in the Matter of D.M.T., a Juvenile ( 2022 )

Opinion filed September 22, 2022
In The
Eleventh Court of Appeals
__________
No. 11-21-00121-CV
__________
IN THE MATTER OF D.M.T., A JUVENILE
On Appeal from the 118th District Court
Howard County, Texas
Trial Court Cause No. DCJ-7
MEMORANDUM OPINION
D.M.T. appeals his delinquent-child adjudication and disposition after a jury
found that he had engaged in delinquent conduct by intentionally and knowingly
causing the death of Richard Lopez, III, by shooting him with a firearm. See TEX.
PENAL CODE ANN. § 19.02(b) (West 2019); TEX. FAM. CODE ANN. § 51.03(a)(1)
(West 2022). The jury assessed a determinate sentence of confinement for a term of
fifteen years in the Institutional Division of the Texas Juvenile Justice Department.
D.M.T. challenges the disposition in two issues. We affirm.
Background Facts
On the afternoon of September 24, 2020, R.C., the mother of D.M.T., drove
D.M.T. and juveniles D.B., K.C., and M.P. to Lopez’s house on Calvin Street in Big
Spring to purchase marihuana. M.P. had purchased marihuana from Lopez on prior
occasions, and he was returning to help his friends purchase marihuana as well.
When the group arrived at Lopez’s house, M.P. and D.M.T. got out of the car and
knocked on the door of the house. Lopez’s mother, Amber Gutierrez, answered the
door.
Gutierrez testified that she recognized M.P. because he had come to the house
on prior occasions. With M.P. was a second person that Gutierrez did not recognize.
She testified that they stood facing the road instead of the door. She later identified
the second person as D.M.T. Gutierrez brought Lopez to the door, and after he
retrieved a backpack from inside the house, Lopez, M.P., and D.M.T. went to sit
under the carport.
M.P. testified that the three sat down at a table in the carport to do the
transaction. When they sat down, M.P. could see into Lopez’s backpack—he
testified that he could see that it contained “a lot of weed.” M.P. further testified
that during the transaction, D.M.T. became upset with Lopez, pulled a gun, and shot
Lopez. When he saw D.M.T. pull a gun, M.P. “tried to run to the car as fast as” he
could. He testified that he could not remember whether he was in the car or just at
the door when he heard two gunshots. M.P. testified that D.M.T. got into the car
through the driver’s side with Lopez’s backpack. The backpack contained a gun and
over a pound of marihuana. Once in the car, D.M.T. gave the used gun to D.B., and
R.C. drove the group to K.C.’s house. M.P. and D.B. disposed of the backpack.
M.P. later provided the Big Spring Police Department with its location, and it was
later recovered.
2
M.P. testified that he did not see D.M.T. shoot Lopez, but he did look back
while he was running to the car and saw Lopez bleeding from the chest. Gabriel
Morales, the first paramedic at the scene, testified that Lopez suffered penetrating
wounds to the chest, back, and arm. Morales administered CPR using an AutoPulse
device and assisted in transporting Lopez to the hospital. Lopez remained asystole—
showing no heart rate or breathing—during treatment and transport. Morales
testified that Lopez died before reaching the hospital.
Texas Ranger Tod Reed located two 9mm cartridges at the scene and possible
bullet defects on the western wall of the carport. Through his investigation, Ranger
Reed identified five potential suspects: D.M.T., D.B., R.C., K.C., and M.P. The
morning after the shooting, M.P. turned himself in to the Big Spring Police
Department. Ranger Reed apprehended K.C. and D.M.T. at K.C.’s home. Ranger
Reed went to K.C.’s house, and K.C. and her mother answered the door. K.C.’s
mother gave consent to search the house for D.M.T. During the search, Ranger Reed
located D.M.T.—he was in a back bedroom under a blanket or a sheet. Because the
suspects were apprehended more than four hours after the event, the investigators
were unable to test for gunshot residue.
The investigation revealed additional evidence. Sara Rosa, who lived across
the street from Lopez’s house, testified that she saw two young Black boys sitting
with Lopez under the carport briefly before she heard a gunshot. When she looked
back at the carport she saw “both of the black kids running to the [silver vehicle]
that was parked out front.” Rosa also testified that the two boys were running within
three feet of one another to the silver vehicle and that she heard the boy in the blue
shirt say, “Oh, s--t.” She thought the boy in the white shirt may have been taller.
Security footage from another neighbor shows a silver GMC fleeing the area and
running a stop sign immediately after the offense. Finally, Nicholas Lopez made a
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statement to the Big Spring Police Department stating that he learned that D.B. was
attempting to “get rid of the 9[mm] that was involved in the shooting.”
The evidence regarding the height and shirt color of M.P. and D.M.T. was
conflicting. Trooper Reed testified that he would estimate M.P.’s height as 5ʹ10ʺ
and D.M.T.’s height at 5ʹ4ʺ or 5ʹ5ʺ. Gutierrez estimated that the second person,
whom she later identified as D.M.T., was 5ʹ6ʺ or 5ʹ7ʺ. She also testified that she
thought M.P. was wearing a white shirt. However, M.P. testified that he is 6ʹ3ʺ and
that D.M.T. had on a white shirt.
D.M.T., R.C., and M.P. were all charged with the murder of Lopez. At trial,
the State called M.P. and R.C. to testify. Hardy Wilkerson, the elected District
Attorney for the 118th Judicial District, testified that he would no longer pursue
murder charges against M.P. or R.C. He granted use immunity to both witnesses,
but neither was offered a deal to testify. See Smith v. State, 70 S.W.3d 848, 860
(Tex. Crim. App. 2002) (Cochran, J., concurring) (explaining the difference between
use immunity and transactional immunity).
Analysis
Recertification of Amended Petition
In D.M.T.’s first issue, he contends that the trial court erred in imposing a
determinate sentence because the grand jury did not recertify the State’s third
amended petition. He asserts that the State’s first petition, which was the only
petition certified by the grand jury, did not properly charge him with murder because
it omitted the manner and means—shooting the victim with a firearm. D.M.T.
asserts that the State’s third amended petition was the only one that “properly
contained both the allegation of mens rea and the manner and means leading to
death,” and that the failure of the grand jury to recertify it requires us to reverse the
determinate sentence and remand the case for the imposition of an indeterminate
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sentence. We note that D.M.T.’s trial counsel preserved this issue for appellate
review by objecting on this basis prior to sentencing.
When a juvenile commits a felony, the juvenile court may impose either an
indeterminate sentence or a determinate sentence. FAM. § 54.04. If a juvenile
commits one of the enumerated offenses in Section 53.045 of the Family Code, the
State may file a petition for determinate sentencing with a grand jury. Id.
§ 53.045(a)(1). If the grand jury certifies the petition for determinate sentencing, the
juvenile may be sentenced to commitment in the Texas Juvenile Justice Department
with a possible transfer to the Texas Department of Criminal Justice. Id. § 54.04(3).
The following steps must be taken in order for a court to impose a determinate
sentence: (1) the State’s petition must allege that the juvenile committed one of the
crimes enumerated in Section 53.045; (2) the State must refer the petition to the
grand jury; (3) the grand jury must approve the petition by a vote of nine members;
(4) the approval of the grand jury must be certified to the court; and (5) the
certification must be entered into the record. Id. §§ 53.045, 54.04(d)(3).
Although a juvenile delinquency proceeding is quasi-criminal in nature, see
In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999), the Texas Rules of Civil Procedure
govern such proceedings. FAM. § 51.17(a). The petition in a civil juvenile
proceeding is analogous to the indictment procedure in criminal proceedings. Id.
§ 53.045(b). A petition in a civil case must provide “a short statement of the cause
of action sufficient to give fair notice of the claim involved.” TEX. R. CIV. P. 47(a).
“The [Texas] Legislature [has] provided different rules for different stages of a
juvenile proceeding.” In re J.P., 136 S.W.3d 692, 630 (Tex. 2004). The petition at
the adjudication stage must state “with reasonable particularity the time, place, and
manner of the acts alleged.” FAM. § 53.04(d)(1). However, a petition in a juvenile
adjudication “need not allege an offense with the particularity of a criminal
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indictment so long as the charge is reasonably definite.” In re F.C., No. 03-02-
00463-CV, 2003 WL 21282766, at *1 (Tex. App.—Austin June 5, 2003, no pet.)
(mem. op.); accord In re J.P., No. 04-07-00612-CV, 2008 WL 4595030, at *3
(Tex. App.—San Antonio Oct. 15, 2008, no pet.) (mem. op.); In re M.T., No. 13-05-
434-CV, 2007 WL 2265072, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 9,
2007, no pet.) (mem. op.). Further, “the strict prohibition against amendment of
pleadings in criminal cases is not applicable in juvenile proceedings.” In re J.G.,
195 S.W.3d 161, 181 (Tex. App.—San Antonio 2006, no pet.) (citing In re K.H.,
No. 04-04-00924-CV, 2005 WL 3396588, at *2 (Tex. App.—San Antonio Dec. 14,
2005, no pet.) (mem. op.)). The State may amend its petition at any time or “under
circumstances” that are “basically fair to the minor.” Id.In this case, the grand jury approved and certified the original petition, which
read in pertinent part as follows:
Murder (F1)
On or about September 24, 2020 in Howard County, Texas,
Juvenile-Respondent did then and there intentionally or knowingly
commit to [sic] the death of RICHARD LOPZ [sic], III, hereafter styled
the victim, in violation of Section 19.02(b) of the Texas Penal Code,
Against the Peace and Dignity of the State. Such conduct is delinquent
conduct as defined by Section 51.03(a), Texas Family Code for the
reason that it violates a penal law of the State punishable by
confinement or imprisonment if committed by an adult.
(Emphasis in original). The State’s first amended petition corrected the spelling of
the victim’s name; substituted the phrase “caused the death of” in place of the
original phrase, “commit to the death of”; updated the mens rea to “intentionally and
knowingly”; and added a charge for aggravated robbery.
The State’s second amended petition removed the charge for aggravated
robbery, leaving the murder charge unchanged. The State’s third and final amended
petition changed the alleged time from “On or about” to “In the afternoon of” and
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added a specific address as well as the phrase “by shooting him with a firearm.”
Thus, the third amended petition read as follows:
In the afternoon of September 24, 2020, at 3608 Calvin St., Big
Spring, Howard County, Texas, Juvenile-Respondent did then and
there intentionally and knowingly caused [sic] the death of RICHARD
LOPEZ, III, hereafter styled the victim, by shooting him with a firearm.
In violation of Section 19.02(b) of the Texas Penal Code, Against the
Peace and Dignity of the State. Such conduct is delinquent conduct as
defined by Section 51.03(a), Texas Family Code for the reason that it
violates a penal law of the State punishable by confinement or
imprisonment if committed by an adult.
D.M.T. contends that the third amended petition materially and substantially
changed the nature of the allegations against him. His contention is based on his
assertion that the original petition did not sufficiently allege that he committed
murder under Section 19.02(b)(1). D.M.T. contends that under In re S.D.W., the
third amended petition should have been recertified by the grand jury. 811 S.W.2d
739, 744 (Tex. App.—Houston [1st Dist.] 1991, no pet.). Conversely, the State
asserts that under In re J.G., the third amended petition did not need to be recertified
because it did not materially change the allegation against D.M.T. set out in the
original petition. 195 S.W.3d at 181.
In S.D.W., the State filed a multiple-count petition alleging that a juvenile
engaged in delinquent conduct by committing murder and aggravated robbery.
811 S.W.2d at 742. The State later moved to waive Count III of the petition, which
alleged a “capital murder charge.” Id. at 743. The State later sought to reallege
Count III in an amended petition. Id. On appeal, the juvenile argued that the trial
court’s judgment was void because “the State did not present the second amended
petition to the grand jury.” Id. at 744. According to the juvenile, because “the State
waived one of the murder allegations contained in the original petition, when the
State reasserted the murder allegation in the amended petition, it was required to
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again bring the petition before the grand jury.” Id. The First Court of Appeals
agreed, holding that “the amended petition, which included an allegation that
previously had been waived, should have been presented to the grand jury.” Id. The
court’s analysis in S.D.W. included the fact that “the record [was] devoid of any
written indication the original petition was ever presented to the grand jury.” Id.
J.G. involved an amended petition wherein the prosecutor deleted an
allegation of indecency with a child by exposure, handwrote “Texas” on the petition,
and changed the spelling of the juvenile’s first name. 195 S.W.3d at 180. The San
Antonio Court of Appeals concluded that these changes were not required to be
recertified by the grand jury because no offense was added and because the changes
were not unfair to the defendant. Id. at 181–82. The court cited its prior holding in
In re R.H. for the proposition that “[b]ecause the amended petition charged no
additional or different offense than the original petition approved and certified by
the grand jury and the record reveals no prejudice to R.H.’s substantial rights, the
amended petition was not required to be approved and certified by the grand jury.”
Id. at 181 (quoting In re R.H., No. 04-97-00706-CV, 1998 WL 484695, at *2 (Tex.
App.—San Antonio 1998, no pet.) (not designated for publication).
The San Antonio Court of Appeals addressed S.D.W. in J.G. Id. at 180–81.
It first distinguished S.D.W. on the basis that the record in J.G. contained a written
certificate of approval for the original petition. Id. at 181. The court further
distinguished S.D.W. on the basis that the State tried to reallege a count that it had
waived without obtaining a recertification from the grand jury. Id.
Here, the original petition that was certified by the grand jury alleged that
D.M.T. “did . . . intentionally or knowingly commit to [sic] the death of RICHARD
LOPZ [sic], III, hereafter styled the victim, in violation of Section 19.02(b) of the
Texas Penal Code.” As compared to the original petition, the State’s third amended
8
petition made the following changes: (1) it made “intentionally or knowingly”
conjunctive rather than disjunctive; (2) it provided more specificity of the time, date,
and location of the alleged murder; (3) it corrected the spelling of the victim’s name
and removed a typographical error; and (4) it added a manner and means by which
D.M.T. allegedly murdered the victim by adding the words “by shooting him with a
firearm.”
The first three changes are in the character of the changes addressed in J.G.
because they did not allege a different or additional offense and there is no allegation
that they misled Appellant or were unfair to him. See id. at 181–82. The fourth
change, which added “by shooting him with a firearm,” also did not change the
offense charged and did not otherwise prejudice D.M.T.
Section 19.02(b)(1) of the Penal Code provides that a person commits murder
if he intentionally or knowingly causes the death of an individual. PENAL
§ 19.02(b)(1). This statute does not specify a particular manner or means by which
the conduct must be committed to constitute murder. Id.; see Latulas v. State,
No. 09-18-00313-CR, 2020 WL 2046160, at *2 (Tex. App.—Beaumont Apr. 29,
2020, pet. ref’d) (mem. op., not designated for publication) (“[N]othing in
section 19.02(b)(1) requires the State to prove that the defendant used an object, such
as a knife, to show the defendant is guilty of committing murder.”). Accordingly,
the original petition was sufficient to allege that Appellant committed murder, under
Section 19.02(b)(1), without alleging that he used a firearm to commit the murder.
See Bowen v. State, 640 S.W.2d 929, 930 (Tex. Crim. App. [Panel Op.] 1982) (“It is
sufficient simply to allege the elements of the offense, without specifying the manner
and means used to commit the murder.”). 1 The record indicates that Appellant’s
1
As explained in the Texas Practice Series:
9
ability to prepare a defense was not adversely affected by the State’s amendment.
Accordingly, we overrule Appellant’s first issue.
Accomplice Witness Instruction
In Appellant’s second issue, he contends that the trial court erred in failing to
sua sponte instruct the jury on accomplice-witness testimony in the trial court’s
charge to the jury because M.P. and R.C. are accomplices as a matter of law.
Appellant further contends that the trial court’s error egregiously harmed him
because there is no other evidence in the record that connects him to the commission
of the offense.
Juvenile proceedings are not wholly civil proceedings; they are considered
“quasi-criminal in nature.” In re C.O.S., 988 S.W.2d 760, 765 (Tex.1999); In re I.L.,
389 S.W.3d 445, 451 (Tex. App.—El Paso 2012, no pet.). In C.O.S., the Texas
Supreme Court determined that precedent from analogous adult criminal
proceedings may be instructive in juvenile cases. In re C.O.S., 988 S.W.2d at 765–
67. Courts have determined that it is appropriate to conduct a harm analysis under
the criminal standard set forth in Almanza v. State2 for a claim of charge error in
juvenile proceedings. In re I.L., 389 S.W.3d at 452–53 (collecting cases); see In re
R.D.R., No. 11-12-00287-CV, 2014 WL 4348061, at *4 (Tex. App.—Eastland
In terms of conferring jurisdiction in the district court, the indictment need not
allege the manner and means of committing the murder; it need only track the statutory
language. Nevertheless, because a defendant would be entitled to notice of the manner and
means by the mere filing of a motion to quash the indictment, the better practice is to allege
the manner and means by which the offense was committed from the outset.
Michael B. Charlton, 6 Texas Practice: Texas Criminal Law § 10.2 (2d ed. 2021) (Murder) (footnotes
omitted). Here, the record does not reflect that Appellant filed a motion seeking additional notice of the
charge against him. The trial court brought up the omission of the manner and means at a pretrial hearing.
After the attorneys and the trial court discussed the matter, the State agreed to amend the petition.
Appellant’s trial counsel did not object to the amendment.
2
686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
10
Aug. 29, 2014, no pet.) (mem. op.) (collecting cases); see also State v. Ambrose, 487
S.W.3d 587, 594 (Tex. Crim. App. 2016).
Under Almanza, our first duty in analyzing a jury charge issue is to decide
whether error exists. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017)
(citing Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009)). If error
exists, we must determine whether the error caused sufficient harm to warrant
reversal. Id. When, as in this case, the error was not objected to, reversal is proper
only if the error caused actual, egregious harm to the defendant. Arrington v. State,
451 S.W.3d 834, 840 (Tex. Crim. App. 2015). Such determination must be based
on a finding of “actual rather than theoretical harm.” Villarreal v. State, 453 S.W.3d
429, 433 (Tex. Crim. App. 2015) (quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex.
Crim. App. 2011)).
“An 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.” FAM. § 54.03(e). This
provision of the Family Code is similar to the provision found in the Code of
Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). We
therefore find the cases addressing Article 38.14 to be instructive in this matter. If
an accomplice to the offense testifies for the State, the accomplice’s testimony must
be corroborated by non-accomplice evidence that tends to “connect the accused to
the offense.” Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011) (“Smith
II”). When the issue is raised by the evidence, the trial court must instruct the jury
on the accomplice-witness rule because it is the “law applicable to the case.”
11
Zamora v. State, 411 S.W.3d 504, 513 (Tex. Crim. App. 2013); see CRIM. PROC.
art. 36.14 (West 2007).
An accomplice is a person who participates in the offense before, during, or
after its commission with the requisite mental state. Smith II, 332 S.W.3d at 439
(citing Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007)). The
accomplice-witness rule recognizes that “[b]ecause an accomplice is, by definition,
involved in the very crime being prosecuted,” accomplices may be motivated to
testify in an attempt to “reduce or eliminate their own punishment . . . shift blame or
curry favor from prosecutors by testifying, even falsely, against others.” Freeman v.
State, 352 S.W.3d 77, 82 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
Therefore, the legislature provided that all such testimony be corroborated by non-
accomplice evidence that tends to connect the defendant to the crime. Id.; see FAM.
§ 54.03(e); CRIM. PROC. art 38.14.
If a 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, 411 S.W.3d at 510. The Court of Criminal Appeals has held
that a witness is an accomplice as a matter of law in the following situations:
• If the witness has been charged with the same offense as the
defendant or a lesser-included offense;
• If the State charges a witness with the same offense as the
defendant or a lesser-included of that offense, but dismisses the
charges in exchange for the witness’s testimony against the
defendant; and
• When the evidence is uncontradicted or so one-sided that no
reasonable juror could conclude that the witness was not an
accomplice.
12
Ash v. State, 533 S.W.3d 878, 886 (Tex. Crim. App. 2017). Here, Ranger Reed
testified that M.P. and R.C. were both charged with the murder of Lopez, along with
Appellant, D.B., and K.C. Thus, M.P. and R.C. are accomplices as a matter of law.
See id. They remained accomplices as a matter of law even though the district
attorney gave them use immunity. See Smith II, 332 S.W.3d at 439 (noting that when
a witness agrees to testify in exchange for dismissal of a charge, he continues to be
regarded as an accomplice). Therefore, Appellant is correct that the trial court
should have instructed the jury on the accomplice-witness rule because it is the “law
applicable to the case.” See Zamora, 411 S.W.3d at 513.
“Under the egregious harm standard, the omission of an accomplice-witness
instruction is generally harmless unless the corroborating (non-accomplice)
evidence is ‘so unconvincing in fact as to render the State’s overall case for
conviction clearly and significantly less persuasive.’” Ambrose, 487 S.W.3d at 598
(quoting Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002)). In
Casanova v. State, the Court of Criminal Appeals stated that the strength of the
corroborating evidence is what determines whether failure to submit the instruction
is harmful. 383 S.W.3d 530, 539 (Tex. Crim. App. 2012). The strength of
corroborating evidence emanates from “(1) its reliability or believability and (2) how
compellingly it tends to connect the accused to the charged offense.” Id. Our task
is to analyze the evidence tending to connect the person with the charged offense
rather than corroboration as to every aspect of an accomplice’s testimony or element
of a crime. Ambrose, 487 S.W.3d at 598. We eliminate the accomplice-witness
testimony from our consideration and examine only the non-accomplice evidence.
Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). The reviewing
court is essentially determining whether the jury would have found that the
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accomplice witness’s testimony was corroborated had the jury been properly
instructed that it must do so in order to convict. See Casanova, 383 S.W.3d at 540.
In this case, non-accomplice evidence corroborated M.P.’s accomplice-
witness testimony. The victim’s mother, Gutierrez, testified that her son sold
marihuana and that M.P. had been to her house on multiple occasions to buy drugs.
She further testified that immediately before the shooting, M.P. and Appellant came
to the house to see Lopez.
Rosa, a neighbor, testified that she saw two young Black boys sitting with
Lopez under the carport briefly before she heard a gunshot. When she looked back
at the carport she saw “both of the black kids running to the [silver vehicle] that was
parked out front.” Rosa also testified that the two boys were running within three
feet of one another to the silver vehicle and that one of them said, “Oh, s--t.” Security
footage from another neighbor shows a silver GMC fleeing the area and running a
stop sign immediately after the offense. Evidence that the defendant was in the
presence of the accomplice at or near the time or place of the offense is proper
corroborating evidence. Keith v. State, 384 S.W.3d 452, 457–58 (Tex. App.—
Eastland 2012, pet. ref’d) (citing McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim.
App. 1997)).
Lopez’s red and black backpack that M.P. identified at trial was offered into
evidence. Finally, D.M.T. fled from the scene and then attempted to hide from the
police by covering himself with bedding. This conduct demonstrates consciousness
of guilt that can support the corroboration of accomplice testimony. See Bradley v.
State, 48 S.W.3d 437, 442 (Tex. App.—Waco 2001, pet. ref’d) (Evidence of flight
can be a corroborating circumstance because it demonstrates consciousness of
guilt.). All of this non-accomplice evidence corroborated M.P.’s testimony and
tends to connect Appellant to the commission of the offense.
14
The in-court testimony from R.C. (Appellant’s mother) was scant. She
testified that she drove Appellant and the other juveniles to Lopez’s house. She also
testified that M.P. and Appellant went to the door. Later during her testimony,
recordings of R.C.’s statements to the police were offered into evidence and played
to refresh her recollection. After the recordings were played, she was asked if she
stated during the recordings that Appellant murdered or shot Lopez. She agreed that
she made these statements. However, she attributed the statements to the fact that
she “wasn’t in the right state of mind” at the time she made the statements, because
she “was detoxing off of methamphetamines.”
Only an accomplice’s in-court testimony must be corroborated. Bingham v.
State, 913 S.W.2d 208, 211–213 (Tex. Crim. App. 1995). However, an accomplice’s
out-of-court statement does not, itself, have to be corroborated under Article 38.14,
and the jury is entitled to regard it as independent evidence of a defendant’s guilt.
Id.; see Archie v. State, 340 S.W.3d 734, 737 n.3 (Tex. Crim. App. 2011). Because
R.C.’s out-of-court statements were not required to be corroborated, we focus our
analysis on her in-court testimony. Her testimony that she took Appellant to Lopez’s
house and that Appellant got out there was corroborated by the same non-accomplice
evidence that corroborated M.P.’s in-court testimony. R.C.’s in-court testimony, in
which she agreed that she made the incriminating statements to the police, was
cumulative of her out-of-court statements, which did not need to be corroborated.
Accordingly, the trial court’s failure to include an accomplice-witness instruction
did not cause Appellant egregious harm such that he was deprived of his right to a
fair trial. We overrule Appellant’s second issue.
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This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
September 22, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
16