James K. Ahia, III v. State

Affirmed and Memorandum Opinion filed June 2, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00103-CR

James K. Ahia, III, Appellant

v.

The State of Texas, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1247557

MEMORANDUM OPINION

Appellant James K. Ahia, III appeals his conviction for murder, claiming the trial court erred in failing to instruct the jury on the law of accomplice-witness testimony.  We affirm.

Factual and Procedural Background

Appellant was charged by indictment with the offense of murder.  He pleaded “not guilty.”

At trial, investigators testified that they located the body of the complainant near a parking lot of the place where appellant formerly worked.  In the investigation, officers interviewed appellant, who lived in the same house as the complainant and the complainant’s ex-wife.  There had been a sexual relationship between appellant and the complainant’s ex-wife. When investigators questioned appellant, he claimed to have been visiting with a friend, James Baker, in Van, Texas, at the time of the complainant’s death. Investigators contacted Baker, who corroborated appellant’s statement.  But, cell phone records reflected that appellant was in the Houston area at the time he claimed to have been out of town.  When investigators interviewed Baker a second time, Baker implicated appellant in the complainant’s death. 

Baker testified at trial that he and appellant knew each other from having previously worked together.  In August 2008, the two reconnected through email and phone conversations.  According to Baker, appellant was about to take a job outside of the country and wanted to get together for one last “blowout” before he left.  Appellant arranged to meet Baker in Van, Texas.  During the visit, appellant showed Baker an assault rifle and a “zip gun.”[1] Baker cleaned the rifle and filed the zip gun.  Baker believed that the men were going to “play” with the firearms and shoot them; he did not believe that appellant intended to use them as weapons.

Baker testified that when they departed, he believed that they were going to a gentlemen’s club in Dallas, but that he later learned that appellant was driving them to Houston.  Appellant stopped to purchase ammunition for the firearms at a store in Tyler, Texas, and paid cash.  Baker advised appellant about the type of ammunition to purchase for “home defense,” but believed the men were headed to a nearby indoor shooting range in Tyler. Appellant indicated he needed to “meet somebody” in Houston by 6:00 p.m. During the trip, appellant told Baker that he needed to protect his family from an “Asian gang banger” who had broken into his home.  Appellant conducted several phone conversations with a female that appellant referred to as his wife.

Baker stated that the men arrived in Houston at a store parking lot, but the person they were meeting was not there.  The men drove in the area for a couple of hours; during this interval, appellant spoke many times on the phone to the female, inquiring about an unnamed person’s location.  Eventually, appellant selected an industrial area as a meeting place, indicating to Baker that the location was suitable and “out of the way.” Appellant made a call from a pay phone at a nearby gas station, and then the two returned to the industrial area.  Baker recalled that appellant donned gloves, selected the zip gun and ammunition, indicating that he planned to use it for protection in case “things went wrong.”  Appellant then left Baker in the vehicle.  Baker did not witness the complainant’s death.

Baker recalled that appellant returned to the vehicle fifteen or twenty minutes later, running rapidly, and he was bespeckled in blood.  When Baker inquired what happened, appellant explained that he had to defend himself because the person he met threatened him with a knife.  Baker was seated in the driver’s seat, and Baker drove appellant to retrieve a ball cap that he had left at the scene.  Baker saw a motionless body lying nearby. 

Baker testified that he drove the vehicle away from the scene.  Appellant spoke on the phone with the same female and said, “It is done.”  During the drive, appellant produced a black wallet, and put some money from the wallet in his pocket.  Baker noted the odor of the zip gun, which smelled as if it had been fired recently.  Baker feared that appellant might hurt him with the zip gun, so he advised appellant to discard the firearm, and appellant did so.  The men stopped at a rest area where appellant changed clothes and discarded the bloodied clothing and wallet.  The men arrived in Dallas, where appellant purchased gasoline with a credit card, indicating the need to secure an alibi.  At some point, appellant instructed Baker to tell authorities that the men were at a gentlemen’s club.  The men returned to Baker’s home in Van, and appellant showered and left.

Appellant testified that he intended to meet the complainant to discuss the complainant’s unusual behavior.  Appellant claimed that the complainant threatened him with a knife and a struggle ensued inside the complainant’s vehicle.  Appellant testified that he fled the vehicle, and the complainant attempted to run him over with a vehicle.  Appellant claimed that he had no intention of killing the complainant and that the complainant was attempting to kill him.

After the parties rested, appellant did not request an instruction in the jury charge addressing accomplice-witness testimony.  The jury found appellant guilty as charged and assessed appellant’s punishment at confinement for life.

In a single issue, appellant claims the trial court erred in failing to sua sponte instruct the jury on the law of accomplice-witness testimony.  According to appellant, Baker’s testimony clearly shows he was an active participant in the commission of the charged offense because he assisted appellant before, during, and after the offense.

Analysis

Appellant did not request a jury instruction on accomplice-witness testimony and did not object to the instructions given to the jury.  When reviewing allegations of jury charge error, a reviewing court first must determine whether error exists.  Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).  If error is found, the court determines whether the error caused sufficient harm to warrant reversal.  Id.  The degree of harm required for reversal depends on whether the error was preserved.  Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).  When, as in this case, no proper objection was made, the error requires reversal only if it is so egregious and created such harm that the accused has not had a fair and impartial trial.  See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). 

Article 38.14 of the Texas Code of Criminal Procedure, entitled “Testimony of Accomplice,” provides, “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); see Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).  This rule, commonly known as the “accomplice witness rule,” creates a statutorily imposed review that is not derived from federal or state constitutional principles defining standards for reviewing the sufficiency of the evidence.  Druery, 225 S.W.3d at 498. 

An “accomplice witness” is one who participates with another before, during, or after the commission of a crime and acts with the culpable mental state.[2] Id.  One’s mere presence at the scene of a crime does not make the person an accomplice witness.  Id.  To be considered an accomplice witness, one’s participation with the accused must have involved an affirmative act that promotes the commission of the offense with which the accused is charged.  Id.  One is not an accomplice to an offense by one’s mere knowledge of the offense and the failure to disclose that knowledge or by attempting to conceal the offense.  Id.  Complicity with the accused in the commission of another offense separate from the charged offense does not make that person an accomplice.  Id.; see also Creel v. State, 754 S.W.2d 205, 213 (Tex. Crim. App. 1988).  If the witness cannot be prosecuted for the offense with which the accused is charged, or a lesser-included offense of that charge, then that person is not an accomplice witness as a matter of law.  Druery, 225 S.W.3d at 498.

A trial judge has the sua sponte duty to instruct the jury on the “law applicable to the case.”  See Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008).  If the evidence raises an accomplice-witness issue, then the trial court shall instruct the jury that an accomplice’s testimony must be corroborated by other evidence tending to connect the accused to the crime, regardless of whether the defendant requested the instruction or objected to its omission.  See id. at 180 n.84 (noting that a statutorily required instruction regarding accomplice-witness testimony is “law applicable to the case”).  If the evidence conflicts as to whether a witness was an accomplice, the jury should determine the witness’s status under an instruction defining an “accomplice.”  Druery, 225 S.W.3d at 498–99.  But, there must exist some evidence that the witness affirmatively acted to assist the accused in the commission of the charged offense before an instruction is required.  Id. at 499.  A trial judge is obligated to instruct the jury that a witness is an accomplice witness as a matter of law only when there is no doubt that the witness is an accomplice.  Id. at 498.  Such an instruction is appropriate when the witness is charged with the same offense as the accused or a lesser-included offense or when the evidence clearly shows that the witness could have been so charged.  Id.

Appellant claims that the evidence raised a fact issue that Baker was an active participant in the commission of the charged offense.  Appellant also asserts the evidence is unclear or conflicts with respect to Baker’s intent to commit the offense.  Despite appellant’s contentions, Baker is not an accomplice as a matter of law or as a matter of fact.  See Druery, 225 S.W.3d at 499.  Baker was not indicted for the offense of murder or a lesser-included offense of murder, and the evidence does not show that Baker could have been so charged.  See id.  The record reflects that Baker drove with appellant to Houston.  At some point during the drive, Baker found out that appellant was meeting someone in Houston at a specific time that evening.  Even as appellant exited the vehicle, appellant had explained to Baker that the firearms were intended to be used for protection in the event that things went wrong.  Baker did not witness the complainant’s death.  Based on what appellant told Baker upon returning to the vehicle, the complainant had threatened appellant with a knife.  After driving closer to the complainant’s body to retrieve evidence, Baker drove the men away from the scene.  Baker was aware that appellant had discarded the zip gun and bloodied clothing on the drive back to Van.

Appellant points to Baker’s testimony that he engaged in numerous affirmative acts including the following: cleaning appellant’s firearm, advising and assisting appellant in selecting the types of ammunition for the firearm and zip gun, demonstrating how to fire the zip gun, driving appellant to meet the complainant with the knowledge that appellant planned to confront the complainant, driving appellant to the complainant’s dead body to remove evidence, driving appellant away from the crime scene, advising appellant to discard the firearm, and supplying to investigators an alibi that appellant contrived.  But none of these acts rise to the level of an affirmative act to assist in the commission of murder or a lesser-included offense of murder.  See id. (concluding witnesses were not accomplices even though witnesses drove an accused to meet the decedent, heard the accused say that he intended to kill the decedent, were present prior to and during the murder, accepted money taken from the decedent after he was shot, and assisted in the disposal of the body and the firearm after the offense).  Although Baker might have suspected that foul play might occur when the men arrived at the scene, there is no evidence suggesting that he assisted in the preparation for or planning of the complainant’s death.  See Paredes v. State, 129 S.W.3d 530, 537 (Tex. Crim. App. 2004).  Furthermore, appellant testified that he acted in self-defense and planned only to confront the complainant about unusual behavior.  The record contains no evidence that Baker had the requisite culpable mental state for murder. 

There is no evidence that Baker was involved in any way in the planning of or preparation for the complainant’s murder.  See id. Because the evidence does not support a conclusion that Baker was an accomplice as a matter of law or a matter of fact, appellant was not entitled to an instruction on the law of accomplice witnesses.  See id.  Accordingly, the trial court did not err in failing to instruct the jury.  We overrule appellant’s sole issue on appeal.

The trial court’s judgment is affirmed.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Frost and Christopher.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] According to the record, a “zip gun” is a homemade firearm in which bullets or cartridges are placed into a pipe.

[2] A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

Tex. Penal Code Ann. § 7.02 (West 2003).