LAMARCUS LAVON JEFFREY, Appellant v. STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed March 16, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00860-CR
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LAMARCUS LAVON JEFFREY, Appellant
V.
STATE OF TEXAS, Appellee
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On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-81130-05
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OPINION
Before Justices Morris, Lang, and Lang-Miers
Opinion By Justice Lang-Miers
        The trial court convicted Lamarcus Lavon Jeffrey of aggravated robbery and sentenced him to eight years' confinement. Appellant appeals, arguing (1) the trial court abused its discretion by finding that Renee Bradford was not an accomplice to the offense, and (2) the evidence was insufficient to corroborate the accomplice testimony. The State responds that the evidence was conflicting about Bradford's participation in the offense, and the trial court resolved the factual disputes and determined that Bradford was not an accomplice. We affirm.
FACTS        
 
        Appellant and his friend Toriono Davis decided to steal 69-year-old victim Juanita Dean's purse as she was walking through a Wal-Mart parking lot. Appellant and Davis had first discussed stealing purses as they drove through a mall parking lot earlier in the day but did not execute their plan until they arrived at Wal-Mart. Although appellant and Davis planned and executed the offense, two passengers, appellant's brother Michael Jeffrey and fifteen-year-old Renee Bradford, heard them talking about it. Davis testified, “We are the only ones who carried it out, but everybody talked about it.” Michael and Bradford promised that they would not tell police.
        Appellant and Davis ultimately agreed that appellant would drive past someone slowly, and Davis would reach out the open window and grab the victim's purse. Davis picked out Dean because she was petite and appeared to be an “easy” victim. When Davis grabbed Dean's purse from her shoulder, Dean did not immediately let go. Appellant dragged her for several feet. She suffered a head injury that required nine stitches, bruises, and abrasions. She blacked out during the incident and was unable to identify her attacker.
        After the robbery, Davis took twenty or thirty dollars from Dean's wallet and threw the purse out the window. Davis kept the money and afterwards bought pizza. Davis later pleaded guilty to robbery.
 
DISCUSSION
 
        Appellant argues the trial court abused its discretion by finding that Bradford was not an accomplice   See Footnote 1  and the evidence is insufficient to corroborate Davis's accomplice testimony. Standard of Review
        This was a bench trial in which the trial judge was the fact-finder. The trial court found Bradford was not an accomplice witness and that her testimony was sufficient to corroborate the testimony of an accomplice to the crime. Although appellant argues the trial court's finding was an abuse of discretion, appellant does not cite any authority for that standard of review. We have not found any cases stating that we review a trial court's factual findings in a bench trial under an abuse of discretion standard. Instead, we apply the standard of review that we would apply had a jury heard the case and determined that Bradford was not an accomplice. See Riggs v. State, 744 S.W.2d 140, 142 (Tex. App.-Houston [1st Dist.] 1986) (op. on reh'g), pet. dism'd, 745 S.W.2d 1 (Tex. Crim. App. 1988).
        Unless the evidence clearly shows that a witness is an accomplice as a matter of law, it is proper to leave the determination of whether the witness is an accomplice as a matter of fact to the jury with an instruction defining the term “accomplice.” Cocke v. State, 201 S.W.3d 744, 747-48 (Tex. Crim. App. 2006); Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1988). When the evidence is conflicting on whether a witness is an accomplice, we do not disturb the fact-finder's determination on appeal. See Blake, 971 S.W.2d at 455; Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987); see also Crew v. State, 675 S.W.2d 787, 790 (Tex. App.-Dallas 1984, pet. ref'd); Jester v. State, 62 S.W.3d 851, 856 (Tex. App.-Texarkana 2001, pet. ref'd).
Law
        An accomplice is an individual who participates with a defendant before, during, or after the commission of the crime and acts with the requisite culpable mental state. Cocke, 201 S.W.3d at 748; Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). Participation requires an affirmative act that promotes the commission of the offense with which the defendant is charged. Cocke, 201 S.W.3d at 748; Paredes, 129 S.W.3d at 536. An individual is clearly an accomplice if she, like the defendant, could be prosecuted for the offense or a lesser-included offense. Cocke, 201 S.W.3d at 748; Blake, 971 S.W.2d at 455 (citing Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991)). There must exist evidence sufficient to connect the alleged accomplice to the criminal offense as a “blameworthy participant,” but whether the State charges or prosecutes the alleged accomplice-witness for her participation is irrelevant. Cocke, 201 S.W.3d at 748; Blake, 971 S.W.2d at 455 (citing Singletary v. State, 509 S.W.2d 572, 575 (Tex. Crim. App. 1974)). Mere presence at a crime scene does not make an individual an accomplice, nor is an individual an accomplice merely because she has knowledge about a crime and fails to disclose that knowledge. Cocke, 201 S.W.3d at 748; Blake, 971 S.W.2d at 454.
        A person commits aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control over the property, she intentionally, knowingly, or recklessly causes bodily injury to a person 65 years of age or older. Tex. Pen. Code Ann. § 29.02 .
Analysis
        At trial, the parties disputed whether Bradford was an accomplice. On appeal, appellant argues the evidence is clear Bradford was an accomplice: she was a passenger in the vehicle when the crime was being discussed; she discussed the conspiracy with Davis; she stated, “Are we really going to do it?”; she agreed to keep the conspiracy silent; she shared in the proceeds from the robbery; and she sought immunity from the prosecutor. He also argues her testimony was not credible because she admitted she lied to police and at trial about her and appellant's involvement.
        The record shows that Bradford's testimony was confusing and conflicting. She testified both that she was in the car when the offense occurred and that she was not in the car. She testified both that appellant was driving the car when Davis robbed Dean and also that appellant was not in the car. She testified both that she received some money from the victim's purse and that she did not receive anything. And contrary to Davis's testimony that they all ate pizza, she testified she did not eat the pizza that Davis bought with the stolen money. She admitted she lied to police and hoped for immunity and/or a shorter sentence in another case. And Davis testified Bradford was in the car that day, but she did not plan the robbery and did not assist in carrying it out. He asked her if she would tell anyone if they snatched a purse, and she said she would not.
        Nothing in the record indicates Bradford participated before, during, or after the offense. A promise not to disclose the offense alone will not implicate a person as an accomplice. Mere presence during the commission of the crime, knowledge about the crime and failure to disclose it, or even concealment of the crime is not sufficient to render a person an accomplice. See Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999) (holding that witness was not accomplice even though evidence established she was gang member and, though not present at commission of offense, concealed murder weapons; second witness also not accomplice even though gang member, was with appellant on night of offense, and “observed” offense).
        Even if testimony implicated Bradford, her own testimony was conflicting on almost every aspect of her involvement. And Davis testified she was not involved in planning or carrying out the crime. When the evidence is conflicting about whether a witness is an accomplice, it is proper to leave that determination to the fact-finder, in this case, the trial court. See Blake, 971 S.W.2d at 455; see also Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Jester, 62 S.W.3d at 856. Here, the trial court concluded Bradford was not an accomplice as a matter of fact. We will not disturb that finding on appeal. We overrule appellant's first issue.
        Appellant also argues the evidence is insufficient to corroborate Davis's accomplice testimony. We disagree. Davis testified he and appellant planned and executed the robbery. Bradford testified appellant and Davis discussed the robbery in the car, and appellant drove the car while Davis snatched the purse. We conclude Bradford's testimony is sufficient to corroborate Davis's testimony. We overrule appellant's second issue.
CONCLUSION
 
        We conclude Bradford was not an accomplice to the offense and her testimony was sufficient to corroborate Davis's testimony. We affirm the trial court's judgment. Tex. R. App. P. 43.2(a).
 
                                                                                                                                                             
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060860f.u05
        
 
 
Footnote 1 The trial court issued a written memorandum in which it concluded Bradford was not an accomplice because she did not participate in the crime before, during, or after its commission. The trial court highlighted evidence that might inculpate Bradford, but concluded she did not participate in any aspect of the offense. We are not bound by the trial court's findings in its memorandum because a trial court is not authorized to make findings of fact and conclusions of law in a criminal proceeding tried by the court without a jury. Riggs v. State, 745 S.W.2d 1, 2 (Tex. Crim. App. 1988) (Teague, J., concurring); Mattias v. State, 731 S.W.2d 936, 938-40 (Tex. Crim. App. 1987).