Opinion issued September 4, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00432-CR
NO. 01-13-00433-CR
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MICHAEL HILL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case Nos. 1277873 and 1320176
OPINION
A Harris County grand jury indicted Michael Hill on charges of aggravated
sexual assault and aggravated robbery. TEX. PENAL CODE ANN. §§ 22.01, 29.03
(West 2011 & Supp. 2014). After a jury found Hill guilty of both charges, the trial
court assessed punishment of forty-five years’ imprisonment on each charge, with
sentences to run concurrently.
On appeal, Hill contends that the trial court erred (1) in failing to include a
proper accomplice–witness instruction in the jury charge on his aggravated sexual
assault charge; and (2) in including an accomplice–witness instruction in the jury
charge relating to his aggravated robbery charge. Finding no error, we affirm.
Background
Adrienne F. met Hill, whom she knew as “Mark” or “Marcus,” near the
mailboxes in her apartment complex. After a short conversation, they exchanged
telephone numbers. A few days later, on September 13, 2010, Hill called Adrienne
and asked to see her. She told Hill, who was at least a foot taller than Adrienne,
that she could use his help in hanging curtains.
When Hill arrived, the two made small talk for a few minutes before Hill
excused himself to use the bathroom. They continued to converse through the
door. Adrienne asked Hill what he did for a living. The door opened, and Hill
pointed a gun at her. He said, “Actually, I’m working now.” As he pointed the
gun at her right temple, Hill told her to give him her money. Adrienne responded
that she didn’t have any; Hill told her to look through her purses. She gave Hill
$183 that she had set aside to pay her car loan, but Hill did not leave. Id. Instead,
he ushered her to the bed, unbuttoned his pants, and told her to remove her clothes.
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Continuing to hold the gun to Adrienne’s head, Hill ordered her to perform oral
sex, assaulted her vaginally, and then demanded more oral sex. When he finished,
Hill cleaned himself with a towel, dropped it on the floor, buttoned his pants, and
walked out of the apartment.
A few seconds later, Adrienne wrapped herself in a blanket and ran outside.
She saw Hill entering the front passenger side of a black SUV and noted the
license plate number. She yelled that she would call 9-1-1. Hill looked at her but
did not respond. The SUV started, backed out, and drove off.
Adrienne returned to her apartment and called the police. When two male
police officers arrived, she told them that Hill had robbed her at gunpoint.
Adrienne testified that she initially did not tell the officers that Hill sexually
assaulted her because she felt embarrassed about having let him into her apartment
in the first place.
After the officers left, Adrienne called and talked to a friend about the
ordeal, and the friend convinced her to report the assault. Adrienne did so, and the
officers returned to her apartment. This time, they brought a female officer with
them. They spoke with Adrienne again and conducted another search. That search
produced the towel that Hill had used.
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In the meantime, the officers located the SUV and apprehended Hill. The
same afternoon, they showed Adrienne a photo array, from which she identified
Hill as the person who had robbed and sexually assaulted her.
Hill testified in his own defense. Hill explained that he had encountered an
advertisement for escort services that Adrienne had posted on an Internet website
styled backpage.com. He called the telephone number provided in the ad and
arranged to meet her at her apartment. Hill denied having a weapon. He claimed
that he and Adrienne negotiated a $40 fee for oral sex. When he tried to pay her
with a $100 bill, he claimed that she tried to persuade him to have a longer sexual
encounter so that she could receive a higher fee. Hill testified that he was in a
hurry to leave. He saw a purse hanging on the bedroom door, reached in, took $60
out as change, and walked toward the front door. Hill claimed that when Adrienne
accused him of stealing her money, he turned to look at her and saw a knife in her
hand. He recounted that, as he left the apartment, she continued to yell at him
about stealing her money and threatened to call the police.
Adrienne admitted placing an ad on backpage.com, but denied having met
Hill through the website. She explained that she had placed the ad to earn extra
money while in graduate school; she had offered companionship in the ad, but not
sex. Adrienne had gone on several dates as a result of the ad, but took it down
immediately after the assault, about a month after the original posting.
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To rebut Hill’s testimony that the sexual contact with Adrienne had been
consensual, the State offered testimony from Harris County resident Stacie R.
Stacie recounted an experience involving Hill that occurred the afternoon of
Sunday, September 12, 2010—the day before the assault on Adrienne.
Stacie had met Hill at a social event several weeks before. He had
introduced himself as “Red,” and the two exchanged telephone numbers. That
Sunday afternoon, Hill called Stacie from his car and told her that he was near her
townhome. He asked if he could come by for a visit. Stacie assented.
When Hill arrived, Stacie noticed that he was sweating profusely. She
offered him a glass of water. While Stacie was in the kitchen, Hill said he left
something in his truck and walked out the front door. Hill returned with two men.
All three were armed. Hill held a gun to Stacie’s face. While the other men
ransacked Stacie’s home, Hill forced her to perform oral sex on him. When the
two other men were ready to leave, Hill, still holding the gun, fastened his pants
and left with them. Shaken, Stacie called her brother. She reported the incident to
the Houston Police Department two days later. In response to the State’s question,
Stacie averred that she has never posted an ad for escort services. Further, she
confirmed that Hill used the same pink gun when he assaulted her that Adrienne
described Hill using in her assault. Hill returned to the stand to testify to his
version of the second incident. He denied having a gun or any involvement in the
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robbery. He claimed that he also had found a posting for Stacie’s escort services
on backpage.com, and that the sexual encounter was consensual, whereupon the
State presented rebuttal testimony. One of the other assailants, Angelo Gonzalez,
corroborated Stacie’s version of the assault; he testified that he witnessed Hill’s
sexual assault of Stacie as he was coming down the stairs of the apartment.
Charge Error
On appeal, Hill complains that the trial court improperly instructed the jury
with respect to the accomplice–witness rule.
Standard of review
A trial court must submit to the jury “the law applicable to the case.” See
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2012); Bolden v. State, 73 S.W.3d
428, 431 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). When a statute
requires an instruction under the circumstances, that instruction is the “law
applicable to the case,” and the trial court must instruct the jury “whatever the
statute or rule requires.” Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim.
App. 2008). We review a trial court’s decision to deny a requested accomplice-
witness jury instruction for an abuse of discretion. See Smith v. State, 332 S.W.3d
425, 439–40 (Tex. Crim. App. 2011); Delacerda v. State, 129 S.W.3d 530, 538
(Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court abuses its discretion
only if its decision is “so clearly wrong as to lie outside the zone within which
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reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex.
Crim. App. 2008).
Accomplice–witness instruction
“An accomplice is someone who participates with [a] defendant before,
during, or after the commission of the crime and acts with the required culpable
mental state.” Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). The
Texas Code of Criminal Procedure prohibits a conviction based on an accomplice
witness’s testimony, unless other, non–accomplice evidence that tends to connect
the accused to the offense corroborates it. See TEX. CODE CRIM. PROC. ANN. art
38.14 (West 2005). To be an accomplice, a witness must have participated in some
affirmative act that promotes the commission of the offense with which the
defendant is charged. Druery, 225 S.W.3d at 498. If the evidence shows that a
witness is not an accomplice, a trial court need not instruct the jury on the
accomplice–witness rule. Smith, 332 S.W.3d at 440.
If the witness cannot be prosecuted for the defendant’s charged offense or a
lesser–included offense, then the witness is not an accomplice witness as a matter
of law. Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986). Further,
“complicity with an accused in the commission of another offense” does not
compel an accomplice witness instruction when there is no evidence that the
witness was complicit in committing the charged offense. Id.
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Hill complains that the trial court improperly used its accomplice–witness
instruction in connection with the extraneous aggravated robbery of Stacie but not
with the instruction on the sexual assault charge. We reject this complaint.
Aggravated sexual assault charge
The trial court was not required to instruct the jury regarding the accomplice
witness rule with respect to Hill’s sexual assault charge. Because the State had
charged Angelo Gonzalez with the aggravated robbery of Stacie, Gonzalez was an
accomplice as a matter of law for that offense. But the conviction stems from
Hill’s later sexual assault of Adrienne; the evidence at trial was that Hill alone
committed that crime. Because the jury heard no accomplice–witness testimony in
connection with the aggravated sexual assault charge involving Adrienne, and no
evidence showed that Gonzalez was complicit in that offense, an accomplice-
witness instruction would not have been proper. Id.
Although the trial court admitted testimony from Stacie and Gonzalez as
extraneous-offense evidence under Rule 404(b), this evidence does not compel a
different result. Extraneous offense evidence is admissible to rebut the contention
that the State’s theory is fabricated. See Wheeler v. State, 67 S.W.3d 879, 887 n.22
(Tex. Crim. App. 2002) (admitting extraneous–offense evidence to rebut defensive
theory of frame–up when extraneous misconduct is similar to charged offense and
when witness lacked motive to lie); Montgomery v. State, 810 S.W.2d 372, 382
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(Tex. Crim. App. 1990) (upholding admission of testimony by appellant’s ex–wife
concerning his inappropriate behavior and remarks around his children); Blackwell
v. State, 193 S.W.3d 1, 12 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)
(involving frame–up defensive theory motivated by “bad blood” among family
members). With regard to this evidence, the trial court instructed the jury on the
sexual assault charge:
if there is any evidence before you in this case regarding the
defendant’s committing an alleged offense or offenses other than the
offense alleged against him in the indictment in this case, you cannot
consider such evidence for any purpose unless you find and believe
beyond a reasonable doubt that the defendant committed such other
offense or offenses, if any, and even then you may only consider the
same in determining the motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident of the
defendant, if any, in connection with the offense, if any, alleged
against him in the indictment and for no other purpose.
The trial court was not obliged to add an accomplice–witness instruction for the
jury to properly determine the weight and credibility of Gonzalez’s testimony,
because Gonzalez was not an accomplice to the charged offense.
Aggravated robbery charge
Hill further complains that the trial court erred in submitting an accomplice–
witness instruction to the jury in connection with the aggravated robbery against
Stacie, contending that it allowed the jury to find Hill guilty by finding that
Gonzalez’s testimony regarding the extraneous offenses was corroborated. We
disagree.
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Following the application paragraph of the aggravated robbery charge
appears a Rule 404(b) instruction identical to the one given above in the
aggravated sexual assault charge. Following that instruction appears the following:
In regard to the charge involving complainant Stacie R[.]: An
accomplice, as the term is here used, means anyone connected with
the crime charged, as a party thereto, and includes all persons who are
connected with the crime by unlawful act or omission on their part
transpiring either before or during the time of the commission of the
offense, and whether or not they were present and participated in the
commission of the crime.
A person is criminally responsible as a party to the offense if
the offense is committed by his own conduct by the conduct of
another for which he is criminally responsible or both. Mere presence
alone, however, will not constitute one a party to an offense. A
person is criminally responsible for an offense committed by the
conduct of another if, acting with intent to promote or assist the
commission of the offense, he solicits, encourages, aids, or attempts to
aid the other person to commit the offense. The term “conduct”
means any act or omission and its accompanying mental state.
You are instructed that a conviction cannot be had upon the
testimony of an accomplice unless the accomplice’s testimony is
corroborated by other evidence tending to connect the defendant with
the offense charged, and the corroboration is not sufficient if it merely
shows the commission of the offense, but it must tend to connect the
defendant with its commission.
The witness, Angelo Gonzalez, is an accomplice, if an offense
was committed, and you cannot convict the defendant upon his
testimony unless you further believe that there is other evidence in
this case, outside of the testimony of Angelo Gonzalez tending to
connect the defendant with the offense committed, if you find that an
offense was committed, and the corroboration is not sufficient if it
merely shows the commission of the offense, but it must tend to
connect the defendant with its commission, and then from all the
evidence you must believe beyond a reasonable doubt that the
defendant is guilty of the offense charged against him.
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Hill’s contention disregards the opening sentence of the instruction, in which the
trial court instructed the jury that Gonzalez’s testimony relates to a different
offense—not the charged offense tried before them—and that it should consider
the evidence, if at all, for the purpose of evaluating Gonzalez’s credibility. The
instruction also reiterates that the jury must believe that Hill was guilty of the
charged offense to convict.
“On appeal, we generally presume the jury follows the trial court’s
instructions in the manner presented.” Thrift v. State, 176 S.W.3d 221, 224 (Tex.
Crim. App. 2005). Nothing in the record refutes the presumption that the jury
limited its consideration of Gonzalez’s testimony in the manner that the charge
directs.
Conclusion
We hold that the trial court did not err in submitting the aggravated sexual
assault charge without an accomplice-witness instruction. We further hold that the
trial court did not err in submitting the jury instructions addressing Gonzalez’s
testimony. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
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