Blake Tyrone Little v. State

NO. 12-05-00340-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS BLAKE TYRONE LITTLE, § APPEAL FROM THE FIRST APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § SABINE COUNTY, TEXAS MEMORANDUM OPINION Blake Tyrone Little appeals his conviction for murder. In one issue, Appellant contends that the trial court erred when it did not instruct the jury that a witness was an accomplice as a matter of law. We affirm. Background On January 18, 2002, Appellant drove Ken Bimbo Tillery, Anthony Holmes, Wilma Good, and Darrell Gilbert from Jasper, Texas into Sabine County, Texas. They went there to sell some drugs and to drop Tillery off at his home. Tillery had told Wilma that he had been robbed and left in Jasper, and she offered to pay for the gasoline for the trip to take him home. The group proceeded to a home where Anthony and Darrell sold some drugs to a friend of Tillery’s. After the transaction, the group went toward Tillery’s home. The atmosphere in the car was becoming increasingly tense because they were running out of gas and because Tillery lived farther from Jasper than the others had thought. Appellant stopped along FM Road 2426 for Darrell and Anthony to relieve themselves on the roadside. The precise sequence of events that followed was the subject of conflicting testimony at trial. All the witnesses agreed that Appellant hit Tillery with his car. Appellant testified that the men were fighting on the side of the road and that he began driving forward in the heavy fog when Darrell suddenly threw Tillery in front of his car. Wilma testified that Appellant told Darrell to pull Tillery into the road, saying that he was going to teach him a lesson, and accelerated toward him. A police officer testified that he was able to identify acceleration marks from where the car started and that it was fifty-three feet from where the car started to where it struck Tillery. From that point, Tillery was dragged for another sixty-one feet. The party, now four, left the scene and returned to Jasper. They proceeded to tell people in Wilma’s trailer park about what had happened. Wilma then went to the hospital, complaining of stress, and told the hospital personnel about what had happened. The police were called, and Appellant was arrested and gave a statement to the police. Tillery died as a result of the injuries he sustained. A jury found Appellant guilty of murder and assessed punishment at seventy years of imprisonment. An appeal followed, but we dismissed it as untimely filed. Little v. State, No. 12-04-00203-CR, 2004 WL 1574521 (Tex. App.–Tyler 2004, no pet.) (not designated for publication). Appellant applied for a writ of habeas corpus, contending that his retained counsel was ineffective for failing to give timely notice of appeal. In an unpublished opinion, the court of criminal appeals granted relief to the extent that it allowed Appellant to file an out of time appeal. Ex parte Little, No. AP-75231, 2005 WL 2086988 (Tex. Crim. App. 2005) (not designated for publication). This appeal followed. Accomplice Testimony In his sole issue, Appellant argues that Wilma Good was an accomplice as a matter of law and that the trial court erred when it allowed the jury to determine if she were an accomplice. Applicable Law Generally, we review jury instructions under an abuse of discretion standard. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). When the judge does not submit a requested instruction, the question on appeal is whether that instruction was reasonable and within the mandates of Texas Code of Criminal Procedure articles 38.22 and 38.23. See Mendoza v. State, 88 S.W.3d 236, 240 (Tex. Crim App. 2002). There was no objection to the jury charge in this case, and so our review is for egregious harm. Almanza v. State, 686 S.W.2d 157, 171–72 (Tex. Crim. App. 1988). An accomplice is a party who participates before, during, or after the commission of a crime and who could be prosecuted for the same offense as the defendant or for a lesser included offense. Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998); Ex parte Zepeda, 819 S.W.2d 874, 875-76 (Tex. Crim. App. 1991). A person is not an accomplice if she is merely present at the scene of the offense. Blake, 971 S.W.2d at 454. A conviction may not be sustained on the testimony of an accomplice unless there is other evidence “tending to connect a defendant to the offense committed.” Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Simpson v. State, 181 S.W.3d 743, 753 (Tex. App.–Tyler 2005, pet. ref’d). The corroborating evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt, but it must do more than merely show the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14; Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that undergird the legal and factual sufficiency standards of review. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). When considering whether there is sufficient evidence to corroborate the testimony of an accomplice, we eliminate that testimony from our consideration and examine the record to ascertain whether the remaining evidence tends to connect the defendant to the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997). If there is a question as to whether a witness is an accomplice, it is proper for the trial court to submit the issue to the jury for resolution, and that course of action will be upheld even if the evidence appears to preponderate in favor of the conclusion that the witness is an accomplice as a matter of law. Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998); Harris v. State, 645 S.W.2d 447, 454 (Tex. Crim. App. 1983). Only when the evidence clearly and convincingly shows that the witness is an accomplice as a matter of law is the judge bound to instruct the jury of this fact. Harris, 645 S.W.2d at 454; see also DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990); Sexton v. State, 51 S.W.3d 604, 613-14 (Tex. App.–Tyler 2000, pet. ref’d). Analysis Reasonable minds could differ as to whether Wilma Good was an accomplice as a matter of law or an accomplice at all. Wilma testified that she was imploring Appellant to stop when he accelerated and struck Tillery. Appellant argues that Wilma was an accomplice because she was part of the conspiracy to sell drugs, which developed into a conspiracy to kidnap Tillery, and that she should have anticipated Tillery’s death. Wilma denied that she was a part of any conspiracy, but there is some support for the contention that she was involved in the drug transaction. Wilma was not indicted for her actions the night Tillery was killed, but the district attorney suggested that she would face some sanction. In an instance where the evidence is conflicting as to whether a witness is an accomplice, it is appropriate for the trial court to submit the question of whether a person is an accomplice to the jury. Blake, 971 S.W.2d at 455. That is the case here. Without objection, the trial court instructed the jury of the accomplice witness rule and further instructed the jury that they could not find Appellant guilty unless Wilma’s testimony was corroborated by other evidence, or they found that she was not an accomplice beyond a reasonable doubt. The trial court did not abuse its discretion when it decided that there was a question as to whether Wilma was an accomplice. Even if the trial court erred, Appellant did not suffer egregious harm. He could be egregiously harmed only if Wilma were an accomplice and if the corroborative evidence was insufficient to link Appellant to the offense. As we stated previously, reasonable minds could differ as to whether Wilma was an accomplice. See, e.g., Sheffield v. State, 847 S.W.2d 251, 258 (Tex. App.–Tyler 1992, pet. ref’d) (Complicity with the accused in other crimes does not make the person an accomplice for every crime the accused might commit.). But reasonable minds would agree that there was corroborative evidence, independent of Wilma’s testimony, that tended to link Appellant to the crime. Although he said it was an accident, Appellant testified under oath that he was driving the car and that he ran over Tillery. This is a judicial admission that Appellant was connected to the offense and corroborates any accomplice testimony. See Thompson v. State, 54 S.W.3d 88, 94 (Tex. App.–Tyler 2001, pet. ref’d) (citing Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App. 1990), overruled on other grounds, Riley v. State, 889 S.W.2d 290 (Tex. Crim. App. 1993)); see also Mays v. State, 726 S.W.2d 937, 942 (Tex. Crim. App. 1986). Furthermore, Appellant called Anthony Holmes as a witness. Holmes was an accomplice as a matter of law, but the accomplice witness rule does not apply to witnesses called by the defense. See Selman v. State, 807 S.W.2d 310, 311–12 (Tex. Crim. App. 1991). Holmes’s testimony placed Appellant behind the wheel of the car when Tillery was run over, although Holmes also stated that it was an accident. Without conceding that his testimony corroborates Wilma’s testimony, Appellant argues that he has been harmed nevertheless because there was no corroborative evidence of Wilma’s testimony that he intended to hit Tillery with his car. This argument, however, has been expressly rejected by the court of criminal appeals. Prior to Holliday v. State, 709 S.W.2d 194, 199 (Tex. Crim. App. 1986), the accomplice corroboration requirement applied to each of the elements of an offense, or at least to the element that distinguishes capital murder from murder. The court of criminal appeals expressly overruled this precedent and held that when the State relies on an accomplice witness’s testimony, the testimony need only be material and corroborated by independent evidence tending to connect the accused to the offense. Id. at 199-200 (overruling County v. State, 668 S.W.2d 708 (Tex. Crim. App. 1984) and Fortenberry v. State, 579 S.W.2d 482 (Tex. Crim. App. 1979)). The corroboration must be to “criminative facts” rather than inconsequential ones, but as the court points out, if there were unimpeachable evidence of each part of an accomplice’s testimony, there would be no need for the accomplice’s testimony at all. Holliday, 709 S.W.2d at 199-200. The statute requires merely that there be evidence that tends to connect the accused to the offense. Id. at 200; Tex. Code Crim. Proc. Ann. art. 38.14. Appellant’s judicial confession that he was connected to the killing of Ken Tillery is sufficient to connect him to the offense. See, e.g., Medina v. State, 7 S.W.3d 633, 642-43 (Tex. Crim. App. 1999) (statements); Jackson v. State, 516 S.W.2d 167, 171 (Tex. Crim. App. 1974) (judicial confession). Reasonable minds could differ on the question of whether Wilma was an accomplice. Therefore, the trial court acted appropriately when it left the resolution of that question to the jury. In the unlikely event that the trial court abused its discretion, Appellant suffered no harm because his testimony was sufficient to connect him to the offense. We overrule Appellant’s sole issue. Disposition We affirm the judgment of the trial court. SAM GRIFFITH Justice Opinion delivered July 31, 2006. Panel consisted of Worthen, C.J. and Griffith, J. (DO NOT PUBLISH)