Opinion
04-21-00262-CV
05-29-2024
IN THE MATTER OF H.S.M.
From the 436th District Court, Bexar County, Texas Trial Court No. 2019JUV00832 Honorable Lisa Jarrett, Judge Presiding
Sitting: Irene Rios, Justice, Beth Watkins, Justice, Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
Appellant H.S.M. challenges the juvenile court's June 30, 2021 adjudication and disposition orders. We affirm the juvenile court's orders.
BACKGROUND
In January of 2019, Hezekiah Williams was shot and killed. On May 20, 2019, the State filed a petition in juvenile court alleging that H.S.M.-who was then 16 years old-had murdered Williams. The State's petition asked the juvenile court to waive its jurisdiction and transfer the matter to criminal district court.
On October 9, 2019, the juvenile court denied the State's petition to transfer the case to criminal district court. Six days later, the State filed an original petition alleging H.S.M had engaged in delinquent conduct and seeking a determinate sentence. On October 24, 2019, the grand jury certified and approved the State's petition pursuant to section 53.045 of the Texas Family Code.
"[T]he prosecuting attorney may refer the petition to the grand jury of the county in which the court in which the petition is filed presides if the petition alleges that the child engaged in delinquent conduct that constitutes" certain felony conduct, including murder. Tex. Fam. Code Ann. § 53.045(a)(1). "If the grand jury approves of the petition, the fact of approval shall be certified to the juvenile court, and the certification shall be entered in the record of the case." Id. § 53.045(d).
Between October of 2019 and March of 2020, the State sent discovery to H.S.M., and the case was set and reset for jury trial several times. On March 13, 2020, the Texas Supreme Court and the Texas Court of Criminal Appeals jointly issued their first emergency order regarding the COVID-19 pandemic, which gave courts authority to take certain actions "to avoid risk to court staff, parties, attorneys, jurors, and the public[.]" Shortly thereafter, jury trials in Bexar County temporarily ceased due to the pandemic. At that time, H.S.M. was 17 years old. During the COVID-19 shutdown, the case was set for a jury trial on April 27, 2020, May 21, 2020, May 26, 2020, and August 24, 2020, but the trial did not occur on those dates. H.S.M. turned 18 in June of 2020.
First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9042 (Tex. Mar. 13, 2020), Misc. Docket No. 20-007 (Tex. Crim. App. Mar. 13, 2020).
The record does not indicate that any activity occurred in this case between August of 2020 and April of 2021. On April 28, 2021, the State filed a motion requesting a trial. The State represented that this "case was set to go to trial right at the time the county shut down in the wake of the COVID-19 pandemic," and it "ask[ed] the court to set this case for trial as soon as possible so that this matter can be resolved." The juvenile court granted the State's motion and set a trial date of June 14, 2021, a date that fell after H.S.M.'s nineteenth birthday.
On June 1, 2021, H.S.M. moved to dismiss this case for failure to provide a speedy trial and for lack of jurisdiction. The juvenile court twice denied H.S.M.'s motion to dismiss, and on June 15, 2021, it entered a finding that the State had exercised due diligence in bringing the case to trial. The parties selected a jury the same day.
After a three-day trial, the jury found H.S.M. had engaged in delinquent conduct. The juvenile court signed an order of adjudication consistent with the jury's verdict. It also signed an order of disposition placing H.S.M. on probation for ten years and a separate order transferring his determinate sentence probation to a criminal district court of Bexar County. After his motion for new trial was overruled by operation of law, H.S.M. timely appealed.
Analysis
Juvenile Court's Jurisdiction to Enter Order of Adjudication
In his first issue, H.S.M. argues the juvenile court lacked jurisdiction to conduct an adjudication hearing because he was 19 years old at the time of trial.
Standard of Review and Applicable Law
Juvenile courts have exclusive, original jurisdiction in all cases "involving a person who has engaged in delinquent conduct as a result of acts committed before age seventeen." In re B.R.H., 426 S.W.3d 163, 166 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding). While a juvenile court does not automatically lose jurisdiction when an alleged juvenile offender turns 18, its jurisdiction at that point is ordinarily limited to transferring the case to an appropriate adult court or dismissing the case. See id.
An exception to this general rule exists for incomplete proceedings. Id. "Section 51.0412 of the Texas Family Code governs the jurisdictional implications when the State begins proceedings when the juvenile is younger than eighteen years old but fails to complete them before the juvenile's eighteenth birthday." In re B.C., No. 02-21-00444-CV, 2022 WL 1420533, at *2 (Tex. App.-Fort Worth May 5, 2022, no pet.) (mem. op.). Under section 51.0412, a juvenile court "retains jurisdiction over a person, without regard to the age of the person, who is a respondent in an adjudication proceeding [or] a disposition proceeding . . . if: (1) the petition or motion was filed while the respondent was younger than 18 or 19 years of age, as applicable; (2) the proceeding is not complete before the respondent becomes 18 or 19 years of age, as applicable; and (3) the court enters a finding in the proceeding that the prosecuting attorney exercised due diligence in an attempt to complete the proceeding before the respondent became 18 or 19 years of age, as applicable." Tex. Fam. Code Ann. § 51.0412.
The Texas Family Code does not define "due diligence" for the purposes of section 51.0412. See id. This court and other Texas courts of appeals have interpreted that phrase "as requir[ing] the State to 'move ahead' or 'reasonably explain delays.'" In re M.A.C.S.-C., No. 04-23-00139-CV, 2024 WL 697095, at *2 (Tex. App.-San Antonio Feb. 21, 2024, no pet. h.) (mem. op.) (alternation in original) (quoting In re B.R.H., 426 S.W.3d at 168). Due diligence does not, however, require the State to show it did "'everything perceivable and conceivable to avoid delay.'" In re B.R.H., 426 S.W.3d at 168 (quoting In re N.M.P., 969 S.W.2d 95, 100 (Tex. App.- Amarillo 1998, no writ)). The court and the State are treated as different actors for the purpose of this diligence analysis. In re J.C.W.G., 613 S.W.3d 560, 567 (Tex. App.-San Antonio 2020, no pet.). Accordingly, "[t]he State is not responsible for court delays, which can be described as exceptional circumstances." Id.
Whether the State exercised due diligence is a fact issue the juvenile court must determine in light of the circumstances of an individual case. In re M.A.C.S.-C., 2024 WL 697095, at *3. We must defer to the juvenile court's findings unless there is no evidence in the record to support them. Id. "Even if we would have decided the matter differently, we may not disturb the trial court's decision unless it is shown to be arbitrary or unreasonable." Id. (internal quotation marks omitted).
Application
The record shows the State filed its original petition alleging delinquent conduct and seeking a determinate sentence when H.S.M. was 17 years old. Tex. Fam. Code § 51.0412(1). Additionally, it is undisputed that this proceeding was not completed before H.S.M.'s eighteenth birthday. Id. § 51.0412(2). These facts establish the first two elements of the juvenile court's jurisdiction under section 51.0412.
H.S.M. argues the third element of section 51.0412 is lacking here because "no findings regarding due diligence on the part of the State were entered." Id. § 51.0412(3). However, the juvenile court inquired into the State's diligence during a pre-trial hearing on June 11, 2021, and it made the required finding of diligence on the record on June 15, 2021.
H.S.M. also argues the evidence does not support a finding that the State acted diligently. In response to the juvenile court's questions about its diligence in bringing the case to trial, the State asked the court to take judicial notice that "this case was set to be tried the week before the Global Pandemic struck and all County facilities were shut down. . . . We, obviously, were not able to get juries in and, since the juries were requested for this case, there was absolutely no recourse whatsoever to finalize it." The clerk's record, which contains a form setting this case for jury trial on March 23, 2020 and subpoena requests the State filed to compel witnesses to appear on that date, supports the State's representations on this point. The State further represented:
Subsequent to the initiation of the pandemic, we have attempted to get trial settings for this once during the summer of 2020 and again during the fall. Unfortunately, we were still unable to get jurors. As the county began to open up a little bit more in the month of April [2021], we filed a motion requesting a trial[.]Again, the record supports these representations. While the record does not indicate precisely when Bexar County resumed jury trials, the reporter's record of the June 15, 2021 voir dire proceedings shows the juvenile court told the jury panel, "Because of the pandemic, y'all are one of our first juries, my first jury at least, for about a year-and-a-half."
H.S.M. argues, however, that the State did not act diligently because it refused to agree to a bench trial rather than a jury trial. During a June 11, 2021 hearing on H.S.M.'s motion to dismiss, H.S.M.'s attorney represented that she had previously "offered to have the case as a non-jury" and the State refused that offer. The record does not indicate when H.S.M.'s attorney made that offer, and the State's attorney represented that he did not recall refusing a request for a bench trial. On this record, we cannot say the juvenile court acted arbitrarily or unreasonably by refusing to treat the State's purported refusal as a lack of diligence. See In re M.A.C.S.-C., 2024 WL 697095, at *3; In re S.J., 940 S.W.2d 332, 335 (Tex. App.-San Antonio 1997, no writ) (appellant has burden to supply record showing error).
H.S.M. also suggests the State did not "urge a trial by Zoom." H.S.M. did not raise this argument below, and the record does not indicate he ever requested a virtual trial.
H.S.M. also argued below that the State had "plenty of time" to try this case between the filing of the petition in October of 2019 and the cessation of jury trials in March of 2020. The record does not indicate, however, that any of the resets of the trial date between October of 2019 and March of 2020 were requested or caused by the State. We therefore decline to hold the juvenile court acted arbitrarily or unreasonably by refusing to attribute that five-month delay to a lack of diligence. See In re M.A.C.S.-C., 2024 WL 697095, at *3.
H.S.M. further argues the State did not act diligently because it "had not even provided full discovery or provided other information to which the defense is entitled." While H.S.M. objected below "to the piecemeal delivery of some of this discovery," he did not argue that any discovery issues were relevant to a section 51.0412 diligence finding. Because this argument does not comport with the objections H.S.M. raised below, he did not preserve it for our review. Tex.R.App.P. 33.1(a); In re M.A.O., No. 04-07-00658-CV, 2008 WL 5170297, at *2 (Tex. App.-San Antonio Dec. 10, 2008, no pet.) (mem. op.) ("A juvenile's appellate contention must comport with the specific objection made at trial.").
On appeal, H.S.M. cites In re C.C.C. as support for his argument that the State did not act diligently. See generally In re C.C.C., No. 13-21-00371-CV, 2022 WL 710143 (Tex. App.- Corpus Christi-Edinburg Mar. 10, 2022, no pet.) (mem. op.). In C.C.C., the State did not serve the juvenile and his parents with its petition to transfer the juvenile to adult criminal court until a few minutes before a hearing on the petition. Id. at *1. The juvenile objected to the untimely service, and the court reset the hearing for a date that fell after his eighteenth birthday. Id. at *1-2. Although the court administrator had suggested a new hearing date that was before the juvenile's birthday, the State rejected that date without giving a reason. Id. at *11. Based on those facts, the appellate court concluded the evidence did not support the juvenile court's finding that the State satisfied section 51.0412's due diligence requirement. Id. at *12-13.
C.C.C. is distinguishable from this case. The juvenile court's pandemic-related inability to convene a jury before H.S.M. turned 18 is not comparable to the State's failure to timely serve C.C.C. or its unexplained rejection of a hearing date that occurred before C.C.C.'s eighteenth birthday. See id. at *11 (noting "the only reason why the [dispositive] hearing could not proceed on [the original date] was because C.C.C. was not timely served with the summons and amended petition" and "[h]ad the State acquiesced to the [date suggested by the court administrator], the hearing would have taken place before C.C.C.'s eighteenth birthday"); see also In re J.C.W.G., 613 S.W.3d at 567 (court delays cannot be attributed to State for diligence analysis). Although the events of C.C.C. also occurred during the pandemic, the record in that case did not show "that any hearing or other proceeding . . . was ever postponed or continued due to the pandemic conditions[.]" In re C.C.C., 2022 WL 710143, at *11.
Based on this record, the juvenile court could have reasonably concluded the delays in jury trials caused by the COVID-19 pandemic were an exceptional circumstance for which the State was not responsible. See In re J.C.W.G., 613 S.W.3d at 567; see also In re B.C., 2022 WL 1420533, at *5 ("The trial date itself was a function of the court's docket, something over which the State had no control."). It could also have reasonably concluded the State acted diligently by filing its petitions and obtaining a grand jury certification before H.S.M. turned 18 and by seeking a jury trial soon after the pandemic restrictions eased. The record therefore supports the juvenile court's conclusion that H.S.M.'s age at the time of trial did not deprive it of jurisdiction to proceed with the adjudication hearing. See Tex. Fam. Code § 51.0412.
H.S.M. also raises several arguments asserting that the Texas Supreme Court's COVID-19 emergency orders did not toll any deadlines in this case. See In re C.C.C., 2022 WL 710143, at *11 (holding the emergency orders did "not generate a blanket excuse which can be used to extend deadlines indefinitely, especially in the absence of any specific explanation for why such extensions are warranted"). Because we have concluded the juvenile court had jurisdiction to proceed with H.S.M.'s adjudication under section 51.0412, we need not address the impact of the emergency orders.
We therefore overrule H.S.M.'s first issue.
Speedy Trial
In his second issue, H.S.M. argues "the failure of the State to waive a jury trial and agree on a bench trial" during the COVID-19 shutdown violated his constitutional right to a speedy trial.
Standard of Review and Applicable Law
The Sixth Amendment of the United States Constitution guarantees a criminal defendantthe right to a speedy trial. U.S. Const. amend. VI; Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014). When a defendant claims he was denied the right to a speedy trial, courts consider four factors: (1) the length of delay; (2) the government's reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). "If the defendant can make a threshold showing that the interval between accusation and trial is 'presumptively prejudicial,' then a court must consider each of the remaining Barker factors and weigh them." Balderas v. State, 517 S.W.3d 756, 767 (Tex. Crim. App. 2016). In reviewing the Barker factors, "we give almost total deference to the trial court's historical findings of fact that the record supports, and we draw reasonable inferences from those facts necessary to support the trial court's findings." Id. at 767-68. "Review of the individual Barker factors necessarily involves fact determinations and legal conclusions, but the balancing test as a whole is a purely legal question that we review de novo." Id. at 768.
Several Texas courts have noted that because a juvenile proceeding is civil in nature, some of the constitutional and statutory protections afforded to criminal defendants-including speedy trial protections-do not apply to juvenile proceedings unless and until the juvenile is transferred to adult criminal court. See, e.g., In re J.B., No. 05-03-00973-CV, 2023 WL 8946170, at *3 (Tex. App.-Dallas Dec. 28, 2023, no pet.) (mem. op.); T.R.S. v. State, 663 S.W.2d 920, 921-22 (Tex. App.-Fort Worth 1984, no pet.). Because the State did not argue either below or on appeal that H.S.M. was not entitled to assert a right to a speedy trial, we will assume without deciding that the right applied here.
Application
A. Length of Delay
The only Barker factor H.S.M. relies on to support his claim of a speedy trial violation is the length of time between the State's original petition and the time of trial. See Barker, 407 U.S. at 530; State v. Lampkin, 630 S.W.3d 559, 563 (Tex. App.-San Antonio 2021, no pet.). Because this delay was longer than one year, it was presumptively prejudicial and sufficient to trigger an analysis of the remaining Barker factors. See Balderas, 517 S.W.3d at 767.
B. Reasons for Delay
As explained above, the record shows the delays in this case were primarily caused by the pandemic-related cessation in jury trials. While the delays caused by the pandemic may weigh against the State, they do not weigh heavily. See State v. Conatser, 645 S.W.3d 925, 929-30 (Tex. App.-Dallas 2022, no pet.) (months of delay "dominated by the unforeseeable initial impact of the COVID-19 pandemic" not attributable to State). And, as noted above, the record shows this case was set for trial several times before the COVID-19 shutdown went into effect. The record does not indicate those resets were attributable to either the State or H.S.M. While the resets are relevant to our analysis, they do not weigh heavily against the State or in favor of H.S.M. See Barker, 407 U.S. at 531.
C. H.S.M.'s Assertion of Right to Speedy Trial
"The third Barker factor-the defendant's assertion of his right to a speedy trial-is entitled to strong evidentiary weight in determining whether the defendant has been deprived of that right." Balderas, 517 S.W.3d at 771. "A defendant's lack of a timely demand for a speedy trial indicates strongly that he did not really want one." Id. "[I]naction weighs more heavily against a violation the longer the delay becomes." Id. (internal quotation marks omitted). H.S.M. first asserted his right to a speedy trial in a motion he filed on June 15, 2021-twenty months after the State filed its original petition alleging delinquent conduct and seeking a determinate sentence. Furthermore, as the State notes, H.S.M.'s motion sought an outright dismissal, not a trial. Because H.S.M. failed to assert his right to a speedy trial for twenty months and sought a dismissal rather than a speedy trial, the third factor weighs against him. See id.; see also State v. Smith, 76 S.W.3d 541, 550 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd).
D. Prejudice to H.S.M.
"The fourth Barker factor focuses on prejudice to the defendant because of the length of delay." Balderas, 517 S.W.3d at 772. This prong requires us to "consider three interests of defendants that the Speedy Trial Clause was designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired." Id. "The last interest is the most important because the fairness of the criminal-justice system is distorted when a defendant is unable to adequately prepare his defense." Id. While a defendant bears the burden "to make some showing of prejudice," he need not prove actual prejudice. Id. Here, the record does not indicate that H.S.M. was incarcerated pending trial, and he did not argue below that the delay impaired his defense. While his motion argued he had "suffered substantial anxiety and concern," he did not present any testimony or other evidence in support of that claim. We conclude this factor weighs against him.
E. Balancing the Factors
Having outlined the evidence relevant to the four Barker factors, "we must now balance them." Balderas, 517 S.W.3d at 773. Weighing in favor of finding a violation of H.S.M.'s speedy trial right is the fact that the delay was presumptively prejudicial. However, the reasons for the delay appear to be almost entirely related to the COVID-19 shutdown, a factor that was outside the control of both the State and H.S.M. See In re B.C., 2022 WL 1420533, at *5. Additionally, H.S.M. did not seek a speedy trial ruling until twenty months after the State filed its petition alleging delinquent conduct, and at that point he sought only an outright dismissal. See Cantu v. State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008) ("Filing for a dismissal instead of a speedy trial will generally weaken a speedy-trial claim because it shows a desire to have no trial instead of a speedy one."). Finally, H.S.M. did not show that the delay hampered his ability to put forward a defense. See Ramirez v. State, 897 S.W.2d 428, 433-34 (Tex. App.-El Paso 1995, no pet.). We hold that the four factors, balanced together, weigh against finding a violation of H.S.M.'s right to a speedy trial.
We therefore overrule H.S.M.'s second issue.
Juvenile Court's Authority to Enter an Order of Disposition
In his third issue, H.S.M. argues his age at the time of trial was a jurisdictional bar that required the juvenile court to sign an order of no disposition. Section 51.0412 of the Texas Family Code provides that if its requirements are met, a juvenile court retains jurisdiction over a respondent in both an adjudication proceeding and a disposition proceeding. See Tex. Fam. Code § 51.0412. Because we have already concluded the record supports the juvenile court's conclusion that section 51.0412 permitted it to proceed with the adjudication proceeding, we reach the same conclusion as to the disposition proceeding. See id.
H.S.M. also suggests the juvenile court was required to render an order of no disposition because it did not find, as required by section 54.04 of the Texas Family Code, that he was in need of rehabilitation or that the protection of him or the public required a disposition to be made. Tex. Fam. Code Ann. § 54.04(c). The juvenile court's order of disposition explicitly found H.S.M. was "in need of rehabilitation and that the protection of the public and the child requires that disposition be made." Accordingly, the record does not support this argument.
Finally, H.S.M. argues the juvenile court lacked authority to place him on probation that extended after his eighteenth birthday. Based on this argument, he reasons that because he was 19 at the time of trial, the juvenile court was required to enter an order of no disposition. We disagree. The statute upon which H.S.M. relies provides, "Except as provided by Subsection (q), a court or jury may place a child on probation . . . for any period, except that probation may not continue on or after the child's 18th birthday." Tex. Fam. Code Ann. § 54.04(l) (emphasis added). Section 54.04(q) provides that a juvenile court may place a child on probation for no more than ten years, but "[i]f a sentence of probation ordered under this subsection . . . will continue after the child's 19th birthday, the court shall discharge the child from the sentence of probation on the child's 19th birthday unless the court transfers the child to an appropriate district court under Section 54.051." Id. (emphasis added). Section 54.051, in turn, provides:
If the juvenile court exercises jurisdiction over a person who is 18 or 19 years of age or older, as applicable, under Section 51.041 or 51.0412, the court or jury may, if the person is otherwise eligible, place the person on probation under Section 54.04(q). The juvenile court shall set the conditions of probation and immediately transfer supervision of the person to the appropriate court exercising criminal jurisdiction under Subsection (e).Tex. Fam. Code Ann. § 54.051(i).
Here, the juvenile court's order of disposition placed H.S.M. on probation for ten years. Id. § 54.04(q). The court then signed a separate order transferring that determinate sentence probation to an adult district court of Bexar County. Id. § 54.051(i). Because these orders were consistent with sections 54.04(q) and 54.051(i), we reject H.S.M.'s assertion that the juvenile court lacked authority to sign them.
We therefore overrule H.S.M.'s third issue.
Accomplice Witness
In his final issue, H.S.M. argues the juvenile court abused its discretion by refusing to instruct the jury that a witness, J.G., was an accomplice as a matter of law. He also argues he was harmed by this error because the jury's finding that he engaged in delinquent conduct was supported only by the uncorroborated testimony of J.G. and another accomplice witness.
Standard of Review and Applicable Law
In a juvenile proceeding, "[a]n adjudication of delinquent conduct or conduct indicating a need for supervision cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the child with the alleged delinquent conduct or conduct indicating a need for supervision; and the corroboration is not sufficient if it merely shows the commission of the alleged conduct." Tex. Fam. Code Ann. § 54.03(e). "An accomplice is a person who participates in the offense before, during, or after its commission with the requisite mental state." In re D.M.T., No. 11-21-00121-CV, 2022 WL 4371157, at *5 (Tex. App.-Eastland Sept. 22, 2022, pet. denied) (mem. op.). The purported accomplice's "participation must involve an affirmative act that promoted the commission of the offense with which the accused is charged." Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).
Because juvenile proceedings are quasi-criminal in nature, standards applicable to adult criminal proceedings can provide helpful authority. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999); In re D.M.T., 2022 WL 4371157, at *5.
If a testifying witness is an accomplice as a matter of law, the trial court must instruct the jury "that the witness is an accomplice and that his testimony must be corroborated." Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013). The Texas Court of Criminal Appeals has held that a witness is an accomplice as a matter of law if: (1) the State charged the witness with either "the same offense as the defendant or a lesser-included offense"; (2) the State charged the witness with the same offense or a lesser-included offense but later dismissed those charges "in exchange for the witness's testimony against the defendant"; or (3) "the evidence is uncontradicted or so one-sided that no reasonable juror could conclude that the witness was not an accomplice." Ash v. State, 533 S.W.3d 878, 886 (Tex. Crim. App. 2017). "The trial court is under no duty to instruct the jury unless there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law." Paredes, 129 S.W.3d at 536.
If the evidence "as to the witness's complicity is conflicting or inconclusive," then the trial court must instruct the jury to first determine if the witness was an accomplice as a matter of fact. Zamora, 411 S.W.3d at 510. If the jury finds the witness was an accomplice as a matter of fact, only then must it "apply the corroboration requirement" to her testimony. Id.
The first question in analyzing a jury-charge complaint is whether the charge contains error. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If the charge contains an erroneous accomplice-witness instruction, we analyze that error for harm. Casanova v. State, 383 S.W.3d 530, 533 (Tex. Crim. App. 2012).
Evidence Presented at Trial
The jury heard testimony from three of Williams's friends who were with him when he was shot on January 5, 2019. While one of those friends testified that the shots came from a vehicle, none of them saw the shooter. The only evidence that directly tied H.S.M. to Williams's murder was the testimony of H.S.M.'s friend, Jennifer Gutierrez, and Gutierrez's younger sister, J.G.
J.G. testified that at the time of the shooting, she was "14, 15" years old. Gutierrez was "like, 19, 20" and had graduated from high school.
Gutierrez and J.G. testified that they spent part of the evening of January 5, 2019 driving with Gutierrez's then-boyfriend, Dadrion, in Gutierrez's car. Gutierrez, J.G., and Dadrion went to a smoke shop, where they saw Williams and his friends in the parking lot. Multiple witnesses testified that Williams's friends were staring or laughing at Gutierrez.
After they left the smoke shop, Gutierrez and J.G. dropped Dadrion off at a different store. They then contacted H.S.M. "to see what he was doing, to try to hang out with him[.]" Gutierrez testified that during that conversation, she told H.S.M. she had seen Williams earlier in the evening.
H.S.M. agreed to meet with Gutierrez and J.G., and they picked him up from his home. Gutierrez testified that H.S.M. began driving her car, and the group went to pick up another individual, D.S. At D.S.'s home, H.S.M. and D.S. stood outside smoking and talking while Gutierrez and J.G. remained in the car. Gutierrez and J.G. both testified that they could not hear what H.S.M. and D.S. were discussing.
After H.S.M. and D.S. finished smoking, H.S.M. again climbed into the driver's seat, and D.S. sat in the backseat. Gutierrez testified that soon after, her mother called and told her to come home. D.S. asked if the group could drive him to his mother's house before Gutierrez and J.G. went home; Gutierrez thought this request was strange "[b]ecause he asked right when [Gutierrez] had to go home." She testified that H.S.M. then drove the group to a neighborhood she did not recognize and parked with the car running and the headlights off. A few minutes later, D.S. said, "I think that's them," but Gutierrez did not know what he meant. Gutierrez testified that D.S. told "[H.S.M.] to pull up a little bit," H.S.M. did so, and D.S. opened the car door. She testified that D.S. "started shooting at" another car, then "yelled out for [H.S.M.] to go."
J.G., who was sitting in the backseat with D.S., offered testimony that was largely consistent with Gutierrez's. She testified, however, that she and Gutierrez told both H.S.M. and D.S that they had seen Williams at the smoke shop earlier that evening. She also testified that she saw H.S.M. hand D.S. a gun immediately before the shooting occurred. She specified that the car she saw D.S. shoot at was the same vehicle they had seen Williams in earlier that evening. She told the jury she "blacked out" after she saw D.S. shoot the gun and that she "was crying the whole ride back."
Both Gutierrez and J.G. testified that they dropped D.S. and H.S.M. off at their respective homes after the shooting and that H.S.M. told them, "Don't say anything. Just pretend like nothing happened." They also testified that when the police initially questioned them, they lied about where they had been that night because they were afraid D.S. would "come after" them and their family. Gutierrez further testified that she was scared "because it was [her] car [used in the shooting] and a lot of people knew what [her] car looked like."
Application
H.S.M. asked the juvenile court to instruct the jury that both Gutierrez and J.G. were accomplices to Williams's murder as a matter of law. Because the court granted this request as to Gutierrez, it instructed the jury that it could not rely on her testimony to find H.S.M. engaged in delinquent conduct unless that testimony was corroborated by non-accomplice witness evidence. See Tex. Fam. Code § 54.03(e). However, the juvenile court overruled H.S.M.'s request for an instruction that J.G. was an accomplice as a matter of law, and it instead instructed the jury to determine whether she was an accomplice as a matter of fact.
Our first task is to determine whether the juvenile court abused its discretion by denying H.S.M.'s request for a jury instruction that J.G. was an accomplice as a matter of law. See Ngo, 175 S.W.3d at 743. We understand H.S.M.'s argument to be that the evidence presented below on this point was "uncontradicted or so one-sided that no reasonable juror could conclude that [J.G.] was not an accomplice." See Ash, 533 S.W.3d at 886. As support for this assertion, H.S.M. notes: (1) J.G. and Gutierrez called H.S.M. before the shooting; (2) J.G. "was nearest in proximity of [D.S.]" when H.S.M. passed the gun to him and when the shooting occurred; (3) J.G. "didn't call 911" after the shooting; and (4) J.G. did not "say a word when she saw H.S.M." pass a gun to D.S. In the juvenile court, H.S.M. further argued J.G. was an accomplice as a matter of law because she initially lied to police about her whereabouts during the shooting.
With regard to J.G.'s actions after the shooting-i.e., her failure to call 9-1-1 and her lies to the police-those actions did not make her an accomplice as a matter of law even if we assume they assisted with the offense. A witness "who assisted the defendant only after the defendant committed the crime . . . cannot be charged with the same offense as the defendant" and therefore is not an accomplice. See Castillo v. State, 517 S.W.3d 363, 375 (Tex. App.-Eastland 2017, pet. ref'd). Furthermore, "a witness is not an accomplice witness merely because he or she knew of the offense and did not disclose it, or even concealed it." Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986).
H.S.M.'s contention that J.G. did not say anything when she saw H.S.M. pass a gun to D.S. is similarly unavailing. To be an accomplice as a matter of law or fact, the witness's actions must establish she was "susceptible to prosecution for the murder itself by having affirmatively assisted in committing the offense[.]" See Druery v. State, 225 S.W.3d 491, 500 (Tex. Crim. App. 2007). A rational factfinder could conclude that J.G.'s failure to speak up under these circumstances did not establish that she affirmatively assisted with the offense or acted with the requisite mental state to commit murder or a lesser-included offense. See id.; In re D.M.T., 2022 WL 4371157, at *5.
H.S.M also notes that J.G. was present in the car when Gutierrez called H.S.M., when she and Gutierrez picked up H.S.M., and when the shooting occurred, and that she was seated closest to D.S. when he fired at Williams's car. Neither J.G.'s presence in the car from which the fatal shots were fired nor her proximity to the shooter rendered her an accomplice as a matter of law. See Druery, 225 S.W.3d at 499-500; Kunkle, 771 S.W.2d at 439. Additionally, while there is some evidence that both Gutierrez and J.G. told H.S.M. they had seen Williams that evening, there is no evidence that J.G. did so because she intended to murder Williams. See Druery, 225 S.W.3d at 499-500; Paredes, 129 S.W.3d at 537-38. To the contrary, the police officer who interviewed J.G. on the night of the shooting testified J.G. was "[n]ot involved. She was in the car. Not involved."
After reviewing the evidence presented at trial, we conclude it was not "so one-sided that no reasonable juror could conclude that [J.G.] was not an accomplice." See Ash, 533 S.W.3d at 886. The juvenile court therefore did not err by denying H.S.M.'s request for an instruction that J.G. was an accomplice as a matter of law. See id. at 886-87; Druery, 225 S.W.3d at 500; Kunkle, 771 S.W.2d at 439. Because we have found no error in the juvenile court's charge, we need not address H.S.M.'s argument that he was harmed by the jury's reliance on J.G.'s uncorroborated testimony. See Druery, 225 S.W.3d at 498 (if purported accomplice witnesses "are not accomplices, then a review to determine whether non-accomplice evidence sufficiently corroborated their testimony is not applicable").
We therefore overrule H.S.M.'s fourth issue.
CONCLUSION
We affirm the juvenile court's adjudication and disposition orders.