also asserts that under the accomplice-witness rule, there is
insufficient   corroborating    evidence    tending   to   connect    appellant    with
the capital murder.    Lastly, appellant asserts that the trial court erred in including
in the jury charge, over his timely objection, a paragraph authorizing his conviction
as a co-conspirator. We affirm.
                   I. FACTUAL AND PROCEDURAL BACKGROUND

      The complainant, Cameron Wilson, was shot and killed in his apartment on
December 18, 2014. Lisa Mendoza testified that on this evening, she drove her
boyfriend, Akmal “Chino” Abdullaev, and his friend, appellant, to the Hollister
Apartments where they were going to “hit a lick.” Mendoza testified that the two
men entered the apartment and returned approximately 15 minutes later with
“money, some drugs, and a watch.” The men returned “running back” and looking
“sweaty and like their adrenaline was rushing.” In the car ride after the incident,
the men admitted to Mendoza that “they beat up somebody pretty badly.” She
testified “Chino told me that he shot somebody.”
      The appellant could not be excluded as a source of DNA found in the
fingernail scrapings of the complainant during the autopsy. The appellant was
arrested and charged by indictment with capital murder. Appellant pleaded “not
guilty.” A jury found the appellant guilty as charged, and the trial court sentenced
appellant to confinement for life, without the possibility of parole.


                             II. ISSUES AND ANALYSIS

A. Does sufficient evidence support the conviction?
      When evaluating a challenge to the sufficiency of the evidence supporting a
criminal conviction, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The
issue on appeal is not whether we, as a court, believe the State’s evidence or
believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State,
667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact stands as


                                           2
the only judge of the witnesses’ credibility and the strength of the evidence.
Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact
may choose to believe or disbelieve any portion of the witnesses’ testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). If any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.
1997).
      The indictment alleged that appellant, while in the course of committing and
attempting to commit the robbery of the complainant, intentionally caused the
complainant’s death by shooting him with a deadly weapon, namely a firearm. A
person commits capital murder if the person intentionally causes the death of an
individual in the course of committing or attempting to commit robbery. See Tex.
Penal Code §§ 19.02(b), 19.03(a) (West 2016); Owolabi v. State, 448 S.W.3d 148,
150 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Direct evidence of the
elements of the offense, including the identity of the perpetrator and culpable
mental state, is not required. Mayreis v. State, 462 S.W.3d 569, 573 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d). The jury is permitted to make reasonable
inferences from the evidence presented at trial, and circumstantial evidence is as
probative as direct evidence in establishing the guilt of the actor. Hooper v. State,
214 S.W.3d 9, 14 (Tex. Crim. App. 2007). “A person is criminally responsible as
a party to an offense if the offense is committed by his own conduct, by the
conduct of another for which he is criminally responsible, or both.” Tex. Penal
Code § 7.01(a) (West 2016); Cerna v. State, 441 S.W.3d 860, 864 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d).

      The trial court instructed the jury on the law of parties under Penal Code
section 7.02(a)(2) and the law of conspiracy under Penal Code section 7.02(b). See


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Tex. Penal Code § 7.02 (West 2016). Under section 7.02, “[a] person is criminally
responsible for an offense committed by the conduct of another if: . . . (2) acting
with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the
offense.” Id. § 7.02(a)(2); Cerna, 441 S.W.3d at 864. If, in the attempt to carry out
a conspiracy to commit burglary or robbery, capital murder is committed by one of
the conspirators, all conspirators are guilty of the capital murder actually
committed, though having no intent to commit it, if the capital murder was
committed in furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy. See Tex. Penal
Code § 7.02(b); Cerna, 441 S.W.3d at 864. When, as in this case, a jury returns a
general verdict and the evidence is sufficient to support a “guilty” finding under
any of the alternative allegations submitted, the reviewing court will uphold the
verdict. Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992);
Hernandez v. State, 171 S.W.3d 347, 353 (Tex. App.—Houston [14th Dist.] 2005,
pet. ref’d).
                                   The Evidence
       At trial, the State presented Lisa Mendoza, an accomplice witness, who
testified that she knew appellant through her ex-boyfriend, Chino, and that she saw
the two men together on various occasions. She testified that on December 18,
2014, she finished work around 5:00 p.m. or 6:00 pm, drove Chino to pick up
appellant, and then got lost driving as appellant and Chino directed her to take
them to an apartment. Mendoza testified that she was intoxicated on Xanax, and
was drowsy and sleepy.
       According to Mendoza, the men “started talking about getting something
from somebody at some apartment complex.” Mendoza stated that the men “were
talking about robbing somebody” during this drive, and that she assumed they
                                         4
would be robbing them of “drugs and money.” On cross-examination, Mendoza
testified that the men did not explicitly state that they were going to commit a
robbery; rather, they stated that they were going to “hit a lick.” “Hit[ting] a lick,”
she agreed, can mean “a variety of things,” such as purchasing drugs, burglarizing
an apartment, or even bargaining at a store.1            But Mendoza maintained she
believed the men were talking about a robbery. Mendoza also testified that both
men had guns in the vehicle.
       Mendoza stated that after she dropped the men off, she waited “about 15
minutes or so” and then they both came running back. Chino’s shirt was off, his
hands were full of blood, and he was holding money, drugs, and a watch.
Mendoza first testified that she could not see any marks, scrapes, bruises, blood,
drugs, money, a watch, or a torn shirt on appellant because it was dark. But, later
Mendoza clarified that she heard shuffling in appellant’s hands so she assumed he
also had something in his hands. According to Mendoza, on the ride back to
Chino’s house, Chino told her that he had shot somebody. Mendoza testified that
she was not aware that anybody was killed until an investigator later informed her.
       The State also presented Phillip McGill, a close friend of the complainant
who regularly spent time around the complainant. According to McGill, he had
spoken to the complainant around 3:00 p.m. on the night in question and believed
that he found him dead in the complainant’s apartment around 5:45 p.m. McGill
testified that he had planned to hang out with the complainant, and that when he
drove to the complainant’s apartment to pick him up and called him to come out,
he could not get a hold of the complainant. McGill testified that he noticed an air
mattress pushed up against blinds of the balcony window, and that this placement
seemed unusual. He knocked on the door. Finding the door closed but unlocked,

1
  See also Lewis v. State, 448 S.W.3d 138, 145–46 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d) (discussing meaning of the phrase “hit a lick”).

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McGill opened the door and saw the complainant “laying facedown.” McGill
testified “I could — I could tell he was shot. I seen the — the blood from the
bullet wound on the back of his shirt to see that he got shot in the back.” McGill
testified that he closed the door and left to go to Ronald Willis’s place, a friend
who lived in the area. Later, Rodrick Moore, Willis’s roommate, (and also a friend
of McGill) called the police and the three men returned to the scene. Police
investigators questioned them.
      McGill testified that the complainant sold drugs out of the complainant’s
apartment, and that the complainant was fairly open about this fact. McGill
testified that the complainant had a security system live feed camera, and he
explained the complainant would not answer the door unless he recognized the
person. He also testified that the complainant generally kept his house clean and
that he had some nice things.
      Several police officers gave accounts of the details from their investigation.
Officer Hoang Tran with the Houston Police Department (“HPD”), testified that
around 8:00 p.m. on the night in question, he received a dead-on-arrival call. He
met Houston Fire Department officers already on the scene. Tran testified that
when he entered the apartment, the body appeared to have been turned over. Tran
secured the scene and called for additional units.
      Detective Chad Hogue, who worked as an officer with the HPD homicide
division, testified that he and his partner, Mike Arrington, were notified and left for
the scene around 8:36 p.m. According to Detective Hogue, he interviewed and
tested Willis, Moore, and McGill for gunshot residue. Willis had gunshot residue
on his hands. During questioning, Willis admitted that he was “so high [on
marijuana] that day he didn’t know if he had fired a gun or not.” Buccal swabs
were taken for Chino, Willis, McGill, and appellant. Detective Hogue stated that
police recovered a .40 caliber semiautomatic weapon from Moore.
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      Detective Arrington testified that around 8:45 p.m., he arrived at the scene
and thought it looked “either like a stash house or somebody that was dealing
narcotics.” According to Detective Arrington, police found no evidence of forced
entry. Most of the blood on the scene was by the doorway. Police found drug
paraphernalia and different types of ammunition inside the home.
      Detective Arrington testified to his theory of what occurred. He believed
that the complainant was trying to get out of the front door in an attempt to escape
or simply close the door when he was shot in the back and “the bullet went through
him, ricocheted off the door and back into the apartment.” According to Detective
Arrington, they found two photos placed face-down in the bathroom, one drop of
blood found above the bathtub, and a frothy substance in the toilet that might
indicate someone got sick. Detective Arrington explained that these items together
might indicate that the suspect knew the complainant.            Detective Arrington
testified that “it appeared through our investigation that there wasn’t a whole lot of
stuff there, so it was kind of hard to tell if it really was shuffled through. But some
of the drawers, the content on the bathroom’s sink appeared to have been, like,
rifled through or kind of quickly gone through. But due to the fact that, you know,
there’s no drawers that were tossed or turned, we couldn’t really verify one way or
the other if someone had stolen anything or took anything from the apartment.”
Detective Arrington testified that he discovered an empty watch box in the
complainant’s bathroom. He explained that, consistent with his theory that there
was a robbery, the actual watch was not found in the complainant’s apartment or
on the complainant’s body.
      The State also presented forensic witnesses. Alex John, an assistant medical
examiner and forensic pathologist who worked at the Harris County Institute of
Forensic Sciences, testified that he conducted an autopsy of the complainant’s
body and gave an account of his findings. The body showed blunt force trauma on
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the left side of the face, gunshot wounds, an abrasion on the upper left chest, a red
abrasion, and a purple contusion — injuries that could be related to the
complainant having been punched or kicked. The complainant most likely was shot
from a distance of six inches or less, “from the back to the front and from the right
to the left and slightly downwards.” In John’s opinion, the cause of the
complainant’s death was a gunshot wound to the torso and left hand.
      Diana Donley, the criminalist who worked the case in the DNA section of
the Houston Forensic Science Center, provided testimony about the buccal swabs
and the complainant’s fingernail scrapings. Donley testified that for the blood swab
from the bathroom door, Wilson could not be excluded as a possible contributor,
but McGill, Willis, Moore, Chino, and appellant could be excluded. For the swab
from the blood on the bathtub, Chino could not be excluded as a possible
contributor, but Wilson, McGill, Willis, Moore, and appellant could be excluded.
The fingernail scraping and clippings from Wilson’s left hand revealed a mixture
of DNA from at least two individuals. Neither Wilson nor appellant could be
excluded as a possible contributor to the DNA mixture, but McGill, Willis, Moore,
and Chino could be excluded as possible contributors to the DNA mixture. In
cross-examination, Donley stated that it was not possible for her to determine how
long the DNA was under Wilson’s fingernails, whether this DNA was from blood
or skin cells, how the DNA got there, or even whether the DNA was transferred by
somebody else.
   Melinda Marshall, the mother of the complainant, Wilson, testified that the
images presented to the court were photos of her son.
   Whether these facts support the conviction under the co-conspirator theory

      The evidence suffices to support appellant’s conviction if, under the
applicable standard of review, a rational trier of fact could have found beyond a


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reasonable doubt that, in an attempt to carry out a conspiracy to commit robbery,
capital murder was committed by one of appellant’s fellow conspirators in
furtherance of the unlawful purpose, and appellant should have anticipated the
capital murder as a result of the carrying out of the conspiracy. See Tex. Penal
Code § 7.02(b). We first consider appellant’s sufficiency challenge under this
theory.

Complainant-killed-by-a-conspirator theory

      Appellant contends that the evidence is insufficient to show that either
appellant or Chino caused the complainant’s death.         He contends Mendoza’s
timeline of events made “it impossible that [the complainant] could have been
killed by [appellant and Chino] in light of the time of the body was discovered.”
He suggests that Mendoza’s testimony — that she got off work between 5:00 p.m.
and 6:00 p.m. and drove home before driving Chino to pick up appellant and then
to the complainant’s apartment — goes against McGill’s testimony that he found
the body around 5:45p.m., such that the State’s evidence is insufficient to support
the conviction. Even if we presume the testimony creates a conflict, we must defer
to the jury and presume, when faced with conflicting evidence about the timing of
the occurrence, the jury resolved conflicts in favor of the prevailing party. See
Carr v. State, 477 S.W.3d 335, 339 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d). The jury was free to discredit either Mendoza’s or McGill’s testimony
about the timing of their presence at the scene without discrediting other testimony
from these witnesses. See id.

      With respect to proof of appellant as the shooter, he asserts that there is “not
even a scintilla of evidence that the appellant caused [the] complainant’s death.”
For purposes of our analysis, we shall presume for the sake of argument that the
evidence is insufficient to show that appellant directly caused the complainant’s

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death and consider whether the evidence is sufficient to establish beyond a
reasonable doubt that Chino, appellant’s alleged co-conspirator, murdered the
complainant.    We conclude the evidence suffices to support such a finding,
particularly considering the combined evidence from Mendoza’s testimony (that
she drove Chino to the complainant’s apartment, that he left her vehicle towards
the complainant’s apartment with a loaded nine-millimeter gun, that he returned to
Mendoza’s vehicle with blood on his shirt, and that Chino admitted “that he shot
somebody”) and forensic evidence (showing that the complainant suffered a close-
range gunshot wound, and a nine-millimeter bullet and nine-millimeter casing were
found in the apartment, and that Chino’s DNA was found in the complainant’s
apartment). See Lewis v. State, 448 S.W.3d 138, 145–46 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d) (finding sufficient evidence of murder–with-intent-to-
rob-complainant elements where there was proof of defendant’s plan to “hit a
lick,” that he had driver take him to corner of complainant’s house and wait around
the corner, and that jewelry was stolen from her home).

Conspiracy to commit robbery
      Appellant argues that there is no evidence appellant entered into an
agreement to commit robbery. Mendoza testified that both appellant and Chino
were directing her where to drive, that both were armed, and both were talking
about robbing someone.      Although Mendoza testified that that she overheard
appellant and Chino “talking about robbing somebody” as she drove them to the
complainant’s house, appellant contends that Mendoza’s testimony was based on
her own interpretation about appellant and Chino’s use of the phrase “hit a lick,”
which Mendoza conceded has meanings other than robbery. Appellant states that
the evidence equally could show their intention to purchase drugs from a known
dealer at a low price, or even to commit a burglary.


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      We presume the jury, when faced with conflicting evidence, resolved
conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d at 47. Thus,
even presuming the “hit a lick” phrase has multiple meanings, the jury was free to
interpret from the surrounding circumstances—as Mendoza did—that the two men
were referring to a robbery, particularly given that appellant and Chino were
armed, entered the complex together, and ran back to the car with things in their
hands. See id.; see also Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App.
2012) (the court may look to evidence before, during, and after the commission of
the offense to determine whether there is sufficient evidence to determine whether
the appellant is a party). Moreover, the record contains no evidence that appellant
did not cooperate in the commission of the crime or tried to stop the crime. See
Johnson v. State, 421 S.W.3d 893, 898 (Tex. App.—Houston [14th Dist.] 2014, no
pet.). The cumulative weight of the incriminating evidence would permit a rational
trier of fact to find beyond a reasonable doubt that appellant and Chino entered into
a conspiracy to rob the complainant.

Murder-in-furtherance-of-the-conspiracy element

      Appellant also contends that there is no evidence the appellant’s murder was
in furtherance of conspiracy to commit robbery. A jury could have found that the
murder was in furtherance of this conspiracy from Mendoza’s testimony that she
overheard plans for a robbery, that appellant and Chino exited her car armed, that
appellant and Chino returned armed, bloody and also with “money, some drugs,
and a watch,” and Chino’s admission to having shot someone. See Nava v. State,
379 S.W.3d 396, 406 (Tex. App.—Houston [14th Dist.] 2012); Ervin v. State, 333
S.W.3d 187, 201-02 (Tex. App.—Houston [1st Dist.] 2010, pet ref’d).

Reasonably-anticipated-the-murder element

      Appellant contends there is no evidence that murder should have been
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anticipated as a result of carrying out the conspiracy. Mendoza’s testimony that
appellant had a gun and that Chino was visibly carrying a gun indicates that
appellant knew Chino was armed. Johnson v. State, 421 S.W.3d 893, 898–99
(Tex. App.—Houston [14th Dist.] 2014, no pet.)(finding evidence sufficient to
show that murder should have been anticipated upon evidence that defendant knew
his co-conspirator carried a gun during commission of the crime). A reasonable
juror could have concluded that the evidence proved beyond a reasonable doubt
that appellant should have anticipated the capital murder of the complainant as a
result of the carrying out of the conspiracy.

       Under the applicable standard of review, we conclude that the evidence is
legally sufficient to support appellant’s capital-murder conviction as a conspirator
under Penal Code section 7.02(b). See Tex. Penal Code § 7.02(b); Canfield, 429
S.W.3d at 69–70; Whitmire, 183 S.W.3d at 526–27; Turner, 414 S.W.3d at 797–
99. See also Moore v. State, 24 S.W.3d 444, 447 (Tex. App.—Texarkana 2000,
pet. ref’d) (holding that sufficient evidence supported aggravated-robbery
conviction when accused’s fellow conspirator shot victim with weapon found in
the home and noting that “when an individual decides to steal property from a
private residence, he should anticipate that he might be confronted and that his
conspirators might react violently to that confrontation.”). Having found legally
sufficient to support appellant’s capital-murder conviction as a conspirator under
Penal Code section 7.02(b), we need not address whether the other two alternative
theories are supported. See Hernandez v. State, 171 S.W.3d 347, 353 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref'd). Accordingly, we overrule the appellant’s
first issue.

B. Was the accomplice-witness testimony adequately corroborated?
       In the second issue, appellant asserts that the evidence is insufficient to

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support a conviction because the accomplice-witness testimony is not adequately
corroborated.
      The Texas Code of Criminal Procedure article 38.14, entitled “Testimony of
Accomplice” and commonly known as the accomplice-witness rule, provides that 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.
See Tex. Code Crim. Proc. Ann. art. 38.14 (West 2014). The accomplice-witness
rule expressly provides that “the corroboration is not sufficient if it merely shows
the commission of the offense.” Id. Appellant argues the record does not contain
sufficiently corroborated non-accomplice evidence tending to connect him with
either the intended robbery or murder of the complainant.
      According to allegations in the indictment, in the course of committing or
attempting to commit robbery, one of the conspirators intentionally caused the
complainant’s death by shooting him with a firearm. A person may be convicted as
a party to an offense if the offense is committed by the individual’s own conduct,
by the conduct of another for which the individual is criminally responsible, or
both. See id. § 7.01(a).
      The trial court instructed the jury on the “the intent to promote or assist”
theory of criminal responsibility under Penal Code section 7.02(a)(2) and the
conspirator theory of criminal responsibility under Penal Code section 7.02(b). See
id. § 7.02. Under section 7.02, “[a] person is criminally responsible for an offense
committed by the conduct of another if: . . . (2) acting with intent to promote or
assist the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2); Cerna,
441 S.W.3d at 864. If, in the attempt to carry out a conspiracy to commit burglary
or robbery, capital murder is committed by one of the conspirators, all conspirators
are guilty of the capital murder actually committed, though having no intent to
                                        13
commit it, if the capital murder was committed in furtherance of the unlawful
purpose and was one that should have been anticipated as a result of the carrying
out of the conspiracy. See Tex. Penal Code § 7.02(b); Cerna, 441 S.W.3d at 864.
      Each case must be judged on its own facts, and there is no set amount of
non-accomplice corroboration evidence required. Malone, 253 S.W.3d at 257. The
Court of Criminal Appeals has observed that seemingly insignificant circumstances
may constitute sufficient evidence of corroboration. Id. 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. Simply stated, the evidence must link the
accused in some way to the commission of the crime and show that rational jurors
could conclude that this evidence tended to connect the accused to the offense.
Malone, 253 S.W.3d at 257 (citing Hernandez v. State, 939 S.W.2d at 179).
      Aside from Mendoza’s accomplice-witness testimony, evidence at trial
included the following:
          Criminalist Donley’s testimony relating to the DNA evidence
           under the fingernail scrapings and clippings of the complainant,
           which indicated that appellant could not be excluded as a
           potential source of the DNA present at the scene of the crime.
          Forensic pathologist John’s testimony that evidence of the non-
           fatal injuries the complainant sustained around the time of his
           death could have been caused by appellant.
          Phillip McGill’s testimony that the complainant had a security
           system with live feed and would not have opened his door
           unless he recognized the person at the door, and that the
           complainant would fight back if he were threatened.
      McGill’s testimony indicates that the complainant most likely knew the


                                        14
appellant and provided access to appellant and Chino on that basis. The non-
accomplice DNA evidence also tends to connect appellant to the scene of the crime
and tends to show that appellant and the complainant were in a physical altercation
before or during the course of the complainant’s murder. See Trevino v. State, 991
S.W.2d 849, 852 (Tex. Crim. App. 1999).
      After eliminating the accomplice testimony from consideration and then
examining the remaining portions of the record, we conclude that the record
contains ample evidence linking appellant to the capital murder of the complainant.
Rational jurors reasonably could conclude that this evidence sufficiently tends to
connect appellant to this offense. See Simmons v. State, 282 S.W.3d 504, 509
(holding that sufficient non-accomplice evidence allowed rational jurors to find
that this evidence tends to connect the appellant to the offense). Under the
applicable standard of review, we conclude non-accomplice evidence tends to
connect appellant to the commission of the crime for which appellant was
convicted. See id. Accordingly, we overrule the appellant’s second issue.
C. Was there any error in submitting a paragraph authorizing conviction as
co-conspirator in the jury charge?
      In his third issue, appellant argues that the trial court erred in submitting to
the jury “a paragraph authorizing conviction as co-conspirator in the jury charge.”
In reviewing a complaint of jury-charge error, we first determine whether error
occurred and, if we find error, then we evaluate whether the error caused sufficient
harm to require reversal. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.
2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
      Even if not pled in the indictment, party liability is an available legal theory
if it is supported by the evidence. But a trial court errs in submitting a party-
liability instruction if the evidence adduced at trial would not support a jury verdict
under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App.

                                          15
1999). If a defendant requests that the jury charge’s application paragraph refer
only to those specific party-liability acts that are supported by the evidence, then
the defendant is entitled to such a narrowing statement. Vasquez v. State, 389
S.W.3d 361, 368 (Tex. Crim. App. 2012); Ferreira v. State, 514 S.W.3d 297, 302
(Tex. App.—Houston [14th Dist.] 2016, no pet.). At trial and on appeal, the only
party-liability acts appellant specifically has challenged are those pertaining to the
charge’s co-conspirator paragraph. See Tex. Penal Code 7.02(b).         For the same
reasons we have found the evidence legally sufficient to support the conviction
under Section II.A of this opinion, we find for purposes of our charge-error
analysis that the evidence adduced at trial would support the jury verdict.
Accordingly, we overrule the appellant’s third issue.
                                 III. CONCLUSION

      Appellant’s conviction is supported by legally sufficient evidence. Non-
accomplice-witness evidence sufficiently corroborates the accomplice-witness
testimony. Because the evidence is legally sufficient to convict appellant as a co-
conspirator, the trial court did not err in including the paragraph on the co-
conspirator theory in the jury charge.
      Having found no basis for appellate relief in the issues appellant has raised
on appeal, we affirm the trial court’s judgment.




                                         /s/    Kem Thompson Frost
                                                Chief Justice

Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.
Do not publish — TEX. R. APP. P. 47.2(b).



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