Sebastian Nathanial Roys v. State , 416 S.W.3d 229 ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-11-00452-CR
SEBASTIAN NATHANIAL ROYS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court
Randall County, Texas
Trial Court No. 19,406-C, Honorable Ana Estevez, Presiding
November 8, 2013
OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Sebastian Nathanial Roys appeals from his murder conviction by jury
and the resulting sentence of 55 years of imprisonment. He presents five points of
error, four asserting errors in the court’s charge and one asserting insufficient
corroborating evidence. We will affirm.
Background
Roys was charged by indictment with intentionally and knowingly causing the
death of Candice Tenise Herrera by shooting her with a firearm.1
After Roys plead not guilty, the State presented evidence showing that Herrera
was shot to death at a City of Amarillo wood chipping site about 5:00 on a morning in
October 2007. Roys and another man, Steven Solis, were present. Solis admitted his
involvement in Herrera’s death, and also was charged with her murder. He testified for
the State at Roys’ trial, telling the jury Roys arranged for him to bring Herrera to the
chipping site, and that Roys shot Herrera.
Very shortly after the shooting, Roys and Solis took steps to hide their
involvement. Solis said Roys contacted him as he drove after leaving the chipping site
and instructed Solis to meet him at a car wash. Both washed their cars. While they
were still at the car wash, a pickup arrived and Roys gave the occupants a rolled-up
shirt.2 Solis assumed the shirt contained the two handguns used in the shooting. The
two occupants of the pickup were Martin Ekstrand and Chad Dumer, both of whom
testified to their receipt and disposition of the handguns. The next day, Solis and Haven
Lam3 took the cars to a Discount Tire store and had four new tires mounted on each
car. They took the old tires with them.
1
TEX. PENAL CODE ANN. § 19.02 (West 2012).
2
Other testimony described the wrapping as a towel.
3
Lam was Roys’ girlfriend at the time, but his wife by the time of trial. She also
testified at trial.
2
Police recovered shell casings near the body at the chipping site. An autopsy
was performed, showing Herrera was shot six times, twice in the head.
There was testimony regarding Roys’ belief that Herrera had drawn a map or
―floor plan‖ of Roys’ residence, and his further belief the ―floor plan‖ was part of a plan to
rob him. During the investigation, police recovered a drawing of Roys’ home. Solis
testified that, before he shot her, Roys asked Herrera why she had a map of his house
and accused her of planning to rob him.
Following presentation of the evidence, the jury found Roys guilty as charged
and sentenced him as noted. This appeal followed.
Analysis
Jury Charge Error – Accomplice Witnesses
The trial court instructed the jury that Solis was an accomplice witness, and
included instructions on the law of accomplice witness testimony and the requirement
for its corroboration. In his first two points of error, Roys contends the trial court
reversibly erred by failing to instruct the jury that Dumer and Eckstrand also were
accomplice witnesses. The asserted errors were not raised with the trial court.
Before a conviction can be based on an accomplice's testimony, the testimony
must be corroborated by other evidence tending to connect the accused to the crime.
TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2012); Nelson v. State, 297 S.W.3d 424,
429 (Tex. App.—Amarillo 2009, pet. ref’d). The testimony of one accomplice may not
be relied on to corroborate the testimony of another accomplice. See Smith v. State,
3
332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (accomplice testimony must be
corroborated by ―other, non-accomplice evidence that tends to connect the accused to
the offense‖).
An accomplice is someone who participates with the defendant before, during or
after the commission of a crime and acts with the required culpable mental state.
Nelson, 297 S.W.3d at 429, citing Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim.
App. 2007). The accomplice witness’s participation with the defendant must involve
some affirmative act that promotes the commission of the offense with which the
defendant is charged. Nelson, 297 S.W.3d at 429. Simply having knowledge of the
offense and not disclosing that information, or even trying to conceal the offense, does
not render a witness an accomplice. Id. “In short, if the witness cannot be prosecuted
for the offense with which the defendant is charged, or a lesser-included offense of that
charge, the witness is not an accomplice witness as a matter of law.‖ Druery, 225
S.W.3d at 498, citing Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).
When the evidence clearly shows that a witness is an accomplice as a matter of
law, the trial court must instruct the jury accordingly. Smith, 332 S.W.3d at 439. When
there is doubt whether a witness is an accomplice (i.e., the evidence is conflicting), the
trial court should instruct the jury to determine a witness's status as a fact issue. Id. at
439-40. Finally, when the evidence clearly shows that a witness is not an accomplice,
the trial court is not obliged to instruct the jury on the accomplice witness rule as a
matter of law or fact. Id. at 440. The evidence in each case will dictate whether an
accomplice as a matter of law or fact instruction is required. Cocke v. State, 201 S.W.3d
744, 747 (Tex. Crim. App. 2006).
4
Here, the record indicates both Eckstrand and Dumer were convicted of
tampering with evidence of Herrera’s murder. They went to the carwash together when
Roys called them, after Herrera was killed. Roys gave them two handguns wrapped in
a towel. Dumer and Ekstrand both testified they took the guns to the home of Bill
Fleming. Eckstrand never saw the guns again but Dumer later broke them into pieces
using tools from Fleming’s shop. He left the pieces at Fleming’s home. Eckstrand
picked up used tires from Roys’ home. Dumer later picked up the tires from Eckstrand’s
storage unit, and disposed of them at four different tire shops.
Roys contends that Eckstrand and Dumer concealed the instrumentalities of the
murder, thereby aiding Roys in his commission of that offense, and thus are accomplice
witnesses as a matter of law. We disagree.
Merely assisting a murderer in disposing of the murder weapon after the murder
does not make one an accomplice as a matter of law. Druery, 225 S.W.3d at 500
(witness who ―merely assist[ed] after the fact in the disposal of a body‖ not an
accomplice witness in prosecution for murder; ―same logic applies‖ to assisting in
disposition of gun after the murder). Rather, the ―witness must still be susceptible to
prosecution for the murder itself by having affirmatively assisted in committing the
offense.‖ Id. at 500. The actions of Eckstrand and Dumer helping Roys hide and
dispose of the handguns and the tires after Herrera’s murder do not make them
accomplice witnesses. Nor does the evidence suggest they acted with the culpable
mental state required for guilt of murder. See Nelson, 297 S.W.3d at 429 (holding, as
one reason witness was not accomplice witness in murder prosecution that witness’s
5
conduct of assisting in washing out pickup truck bed after disposition of victim’s body
was not done with culpable mental state to cause victim’s death).
The trial court did not err in failing to instruct the jury on the accomplice witness
rule as applied to Eckstrand and Dumer.4 We overrule Roys’ first two points of error.
Sufficiency of Corroborating Evidence
In Roys’ fifth point of error, he argues the non-accomplice evidence, that is, the
evidence other than Solis’ accomplice testimony, fails to connect him to the commission
of the murder. We disagree.
When reviewing the sufficiency of non-accomplice evidence under article 38.14,
we decide whether the inculpatory evidence tends to connect the accused to the
commission of the offense. Smith, 332 S.W.3d at 439. The non-accomplice evidence
need not directly link the defendant to the crime, "nor does it alone have to establish his
guilt beyond a reasonable doubt.‖ Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim.
App. 2007).
4
Roys also mentions he was charged with tampering with evidence and, since
that is the offense with which Dumer and Ekstrand also were charged, Roys argues,
they were accomplice witnesses as a matter of law. If Roys had been tried for
tampering with evidence, and Dumer and Ekstrand were called to testify in that
prosecution, they may well have been accomplice witnesses. But Roys was tried here
for the murder itself. That a witness has complicity with an accused in the commission
of other offenses does not make his testimony that of an accomplice witness for the
offense for which the accused is on trial if there is no showing of his complicity in that
offense. Druery, 225 S.W.3d at 498; Caraway v. State, 550 S.W.2d 699, 702 (Tex.
Crim. App. 1977); Gonzales v. State, No. 07-10-00175-CR, 2011 Tex.App. LEXIS 2607
(Tex. App.—Amarillo April 7, 2011, pet. ref’d) (mem. op. not designated for publication).
6
The sufficiency of non-accomplice evidence is judged according to the particular
facts and circumstances of each case. Smith, 332 S.W.3d at 442. Direct or
circumstantial non-accomplice evidence is sufficient if rational jurors could have found it
tended to connect the accused to the offense. Id. "So when there are conflicting views
of the evidence—one that tends to connect the accused to the offense and one that
does not—we will defer to the factfinder's resolution of the evidence." Id. Thus, it is not
appropriate for an appellate court to independently construe the non-accomplice
evidence. Id.
The appellate court views the corroborating evidence in the light most favorable
to the jury's verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim App. 1994). The
defendant's liability as a principal or under a party theory is not relevant under an article
38.14 analysis. Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007). The
question is whether some evidence ―tends to connect‖ him to the crime; the connection
need not establish the exact nature of his involvement as a principal or party. Id.
Because we have determined Eckstrand and Dumer were not accomplice
witnesses, their testimony is properly considered among the evidence corroborating
Solis’ accomplice testimony. See Smith, 332 S.W.3d at 439 (corroboration requires
―other, non-accomplice evidence that tends to connect the accused to the offense‖).
Both men testified Roys gave them two handguns at the carwash. Both testified they
took the guns to the home of Bill Fleming. Fleming testified he surrendered a .40 Glock
and a .45 Tanfoglio ―Witness‖ automatic weapon to police. Expert testimony confirmed
7
that two of the .40 casings recovered from the crime scene were fired by that .40
Glock.5 This evidence alone tends, strongly, to connect Roys with the murder.
Even without the testimony of Eckstrand and Dumer, moreover, there is evidence
tending to connect Roys to Herrera’s murder. Lam testified that on the morning of the
shooting, Roys told her ―[Herrera] would not be coming home.‖ Roys also told Lam on
the night they were arrested that ―the guns were gone and that someone got rid of
them.‖ Witnesses testified to Roys’ instructions to replace the tires on the cars.
Further, two witnesses confirmed the existence of the ―floor plan‖ that upset
Roys. These witnesses connected the ―floor plan‖ to Herrera as its likely author and
confirmed Roys was aware of the drawing and its likely meaning that Herrera was
planning to rob him, and that he was very upset about it. Another witness testified that
about two weeks before the murder, Roys told him about a woman who made a ―floor
plan‖ of his house. Another witness testified to a conversation he had with Roys about
the ―detailed floor plan of his house‖ and his question as to ―what should be done about
it.‖ The witness also recalled seeing Roys with a black Glock handgun at some point
prior to the murder.
Viewed in the light most favorable to the verdict, the record contains non-
accomplice evidence tending to connect Roys to the offense. Smith, 332 S.W.3d at
439. We resolve Roys’ fifth issue against him.
5
The Department of Public Safety expert testified he was able to determine that
fact despite the damage done to the handgun by Dumer. Fleming testified he took the
handguns to police after Dumer and Eckstrand were arrested.
8
Law of Parties Instruction
One witness testified that Solis once told her that he shot Herrera. The trial court
instructed the jury on the law of parties and included an application paragraph
permitting the jury to find Roys guilty as a party to Herrera’s murder by Solis. Paragraph
10 of the court’s charge contained the abstract instructions requiring corroboration of
Solis’ accomplice witness testimony. The application paragraph for Roys’ guilt or
innocence as the shooter was paragraph number 11 in the charge. It began, ―Now,
bearing in mind the foregoing instructions . . . .‖ Paragraph 12 of the charge contained
the court’s abstract instructions on the law of parties. The application paragraph dealing
with Roys’ guilt or innocence as a party was the next paragraph, number 13. It also
began, ―Now, bearing in mind the foregoing instructions . . . .‖
By Roys’ third point of error, he contends the charge was not clear, and thus was
erroneous, that the corroboration requirement for accomplice testimony also applied to
Roys’ possible guilt as a party. He argues the failure to give an explicit instruction that
the law of accomplice testimony also applied to the jury’s consideration of his possible
guilt as a party for the acts of Solis allowed the jury to believe it could convict Roys as a
party without corroboration of Solis’ accomplice testimony. This objection to the charge
was not raised at trial.
Roys does not complain of any inadequacy in the court’s abstract instructions on
the law of accomplice witnesses and corroboration. Nor does he cite us to authority
requiring that the jury charge expressly reiterate the applicability of the accomplice
witness instruction, paragraph 10 of this charge, to the later application paragraph for
9
party liability, paragraph 13.6 His argument amounts to a contention the jury would not
understand that the ―foregoing instructions‖ they were to bear in mind when addressing
paragraph 13 included all the foregoing instructions, including the accomplice witness
instructions in paragraph 10.
In its recent opinion addressing a somewhat similar contention, Vasquez v.
State,7 the Court of Criminal Appeals cited with approval a statement of the Beaumont
Court of Appeals in a 2008 opinion, ―[i]t is unnecessary to repeat every abstract
definition in the application paragraph of the jury charge.‖ Vasquez, 389 S.W.3d at 367
n.16, citing Holland v. State, 249 S.W.3d 705, 708-09 (Tex. App.—Beaumont 2008, no
pet.). The court in Vasquez also reiterated prior holdings that when reviewing the
charge for possible error, we ―must examine the charge as a whole instead of a series
of isolated and unrelated statements.‖ 389 S.W.3d at 366, quoting Dinkins v. State, 894
S.W.2d 330, 339 (Tex. Crim. App. 1995). Examining the charge as a whole, we agree
with the State’s contention that the jury would have understood it was to consider all of
the instructions contained in the charge to the jury. See Stokes v. State, 74 S.W.3d 48,
51 (Tex. App.—Texarkana 2002, pet. ref'd) (absent evidence to the contrary, we must
presume the jury followed and understood the instructions). Concluding Roys has
presented no persuasive argument the charge contained the error he sees, we resolve
his third point of error against him.
Roys’ argument for this point of error simply generally incorporates by reference
6
―his argument and authorities as set forth above,‖ regarding the law of accomplice
witness testimony.
7
389 S.W.3d 361 (Tex. Crim. App. 2012).
10
Party Liability
In Roys’ fourth point of error, he argues the trial court committed jury charge error
resulting in egregious harm when it allowed the case to be submitted to the jury on a
theory of ―party liability‖ when the indictment did not include such an allegation. He
acknowledges the Court of Criminal Appeals has held that a trial court may charge a
jury on the law of parties even when there is no such allegation in the indictment but
urges this line of authority should be overruled.
The Court of Criminal Appeals recently has reaffirmed that, under state or federal
law, ―due process does not require a defendant’s culpability as a party to the offense to
be plead in the charging instrument.‖ Adames v. State, 353 S.W.3d 854, 861 (Tex.
Crim. App. 2011). The holding is a reiteration of previous holdings to the same effect.
See Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002) (―it is well-settled that
the law of parties need not be pled in the indictment‖); Pitts v. State, 569 S.W.2d 898,
899-900 (Tex. Crim. App. 1978). As has the Waco Court of Appeals when also urged to
overrule this aspect of the Court of Criminal Appeals’ jurisprudence, we decline. See
Smith v. State, No. 10-09-00289-CR, 2011 Tex. App. LEXIS 7685, at 6-7 (Tex. App.—
Waco Sept. 21, 2011, no pet.) (mem. op., not designated for publication); Davis v.
State, 276 S.W.3d 491, 500 (Tex. App.—Waco 2008, pet. ref’d). Roys’ fourth point is
overruled.
11
Conclusion
Having resolved each of Roys’ issues against him, we affirm the judgment of the
trial court.
James T. Campbell
Justice
Publish.
12