October 2014 SDR – Voice for the Defense Vol. 43, No. 8

Voice for the Defense Volume 43, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Because the Kentucky Supreme Court’s rejection of D’s Fifth Amendment claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ. White v. Woodall, 134 S. Ct. 1697 (2014).

        D pled guilty to capital murder, capital kidnapping, and first-degree rape. The trial court denied D’s request to instruct the jury not to draw an adverse inference from his decision not to testify at the penalty phase; the jury sentenced D to death. The Kentucky Supreme Court affirmed, finding that the Fifth Amendment’s requirement of a no-adverse-inference instruction to protect a nontestifying defendant at the guilt phase is not required at the penalty phase. The U.S. Supreme Court denied certiorari. However, the federal district court granted D habeas relief, holding that the trial court’s refusal to give the instruction violated D’s privilege against self-incrimination. The Sixth Circuit affirmed. The Supreme Court reversed and remanded.

        Prior judicial decisions did not give D a right to a no-adverse-inference instruction during the penalty phase. Because D admitted to the elements of the case that the prosecution would otherwise have had to prove, there was no inference left for the jury to make. The Court therefore held that the state courts’ rejection of D’s Fifth Amendment claim was not objectively unreasonable and should not have been considered by federal courts.

Restitution to the respondent, who was used to produce child pornography, is proper under 18 U.S.C. § 2259 only to the extent that D, who pleaded guilty to possessing images of child porn, including two images of respondent, was the proximate cause of respondent’s losses; defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. Paroline v. United States, 134 S. Ct. 1710 (2014).

        After D pled guilty to possession of child pornography, the district court denied restitution to a respondent because the government failed to show what losses were proximately caused by D. The Fifth Circuit concluded D was liable for the respondent’s entire losses from the trade of her images. The Supreme Court vacated the Fifth Circuit’s judgment and remanded.

        The issue, which was of conflict among courts, was whether 18 U.S.C.S. § 2259 limited restitution to the losses proximately caused by D’s offense conduct. The Supreme Court concluded that the proximate-cause requirement applied to all the losses described in § 2259. Restitution was therefore proper under § 2259 only to the extent D’s offense proximately caused the respondent’s losses. Where it could be shown both that a defendant possessed a respondent’s images and that a respondent had outstanding losses caused by the continuing traffic in those images, but where it was impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comported with defendant’s relative role in the causal process that underlay respondent’s general losses. On remand, the district court was to assess as best it could the significance of D’s conduct in light of the broader causal process that produced respondent’s losses.

Where D was convicted of fraudulently obtaining a loan and thus owed restitution under 18 U.S.C. § 3663A(b)(1)(B), he was not entitled to have the restitution offset by the date-of-return value of collateral returned to the bank. Robers v. United States, 134 S. Ct. 1854 (2014).

        D was convicted of conspiracy to commit wire fraud after he submitted fraudulent loan applications to two banks; the trial court ordered him to pay restitution to the banks, pur­suant to the Mandatory Victims Restitution Act of 1996, to com­pensate them for losses they sustained when they foreclosed the mortgages. The Seventh Circuit affirmed, and the U.S. Supreme Court affirmed.

        The Court held that 18 U.S.C.S. § 3663A(b)(1) did not track state mortgage law and did not require the trial court to value the banks’ collateral as of the date the banks made the loans, and the trial properly applied § 3663A(b)(1) when it ordered petitioner to pay the banks $220,000. Although losses the banks suffered were due in part to the fact that the value of both houses declined after the banks made the loans, they were proximately caused by petitioner’s criminal behavior. The phrase “any part of the property” in § 3663A(b)(1)(B) refers only to the specific property lost by the victim, which, in the case of a fraudulently obtained loan, is the money lent; therefore, no “part of the property” is “returned” to the victim within the meaning of § 3663A(b)(1)(B) until the collateral is sold and the victim receives money from the sale. Thus, a sentencing court must reduce the restitution by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it.

Fifth Circuit

District court abused its discretion in refusing to dismiss four counts of the indictment on the government’s motion. United States v. Hughes, 726 F.3d 656 (5th Cir. 2013).

        The Fifth Circuit reversed the denial of the government’s motion to dismiss the four counts and rendered a dismissal on those counts. However, D was not entitled on plain-error review to vacatur of his guilty plea for claimed violations of Fed. R. Crim. P. 11 (inadequate factual basis, failure to explain the consequences of the guilty plea, advisement of the incorrect sentencing range, or failure to advise that D would be required to pay a special assessment for each count of conviction). Nor did the district court abuse its discretion in denying D’s motion to withdraw his plea.

Even if it was assumed that the district court erred in not determining whether either party wanted the criminal forfeiture issue submitted to the jury, as required by Fed. R. Crim. P. 32.2(b)(5)(A), D failed to show that the error affected his substantial rights; the Fifth Circuit declined to vacate the forfeiture order. United States v. Valdez, 726 F.3d 684 (5th Cir. 2013).

District court plainly erred in failing to explain D’s sentence; but reversal was not required because D did not show how this affected his substantial rights. United States v. Rouland, 726 F.3d 728 (5th Cir. 2013).

        “[T]he district court’s failure to provide any explanation of reasons supporting Rouland’s sentence amounts to clear error. . . . [T]his error does not constitute reversible plain error because Rouland was sentenced to a within-Guidelines sentence of 30 months and Rouland has failed to demonstrate how a fuller explanation would have altered his sentence.” Furthermore, D’s claim that the written judgment included special conditions of supervised release not pronounced by the court was reviewed only for plain error because these conditions were in a government exhibit admitted with no objection by D; on plain-error review, D did not show an effect on his substantial rights. Finally, the district court did not abuse its discretion in imposing supervised-release conditions relating to mental-health, substance-abuse, and cognitive-behavioral treatment, and a workforce development program; these are effectively standard conditions in the Western District of Texas, and there was evidence supporting imposition of these conditions.

The Fifth Circuit reversed for insufficient evidence D’s convictions for bank fraud in violation of 18 U.S.C. § 1344; the government failed to prove that the victim—the American Express Company—was a “financial institution” in the manner charged, namely, as “a depository institution holding company.” United States v. Davis, 735 F.3d 194 (5th Cir. 2013).

In prosecution of D accused of plan to bomb and shoot service members at Fort Hood, district court did not err in denying D’s motion to suppress; even though D was detained at gunpoint and put in a police car in handcuffs, that was not a full arrest requiring probable cause but a proper investigatory stop supported by reasonable suspicion. United States v. Abdo, 733 F.3d 562 (5th Cir. 2013).

         (2) There was no plain error in convicting D on two counts of possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1), although each count charged possession of the same firearm in furtherance of a different predicate offense. Although the Fifth Circuit has held that “§ 924(c)(1) does not unambiguously authorize multiple convictions for a single use of a single firearm based on multiple predicate offenses,” United States v. Phipps, 319 F.3d 177 (5th Cir. 2003), Phipps did not control the case here because D here was not convicted of possessing the firearm on a single occasion in furtherance of simultaneous dual criminal purposes; because neither Phipps nor any other decision ruled out the possibility of multiple convictions based on separate uses/possessions of a single firearm, there was no clear or obvious error in D’s multiple convictions.

        (3) Even if D did not waive his appellate argument that he was improperly denied expert assistance, that argument failed on the merits because the proffered trial testimony of the bomb expert for whom funds were denied would not have materially assisted the defense.

The Fifth Circuit rejected Texas D’s claims that the dis­trict court (1) adjudicated his competency to be executed without the due process required under Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007); and (2) erred in finding him competent to be executed. Panetti v. Stephens, 727 F.3d 398 (5th Cir. 2013).

        The Fifth Circuit also rejected D’s claim that, under Indiana v. Edwards, 554 U.S. 164 (2008), he was improperly allowed to proceed pro se at trial. Edwards states a new rule of criminal procedure that, under the nonretroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989), may not be applied retroactively to cases (like this one) that were final on direct review before Edwards.

The Fifth Circuit ultimately concluded that the Border Patrol agent had reasonable suspicion to stop D. United States v. Garza, 727 F.3d 436 (5th Cir. 2013).

        Although the issue was “a close one,” the Fifth Circuit concluded that under the totality of the circumstances considered in connection with the factors in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the Border Patrol agent had reasonable suspicion to stop D. The area had a reputation as a smuggling route; it was close to the border; the truck was unfamiliar to the agent and was carrying plywood, which the agent knew to be a common method of concealing persons or contraband; and D became nervous and hurriedly left the gas station once he spotted the agent.

Texas death-sentenced D, convicted of murder-for-hire, was not entitled to a certificate of appealability on his claim that trial counsel was ineffective for failing to in­vestigate and present evidence of D’s abusive childhood; D failed to establish that this evidence would have changed the sentencing outcome. Ruiz v. Stephens, 728 F.3d 416 (5th Cir. 2013).

Ds’ convictions for conspiracy to possess an illicit substance aboard a plane with intent to distribute (in violation of 21 U.S.C. §§ 959(b) and 963) based on a conspiracy involving U.S. citizens traveling to South America and acquiring drugs, which they transported to the United Kingdom, did not involve an impermissible extraterritorial application of the statutes of conviction. United States v. Lawrence, 727 F.3d 386 (5th Cir. 2013).

        Statutory interpretation showed that Congress did intend for the statutes of conviction to apply extraterritorially; the presumption against extraterritoriality (United States v. Bowman, 260 U.S. 94 (1922)) was overcome, and extraterritorial application of the statutes did not run afoul of international law or Ds’ due-process rights. Moreover, Congress did not exceed its authority in enacting these statutes with extraterritorial application; such application was authorized under Congress’ power to enforce international treaties (in this case the 1961 Single Convention on Narcotics Drugs) in conjunction with the Necessary and Proper Clause. Finally, the indictment was sufficient to enable Ds to mount their defenses.

Court of Criminal Appeals

For restitution purposes, a “victim” is any person who suffered a loss as a direct result of a criminal offense; however, the State failed to offer evidence that D’s commission of the DWI was the direct cause of the accident. Hanna v. State, 426 S.W.3d 87 (Tex.Crim.App. 2014).

        D pled guilty to driving while intoxicated; the trial judge then ordered him to pay $7,767.88 in restitution to Lubbock Power and Light (LP&L) to repair a utility pole that D’s car struck. D appealed that Tex. Code Crim. Proc. art. 42.037 does not authorize restitution because LP&L was not a “victim” of the offense. COA agreed, holding that the restitution order was improper because (1) DWI is a victimless crime because it “does not encompass per se a particular category of complainant,” and (2) there was no victim alleged in the charging instrument.

        CCA concluded that restitution (1) may be ordered in a DWI case, and (2) may be ordered for someone whose name did not appear in the charging instrument. However, the State must prove that D’s commission of the offense was the direct cause of the harm. Because the State failed to prove that D’s intoxicated driving caused the damage to the pole, CCA affirmed COA’s deletion of restitution.

A new trial may not be granted in the interest of justice on a claim that defense counsel failed to call an exculpatory witness if the claim is not based on ineffective assistance. State v. Thomas, 428 S.W.3d 99 (Tex.Crim.App. 2014).

        CCA affirmed COA in holding that the trial court abused its discretion by granting a new trial motion in the interest of justice under Tex. R. App. P. 21.3. “A motion for a new trial, whether for guilt or punishment, requires a valid legal claim. The failure of trial counsel to call an exculpatory witness who was available at trial and known to the defense is not, by itself, a valid legal claim.”

The requirement in a community supervision revocation hearing, at which it is alleged that the defendant failed to pay appointed counsel, community supervision fees, or court costs, for the State to prove that the defendant was able to pay does not apply to fines. Gipson v. State, 428 S.W.3d 107 (Tex.Crim.App. 2014).

        On D’s plea of true, the trial judge revoked D’s community supervision for failing to pay his fine and various court-assessed fees. COA reversed on the basis that the State failed to satisfy its burden of showing, under Tex. Code Crim. Proc. art. 42.12 § 21(c), that D was able to pay and did not. In its petition for review, the State contended that § 21(c) does not apply to fines. CCA agreed: “The statute mentions certain types of fees and costs, but it makes no mention of fines.”

Non-expert testimony was sufficient to prove loss greater than $200,000 by either a damage or destruction theory of criminal mischief. Campbell v. State, 426 S.W.3d 780 (Tex.Crim.App. 2014).

        D was convicted of arson and criminal mischief with pe­cu­ni­ary loss greater than $200,000 for burning down an Ar­by’s restaurant. The Arby’s owner testified that his insurance company paid him approximately $400,000, and that it would cost him $1,000,000 to replace the restaurant. D appealed that the evidence was legally insufficient to support his conviction for criminal mischief with loss greater than $200,000. A person commits criminal mischief by damage or destruction if he intentionally or knowingly damages or destroys tangible prop­erty without consent. Tex. Penal Code § 28.03(a)(1). The amount of pecuniary loss to the owner determines the degree of the offense. If the property is damaged, the loss is the cost of repair. If the property is destroyed, the loss is the fair market value or the cost of replacement. See § 28.06. COA rendered an acquittal as to D’s criminal-mischief conviction.

        CCA reversed, finding that the testimony proved loss un­der both theories. “The property owner’s unobjected-to hear­say testimony regarding the payment from his insurance sup­plied the critical piece of evidence necessary to elevate the owner’s testimony from a mere lay, ‘off the wall’ opinion as to damages to the type of evidence that we have held is sufficient to prove the cost of repairs and, thereby, pecuniary loss. . . . With respect to criminal mischief by destruction . . . we presume that an owner’s testimony estimating the value of his property is either estimating the purchase price of the property or the cost to replace the property in terms of the fair market value[.]”

CCA identically remanded these five cases because COA lacked the benefit of Johnson v. State, 423 S.W.3d 385 (Tex.Crim.App. 2014), in which CCA “set forth a roadmap for resolving questions regarding court costs.”

Jelks v. State, 426 S.W.3d 104 (Tex.Crim.App. 2014).
Handy v. State, 426 S.W.3d 104 (Tex.Crim.App. 2014).
Rogers v. State, 426 S.W.3d 105 (Tex.Crim.App. 2014).
Romero v. State, 427 S.W.3d 398 (Tex.Crim.App. 2014).
Flores v. State, 427 S.W.3d 399 (Tex. Crim. App. 2014).

On the facts, the trial court did not err in allowing the State to introduce a machete into evidence without revealing the machete to the defense in discovery. Francis v. State, 428 S.W.3d 850 (Tex.Crim.App. 2014).

        D was convicted of aggravated robbery; the indictment alleged that D “used a deadly weapon, namely, A KNIFE.” Months before trial, the trial court signed a discovery order that required the State to give the defense an opportunity to inspect “all physical objects to be introduced as part of the State’s case [and] [a]ll weapons . . . acquired by the State or its agents in the investigation of the alleged offense.”

        On the first day of trial, defense counsel noticed a large machete among the items the State intended to introduce. D immediately objected: “What is in our pleadings is a knife, nothing about a machete.” The court issued a limine order requiring the parties to approach the bench before any mention of the machete to the jury. At the start of the second day of trial, D filed a motion for continuance, complaining that the preceding day had been “the first time defense counsel had been made aware of a machete” and asking the court “to allow investigation into the machete . . . to formulate a defensive strategy.” The court granted the motion. Defense counsel acknowledged that he “had a chance to inspect the machete in question and had ample opportunity to speak to his client about it and prepare for cross-examination.” But counsel informed the court that this access to the machete “doesn’t eliminate the objections that will be made.” The limine order remained in effect as the complainant took the witness stand; after a bench conference, the complainant testified that D hit her repeatedly and she wavered out of consciousness but remembered that D threatened her with a pocketknife and the machete.

        On appeal, D argued that the prosecutor willfully violated a pretrial discovery order, and that the trial court erred in fail­ing to exclude the evidence wrongfully withheld from his court-ordered pretrial scrutiny. COA upheld the trial court. CCA affirmed, finding no grounds for exclusion as a function of prosecutorial willfulness.

        Nor did CCA find grounds for exclusion as a function of due process: “The trial court did grant a continuance, and the appellant confirmed on the record that the delay was sufficient to allow him to inspect the machete prior to its admission into evidence and to consult about it with counsel—which was, after all, the only thing that the discovery order explicitly guaranteed him. Moreover, we are unpersuaded that the appellant was disadvantaged in any other material way by his belated receipt of notification of the full significance the State would attribute to the machete (i.e., that it was the ‘KNIFE’ alleged in the indictment).”

Juveniles sentenced to life imprisonment were not entitled to individualized sentencing hearings; individualized hearings are only mandated for sentences without the possibility of parole. Lewis v. State, 428 S.W.3d 860 (Tex.Crim.App. 2014).

        Both Ds were 16 years old at the time of the murders for which they were convicted. The respective versions of Tex. Penal Code § 12.31(a), of 2008 and 2009, required they be sentenced to life imprisonment without parole. They were not allowed to present mitigating evidence at their punishment hear­ings because life imprisonment without parole was automatic. COA reformed Ds’ sentences to allow for parole.

        Ds filed petitions for review, claiming their reformed sentences of life imprisonment with the possibility of parole were unconstitutional because Miller v. Alabama, 132 S.Ct. 2455 (2012), required individualized sentencing of juvenile offenders, specifically because it is the most severe punishment for which juveniles are eligible in Texas under the current § 12.31. CCA affirmed the sentences. “These consolidated cases ask us to interpret the United States Supreme Court’s recent decision in Miller v. Alabama, which held that the Eighth Amendment to the United States Constitution forbids sentencing schemes for juveniles in which life imprisonment without the possibility of parole is mandatory rather than based upon an individualized sentencing assessment. Appellants argue that their sentences, which the appellate courts reformed to life imprisonment, are unconstitutional because they were not afforded individualized hearings at which to present mitigating evidence. We do not read Miller so broadly and therefore affirm the judgment of the appellate courts.”

A juror’s hurry to get home did not qualify as an improper outside influence because it was unrelated to any issue at trial; furthermore, the juror’s post-trial testimony that his desired verdict had been “not guilty” was inconsistent with his trial-time statements, and the time for doubts passed when the jurors were excused. Colyer v. State, 428 S.W.3d 117 (Tex.Crim.App. 2014).

        A jury convicted D of DWI. The foreman seemed uncertain when he read the verdict, so D motioned for a new trial. At the new-trial-motion hearing, the foreman testified that “his verdict was not a fair expression of his opinion due to an array of ‘outside influences,’ including the late time of day, the distance to the parking lot, the approaching inclement weather, and the amount of time it was taking to respond to the jury’s notes. [The foreman] was particularly affected by a call he received during deliberations from his doctor informing him that his daughter had tested positive for [a serious infection]. He testified that this call influenced him to change his verdict: ‘[He] had to concede to the other people and get home to [his] daughter immediately.’ He agreed that the deliberations were cut short because all of the jurors were affected by ‘outside influences.’” The trial judge denied D’s new trial motion. COA held that the trial court abused its discretion in denying D’s new trial motion alleging juror misconduct. CCA reversed COA.

        “Because appellant’s ‘outside influence’ argument misapplies our holding in McQuarrie v. State [380 S.W.3d 145 (Tex.Crim.App. 2012)], we granted the State’s petition for discretionary review. Personal pressures—such as a fear of inclement weather or concern about a child’s illness—are not ‘outside influences’ under Texas Rule of Evidence 606(b). Accordingly, juror testimony about these issues is not admissible. Because appellant failed to prove that the jury’s verdict was tainted by juror misconduct, the trial judge did not abuse his discretion in denying appellant’s motion for new trial.”

Two State exhibits that purported to be foreign public documents or certified public records were not properly authenticated; neither was accompanied by a final certification from a diplomatic or consular official, and good cause for failing to obtain certification was lacking. Bruton v. State, 428 S.W.3d 865 (Tex.Crim.App. 2014).

        COA properly reversed a trial court decision that admitted two State exhibits purporting to be foreign public documents, admissible under Tex. R. Evid. 902(3), and certified copies of public records, admissible under Rule 902(4), of D’s prior convictions. “The State has given no reason for failing to obtain a final certification and has not suggested that it made any attempt to contact an appropriate diplomatic or consular official about authenticating the documents in State’s Exhibits 13 and 15. In fact, the record supports the inference that the State failed to attempt to contact the appropriate official because the prosecutors misunderstood the final-certification requirement. But the State’s ignorance of Rule 902(3)’s requirements is not a legitimate excuse.” CCA affirmed COA, reversing and remanding for a new punishment hearing.

D’s online-solicitation-of-a-minor convictions were set aside because CCA had held that the relevant statute, Tex. Penal Code § 33.021(b), was unconstitutional. Ex parte Chance, No. WR-81,136-01 (Tex.Crim.App. May 7, 2014).

        Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App. 2013), “held unconstitutional the online solicitation of a minor statute for which Applicant was convicted. Applicant, through counsel, filed this habeas application based on the Lo decision and asks that his convictions be set aside. The trial court recommends granting relief. After considering the trial court’s findings and the parties’ objections and responses regarding them, this Court agrees with the trial court, and relief is granted. . . . Applicant is remanded to the custody of the Sheriff of Montgomery County to answer the charges as set out in the indictment so that the indictment may be disposed of in accordance with this Court’s opinion in Ex parte Lo.

Court of Appeals

Prosecutor’s introduction of possible punishment ranges was not the sort of flagrant repeated misconduct that would deprive D of due process; that being the case, D was required to preserve any perceived error. Johnson v. State, 432 S.W.3d 552 (Tex.App.—Texarkana 2014).

        “During direct examination by the State, Officer Matt Cashatt of the Texarkana Police Department testified that the penalty for a first-degree felony is 5 to 99 years’ or life imprisonment and that the penalty for a second-degree felony is 2 to 20 years’ imprisonment. . . . To preserve a prosecutorial misconduct complaint, a defendant must generally make a timely and specific objection, request an instruction to disregard the matter improperly placed before the jury, and move for a mistrial. . . . [D] objected on the basis of relevance when the subject was initially broached during Cashatt’s testimony. The trial court overruled the objection and gave [D] a running objection. [D] complains that the State improperly elicited the subject testimony and argued punishment during closing argument. However, [D] failed to object on the basis of prosecutorial misconduct.”

The definitional instructions on “female sexual organ” and “penetration” in the jury charge were harmful error; COA reversed and remanded for a new trial. Green v. State, 434 S.W.3d 734 (Tex.App.—San Antonio 2014, pet. granted).

        “We conclude the charge’s definitions of ‘female sexual organ’ and ‘penetration’ similarly constituted an improper comment on the weight of the evidence because they focused the jury’s attention on the specific type of evidence that would support a finding of the contested element of penetration. . . . [W]e must determine whether the error was harmful. Because Green properly objected to the definitions, we determine whether ‘the error appearing from the record was calculated to injure’ his rights, i.e., whether there was ‘some harm.’… [T]here was conflicting testimony on the critical, and hotly contested, question of . . . whether penetration occurred—a question of fact for the jury to resolve—was the focus of counsel’s questioning of the witnesses and closing arguments. Viewed in the context of the entire jury charge, the definitional instructions were error because they impinged on the jury’s fact-finding authority by focusing the jury’s attention on the evidence that would support a finding of penetration. . . . On this record, we cannot say with ‘fair assurance’ that the charge error did not have an ‘injurious effect or influence in determining the jury’s verdict.’”

D, convicted of capital murder, raised a question of fact undermining the given jury instructions; upon a harm analysis, COA ordered a new trial. Zamora v. State, 432 S.W.3d 919 (Tex.App.—Houston [14th Dist] 2014).

                “When this case was first before us, appellant argued that the trial court erred in failing to instruct the jury that if it determined that witness Benjamin Rosales was a co-conspirator accomplice, then it could consider Rosales’ testimony only if it was corroborated by other evidence tending to connect appellant to the offense. . . . We concluded that this complaint was waived because appellant had asked the trial court to in­struct the jury to determine whether Rosales was a direct-party accomplice rather than a co-conspirator. . . . The Court of Criminal Appeals reversed and remanded the cause for us to consider appellant’s charge-error complaint under the procedural framework of [Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g)]. . . . We conclude that the evidence raises a question of fact as to whether Rosales was a co-conspirator accomplice, and thus, the trial court erred in failing to instruct the jury accordingly. We further conclude that appellant was egregiously harmed by the error. . . . [The] court’s failure to instruct the jury that there was a question of fact about witness’ status as an accomplice under a co-conspirator theory of liability egregiously harmed D in that it made the case clearly and significantly more persuasive and deprived him of the statutory right not to be convicted of an offense based on the uncorroborated testimony of accomplice witnesses.”

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