Mark Bethel v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-21-00297-CR
MARK BETHEL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2021-423232, Honorable Douglas H. Freitag, Presiding
March 8, 2023
OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
A jury found Appellant, Mark Bethel, guilty of capital murder by murdering more
than one person pursuant to the same scheme or course of conduct. 1 Appellant was
sentenced to life imprisonment without parole. In this appeal, Appellant raises issues
relating to jury charge error, sufficiency of the evidence, comments on the weight of the
evidence, and cautionary instructions. We affirm the judgment of the trial court.
1 See TEX. PENAL CODE ANN. § 19.03(a)(7)(B).
BACKGROUND
In the summer of 2015, Appellant moved into a house at Buffalo Springs Lake,
near Lubbock. Not long after, Appellant’s cousin, David Bethel, along with his girlfriend,
Kristina Theony, came to live in the home. Appellant soon began dating Jessica Payton,
who also moved in with him. Around September of 2015, David 2 and Theony moved into
a mobile home near 86th Street and Ash Avenue in Lubbock.
One early morning in October of 2015, Appellant woke to find Payton gone. He
discovered that Payton had taken some of his money and was having an affair with a man
named Shawn Summers. On October 25, Appellant sent numerous text messages to
Payton expressing anger at her actions, telling Payton he had loved and trusted her, but
that he now hated her. On Monday, October 26, Appellant told one of his neighbors that
Payton had left him and taken some of his things. The neighbor testified that Appellant
looked hurt and brokenhearted. He and his wife took a meal to Appellant later that day.
Appellant, David, and Theony were all at Appellant’s house. When the neighbor went
inside the house, David showed him his 9mm Ruger pistol.
Sometime in the week before Halloween, David and Theony hosted a cookout,
attended by Appellant, his sister, and his teenaged niece, at their mobile home.
Appellant’s niece noticed that Appellant seemed upset rather than his usual lighthearted
self. She heard David tell Appellant, “We’ll get them back,” which she understood was
an effort to lighten Appellant’s mood.
Because Appellant and David Bethel share a last name, we will refer to David Bethel by his first
2
name only to avoid confusion.
2
Theony testified that, in this same time period, she heard Appellant and David
discuss trying to find Payton. She also heard Appellant say, “I want to kill that b****.”
David responded that if Appellant did not do it, he would do it himself.
Appellant and Payton reconnected on October 26. Summers and his sister saw
the couple driving into Buffalo Springs Lake on the neighborhood’s sole road. On
Tuesday, October 27, Appellant texted Payton again, stating that he loved her and that it
was good to see her. He told her he would see her the following day. On October 28, he
sent her a text saying, “I will be there at lunch time.” Appellant clocked out of work at
12:20, picked up Payton, and drove to Buffalo Springs Lake. Payton’s cell phone pinged
off a cell tower at Buffalo Springs Lake at 1:02 p.m. Her cell phone had no more outbound
activity after October 28.
That same day, a neighbor heard a man’s voice coming from Appellant’s house
yell, “Shut up.” The yelling was followed by four pops “like a pistol gunfire.” 3 The neighbor
saw the curtain on Appellant’s patio door move back, then saw a man look to the left and
the right. Within 15 to 30 minutes, the neighbor saw Appellant’s truck drive away from
the house. Appellant made a phone call to David at 1:20 p.m. and clocked back in to
work at 1:37. Several hours after hearing the gunfire, the neighbor called the chief of
police at Buffalo Springs Lake to report the incident. Around 5:00 or 5:30 that evening,
the neighbor saw Appellant’s truck, along with David’s truck, back at the house.
3 The neighbor testified that he did not know the exact time he heard the gunshots. He initially told
the police he thought it was around 2:00 or 2:30.
3
On Saturday, October 31, David and Theony went to Appellant’s house. Theony
noticed that the living room carpet was gone and the house had an unusual chemical
smell. Theony testified that Appellant and David had had discussions about “taking care
of” Summers, but they seemed more serious about it on Halloween. She said they wanted
to “get him” for cheating with Payton. Theony had indicated to David that she did not
want to participate in anything happening to Summers, but that afternoon David held
Theony against the wall in Appellant’s kitchen, pressed his gun to her head, and told her
to get Summers to a place where David could “get him.” David told her that she would
do it or else she would end up “with that b**** in the lake.”
That afternoon, Theony began sending text messages to Summers. Theony told
him that she and David had broken up and that she wanted to hang out with Summers.
As their message exchange progressed, Theony promised Summers sexual activity if he
would meet up with her that night. He agreed to meet her at 86th and Ash. Around 9:00
that night, Summers arrived at the location, where David was waiting. While Summers
was still in his vehicle, David shot him with his 9mm Ruger pistol. At 9:20 p.m., Summers
made a 9-1-1 call to report that he had just been shot. Shortly thereafter, David entered
Summers’ vehicle, pushed Summers into the passenger seat, and drove the vehicle to a
field off east 19th Street. David shot Summers again before pouring gasoline onto him
and lighting the vehicle on fire. Cell phone records indicated that Appellant picked David
up and drove him home. 4 David and Theony quickly left Lubbock, traveling to Oklahoma,
then Missouri, then Arizona, where they were arrested. David confessed to murdering
4 David told investigators that he walked to a hotel after starting the fire, then called Theony to pick
him up.
4
Summers but did not implicate Appellant in the crime. When called as a witness at
Appellant’s trial, David refused to answer any questions.
On November 1, 2015, a passerby saw a body, wrapped in a comforter, beneath
the spillway at Buffalo Springs Lake. Rescue crews recovered the body, which was
weighted down with a chain and cinder blocks. It was Payton. She had been shot four
times in the head. The comforter matched pillow shams found in Appellant’s home. Paint
chips on the cinder blocks matched paint chips found in David’s vehicle. Payton’s blood
was found in Appellant’s home and on a floor mat from the bed of Appellant’s vehicle.
Two of Payton’s gold rings were found in Appellant’s vehicle.
Appellant was indicted on June 15, 2021, by the grand jury of Lubbock County for
the offense of capital murder. After a two-week trial, at which more than 30 witnesses
testified, the jury found Appellant guilty.
ANALYSIS
Issue 1: Failure to Include Definitions in Jury Charge
In his first issue, Appellant asserts that the trial court’s charge was too vague with
respect to the meaning of the words and phrases used to elevate the offense of murder
to capital murder. We review alleged jury charge error in a two-step process. Kirsch v.
State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we determine whether the
charge contains error. Id. If the charge is erroneous, we then analyze the error for harm.
Id. If the defendant timely objected to the jury instructions, reversal is required if there
was some harm to the defendant. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim.
App. 2016) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)). If the
5
defendant did not timely object to the jury instructions, “reversal is required only if the
error was so egregious and created such harm that the defendant did not have a fair and
impartial trial.” Id.Here, the charge stated that “[a] person commits the offense of capital murder if
the person murders more than one person during different criminal transactions but the
murders are committed pursuant to the same scheme or course of conduct.” It further
instructed the jury that, if it found beyond a reasonable doubt that Appellant intentionally
or knowingly caused the death of Payton and intentionally or knowingly caused the death
of Summers, “and both murders were committed pursuant to the same scheme or course
of conduct, but during different criminal transactions,” then it would find Appellant guilty
of the offense of capital murder. At the charge conference, Appellant’s trial counsel
objected that the phrase “same scheme or course of action” was “too vague.” Counsel
acknowledged that the language in the charge tracked the statute 5 and that there was no
definition for the phrase in the Penal Code. Counsel did not offer a proposed definition.
The trial court overruled his objection. On appeal, Appellant contends that, without further
definition, jurors had no guidance by which to distinguish “one from more than one
criminal transaction.”
The trial judge is required to give the jury a written charge setting forth the law
applicable to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14. Statutorily defined terms
constitute law applicable to the case and must be included in the court’s charge. Celis v.
5 The jury charge, like the indictment, tracks the language of section 19.03(a)(7)(B) of the Texas
Penal Code, which elevates the offense of murder to capital murder based on two murders committed
“during different criminal transactions but [when] the murders are committed pursuant to the same scheme
or course of conduct.” TEX. PENAL CODE. ANN. § 19.03(a)(7)(B).
6
State, 416 S.W.3d 419, 433 (Tex. Crim. App. 2013). However, it is generally
impermissible for the trial court to define terms in the jury charge that are not statutorily
defined, as such terms are not considered to be the “applicable law” under article 36.14.
Green v. State, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015). Statutorily undefined terms
generally should be “read in context and construed according to the rules of grammar and
common usage.” TEX. GOV’T CODE ANN. § 311.011(a). Jurors “may ‘freely read
[undefined] statutory language to have any meaning which is acceptable in common
parlance.’” Kirsch, 357 S.W.3d at 650 (quoting Denton v. State, 911 S.W.2d 388, 390
(Tex. Crim. App. 1995)). But “terms which have a known and established legal meaning,
or which have acquired a peculiar and appropriate meaning in the law, as where the words
used have a well-known common law meaning,” are to be considered as being used in
their technical sense. Id. (quoting Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App.
2000)).
“Same scheme or course of conduct” is not defined in the Penal Code. Nor is
“criminal transaction.” 6 Because the terms are not statutorily defined, the trial court was
correct to decline to define the terms in the jury charge unless the terms have acquired
an established legal or technical meaning that differs from the meanings accepted in
common parlance. See Green, 476 S.W.3d at 445. Appellant has not cited any authority
establishing that “same scheme or course of action” or “criminal transaction” has a
technical or legal meaning that differs from common usage, nor has he provided guidance
6 Appellant also suggests that the trial court should have defined the phrase “criminal transaction.”
Because Appellant’s trial objection did not address the lack of a definition for “criminal transaction,” we may
not reverse for this alleged jury charge error unless the record shows “egregious harm.” See Ngo v. State,
175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (en banc).
7
on what the proper definition of these terms should be. Instead, he submits that the trial
court was obliged to draw from the language of various Texas cases “to clarify, to the
extent possible, the meaning of the parts of the charge here at issue.”
Because these terms are not statutorily defined and Appellant has directed this
Court to no authority establishing that these terms have acquired a special legal or
technical meaning, we conclude that the trial court did not err by failing to define either
term in the jury charge. The jury was properly allowed to assign the terms any meaning
ascribed in common parlance. See Kirsch, 357 S.W.3d at 650. Having concluded that
the trial court did not err in not defining “same scheme or course of conduct” or “criminal
transaction,” we need not conduct a harm analysis. Id. at 649. We overrule Appellant’s
first issue.
To the extent that Appellant’s first issue is intended to encompass a claim that
section 19.03(a)(7)(B) of the Penal Code is unconstitutional as applied to him, such a
claim cannot be raised for the first time on appeal. See, e.g., Reynolds v. State, 423
S.W.3d 377, 383 (Tex. Crim. App. 2014) (“‘As applied’ constitutional claims are subject
to the preservation requirement and therefore must be objected to at the trial court in
order to preserve error.”). Although Appellant objected that the phrase “same scheme or
course of action” was “too vague,” he did not raise an objection on constitutional grounds,
as required to preserve an as-applied challenge. See TEX. R. APP. P. 33.1(a) (general
rule for preservation of error); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995)
(“specific, timely objection” at trial required to preserve as-applied constitutional
challenge). Therefore, we reject Appellant’s attack on the constitutionality of the statute.
8
Issue 2: Sufficiency of the Evidence
In his second issue, Appellant challenges the sufficiency of the evidence to
establish that the killings were committed pursuant to the same scheme or course of
conduct, but during different criminal transactions. Appellant argues that the two murders
were part of a single criminal transaction.
When assessing the sufficiency of the evidence to support a criminal conviction,
we consider all the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and reasonable inferences to be drawn therefrom, a
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed.
2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The
sufficiency of the evidence should be measured by the elements of the offense as defined
by the hypothetically correct jury charge for the case. See Hardy v. State, 281 S.W.3d
414, 421 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 239–40 (Tex. Crim.
App. 1997).
As discussed above, the legislature did not define either “criminal transaction” or
“same scheme or course of conduct” as used in the capital murder statute, and the trial
court did not provide a definition in the charge. The Texas Court of Criminal Appeals has
explained that the difference between murders that occur “during the same criminal
transaction” and murders that occur “pursuant to the same scheme or course of conduct”
is “the degree of ‘the continuity of the killing.’” Coble v. State, 871 S.W.2d 192, 198 (Tex.
Crim. App. 1993) (en banc) (quoting Rios v. State, 846 S.W.2d 310, 314 (Tex. Crim. App.
1992)). In Coble, the court determined that murders occurred “during the same criminal
9
transaction” when they “occurred in close proximity to each other, on the same road,
within a few hours of each other, in a continuous and uninterrupted series of events.” Id.at 198–99; see also Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App. 1992) (en
banc) (murders occur during same criminal transaction when evidence shows “a
continuous and uninterrupted chain of conduct occurring over a very short period of time
. . . in a rapid sequence of unbroken events.”). In contrast, murders occur “pursuant to
the same scheme or course of conduct” when the evidence shows a break in conduct but
an “over-arching objective or motive . . . .” Feldman v. State, 71 S.W.3d 738, 754 (Tex.
Crim. App. 2002).
The question before us is whether a jury could rationally conclude that Appellant
committed the murders during different “criminal transactions,” but pursuant to the “same
scheme or course of conduct.” Viewed in the light most favorable to the jury’s verdict, the
evidence supports the jury’s conclusion that the two murders were so committed. The
evidence adduced at trial established a temporal and geographic break between the
murder of Payton and the murder of Summers. There was evidence showing that Payton
was shot in the head four times on Wednesday, October 28, 2015, at Appellant’s home,
while Appellant was on his lunch break. Appellant returned to work and worked regular
hours for the remainder of the week. Payton’s body, wrapped in a comforter and weighted
down with chains and cinder blocks, was recovered from the lake on November 1.
Summers was killed on Saturday, October 31, in Lubbock. He was shot and driven to a
field, where he and his vehicle were doused with gasoline and set on fire. His body, still
inside the burning vehicle, was discovered that night. These separate locales, along with
the lapse of a few days between the murders, provide a break in the continuity of the
10
killings. Thus, the jury could rationally conclude that the two murders were not committed
as part of a single criminal transaction. See, e. g., Burkett v. State, 172 S.W.3d 250, 254
(Tex. App.—Beaumont 2005, pet. ref’d) (where evidence established temporal and
geographic discontinuity between murder of woman in her home and murder of her son
and his friend hours later in wooded area, evidence was legally sufficient to support
conclusion that murders were committed in different criminal transactions).
Further, the evidence supports the jury’s conclusion that the murders were
committed pursuant to a common scheme or course of conduct. The evidence showed
that the over-arching objective for the killings was Appellant’s desire to get revenge
because Payton had been having an affair with Summers. The same motivating reason
was behind both murders. See id. (three murders were committed pursuant to same
scheme or course of conduct when committed in course of stealing family’s vehicles).
We conclude that a rational trier of fact could have found, beyond a reasonable
doubt, that the murders were not part of a single criminal transaction but were committed
pursuant to the same scheme or course of conduct. We overrule Appellant’s second
issue.
Issue 3: Accomplice Witness Instruction Regarding David Bethel
In his third issue, Appellant contends that the trial judge undermined the
presumption of innocence and improperly commented on the weight of the evidence by
including a sentence in the court’s charge reading, “David Bethel a/k/a Dave Bethel is an
accomplice to the crime of murder, if it was committed, a lesser included offense of the
crime charged in the indictment.” The following sentence reads, “The defendant, Mark
11
Bethel, therefore cannot be convicted on the testimony of David Bethel a/k/a Dave Bethel
unless the testimony is corroborated.”
“One who participates with the defendant before, during, or after the commission
of the crime and acts with the required culpable mental state for the crime is an
accomplice.” Patterson v. State, 606 S.W.3d 3, 29 (Tex. App.—Corpus Christi-Edinburg)
(citing Ash v. State, 533 S.W.3d 878, 884 (Tex. Crim. App. 2017)). An accomplice witness
instruction requires a jury to find that the testimony of an accomplice witness was
corroborated before it can rely on that testimony for a conviction. TEX. CODE CRIM. PROC.
ANN. art. 38.14 (conviction may not be had upon testimony of an accomplice unless that
testimony is corroborated by other non-accomplice witness evidence tending to connect
defendant to the crime). If a prosecution witness is an accomplice as a matter of law, the
trial court is under a duty to instruct the jury accordingly and the failure to do so is error.
Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002) (en banc).
At trial, David was called as a witness, but he refused to answer any questions.
The trial court held him in contempt of court. The trial court also stated that David had
been granted testimonial immunity and that any testimony he gave in the trial could not
be used against him in any later criminal proceeding. After David was excused, the jury
viewed a videotaped recording of his interview with investigators, pursuant to an
agreement between the State and Appellant’s trial counsel.
Appellant argues that there was no basis to include the accomplice witness
instruction because David never testified and that, by including the instruction, the trial
court effectively instructed the jury that Appellant was a “partner in crime” with David.
Appellant did not object to the inclusion of the instruction at trial. Therefore, “reversal is
12
required only if the error was so egregious and created such harm that the defendant did
not have a fair and impartial trial.” Marshall, 479 S.W.3d at 843.
Assuming without deciding that it was erroneous to include the accomplice witness
instruction regarding David in the jury charge, we will proceed to a harm analysis. We
review the entire jury charge, the state of the evidence, the arguments of counsel, and
any other relevant information in order to determine whether the error was so egregious
that Appellant was denied a fair and impartial trial. Almanza, 686 S.W.2d at 171–74.
A trial court improperly comments on the weight of the evidence if it makes a
statement that implies approval of the State’s argument, indicates disbelief in the
defense’s position, or diminishes the credibility of the defense’s approach to the case.
Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.). The plain purpose
of the accomplice witness instruction is to disallow any conviction based upon
uncorroborated testimony of an accomplice. See TEX. CODE CRIM. PROC. ANN. art. 38.14.
Here, the instruction is qualified and therefore not a comment on the weight of the
evidence. See Easter v. State, 867 S.W.2d 929, 941 (Tex. App.—Waco 1993, pet. ref’d)
(holding that because instruction included phrases “if any were committed” and “if any,” it
was not a comment on the weight of the evidence). Moreover, the instruction is intended
to benefit the accused. See Hareter v. State, 435 S.W.3d 356, 360 (Tex. App.—Amarillo
2014, no pet.) (“We hardly see how an instruction benefiting an accused can, at the same
time, amount to a comment on the weight of the evidence benefiting the State.”).
Even if the instruction was unwarranted, we do not find egregious harm. To the
extent that the instruction focused the jury’s attention on David, it did so with the purpose
of requiring the jury to corroborate David’s testimony. See Druery v. State, 225 S.W.3d
13491, 497–98 (Tex. Crim. App. 2007) (accomplice witness instruction, even if superfluous,
“could only benefit” defendant). There is no indication that Appellant was harmed by an
instruction requiring additional corroborating evidence. We conclude that Appellant was
not denied a fair and impartial trial, and the inclusion of the accomplice witness instruction,
if error, was not reversible error in this case. Appellant’s third issue is overruled.
Issue 4: Caution Regarding Witness Testimony
In the first part of Appellant’s fourth issue, he asserts that the trial court should
have included a cautionary warning about witness bias, prejudice, and interest in its
charge to the jury. Specifically, Appellant contends that he was harmed by the trial court’s
failure to sua sponte instruct the jury that Theony’s testimony needed corroboration or
greater scrutiny and suggests that a direct warning is necessary to alert jurors of the
unreliable nature of “corrupt source” testimony. 7
The court’s charge instructed the jury to determine whether Theony was an
accomplice as a matter of fact and the need for evidence to corroborate her testimony if
it determined that she was. Appellant did not request any further instruction from the trial
court. Although Appellant devotes thirty-odd pages of his brief to a discussion of the
history of felon-witness testimony in the United States, he cites no authority requiring trial
courts to submit the instruction he discusses on appeal. In fact, Appellant acknowledges
that “Texas practice does not include such an instruction on witness bias, prejudice, or
interest in the outcome of the case.”
7 Appellant describes Theony as a “memory-impaired, state-immunized Backpage prostitute . . . a
prosecution-admitted unindicted co-conspirator and long-time Dave Bethel tag-along.”
14
It is axiomatic that a trial judge may not single out certain testimony and comment
on it. Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988). Likewise, the court’s
charge may not suggest that certain evidence is true or untrue or instruct the jury on the
weight to be given certain testimony. Id. (“It has long been held that it is reversible error
for the trial court to give instructions that refer to the credibility of the witnesses.”). As
Appellant acknowledges, Appellant’s desired instruction is at odds with article 36.14 of
the Texas Code of Criminal Procedure, which provides that the court’s charge should not
express any opinion as to the weight of the evidence. See TEX. CODE CRIM. PROC. ANN.
art. 36.14. Therefore, we conclude that the trial court did not err in failing to direct the jury
on how to assess Theony’s testimony and we overrule this issue.
Issue 4A: Accomplice Witness Instruction Regarding Theony
In a subpart of Appellant’s fourth issue, he claims that the trial court erred by
submitting a “maybe” accomplice witness instruction regarding Theony instead of a “for
sure” accomplice witness instruction. The charge read, “You must determine whether
[Theony] is an accomplice to the crime of capital murder, if it was committed, or a lesser
included offense of that crime. If you determine that [Theony] is an accomplice, you must
then also determine whether there is evidence corroborating the testimony of [Theony].”
Appellant made no objection to the paragraph submitted on the accomplice witness issue.
Again, we review alleged jury charge error in a two-step process, first determining
whether the charge contains error and then analyzing the error for harm. Kirsch, 357
S.W.3d at 649. Because Appellant did not object to the instruction he challenges on
appeal, he must show egregious harm to be entitled to reversal. Lozano v. State, 636
S.W.3d 25, 29 (Tex. Crim. App. 2021).
15
A witness can be an accomplice as a matter of law or as a matter of fact. If a
testifying witness is an accomplice as a matter of law, the trial court must instruct the jury
accordingly, but if the evidence is conflicting, the jury must determine whether the witness
is an accomplice as a matter of fact. Biera v. State, 280 S.W.3d 388, 394 (Tex. App.—
Amarillo 2008, pet. ref’d) (citations omitted). Whether a defendant is entitled to an
accomplice witness instruction is a function of the evidence produced at trial. Ash, 533
S.W.3d at 884. 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 the witness with the same or lesser-included offense as the defendant
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 a reasonable juror could only
conclude the witness was an accomplice. Id. Where the evidence presented by the
parties is conflicting and it remains unclear whether the witness is an accomplice, the trial
judge should allow the jury to decide whether the inculpatory witness is an accomplice
witness. Druery, 225 S.W.3d at 498–99.
Theony was not charged with an offense in this case. While there was evidence
showing that she lured Summers to the place where David was lying in wait, there was
also evidence indicating that she did so under duress. Theony testified that David put a
gun to her head and told her to get Summers to a place where David could “get him,” or
else she would end up “with that b**** in the lake.” Theony initially told law enforcement
that she did not expect the confrontation between David and Summers to end in murder,
but rather just a fight or intimidation. However, she later testified that because of “the way
Dave is,” she “could have gathered” that Summers was going to die.
16
For the evidence to raise a witness’s culpability as a party, it must show the witness
acted “with intent to promote or assist the commission of the offense” with which the
defendant is charged. TEX. PENAL CODE ANN. § 7.02(a)(2). This requires a showing that
the witness “harbored the specific intent to promote or assist the commission of the
offense . . . .” Pesina v. State, 949 S.W.2d 374, 382 (Tex. App.—San Antonio 1997, no
pet.). A person acts with intent with respect to the nature of her conduct or to a result of
her conduct when it is her conscious objective or desire to engage in the conduct or cause
the result. See TEX. PENAL CODE ANN. § 6.03(a). Therefore, in order to be an accomplice,
Theony had to have had the conscious desire to promote or assist the commission of the
offense.
The evidence does not conclusively establish that Theony harbored the necessary
mens rea. Further, Theony was not indicted for any offense. Thus, she was not an
accomplice as a matter of law. The trial court did not err in allowing the jury to determine
whether Theony was an accomplice witness as a matter of fact. Druery, 225 S.W.3d at
498–99. Because we conclude there was no error, we need not conduct a harm analysis.
We overrule issue 4A.
Issue 4B: Error in Statement Regarding Corroboration
In the final subpart of Appellant’s fourth issue, he claims that the court’s charge
misstated the law on accomplice testimony, confusing the jury and resulting in an
unreliable verdict. As discussed above, the charge included an unobjected-to accomplice
witness instruction directed at the testimony of David, who refused to testify when called
to the stand. The jury was instructed that Appellant “cannot be convicted on the testimony
of David Bethel a/k/a Dave Bethel unless the testimony is corroborated.” Appellant
17
contends that the instruction in this case likely caused more confusion than clarity,
because it “impugned and discredited all of Dave Bethel’s out of court statement, even
the part that tended to exonerate [Appellant].”
The accomplice witness instruction, derived from article 38.14 of the Texas Code
of Criminal Procedure, “does not apply to out-of-court statements but, rather, live
testimony of an accomplice at trial.” Tidrow v. State, No. 07-19-00396-CR, 2020 Tex.
App. LEXIS 4666, at *4 (Tex. App.—Amarillo June 23, 2020, no pet.) (mem. op.) (not
designated for publication); see also Bingham v. State, 913 S.W.2d 208, 210 (Tex. Crim.
App. 1995) (op. on reh’g) (en banc). Because David did not provide live testimony at trial,
the accomplice witness instruction was unnecessary. 8 Assuming that inclusion of the
superfluous instruction was erroneous, because no objection was raised at trial, reversal
is required only if the error was so egregious and created such harm that Appellant did
not have a fair and impartial trial. Marshall, 479 S.W.3d at 843.
Generally, an accomplice witness instruction regarding David’s testimony would
benefit Appellant by requiring additional corroborating evidence that would not otherwise
be required. Druery, 225 S.W.3d at 497–98. Here, Appellant suggests that the instruction
was harmful because jurors could have understood it to mean that additional
corroborating evidence was necessary for all of David’s out-of-court statement, including
portions that were helpful to Appellant.
8David answered only two questions on the witness stand. Both were directed at him by the trial
court. The first confirmed his understanding that he could be held in contempt if he refused to answer
questions posed by the attorneys, and the second confirmed that it was still his intent to refuse to answer
questions.
18
First, we note that the instruction specifically references David’s testimony, not his
out-of-court statement. Thus, on its face, the instruction does not indicate that David’s
out-of-court statement requires corroboration. Appellant has not directed us to any
evidence in the record that the jury was confused by the instruction, and we presume the
jury followed the trial court’s instructions. See Thrift v. State, 176 S.W.3d 221, 224 (Tex.
Crim. App. 2005).
Second, the language of the instruction concerns only the use of David’s testimony
to convict Appellant. It directs the jury that it “cannot convict [Appellant] on the testimony
of David Bethel a/k/a Dave Bethel” unless there is evidence corroborating David’s
testimony. The instruction does not bear upon the use of David’s testimony to acquit
Appellant. See, e.g., McAfee v. State, 204 S.W.3d 868, 879–80 (Tex. App.—Corpus
Christi 2006, pet. ref’d) (Yanez, J., dissenting) (en banc) (“Courts have acknowledged
that the purpose of the corroboration requirement in article 38.14 is to ensure that a
conviction rests upon more than just the testimony of an accomplice . . . .” ); see also
Ramirez v. State, No. 01-08-00535-CR, 2010 Tex. App. LEXIS 4365, at *24 (Tex. App.—
Houston [1st Dist.] June 10, 2010, pet. ref’d) (mem. op., not designated for publication)
(“[T]he accomplice-witness rule protects the interests of the defendant by requiring the
State to bring additional evidence connecting the defendant with the offense committed.”).
The instruction, even if erroneous, did not usurp the jury’s role “to judge for itself
the credibility of the evidence and the soundness of the arguments presented.” Jester v.
State, 62 S.W.3d 851, 855–56 (Tex. App.—Texarkana 2001, pet. ref’d). Appellant has
not shown, and we cannot conclude, that he suffered egregious harm.
19
Finally, to the extent that Appellant’s issue 4B also encompasses the argument
that the trial court should have provided a cautionary warning about witness bias,
prejudice, and interest with regards to “corrupt source” David’s testimony, we reject
Appellant’s argument. As set forth in our analysis of issue 4, such an instruction is
incompatible with article 36.14’s mandate that the court’s charge should not express any
opinion as to the weight of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 36.14; see
also Russell, 749 S.W.2d at 78 (it is reversible error for trial court to give instructions that
refer to credibility of witnesses). We overrule Appellant’s fourth issue in its entirety.
CONCLUSION
For the reasons stated, we affirm the judgment of the trial court.
Judy C. Parker
Justice
Publish.
20