O P I N I O NThis appeal arises from a drug deal gone bad. So bad, in fact, that the buyer, Domanic Thrasher, was shot and killed. Based partially on the strength of two accomplices who testified against him at trial, Blayne Williams Brooks was convicted of “Engaging in Organized Criminal Activity–Murder” under Tex.Penal Code Ann. § 71.02 (West Supp. 2017). In a single issue, Appellant complains that the trial court failed to include a jury instruction about another possible accomplice– a person who assisted in the cover-up of the murder, but not the murder itself. For the reason noted below, we affirm.FACTUAL SUMMARY[1]The State told the story of the drug sale gone wrong through several of the participants. Because this appeal deals with accomplice, and possible accomplice witness testimony, where necessary we indicate who testified to what at each juncture of the crime.The Brokered Drug DealHaden Swagerty and his fiance, Whitney O’Brien, were something akin to brokers in the drug trade. They would set up a drug deal between a downstream buyer and upstream supplier. When the drug sale was made, they apparently took a gratuity for fostering the transaction. Their upstream sellers were Appellant and his business partner, Justin Love. Both Haden and Whitney testified that Appellant and Justin would buy marijuana in Colorado and then resell it in the Wichita Falls area. Appellant and Justin would travel to and from Colorado twice a week, and would transport as much as four to six pounds at a time for re-sale.At issue in this case, Haden testified that on June 12, 2015, he set up the sale of two ounces of marijuana to Domanic Thrasher. The arrangement was made through a series of phone text messages. The text messages identified the buyer only as “E” and Haden did not actually know that he was communicating with Thrasher at the time. Hayden needed Whitney to complete the transaction because he had to be at work and he gave his cell phone to Whitney. She met up with Justin and Appellant to close the deal.The Deal Goes WrongThrough a series of text messages, Thrasher asked to meet at an intersection in a residential neighborhood near his house. According to Whitney’s testimony, she, Justin, and Appellant droveto the location in a black Chevrolet Suburban. Justin was driving, Appellant was in the front passenger seat, and Whitney was in the back seat, continuing to text with Thrasher. Justin and Appellant were initially suspicious of the deal because the buyer, still identified only as “E,” had not haggled on the price. Whitney in fact sent one text message telling “E” that was he was about to deal with people who don’t “f**king play.” As they arrived at the designated location, Justin and Appellant recognized Thrasher, and knew his reputation to be a “runner” (someone who would grab the drugs and run without paying).Nonetheless, they stopped, Whitney exited the vehicle, and Thrasher got in. Whitney testified that after confirming the price, Justin showed Thrasher the marijuana. Thrasher then grabbed it from Justin and bolted out of the Suburban past Whitney. She grabbed his shirt, and heard Justin tell Appellant, “shoot him.” When she heard gunshots, she fell to the ground to get out of the line of fire. One of the gunshots hit Thrasher, spun him around, and he went down. Justin and Appellant yelled at Whitney to get back in the Suburban, but only after she was told to retrieve the marijuana. When she got back in the vehicle, she saw Appellant holding a gun. As they sped off, Whitney asked to get out of the Suburban, but Justin told her, “If you get out, we’ll shoot you.” They then drove back to Justin’s house. Thrasher was left in the street with multiple gunshot wounds, one of which proved fatal.The Cover-UpWhen Whitney got to Justin’s house, she was in shock. She recalled that Justin’s wife, Tamilyn, and their children were at the house. Justin and Appellant had Whitney wash her hands. Justin also had her change clothes. She heard a discussion between Justin, Appellant, and Tamilyn about disposing of the gun in a paint can, and she later noticed some white or pink paint on Appellant’s shoes. They also told Whitney, who had pink hair at the time, that she needed to change the color of her hair. Justin told Appellant, who wore his hair down to his shoulder blades, to get a haircut. Whitney was at the house about 45 minutes, and then Appellant drove her back to her apartment. Appellant took possession of Hayden’s phone that she had been using. He told her to tell Hayden that it had been stolen during the drug deal.The details of the cover-up also came out through Tamilyn, who testified at trial. Sometime after Justin, Appellant, and Whitney left that day, she got a phone call from Justin telling her to get everything out of the house, meaning the drugs, guns, and drug paraphernalia. When Justin, Appellant, and Whitney returned to the house, Tamilyn noticed that Whitney was panicked and crying. Justin asked Tamilyn to get a change of clothes for Whitney. When she asked why, Justin said that the less she knew the better. Appellant told Tamilyn that Whitney would need to dye her hair. Tamilyn overheard Justin and Appellant discuss the need to get rid of Whitney’s phone. Tamilyn testified to overhearing discussions about dumping the gun in a lake, and was aware that it was put in a paint can.[2] After Whitney and Appellant left, Justin spent the rest of the day on the phone trying to establish an alibi. Tamilyn left for Colorado with Justin that day.The cover-up was also witnessed first-hand by another witness, Tamilyn’s best friend, Daphnee Selser, who happened to be at the house that day. Selser recalled Appellant and Whitney coming to house that morning, and then leaving with Justin. They all returned over an hour later, and Whitney was shaking. Justin also told Selser the essential details of the crime–they had gone to sell some marijuana, the buyer grabbed the drugs, and Appellant shot him. Selser overheard Justin talking about hiding the gun in a paint can. She saw both the gun and later saw paint on Appellant’s shoes. Selser helped clear the marijuana, pipes, and bongs from house, as directed by Justin. She also overheard discussions about Whitney changing her clothes. After they cleaned everything up, she went with Justin and Tamilyn to Colorado.The State also corroborated several aspects of the cover-up through disinterested witnesses. The manager of a barbershop confirmed that Appellant got a haircut that afternoon. Whitney had been directed to tell Haden that his cell phone was stolen during the drug sale and Appellant later that day told Hayden that he would buy him a new one. Videotape from a Walmart store showed Appellant purchasing a new phone for Hayden around 5:00 p.m. that afternoon. The State also presented testimony from an employee of a beauty supply store that two men purchased red hair dye that day. Whitney’s pink hair appeared to have been dyed red in a post-arrest photo. The police were also able to unlock and download Justin’s phone, and discovered that the phone was used two days after the murder to search websites with information on how to remove gunshot residue.Whitney Can’t Keep the SecretWhen Whitney returned to her apartment that day, she told her roommate, Rebecca Fondron, what happened. Fondron related that conversation to the jury, as did Fondron’s boyfriend, Konner Reece, who also overheard the same statement. Whitney also told Haden what had happened. After Appellant replaced Haden’s cell phone with a new one, the two began to text. Appellant texted Hayden two days after the murder to tell him, “Well I just wanna let you know everything is taken care of and every angle covered, hopefully this makes Whitney less anxious abt [sic] the whole ordeal.” The same day, he texted that “all we gotta do from here in [sic] out is keep our mouths shut and were [sic] golden.”The Police Crack the CaseDespite Appellant’s optimism, the police were quickly unravelling the crime. They had recovered Thrasher’s phone and saw the series of text messages setting up the drug deal. They learned the corresponding phone number appeared in a police report as belonging to Haden Swagerty. When the police followed Haden, they saw him pull into Appellant’s residence and quickly noticed the black Suburban parked there. Several persons in the residential neighborhood where the shooting occurred had seen a dark colored SUV speed away. The police then ran the plates on the Suburban, discovering that it was registered to Kenneth Love. An anonymous tip on Facebook fingered three suspects, Justin Love, Appellant, and a female named Whitney. When a detective checked Appellant’s Facebook page, he noticed it listed two persons with the last name “Swagerty” as friends, as well as Whitney O’Brien.After executing a search warrant on the Suburban which was parked at Appellant’s residence, the police found a place on the passenger side rear door where a bullet appears to have ricocheted off the door frame. The police found particles consistent with gunshot residue inside the Suburban. They also found one and one-half pounds marijuana hidden in a compartment. The police found more marijuana in a duffel bag, as well as an empty gun holster, and ammunition in the vehicle. A search of the Love residence found pink paint spots in the kitchen and the back porch.The IndictmentA grand jury indicted Appellant for committing felony murder while engaged in an organized criminal activity. See Tex.Penal Code Ann. § 71.02. Specifically, the indictment alleged that with the intent to establish, maintain, or participate in a combination, Appellant intentionally or knowingly committed, or attempted to commit the felony of delivery of marijuana (more than one-fourth of an ounce, but less than five pounds) and in the course of doing so, and in the furtherance of the felony, he shot and killed Domanic Thrasher with a firearm.Additional Post-Event EvidenceAppellant was arrested and remained in jail pending his trial. The State concluded its case with recordings of several phone calls that Appellant made from the jail to his ex-girlfriend. In the calls, he suggested that if she would support an alibi that he was at her residence at the time of the murder, all the charges against him would go away and he could go home. Despite her telling him that he was not there at the time, he persisted in suggesting that she testify as an alibi witness for him.The Accomplice Witnesses and the ChargeThe jury charge identified Whitney and Haden as accomplice witnesses. As such, the jury was instructed that it could not convict Appellant upon either Whitney or Haden’s testimony unless it believed that their testimony was true and corroborated by other evidence tending to connect Appellant to the charged offense. The jury was further instructed that (1) one accomplice witness’s testimony cannot corroborate another accomplice witness’s testimony, (2) that any out-of-court statement by an accomplice admitted at trial cannot by itself serve as corroboration for the accomplice’s in-court-testimony, and (3) the corroboration is not sufficient if it merely shows the commission of an offense, but rather must tend to connect Appellant with its commission.At the charge conference, defense counsel sought a similar instruction that would include Tamilyn Love as an accomplice witness, if the jury additionally found that Tamilyn was connected to the crime as a party. Appellant proposed an instruction defining the predicates for how a person might be connected to the crime as a party. The trial court denied the request because in its view, there was no evidence that Tamilyn was a party to the offense charged.The jury convicted Appellant and sentenced him to sixty years’ confinement. In a single issue, he challenges the trial court’s refusal to include an instruction allowing the jury to find that Tamilyn was an accomplice witness.STANDARD OF REVIEWThe trial court shall deliver a “written charge distinctly setting forth the law applicable to the case” to the jury. Tex.Code Crim.Proc.Ann . art. 36.14 (West 2007). We review charge error under a two-pronged test. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); see also Zamora v. State, 411 S.W.3d 504, 512-13 (Tex.Crim.App. 2013)(applying the Almanza framework to claimed charge error in failing to include an accomplice witness instruction). First, we must determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005) Second, if error exists, we then must evaluate the harm caused by the error. Id.The degree of harm required for reversal depends on whether the error was preserved at trial. Almanza, 686 S.W.2d at 171; Neal v. State, 256 S.W.3d 264, 278 (Tex.Crim.App. 2008). If the error was preserved, as it was here, we review for “some harm.” Almanza, 686 S.W.2d at 171. We must reverse “if the error is calculated to injure the rights of defendant, which means no more than that there must be some harm to the accused from the error.” Id. [internal quotes omitted]. In other words, error properly preserved will require reversal so long as the error is not harmless. Id. This analysis requires a reviewing court to consider (1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors present in the record. Reeves v. State, 420 S.W.3d 812, 816 (Tex.Crim.App. 2013); see also Almanza, 686 S.W.2d at 171 (“[T]he actual degree of harm must be assayed 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 any other relevant information revealed by the record of the trial as a whole.”).ACCOMPLICE WITNESSESBy Texas statute, “[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex.Code Crim.Proc.Ann. art. 38.14 (West 2005). The purpose of the accomplice-witness instruction is to remind the jury that it cannot use the accomplice’s testimony to convict the defendant unless there also exists some non-accomplice testimony tying the defendant to the offense. Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App. 2006).When applicable, we instruct our juries of this rule in one of two ways. Id. When the evidence is clear, the trial court instructs the jury as matter of law that the particular witness is an accomplice, and then sets out the requirement of corroboration. Zamora v. State, 411 S.W.3d 504, 510 (Tex.Crim.App. 2013). A witness is an accomplice as a matter of law when (1) the witness has been charged with the same offense as the defendant or a lesser-included offense, (2) 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, or (3) the evidence is uncontradicted or so one-sided that no reasonable juror could conclude that the witness was not an accomplice. Ash v. State, 533 S.W.3d 878 (Tex.Crim.App. 2017). “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.” Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App.), cert. denied, 552 U.S. 1028, 128 S.Ct. 627, 169 L.Ed.2d 404 (2007). This participation must include an affirmative act in promotion of the commission of the offense with which the defendant is charged. Id.In contrast, if the evidence at trial conflicts or is inconclusive as to the witness’s complicity, then the witness may be an accomplice as a matter of fact. Zamora, 411 S.W.3d at 510. In that situation, the trial court should include an accomplice-witness instruction that asks the jury to (1) decide whether the witness is an accomplice as a matter of fact, and (2) apply the corroboration requirement, but only if it has first determined that the witness is an accomplice. Id. And finally, when the evidence is clear and shows that a witness is not an accomplice, the trial court is not required to provide an accomplice-witness instruction. Smith v. State, 332 S.W.3d 425, 440 (Tex.Crim.App. 2011); Coutta v. State, 385 S.W.3d 641, 654-55 (Tex.App.–El Paso 2012, no pet.).ANALYSISAs we have noted, Appellant complains that the trial court erred in omitting an accomplice instruction with regard to Tamilyn. We reject this issue for two reasons. First, there is no evidence in the record making Tamilyn an accomplice to the crime indicted here, or a lesser included offense of the indicted crime. Second, even were we wrong about that conclusion, the error would be harmless on this record.Tamilyn was not an Accomplice to the Charged OffenseAppellant was indicted with committing felony murder while engaged in an organized criminal activity. Tamilyn was not indicted for this same offense, nor are we pointed to evidence in the record suggesting that she could have been.[3] She was not present when the drug deal went bad, nor did she encourage others to shoot a drug buyer who failed to make good on a drug sale. For that matter, even if the drug sale itself is considered a lesser included offense–a matter we do not decide–there is no evidence she participated in that sale. While she was present at the house when Justin, Whitney, and Appellant left to make the drug sale, there is no testimony that she solicited, encouraged, directed, or aided in the drug sale. She knew Whitney, Justin and Appellant were going to sell the drugs, but she denied any involvement in the drug business. A person does not become an accomplice because they know that a crime is being committed. Druery, 225 S.W.3d at 498. There must be an affirmative act in furtherance of that crime. Id.Nor do her later efforts to cover up the murder make her an accomplice. An instructive decision from the Texas Court of Criminal Appeals highlights the point. In Druery v. State, the defendant was convicted of murdering the decedent at a remote ranch site by shooting him. 225 S.W.3d at 496. Two other persons accompanied the defendant and the decedent to the ranch, and testified to the facts of the shooting. Id. The defendant complained that the jury was not given an accomplice witness instruction for these two persons. Id. at 497. The court began by defining an accomplice: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. To be considered an accomplice witness, the witness’s participation with the defendant must have involved some affirmative act that promotes the commission of the offense with which the defendant is charged. A witness is not an accomplice witness merely because he or she knew of the offense and did not disclose it, or even if he or she concealed it. In addition, the witness’s mere presence at the scene of the crime does not render that witness an accomplice witness. And complicity with an accused in the commission of another offense apart from the charged offense does not make that witness’s testimony that of an accomplice witness. 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.Id. at 498 (footnotes omitted). The defendant in Druery contended in part that the two witnesses were accomplices because one assisted in the disposal of the body and the gun after the murder, and both were paid a sum of money out the cash stolen from the decedent. Id. at 499. The court rejected that argument because “none of these acts rise to the level of an affirmative act to assist in the commission of the capital murder or a lesser-included offense of the capital murder.” Id. at 499-500. The court noted that it had previously held that “merely assisting after the fact in the disposal of a body does not transform a witness into an accomplice witness in a prosecution for murder.” Id., citingParedes v. State, 129 S.W.3d 530, 537 (Tex.Crim.App. 2004); see also Easter v. State, 536 S.W.2d 223, 225 (Tex.Crim.App. 1976)(“A witness is not deemed an accomplice witness because he or she knew of the crime but failed to disclose it or even concealed it.”). Tamilyn might have committed a different offense for tampering with evidence. See TEX.PENAL Code Ann. § 37.09 (West 2016)(tampering with or fabricating physical evidence). But that offense is a distinct crime, and not a lesser included charge under Appellant’s indictment.In Any Event, Error Would be HarmlessAnd even were there error in the charge, Appellant cannot clear the hurdle for harm which we are obligated to consider. We reverse only if there is “some” harm from the error. Herron v. State, 86 S.W.3d 621, 633-34 (Tex.Crim.App. 2002). To perform the error analysis in this context, we eliminate Tamilyn’s evidence from the record and determine whether the remaining inculpatory evidence tends to connect the Appellant to the offense. See Malone v. State, 253 S.W.3d 253, 257 (Tex.Crim.App. 2008); Herron, 86 S.W.3d at 633-34; Coutta, 385 S.W.3d at 657. This other evidence may be direct or circumstantial. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App. 1993). The corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt. Malone, 253 S.W.3d at 257. Instead, it needs only to link the defendant in some way to the commission of the crime. Id. Ultimately, the harm demonstrated must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174.The claimed harm here falls short of that standard. The strongest evidence facing Appellant was from the accomplice present at the shooting–Whitney O’Brian. She testified to Appellant’s drug business, his presence and participation in the drug sale, and circumstances which strongly implicated him as the actual shooter. other physical evidence, such as the ricochet indention on the Suburban door frame, and chemicals consistent with gun powder residue, buttressed her version of the events.[4] Appellant was found in possession of the Suburban following the shooting, and neighbor testimony describe a similar vehicle racing away from the crime scene.Three witnesses testified to the post murder cover-up: Whitney O’Brian, Tamilyn Love, and Daphnee Selser. Appellant complains only about the absence of an accomplice witness instruction for Tamilyn. Even were we to ignore her testimony, the jury still had Whitney and Selser’s testimony, and the evidence which tended to corroborate their detailed description of the cover-up (the hairstylist who verified Appellant cut his hair that day, the Walmart film footage of Appellant buying a phone, and the paint spots found in accordance with how the gun was disposed). Even excluding Tamilyn’s testimony, the jury would have had before it (1) an eyewitness account implicating Appellant as the shooter, (2) two other witnesses attesting to his cover-up, (3) disinterested witnesses and physical evidence corroborating the cover-up; (4) testimony and physical evidence tying a vehicle found in Appellant’s possession to the shooting; (5) Appellant’s inculpatory text messages to Hayden two days after the murder, and (6) Appellant’s efforts to cajole a witness into providing him a false alibi.[5] This confluence of evidence renders questions about Tamilyn’s testimony, even it might have been disbelieved, harmless. Cf. Medina v. State, 7 S.W.3d 633 (Tex.Crim.App. 1999)(similarly finding other evidence negated some harm standard). We overrule Appellant’s sole issue and affirm the judgment of conviction below.April 25, 2018ANN CRAWFORD McCLURE, Chief JusticeBefore McClure, C.J., Rodriguez, and Palafox, JJ.(Do Not Publish)
