COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-308-CR
JAMES CURNEL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant James Curnel appeals his conviction for capital murder. In
three points, Curnel argues that the trial court erred by not including an
accomplice-witness instruction in the jury charge, that his trial counsel was
ineffective for not requesting an accomplice-witness instruction in the jury
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… See Tex. R. App. P. 47.4.
charge, and that the trial court erred by denying his motion for instructed
verdict. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Cavit Sevenler owned a moving truck. He and his helper Walter Oriana
picked up a load near Grand Prairie on January 11, 2007, and they parked the
truck in a motel parking lot in Grand Prairie for the night. Sevenler was on his
laptop talking to one of his two young daughters when three black men
approached his truck and one asked to borrow a phone. Oriana told Sevenler
to roll up the window because he “felt like something was going to happen.”
The men asked to borrow a phone again, cussed, and then left. Oriana went
to the sleeping compartment of the truck for the night. Shortly thereafter,
Oriana heard a gunshot and heard Sevenler call for him. Oriana went to the
front of the truck and saw that Sevenler had been shot. He ran to the road and
flagged down a police officer.
An eyewitness told police that she had seen four black men leaving the
scene in a white Ford Taurus with license plate number H20 RLV. Video
surveillance from the motel showed several men getting out of and back into
a Ford Taurus in the parking lot. The video did not capture the shooting.
The day after the shooting, Detective Heath Wester, the detective
assigned to the case, received a call from an anonymous tipster giving him an
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address for a duplex in Arlington. Detective Wester, along with three other
detectives, went to the address. They found a white Ford Taurus with license
plate number H20 RYV, one digit different than the license plate number given
by the eyewitness, parked in the duplex’s parking lot. Emanuel Phillips lived at
the address given to Detective Wester. Phillips answered the door and
immediately began telling the detectives about the shooting, without any
questioning from the detectives. While talking to the detectives, Phillips saw
Curnel and Chris Johnson leaving the duplex next door, and he pointed out the
two men to the detectives. Johnson’s mother owned the duplex next door to
Phillips’s, and Curnel had been staying there with Johnson.
The detectives arrested Phillips, Curnel, and Johnson. Police found
shotgun shells and a box of ammunition under a mattress in Johnson’s home.
They found paperwork belonging to Johnson’s cousin, Toborish Roberson, next
to the mattress. The police also arrested Roberson.
Detective Wester interviewed Johnson, Roberson, and Phillips, and all
three men said that Curnel was the shooter. Johnson told officers that the
murder weapon, a shotgun belonging to Curnel, was hidden inside a mattress
in Johnson’s duplex. Police obtained a search warrant and searched Johnson’s
home a second time; they found a silver single-shot twelve-gauge shotgun
inside a mattress in Johnson’s bedroom, where Curnel and Johnson slept.
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Detective Wester compiled two photospreads, one containing Johnson’s
photo and one containing Curnel’s photo. Oriana identified both men from the
photospreads. Curnel was indicted for capital murder for shooting Sevenler “in
the course of committing or attempting to commit the offense of robbery of
Cavit Sevenler.”
At Curnel’s trial, Phillips testified that he had been at Johnson’s duplex
on the day of the shooting watching the movie Killa Season with Johnson,
Curnel, and Roberson. Johnson, Phillips, and Roberson were smoking
marijuana, although Phillips did not recall Curnel smoking. The four men
decided to go exchange Curnel’s shotgun for a pistol. They took Phillips’s Ford
Taurus to meet another man at a motel to trade the guns. The man was not
at the motel so they decided to drive around until he returned. Phillips
explained at trial that they saw a man walking and decided to “jack him”; when
they approached, the man started acting scared so they decided to leave. They
then drove to the motel where Sevenler’s truck was parked and saw Sevenler
in the cab with his laptop open. Phillips testified that Curnel said, “That’s a
lick,” which means an easy robbery or “fast cash.” The men parked and tried
to come up with a plan to rob Sevenler. Curnel, Roberson, and Johnson walked
up to the truck while Phillips stayed by the car; Curnel had the shotgun. Phillips
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had only taken a few steps away from the car when he heard the gunshot, and
everyone ran back to the car. Curnel said, “He’s dead. He’s dead,” and “I
know how to hit a lick, and that’s how you do it in the movies.” Phillips
testified that he was originally arrested for capital murder in connection with
Sevenler’s death but that he agreed to testify for the State in exchange for a
ten-year sentence for aggravated robbery.
Johnson also testified against Phillips in exchange for a twelve-year
sentence for aggravated robbery. He testified that Curnel had been staying
with him for several months; they shared a bunkbed in Johnson’s room. He
testified that he, Curnel, Phillips, and Roberson were watching Killa Season,
smoking weed, and talking about getting away with murder on the day of the
incident. They left to exchange Curnel’s shotgun for a pistol, and while driving
around, a man stopped them and asked if they had any drugs. They then saw
Sevenler inside his truck. Curnel said it was “a lick”; when asked what “a lick”
means, Johnson testified that it could mean “numerous things” and that, in that
particular situation, he “didn’t think of it meaning anything.” He said that the
“last thing on [his] mind was robbery.” He explained that after they parked at
the motel, everyone but Phillips got out, “James shot the gun; we all left.”
Laurel Hall testified that she lives near Johnson’s duplex, that she has
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known Johnson since elementary school, and that she was friends with Curnel.
She testified that on the night that Sevenler was shot, Curnel went to her
house and told her that he had shot somebody. A letter that Curnel wrote Hall
while in jail was also introduced at trial. In the letter, Curnel wrote, “I dont
know if its true or not but word is lil Chris [Johnson] ain’t the only sni[t]ch.”
Hall testified that she was upset because she thought Curnel was suggesting
that she “was snitching” even though she had not talked to police.
Additionally, Hall and Hall’s mother both testified that when Curnel went to
their house that night, he wanted to watch Channel 4 news because “they pick
up things real quick.”
Curnel called Aaron Russell to testify on his behalf. Russell testified that
he and Curnel are friends and that he saw Curnel on the night of Sevenler’s
death. Curnel was upset and told Russell that he could not tell him the whole
story but that “someone was killed, and there was a robbery.” Russell also
testified that Johnson had told him that Curnel was in jail for something he did
not do.
Scotty Bryant also testified for the defense. He testified that he had been
in jail with Johnson and that Johnson had confided to him that he was the one
who shot Sevenler “just to prove that he could kill somebody.”
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The jury convicted Curnel of capital murder. Acknowledging that the
State had waived the death penalty, the trial court sentenced Curnel to life in
prison.
III. J URY C HARGE
In his first point, Curnel argues that the trial court erred by failing to
include an accomplice-witness instruction in the jury charge. Curnel
acknowledges that his defense counsel did not object to the exclusion of the
accomplice-witness instruction, but he argues that he suffered egregious harm
as a result of the trial court’s error.
A. Standard of Review
Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v.
State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must
determine whether error occurred. If it did, we must then evaluate whether
sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d
at 731–32.
If there is error in the court’s charge but the appellant did not preserve it
at trial, we must decide whether the error was so egregious and created such
harm that the appellant did not have a fair and impartial trial—in short, that
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“egregious harm” has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19
(Vernon 2006); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008);
Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm
is the type and level of harm that affects the very basis of the case, deprives
the defendant of a valuable right, or vitally affects a defensive theory. Allen,
253 S.W.3d at 264 & n.15; Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex.
Crim. App. 2006); Almanza, 686 S.W.2d at 172.
In making an egregious harm determination, “the actual degree of harm
must be assayed in light of 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.” Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d
at 172–74. The purpose of this review is to illuminate the actual, not just
theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious
harm is a difficult standard to prove and must be determined on a case-by-case
basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch,
922 S.W.2d at 171.
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B. Accomplice-Witness Instruction
Article 38.14 of the code of criminal of procedure provides, “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;
and the corroboration is not sufficient if it merely shows the commission of the
offense.” Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). A
prosecution witness “who is indicted for a lesser included offense based upon
alleged participation in commission of the greater offense is also an accomplice
as a matter of law.” Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App.
1991). If a prosecution witness is an accomplice as a matter of law, the trial
court is under a duty to instruct the jury accordingly, and failure to do so is
error. Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002).
The instruction does not require that the jury should be skeptical of
accomplice-witness testimony or give less weight to such testimony than to
other evidence. Id. The instruction merely informs the jury that it cannot use
the accomplice-witness testimony unless some non-accomplice evidence
connects the defendant to the offense. Id.
The test for sufficient corroboration is whether, after excluding the
accomplice’s testimony, other evidence of an incriminating character tends to
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connect the defendant with the commission of the offense. Burks v. State,
876 S.W.2d 877, 887 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1114
(1995); Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993).
Corroborating evidence need not directly connect the defendant to the crime or
be sufficient by itself to establish guilt; instead, the combined weight of the
corroborating evidence need only tend to connect the defendant to the offense.
Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999), cert. denied,
528 U.S. 1082 (2000); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim.
App.), cert. denied, 522 U.S. 844 (1997). Additionally, the corroborative
evidence may be circumstantial or direct, and the accomplice testimony need
not be corroborated on every element of the offense. Brosky v. State, 915
S.W.2d 120, 138 (Tex. App.—Fort Worth, pet. ref’d), cert. denied, 519 U.S.
1020 (1996).
Non-accomplice evidence can render harmless a failure to submit an
accomplice-witness instruction by fulfilling the purpose an accomplice-witness
instruction is designed to serve. Herron, 86 S.W.3d at 632. The omission of
an accomplice-witness instruction is generally harmless under the egregious
harm standard unless the corroborating non-accomplice evidence is “‘so
unconvincing in fact as to render the State’s overall case for conviction clearly
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and significantly less persuasive.’” Id. (quoting Saunders v. State, 817 S.W.2d
688, 692 (Tex. Crim. App. 1991)).
C. No Egregious Harm
Here, Curnel was indicted for and convicted of capital murder for killing
Sevenler in the course of committing or attempting to commit robbery. See
Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2009). Both Phillips and
Johnson testified that they had been indicted for aggravated robbery for their
participation in this crime; consequently, they were accomplices as a matter of
law, and the trial court erred by not including the accomplice-witness
instruction in the jury charge. See Zepeda, 819 S.W.2d at 876. We must
consider whether Curnel suffered egregious harm as a result of this error. See
Herron, 86 S.W.3d at 631.
The non-accomplice evidence in this case consisted of (1) Oriana’s
identification of Curnel from a photospread and in court, (2) the videotape
showing four men in a Ford Taurus at the scene of the crime and an
eyewitness’s report of four black men at the scene in a white Ford Taurus, (3)
the shotgun found in the room where Curnel slept, (4) Hall’s testimony that
Curnel had told her that he shot someone, (5) Hall’s and her mother’s testimony
that Curnel had wanted to watch Channel 8 news at their house after the
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shooting because “they pick up things real quick,” (6) Curnel’s letter to Hall
suggesting that someone else was a “snitch,” and (7) Russell’s testimony that
Curnel had seemed nervous and had told him “someone was killed, and there
was a robbery.”
Curnel does not dispute that non-accomplice evidence linked him to
murdering Sevenler, and the non-accomplice evidence—including his admission
to Hall that he had shot someone—certainly connects Curnel to Sevenler’s
murder and shows that he was the shooter. See id. However, Curnel argues
that no non-accomplice evidence tends to connect him to robbery in the course
of a murder as required to establish his guilt for capital murder. But the non-
accomplice evidence need not prove all the elements of the alleged offense or
directly link Curnel to the commission of the offense; rather, it is sufficient if it
tended to connect him to the offense. See Cathey, 992 S.W.2d at 462;
Brosky, 915 S.W.2d at 138. Moreover, Russell’s testimony—that Curnel had
told him “someone was killed, and there was a robbery” does connect Curnel
with robbery.
We hold that the corroborating non-accomplice evidence is not “‘so
unconvincing in fact as to render the State’s overall case for conviction clearly
and significantly less persuasive.’” Herron, 86 S.W.3d at 632 (quoting
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Saunders, 817 S.W.2d at 692). Consequently, we hold that the trial court’s
error in failing to include an accomplice-witness instruction in the jury charge
did not result in egregious harm to Curnel such that he did not have a fair and
impartial trial. 2 See Tex. Code Crim. Proc. Ann. art. 36.19; Allen, 253 S.W.3d
at 264; Hutch, 922 S.W.2d at 171; Almanza, 686 S.W.2d at 171. We
overrule Curnel’s first point.
IV. M OTION FOR INSTRUCTED V ERDICT
In his second point, Curnel argues that the trial court erred by denying his
motion for instructed verdict at the close of the State’s case because no
corroborative non-accomplice evidence existed to support the accomplice-
witness testimony that he was guilty of capital murder.
A challenge to the denial of a motion for instructed verdict is actually a
challenge to the legal sufficiency of the evidence. Canales v. State, 98 S.W.3d
690, 693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003); McCown v.
State, 192 S.W.3d 158, 160 (Tex. App.—Fort Worth 2006, pet. ref’d).
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
2
… Curnel argues that we should apply the harm analysis set forth in
Davis v. State, 278 S.W.3d 346 (Tex. Crim. App. 2009), which applies to
ineffective assistance claims. We decline to do so but note that we apply Davis
to Curnel’s third point below and find no harm under that standard as well.
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order to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
In this case, Curnel is specifically challenging the legal sufficiency of the
non-accomplice evidence corroborating the accomplice-witness testimony that
Curnel, along with Phillips, Johnson, and Roberson, committed robbery or
attempted robbery. As we explained in addressing Curnel’s first point above,
the corroborating non-accomplice evidence sufficiently tended to connect
Curnel to the offense. Curnel argues that we cannot consider Russell’s
testimony because he testified during the defense’s case-in-chief, after Curnel
had moved for an instructed verdict. However, our review of the evidence is
not limited to the evidence presented before Curnel’s motion for instructed
verdict, and we may consider Russell’s testimony in our review. See
Montgomery v. State, 198 S.W.3d 67, 85 (Tex. App.—Fort Worth 2006, pet.
ref’d).
Viewing the evidence in the light most favorable to the prosecution, we
hold that a rational trier of fact could have found that Curnel committed robbery
or attempted to commit robbery and that the accomplice-witness testimony
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was corroborated by Russell’s testimony. Consequently, we hold that the
evidence is legally sufficient to support Curnel’s conviction for capital murder
and that, consequently, the trial court did not err in refusing an instructed
verdict for Curnel. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778. We overrule Curnel’s second point.
V. E FFECTIVE A SSISTANCE OF C OUNSEL
In his third point, Curnel argues that his trial counsel was ineffective
because he did not request an accomplice-witness instruction be included in the
jury charge.
We apply a two-pronged test to ineffective assistance of counsel claims.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.
State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Hernandez v. State, 988
S.W.2d 770, 770 (Tex. Crim. App. 1999); Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999). To establish ineffective assistance of counsel, an
appellant must show by a preponderance of the evidence that his counsel’s
representation fell below the standard of prevailing professional norms and that
there is a reasonable probability that, but for counsel’s deficiency, the result of
the trial would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at
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2064; Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 62–63; Thompson,
9 S.W.3d at 812. There is no requirement that we approach the two-pronged
inquiry of Strickland in any particular order, or even address both components
of the inquiry if the defendant makes an insufficient showing on one
component. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (1984).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with
a reliable result. Id. at 687, 104 S. Ct. at 2064. In other words, the appellant
must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id. at 694, 104 S. Ct. at
2068. The ultimate focus of our inquiry must be on the fundamental fairness
of the proceeding in which the result is being challenged. Id. at 697, 104 S.
Ct. at 2070.
In Davis v. State, the court of criminal appeals discussed the appropriate
analysis for an ineffective assistance claim in which defense counsel failed to
request an accomplice-witness instruction. 278 S.W.3d at 352–53. The court
held that the issue of prejudice “will generally turn on whether there was a
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substantial amount of non-accomplice evidence and whether the record reveals
any rational basis on which the jury could have doubted or disregarded that
evidence.” Id. at 353.
In this case, we need not address whether, under the first Strickland
prong, Curnel’s attorney was ineffective for not requesting an accomplice-
witness instruction because Curnel has not satisfied the second Strickland
prong. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. As we explained
above, the non-accomplice evidence, if believed, established that Curnel
admitted to Hall that he had killed someone and wrote her a letter suggesting
that someone “snitch[ed],” that Oriana identified Curnel as one of the men who
approached Sevenler’s truck immediately before Sevenler was shot, that a
videotape showed four men in a Ford Taurus at the scene of the crime, that an
eyewitness reported four black men at the scene in a white Ford Taurus, that
police found a shotgun in the room where Curnel slept, that Curnel told Hall and
her mother to turn the television to Channel 8 because “they pick up things real
quick,” and that Curnel nervously told Russell that someone was killed and
there was a robbery.
As detailed above, the record reflects a significant amount of non-
accomplice evidence that tended to connect Curnel to the offense committed.
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Furthermore, the record reveals no rational basis on which the jury could have
doubted or disregarded that evidence. See Davis, 278 S.W.3d at 352. We
find no reasonable probability that, but for counsel’s alleged deficient
performance, the result of the guilt-innocence stage would have been different.
See id. at 352–53. Accordingly, we overrule Curnel’s third point.
VI. C ONCLUSION
Having overruled Curnel’s three points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: WALKER, LIVINGSTON, and DAUPHINOT, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 28, 2010
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