416 S.W.3d 229
Tex. App.2013Background
- Roys was indicted for intentionally and knowingly shooting and killing Candice Herrera; he pleaded not guilty and was convicted by a jury and sentenced to 55 years.
- Co-defendant/witness Steven Solis admitted involvement, testified Roys arranged for Herrera to be brought to a wood-chipping site and that Roys shot her.
- Shortly after the murder Roys called Martin Ekstrand and Chad Dumer to a car wash, handed them two guns wrapped in cloth, and others disposed of tires and washed vehicles. Ekstrand and Dumer were later convicted of tampering with evidence.
- Firearm evidence: police recovered shell casings at the scene; a .40 Glock later recovered from Bill Fleming matched two .40 casings from the scene.
- Trial court instructed the jury that Solis was an accomplice requiring corroboration; Roys argued the court should also have labeled Dumer and Ekstrand accomplices, that the accomplice corroboration requirement should explicitly apply to party liability, that submission on party liability was improper, and that non-accomplice evidence was insufficient to corroborate Solis.
Issues
| Issue | Roys' Argument | State's Argument | Held |
|---|---|---|---|
| Whether trial court erred by not instructing that Ekstrand and Dumer were accomplice witnesses | Ekstrand and Dumer helped dispose of guns/tires and were convicted of tampering, so they are accomplices as a matter of law | Their post-offense assistance does not make them accomplices to the murder; accomplice status requires affirmative participation in the offense with requisite culpable intent | No error; they were not accomplice witnesses as a matter of law |
| Sufficiency of non-accomplice corroboration of Solis' testimony under art. 38.14 | Non-accomplice evidence insufficient to connect Roys to the murder | Multiple non-accomplice facts (guns given to Ekstrand/Dumer, matching .40 Glock, statements by Roys, floor-plan motive, tire/gun disposal) tend to connect Roys | Non-accomplice evidence sufficient to corroborate Solis; issue resolved against Roys |
| Whether accomplice corroboration instruction had to be explicitly restated in party-liability application paragraph | Jury might convict as a party without corroboration because charge did not expressly repeat accomplice rule in party paragraph | Charge read as a whole; generic "foregoing instructions" references were adequate; no need to repeat every abstract instruction in application paragraph | No charge error; jury presumed to have followed whole charge |
| Whether submission on law of parties was improper because indictment did not allege party liability | Submission on parties requires pleading of party theory | Due process does not require party culpability to be pled; courts may instruct on parties even if indictment omits it | No error; charge on parties permissible; Roys' request to overrule existing precedent denied |
Key Cases Cited
- Smith v. State, 332 S.W.3d 425 (Tex. Crim. App. 2011) (accomplice testimony must be corroborated by non-accomplice evidence that tends to connect accused to offense)
- Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) (post-offense assistance alone does not make witness an accomplice to the underlying offense)
- Nelson v. State, 297 S.W.3d 424 (Tex. App.—Amarillo 2009) (definition and corroboration rule for accomplice witnesses)
- Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007) (non-accomplice corroboration need not establish guilt beyond a reasonable doubt)
- Joubert v. State, 235 S.W.3d 729 (Tex. Crim. App. 2007) (article 38.14 analysis focuses on whether evidence tends to connect accused, not on precise role)
- Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) (review jury charge as whole; unnecessary to repeat every abstract instruction in application paragraph)
- Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) (due process does not require party liability to be pleaded in charging instrument)