Isbell, John B.

PD-0469&0470&0471&0472-15
PD-0469&0470&0471&0472-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/27/2015 4:19:05 PM
Accepted 5/28/2015 3:23:16 PM
ABEL ACOSTA
IN THE CLERK
COURT OF CRIMINAL APPEALS

JOHN B. ISBELL, §
APPELLANT §
V. § NO. PD-0469-15
§
THE STATE OF TEXAS, §
APPELLEE §

STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
OF THE COURT OF APPEALS FOR THE SECOND COURT OF APPEALS
DISTRICT OF TEXAS IN CAUSE NUMBERS 02-14-00124-CR, 02-14-00125-CR,
02-14-00126-CR, AND 02-14-00127-CR, REVERSING THE JUDGMENT OF
THE TRIAL COURT IN CAUSE NUMBERS 1290119D, 1290121D, 1290851D,
AND 1290852D IN CRIMINAL DISTRICT COURT NO. 4 OF TARRANT
COUNTY, TEXAS; THE HONORABLE MIKE THOMAS, PRESIDING.

§§§
STATE’S PETITION FOR REVIEW
§§§

SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas

DEBRA WINDSOR, Assistant
Criminal District Attorney,
Chief, Post-Conviction
May 28, 2015

JAMES GIBSON, Assistant
Criminal District Attorney
State Bar No. 00787533
Tim Curry Criminal Justice Center
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
FAX (817) 884-1672
CCAAppellateAlerts@TarrantCounty.com
 IDENTITY OF THE PARTIES AND COUNSEL

The trial judge was Hon. Mike Thomas, presiding judge of Criminal District Court

No. 4 of Tarrant County, Texas.

The State of Texas, represented by Sharen Wilson, Tarrant County Criminal

District Attorney, is a party to this litigation. At trial, the State was represented by

Paige Simpson and Brooke Panuthos, Assistant Criminal District Attorneys. On

appeal, the State is represented by James Gibson, Assistant Criminal District

Attorney, and Debra Windsor, Assistant Criminal District Attorney. The address of

these attorneys is Office of the Criminal District Attorney of Tarrant County, 401

W. Belknap, Fort Worth, Texas 76196-0201.

Appellant, Defendant below, is John B. Isbell. Appellant was represented at trial

by Hon. J. Steven Bush, 314 Main St., Suite 200, Fort Worth, Texas 76102 and on

appeal by Hon. Barry G. Johnson, 2821 E. Lancaster, Fort Worth, Texas 76103.

ii
 TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................iv

STATEMENT REGARDING ORAL ARGUMENT ............................................... 1

STATEMENT OF THE CASE .................................................................................. 2

PROCEDURAL HISTORY AND COURT OF APPEAL’S OPINION ................... 3

QUESTION FOR REVIEW ......................................................................................4

STATEMENT OF FACTS ........................................................................................5

DISCUSSION ..........................................................................................................10

I. The Court of Appeals’ opinion ......................................................................10

II. The egregious harm standard in an accomplice witness instruction case ..... 11

III. The court of appeals reversed two convictions that had nothing to do with an
accomplice witness instruction ......................................................................12

IV. The second car chase tended to connect Appellant to the first .....................15

CONCLUSION ........................................................................................................18

PRAYER ..................................................................................................................19

CERTIFICATE OF COMPLIANCE .......................................................................20

CERTIFICATE OF SERVICE ................................................................................20

COURT OF APPEALS’ OPINION ......................................................... APPENDIX

iii
 TABLE OF AUTHORITIES

CASES PAGE(S)
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ..............................10, 11

De La Paz v. State,
279 S.W.3d 336 (Tex. Crim. App. 2009) ...........................................................17

Head v. State,
No. 03-10-00414-CR, 2013 WL 1831576 (Tex. App.—Austin
April 24, 2013, no pet.) (unpublished) ...............................................................16

Herron v. State,
86 S.W.3d 621 (Tex. Crim. App. 2002) .............................................................11

Isbell v. State,
No. 02-14-00124(-127)-CR, 2015 WL 1407749 (Tex. App.—Fort
Worth March 26, 2015, pet. filed) ...............................................................passim

Lacaze v. State,
346 S.W.3d 113 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d) ...................................................................................................................18

Lawton v. State,
913 S.W.2d 542 (Tex. Crim. App. 1995), overruled on other
grounds, Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).................. 15

Llamas v. State,
12 S.W.3d 469 (Tex. Crim. App. 2000) .............................................................13

Mitchell v. State,
No. 11-01-00294-CR, 2002 WL 32344526 (Tex. App.—Eastland
2002, no pet.) (unpublished) ...............................................................................15

iv
Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998) ...........................................................15

In re P.A.,
No. 05-96-01264-CV, 1997 WL 470147 (Tex. App.—Dallas Aug.
19, 1997, pet. denied)..........................................................................................16

Statutes

TEX. CODE CRIM. PROC. art. 38.14 ...........................................................................10

TEX. R. APP. P. 47.1 ...............................................................................................13n

v
 IN THE
COURT OF CRIMINAL APPEALS

JOHN B. ISBELL, §
APPELLANT §
§
V. § NO. PD-0469-15
§
THE STATE OF TEXAS, §
APPELLEE §

STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
OF THE COURT OF APPEALS FOR THE SECOND COURT OF APPEALS
DISTRICT OF TEXAS IN CAUSE NUMBERS 02-14-00124-CR, 02-14-00125-CR,
02-14-00126-CR, AND 02-14-00127-CR, REVERSING THE JUDGMENT OF
THE TRIAL COURT IN CAUSE NUMBERS 1290119D, 1290121D, 1290851D,
AND 1290852D IN CRIMINAL DISTRICT COURT NO. 4 OF TARRANT
COUNTY, TEXAS; THE HONORABLE MIKE THOMAS, PRESIDING.

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not necessary in resolving the issues raised by this case.

1
 STATEMENT OF THE CASE

Appellant was convicted of (1) aggravated assault on a peace officer

(pointing a shotgun at him); (2) deadly conduct (shooting a woman’s car); (3)

aggravated assault on a peace officer (ramming the officer’s patrol car); and (4)

evading arrest in a vehicle. Appellant was sentenced to forty-five years for each

assault, twenty years for deadly conduct, and twenty years for evading arrest. RR

VI – 38.

2
 PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION

On appeal, Appellant complained that offenses on two different days had

been improperly joined in one trial (App. brief at 12); that the trial court should

have sua sponte given the jury an accomplice witness instruction (App. brief at

15); and that the prosecutor engaged in improper argument (App. brief at 18).

A panel of the Fort Worth Court of Appeals agreed with Appellant that he

should have received an accomplice witness instruction. Isbell v. State, No. 02-14-

00124(-127)-CR, 2015 WL 1407749 at *3 (Tex. App.—Fort Worth March 26,

2015, pet. filed) (mem op., not designated for publication). The Court also found

that Appellant was egregiously harmed by the instruction’s absence. Id. The Court

did not reach Appellant’s other two claims. Id. at *2, 3.

3
 QUESTION FOR REVIEW

Did the court of appeals employ a deficient egregious harm analysis by applying it

to two convictions where there was no accomplice witness issue?

(1) Did the court of appeals employ a deficient egregious harm analysis

where it failed to consider whether related extraneous offense

evidence supplied sufficient corroboration of an accomplice’s

testimony?

4
 STATEMENT OF FACTS

Appellant was involved in two massive police chases on two successive

summer nights in 2012. During the first chase, Appellant was a mere passenger –

but a passenger who pointed a shotgun at police and actually shot the car of a

passing motorist. In the following night’s chase, Appellant was the driver. He was

finally caught when he crashed and tried to flee on foot.

Around 6:00 a.m. on the morning of July 17, 2012, Appellant, Jamie Haney,

and Johnny Garrett went in Garrett’s Jeep to visit Rick Horton at his home. RR IV

– 36. Horton fixed a broken mirror on the Jeep, and they left straight away. RR IV

– 37-38.

Around 7:40 that morning, Officer Steven Graves of the Azle Police

performed a routine license plate check on that Jeep. RR IV – 40. A hit was

returned with a Class C warrant. Id. The only information Graves received was that

the subject’s name was Jonathan Garrett, white male, born in 1972. RR IV – 41. In

the car, Graves saw a female driver and a male passenger. Id. The woman was

Jamie Haney. RR IV - 76. It seemed to Officer Graves that the passenger was the

right race and age for Garrett. RR IV - 41. The man turned out to be Appellant. RR

IV - 76.

5
 Graves turned on his overhead lights and tried to stop the Jeep. RR IV – 42.

Haney turned on the blinker, but she didn’t pull over. RR IV – 43. Appellant

leaned over the center console, pulled up a shotgun, and pointed it in Graves’

direction. Id. Graves swerved to the right, just in case Appellant decided to shoot.

RR IV – 44. He kept following the Jeep. RR IV – 45. Haney’s speed increased to

about 85 mph as she pulled to the shoulder of the roadway in order to pass other

cars. RR IV – 46. Appellant continued to lean out the passenger window, waving

the shotgun around. Id. The officer eventually lost sight of the Jeep. Id.

Around this time, Kelly Orr was driving with her daughter on that same

street, Highway 199 in Azle. RR IV – 130, 132. A Jeep came quickly behind her,

apparently trying to go around. RR IV – 130. The driver and passenger were

“crazy,” throwing hands in the air and moving around a lot. RR IV – 131. After the

Jeep went around her, Orr could see the police car that had been chasing the Jeep.

Id. Before that happened, however, Orr heard a loud “boom.” Id. A couple of days

later, she saw small bullet holes in her bumper. RR IV – 134.

Near Lake Worth, Medea Lee Spigler was also driving on Highway 199. RR

IV – 143. A car came up fast behind her, and she also heard a loud noise. RR IV –

147. Spigler thought she had had a blow-out. RR IV – 148. She was going to pull

over, but she looked behind her and saw the passenger in the Jeep hanging outside

6
the window with a shotgun. RR IV – 148. Spigler was shaken up by the fact that

she heard the shotgun go off near her. RR IV – 149.

Jamie Haney testified. She said that Appellant was definitely the passenger

in her car. RR IV – 76. He had a shotgun with him in the car. Id. During the chase,

while traveling at about 120 mph, Haney heard the shotgun go Officer RR IV – 86.

It was pointed forward. Id. Appellant turned to her and said, “You’re my Bonnie.”

RR IV – 97. They got away from police that day. RR IV – 87.

Corporal Patrick Bovea searched the roadway in the area of the chase based

on information that Appellant had dropped his shotgun into the road. RR IV – 67.

He eventually found a shotgun. RR IV – 68. Leah Creighton of the Fort Worth

Police found some shell casings on the side of Highway 199. RR IV – 102. She

collected those. Id. The shells came from the same Mossberg shotgun that had also

been recovered. RR IV – 119.

The following evening, July 18, Sgt. Cody Phillips of the Haltom City

Police Department, had already received a bulletin from Azle Police Department

describing the “shotgun chase” of the previous morning. RR IV – 250. Phillips saw

what looked like the Jeep parked on a street in Haltom City. RR IV – 251. He

confirmed that it was the correct vehicle by checking the license plates. RR IV –

252. Phillips was watching the Jeep when it started to take Officer RR IV – 253.

7
He followed it and turned on his overhead lights. RR IV – 254. The Jeep did not

stop. Id. Officers Parsons, Michlitsch, and Gilley, joined in the chase. RR IV –

255. All three patrol cars had to drive through railroad crossing arms at Beach and

Broadway (in Haltom City) in order to continue the pursuit. RR IV – 258. The

chase continued onto I-35 and I-820, where Appellant made it to 115 mph. RR IV

– 260. During this chase, Appellant (who was driving this time) crossed into

oncoming traffic, jumped a median, jumped curbs, drove on the shoulder, and

ignored traffic signals. RR IV – 262-63. All in all, the chase lasted about twenty-

four and a half miles. RR IV – 163. He even turned off his headlights to avoid

being seen. RR IV – 263. It was at this point that Appellant rear-ended a car in a

high speed collision. RR IV – 200-201.

Eventually, Appellant ended up going through a ditch and spinning out

inside a gas station parking lot. RR IV – 177. Officer Parsons followed behind. RR

IV – 178. Appellant turned back around, pointed toward Parsons’s car, and

accelerated toward the squad car’s driver’s door. Id. Parsons sped up just in time

for Appellant to ram the patrol car in the rear. RR IV – 179. Finally, Appellant

crashed the Jeep into a mailbox. Id. He got out of the driver’s side to run, and

Haney got out of the other side. RR IV – 265. Phillips basically tackled Appellant,

8
but he would not relent. RR IV – 266. Appellant finally had to be tased, then

handcuffed. RR IV – 267. Haney was caught as well. RR IV – 268.

Appellant was convicted of four separate offenses: (1) aggravated assault on

Officer Graves (pointing the shotgun at him – 7/17); (2) deadly conduct on Kelly

Orr (shooting her car – 7/17); (3) aggravated assault on Officer Parsons (ramming

his patrol car – 7/18); and (4) evading arrest in a vehicle (7/18).

9
 DISCUSSION

I. The Court of Appeals’ opinion.

Because Haney was the driver of the Jeep when Appellant pointed a gun at a

police officer and shot at a car, the Fort Worth Court of Appeals determined that

the trial court should have instructed the jury on the accomplice-witness rule.

Isbell, 2015 WL 1407749 at *2-3; TEX. CODE CRIM. PROC. art. 38.14 (“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.”).

As Appellant failed to object to the lack of an accomplice-witness

instruction, the Fort Worth Court of Appeals had to perform an egregious harm

analysis. Isbell, 2015 WL 1407749 at *3; Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g). In its analysis, the court pointed out that

(with regard to the July 17 chase) the Jeep belonged to Garrett, the warrant hit on

the Jeep was for Garrett, and that Officer Graves was unable to identify Appellant

as the man in the Jeep. Isbell, 2015 WL 1407749 at *3. The court tied its analysis

to the fact that Appellant was on trial for four indicted offenses (two occurring on

July 17 and two occurring on July 18): “In all likelihood, the jury’s deliberations

10
on each indictment were influenced by the evidence supporting the others. . . . The

harm caused by the lack of the accomplice-witness instruction or evidence

corroborating Haney’s testimony permeated the entire trial. . . . Appellant was

therefore egregiously harmed in all four indictments.” Id. (omitted citations

contained within ellipses).

II. The egregious harm standard in an accomplice witness instruction case

Where a defendant fails to preserve error by not bringing to the trial court’s

attention an improper omission in the jury charge, he must show that he was

egregiously harmed. Almanza, 686 S.W.2d at 157. With regard to the absence of an

accomplice-witness instruction, non-accomplice evidence can render that error

harmless by essentially fulfilling the purpose the instruction was designed to serve

– that is, if that non-accomplice evidence tends to connect the defendant to the

offense. Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). This Court

has held that absence of an accomplice-witness instruction is “generally harmless

unless the corroborating (non-accomplice) evidence is ‘so unconvincing in fact as

to render the State’s overall case for conviction clearly and significantly less

persuasive.’” Id. (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim.

App. 1991)).

11
III. The court of appeals reversed two convictions that had nothing to do with

an accomplice witness instruction

As noted above, the Fort Worth Court of Appeals reversed Appellant’s

convictions for the two crimes which occurred on July 18 because, apparently, the

lack of a corroboration instruction for the July 17 crimes “permeated the entire

trial.” Isbell, 2015 WL 1407749 at *3.

In the first place, there is no basis in the law for an application of the court’s

“did-it-permeate” standard to an egregious harm analysis. Again, the issue was

whether there should have been an accomplice witness instruction with regard to

Jamie Haney’s testimony concerning Appellant’s use of a firearm during the car

chase that took place on July 17. See id. at *2 (“[Appellant] argues that the only

evidence linking him to the two indictments for July 17 was Haney’s testimony.”).

See also id. at *3 (egregious harm analysis begins, “The record reveals no other

direct evidence tending to show that Appellant was in the Jeep on July 17 with

Haney.”). The opinion analyzes the strength of non-accomplice evidence with

regard to the July 17 chase and finds it lacking. See id.

The analysis then slides off the rails. Inexplicably, the panel shifts from a

discussion of the lack of an accomplice witness charge concerning the July 17

12
events to a lamentation of the fact that Appellant was simultaneously tried for his

crimes of the following day: “In all likelihood, the jury’s deliberations on each

indictment were influenced by the evidence supporting the others.” Id. None of this

meditation has a basis in law. The panel tries to support this by citing to some

general principles contained in Llamas v. State, 12 S.W.3d 469 (Tex. Crim. App.

2000). However, the issue in Llamas was what harm standard applied when a trial

court failed to grant a mandatory severance of charges. Id. at 471-72. Llamas is

inapposite. The existence of multiple indictments has nothing to do with the

egregious harm analysis of the failure to give an accomplice witness charge – in a

different pair of indictments.1

Second, even if the appellate panel employed the correct egregious harm

standard, it applied it to the wrong convictions. The issue in Appellant’s second

point of error was whether Appellant was harmed by the lack of an accomplice

witness instruction as applied to the events on July 17. What happened on July 18

1
Obviously, the panel was concerned that the July 18 offenses were tried with the July 17
offenses – over Appellant’s objection. Appellant complained about this issue in his first point of
error. App. brief at 12. The panel did not consider this point of error, choosing instead to dispose
of Appellant’s appeal on the basis of the accomplice witness instruction claim. See Isbell, 2015
WL 1407749 at *2. However, the panel’s displeasure at the refusal to sever creeps up in its
accomplice charge analysis, an analysis that appears almost irresistible to the panel. If the
severance issue was so important, the appellate panel should have gone ahead and performed a
proper harm analysis on that basis. See TEX. R. APP. P. 47.1 (court of appeals’ opinion must
address issues that are “necessary to final disposition of the appeal”). As it did not, the State is in
no position to respond to the panel’s off-the-cuff musings.
13
was obvious, and – if any corroboration were needed – overwhelmingly

corroborated.

It should be pointed out that the State did not elicit any information from

Haney about the car chase that occurred on July 18. Appellant did that. See RR IV

– 87-90. Haney testified that Appellant drove during the chase and described the

events that ended up in their arrest. RR IV – 90. She also testified that Appellant

wasn’t trying to hit anybody. Id. If the appellate court thought this was accomplice

witness testimony, it certainly did not say so. 2 But even if it could have been

regarded as such, there was plenty of corroborating evidence that tended to connect

Appellant to his July 18 evading arrest and assault on an officer charges. Namely,

police were involved in the chase and captured Appellant as he tried to run from

them – after he wrecked the car. See RR IV – 177-79, 258, 260-63, 266-67. The

July 18 car chase was no whodunit.

There was simply no accomplice witness instruction error related to the two

crimes which occurred on July 18. Even if there had been, there was ample

corroboration of Haney’s testimony. Despite this, and because of the panel’s

muddled harm analysis, the Fort Worth Court of Appeals chose to reverse both of

the July 18-related judgments. This Court should correct that decision.

2
It is undisputed that, on July 18, Haney was a mere passenger – not the driver like the day
before.
14
IV. The second car chase tended to connect Appellant to the first.

The Fort Worth Court of Appeals also reversed the convictions arising from

the July 17 crimes. It held that Haney was a possible accomplice-in-fact, and that

omitting an accomplice witness instruction from the jury charge egregiously

harmed Appellant – because there was “no other direct evidence tending to show

that Appellant was in the Jeep on July 17 with Haney.” Isbell, 2015 WL 1407749

at *3.

The panel’s reliance on a lack of “direct” evidence ignores what really

connected Appellant to the July 17 crimes – his participation in the July 18 chase

(participation which was undisputed). Ignoring this evidence was a mistake.

Extraneous offense evidence must be considered in a determination of

whether there exists sufficient non-accomplice corroborating evidence. See Lawton

v. State, 913 S.W.2d 542, 553 n.9 (Tex. Crim. App. 1995) (“We unequivocally

hold that extraneous offense evidence is admissible under Rule 404(b) for the

purpose of corroboration under Article 38.14.”), overruled on other grounds,

Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). The Eastland court

of appeals dealt with this issue in a case that, from a corroboration point of view, is

similar to Appellant’s. Mitchell v. State, No. 11-01-00294-CR, 2002 WL 32344526

(Tex. App.—Eastland 2002, no pet.) (unpublished). A woman (Mitchell’s

15
accomplice) testified that Mitchell waited in his car while she robbed a victim. Id.

at *1. The victim testified but could only see the back of a man’s head in the car

next to her own. Id. The State presented evidence that the next day both the

accomplice and Mitchell attempted to steal a purse from another woman. Id. This

time, the victim was able to identify Mitchell. Id. Mitchell claimed that the

accomplice’s testimony was not sufficiently corroborated by other evidence. Id. at

*2. The court disagreed:

The non-accomplice testimony in this case consisted of the victim’s
account of what transpired and the evidence of the extraneous offense
elicited from the victim of the extraneous offense and the police
officer who investigated the offenses. As noted above, the
circumstances of the two offenses were quite similar. The evidence of
the extraneous offense offered by the non-accomplices tended to
connect [Mitchell] to the charged offense.

Id. at *3. Appellant’s situation is the same. His putative accomplice was the driver

in a car chase while Appellant was shooting at police. The next day, he participated

in a similar crime with that same accomplice. See also Head v. State, No. 03-10-

00414-CR, 2013 WL 1831576 at *5 (Tex. App.—Austin April 24, 2013, no pet.)

(evidence that robbery defendant had gun on night of robbery tended to establish

his identity as one of the gunmen and corroborate the testimony of his accomplice)

(unpublished); In re P.A., No. 05-96-01264-CV, 1997 WL 470147 at *6 (Tex.

App.—Dallas Aug. 19, 1997, pet. denied) (evidence that juvenile committed

16
extraneous assault offense with sawed-off shotgun admissible in capital murder

case (where one of the weapons at the scene was a sawed-off shotgun) because it

corroborated the testimony of his accomplice).

In Appellant’s case, his July 18 car chase was not – in a technical sense – an

“extraneous offense.” He was, after all, on trial for evading arrest (and trying to

ram an officer’s car) in addition to the firearm-related activities of the previous

day. But that evading was extraneous to the July 17 crimes that Haney testified

about. To the extent that Appellant’s evading was interconnected with the previous

day’s car chase, it certainly “tended to connect” him to that crime. First, although

the roles of driver and passenger were reversed, the two sets of crimes were

remarkably similar. Simply from the perspective of participating in a high-speed

car chase with the same woman, on two successive days, in the same Jeep, the

“doctrine of chances” alone should be sufficient to connect Appellant with the

offense. See De La Paz v. State, 279 S.W.3d 336, 347-48 (Tex. Crim. App. 2009)

(“extraordinary coincidence” of repeated unlikely extraneous conduct makes it

more likely defendant committed charged offense). This is precisely what the

Mitchell court was driving at when it found that the similarity of the (well-proved)

extraneous offense with the charged offense tended to connect the defendant to the

charged offense. Mitchell at *3.

17
 Second, Appellant’s driving of the same Jeep during the second chase tends

to connect him to the previous day’s chase. On July 17, Haney was driving a Jeep

and a man was shooting at police from that Jeep. On the very next day, Appellant

himself led police on another high-speed chase using the very same Jeep (this time

with Haney as a passenger) and even went so far as to use that Jeep as a weapon.

Certainly, if Appellant had used the same gun that had been used in a previous

crime, that gun would connect him to that crime – in this case, the Jeep is no

different. See Lacaze v. State, 346 S.W.3d 113, 117 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d) (defendant’s use of same gun in extraneous robbery

sufficiently corroborated accomplice testimony with regard to charged robbery).

Evidence of the July 18 car chase tended to connect Appellant to the car

chase that occurred on July 17. The Fort Worth Court should have found this

connection and should have therefore found that Appellant was not egregiously

harmed by the lack of an accomplice-witness instruction.

CONCLUSION

The Fort Worth Court of Appeals misapplied the egregious harm standard in

two ways. First, it reversed two judgments that were irrelevant to both its finding

of charge error and its harm analysis. Second, the Court failed to incorporate in its

18
analysis Appellant’s “other” offenses – the offenses that were so similar in

substance and spirit to the “accomplice” crime that those alone connected him to

the events of the previous day. This Court should reverse the Fort Worth Court’s

opinion and hold that the trial court’s failure to include an accomplice-witness

instruction was not egregiously harmful as to all Appellant’s convictions.

Alternatively, this case should be reversed with instructions for the Fort Worth

Court of Appeals to re-analyze harm while incorporating evidence of the second

car chase.

PRAYER

The State prays that its petition be granted and that the Court of Appeals’

judgment reversing the judgment of the trial court be reversed.

19
 Respectfully submitted,

SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas

DEBRA WINDSOR, Assistant
Criminal District Attorney,
Chief, Post-Conviction

/s/ James Gibson
JAMES GIBSON, Assistant
Criminal District Attorney
State Bar No. 00787533
Tim Curry Criminal Justice Center
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
FAX (817) 884-1672
CCAappellatealterts@tarrantcounty.com

CERTIFICATE OF COMPLIANCE

I certify that this document contains 3,606 words.

/s/ James Gibson
JAMES GIBSON

CERTIFICATE OF SERVICE

A copy of the State’s petition for discretionary review has been sent to

opposing counsel, Hon. Barry G. Johnson, barrygj@aol.com, 2821 E. Lancaster,

Fort Worth, Texas 76103 on May 27, 2015.

/s/ James Gibson
JAMES GIBSON

20
COURT OF APPEALS’ OPINION .......................... APPENDIX

21
Isbell v. State, Not Reported in S.W.3d (2015)
2015 WL 1407749

2015 WL 1407749 Background Facts
Only the Westlaw citation is currently available.
Around 7:40 a.m. on July 17, 2012, Officer Steven Graves ran
SEE TX R RAP RULE 47.2 FOR a routine license plate check on a Jeep stopped at a red light in
DESIGNATION AND SIGNING OF OPINIONS. Azle, Texas. The check revealed that a Class C warrant was
attached to the car for Jonathan Garrett, a white male born in
MEMORANDUM OPINION 1972. In the Jeep, Graves saw a woman in the driver's seat,
DO NOT PUBLISH TEX. R. APP. P. 47.2(B) later identified as Jamie Haney, and a white man in the front
Court of Appeals of Texas, passenger seat whom Graves believed was about the right age.
Fort Worth.
Graves turned on the police car's red and blue lights to initiate
John B. Isbell, Appellant
a traffic stop. The Jeep did not stop, so Graves turned on his
v.
siren. Haney turned on her blinker as if she was going to pull
The State of Texas, State
over, and Graves saw the passenger turn around and aim a
shotgun at him.
NO. 02–14–00124–CR, NO. 02–14–00125–
CR, NO. 02–14–00126–CR, NO. 02–14–
Graves swerved out of the way of the gun and called for
00127–CR | DELIVERED: March 26, 2015
backup. He followed the Jeep with his lights and siren on.
FROM CRIMINAL DISTRICT COURT NO. 4 OF The Jeep was going 85 miles per hour in 40–60 mile-per-hour
TARRANT COUNTY, TRIAL COURT NO. 1290119D, speed limit zones and driving on the shoulder to pass cars.
1290121D, 1290851D, 1290852D Graves testified that “the passenger was leaning outside the
passenger's side window with the shotgun waving it around,
Attorneys and Law Firms so pointing it back at [Graves], pointing it all over the place.”
Graves eventually lost sight of the Jeep in traffic.
BARRY G. JOHNSON FORT, WORTH, TEXAS, FOR
APPELLANT. Kelly Orr, who had been driving to work that morning, saw
the Jeep come up behind her and heard a loud booming noise.
SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY;
The car was driving “[e]rratically, aggressive, in and out of
DEBRA WINSOR, CHIEF OF POST CONVICTIONS;
traffic,” eventually crossing a grassy median into the other
JAMES GIBSON, BROOKE PANUTHOS AND PAGE
direction of traffic. Orr later discovered bullet holes in her
CATHERINE SIMPSON, ASSISTANT CRIMINAL
rear bumper and license plate.
DISTRICT ATTORNEY(S) FOR TARRANT COUNTY
FORT WORTH, TEXAS, FOR STATE.
Azle police received information that a shotgun had been
PANEL: LIVINGSTON, C.J.; DAUPHINOT and thrown out of a vehicle being pursued. They recovered the
GABRIEL, JJ. shotgun from the roadway. They also found a spent shell and a
damaged shell in a different location. A firearm and toolmark
examiner was able to determine that the spent shell had been
fired from the shotgun.
MEMORANDUM OPINION 1

1 Around 9:00 p.m. the next evening, on July 18, 2012, Haltom
SeeTex.R.App. P. 47.4.
City police found the Jeep parked in a residential area. The
car started and accelerated quickly. Police chased the car for
LEE GABRIEL, JUSTICE
about twenty minutes with their lights and sirens on. The
*1 Appellant John B. Isbell appeals his convictions for car ran stop signs going about 70 miles per hour in 30–
evading arrest or detention with a vehicle, assault on a public mile–per–hour zones, ran into cars on the highway, jumped
servant with a vehicle, assault on a public servant with a medians, and reached speeds of about 115 or 125 miles per
shotgun, and deadly conduct. We reverse and remand. hour. During the chase, the driver of the Jeep turned the car's
headlights off. The Jeep spun out trying to turn and drove

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Isbell v. State, Not Reported in S.W.3d (2015)
2015 WL 1407749

down the wrong side of the road into oncoming traffic. It also is not sufficient if it merely shows the commission of the
rammed a police patrol car while an officer was inside. offense.” Tex.Crim. Proc.Code Ann. art. 38.14 (West 2005).
An accomplice witness is one who could be prosecuted for the
The Jeep hit a mailbox in front of a house and came to a stop. same offense with which the accused is charged. See Gamez
Haney exited the car from the passenger's side and started v. State, 737 S.W.2d 315, 322 (Tex.Crim.App.1987). When
running. Appellant exited from the driver's side soon after there is a question from the evidence whether a witness is an
and also started running. Both were eventually caught and accomplice witness, it is proper to submit that fact issue to
arrested. Haney identified Appellant as the male passenger the jury. Id. at 322.
with her in the Jeep on July 17. She admitted that Appellant
had a shotgun in the car and that it had “gone off” while she In reviewing a trial court's failure to instruct the jury on
was being pursued by Graves. the accomplice-witness rule, we examine the record for
evidence corroborating the accomplice-witness testimony.
*2 Appellant was charged by indictment for evading arrest Jones v. State, 195 S.W.3d 279, 289 (Tex.App.—Fort
or detention with a vehicle, assault on a public servant with a Worth 2006), aff'd,235 S.W.3d 783 (Tex.Crim.App.2007).
vehicle, assault on a public servant with a shotgun, and deadly When considering whether there is sufficient evidence to
conduct. A jury found him guilty on all four counts. The corroborate the testimony of an accomplice, we eliminate that
trial court sentenced him to twenty, forty-five, forty-five, and testimony from our consideration and examine the record to
twenty years' confinement, respectively, to run concurrently. ascertain whether the remaining evidence tends to connect the
defendant to the offense. McDuff v. State, 939 S.W.2d 607,
612 (Tex.Crim.App.1997). The corroborating evidence need
not directly connect the defendant to the crime or be sufficient
Discussion
by itself to establish guilt, but it must do more than merely
Appellant presents three issues on appeal. In his first issue, show the commission of the offense. Cathey v. State, 992
he argues that the trial court erred by granting the State's S.W.2d 460, 462 (Tex.Crim.App.1999).
motion to consolidate. Before trial, the State filed a motion
to consolidate the four indictments, arguing that the two Because Appellant did not object to the omission of the
offenses that occurred on July 17 and the two that occurred instruction, we must decide whether the error was so
on July 18 arose out of the same criminal episode and were egregious and created such harm that he did not have a fair
the repeated commission of similar offenses against peace and impartial trial. Almanza v. State, 686 S.W.2d 157, 171
officers. The trial court granted the motion over Appellant's (Tex.Crim.App.1985) (op. on reh'g). Under the egregious
objections. In its brief, the State concedes error but contends harm standard, the omission of an accomplice-witness
that such error was harmless. SeeTex. Pen.Code Ann. § instruction is generally harmless unless the corroborating
3.04 (West 2011) (“Whenever two or more offenses have (non-accomplice) evidence is “so unconvincing in fact as
been consolidated or joined for trial under Section 3.02, to render the State's overall case for conviction clearly
the defendant shall have a right to a severance of the and significantly less persuasive.” Jones, 195 S.W.3d
offenses.”). However, because of our disposition of issue two, at 290 (quoting Herron v. State, 86 S.W.3d 621, 632
we need not conduct a harm analysis on Appellant's first issue. (Tex.Crim.App.2002)). Egregious harm is a difficult standard
SeeTex.R.App. P. 47.1. to prove and must be determined on a case-by-case basis.
Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996).
In his second issue, Appellant argues that the trial court erred
by failing to instruct the jury on the accomplice-witness rule. *3 For the acts of July 17, Appellant was charged with
He argues that the only evidence linking him to the two aggravated assault and deadly conduct. Haney was charged
indictments for July 17 was Haney's testimony. Haney, he with evading arrest or detention in a vehicle for driving
contends, was an accomplice to those crimes. the Jeep. But she could have been charged as a party
to Appellant's acts if, with intent to promote or assist
Article 38.14 of the code of criminal procedure provides, “A the commission of the offense, she solicited, encouraged,
conviction cannot be had upon the testimony of an accomplice directed, aided, or attempted to aid Appellant's commission
unless corroborated by other evidence tending to connect the of the offense. SeeTex. Penal Code Ann. § 7.02(a)(2) (West
defendant with the offense committed; and the corroboration 2011).

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Isbell v. State, Not Reported in S.W.3d (2015)
2015 WL 1407749

At trial, the State presented the events of July 17 and
The State contends that the present case is similar to Hall v.
July 18 as part of the same criminal episode. See Hutch,
State, No. 14–13–00742–CR, 2014 WL 6085585 (Tex.App.
922 S.W.2d at 171 (stating that in the egregious-harm
—Houston [14th Dist.] Nov. 13, 2014, pet. ref'd) (mem. op.,
analysis, we consider the charge, the evidence, arguments
not designated for publication). In Hall, the appellant was
of counsel, and any other relevant information revealed by
found guilty of aggravated assault against a public servant for
the trial record as a whole). Because there was no other
shooting a gun from a car. Id. at *1. Two witnesses who were
evidence besides Haney's testimony to link Appellant to
in the car with the appellant testified at trial. Id. One testified
the July 17 events, we believe that the error was such
that he had tried to stop the car when the police officer tried
that it “affect[ed] ‘the very basis of the case,’ deprive[d]
to initiate a traffic stop. Id. at *3. The other testified that she
the defendant of a ‘valuable right,’ or ‘vitally affect[ed] a
had hit the back of the gun to prevent the appellant from
defensive theory.’ ” Olivas v. State, 202 S.W.3d 137, 144
shooting it. Id. The appellate court held that the appellant
(Tex.Crim.App.2006) (quoting Hutch, 922 S.W.2d at 171;
was not entitled to an accomplice-witness instruction because
Almanza, 686 S.W.2d at 172) (defining egregious harm). In
neither witness “took any affirmative act to assist in shooting
all likelihood, the jury's deliberations on each indictment were
[the officer].” Id.
influenced by the evidence supporting the others. Llamas v.
State, 12 S.W.3d 469, 471–72 (Tex.Crim.App.2000) (noting
In this case, Haney did not stop when Officer Graves
that trying multiple indictments at the same time raises
attempted a traffic stop. She kept driving at a high rate of
“two legitimate concerns: (1) that the jury may convict a
speed and continued to do so after she heard the gun go off.
‘bad man’ who deserves to be punished—not because he
She testified that the high speed chase was “pretty long” and
is guilty of the crime charged but because of his prior or
that the gun went off in “the middle of it.” This evidence
subsequent misdeeds; and (2) that the jury will infer that
raises at least a fact issue as to whether Haney intended
because the accused committed other crimes, he probably
to promote or assist Appellant's commission of the offense.
committed the crime charged”) (citing 2 Wayne R. LaFave,
Whether Haney had the requisite intent was a question of
Israel & King, Criminal Procedure Criminal Practice Series,
fact for the jury to decide. See Smith v. State, 965 S.W.2d
17.1(d) (2nd ed. Supp.1999)). The harm caused by the lack of
509, 518 (Tex.Crim.App.1998). Because the jury could have
the accomplice-witness instruction or evidence corroborating
determined that Haney was an accomplice as a matter of fact,
Haney's testimony permeated the entire trial. See Wedlow
the trial court erred by not submitting the question and the
v. State, 807 S.W.2d 847, 852 (Tex.App.—Dallas 1991, no
accomplice-witness instruction to the jury. See Biera v. State,
pet.)(holding that harmful error “tainted the ‘integrity of the
280 S.W.3d 388, 393 (Tex.App.—Amarillo 2008, pet. ref'd).
process' ” of entire trial). Appellant was therefore egregiously
harmed in all four indictments. We sustain Appellant's second
We must now consider whether the error caused egregious
issue. Because our conclusion regarding Appellant's second
harm. Jones, 195 S.W.3d at 290. The record reveals no other
issue requires reversal of the trial court's judgment, we
direct evidence tending to show that Appellant was in the Jeep
need not address his third issue concerning improper jury
on July 17 with Haney. Rick Horton testified that Appellant,
argument. SeeTex.R.App. P. 47.1.
Haney, and Garrett went to Horton's house early on July 17
to get the rearview mirror fixed on the Jeep. All three left
together around 6:00 a.m., two hours before Graves attempted
to stop the car. Horton stated that the Jeep belonged to Garrett, Conclusion
and Graves testified that the warrant hit on the Jeep had
returned for Garrett. Graves also testified that the man in the *4 Having sustained Appellant's second issue, we reverse
Jeep wore a hat and sunglasses, and he did not make an in- the trial court's judgment and remand the case for a new trial.
court identification of Appellant.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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