Jor"Dan Jacqueinn Maurice Lewis v. State

Affirmed and Opinion filed September 16, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00330-CR

JOR’DAN JACQUEINN MAURICE LEWIS, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 11CR2636

OPINION

Appellant Jor’dan Jacqueinn Maurice Lewis appeals his conviction for
capital murder, which allegedly occurred when he was fourteen years old. In his
first two issues, appellant asserts the trial court erred in its submission of
accomplice witness instructions to the jury. In his third issue, he challenges the
sufficiency of the evidence. And in his fourth through seventh issues, he contends
that the imposition of his sentence—mandatory life in prison with a chance of
parole in forty years—violated several provisions of the United States and Texas
constitutions. We affirm.

I. Background

On May 29, 2011, the complainant was discovered in her home with over 25
stab wounds from three different kitchen knives. None of the wounds, however,
were apparently of a defensive nature, suggesting she may have known her
assailant. There were also no signs of forced entry at the house. The complainant
lived across the street from appellant’s grandmother’s house, where appellant
himself had lived until a few months prior to the murder. One of complainant’s
neighbors testified to having seen complainant in her front yard earlier that day,
then later seeing appellant at the complainant’s front door, but not seeing the
complainant after that. Appellant’s palm print was discovered on a cabinet above
the position where the complainant’s body was found. Areas of the home had been
ransacked, and jewelry belonging to the complainant was missing.

According to several witnesses, appellant moved into an apartment with two
older males when he was fourteen. Kimberly Jackson testified at trial that she met
appellant at the apartment. On the day of the murder, she overheard appellant
asking one of the older male residents to drive him “to get some money or hit a
lick.”1 The older male agreed when appellant offered him “gas money.”
According to Jackson, the other, older male resident wanted everyone to leave the
apartment around that time and requested that appellant and the older male take
Jackson with them. The older male drove and parked his car around the corner
from a particular house as appellant directed. Appellant left the vehicle for about
fifteen to twenty minutes, after which he signaled Mills to drive up to the

1
A police officer testified that “hit a lick” was a common phrase meaning to perform a
robbery or burglary.

2
complainant’s house. Appellant then grabbed a pillowcase from behind some
shrubs and got into the car. He first said that he had killed someone and then
indicated he was joking and “[s]he wasn’t there.” When they returned to the
apartment, appellant and the two older males took money and jewelry out of the
pillowcase and divided it between them.

Another young female testified that she had met appellant at the apartment
several months before. On May 29, she noticed appellant and one of the older
males were wearing jewelry she had never seen them wear before. Appellant also
gave her a gold necklace that she thought he had probably stolen. Additionally,
appellant said to her, “You know I killed somebody before, right?” but then said
“I’m just playing.” Another female witness also testified that appellant gave her
jewelry. She later turned the jewelry over to the police.

On June 7, ten days after the murder, appellant’s grandmother accompanied
him to a police station where he turned himself in to police. At the time, he had a
jewelry box in his pocket. Appellant’s grandmother also turned items of jewelry
over to the police. The complainant’s daughter identified several pieces of the
jewelry held or dispensed by appellant as having belonged to her mother.

A jury found appellant guilty of capital murder. The trial court was then
obligated under Penal Code section 12.31(a)(1) to sentence him to life in prison
with a chance of parole in 40 years. Tex. Pen. Code § 12.31(a)(1).

II. Jury Charge Complaints

In his first two issues, appellant complains that the accomplice witness
instruction provided in the jury charge was deficient because it failed to instruct on
a theory of conspirator liability as a basis for Kimberly Jackson being considered
an accomplice witness and it omitted as a basis for treating Jackson as an

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accomplice her possible culpability for a lesser included offense. An accomplice is
someone who participates with the defendant before, during, or after the
commission of a crime and acts with the required culpable mental state. Druery v.
State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). “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 . . . .” Tex. Code
Crim. P. art. 38.14; see also Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim.
App. 2007). If a prosecution witness is an accomplice, the trial court must instruct
the jury accordingly. See Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App.
2002). 2

Here, the trial court’s instructions regarding accomplice witnesses read as
follows:

You are instructed that an “accomplice,” as the term is
hereinafter used, means any person 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.
....
Upon the law of accomplice witness testimony, you are
instructed that a person who has participated with someone else
before, during or after the commission of a crime, is an accomplice
witness. In such a case, there must be some evidence of an
affirmative act on the witness’[s] part to assist in commission of the
2
An accomplice-witness instruction should inform the jury whether the witness is an
accomplice as a matter of law or might be one as a matter of fact. See Cocke v. State, 201
S.W.3d 744, 747 (Tex. Crim. App. 2006). A witness is an accomplice as a matter of law when
he or she has been charged with the same offense as the defendant or a lesser-included offense,
or “when the evidence clearly shows that the witness could have been so charged.” Druery, 225
S.W.3d at 499, Cocke, 201 S.W.3d at 747–48. In regards to matter-of-law accomplices, the
charge must inform the jury that their testimony has to be corroborated. See Druery, 225 S.W.3d
at 498–99. However, when there is conflicting or inconclusive evidence concerning the
witness’s complicity, the charge must ask the jury to (1) decide whether the witness is an
accomplice, and (2) if so, apply the corroboration requirement. Id.

4
 offense. If the witness cannot be prosecuted for the offense with
which the accused is charged, then the witness is not an accomplice
witness as a matter of law. A witness is not an accomplice witness
merely because he or she knew of the offense and did not disclose it,
or even concealed it. The witness’s presence at the scene of the crime
does not render that witness an accomplice witness.
Now, if you find from the evidence that Kimberly Jackson was
an accomplice, then you are further instructed that you cannot convict
the Defendant upon Kimberly Jackson’s testimony, unless you first
believe that testimony is true and shows the guilt of the Defendant as
charged in the indictment, and then you cannot convict the Defendant
unless Kimberly Jackson’s testimony is corroborated by other
evidence tending to connect the Defendant with the offense charged.
The corroboration is not sufficient if it merely shows the commission
of an 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, or if you have a reasonable doubt thereof, you will acquit
the defendant.
In his first issue, appellant relies on the Court of Criminal Appeals’ recent
Zamora v. State opinion, which was released after the trial in this case, wherein the
court explicitly held an accomplice witness instruction must be given when the
evidence raises the question of whether a witness is an accomplice under a party-
conspiracy theory. 411 S.W.3d 504, 512 (Tex. Crim. App. 2013); see also Tex.
Code Crim. Proc. art. 38.14 (governing accomplice witness instructions); Tex.
Penal Code § 7.02(b) (concerning criminal culpability for party as co-conspirator).
The Zamora Court did not specify what an instruction in such a case needed to say,
just that there needed to be such an instruction. The court noted, however, that
courts frequently tailor the accomplice witness instruction to fit the circumstances
presented in the particular case. Zamora, 411 S.W.3d at 510-11. The court also
noted that the accomplice witness instructions in that case included only reference
to a direct-party theory and not a conspiracy theory of party liability. See id. at

5
508.

Appellant complains that the instruction provided did not fully explain that
Jackson could be considered an accomplice witness if she participated in a
conspiracy with appellant. 3 Appellant additionally points out that the charge
appears to require the witness have performed an affirmative act in furtherance of
the crime charged, which is not a requirement for conspiracy liability under section
7.02(b). Tex. Penal Code § 7.02(b).

In his second issue, appellant points out a second problem with the
accomplice witness instructions, i.e., the statement that: ”If the witness cannot be
prosecuted for the offense with which the accused is charged, then the witness is
not an accomplice witness as a matter of law.” As Zamora and earlier cases point
out, a witness can be an accomplice witness as a matter of law if he or she could
have been charged with the same offense as the defendant or a lesser included
offense. 411 S.W.3d at 510.

For its part, the State does not specifically deny that if there was evidence
Jackson was involved in a conspiracy with appellant, or could have been charged
with a lesser included offense, that a different instruction should have been given.
Instead, the State argues (1) there was no evidence to support any accomplice

3
Appellant further suggests that a proper instruction would have looked like the
following passage from the San Antonio Court of Appeal’s De La Rosa opinion, as quoted in
Zamora:
[I]f the witness and the accused were coconspirators in a conspiracy to commit a
felony other than the crime with which the accused is charged, the accused
committed the charged offense in furtherance of that conspiracy, and the charged
offense was one that should have been anticipated by the witness as a result of
carrying out the conspiracy, the witness is an accomplice.
Zamora, 411 S.W.3d at 511; DeLa Rosa v. State, 919 S.W.2d 791, 794 (Tex. App.—San Antonio
1996, pet. ref’d).

6
witness instruction 4, and (2) even if a specific instruction was required but not
given, the error did not result in egregious harm to appellant. We need not reach
appellant’s contentions regarding error in the accomplice witness instructions or
the State’s arguments regarding whether such an instruction needed to be given
because we find that even if an instruction was required and the one given
contained error, such error was harmless. See Tex. R. App. P. 44.2(b) (providing
that any unconstitutional error “that does not affect substantial rights must be
disregarded”).

The degree of harm required for reversal depends on whether an objection to
the error was made at trial. If no objection was made, we may reverse only if the
error resulted in “egregious harm” such that appellant was denied a “fair and
impartial trial.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985);
Neal v. State, 256 S .W.3d 264, 278 (Tex. Crim. App. 2008). If an objection was
made at trial, we then determine whether appellant has demonstrated “some harm”
from the error. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).
Egregious harm is the proper standard of review here, because appellant did not
object to the charge on this ground below. See Almanza, 686 S.W.2d at 174. In
determining whether a defendant was egregiously harmed, we must review “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.” Taylor v. State, 332
S.W.3d 483, 489 (Tex. Crim. App. 2011). Under this standard, improper omission
of an accomplice witness instruction is generally considered harmless unless the
corroborating (non-accomplice) evidence is “so unconvincing in fact as to render

4
The State suggests that there was insufficient evidence tending to show Jackson was
part of a conspiracy or otherwise participated in any crime and that her mere presence at the
crime scene was not enough to make her an accomplice.

7
the State’s overall case for conviction clearly and significantly less persuasive.”
Herron, 86 S.W.3d at 632. In assessing the strength of non-accomplice evidence,
we examine its reliability or believability and the degree to which it connects the
defendant to the crime. Id.

Although we presume for the sake of this analysis that the jury charge
contained error in the submission of the accomplice witness instructions, it at least
presented the concept to the jury that Jackson may have been an accomplice and
thus her testimony may have needed corroboration. More importantly, the
evidence beyond that offered in Jackson’s testimony was strongly indicative of
appellant’s guilt. A neighbor testified to having seen complainant alive at her
house on the day of the murder, then seeing appellant at the house before
complainant was discovered dead in her home. It was established that complainant
and appellant knew each other and appellant had been inside complainant’s house
before.5 Evidence found at the scene indicated the complainant likely knew her
assailant as there was no sign of forced entry at the home or of defensive wounds
on the complainant. There was additional evidence that appellant possessed a
significant amount of the complainant’s jewelry after the murder, and indeed, he
had one of her jewelry boxes on his person when arrested. Appellant’s palm print
also was discovered on a cabinet above the complainant’s body. 6

As stated, this evidence was strongly indicative of appellant’s guilt and not
so unconvincing in fact as to render the State’s overall case for conviction clearly
and significantly less persuasive. See Herron, 86 S.W.3d at 632. Accordingly, we

5
There was testimony appellant had visited with complainant’s grandson.
6
Appellant insists that the variety of angles used to stab the complainant suggests there
may have been multiple assailants. However, this fact can just as easily be explained by
appellant and the complainant’s movements during the attack. Regardless, the possibility of
other assailants does not significantly diminish the evidence of appellant’s guilt.

8
find any error in the trial court’s accomplice witness instructions was not
egregiously harmful. See Almanza, 686 S.W.2d at 171. We overrule appellant’s
first two issues.

III. Sufficiency of the Evidence

In his third issue, appellant contends that the evidence was insufficient to
prove capital murder based on the commission of murder during a robbery. In
assessing whether evidence is sufficient to support a conviction, we view all of the
evidence in the light most favorable to the verdict and determine, based on that
evidence and any reasonable inferences therefrom, whether any rational fact finder
could have found the elements of the offense beyond a reasonable doubt. Gear v.
State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia,
443 U.S. 307, 318–19 (1979)). We may not substitute our judgment for that of the
fact finder; rather, we defer to the fact finder to fairly resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from basic facts to
ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). 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).

Texas Penal Code section 19.03(a) defines capital murder in relevant part as
the intentional murder of an individual in the course of a robbery. Tex. Pen. Code
§ 19.03(a)(2). A person commits murder if he “intentionally or knowingly causes
the death of an individual.” Id. § 19.02(b)(1). A person commits robbery if “in the
course of committing theft . . . and with intent to obtain or maintain control of the
property he . . . intentionally, knowingly, or recklessly causes bodily injury to
another.” Id. § 29.02(a)(1). A person commits theft if he “unlawfully appropriates
property with intent to deprive the owner of property.” Id. § 31.03(a).

9
 Appellant specifically contends that the mere fact property was stolen from
the complainant does not by itself prove that the murder occurred during the course
of a robbery. In support of this contention, appellant relies primarily on White v.
State, in which the Court of Criminal Appeals explained that “the point at which
appellant formulated his intent to take his complainant’s property is critical to
differentiating, in the abstract, between his commission of capital murder in the
course of committing robbery and his commission of a first degree murder,
followed by theft from a corpse, a third degree felony.” 779 S.W.3d 809, 815
(Tex. Crim. App. 1989). Based on this principle, appellant suggests possible
motives for the murder other than a preexisting intent to steal, including that the
complainant may have resisted a sexual advance by appellant, or the complainant
may have threatened to tell appellant’s grandmother after smelling alcohol or
marijuana smoke on his person.

These farfetched alternatives, however, do not cast any real doubt on the
evidence indicating appellant had formulated an intent to rob the complainant by
the time he committed the murder. Evidence demonstrated appellant was planning
to “hit a lick” when he went to the complainant’s house, a euphemism for robbery
or burglary. 7 He sought a ride to the house but had the driver wait around the
corner from the complainant’s house, a clear indication that he had an intention to
do something nefarious while at the house. And he took a significant amount of
jewelry from her home. This evidence is sufficient to support the conclusion that
appellant committed the murder with the intent to rob the complainant. See McGee

7
Appellant suggests that his use of the phrase could just as easily have indicated that he
intended to burglarize the complainant’s home, not commit robbery of the complainant herself.
However, even if appellant initially only intended to burglarize complainant’s home, the
evidence supports the conclusion that once he got inside and discovered the complainant was
home, appellant’s intent became to rob her when he took a knife and stabbed her in order to take
her jewelry.

10
v. State, 774 S.W.3d 229, 234 (Tex. Crim. App. 1989) (explaining that evidence a
robbery occurred immediately after murder is sufficient to support conviction for
capital murder); see also Cooper v. State, 67 S.W.3d 221, 223-24 (Tex. Crim. App.
2002) (analyzing McGee and concluding that “[t]he absence of additional evidence
will not defeat the natural inference allowed by McGee; even if there is no other
evidence of a nexus, that inference will support a conviction.”). We overrule
appellant’s third issue.

IV. Constitutional Complaints on Sentencing

In issues four through seven, appellant contends that the imposition of his
sentence—mandatory life in prison with a chance of parole in forty years—violates
several provisions of the United States and Texas constitutions. Specifically,
appellant contends in these four issues that the “mandatory and automatic”
sentence under Penal Code section 12.31(a)(1) for a minor convicted of capital
murder (life in prison with a chance of parole) violates the Eighth Amendment
prohibition on cruel and unusual punishment, the Fourteenth Amendment
guarantee of due process, the Article I, section 13 prohibition on cruel or unusual
punishment, and the Article I, section 19 guarantee of “due course of law.” See
U.S. Const. amend. VIII, XIV; Tex. Const. art. I, §§ 13, 19; Tex. Pen. Code §
12.31(a)(1). We will consider each in turn.

In his fourth issue, appellant advocates for an extension of the United States
Supreme Court’s reasoning in Miller v. Alabama, in which the Court held that a
mandatory sentence for a minor of life in prison without parole violated the Eighth
Amendment because it ignored inherent differences between minors and adults and
completely disregarded the possibility of rehabilitation. 132 S. Ct. 2455, 2468
(2012). However, since appellant filed his brief, the Texas Court of Criminal
Appeals has explained, in Lewis v. State, that the holding in Miller was very

11
narrow and refused to extend it to the precise situation presented here: a
mandatory sentence for a minor of life in prison with a chance of parole. 428
S.W.3d 860, 863-64 (Tex. Crim. App. 2014). We are bound in criminal cases to
follow decisions of the Court of Criminal Appeals. See Mason v. State, 416
S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“When
the Court of Criminal Appeals has deliberately and unequivocally interpreted the
law in a criminal matter, we must adhere to its interpretation under the dictates of
vertical stare decisis.”); see also State of Texas ex rel. Vance v. Clawson, 465
S.W.2d 164, 168 (Tex. Crim. App. 1971) (“The Court of Criminal Appeals is the
court of last resort in this state in criminal matters. This being so, no other court of
this state has authority to overrule or circumvent its decisions, or disobey its
mandates.”). 8

The Miller and Lewis courts confined their analysis to the Eighth
Amendment, but appellant makes further contentions under the Fourteenth
Amendment as well as two Texas provisions. In his fifth issue, he specifically
asserts that the mandatory sentence violated his Fourteenth Amendment due
process rights because it precluded consideration of mitigating evidence on
punishment. In support, he cites two United States Supreme Court decisions that
do not involve the rights of minors or even criminal prosecutions, and he provides
little analysis to connect the pronouncements in those cases to the current context.
See Stanley v. Illinois, 405 U.S. 645, 657-58 (1971) (holding unwed father was
entitled to hearing on his fitness as parent before his children could be taken from

8
In a reply brief, appellant acknowledges the holding in Lewis rejected the very
conclusion appellant urges here. He goes on, however, to suggest several ways in which he
believes the Lewis court failed in its analysis, including allegedly ignoring parts of Miller as well
as recent brain development research, which was not introduced into evidence in the present
case. We nonetheless are bound by the Lewis precedent. See Clawson, 465 S.W.2d at 168;
Mason, 416 S.W.3d at 728 n.10.

12
him after the death of the children’s mother); Bell v. Burson, 402 U.S. 535, 542-43
(1970) (holding driver’s licenses could not be taken from motorists under
particular statutory scheme without procedural due process simple because the
motorist was involved in an accident and was uninsured). Apart from these easily
distinguishable cases, appellant offers little support for his contention.

A number of Texas Courts of Appeal, including this one, have determined
mandatory sentencing statutes do not violate due process. See, e.g., Moore v.
State, 54 S.W.3d 529, 544 (Tex. App.—Fort Worth 2001, pet. ref’d) (holding
mandatory life sentence did not violate defendant’s due process rights and
defendant had no right to present mitigating evidence); Williams v. State, 10
S.W.3d 370, 372–73 (Tex. App.—Tyler 1999, pet. ref’d) (rejecting due process
challenge to mandatory life sentence); Buhl v. State, 960 S.W.2d 927, 935 (Tex.
App.—Waco 1998, pet. ref’d) (holding mandatory life sentence did not violate due
process because defendant was unable to present mitigating evidence); Cardona v.
State, 768 S.W.2d 823, 827 (Tex. App.—Houston [14th Dist.] 1989, no pet.)
(explaining that legislature had rational basis for mandatory sentence and thus did
not violate due process). Because appellant offers no reason for deviating from
this line of cases, we overrule his fifth issue.

In his sixth issue, appellant argues that his mandatory sentence violates the
prohibition on “cruel or unusual punishment” in Article I, section 13 of the Texas
Constitution. Tex. Const. art. I, § 13. In arguing that rights under section 13
should be interpreted more broadly than rights under the Eighth Amendment,
appellant notes that section 13 prohibits “cruel or unusual punishment,” whereas
the Eighth Amendment prohibits “cruel and unusual punishment.” Appellant
acknowledges, however, that the Court of Criminal Appeals has held that there is
no significance to the differences in phrasing. See Cantu v. State, 939 S.W.2d 627,

13
645 (Tex. Crim. App. 1997) (refusing to interpret the language of the Texas
Constitution as more expansive that of the federal constitution). Although
appellant encourages this court nevertheless to recognize a distinction, we are
bound by the decisions of the higher court. See Clawson, 465 S.W.2d at 168;
Mason, 416 S.W.3d at 728 n.10.

And in his seventh issue, appellant contends that his sentence violated
Article I, section 19’s “due course of law” guarantee. Tex. Const. art. I, § 19. As
appellant recognizes, Texas courts consistently have found no distinction between
the rights afforded by this provision and those afforded by the due process clause
of the Fourteenth Amendment. See Fleming v. State, 341 S.W.3d 415, 416 (Tex.
Crim. App. 2011) (Keasler, J., concurring) (“[T]his Court and the Texas Supreme
Court have interpreted the due course of law provision to provide the same
procedural rights and protections as the Due Process Clause.”); Fleming v. State,
376 S.W.3d 854, 857 (Tex. App.—Fort Worth 2012) (“[T]his court and the
majority of Texas courts of appeals have repeatedly held that the due course of law
provision provides the same protections as the federal Due Process Clause.”), aff’d,
No. PD-1250-12, 2014 WL 2895889 (Tex. Crim. App. June 8, 2014); State v.
Vasquez, 230 S.W.3d 744, 750-51 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(holding due course of law clause does not provide a greater level of protection
than the Due Process Clause regarding the State’s loss or destruction of evidence in
a criminal prosecution). Appellant offers no discernable reason for finding a
distinction in this case. Accordingly, we overrule his seventh issue.

14
 Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.

/s/ Martha Hill Jamison
Justice

Panel consists of Justices Christopher, Jamison, and McCally.
Publish — TEX. R. APP. P. 47.2(b).

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