Carliss Ray Williams, Jr. v. The State of Texas--Appeal from 177th District Court of Harris County

MEMORANDUM OPINION
No. 04-02-00509-CR
Carliss Ray WILLIAMS, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 177th Judicial District Court, Harris County, Texas
Trial Court No. 904462
Honorable Carol G. Davies, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 9, 2003

AFFIRMED

Appellant Carliss Ray Williams, Jr. was found guilty of kidnaping and sentenced to twenty years imprisonment and a fine of $10,000. On appeal, Williams argues (1) that the non-accomplice evidence is insufficient to corroborate the accomplice testimony, (2) that the trial court erred in refusing his requested instruction, and (3) that the trial court erred in failing to instruct the jury at punishment that before it could consider any extraneous offenses, it must find that the State had proven such extraneous offenses beyond a reasonable doubt. We overrule all three issues and affirm the judgment of the trial court.

Background

Joana Rodriguez lived in an apartment complex with her husband, Raymundo Cabrera, and his cousin, Rigoberto Cardenas. Their neighbor, Linda Carty, believing that her husband was the father of Rodriguez' newly-born baby, decided to kidnap the baby and raise it as her own. In an effort to further her plans to kidnap the baby, Linda Carty told Josie Anderson, Marvin Caston, and Chris Robinson that Rodriguez and Cabrera possessed 200 pounds of marijuana and a great deal of money, which Carty, Josie Anderson, Caston, and Robinson could easily steal from the Rodriguez' apartment. The group met at a home belonging to Robinson's grandmother, Laurie Gayton. Robinson's half-brother, Zebediah Comb, who also lived at the Gayton home, was awaiting federal sentencing for bank robbery and wore an electric monitor that kept him under house arrest.

On May 13, 2001, Carty, Gerald Anderson, Caston, and Robinson made a first attempt to execute Carty's plan, but postponed their attempt when Carty was seen with the group. Two days later, Carty, Gerald Anderson, and Comb were at the Gayton house when Robinson and Appellant Carliss Ray Williams arrived. Robinson spoke with Carty and G. Anderson while Williams spoke with Comb. Carty, G. Anderson, and Robinson called Williams over to them and asked if Williams was interested in helping them take drugs and money from the Rodriguez apartment. Williams agreed to go so long as he had a gun. Carty mentioned that a lady might be there, but that Carty would handle her. Although he did overhear parts of the conversation, Comb was not a party to it. Williams, G. Anderson, and Robinson left to acquire guns and then returned to the Gayton house. Later, Comb saw the group leave together.

Williams, G. Anderson, and Robinson drove to Rodriguez' apartment in G. Anderson's car. Carty drove separately in her Pontiac. On the way, the three men agreed that they would not kidnap Rodriguez. Carty was to give a signal by cell phone to G. Anderson when it was time for the three men to enter Rodriguez' apartment. When the signal came, the three men kicked in the front door. G. Anderson stayed downstairs and subdued Cardenas. Williams and Robinson went upstairs.

Williams and Robinson found Rodriguez, Cabrera, and the baby asleep in bed. Williams taped Cabrera's mouth, hands, and legs while Robinson held Rodriguez at gunpoint. Williams and Robinson were unable to find any marijuana, but took $1000 in cash that Cabrera had been saving for a car. Carty entered and took the baby. G. Anderson brought Rodriguez out to his car at gunpoint and forced her into his trunk. Robinson protested, so G. Anderson moved Rodriguez to the trunk of Carty's Pontiac.

After the group returned to the Gayton home, Robinson, angry that there had not been any drugs in the apartment, began arguing with Carty in the yard. Comb came outside and told them to keep the noise down because his grandmother was asleep. While Comb was near Carty's Pontiac, Comb saw Rodriguez alive inside the trunk. Carty asked Robinson if Rodriguez could be moved into the trunk of Comb's Cadillac, but Comb interjected and refused. Comb testified that he repeatedly told Carty and Robinson to leave before he went back into the house. Carty agreed to leave with Rodriguez if the men would bind Rodriguez with tape. Williams taped Rodriguez' mouth, arms, and legs and then closed the trunk.

Williams, G. Anderson, and Robinson left the Gayton house; Carty did not. Shortly thereafter, Robinson returned to see Carty leaning over the trunk of her Pontiac and holding a plastic bag over Rodriguez' head. Robinson attempted to stop her, but Rodriguez appeared to be dead. Upon Carty's request, Robinson drove Carty and the baby to a motel room that Carty had rented. The motel room was full of baby items. Carty's Pontiac remained at the Gayton house with Rodriguez' body still in the trunk.

Comb testified that he awoke on the morning of May 16th to see that the Pontiac had been moved to another location on the property and that the trunk was open. Carty and Robinson were back and were talking. Comb went outside and saw Rodriguez' body in the trunk, taped up, with a bag over her head. Comb told Carty and Robinson that they must get out of his grandmother's yard and they must take Rodriguez' body with them. Carty discussed disposing of the body by burning it in a barrel, but Comb refused. Shortly thereafter, G. Anderson arrived to meet up with Carty and Robinson to execute a second drug theft; they all left. Appellant Carliss Williams was not a party to this second plan. Carty's Pontiac was again left at the Gayton home.

On the way to commit the second offense, Carty was called in for questioning by police. G. Anderson and Robinson returned to the Gayton house where several others, including Williams, had converged for a barbecue. Robinson told Williams that Rodriguez was still in the trunk. Believing Carty was not coming back from the police station, Williams and Robinson decided to leave the baby at a church but where unsuccessful in locating one that was open. They then decided to push the Pontiac down the street and leave it for police to find. Robinson testified that he enlisted the help of Armond Comb, Zebediah Comb's cousin, to wipe down the Pontiac and Carty's other car, a Chevrolet, with Lysol to remove fingerprints. Robinson found a gun in the glove compartment of the Chevrolet and hid it in Zebediah Comb's bedroom. Robinson testified that Zebediah Comb was unaware that the gun was there.

After speaking with Carty, police officers arrived at the Gayton house. Upon searching the vehicles, they found the baby and then Rodriguez' body. Williams, Robinson, Armond Comb, and Zebediah Comb were taken into custody. Upon questioning, Zebediah Comb identified Williams as having been involved in the kidnaping and murder of Rodriguez. However, some time later in the conversation with the police, Comb wavered in his identification of Williams. Armond Comb testified that, several days after he and Williams were released, they discussed the events and Williams stated that "he wished he was never there."

During the investigation, the two living victims, Cardenas and Cabrera, could only identify Robinson as having been at their apartment during the robbery and kidnaping. None of the fingerprints recovered from the apartment were identified as belonging to Williams.

Sufficiency of Non-Accomplice Evidence

In his first issue, Williams argues that because witness Zebediah Comb was an accomplice witness as a matter of law, there is insufficient non-accomplice evidence. An accomplice is a person who participates with a defendant before, during, or after the commission of a crime. McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996). Mere presence at the scene of an offense is not enough to render an individual an accomplice; rather, there must be an affirmative act or omission to promote the commission of an offense. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). Additionally, a witness is not considered an accomplice merely because he knew about a crime and failed to disclose it, or even concealed it. Id.; Worthen v. State, 59 S.W.3d 817, 820 (Tex. App.--Austin 2001, no pet.).

To be subject to the accomplice witness rule, a witness must be susceptible to prosecution for the same offense with which the accused is on trial. Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986); Worthen, 59 S.W.3d at 820. If the witness has not been charged, he is not an accomplice as a matter of law unless the evidence is sufficient to convict him of the same offense or for a lesser included offense. Blake, 971 S.W.2d at 454-55. Because Williams was not indicted, he is an accomplice witness as a matter of law only if the evidence shows that he could be successfully prosecuted for the kidnaping or for a lesser included offense. The offense of kidnaping requires that a person intentionally or knowingly abduct another person. Tex. Pen. Code Ann. 20.03(a) (Vernon 1994). "Abduct" is defined in this chapter as restraining someone "with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force." Id. 20.01(2).

Williams argues that Comb was an accomplice witness as a matter of law because the evidence would support charging Comb with kidnaping Rodriguez. Although Comb was not present at the abduction of Rodriguez and there is no indication of the requisite intent to prevent her liberation, Williams argues that Comb is nonetheless an accomplice because he was generally present during discussions, was generally aware of the plan, and acted to assist in its commission. We disagree. The evidence would not support charging Comb with kidnaping.

The record indicates that the group maintained an ongoing presence at the Gayton home and that Comb was always present. However, the record also reflects that Comb was always present at the Gayton home because he lived there and was under house arrest. His bond would have been revoked had he left. Although the record is replete with instances in which Comb was in the general vicinity of discussions and in which he manifested an understanding of what the group intended to do, simply knowing about the crime does not make Comb an accomplice. And, allowing Robinson to drive his car is not evidence of Comb's intention to participate in the offense. The record shows that Comb allowed Robinson to drive his car on the day of the first attempt to rob Rodriguez' apartment. However, Comb was unable to drive his own car while on house arrest. Moreover, the record shows that Comb routinely permitted Robinson to use his car. Further, the second and successful attempt to execute Carty's plan did not involve Comb's car. The requisite intent to promote or assist in the commission of the offense does not appear in the record.

Finally, Williams argues that Comb attempted to assist in the kidnaping by allowing Rodriguez to remain in the trunk of Carty's car at the home in which Comb and his grandmother lived. The record, however, reflects that Comb told Carty and Robinson to leave several times and told them that they could not leave Rodriguez there. Unfortunately, although the evidence shows that Comb saw Rodriguez in the trunk of the car while she was still alive and arguably could have acted to help her, Comb did not have a legal duty to attempt to prevent commission of the offense. See Tex. Pen. Code Ann. 7.02(a)(3) (Vernon 1994); Kunkle, 771 S.W.2d at 439 (holding that a witness, who knew about the group's robbery plans, who never protested, and who knew that the proceeds from the robbery were being used to buy provisions along the road trip, was not an accomplice witness as a matter of law).

To support his argument that Comb was an accomplice, Williams relies on our decision in De La Rosa v. State, 919 S.W.2d 791 (Tex. App.--San Antonio 1996, pet. ref'd). In De La Rosa, a witness, who had agreed to burglarize a house, rode to the house with the actors, waited with the defendant during the burglary, helped load the stolen items into the truck, received some of the stolen property, was a party to the later discussion to kill the victim, knew the actor had a gun, and waited in the truck while the act was done, was held to be an accomplice as a matter of law. Id. at 794. Here, however, the record does not reflect that Comb participated in the planning of the robbery or the kidnaping. Moreover, Comb was not present at the scene of the crime. And, the record does not reflect that Comb ever derived any gain from what was stolen from Rodriguez' home. Finally, Comb was not a party to removing Rodriguez from her home, placing her into the trunk, or determining what to do with her thereafter. There is simply no evidence in the record that Comb committed any affirmative act to promote the commission of the offenses. We, therefore, hold that Comb was not an accomplice as a matter of law.

Thus, Comb's testimony that he saw Williams leave with the group on the night of the kidnaping, then return a short time later with Rodriguez in the trunk and the baby in Carty's arms provides non-accomplice evidence which sufficiently corroborates Robinson's testimony as to the nature and sequence of events in which Williams took part. Because Comb is not an accomplice witness as a matter of law, no corroboration of his testimony is necessary. Thompson v. State, 537 S.W.2d 732, 734 (Tex. Crim. App. 1976). Comb's testimony is sufficient to support the conviction. We overrule Williams' first issue.

Refusal to Instruct as to Accomplice as a Matter of Law

In his second issue, Williams argues that the trial court erred in refusing to instruct the jury that Comb was an accomplice as a matter of law. Because we have held that Comb was not an accomplice witness as a matter of law, the trial court did not err in refusing the instruction. We overrule Williams' second issue.

Failing to Instruct During Punishment Concerning Extraneous Offenses

In his third issue, Williams argues that the trial court erred when it failed to instruct the jury that "before it could consider any extraneous offenses against the appellant, it must find that the State had proven such extraneous acts beyond a reasonable doubt." To the extent the trial court determines it is relevant to sentencing, evidence of extraneous crimes or bad acts is admissible during the punishment phase. Tex. Code Crim. Proc. Ann. art 37.07(3)(a)(1) (Vernon Supp. 2003); Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). Where such evidence is offered by the State, it cannot be considered unless the jury first determines that the defendant committed the acts beyond a reasonable doubt. Ellison, 86 S.W.3d at 227. Thus, the trial court must sua sponte instruct the jury on the reasonable-doubt standard of proof concerning the extraneous acts. Id. at 227-28.

According to a deputy sheriff's testimony, Williams was found guilty of twelve disciplinary charges ranging from extortion to fighting while he was incarcerated at the Harris County Jail. Williams contends that the trial court erred by failing to instruct the jury that they could not consider these extraneous offenses without first finding beyond a reasonable doubt that he had committed the offenses. However, Williams concedes that he did not request this instruction at trial. Where the instruction is omitted and the defendant fails to object at trial, the error is reviewed under the egregious-harm standard. Id. at 227 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)). Appellant bears the burden of showing that he suffered actual, not just theoretical, harm. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). The degree of harm is assessed "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and all other relevant information revealed by the record as a whole." Ellison, 86 S.W.3d at 228 (quoting Almanza, 686 S.W.2d at 171). We will reverse only if the error was so egregiously harmful that Williams was not given a fair and impartial trial. Id.

Upon reviewing the record as a whole, it is not apparent that Williams was egregiously harmed. First, there was sufficient evidence in the record that Williams was an active participant in the kidnaping of Rodriguez. Williams was identified by Comb as an active participant throughout the period of time surrounding the kidnaping of Rodriguez. Additionally, the testimony of Robinson provided ample evidence that Williams acted as an active participant in planning and executing the kidnaping of Rodriguez. Second, the State's closing argument did not rely on the extraneous offenses as a basis for sentencing Williams; rather, it focused entirely on the kidnaping offense. Had the proper jury instruction been included, the State's case would not have been any less persuasive. Further, the State correctly asserts that the jury was instructed that the State carried the burden to prove the allegations in the punishment paragraph beyond a reasonable doubt. For these reasons, failure to include the proper jury instruction did not egregiously harm Williams. We overrule Williams' third issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

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