Affirmed and Opinion Filed December 7, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01416-CR
VICTOR HILL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F-1357879-L
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and O’Neill1
Opinion by Justice Stoddart
A jury convicted Victor Hill of capital murder. The trial court sentenced him to life
imprisonment without parole. See TEX. PENAL CODE ANN. § 12.31(a)(2) (West 2014). Hill raises
three issues on appeal: (1) the court’s jury instruction on an accomplice witness was a comment
on the weight of the evidence; (2) the trial court failed to make written findings regarding the
voluntariness of his recorded statements to police; and (3) he was denied a public trial during
voir dire. We affirm the trial court’s judgment.
After responding to a grass fire, a fire rescue officer found the burned body of Dolores
Gomez-Martinez. The hands of the victim were bound with wire or string. A bottle-cap smelling
of gasoline was found nearby. The pathologist who performed the autopsy determined the victim
1
The Hon. Michael J. O'Neill, Justice, Assigned
died as the result of homicidal violence, including thermal burns, smoke inhalation, and possible
strangulation.
Shatyra Johnson lived with Hill as a friend. Other women, who worked as prostitutes,
lived there as well. On July 2, 2013, Hill told Johnson he was going to rob Gomez-Martinez
when Gomez-Martinez came to meet with a prostitute. When Gomez-Martinez arrived, Hill
ordered him to remove his clothing and his valuables from his pockets. Hill ordered Johnson to
restrain Gomez-Martinez with a “stick” with two nails protruding from one end. Hill took cash, a
debit or credit card, car keys, and a phone from Gomez-Martinez. Hill left, but returned with two
other men and demanded the PIN number for Gomez-Martinez’s bank account. One of the men
began beating Gomez-Martinez to force him to reveal the number. The men later bound Gomez-
Martinez’s hands and ankles and kept him at Hill’s house until after dark. Hill then escorted
Gomez-Martinez to Gomez-Martinez’s truck and left. The next morning, Johnson asked Hill
what had happened. Hill eventually admitted to killing Gomez-Martinez by setting him on fire.
Hill told Johnson the other men did not help in killing Gomez-Martinez. Hill tried unsuccessfully
to sell the complainant’s truck and eventually burned it.
In recorded interviews with police, Hill admitted to being a participant in the offense, but
claimed the other men were responsible for Gomez-Martinez’s death. Other evidence tended to
connect Hill to the offense, including recordings of Hill and one of the men driving the
complainant’s truck and attempting to use his account cards. Witnesses testified Hill attempted to
sell the truck and told one of them he had killed someone.
A. Jury Charge
In his first issue, Hill argues the trial court’s instruction to the jury that “the witness,
Shatrya Johnson, is an accomplice, as a matter of law” was a comment on the weight of the
evidence. Hill did not object to the jury charge. Thus, if we find error in the charge, we will
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reverse only if the error was “so egregious and created such harm” that appellant “has not had a
fair and impartial trial.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g); see also Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010) (all jury-charge
errors are cognizable on appeal, but unobjected-to error is reviewed for “egregious harm,” while
objected-to error is reviewed for “some harm.”).
Texas laws provides that a defendant cannot be convicted on the testimony of an
accomplice unless the testimony is corroborated by other evidence tending to connect the
defendant to the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); see Druery v.
State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (testimony of an accomplice must be
corroborated by “independent evidence tending to connect the accused with the crime”). An
accomplice is someone who, under the evidence, could have been charged with the same or a
lesser included offense as the defendant. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App.
2013).
A witness may be an accomplice as a matter of law or as a matter of fact. Smith v. State,
332 S.W.3d 425, 439 (Tex. Crim. App. 2011). A witness who is indicted for the same or a lesser
included offense as the defendant is an accomplice as a matter of law. Id. When there is no doubt
from the evidence that a witness is an accomplice as a matter of law, the trial court must instruct
the jury accordingly. Id. When the evidence is conflicting about whether a witness is an
accomplice, the trial court should instruct the jury to determine the status of the witness as a fact
issue. Id. at 440.
A “proper accomplice-witness instruction informs the jury either that a witness is an
accomplice as a matter of law or that he is an accomplice as a matter of fact.” Zamora, 411
S.W.3d at 510. The jury instruction must also explain the definition of an accomplice and
instruct the jury about the corroboration requirement. Id.
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On appeal, Hill admits that Johnson was an accomplice as a matter of law because she
was charged with the same offense or a lesser included offense. He does not complain about the
definition of an accomplice in the charge. His complaint is that the court instructed the jury that
Johnson was an accomplice as a matter of law without the words “if an offense was committed.”
Hill contends that without this qualifying language, the charge commented on the weight of the
evidence by instructing the jury that an offense was committed.
The jury charge instructed the jury about the definition of an accomplice. The next
paragraph instructed:
You are instructed that the witness, Shatrya Johnson, is an accomplice, as a matter
of law. You cannot convict the defendant upon the testimony of Shatrya Johnson
alone, unless you first believe that her testimony is true and shows that the
defendant is guilty as charged, and then you cannot convict the defendant upon
said testimony unless you further believe that there is other evidence in the case,
outside of the evidence of the said Shatrya Johnson tending to connect the
defendant with the offense committed, if you find that an offense was committed;
and the corroboration is not sufficient if it merely shows the commission of the
offense, but it must also tend to connect the defendant with its commission; and
then, from all of the evidence, you must believe beyond a reasonable doubt that
the defendant is guilty of the offense charged against him.
By reading the first sentence of this instruction in isolation, Hill constructs an argument
that the charge commented on the weight of the evidence by assuming an offense was
committed. However, viewing the paragraph in its entirety, it is obvious the instruction did not
assume a disputed fact. Indeed, the trial court instructed the jury that it could not convict Hill on
Johnson’s testimony unless it believed there was other evidence “tending to connect the
defendant with the offense committed, if you find that an offense was committed.” Thus, the
charge did not instruct the jury that an offense was committed.
Furthermore, there was no factual dispute that Gomez-Martinez died of unnatural causes.
His body was found with the hands bound at the scene of a fire and the pathologist determined
the death was the result of homicidal violence. Thus, whether an offence occurred was not a
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disputed fact issue.
We conclude the instruction did not comment on the weight of the evidence by telling the
jury an offense was committed. We overrule Hill’s first issue.
B. Findings of Fact and Conclusions of Law
Hill’s second issue argues the trial court erred by failing to file written findings of fact
and conclusions of law regarding the voluntariness of his two video-recorded statements to
police. The trial court found both statements were voluntary and admitted them in evidence. As
to one statement, the trial court dictated findings of fact and conclusions of law into the record.
However, there were no written findings and conclusions as to the other statement.
Section six of article 38.22 provides in part that if a statement of an accused is found to
have been voluntarily made and held admissible as a matter of law and fact by the court in a
hearing in the absence of the jury, “the court must enter an order stating its conclusion as to
whether or not the statement was voluntarily made, along with the specific finding of facts upon
which the conclusion was based, which order shall be filed among the papers of the cause.” TEX.
CODE CRIM. PROC. ANN. art. 38.22, § 6 (West Supp. 2015); Vasquez v. State, 411 S.W.3d 918,
920 (Tex. Crim. App. 2013) (written findings are required in all cases concerning voluntariness).
We abated this appeal and directed the trial court to make the required findings and
conclusions. See Vasquez, 411 S.W.3d at 920; see also Urias v. Stale, 155 S.W.3d 141, 142 (Tex.
Crim. App. 2004) (“The proper procedure is that the trial judge be directed to make the required
written findings of fact and conclusions of law.”). The trial court has submitted written findings
and conclusions regarding Hill’s statements and they are now part of the record. We overrule
Hill’s second issue as moot.
C. Public Trial
Hill’s third issue argues his right to a public trial was violated during voir dire because so
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many potential jurors were summoned, there was no room in the courtroom for the public. Hill’s
counsel admits that the record is not clear whether the courtroom was closed to the public and
that trial counsel did not object on this ground. However, he requests that we take judicial notice
of the seating capacity of the courtroom and argues that the number of venire persons summoned
exceeded that capacity, leaving no room for the public.
A complaint that a defendant’s right to a public trial was violated is subject to forfeiture.
Peyronel v. State, 465 S.W.3d 650, 653 (Tex. Crim. App. 2015), cert. denied, (U.S. Nov. 30,
2015). An appellant has the burden of stating the grounds for the ruling sought from the trial
court with “sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds were apparent from the context.” TEX. R. APP. P. 33.1. Trial counsel never
objected that Hill’s right to a public trial was violated in any manner. Nor is there any indication
in the record that members of the public attempted but were unable to view the voir dire
proceedings. We conclude Hill failed to preserve error. We overrule Hill’s third issue.
D. Conclusion
Having overruled Hill’s issues on appeal, we affirm the trial court’s judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
141416F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
VICTOR HILL, Appellant On Appeal from the Criminal District Court
No. 5, Dallas County, Texas
No. 05-14-01416-CR V. Trial Court Cause No. F-1357879-L.
Opinion delivered by Justice Stoddart,
THE STATE OF TEXAS, Appellee Justices Fillmore and O’Neill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 7th day of December, 2015.
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