ACCEPTED
01-14-01005-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/3/2015 2:18:34 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-01005-CR
IN THE FIRST COURT OF APPEALS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS 8/3/2015 2:18:34 PM
CHRISTOPHER A. PRINE
Clerk
HAROLD JOSEPH NORWOOD, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
BRIEF FOR THE STATE OF TEXAS
CAUSE NUMBER 13CR1311
IN THE 405th JUDICIAL DISTRICT COURT
OF GALVESTON COUNTY, TEXAS
ATTORNEYS FOR THE STATE OF TEXAS
REBECCA KLAREN ASSISTANT CRIMINAL DISTRICT ATTORNEY
STATE BAR NO. 24046225
JACK ROADY CRIMINAL DISTRICT ATTORNEY
600 59TH STREET, SUITE 1001
GALVESTON TX 77551
(409) 770-6004, FAX (409) 621-7952
rebecca.klaren@co.galveston.tx.us
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES AND COUNSEL
Presiding Judge Honorable Michelle Slaughter
Appellant Harold Joseph Norwood, Jr.
Appellee The State of Texas
Attorney for Appellant James Bennett
(Trial Only) Alvin, Texas
Attorney for Appellant Zachary S. Maloney
(Appeal Only) League City, Texas
Attorney for State Matthew Shawhan & Bill Reed
(Trial Only) Galveston, Texas
Attorney for State Rebecca Klaren
(Appeal Only) Galveston, Texas
ii
TABLE OF CONTENTS
SECTION PAGE
Identity of Parties and Counsel ii
Table of Contents iii
Index of Authorities iv
Summary of the Argument 2
Statement of Facts 3
First Issue 15
There must be evidence a witness is an accomplice before a court
is required to include an accomplice witness instruction in its
charge. If the court should’ve included the instruction, but the
defendant didn’t object, the defendant must show he was
egregiously harmed.
How’s there harmful reversible error when there’s no evidence
Lacy was an accomplice, Norwood didn’t object to the charge,
and Norwood made no argument he was egregiously harmed?
Argument and Authorities 15
I. Accomplice Witness Applicable Law 15
II. Lacy Was Not An Accomplice 17
III. Norwood Wasn’t Egregiously Harmed: The Non-Accomplice
Evidence Corroborates Lacy & Tends To Connect Norwood
To The Murder 20
IV. Conclusion: No Ground For Reversal 24
iii
Second Issue 25
Video proves Norwood walked towards the crime scene minutes
before the victim’s car was stolen. Video proves Norwood was
driving the car minutes after the victim was left dying in his
bakery parking lot. Norwood had the victim’s car, his car key,
and his cellphone.
Viewing the evidence in the light most favorable to the verdict,
how’s there insufficient evidence to prove Norwood murdered
the victim?
Argument and Authorities 25
I. Relevant Sufficiency Law 25
II. The Evidence Proves Norwood Killed The Victim 27
Conclusion and Prayer 30
Certificate of Service 31
Certificate of Compliance 31
iv
INDEX OF AUTHORITIES
CASES
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) ....................................25
Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). .......................................20
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) ..................................17
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) ......................................17
Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. App. 1995)....................................16
Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984) .......................................22
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). ....................................26
Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996)....................................21
Ex parte Flores, 387 S.W.3d 626, 641 (Tex. Crim. App. 2012) .....................................25
Flores v. State, 551 S.W.2d 364, 369 (Tex. Crim. App. 1977) .......................................28
Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012). .....................................26
Gaston v. State, 324 S.W.3d 905, 908 (Tex. App.---Houston [14th Dist.] 2010, pet. ref'd)
...............................................................................................................................16
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) .........................................26
Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App. 2011). ......................................26
Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). .............. 16, 17, 21, 23, 24
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). ..........................................26
v
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) .........................................................26
Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007). .....................................21
Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) .....................................21
Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998). ......................................20
Miller v. State, 177 S.W.3d 177, 184 (Tex. App.---Houston [1st Dist.] 2005, pet. ref’d)
........................................................................................................................ 28, 29
Moron v. State, 779 S.W.2d 399, 401 (Tex. Crim. App. 1985).......................................21
Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013). .......................................20
Palomo v. State, 352 S.W.3d 87, 90-91 (Tex. App.---Houston [14th Dist.] 2011, pet.
ref’d).......................................................................................................................27
Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). ................... 15, 16, 17, 19
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) ......................................25
Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). ....................................20
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). ...................................26
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). ..................................26
Wygel v. State, 555 S.W.2d 465, 469 n.3 (Tex. Crim. App. 1977)..................................19
Zamora v. State, 411 S.W.3d 504, 511 (Tex. Crim. App. 2013) .............................. 15, 16
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 38.14. ..................................................................16
TEX. PENAL CODE § 19.02(b)(2). ...............................................................................27
vi
TEX. PENAL CODE §7.01 ...........................................................................................15
TEX. PENAL CODE §7.02(a) .......................................................................................15
TEX. PENAL CODE §7.02(b) ................................................................................ 15, 18
vii
NO. 01-14-01005-CR
IN THE
COURT OF APPEALS
FOR THE
FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS
HAROLD JOSEPH NORWOOD, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
Appealed from the 405th Judicial District
Court of Galveston County, Texas
Cause No. 13CR1311
BRIEF FOR THE STATE OF TEXAS
TO THE HONORABLE COURT OF APPEALS:
Now comes Jack Roady, Criminal District Attorney for Galveston County, Texas,
and files this brief for the State of Texas.
The one-volume Clerk’s Record is referred to in the State’s Brief as “C.R. page”. The Reporter’s
Record is multiple volumes and is referred to as “R.R. volume number: page”.
SUMMARY OF THE ARGUMENT
Harold Norwood raises two issues in an attempt to reverse his murder
conviction. First, he claims he was egregiously harmed because the Trial Court didn’t sua
sponte include an accomplice witness instruction in its charge. Norwood hasn’t shown
there was an accomplice witness. Norwood has presented no evidence there was a
conspiracy. And even if there should’ve been an instruction, Norwood has made no
attempt to show he was egregiously harmed.
In his second issue, Norwood claims the evidence was “factually” insufficient
because driving the victim’s car doesn’t prove he committed the murder. Norwood’s
argument ignores the overwhelming circumstantial evidence. The evidence proves he
was near the scene of the murder, minutes before the murder. He had the victim’s car
key, car, and cellphone immediately after the assault. He made admissions that a crime
had occurred. Viewing the evidence in the light most favorable to the verdict, Norwood
killed the victim and took his car.
2
STATEMENT OF FACTS
Juan Navarro owned the Navarro Bakery located on Broadway and 38th Street in
Galveston.1 Navarro also owned a silver Lexus SUV.2 His bakers came in at 5 a.m. and
the bakery closed at 10 p.m.3 He usually stopped at the bakery after 11 p.m. to turn the
alarm on.4
After the bakery closed one night in January 2013, Navarro took a co-worker and
his family to dinner.5 They parted ways around 12 a.m.6 Navarro drove to the bakery.
At 12:23 a.m., Navarro turned into the parking lot.7 He left his blinker on, but
never went into the bakery.8 He may’ve fallen asleep in the car.
At 1:04 a.m., an officer responding to an unrelated dispatch,9 noticed what
appeared to be a Lexus SUV in the bakery’s parking lot with its turn signal continuously
blinking.10 The doors were closed and the headlights were on.11 The officer’s in-car
video was not on.12 But, as the officer was returning to the police station to complete the
dispatch, her in-car video was recording.13 At 1:28 a.m., the in-car video shows the
1
R.R. III: 46.
2
R.R. III: 54.
3
R.R. III: 47.
4
R.R. VI: 219.
5
R.R. III: 30.
6
R.R. III: 32.
7
R.R. VI: 67; State’s Exhibit 1 (bakery videos).
8
R.R. VI: 67; State’s Exhibit 1; State’s Exhibit 25 (Chevron video showing continuous blinking).
9
R.R. VI: 89.
10
R.R. III: 112-13.
11
R.R. III: 113.
12
R.R. III: 114-15.
13
R.R. III: 115-16; State’s Exhibit 24 (in-car video).
3
blinking light at the bakery.14
At 1:37 a.m., a surveillance video at the Mercadito restaurant across Broadway
from the bakery showed a single man dressed in all dark walk away from the bakery.15
At 1:41 a.m., the video shows the man return.16 The man was alone.17 He walked
passed the restaurant and towards the bakery.18 Two of Norwood’s friends identified
him as the man on the video.19 They explained they identified him based on his unique
walk.20
At 1:49 a.m., the videos from the Chevron station across Broadway from the
bakery and the bakery’s indoor surveillance video show the blinking stopped.21 The
Lexus’ headlights were turned on and it pulled onto 38th Street, away from Broadway.22
At 1:59 a.m., Officer Ticas noticed a man lying in the bakery parking lot.23 He
stopped and found Navarro gravely injured.24 He called EMS.25
Meanwhile, between 12 a.m. and 2 a.m., Richard Lacy testified he was at his
14
R.R. VI: 32-33, 89; State’s Exhibit 24; State’s Exhibit 353 (screen shot of in-car video showing
Lexus and blinking light at bakery).
15
R.R. III: 33-34; VI: 137-38; State’s Exhibit 59 (Mercadito video). The lead detective testified she
checked each video against the dispatch time. R.R. VI: 77-78. Evidently each video was a few
minutes off. Id. So she adjusted the times to be consistent with dispatch. Id.
16
R.R. VI: 137-38; State’s Exhibit 59.
17
State’s Exhibit 59.
18
R.R. VI: 137-38; State’s Exhibit 59.
19
R.R. V: 57-58, 71-72.
20
R.R. V: 58-59; 72.
21
R.R. VI: 24-25; State’s Exhibit 1 (bakery videos); State’s Exhibit 25 (Chevron video).
22
R.R. VI: 67-68; State’s Exhibit 25.
23
R.R. III: 94-95.
24
R.R. III: 94.
25
R.R. III: 94.
4
neighbor’s house on 38th Street drinking and using drugs with several people, including
James Nolan.26 The house was about a block behind the bakery.27 Close to 2:00 a.m., he
saw a silver SUV on 38th coming from Broadway.28 Lacy thought it was his friend
Joseph.29 It wasn’t Joseph, it was Norwood.30 Lacy, who’d known Norwood for a few
days, had never seen Norwood drive the Lexus before.31 Norwood asked Lacy where
there was a Coinstar.32 Lacy told Norwood the only one available at that time was at
Kroger on 50th and the Seawall.33
James Nolan testified that on the night of the murder, he was with Lacy at a
house.34 Nolan heard the conversation about the coins between Norwood and Lacy.35
Nolan said Lacy left with Norwood.36
At 1:58 a.m., the silver Lexus parked at Kroger.37 Norwood, wearing all dark
clothes, got out of the driver’s seat.38 Lacy testified Norwood had the car key.39 Lacy,
wearing a yellow jacket and khaki pants, got out of the passenger seat.40 The men
26
R.R. IV: 107-08.
27
R.R. VI: 68-69.
28
R.R. IV: 110.
29
R.R. IV: 109-10.
30
R.R. IV: 110.
31
R.R. IV: 112.
32
R.R. IV: 113.
33
R.R. IV: 113.
34
R.R. IV: 65-66.
35
R.R. VI: 65, 67.
36
R.R. IV: 67.
37
R.R. IV: 52-53; VI: 42-43; State’s Exhibit 62 (Kroger parking lot video).
38
R.R. IV: 53-54, 120; State’s Exhibit 62.
39
R.R. IV: 121.
40
R.R. IV: 53-54, 120; State’s Exhibit 62.
5
entered Kroger and went to the Coinstar.41 Lacy testified Norwood had a cloth bag full
of coins.42 Lacy testified the men cashed the coins and Norwood made him keep the
cloth bag until after they left Kroger.43 The Coinstar receipt for $117.15 was issued at
2:01 a.m.44
At 2:11 a.m., Lacy and Norwood left Kroger.45 Norwood had the car key.46 Lacy
testified he drove as they left because Norwood’s driving was erratic.47 As they drove,
Norwood told Lacy he was taking a penitentiary chance in the vehicle.48 Lacy thought he
meant something was going on with the car or that it was stolen.49 Lacy testified
Norwood might’ve said he hit a lick (which could mean taking something from
someone or taking something without permission).50 Lacy testified Norwood told him
he shouldn’t say anything about the car.51 They got more drugs.52
At the hospital, a trauma surgeon tried to save Navarro.53 Unfortunately, his
injuries were not survivable and he died at 8:13 p.m.54
At 2:30 a.m., the on-call detective (Detective Sollenberger) was called to the
41
R.R. IV: 114-15.
42
R.R. IV: 117-18.
43
R.R. IV: 114-15, 134; State’s Exhibit 63 (video of inside Kroger).
44
R.R. IV: 48-50; State’s Exhibit 64 (Coinstar receipt).
45
R.R. VI: 69.
46
R.R. IV: 121.
47
R.R. IV: 114.
48
R.R. IV: 122.
49
R.R. IV: 122.
50
R.R. IV: 139-40.
51
R.R. IV: 137.
52
R.R. IV: 123.
53
R.R. IV: 8-9.
54
R.R. IV: 15-16.
6
scene.55 When she first got to the bakery, she noticed a dry void in an otherwise wet
parking lot.56 It was the size of a car.57 The wet spot was consistent with an air
conditioning drip spot, as if a vehicle had been sitting and running.58 The victim’s key
ring was laying next to him, but there was no car key on the ring.59
Detective Sollenberger testified she was able to pull up a photograph of the
bakery owner.60 The first officer on the scene identified him as the injured man.61 The
bakery was locked and nothing looked disturbed inside it.62
An officer went to the victim’s home to learn why Navarro may’ve been at the
bakery that late and to ask if there was a missing car.63 The victim’s wife told the police
about the missing Lexus.64 The detective sent out a regional broadcast about the missing
Lexus.65 Multiple officers looked for the Lexus.66 Detective Sollenberger also posted a
Facebook post to the police account asking for information on the stolen car.67
The next day, the police got a tip that the car was parked on 38th Street.68 The car
55
R.R. VI: 9.
56
R.R. VI: 11-12.
57
R.R. VI: 12.
58
R.R. VI: 14.
59
R.R. VI: 20.
60
R.R. VI: 15.
61
R.R. VI: 15.
62
R.R. VI: 14, 16.
63
R.R. VI: 15.
64
R.R. VI: 16.
65
R.R. VI: 16-17.
66
R.R. III: 168-69, 183.
67
R.R. VI: 17.
68
R.R. VI: 25-26.
7
was warm and the air conditioning condenser was dripping.69 This indicated to the
officers that the car was recently driven.70 An officer looked under the car and noticed
what appeared to be blood in the driver’s side wheel well.71 The officers decided to tow
the car to the police department for processing.72
While the police were still at the scene where the Lexus was found, a woman
came up to them and said she feared Norwood was dead in the car.73 The police also got
a call from Norwood’s brother.74 He too feared Norwood was dead in the car.75
Norwood wasn’t. Several agencies began looking for Norwood.76 On February 16, 2013,
a Houston police officer arrested Norwood.77
At the Galveston Police Department, the officers dusted the car for
fingerprints.78 They found swipe marks on the driver’s door.79 This indicated to the
officers that someone tried to wipe the door clean.80 Fortunately, the officers were still
able to get a fingerprint.81 The fingerprint matched Norwood.82
69
R.R. III: 186; VI: 26.
70
R.R. III: 186-87; VI: 26.
71
R.R. III: 188, 191-92.
72
R.R. III: 193.
73
R.R. III: 194-98.
74
R.R. VI: 29.
75
R.R. VI: 29-30.
76
R.R. VI: 53-54.
77
R.R. V: 141-43.
78
R.R. IV: 88; V: 178.
79
R.R. V: 200-01.
80
R.R. V: 200-01.
81
R.R. V: 179.
82
R.R. V: 147, 149, 151.
8
The police officers immediately tried to locate the victim’s cellphone.83 They
called it and had the service provider ping it.84 The pings didn’t provide an exact
location.85 However, the officers were able to get the phone’s call logs.86 There were
several calls made after the victim was found.87 The officers determined each person
called knew Norwood.88 The officers also determined that a call was made to check
someone’s bank account balance.89 The bank recorded the telephone call.90 Dietrich
Simmons made the call to the bank.91 She testified she got the cellphone from
Norwood.92
The day after the murder, Richard Lacy spoke to his brother about Norwood.93
Lacy knew he’d been in the car.94 His brother urged Lacy to do the right thing.95 Lacy
called 911 to say he had information.96 Lacy voluntarily went to the police station twice
and gave two statements.97 He told the police what he knew about Norwood.98 Lacy said
83
R.R. VI: 17-18.
84
R.R. VI: 17-18.
85
R.R. VI: 18.
86
R.R. V: 132.
87
R.R. V: 133-36.
88
R.R. V: 137-38; VI: 44-48.
89
R.R. VI: 45.
90
R.R. VI: 45.
91
R.R. VI: 45.
92
R.R. V: 59-60.
93
R.R. IV: 137.
94
R.R. IV: 137.
95
R.R. IV: 137.
96
R.R. IV: 127-28.
97
R.R. VI: 34, 36-37.
98
R.R. IV: 128-29.
9
he’d seen Norwood continue to drive the Lexus after their Kroger trip.99 He said
Norwood used a cloth to wipe the car down every time he got out of it.100
Lacy testified he thought he also told the police that the night before the murder,
he and Norwood walked by the bakery and on the way to the corner store.101 Norwood
said to Lacy “That’s a nice car.”102
On cross-examination, Lacy agreed Norwood didn’t say he stole a car, hurt
someone, or killed someone.103 Lacy agreed he didn’t see Norwood steal the Lexus or
hurt anyone.104 Lacy said he didn’t assume the car was stolen until after Norwood said
he was taking a penitentiary chance by driving it and Norwood wiped the car down.105
During Norwood’s case-in-chief, he recalled Lacy.106 He questioned Lacy about
his criminal history.107 Lacy said he saw Norwood drive the Lexus for 4 or 5 days.108
When Norwood asked if Lacy would be surprised the car was recovered within 2 days of
the murder, Lacy said he could be wrong about the days.109
Lacy voluntarily gave the police a DNA sample and the clothes he was wearing.110
99
R.R. IV: 125.
100
R.R. IV: 126.
101
R.R. IV: 136.
102
R.R. IV: 136.
103
R.R. IV: 144.
104
R.R. IV: 145-46.
105
R.R. IV: 147.
106
R.R. VII: 53.
107
R.R. VII: 54.
108
R.R. VII: 60-67.
109
R.R. VII: 68.
110
R.R. IV: 129.
10
He also gave the police the shoes he leant to Norwood.111 None of the victim’s DNA
was on Lacy’s clothes or Norwood’s shoes.112 One of Lacy’s shoes tested positive for
presumptive blood.113 The DNA test showed it was a mixture.114 Lacy was the major
contributor.115 The data regarding the minor contributor was too small to make an
identification.116
Lacy told the jury he had a prior felony conviction for forgery and for possession
of a controlled substance.117 He admitted he has a drug problem.118 He told the jury he
was under arrest for a misdemeanor offense of obstructing a passageway, but didn’t have
a deal with the State for his testimony.119
Detective Sollenberger testified that initially Lacy was a suspect because he was
on the Kroger video 10 minutes after the vehicle was stolen.120 She testified, however,
that Lacy was ruled out as a suspect early in the investigation.121 The detective explained
that the police were able to speak to Lacy’s roommates, including James Nolan, and
corroborated what Lacy told them.122 The Kroger and Mercadito surveillance videos also
111
R.R. IV: 129-30.
112
R.R. VI: 194, 199; State’s Exhibit 360 (DNA laboratory report).
113
State’s Exhibit 359 (forensic toxicology laboratory report); State’s Exhibit 360.
114
State’s Exhibit 360.
115
State’s Exhibit 360.
116
State’s Exhibit 360.
117
R.R. IV: 105.
118
R.R. IV: 108.
119
R.R. IV: 106.
120
R.R. VI: 138.
121
R.R. VI: 138.
122
R.R. VI: 138, 143.
11
corroborated Lacy.123 Lacy was not with Norwood when he assaulted the victim and
took his car.
The Medical Examiner testified Navarro had abrasions on his head, face,
forehead, check, ear, both knees, and his elbow.124 He had 2 broken ribs.125 Navarro had
a hemorrhage under both sides of his scalp and a hemorrhage over the left side of his
brain.126 He had a basal skull fracture stretching from one ear to the other.127 There was
blood coming out of his ears, which is a characteristic of the skull injury.128 The Medical
Examiner testified a basal skull fracture is most commonly seen in car accidents where
the person’s head is moving very quickly and suddenly stops or when people fall from a
height and there’s a hyperflexion.129 He said a basal skull fracture is always fatal.130 The
doctor said Navarro could’ve been struck while his head was still or could’ve been
pushed over and his head struck a fixed object.131 The Medical Examiner testified the
manner of death was homicide and the cause of death was blunt force head trauma.132
The Medical Examiner testified he reviewed the crime scene pictures of the
scene.133 Based on the scene, the doctor explained the victim’s facial abrasions and the
123
R.R. VI: 138, 144.
124
R.R. V: 17.
125
R.R. V: 38-39.
126
R.R. V: 17-18.
127
R.R. V: 18.
128
R.R. V: 22.
129
R.R. V: 27.
130
R.R. V: 27.
131
R.R. V: 33.
132
R.R. V: 33.
133
R.R. V: 34-35.
12
pattern on his chest could’ve been caused from a fight, from getting rolled over by a
vehicle and being caught under the undercarriage, or getting his head slammed to the
ground.134 The doctor explained that the vehicle could’ve caused the basal skull fracture
if the victim was lying flat on the ground, with his head up and as the tire came across
his chest, slamming his head back.135 The doctor agreed that the victim could’ve been
trying to get up when the car rolled over his chest.136 The doctor also agreed that
Navarro could’ve been standing up or in his vehicle and received a blow to the head that
caused the brain hemorrhages.137 The doctor testified, based on the crime scene photos,
the rib fractures could’ve been caused by the vehicle rolling over the victim’s chest.138
The Medical Examiner testified a vehicle, used to run over someone in this way, is a
deadly weapon.139
Norwood did not request any instructions in the jury charge and affirmatively
stated he had no objections to the charge.140 There was no accomplice witness language
in the charge.141
The jury convicted Norwood of murder and made an affirmative finding of a
deadly weapon.142
134
R.R. V: 35.
135
R.R. V: 35-36.
136
R.R. V: 36-37.
137
R.R. V: 37-38.
138
R.R. V: 38-39.
139
R.R. V: 39.
140
R.R. VII: 81-82.
141
C.R. 159.
142
C.R. 164, 166.
13
The jury heard Norwood had 17 convictions---7 for drug convictions, a failure to
identify conviction, 3 evading arrest convictions, 3 theft convictions, and 3 assault
convictions.143 The jury found both enhancements for possession of a controlled
substance true and sentenced Norwood to 80 years confinement.144
This appeal followed.
143
R.R. VIII: 37-44.
144
C.R. 174.
14
FIRST ISSUE
There must be evidence a witness is an accomplice before a court is
required to include an accomplice witness instruction in its charge.
If the court should’ve included the instruction, but the defendant
didn’t object, the defendant must show he was egregiously harmed.
How’s there harmful reversible error when there’s no evidence Lacy
was an accomplice, Norwood didn’t object to the charge, and
Norwood made no argument he was egregiously harmed?
ARGUMENT AND AUTHORITIES
Norwood doesn’t cite to any evidence from any source that Lacy was a co-
conspirator accomplice witness. Consequently, the Trial Court did not err by omitting a
sua sponte jury instruction that he was. Even if there was error, Norwood wasn’t
egregiously harmed by the omission because the non-accomplice evidence corroborates
Lacy’s testimony by tending to connect Norwood to the crime.
V. Accomplice Witness Applicable Law
An accomplice is a person who participates before, during, or after the
commission of the offense with the requisite culpable mental state.145 A person can be
an accomplice as a direct party or as a co-conspirator.146
145
Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
146
Zamora v. State, 411 S.W.3d 504, 511 (Tex. Crim. App. 2013) (citing TEX. PENAL CODE §7.01
(person is “criminally responsible” for his own conduct or for “conduct of another for which he is
criminally responsible”); TEX. PENAL CODE §7.02(a) (describing criminal responsibility as a direct
party); TEX. PENAL CODE §7.02(b) (describing criminal responsibility for a party as a co-
15
If a witness is an accomplice, Code of Criminal Procedure article 38.14 requires
a jury instruction that a conviction cannot rest on the testimony of the accomplice
witness “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.”147 The accomplice witness rule reflects “the legislative
determination that accomplice testimony must be taken with a certain degree of
caution.”148 “Accomplices often have an incentive to lie, such as to avoid punishment
or shift blame to another person.”149
The evidence in the particular case dictates whether an accomplice-witness
instruction is required.150 A witness may be considered an accomplice as a matter of
law or as a matter of fact.151 A prosecution witness who is indicted for the same
offense as the defendant or a lesser-included offense is an accomplice as a matter of
law.152 “If a prosecution witness is an accomplice as a matter of law, the trial court is
under a duty to instruct the jury accordingly.”153 “Failure to do so is error.”154 When,
however, there is doubt as to whether a witness is an accomplice—i.e., the evidence is
conflicting—then the court may instruct the jury to determine the witness’s
conspirator)).
147
Zamora, 411 S.W.3d at 509-10; TEX. CODE CRIM. PROC. ANN. art. 38.14.
148
Gaston v. State, 324 S.W.3d 905, 908 (Tex. App.---Houston [14th Dist.] 2010, pet. ref’d); see
Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. App. 1995).
149
Smith, 332 S.W.3d at 439.
150
Id.
151
Id.
152
Id.; Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002).
153
Herron, 86 S.W.3d at 631.
154
Id.
16
accomplice status as a fact issue.155
When the evidence clearly shows that the witness is not an accomplice, then
the court is not required to instruct the jury on the accomplice-witness rule at all.156
If the trial court improperly omitted an accomplice witness instruction, the
appropriate harm standard depends on whether the defendant preserved his
complaint by bringing the omission to the trial court’s attention.157 If the error was
properly preserved, the appeals court must reverse if “some harm” is shown.158 But if
the defendant failed to preserve the complaint, the error “must be ‘fundamental’”
“and requires reversal only if it was so egregious and created such harm that the
defendant has not had a fair and impartial trial.”159
VI. Lacy Was Not An Accomplice
Norwood claims the Trial Court erred by not sua sponte including an
accomplice witness instruction in its jury charge because Lacy was Norwood’s co-
conspirator. Norwood is wrong.
According to the Penal Code, a person is a co-conspirator and is criminally
responsible for another,
If, in the attempt to carry out a conspiracy to commit one
felony, another felony is committed by one of the
155
Smith, 332 S.W.3d at 439-40.
156
Id. at 440.
157
See Herron, 86 S.W.3d at 632.
158
Id.
159
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984)).
17
conspirators, all conspirators are guilty of the felony
actually committed, though having no intent to commit it,
if the offense was committed in furtherance of the unlawful
purpose and was one that should have been anticipated as a
result of the carrying out of the conspiracy.160
Notably, Norwood doesn’t identify the supposed conspiracy Lacy and
Norwood entered into. Norwood doesn’t cite to any evidence and there is no
evidence from any source that there was a conspiracy.
Norwood speculates that Lacy might’ve been a co-conspirator in some kind of
conspiracy because the night before the murder he went for a walk with Norwood. As
they walked by the bakery on their way to a store, Norwood said he liked the Lexus
parked at the bakery. There’s no evidence Lacy and Norwood formulated a plan or
had a common understanding to take the car. There’s no evidence Lacy knew
Norwood was going to steal the car the following night and kill the owner. There’s no
evidence Lacy anticipated or reasonably should’ve anticipated Norwood was going to
steal the car and run over the victim.
Norwood argues Lacy was a conspirator because there was blood on his shoe
when he talked to the police in the days after the murder. There’s no evidence tying
the blood to the victim. There’s no evidence explaining when the blood got onto the
shoe. This is no evidence of a conspiracy.
Norwood further claims Lacy was a co-conspirator because he was in the
160
TEX. PENAL CODE §7.02(b).
18
Lexus after the murder and drove the Lexus when they left Kroger. This argument is
based solely on Lacy’s presence in the car after the murder. Mere presence doesn’t
make a person an accomplice161 or a conspirator.162
To be clear, there’s no testimony or evidence that Lacy was with Norwood
when Norwood committed the murder. To the contrary, the evidence establishes
Norwood was alone. The Mercadito video shows Norwood was alone when he
walked away from the bakery and then 4 minutes later returned and walked towards
the bakery.
The video is not the only evidence that proves Lacy was not at the bakery.
Nolan testified Lacy was with him at a house before Norwood showed up to ask if
there was a nearby coin machine. There’s no evidence Lacy intended Norwood to
commit any crime when Lacy was using drugs and drinking with Nolan at a house
blocks away from the bakery.
Because there’s absolutely no testimony and no evidence that would make Lacy
an accomplice as a matter of law and because there’s also no conflicting evidence
suggesting Lacy was an accomplice as a matter of fact, the Trial Court wasn’t
obligated to instruct the jury on the accomplice witness rule as it could apply to
Lacy.163
161
See Smith, 332 S.W.3d at 439.
162
See Wygel v. State, 555 S.W.2d 465, 469 n.3 (Tex. Crim. App. 1977).
163
See Smith, 332 S.W.3d at 439-40.
19
VII. Norwood Wasn’t Egregiously Harmed: The Non-
Accomplice Evidence Corroborates Lacy & Tends To
Connect Norwood To The Murder
Because Norwood didn’t object to the jury charge and affirmatively stated he
had no objections to the charge,164 this Court reviews the alleged error to determine
whether the omission caused Norwood egregious harm.165
Norwood made no effort to explain how he was egregiously harmed by the
absence of an accomplice witness instruction in his brief. Norwood’s failure to brief
doesn’t impact the outcome of this case because he wasn’t harmed and certainly
wasn’t egregiously harmed.
Jury charge error is egregiously harmful if it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory.166 The
error must have been so harmful as to effectively deny the defendant a fair and
impartial trial.167 The egregious harm standard “is a difficult standard to meet.”168
The omission of the accomplice witness instruction is generally harmless unless
the corroborating (non-accomplice) evidence is “so unconvincing in fact as to render
164
R.R. VII: 81-82.
165
See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998).
166
Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
167
See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).
168
Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013).
20
the State’s overall case for conviction clearly and significantly less persuasive.”169 In
other words, if the non-accomplice evidence corroborates the accomplice testimony
by tending to connect the defendant to the crime, the failure to give the instruction is
generally harmless.170
Evidence corroborating an accomplice need not directly link the accused to
the offense or be sufficient in itself to establish guilt; instead, the corroborating
evidence need only tend to connect the accused to the crime committed.171 “Even
apparently insignificant incriminating circumstances may sometimes afford
satisfactory evidence of corroboration.”172 Furthermore, there need only be some
non-accomplice evidence tending to connect the defendant to the crime, not to every
element of the crime.173
The evidence tends to connect Norwood to the murder.
While a defendant’s mere presence at the crime scene is insufficient to
corroborate accomplice testimony, “‘[p]roof that the accused was at or near the scene
of the crime at or about the time of its commission, when coupled with other
suspicious circumstances, may tend to connect the accused to the crime so as to
furnish sufficient corroboration to support a conviction.’”174 The Mercadito, the
169
Herron, 86 S.W.3d at 632.
170
Id.
171
Moron v. State, 779 S.W.2d 399, 401 (Tex. Crim. App. 1985).
172
Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).
173
Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007).
174
Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Brown v. State, 672 S.W.2d
21
Chevron, and the bakery videos establish the Lexus was at the bakery when 1 man
walked by the Mercadito restaurant. The Mercadito video shows the man was alone
and was wearing dark clothes. The Mercadito video then shows the man in dark was
still alone when he walked towards the bakery 4 minutes later. Two people identified
Norwood as the man walking on the Mercaidtio video.
The Mercadito, the Chevron, and the bakery videos show the SUV’s blinking
light turned off 8 minutes after Norwood walked towards the bakery. The Chevron
video shows the SUV turned onto 38th Street when it left the bakery. Nolan testified
he heard Norwood discuss coins with Lacy and then the men left the house on 38th
Street.
It’s certainly a suspicious circumstance that 10 minutes after the victim’s Lexus
left the bakery, the Kroger video shows Norwood park it. Norwood was still wearing
dark colored clothes. He cashed coins and left the Kroger in the victim’s SUV.
Norwood’s fingerprint on the SUV corroborates the videos and the witnesses.
The wipe marks on the SUV shows Norwood’s effort to destroy evidence.
To add to the suspicious circumstances, Norwood also had the victim’s
cellphone after the murder. He gave it to Simmons, who called the bank to check an
account’s balance. All the other calls made with the phone after the assault were to
people Norwood knew.
487, 489 (Tex. Crim. App. 1984)).
22
The timeline, the physical evidence, and the witnesses’ testimonies tend to
connect Norwood to the murder.175 Lacy’s testimony was corroborated.176
Additionally, the jury was well aware Lacy may not be truthful. Norwood
attacked Lacy’s credibility when he crossed him, when he recalled him in his case-in-
chief, and during his closing argument.
During the testimony, Norwood highlighted Lacy’s criminal history. He
attempted to show Lacy was only testifying because he was hoping for a deal on his
recent obstruction of a passageway arrest. And he illustrated Lacy was wrong when he
testified that Norwood drove the car for 4 or 5 days.
In closing statements, Norwood reminded the jury that Lacy is a repeat
convicted felon.177 He argued Lacy couldn’t keep his story straight.178 He argued Lacy
had every reason to lie because he was in the car after the murder, helped Norwood
cash the coins, drove the car away from Kroger, had blood on his shoe two days later,
and the car was found in front of his house.179 Norwood told the jury it was more
175
See Herron, 86 S.W.3d at 632 (“[N]on-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.”).
176
See id. (“Under the egregious harm standard, the omission 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.’”).
177
R.R. VII: 112-13.
178
R.R. VII: 113.
179
R.R. VII: 113-14.
23
likely Lacy committed the crime.180 The jury was aware that it could take Lacy’s
testimony with caution.
VIII. Conclusion: No Ground For Reversal
There was significant non-accomplice evidence that tended to connect
Norwood to the murder. The non-accomplice evidence was not so unconvincing as to
render the State’s overall case for conviction clearly and significantly less persuasive.
The purpose of the accomplice witness instruction was fulfilled and any error was
harmless.181
Norwood’ first issue should be overruled.
180
R.R. VII: 114.
181
See Herron, 86 S.W.3d at 632.
24
SECOND ISSUE
Video proves Norwood walked towards the crime scene minutes
before the victim’s car was stolen. Video proves Norwood was
driving the car minutes after the victim was left dying in his bakery
parking lot. Norwood had the victim’s car, his car key, and his
cellphone.
Viewing the evidence in the light most favorable to the verdict,
how’s there insufficient evidence to prove Norwood murdered the
victim?
ARGUMENT AND AUTHORITIES
III. Relevant Sufficiency Law
Norwood only challenges the factual sufficiency of the evidence. He doesn’t
challenge the legal sufficiency of the evidence. He argues that proving he drove the
victim’s Lexus after the murder isn’t sufficient to establish he committed the murder.
The Court of Criminal Appeals has determined and repeatedly affirmed182 that
the Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable
182
See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (“As the court of appeals properly
noted, this Court now applies only one standard ‘to evaluate whether the evidence is sufficient to
support a criminal conviction beyond a reasonable doubt: legal sufficiency.’”); Ex parte Flores, 387
S.W.3d 626, 641 (Tex. Crim. App. 2012) (noting that court “did away with” factual sufficiency
review in Brooks ); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson
standard is only standard for courts to apply in determining sufficiency of evidence).
25
doubt.183 Therefore, in analyzing Norwood’s challenge to the sufficiency of the evidence,
this Court applies only the Jackson v. Virginia standard.
When reviewing the sufficiency of the evidence, the appellate court views all of
the evidence in the light most favorable to the verdict and determines, based on that
evidence and any reasonable inferences therefrom, whether a rational jury could have
found the elements of the offense beyond a reasonable doubt.184 The reviewing court
also considers both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence.185 Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.186 The evidence is insufficient when
the record contains no evidence, or merely a “modicum” of evidence, probative of an
element of the offense.187
The reviewing court does not reevaluate the weight and credibility of the evidence
or substitute its judgment for that of the factfinder.188 Because the jury is the sole judge
of the credibility of witnesses and of the weight given to their testimony, any conflicts or
inconsistencies in the evidence are resolved in favor of the verdict.189
183
See Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App. 2011).
184
See Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S.
307, 318–19 (1979)).
185
See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
186
See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
187
See Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).
188
See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
189
See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
26
To obtain a conviction for murder, the State must prove the defendant intended
to cause serious bodily injury and committed an act clearly dangerous to human life that
caused the death of an individual.190
IV. The Evidence Proves Norwood Killed The Victim
Norwood claims the evidence is factually insufficient to prove murder because it
only shows he drove the victim’s car. Norwood is misstates the evidence.
The timeline of events is detailed above. In short, nobody else could’ve
committed the crime within the established timeframe. To summarize, Norwood was
near the scene 7 minutes before the Lexus left the parking lot. He was alone. Two of his
friends identified him as the man in dark clothes walking towards the bakery. Norwood
stopped on 38th Street, blocks from the bakery, and asked Lacy about a coin machine.
Nolan overheard the conversation. Lacy left with Norwood. Norwood drove to and
parked the victim’s Lexus at the Kroger 10 minutes after leaving the bakery. Detective
Sollenberger testified she repeatedly timed the drive from 38th to the Kroger.191 On
average the drive takes 7 ½ to 8 ½ minutes.192 There was no time for anyone else to
have committed the murder, stolen the car, have a conversation about a coin machine,
and then drive Lacy to the Kroger.193
When Norwood and Lacy left Kroger, Norwood told Lacy he was taking a
190
TEX. PENAL CODE § 19.02(b)(2).
191
R.R. VI: 70, 33-34.
192
R.R. VI: 70.
193
See Palomo v. State, 352 S.W.3d 87, 90-91 (Tex. App.---Houston [14th Dist.] 2011, pet. ref’d)
(circumstantial evidence of guilt include proximity to the murder scene near the time of the murder).
27
penitentiary chance by driving the car. He said Lacy shouldn’t tell anyone about the car.
And he told Lacy he hit a lick. The jury could reasonably conclude that Norwood’s
admissions, coupled with the other evidence, was proof his consciousness of guilt.
The jury also knew Norwood had both the victim’s car key and his cellphone
after the assault. When the police got to the bakery, they found the victim’s keyring next
to him. The Lexus key was missing. Lacy testified Norwood had the key when he was
driving the Lexus minutes after the victim was hurt. Simmons testified Norwood gave
her the victim’s cellphone. The jury could reasonably conclude car keys and a cellphone
would’ve been on the victim or in his immediate reach. The car key was never found.
Based on his injuries and the timing, the jury could reasonably infer that only the
murderer would have those items.194
Lacy testified Norwood had a cloth bag with coins. Norwood made Lacy pull the
bag out of the Kroger trash can. Lacy testified Norwood threw the bag out as they drove
away. The victim’s wife testified her husband kept coins in a cloth bag. The jury could
reasonably infer Norwood’s action of disposing of the cloth bag was an inference of
guilt.195
Throwing the coin bag away and hiding the car key were not Norwood’s only
attempt to conceal evidence. Lacy testified Norwood wiped the car down every time he
194
See Flores v. State, 551 S.W.2d 364, 369 (Tex. Crim. App. 1977) (holding a defendant’s unexplained
possession of a victim’s stolen property may be sufficient to sustain a conviction).
195
See Miller v. State, 177 S.W.3d 177, 184 (Tex. App.---Houston [1st Dist.] 2005, pet. ref’d)
(attempting to hid evidence is circumstantial evidence of guilt).
28
got out of the car. When the police processed the car for fingerprints, they found wipe
marks. They also found Norwood’s fingerprint. This is more proof of Norwood’s
guilt.196
Viewing the evidence in the light most favorable to the jury’s verdict, the
evidence establishes Norwood murdered the victim and took his SUV.
Norwood’s second issue should be overruled.
196
See id.
29
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment
of the Trial Court be affirmed in all respects.
Respectfully submitted,
JACK ROADY
CRIMINAL DISTRICT ATTORNEY
GALVESTON COUNTY, TEXAS
/s/ Rebecca Klaren
REBECCA KLAREN
Assistant Criminal District Attorney
State Bar Number 24046225
600 59th Street, Suite 1001
Galveston, Texas 77551
Tel (409)770-6004/Fax (409)621-7952
rebecca.klaren@co.galveston.tx.us
30
CERTIFICATE OF SERVICE
The undersigned Attorney for the State certifies a copy of the foregoing brief was
sent via email, eFile service, or certified mail, return receipt requested, to Zachary S.
Maloney, attorney for Harold Joseph Norwood, Jr., at zachmaloeny@gmail.com or
2925 Gulf Freeway South Suite B #295, League City, Tx 77573, on August 3, 2015.
/s/ Rebecca Klaren
REBECCA KLAREN
Assistant Criminal District Attorney
Galveston County, Texas
CERTIFICATE OF COMPLIANCE
The undersigned Attorney for the State certifies this brief is computer generated,
and consists of 6,284 words.
/s/ Rebecca Klaren
REBECCA KLAREN
Assistant Criminal District Attorney
Galveston County, Texas
31