Lee, Marco James v. State

Affirmed and Memorandum Opinion filed June 3, 2004 Affirmed and Memorandum Opinion filed June 3, 2004. In The Fourteenth Court of Appeals _______________ NO. 14-03-00458-CR _______________ MARCO JAMES LEE, Appellant V. THE STATE OF TEXAS, Appellee ____________________________________________________ On Appeal from the 208th District Court Harris County, Texas Trial Court Cause No. 919,773 ____________________________________________________ M E M O R A N D U M   O P I N I O N Appellant, Marco James Lee, appeals a conviction for capital murder on the ground that the trial court erroneously denied his request to instruct the jury to determine whether four witnesses were accomplices. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4 Background According to the State=s evidence, around November 8, 2000, Tedric Garland sold a gun to Kerry Thomas. On the afternoon of November 10, 2000, Thomas drove appellant and Charles Branch to the Palo Alto Tire Shop. Appellant went inside the shop. Using the gun Garland sold to Thomas, appellant shot and killed Palo Alto employee, Mario Alfaro. Appellant then drove away in Alfaro=s car using the keys. Police stopped and arrested Garland, who was walking near the crime scene. Although Garland matched the general description of the shooter, he was not charged in connection with the murder. Alfaro=s car was left in a heavily wooded levee. Two tires and stereo equipment were removed, and some of the windows were broken. That night, appellant asked his neighbor, Lavella Bryant, if he could store the rims and a speaker box from Alfaro=s car in her garage, and she agreed. Appellant returned the next day and retrieved the speaker box but left the rims. Bryant knew that the rims were stolen. On the night of November 11, 2000, Bryant was at her neighbor Daphne Drummer=s house when appellant arrived and asked Drummer for a ride. He had a five gallon bucket that smelled as though it contained bleach. He told Drummer and Bryant he wanted to wash down Alfaro=s car. Drummer agreed to give appellant a ride, and Bryant accompanied them. They picked up Kenneth Grant, another neighbor, on the way. Drummer and Bryant dropped off appellant and Grant at the levee where Alfaro=s car was located. Grant and appellant wiped the car with bleach, and Drummer and Bryant returned approximately twenty minutes later to pick them up. Discussion In one issue, appellant contends that the trial court erroneously denied his request for a jury instruction to determine whether Garland, Bryant, Drummer, and Grant were accomplice witnesses as a matter of fact. See Tex. Code Crim. Proc. Ann. Art. 38.14 (Vernon 1979) (requiring corroboration of testimony by an accomplice). An accomplice participates with a defendant before, during, or after an offense with the required culpable mental state. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). In other words, an accomplice could be prosecuted for the same offense as the defendant, or a lesser included offense. Blake v. State, 971 S.W.2d 451, 454B55 (Tex. Crim. App. 1998). An accomplice=s participation must involve an affirmative act that promotes the commission of the charged offense. Paredes, 129 S.W.3d at 536. However, a person who acts after an offense has been completed is not an accomplice. See Guillory v. State, 877 S.W.2d 71, 74 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d); see also Paredes, 129 S.W.3d at 537. If the evidence is not clear whether a witness is an accomplice, then that question must be left to the jury under instructions defining the term Aaccomplice.@ Paredes, 129 S.W.3d at 536. First, appellant contends the jury should have been instructed to determine whether Bryant was an accomplice because she was culpable for the lesser-included offense of theft by keeping the wheel rims from Alfaro=s car in her garage. See Tex. Pen. Code Ann. ' 31.02 (Vernon 2003) (stating that receiving or concealing stolen property constitutes theft). However, the State argues appellant had already completed the offense of capital murder so Bryant=s act of concealing the stolen property was a separate and distinct offense. Appellant was charged with committing capital murder by intentionally causing the death of Alfaro in the course of committing robbery. See Tex. Pen. Code Ann. ' 19.03 (Vernon Supp. 2004). A person commits robbery if, in the course of committing theft, he causes bodily injury to another. Tex. Pen. Code Ann. ' 29.02 (Vernon 2003). Theft is a lesser included offense of robbery. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). When each element of an offense has occurred, it is complete. Barnes v. State, 824 S.W.2d 560, 562 (Tex. Crim. App. 1991), overruled on other grounds by Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998). Appellant first caused Alfaro=s death and then committed theft. Once appellant appropriated Alfaro=s car, the theft was complete. See Tex. Pen. Code Ann. ' 31.03(a) (Vernon Supp. 2004). At that point, all the elements of the capital murder had occurred, so it was also complete. See Barnes, 824 S.W.2d at 562. Appellant argues that Bryant participated with him in the theft by concealing the stolen wheel rims. However, once a theft has been completed, it is not a continuing offense. Id. Therefore, the offense of theft by receiving stolen property is a separate and distinct offense from the initial theft. Reyna v. State, 22 S.W.3d 655, 659 (Tex. App.CAustin 2000, no pet.). Accordingly, if a theft is committed during a robbery, a witness who receives the stolen property is not an accomplice to the robbery. See Worthen v. State, 59 S.W.3d 817, 820 (Tex. App.CAustin 2001, no pet.). Although Bryant was involved with appellant in the offense of receipt of stolen property, she was not an accomplice to the capital murder because it was a separate and distinct offense. See id. A witness who has no complicity with the accused in the commission of the offense for which the accused is on trial is not an accomplice regardless of her complicity with the accused in the commission of another offense. See Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987). Appellant also claims the jury should have determined whether Bryant, Drummer, and Grant were accomplices because they helped him wipe down the stolen car. Appellant argues this assistance made them susceptible to prosecution for the lesser-included offense of theft because they were ensuring the rightful owner would not get the car back. However, evidence that a witness helped to conceal a crime after it is completed is insufficient to raise the issue of accomplice status. Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999); see also Paredes, 129 S.W.3d at 537B38 (holding witnesses who helped clean out cars used to transport capital murder victims were not accomplices). Appellant also claims the evidence raised an issue concerning whether Garland was an accomplice because he sold the murder weapon to Kerry Thomas in the days before the offense occurred. However, appellant concedes A[a]bsent evidence that Garland knew what the shooter intended to do with the weapon, Garland is not an accomplice.@ There is no evidence that Garland was aware of the intended use of the gun. Therefore, there is no evidence Garland was involved, in any way, with the planning of or preparation for the murder. Accordingly, he was not an accomplice. See Paredes, 129 S.W.3d at 536. Appellant also argues Garland was a Apotential alternate suspect@ because he was arrested near the crime scene in clothing similar to the shooter=s clothing. However, there is no evidence that Garland participated in the offense. The fact that a witness was initially a suspect does not make him an accomplice. See Kutzner v. State, 994 S.W.2d 180, 187 (Tex. Crim. App. 1999) (holding witness who was arrested and charged with the offense was not an accomplice where the charges were eventually dismissed after an investigation). Because the evidence establishes the witnesses were not accomplices, and there is no evidence to the contrary, the trial court did not err in denying appellant=s request to instruct the jury to determine whether they were accomplices. Appellant=s issue is overruled, and the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed June 3, 2004. Panel consists of Justices Fowler, Edelman, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b).