Timothy James Mays v. State ( 2017 )


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  •                     In The
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    No. 06-16-00072-CR
    TIMOTHY JAMES MAYS, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the County Court at Law No. 1
    Hunt County, Texas
    Trial Court No. CR1500926
    Before Morriss, C.J., Moseley and Burgess, JJ.
    Memorandum Opinion by Chief Justice Morriss
    MEMORANDUM OPINION
    Hank Allison was mowing his lawn in Commerce, Texas, on a riding lawnmower when he
    noticed Timothy James Mays and others, including Kiland Cash and Jordan Patrick, gathered near
    Mays’ truck not far from Allison. Minutes later, while he was still mowing but had his back turned
    to the nearby gathering, Allison experienced a sharp pain in his back that drew blood. At Mays’
    subsequent Hunt County jury trial on the charge of assault causing bodily injury, Cash and Patrick
    both testified that Mays had shot Allison with a BB gun. Cash and Patrick were the only witnesses
    who testified to that key fact. Appealing from his conviction, Mays claims that the trial court
    erroneously refused to give the jury an accomplice-witness instruction and that the evidence is
    legally insufficient to support Mays’ conviction1 because it rested on the uncorroborated
    accomplice-witness testimony of Cash and Patrick.
    We affirm the judgment of the trial court because (1) there is no evidence that Cash and
    Patrick were accomplices and (2) sufficient evidence supported Mays’ conviction.
    (1)     There Is No Evidence that Cash and Patrick Were Accomplices
    Mays argues that he was entitled to an accomplice-witness instruction in the jury charge
    on the basis that the evidence at least raised a fact question of whether Cash and Patrick were
    accomplices to Mays’ offense.
    Mays claims that the jury could have found Cash and Patrick to have been accomplices to
    Mays’ shooting on the strength of these facts: (a) that there were inaccuracies in Cash’s and
    1
    The jury assessed Mays’ punishment at two years’ community supervision and a $2,000.00 fine, and the trial court
    sentenced him accordingly.
    2
    Patrick’s accounts of the events surrounding the shooting, (b) that their testimony is untrustworthy
    and inconsistent, (c) that they fled the scene of the incident, (d) that they failed to disclose the
    location of the BB gun to Samantha Manrique, the City of Commerce police officer on the scene,
    (e) that the passage of time between the shooting and Manrique’s apprehension of Cash and Patrick
    gave the two an opportunity to fabricate and corroborate their stories, (f) that they participated
    with Mays in laughing and “carrying on” immediately after the shooting, (g) that they refused to
    admit to laughing, and (h) that they saw the weapon in Mays’ truck and possession before the
    shooting. We disagree that such evidence, independently or collectively, could support a finding
    that Cash and Patrick were accomplices to the shooting.
    No person shall be convicted based on an accomplice’s testimony, unless that testimony is
    corroborated by other, non-accomplice evidence that tends to connect the accused to the offense.
    TEX. CODE CRIM. PROC. ANN. art 38.14 (West 2005). “An accomplice is someone who participates
    with [a] defendant before, during, or after the commission of the crime and acts with the required
    culpable mental state.” Druery v. State, 
    225 S.W.3d 491
    , 498 (Tex. Crim. App. 2007); Kunkle v.
    State, 
    771 S.W.2d 435
    , 439 (Tex. Crim. App. 1986); Hill v. State, 
    451 S.W.3d 392
    , 396 (Tex.
    App.—Houston [1st Dist.] 2014, no pet.). To be an accomplice, one must have participated in
    some affirmative act that promotes the commission of the offense charged to the defendant.
    
    Druery, 225 S.W.3d at 498
    . Here, there is no evidence that either Cash or Patrick engaged in any
    affirmative act that promoted the commission of the offense. Instead, the evidence indicates only
    that both were present at the time Mays fired the BB gun. Mere presence at the crime scene does
    not make anyone an accomplice. 
    Kunkle, 771 S.W.2d at 439
    . “[A] witness is not deemed an
    3
    accomplice witness because he [or she] knew of the crime but failed to disclose it or even
    concealed it.” Gamez v. State, 
    737 S.W.2d 315
    , 322 (Tex. Crim. App. 1987).
    While Cash’s and Patrick’s testimony may have been subject to disbelief, credibility and
    weight of the evidence are the sole province of the jury. See Brooks v. State, 
    323 S.W.3d 893
    , 899
    (Tex. Crim. App. 2010) (plurality op.); Ross v. State, No. 06-15-00179-CR, 
    2016 WL 6995031
    , at
    *8 (Tex. App.—Texarkana Nov. 30, 2016, no pet. h.). That Cash and Patrick might have been
    subject to suspicion is not evidence that they were accomplices. See 
    Druery, 225 S.W.3d at 498
    ;
    
    Kunkle, 771 S.W.2d at 439
    ; 
    Gamez, 737 S.W.2d at 322
    . There is no evidence that suggests that
    they were accomplices to the shooting.
    Unless the evidence shows that a witness is an accomplice, a trial court need not instruct
    the jury on the accomplice-witness rule. Smith v. State, 
    332 S.W.3d 425
    , 440 (Tex. Crim. App.
    2011). There was no error in the lack of an accomplice-witness instruction.
    We overrule this issue.
    (2)    Sufficient Evidence Supported Mays’ Conviction
    Mays also asserts that the evidence is legally insufficient to support his conviction, given
    that the only direct evidence that he shot Allison with the BB gun came from Cash and Patrick,
    individuals Mays claims were accomplices. We have already explained above why Cash and
    Patrick were not Mays’ accomplices according to the evidence adduced at trial.
    Because Cash and Patrick were not accomplices to the shooting, their testimony need not
    be corroborated. Their testimony was entitled to be considered by the jury.
    There was legally sufficient evidence to support Mays’ conviction.
    4
    We affirm the trial court’s judgment.
    Josh R. Morriss, III
    Chief Justice
    Date Submitted:      January 9, 2017
    Date Decided:        January 25, 2017
    Do Not Publish
    5
    

Document Info

Docket Number: 06-16-00072-CR

Filed Date: 1/25/2017

Precedential Status: Precedential

Modified Date: 1/30/2017