Opinion
No. 05-03-01121-CR
Opinion issued August 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 294th Judicial District Court, Van Zandt County, Texas, Trial Court Cause No. 15,995. Affirmed.
OPINION
Appellant Sylvester Hallman Moore appeals his life sentence for murder assessed by a Van Zandt County jury following its guilty verdict. Tex. Pen. Code Ann. §§ 19.02(b), 12.32 (Vernon 2003). Appellant raises a sole issue: whether the trial court committed reversible jury charge error by failing to instruct the jury, over his objection, that Rodney Darrin Cotton was an accomplice as a matter of law. Finding no reversible error, we affirm. Cotton, a convicted felon, testified for the State at trial. He and appellant, known to his friends as Sid, had grown up and attended school together in Van Zandt County, Texas. On May 14, 1994, Cotton and appellant left Van Zandt County around noon in Cotton's Buick Regal driving to Dallas to buy drugs. Cotton was driving. Cotton knew neither the location nor the identity of appellant's drug source. Appellant directed Cotton to drive to an apartment complex in Dallas. Upon their arrival at the complex, appellant got out of the car and told Cotton to wait. After about thirty minutes, appellant returned to the car holding a man at gunpoint. The man was Billy Connell Finley. Appellant ordered Finley to get in the front passenger seat of the Buick. Appellant got in the middle of the back seat. Appellant told Cotton to drive around the apartment complex as he and Finley looked for some unnamed person or persons, presumably the person or persons who had sold appellant some "wax" as cocaine. Appellant repeatedly hit Finley in the head and face with his gun, while asking "where are they?" Although Cotton knew appellant owned a .380 caliber gun, he did not know appellant had the gun with him on the date of the offense. The first time Cotton saw the gun on that date was when appellant returned to the car holding it on Finley. Because Cotton had not gone inside with appellant to make the drug buy, he did not know what had transpired nor why appellant was so angry and held Finley in the car at gunpoint; however, he soon "figured it out." When they could not locate anyone in the apartment complex, appellant directed Cotton to drive back to Van Zandt County down highway 175. En route, appellant told Cotton "you know you're going to have to do him, too." Cotton took appellant's comment to mean shoot Finley. When Cotton refused, appellant said something about "doing [Cotton] too." Even though they were friends, Cotton was scared of appellant. In the past, Cotton had seen appellant get very angry, particularly when he was in control of a situation. Appellant was very angry and in control of the situation on the date of the offense. Cotton was afraid and did not want to "stir it up any worse than it was." He "didn't want to cause it to go from [Finley] to [him]." On his own, Cotton pulled over into a rest stop in a wooded area because he just wanted to get out of the car. Cotton got out of the car and went to the back of the car, opened the trunk, and got a beer. While standing at the back of the car drinking the beer, Cotton heard appellant say to Finley, "If you want one, you had better get out and get it." Finley got out and went to the back of the car. Cotton then felt the car lift up as appellant got out of the car. Neither Finley nor appellant said anything. When Cotton lowered the trunk lid, he saw a "flashing" of the gun several times in rapid succession. Finley fell. Cotton "got away from him," shut the trunk lid, and was going to "burn off out of there" when appellant jumped into the car. Cotton did not remember much about what was said between appellant and him in the car after the murder. After the murder, Cotton and appellant "parted ways," and appellant took the gun with him. Cotton never went to the police because he was scared. The only person he told about the murder was his older brother, David Cotton. At that time of his life, Cotton was drinking a lot and taking drugs; he later went into drug rehabilitation. Cotton never had a gun and did not know appellant had a gun with him until he saw appellant holding Finley at gunpoint. Cotton never hit Finley, and did not intentionally participate in Finley's death. He acted only out of fear of appellant. Cotton was never charged in Finley's murder. Cotton's ex-wife, Cathy Allen, testified she had a conversation with Cotton about the murder while they were dividing up their personal property during their divorce. Cotton was very upset and remorseful about the murder. Cotton told her he held Finley at gunpoint and she believed, although she was uncertain, Cotton said "they" beat him because Finley had tried to sell "wax" to them instead of crack cocaine. Cotton told her Finley was put in the car, beaten by both Cotton and appellant, and driven into Van Zandt County to a rest area where he was shot and killed. Allen also talked to appellant about the murder. Appellant told Allen he shot Finley because Cotton would not shoot him and he made fun of Cotton for refusing. Appellant also told Allen he would kill her if she repeated the story. Thirty-seven-year-old Dale Roberts was bench warranted from the Smith County jail to testify at appellant's trial. Roberts testified he had previously been convicted of theft in Smith County. He had also been convicted of possession of illegal drugs, as well as lying to the police about his identity; but Roberts had no pending cases at the time of trial. Roberts and appellant, who he loved, were first cousins on his mother's side. They had known each other all their lives. Roberts had been married for 17 years and had six children. When Roberts was living at a trailer park in Redland, Texas, appellant told him he had shot and killed someone in Dallas in 1994. Appellant told Roberts that Cotton was with him when he shot the man, but appellant did not tell Roberts Cotton participated in the murder. Appellant told Roberts "they" took the man out in the woods. Roberts got the impression it had something to do with money. Roberts did not believe appellant at the time, but "just left it at that." Although he was bothered by what appellant told him, Roberts did not go to the police; however, he did discuss it with his wife and, years later, he told his dad. About two months before telling Roberts about the murder, appellant gave him a gun, which Roberts described as a "small revolver." After appellant told Roberts about the murder, Roberts believed the gun appellant gave him was the murder weapon. When Roberts's wife told him to get rid of the gun, Roberts threw it in a trash dumpster where they lived. While Roberts was in the Smith County jail he saw Cotton, who he had known all his life. They discussed the fact that Cotton was with appellant at the time of the murder. Cotton's version was consistent with what appellant had earlier told him: that appellant had killed a man and Cotton was present but did not participate. Roberts also talked to appellant's investigator before trial. Jerry Roberts, Dale's father, testified he worked at a high school in Tyler, Texas. Appellant was his wife's nephew. His son, Dale, told him appellant said he had shot and killed someone, but Dale gave him no details. Jerry told his son if that were true someone was going to get in trouble. On cross-examination, Jerry testified he did not know his son had been convicted of possession of cocaine nor did he know he had been in prison for a felony theft. He did know, however, about Roberts's lying about his identity. Shera Roberts, Dale Roberts's wife, testified Roberts told her appellant said he had shot and killed someone. Shera did not believe appellant said that to Roberts nor did she believe appellant killed anyone. David Cotton, Cotton's older brother, testified that when Cotton was in drug rehabilitation in Marshall, Texas, Cotton told him about appellant killing someone. David never contacted the police nor did he give the police a statement when they finally contacted him. After the State rested, the defense rested its case without presenting any evidence. Over appellant's objection, the court's charge instructed the jury to determine if Rodney Darren Cotton was an accomplice as a matter of fact as opposed to instructing the jury he was an accomplice as a matter of law. The jury found appellant guilty and a punishment hearing was held, during which appellant did testify. On appeal, appellant contends the trial court reversibly erred in not instructing the jury that Cotton was an accomplice as a matter of law. Without citing any authority, appellant argues he was entitled to the "most affirmative charge when requested." Relying on Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App. 2004), which states that an accomplice as a matter of law is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser included offense, appellant contends Cotton was an accomplice as a matter of law; consequently, the trial court erred in not so instructing the jury. In support of his argument, appellant relies heavily on Allen's testimony, while ignoring much of the other evidence. Appellant contends that Allen's testimony Cotton said he held Finley at gunpoint and "they" beat him, as well as Cotton's use of the term "we" when telling her about the murder, made him susceptible for prosecution for the offense or for a lesser-included offense. Appellant contends the failure to charge on accomplice as a matter of law deprived him of the opportunity to present his defensive theories "in the most affirmative light." The State responds that the trial court correctly charged the jury on accomplice as a matter of fact because the conflicting evidence created a fact issue to be resolved by the factfinder. We agree with the State. Accomplice Witness Rule Recognizing that an accomplice to a crime might have an incentive to lie, the Texas legislature has determined that the testimony of an accomplice to a crime, standing alone, is not sufficient to support a conviction. Article 38.14 of the code of criminal procedure provides that "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). An accomplice is one who participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state. Paredes, 129 S.W.3d at 536 (citing Kutzner v. State, 994 S.W.2d 180, 187 (Tex.Crim.App. 1999)). The participation must involve an affirmative act that promoted the commission of the offense with which the accused is charged. Id. 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. Id. If the evidence presented by the parties is conflicting and it is not clear whether the witness is an accomplice, then the trial court must leave to the jury the question of whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term "accomplice." Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App. 1998). Whether one is an accomplice as a matter of law or as a matter of fact is determined by the evidence. If there is conflicting evidence that makes it unclear whether a witness is an accomplice, a fact issue exists and the trial court is required to submit that fact issue to the factfinder for resolution. That is the case here. There is conflicting evidence on the accomplice witness issue. Therefore, the trial court properly submitted that disputed fact issue to the jury. Cotton admitted he was present and witnessed appellant shoot Finley. Other witnesses corroborated his testimony that appellant shot Finley. Cotton further testified that on May 14, 1994, after Finley was brought at gunpoint to the car, his actions were out of fear for his own life at the hands of appellant. Cotton denied he participated in Finley's murder. The evidence did not conclusively show Cotton to be an accomplice as a matter of law. The trial court correctly submitted the issue to the jury to determine whether Cotton was an accomplice as a matter of fact. No error is shown. We affirm.
Roberts had once used his brother's name and his brother was arrested for something Roberts did.
He also points to a lesser degree to selected portions of the testimony of Dale, Jerry, and Shera Roberts, as well as Cotton's testimony that he was present at the scene of the murder.
The "accomplice witness rule" derives not from the common law, nor from the federal or state constitution; it derives from legislative mandate as interpreted by case law. Thompson v. State, 691 S.W.2d 627, 631 (Tex.Crim.App. 1984).