PD-1641-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/14/2015 11:29:58 PM Accepted 1/16/2015 2:09:11 PM JANUARY 16, 2015 PD-1641-14 ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS KIRBY HALL Petitioner/Appellant v. THE STATE OF TEXAS Respondent/Appellee On Petition for Discretionary Review from the Fourteenth Court of Appeals In Cause No. 14-13-00742-CR, affirming the conviction in Cause No. 1394653 from the 228th District Court of Harris County, Texas PETITION FOR DISCRETIONARY REVIEW ORAL ARGUMENT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas FRANCES BOURLIOT Assistant Public Defender Harris County, Texas Texas Bar No. 24062419 1201 Franklin, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 437-4317 frances.bourliot@pdo.hctx.net Counsel for Petitioner IDENTITY OF PARTIES AND COUNSEL APPELLANT: Kirby Hall TDCJ # 01880638 Alfred Hughes Unit Route 2 Box 4400 Gatesville, Texas 76597 TRIAL PROSECUTORS: Ms. Gretchen Flader Ms. Jane Waters Assistant District Attorneys Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 DEFENSE COUNSEL AT TRIAL: Rudy Duarte 2016 Main, Suite 103 Houston, Texas 77002 PRESIDING JUDGE: Hon. Marc Carter 228th District Court Harris County, Texas 1201 Franklin, 16th Floor Houston, Texas 77002 COUNSEL ON APPEAL FOR APPELLANT: Frances Bourliot Assistant Public Defender Harris County, Texas 1201 Franklin, 13th Floor Houston, Texas 77002 ii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL .................................................................. ii TABLE OF CONTENTS.......................................................................................... iii INDEX OF AUTHORITIES ..................................................................................... iv STATEMENT REGARDING ORAL ARGUMENT .........................................................1 STATEMENT OF THE CASE .....................................................................................1 STATEMENT OF PROCEDURAL HISTORY................................................................1 QUESTION FOR REVIEW ........................................................................................1 DID THE COURT OF APPEALS ERR WHEN IT FOUND THAT YBARRA AND GARZA WERE NOT ACCOMPLICES AND THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO UPHOLD MR. HALL’S CONVICTION? REASON FOR GRANTING REVIEW ......................................................................... 2 ARGUMENT .......................................................................................................... 2 PRAYER ............................................................................................................... 8 CERTIFICATE OF SERVICE .................................................................................... 9 CERTIFICATE OF COMPLIANCE ............................................................................ 9 iii INDEX OF AUTHORITIES Cases Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ...................................................... 6 Casanova v. State, 383 S.W.3d 530 (Tex. Crim. App. Nov. 21, 2012).. ........................................ 7 Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007) ..................................................... 7 Curtis v. State, 573 S.W.2d 219 (Tex. Crim. App. 1978). ...................................................... 6 Hall v. State, 14-13-00742-CR, 2014 WL 6085585 (Tex. App.—Houston [14th Dist.] Nov. 13, 2014)................................................................................................................... 1, 5 Hooper v. State, 214 SW.3d 9 (Tex. Crim. App. 2007) ........................................................... 2 Jackson v. Virginia, 443 U.S. 307 (1979).............................................................................. 2, 6 Nava v. State, 379 S.W.3d 396 (Tex. App. – Houston [14th Dist.] 2012, aff’d 415 S.W.3d 289 (Tex. Crim. App. 2013) ............................................................................................................ 6 Temple v. State, 342 S.W.3d 572 (Tex. App.--Houston. [14th Dist.] 2010, no pet.) .......... 6 Thompson v. State, 514 S.W.2d 275 (Tex. Cr. App. 1974) ...................................................... 6 Wincott v. State, 59 S.W.3d 691 (Tex.App.-Austin 2001, pet. ref'd) .................................... 7 Statutes Tex. Code Crim. Proc. art. 38.14. ........................................................................................... 5 iv STATEMENT REGARDING ORAL ARGUMENT Petitioner requests oral argument as it may aid the Court since the analysis of this case depends upon a detailed review of the record. STATEMENT OF THE CASE This petition seeks review of a direct appeal brought after a conviction for aggravated assault of a peace officer. On August 12, 2013, Mr. Hall’s case was called for a jury trial; he was arraigned and entered a plea of not guilty. (3 R.R. at 19). On August 15, 2013, the jury found Mr. Hall guilty as charged in the indictment. (5 R.R. at 108). On August 16, 2013, the trial court assessed his punishment at fifty (50) years confinement in the Texas Department of Criminal Justice – Institutional Division. (6 R.R. at 60). STATEMENT OF PROCEDURAL HISTORY On November 13, 2014, in an unpublished memorandum opinion, the Fourteenth Court of Appeals affirmed Mr. Hall’s conviction. Hall v. State, 14-13- 00742-CR, 2014 WL 6085585 (Tex. App.—Houston [14th Dist.] Nov. 13, 2014). See Appendix. No motion for rehearing was filed. QUESTION FOR REVIEW DID THE COURT OF APPEALS ERR WHEN IT FOUND THAT YBARRA AND GARZA WERE NOT ACCOMPLICES AND THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO UPHOLD MR. HALL’S CONVICTION? 1 REASON FOR GRANTING REVIEW The opinion of the Fourteenth Court of Appeals conflicts with decisions by this Court and the Supreme Court of the United States in that its determination that the evidence is legally sufficient conflicts with Jackson v. Virginia, 443 U.S. 307 (1979) and Hooper v. State, 214 SW.3d 9 (Tex. Crim. App. 2007). ARGUMENT DID THE COURT OF APPEALS ERR WHEN IT FOUND THAT YBARRA AND GARZA WERE NOT ACCOMPLICES AND THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO UPHOLD MR. HALL’S CONVICTION? On the night that this incident occurred, several people including Ybarra, Garza, and Hall, gathered for a party at Rodriguez’s house. (3 R.R. at 205). Ybarra and Rodriguez were very close. (3 R.R. at 204). Garza and Rodriguez had recently met and Rodriguez had picked up Garza to bring her to his party. (4 R.R. at 71-72). Later that evening, Ybarra agreed to drive Gonzalez and Garza home. (3 R.R. at 212). Hall had shown them a gun and Rodriguez suggested that they go to an area close to his ex- girlfriend’s house to shoot the gun. (3 R.R. at 195). Ybarra drove Hall, Rodriguez, Garza, and Gonzalez to the area Rodriguez suggested to shoot the gun. (3 R.R. at 198-199). The group dropped Gonzalez off at home and, on the way to Garza’s house, Rodriguez shot the gun out of the window. (3 R.R. at 202-203). Ybarra began to get nervous that someone would call the police because of the gunshots. (3 R.R. at 204). 2 Officer Alan Whitlock received a call around 2:00 a.m. and was dispatched to an apartment complex for a disturbance call. (3 R.R. at 39, 43). As he and the other units were walking back to the vehicles, they heard several rounds of gunfire in the area. (3 R.R. at 44). Whitlock observed two suspicious vehicles and decided to activate his lights and initiate a traffic stop. (3 R.R. at 49-53). Whitlock decided to call for another unit because he felt the passengers in Ybarra’s car were making furtive movements; before Whitlock could call for another unit, the Cadillac started to roll forward slowly and turn left. (3 R.R. at 56-57). Whitlock followed the Cadillac and then saw the passenger in the back left side lean out of the window with a gun. (3 R.R. at 60, 62-63). He originally identified the driver as the shooter but in retrospect decided it must have been the back seat passenger because the car never stopped moving. (3 R.R. at 61, 94). Whitlock never looked at a photo spread because he did not believe he would be able to pick out the person who fired the shot. (3 R.R. at 82). Ybarra testified that Hall told him not to stop the car after Whitlock had initiated the stop. After Ybarra stopped the car, Hall allegedly told Rodriguez to shoot the cop. (3 R.R. at 230-231). Ybarra tried to tell Rodriguez to throw the gun out of the car. (3 R.R. at 232). Rodriguez, however, passed the gun to Hall. (3 R.R. at 233-236). As Ybarra was driving off, he heard shots and saw Hall getting back into his seat. (3 R.R. at 233-236). Ybarra never saw Hall lean out of the car and shoot at Whitlock. (4 R.R. at 43). Rodriguez, Garza, and Hall eventually jumped out of the car. (3 R.R. at 238-40). 3 Ybarra ran to Rodriguez’s aunt’s house and Rodriguez called him while he was there. (3 R.R. at 218, 4 R.R. at 11-12). Garza ran with Rodriguez to his house. (4 R.R. at 103). About ten minutes later, Hall arrived at Rodriguez’s house without the gun and stayed for a short time. (4 R.R. at 103-104). Wanting to protect Rodriguez, Ybarra initially told the police that he was with two black males and a Puerto Rican. (4 R.R. at 15). Garza ran with Rodriguez to his house. (4 R.R. at 103). Ybarra and Rodriguez were both no-billed by the grand jury on charges of attempted capital murder of a peace officer. (3 R.R. at 193-194, C.R. at 58). In connection with this case, Ybarra plead guilty to evading arrest in a motor vehicle. (4 R.R. at 23-24). Garza was charged with evading arrest in connection to this case and she pleaded guilty and received probation. (4 R.R. at 123-124). Hall was found hiding in a tree. (5 R.R. at 20). When Hall was arrested and when he gave his buccal swab, he gave his name as Kendall Davis with a birthdate of October 9, 1988. (5 R.R. at 19-20). Law enforcement later found out that Kendall Davis’s real name was Kirby Hall and that his real date of birth is May 10, 1989. (5 R.R. at 51). Hall had a warrant for his arrest out of Louisiana and that warrant was for an offense where he could get up to life in prison. (5 R.R. at 53). GSR samples and buccal swabs were taken from several people, including Hall and Ybarra. (3 R.R. at 117-118, 125-126). The Cadillac was also swabbed for DNA residue and fingerprints. (3 R.R. at 175, 178). Hall’s fingerprints were not found in any 4 of the swabs from the Cadillac. (3 R.R. at 182). No latent prints were found on any of the recovered shell casings. (3 R.R. at 190). The GSR analysis showed no particles present on Hall’s hands or clothing. (4 R.R. at 179, 185). The GSR analysis of Ybarra was inconclusive. (4 R.R. at 179). None of the DNA swabs taken from the car matched Hall. (4 R.R. at 209). Ybarra, Rodriguez, and Garza all knew that the gun was in the car and they had discussed a plan to shoot the gun over in an area that Ybarra and Rodriguez were familiar with. It should have been foreseen that shooting a firearm into a neighborhood might attract the attention of law enforcement and that in entering into that conspiracy someone might get shot. In fact, Ybarra was nervous that someone would call the police because of the gunshots. (3 R.R. at 204). Officer Whitlock heard those gunshots and, finding Ybarra’s car suspicious, initiated a traffic stop—Ybarra drove away from Whitlock. (3 R.R. at 44, 56-57). Mr. Hall challenged the legal sufficiency of the State’s evidence regarding the aggravated assault, arguing that Ybarra and Garza were both accomplices as a matter of fact and that the independent corroborating evidence was insufficient. On appeal, the Court of Appeals found the evidence legally sufficient to support the judgment because: “[t]here is no evidence that Ybarra and Garza were appellant's accomplices as a matter of fact; therefore, there is no requirement of corroboration. See Tex. Code Crim. Proc. art. 38.14.”. Hall v. State, 14-13-00742-CR, 2014 WL 6085585, at *4 (Tex. App.—Houston [14th Dist.] Nov. 13, 2014). 5 An appellate court is to apply a “rigorous” Jackson v. Virginia analysis of the sufficiency of evidence. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). See, also, Temple v. State, 342 S.W.3d 572, 628 (Tex. App.--Houston. [14th Dist.] 2010, no pet.) (McCally, J., dissenting to denial of rehearing en banc). In evaluating the sufficiency of the evidence, the appellate court must view all of the evidence in the light most favorable to the verdict 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 (1979). “Where several people act together in pursuit of an unlawful act each one is liable for collateral crimes, even though unplanned and unintended, if those crimes are the foreseeable, ordinary and probable consequences of the preparation or execution of the unlawful act.” Thompson v. State, 514 S.W.2d 275 (Tex. Cr. App. 1974); Curtis v. State, 573 S.W.2d 219, 223 (Tex. Crim. App. 1978). For example, in Nava v. State, three co-defendants entered into a conspiracy to commit felony theft by purchasing what they believed to be stolen televisions from an undercover police officer. While attempting to make this transaction, one of the co-defendants shot and killed the undercover officer. Nava v. State, 379 S.W.3d 396, 404-405 (Tex. App. – Houston [14th Dist.] 2012, aff’d 415 S.W.3d 289 (Tex. Crim. App. 2013). The court held the evidence was sufficient, finding that because the co-defendants knew that a gun was being brought to the transaction, the co-defendants who did not shoot the officer should have anticipated it was a potential result. Nava, 379 S.W.3d at 406. 6 The same logic applies to the case at bar. All of the parties knew of the gun and should have anticipated the potential of an aggravated assault. Thus, all are accomplices under the theory of party liability. The testimony of an accomplice is inherently untrustworthy and should be viewed with caution because “the accomplice is a corrupt source who may well have improper incentives when testifying against the accused-e.g., to redirect blame or to gain favor with the State in exchange for a reduced punishment.” Wincott v. State, 59 S.W.3d 691, 698 (Tex.App.-Austin 2001, pet. ref'd). In reviewing the sufficiency of the corroborating evidence, the appellate court must eliminate from its consideration all accomplice testimony and review the remaining portions of the record to determine “if there is any evidence that tends to connect the accused with the commission of the crime.” Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborating evidence does not need to be sufficient by itself to convict the accused. Casanova v. State, 383 S.W.3d 530 (Tex. Crim. App. Nov. 21, 2012). Whitlock was not able to identify Hall as the shooter and there was no GSR, DNA, or fingerprint evidence linking Hall to the incident. None of Hall’s clothes were found to have GSR even though the accomplices testified that Hall had shot the gun earlier that evening. In contrast, Ybarra’s right hand had gunshot residue and Rodriguez’s fingerprints and palm prints were found on the rear driver’s side of the car. The fact the physical evidence more strongly indicates Ybarra or Rodriguez as the 7 shooter provides a motive to implicate Hall. This motive and attempt to shift blame is the very reason the accomplice witness rule exists. Because there is no evidence other than the uncorroborated accomplice testimony that identifies Hall as the individual who shot at Whitlock, the evidence is legally insufficient to support a conviction for aggravated assault of a peace officer. The Court of Appeals erred in holding that Ybarra and Garza were not accomplices as a matter of fact and that the evidence was legally sufficient to prove that Mr. Hall committed an aggravated assault on a peace officer. PRAYER Mr. Hall asks the Court to grant his petition and conduct a full review of his appeal in the Fourteenth Court of Appeals. Respectfully submitted, ALEXANDER BUNIN Chief Public Defender Harris County Texas /s/Frances Bourliot ______________________________ FRANCES BOURLIOT Assistant Public Defender Harris County, Texas Texas Bar No. 24062419 1201 Franklin, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 437-4317 frances.bourliot@pdo.hctx.net 8 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing petition for discretionary review has been served on the District Attorney of Harris County, Texas, by e-file on the 14th day of January, 2015. A copy has also been sent by e-file to the State Prosecuting Attorney, also on the 14th day of January, 2015. /s/Frances Bourliot _________________________________ Frances Bourliot Certificate of Compliance Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i). 1. This brief contains 2,669 words printed in a proportionally spaced typeface. 2. This brief is printed in a proportionally spaced, serif typeface using Garamond 14 point font in text and Garamond 13 point font in footnotes produced by Microsoft Word software. 3. Upon request, undersigned counsel will provide an electronic version of this brief and/or a copy of the word printout to the Court. 4. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against the person who signed it. /s/Frances Bourliot ________________________________ Frances Bourliot 9 Hall v. State, Not Reported in S.W.3d (2014) in that it was approximately 2:00 a.m. and there were no other cars in the area. When Whitlock pulled behind the white 2014 WL 6085585 Cadillac he noticed the passengers of the car making furtive, Only the Westlaw citation is currently available. suspicious movements. Whitlock turned on his emergency SEE TX R RAP RULE 47.2 FOR lights to stop the Cadillac. When the driver of the car did not DESIGNATION AND SIGNING OF OPINIONS. stop, Whitlock turned on his siren and followed the car. As the car went around a curve Whitlock saw the passenger in the MEMORANDUM OPINION back left side behind the driver lean out of the window with a Do Not Publish—Tex. R.App. P. 47.2(b). gun. Whitlock could not identify the individual with the gun Court of Appeals of Texas, other than his race, which was African–American. Whitlock Houston (14th Dist.). then heard gunfire and felt a bullet hit his chest. Kirby HALL a/k/a Kendell Davis, Appellant Juan Ybarra, the owner of the white Cadillac, testified that v. on the day of the offense, he went to Richard Rodriguez's The STATE of Texas, Appellee. house to drink and to smoke marijuana with six or seven of their mutual friends including Jose Gonzalez, Brianna Garza, No. 14–13–00742–CR. | Nov. 13, 2014. and appellant. At some point in the evening, Ybarra planned On Appeal from the 228th District Court, Harris County, to drive Gonzalez and Garza home. Appellant left the house Texas, Trial Court Cause No. 1394653. for a few minutes, returned with a rifle, and said to Ybarra, “Let's go shoot this.” At that point, Ybarra, Rodriguez, and Attorneys and Law Firms appellant decided to shoot the gun, then drive Gonzalez and Garza home. Rodriguez knew of a location where neighbors Frances Young Bourliot, for Kirby Hall aka Kendell Davis. shot guns without anyone calling the police. Alan Curry, for State of Texas. When they arrived at the location described by Rodriguez, Panel consists of Chief Justice FROST and Justices Ybarra stopped the car, appellant got out, shot the gun CHRISTOPHER and BUSBY. in the air four or five times, and got back in the front passenger seat of the car. Ybarra then drove to Gonzalez's house. After Gonzalez got out of the car, the rest of the passengers changed positions. Rodriguez moved to the front MEMORANDUM OPINION passenger seat, Garza sat behind Rodriguez in the right back TRACY CHRISTOPHER, Justice. passenger seat, and appellant sat behind Ybarra in the left back passenger seat. As Ybarra drove out of Gonzalez's *1 Appellant Kirby Hall a/k/a Kendell Davis appeals his neighborhood, Rodriguez leaned out of the front passenger conviction for aggravated assault against a public servant seat and fired the gun once. Ybarra became nervous about challenging the sufficiency of the evidence to support his Rodriguez and appellant shooting the gun, and decided to conviction. See Tex. Penal Code § 22.02(b)(2)(B). Finding drive them back to Rodriguez's house before taking Garza sufficient evidence to support appellant's conviction, we home. Ybarra testified, “I wanted to get that gun out of my affirm. car as quick as I could.” As Ybarra was driving toward Rodriguez's house he saw two I. BACKGROUND patrol cars pass. One of the cars shined its spotlight on the car and activated its emergency lights. Although appellant told On September 1, 2011, Harris County Sheriff's Deputy Alan him not to stop, Ybarra stopped the car. At this time, Ybarra Whitlock was dispatched to a disturbance in an apartment testified that everyone was afraid because the gun was sitting complex. As he drove to the location of the disturbance in the front seat of the car. Ybarra told Rodriguez to throw the Whitlock heard shots fired. Soon after hearing the shots fired, gun out of the window. Appellant told Rodriguez to shoot the Whitlock observed a white Cadillac and a black car driving police officer. Rodriguez gave the gun to appellant explaining very close together. Whitlock testified this was suspicious that he did not want to shoot the police officer. At this point, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Hall v. State, Not Reported in S.W.3d (2014) Ybarra sped up because he was afraid if he stopped for the from the legislative determination that accomplice testimony police car that appellant would shoot him. As Ybarra was must be taken with a degree of caution. Nolley v. State, 5 driving he heard three to four gun shots in quick succession. S.W.3d 850, 852–53 (Tex.App.-Houston [14th Dist.] 1999, Shortly after the shooting, when Ybarra slowed the car to no pet.). The underlying rationale is that the accomplice is make a turn, Rodriguez and Garza jumped out of the moving a corrupt source who may well have improper incentives car. Later, appellant jumped out of the car. Ybarra eventually when testifying against the accused-e.g., to redirect blame pleaded guilty to evading arrest with a motor vehicle. or to gain favor with the State in exchange for a reduced punishment. Wincott v. State, 59 S.W.3d 691, 698 (Tex.App.- *2 Brianna Garza testified and gave an account similar to Austin 2001, pet. ref'd). For these reasons, an accomplice that of Ybarra. Garza testified that it was her understanding witness is a “discredited witness,” and regardless of how that she would be driven home before the men began completely the accomplice may outline the facts of a case, shooting the gun. She recounted the initial shooting in the jury may not convict the accused without additional the field, Rodriguez shooting the gun while the car was corroborating evidence. Walker v. State, 615 S.W.2d 728, 731 moving, the police attempting to stop them, appellant telling (Tex.Crim.App.1981); Gaston v. State, 324 S.W.3d 905, 908– Rodriguez to shoot the officer, and Rodriguez refusing to 09 (Tex.App.-Houston [14th Dist.] 2010, pet. ref'd). do so. When appellant took the gun and said he was going to shoot the officer, Garza hit the back of the gun in an Before turning to whether the evidence was sufficiently attempt to stop appellant from shooting. Garza thought that corroborated, we review whether Ybarra and Garza were appellant attempted to point the gun at Ybarra because Ybarra accomplice witnesses. 1 An accomplice is an individual was stopped for the police car and did not want to flee. who participates with a defendant before, during, or after Garza testified that as appellant began shooting, she and the commission of the crime and acts with the requisite Rodriguez jumped out of the car. Garza and Rodriguez ran to culpable mental state. Cocke v. State, 201 S.W.3d 744, Rodriguez's house. Appellant returned to Rodriguez's house 747 (Tex.Crim.App.2006); Yost v. State, 222 S.W .3d 865, approximately ten minutes later, but left again when the 871 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd). Such police arrived. Garza pleaded guilty to evading arrest. participation must involve an affirmative act that promoted the commission of the offense with which the accused Appellant was convicted of aggravated assault against a was charged. Paredes v. State, 129 S.W.3d 530, 536 public servant and sentenced to 50 years in prison. (Tex.Crim.App.2004). *3 To sustain a conviction for aggravated assault of a II. SUFFICIENCY OF THE EVIDENCE public servant the evidence must demonstrate that: (1) the person intentionally or knowingly threatened another with In a single issue appellant claims the evidence is insufficient imminent bodily injury, (2) the person used or exhibited a to support his conviction. Specifically, appellant contends deadly weapon during the commission of the assault, and (3) that the evidence does not sufficiently corroborate the the offense was committed against a person the actor knew testimony of the accomplice witnesses. was a public servant while the public servant was lawfully discharging an official duty. Tex. Penal Code §§ 22.01(a) In evaluating the sufficiency of the evidence, we must view (2), 22.02(a)(2), (b)(2)(B). Pursuant to Texas Penal Code all of the evidence in the light most favorable to the verdict to sections 7.01 and 7.02, an individual can be convicted as determine whether any rational trier of fact could have found a party to an offense if that offense was committed by his the essential elements of the crime beyond a reasonable doubt. own conduct, by the conduct of another for which he is Jackson v. Virginia, 443 U.S. 307, 319 (1979). criminally responsible, or both. Tex. Penal Code § 7.01. A person is criminally responsible for an offense committed by The accomplice-witness rule provides that a “conviction the conduct of another if, acting with intent to promote or cannot be had upon the testimony of an accomplice unless assist the commission of the offense, he solicits, encourages, corroborated by other evidence tending to connect the directs, aids, or attempts to aid the other person to commit the defendant with the offense committed; and the corroboration offense. Tex. Penal Code § 7.02(a)(2). Therefore, we review is not sufficient if it merely shows the commission of the the record to determine whether the evidence reflects that offense.” Tex.Code Crim. Proc. art. 38 .14. The rule derives Ybarra and Garza could have been convicted as parties to the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Hall v. State, Not Reported in S.W.3d (2014) offense of aggravated assault of a public servant. Appellant *4 Appellant further argues that Ybarra and Garza did not request an accomplice witness instruction at trial, nor participated in a conspiracy to shoot the weapon, and could be does he argue that Ybarra and Garza were accomplices as considered accomplices under section 7.02 of the Texas Penal a matter of law. Therefore, we address whether Ybarra and Code. If in the attempt to carry out a conspiracy to commit one Garza were accomplices as a matter of fact. See Druery v. felony another felony is committed by one of the conspirators, State, 225 S.W.3d 491, 497–98 (Tex.Crim.App.2007) (jury all conspirators are guilty of the felony actually committed, instruction is given on an accomplice as a matter of law when though having no intent to commit it, if the offense was witness is charged or could be charged with the offense or committed in furtherance of the unlawful purpose and was lesser-included offense; when the evidence is conflicting as one that should have been anticipated as a result of carrying to whether witness was accomplice, jury decides whether out the conspiracy. Tex. Penal Code § 7.02(b); Zamora v. witness is an accomplice as a matter of fact). State, 432 S.W.3d 919, 922 (Tex.App.-Houston [14th Dist.] 2014, no pet.). The record reflects that Ybarra and Garza were present when the offense occurred, and that they participated in the offense Appellant argues that Ybarra and Garza knew that the gun was of evading arrest or detention. Ybarra was charged with in the car and discussed a plan to shoot the gun in an open area. evading arrest or detention in a motor vehicle, a state jail Therefore, appellant argues, the parties should have “foreseen felony. See Tex. Penal Code § 38.04(b)(1)(B). Garza was that shooting a firearm into a neighborhood might attract the charged with evading arrest on foot, a Class A misdemeanor. attention of law enforcement and that in entering into that See id. § 38.04(a). However, the record does not reflect that conspiracy someone might get shot.” Ybarra and Garza participated with appellant before, during, or after the commission of the offense of aggravated assault The record does not reflect that Ybarra and Garza of a public servant, or acted with the requisite culpable mental were accomplice witnesses because they were criminally state to commit that offense. responsible for appellant's actions under the conspiracy theory of party liability. Appellant argues that by planning Both Ybarra and Garza testified that they knew a gun was in to discharge a firearm in the city, the group should have the car and that appellant and Rodriguez intended to shoot anticipated the potential for the offense of aggravated assault it in an open area. Garza expected to be dropped off at of a public servant. her home before any shooting began. Ybarra testified he attempted to stop the car when the police initiated the traffic Appellant's theory is not supported by the evidence or the stop, and that he only drove away because he feared appellant Penal Code definition of co-conspirators. Section 7.02(b) of would shoot him. Ybarra further testified that he instructed the Penal Code provides that a person can be held criminally Rodriguez to throw the gun out of the window. Similarly, responsible under the law of parties if, in the attempt to carry Garza testified that she hit the back of the gun in an attempt out a conspiracy to commit one felony offense, another felony to prevent appellant from shooting Whitlock. There is no is committed by one of the conspirators. See Hooper v. State, evidence that Ybarra or Garza took any affirmative act to 214 S.W.3d 9, 13–14 (Tex.Crim .App.2007). Discharging a assist in shooting Whitlock. While they knew of the gun and firearm in a municipality is a misdemeanor, not a felony. See the plan to shoot it prior to commission of the offense, they Tex. Penal Code §§ 42.01(a)(7), (d) (discharge of a firearm believed appellant and Rodriguez intended to shoot the gun in a public place is a Class B misdemeanor) & 42.12(a), in an open area. Ybarra and Garza did not anticipate that (b) (discharge of a firearm inside the corporate limits of a appellant would shoot a police officer, nor did they act with municipality having a population of 100,000 or more is a the requisite culpable mental state to commit the offense of Class A misdemeanor). The record does not contain evidence aggravated assault of a public servant. The fact that Ybarra of a conspiracy to commit a felony. and Garza were in the car, coupled with their knowledge of the weapon when appellant shot Whitlock, does not render them Appellant's argument is predicated on the idea that Ybarra accomplice witnesses to the charged offense. See Zuniga v. and Garza were accomplices to aggravated assault of a public State, 393 S.W.3d 404, 414 (Tex.App.-San Antonio 2012, pet. servant. The record does not support appellant's assertion. ref'd) (witness was not an accomplice simply because he was The record reflects that Ybarra and Garza did not participate a passenger in the car at scene of murder). in the shooting of the police officer, did not conspire to shoot a police officer, nor could they have anticipated when © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Hall v. State, Not Reported in S.W.3d (2014) they got in the car with appellant that he would shoot a *5 Based on all the evidence presented, including the police officer. If a State's witness has no complicity in testimony of Ybarra and Garza, viewed in the light most the offense for which an accused is on trial, the witness's favorable to the verdict, we conclude a rational jury could testimony is not that of an accomplice witness whatever may have found the essential elements of the offense beyond a have been the witness's complicity with the accused in the reasonable doubt. See Jackson, 443 U.S. at 319. We therefore commission of other offenses. Gamez v. State, 737 S.W.2d overrule appellant's sole issue, and affirm the trial court's 315, 322 (Tex.Crim.App.1987). There is no evidence that judgment. Ybarra and Garza were appellant's accomplices as a matter of fact; therefore, there is no requirement of corroboration. See Tex.Code Crim. Proc. art. 38.14. Footnotes 1 In his brief appellant contends that Ybarra, Garza, and Rodriguez were accomplice witnesses. Rodriguez, however, did not testify; therefore, we confine our review to Ybarra and Garza. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4