Affirmed and Memorandum Opinion filed May 1, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00114-CR
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VERDELL SUTPHEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 867,720
M E M O R A N D U M O P I N I O N
Appellant Verdell Sutphen was convicted by a jury of aggravated assault and sentenced to seven years imprisonment. In four points of error, appellant contends: (1) the trial court erred in denying an accomplice-witness instruction when requested; (2) trial counsel was ineffective due to counsel=s failure to request a jury charge on accomplice-witness testimony; (3) there was insufficient evidence to sustain a guilty verdict; and (4) he was deprived of a fair and impartial jury when, after the court sustained his objection and instructed the jury, the State alluded to a gang affiliation. We affirm.
Factual Background
On the night in question, appellant was driving his Cadillac with Wilbert Howard, Salih El-Amin, and an individual known as ABoo Man@ as passengers. Chris Battle approached the group in a Buick and discussed going to the south side of town. Appellant and Salih agreed and joined Battle in the Buick. Howard and Boo Man remained in and drove the Cadillac.
As they approached the Harbor Apartments on Sapling Way, the two cars stopped in a nearby convenience store parking lot. Battle told Howard to remain in the parking lot while the individuals in the Buick went to visit appellant=s girlfriend. The Buick then left the parking lot. Howard, after seeing a police station nearby, became nervous and decided not to wait, but rather to follow the Buick.
Shortly thereafter, a high speed chase ensued between the Buick and a Cavalier. Appellant, using a .45 caliber weapon, fired into the Cavalier occupied by complainant. At times reaching speeds of over 100 m.p.h., the chase ended when the complainant=s vehicle crashed, killing two passengers. The medical examiner testified that one of the occupants suffered bullet wounds to the head and face. Howard heard gun shots hit his vehicle, left the scene and paged appellant, whom he met later on Clover Street.
Upon fleeing the scene, appellant went to the home of Jamal Irving. Irving=s father owned an automobile body repair shop, and appellant dropped off the Cadillac to have the bullet holes repaired. The next day, Irving went to talk with appellant, who described the events at issue and told him the car needed to be repaired. Irving determined the cost and agreed to perform the necessary repairs.
Appellant also went to the residence of John Levine. He asked Levine to hold a firearm for him. Levine attempted to sneak the weapon, wrapped in a sheet, into his house, but was prevented from doing so by his mother who would not allow the weapon in the house. Appellant ultimately was indicted for felony murder, tried by a jury and convicted of the lesser included offense of aggravated assault.
Accomplice-Witness Instruction
In his first point of error, appellant contends the trial court erroneously denied his request to instruct the jury that Irving was an accomplice-witness as a matter of law. Specifically, appellant claims Irving=s testimony indicated that he repaired some of the bullet holes in appellant=s car which was driven on the night in question. Appellant argues this testimony demonstrated that Irving was an accomplice to the assault. Thus, he claims that he was entitled to an accomplice-witness instruction.
The State argues that appellant=s complaint on appeal does not comport with the objection he advanced at trial. See Tex. R. App. P. 33.1. We agree. Appellant did not request an instruction that Irving was an accomplice as a matter of law. Rather, he requested only an instruction that Irving was an accomplice-witness as a matter of fact. Thus, appellant has waived any objection. However, even had appellant properly preserved error, we could not find the trial court erred.
In reviewing jury charge error, we must first determine whether error exists in the jury charge; and second, whether sufficient harm was caused by the error to require reversal. Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998). The existence of jury charge error depends upon whether appellant was entitled to an accomplice-witness instruction. See Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999).
A person is an accomplice if he participates before, during, or after the commission of a crime and can be prosecuted for that offense or for a lesser-included offense. Id. Mere presence during the commission of the crime, knowledge about the crime and failure to disclose it, or even concealment of the crime is not sufficient to render a person an accomplice. Id. Nor does a witness=s complicity with the accused in the commission of a different, but related, offense make him an accomplice to the crime for which the accused is on trial. Creel v. State, 754 S.W.2d 205, 213 (Tex. Crim. App. 1988). An accomplice must affirmatively act to promote the commission of the crime either before, during, or after the offense. Medina, 7 S.W.3d at 641. Even when a witness participates in concealing the crime, such evidence is insufficient to raise the issue of accomplice status. Jackson v. State, 933 S.W.2d 696, 698 (Tex. App.CSan Antonio 1999, pet ref=d).
Here, appellant asserts Irving=s repair of the bullet holes constitutes participation after the fact. However, appellant points to no evidence indicating Irving made an affirmative act to promote the commission of the crime either before, during, or after the offense appellant alleges rendered him an accomplice. See Medina, 7 S.W.3d at 641. A witness whose participation in a crime occurred only after the commission of the offense, namely a person who, under the prior law, would have been considered an accessory after the fact, is no longer defined an accomplice-witness. See Easter v. State, 536 S.W.2d 223, 228 (Tex. Crim. App. 1976). The testimony of a witness without complicity in the offense for which an accused is on trial is not that of an accomplice-witness, regardless of his complicity with the accused in other offenses. Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987). We cannot say Irving was an accomplice-witness under the circumstances of this case. Irving was working for his father in an auto shop and was paid to repair a vehicle. The fact that he may have been told about the cause of the damage to the automobile he was repairing does not make him an accomplice. Thus, we hold that even if appellant properly preserved error, the trial court did not err in denying appellant=s request to instruct the jury that Irving was an accomplice-witness as a matter of law. Accordingly, we overrule his first point of error.
Ineffective Assistance of Counsel
Appellant argues in his second point of error that trial counsel was ineffective for failing to request a jury instruction on accomplice-witness testimony as it applied to Wilbert Howard and John Levine. Review of trial counsel=s representation is highly deferential; we indulge a strong presumption that counsel=s conduct falls within a wide range of reasonable representation. Strickland v. Washington, 466 U.S. 668, 689 (1984); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under the Strickland analysis, an appellant must first show counsel=s performance was deficient, i.e., that it fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687. It is the appellant=s burden to prove ineffective assistance of counsel. Id. Even if counsel=s performance was deficient, appellant must demonstrate a reasonable probability that, but for that deficiency, the outcome would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Herron v. State, 86 S.W.3d 621, 634 (Tex. Crim. App. 2002); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). We should defer to counsel=s decisions and deny relief when there is at least a possibility the trial counsel=s conduct was a legitimate trial strategy. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002).
Appellant asserts that Howard and Levine were accomplices as a matter of law and therefore an instruction should have been submitted to the jury. We disagree. If the State=s witness has no complicity in the offense for which an accused is on trial, his testimony is not that of an accomplice-witness whatever may have been his complicity with the accused in the commission of other offenses. Gamez, 737 S.W.2d at 322. If the evidence demonstrates the witness is not an accomplice, the trial court need not instruct the jury either that Athe witness is an accomplice-witness as a matter of law or in the form of a fact issue whether the witness is an accomplice-witness.@ Id.
Levine testified appellant came to his residence and asked him to sneak a gun into his house, but Levine=s mother intercepted them and forced appellant to remove the gun. There is no evidence that Levine planned, participated, or intended to participate in the shooting. Likewise, there is no evidence Howard participated in the crime. Driving a separate vehicle, Howard was told to wait in the parking lot of a convenience. Howard, noticing a police station nearby, instead decided to follow appellant=s car. As he rounded a street corner, he heard gun shots and immediately fled. The only instruction given to Howard was to wait in the nearby parking lot, and the evidence showed that was the extent of his participation. There is no evidence of any plan by, or with Howard other than to wait while appellant visited his girlfriend.
We conclude there is no evidence to suggest that Levine or Howard were accomplices. Accordingly, a requested accomplice-witness instruction would have been properly denied by the trial court. Appellant=s counsel cannot be considered ineffective for failing to request such an instruction. Appellant has not met his burden to prove he received ineffective assistance of counsel. We overrule appellant=s second point of error.
Sufficiency of the Evidence
In his third point of error, appellant challenges the legal sufficiency of the evidence supporting his conviction. In so doing, appellant relies upon article 38.14 of the Code of Criminal Procedure, which 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. Crim. Proc. Code ' 38.14. The corroboration is not sufficient if it merely shows the commission of the offense. Id.
The State, however, contends appellant is estopped from complaining on appeal that the evidence failed to establish all of the elements of the lesser-included offense of aggravated assault. We agree. Where, as here, a defendant does not object to the submission of a lesser included offense, and thereby accepts the benefit of such a charge in the court=s instructions, that defendant is estopped from thereafter challenging the sufficiency of the evidence to support a conviction for that lesser offense. See Taylor v. State, 947 S.W.2d 698, 702 (Tex. App.CFort Worth 1997, pet. ref=d). Thus, appellant is estopped from challenging the legal sufficiency of the evidence supporting his conviction.
However, even if appellant had properly objected to the submission of the lesser included offense, the evidence is legally sufficient to support his conviction. In conducting a sufficiency review under the accomplice‑witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. See Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). ATendency to connect@ rather than rational sufficiency is the standard; the corroborating evidence need not be sufficient by itself to establish guilt. Id. The accomplice‑witness rule is not based upon federal or state constitutional notions of sufficiency; there simply needs to be Aother@ evidence tending to connect the defendant to the offense. Id.
We need only apply the article 38.14 corroboration requirements to the accomplice-witness testimony of Battle. As we have already concluded that Irving, Levine, and Howard were not accomplices as a matter of law, we need not eliminate their testimony from consideration. Id. at 362.
Appellant admitted to Jamal Irving that he had been involved in both the chase and shooting of the complainant=s vehicle. Irving testified that appellant confessed he traveled to Braeswood in order to hurt or kill someone. When appellant began to attack the complainant, a chase ensued and shots were fired at appellant=s vehicle. Both appellant and Salih then began returning gunfire with a .45 handgun and an AK-47 assault rifle. In addition, appellant asked Irving whether he had seen the news reports concerning the incident. Further, Irving testified appellant claimed to have been responsible for the incident.
The corpus delicti of a crime simply consists of the fact that the crime in question has been committed by someone, or more precisely, that the evidence establishes the elements of the crime, Awithout embracing the further fact (needed for conviction) that the defendant was the one who did or committed that act or was otherwise responsible therefor.@ Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993). It is well-established that an extrajudicial admission alone is insufficient to establish the corpus delicti. See Criner v. State, 868 S.W.2d 29, 30 (Tex. App.CBeaumont 1994, pet. ref=d). The confession must be corroborated by other evidence that establishes the commission of a crime; in other words, the corpus delicti must be proved. See Fisher, 851 S.W.2d at 303. We must first consider all the record evidence, except appellant=s extrajudicial confession, in the light most favorable to the jury=s verdict and determine if that evidence tended to establish that the aggravated assault occurred. Id. In this case, evidence admitted independently of appellant=s extrajudicial statement tends to show the crime of aggravated assault occurred. The medical examiner testified that complainant suffered multiple blunt force trauma with the compression of the chest which caused his death.
Once the existence of an offense is established, a confession alone is sufficient to show a defendant=s connection to the crime. See Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App. 1990), overruled on other grounds, Riley v. State, 889 S.W.2d 290 (Tex. Crim. App. 1994) (op. on reh=g); Thomas v. State, 807 S.W.2d 803, 805 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d). Thus, contrary to appellant=s assertions, the record contains more than sufficient evidence to meet the corroboration requirement of article 38.14. See Cathey v. State, 992 S.W.2d 460, 461 (Tex. Crim. App. 1999). Accordingly, we overrule appellant=s third point of error.
Extraneous Evidence of Gang Affiliation
In appellant=s fourth point of error, he contends he was denied a fair and impartial trial when the State alluded to the jury that he was affiliated with a gang. To preserve error for appellate review, a complaining party must first object and if the trial court sustains the objection, the complaining party must then ask for an instruction to disregard. Torres v. State, 491 S.W.2d 126, 128 (Tex. Crim. App. 1973). If the instruction is given, the complaining party must then move for a mistrial. Id. Here, appellant objected and received a limiting instruction. However, he failed to make a motion for mistrial. An appellant must obtain an adverse ruling in order to preserve a matter for review. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999); Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985). Appellant did not do so. Therefore, his fourth point of error is waived.
Conclusion
For the foregoing reasons, the trial court=s judgment is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed May 1, 2003.
Panel consists of Justices Hudson, Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).