### NO. 01-14-01005-CR IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS

HAROLD JOSEPH NORWOOD, JR., APPELLANT V. THE STATE OF TEXAS, APPELLEE



## BRIEF FOR THE STATE OF TEXAS

CAUSE NUMBER 13CR1311 IN THE 405th JUDICIAL DISTRICT COURT OF GALVESTON COUNTY, TEXAS

ATTORNEYS FOR THE STATE OF TEXAS REBECCA KLAREN ASSI STANT CRIMINAL DISTRICT ATTORNEY STATE BAR NO. 24046225 JACK ROADY CRIMINAL DISTRICT ATTORNEY
600 59 TH STREET, SUITE 1001 GALVESTON TX 77551 (409) 770-6004, FAX (409) 621-7952 rebecca.klaren@co.galveston.tx.us
ORAL ARGUMENT WAIVED ACCEPTED 01-14-01005-CR FIRST COURT OF APPEALS

HOUSTON, TEXAS 8/3/2015 2:18:34 PM CHRISTOPHER PRINE

CLERKii IDENTITY OF PARTIES AND COUNSEL

Presiding Judge Honorable Michelle Slaughter Appellant Harold Joseph Norwood, Jr. Appellee The State of Texas Attorney for Appellant James Bennett (Trial Only) Alvin, Texas Attorney for Appellant Zachary S. Maloney (Appeal Only) League City, Texas Attorney for State Matthew Shawhan & Bill Reed (Trial Only) Galveston, Texas Attorney for State Rebecca Klaren (Appeal Only) Galveston, Texasiii TABLE OF CONTENTS
SECTION PAGE Identity of Parties and Counsel ii Table of Contents iii
Index of Authorities iv Summary of the Argument 2
Statement of Facts 3
First Issue 15 There must be evidence a witness is an accomplice before a court is required to include an acco mplice witness instruction in its charge. If the court sh ould’ve included the instruction, but the defendant didn’t object, the defendant must show he was egregiously harmed.
How’s there harmful re versible error when there’s no evidence Lacy was an accomplice, Norwood didn’t object to the charge, and Norwood made no argument he was egregiously harmed? Argument and Authorities 15
I. Accomplice Witness Applicable Law 15
II. Lacy Was Not An Accomplice 17
III. Norwood Wasn’t Egregiously Harmed: The Non-Accomplice Evidence Corroborates Lacy & Tends To Connect Norwood To The Murder 20
IV. Conclusion: No Ground For Reversal 24iv Second Issue 25 Video proves Norwood walked to wards the crime scene minutes before the victim’s car was st olen. Video proves Norwood was driving the car minutes after the victim was left dying in his bakery parking lot. Norwood had the victim’s car, his car key, and his cellphone. Viewing the evidence in the light most favorable to the verdict, how’s there insufficient evidence to prove Norwood murdered the victim? Argument and Authorities 25
I. Relevant Sufficiency Law 25
II. The Evidence Proves Norwood Killed The Victim 27 Conclusion and Prayer 30
Certificate of Service 31 Certificate of Compliance 31v INDEX OF AUTHORITIES

CASES
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) .................................... 25 Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). ....................................... 20 Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) .................................. 17 Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) ...................................... 17 Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. App. 1995). ................................... 16
Brown v. State , 672 S.W.2d 487, 489 (Tex. Crim. App. 1984) ....................................... 22 Clayton v. State, 235 S.W.3d 772, 778 (T ex. Crim. App. 2007). .................................... 26 Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). ................................... 21 Ex parte Flores, 387 S.W.3d 626, 641 (Tex. Crim. App. 2012) ..................................... 25
Flores v. State , 551 S.W.2d 364, 369 (Tex. Crim. App. 1977) ....................................... 28 Garcia v. State, 367 S.W.3d 683, 687 (T ex. Crim. App. 2012). ..................................... 26 Gaston v. State, 324 S.W.3d 905, 908 (Tex. App.---Hou ston [14th Dist.] 2010, pet. ref'd)

.............................................................................................................................. . 16 Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) ......................................... 26 Griego v. State, 337 S.W.3d 902, 903 (T ex. Crim. App. 2011). ...................................... 26 Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). .............. 16, 17, 21, 23, 24 Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). .......................................... 26vi Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) ......................................................... 26 Joubert v. State, 235 S.W.3d 729, 731 (T ex. Crim. App. 2007). ..................................... 21
Malone v. State , 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) ..................................... 21 Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998). ...................................... 20
Miller v. State , 177 S.W.3d 177, 184 (Tex. App.---Houston [1 st Dist.] 2005, pet. ref’d) ........................................................................................................................ 28, 2 9 Moron v. State, 779 S.W.2d 399, 401 (T ex. Crim. App. 1985). ...................................... 21
Nava v. State , 415 S.W.3d 289, 298 (Tex. Crim. App. 2013). ....................................... 20
Palomo v. State , 352 S.W.3d 87, 90-91 (Tex. App.---Houston [14 th Dist.] 2011, pet. ref’d) ....................................................................................................................... 27 Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). ................... 15, 16, 17, 19 Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) ...................................... 25 Warner v. State, 245 S.W.3d 458, 461 (T ex. Crim. App. 2008). .................................... 20 Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). ................................... 26 Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). .................................. 26 Wygel v. State , 555 S.W.2d 465, 469 n.3 (Tex. Crim. App. 1977). ................................. 19
Zamora v. State , 411 S.W.3d 504, 511 (Tex. Crim. App. 2013) .............................. 15, 16

STATUTES

T EX
. C ODE C RIM
. P ROC
. A NN . art. 38.14. .................................................................. 16
T EX
. P ENAL C ODE § 19.02(b)(2). ............................................................................... 27vii T EX
. P ENAL C ODE §7.01 ........................................................................................... 15
T EX
. P ENAL C ODE §7.02(a) ....................................................................................... 15
T EX
. P ENAL C ODE §7.02(b) ................................................................................ 15, 18NO. 01-14-01005-CR

IN THE
COURT OF APPEALS
FOR THE
FIRST DISTRICT OF TEXAS HOUSTON, TEXAS

HAROLD JOSEPH NORWOOD, JR., Appellant V. THE STATE OF TEXAS, Appellee

Appealed from the 405th Judicial District Court of Galveston County, Texas Cause No. 13CR1311

BRIEF FOR THE STATE OF TEXAS

TO THE HONORABLE COURT OF APPEALS: Now comes Jack Roady, Cr iminal District Attorney fo r Galveston County, Texas, and files this brief for th e State of Texas.

The one-volume Clerk’s Record is referred to in the State’s Brief as “C.R. page”. The Reporter’s Record is multiple volumes and is referred to as “R.R. volume number: page”.2 SUMMARY OF THE ARGUMENT Harold Norwood raises two issues in an attempt to reverse his murder conviction. First, he claims he was egregiously harmed beca use the Trial Court didn’t sua sponte include an accomplice witness instruction in its ch arge. Norwood hasn’t shown there was an accomplice witness. Norwoo d has presented no ev idence there was a conspiracy. And even if ther e should’ve been an instruct ion, Norwood has made no attempt to show he wa s egregiously harmed. In his second issue, Norwood claims the evidence was “factually” insufficient because driving the victim’s car doesn’t prove he comm itted the murder. Norwood’s argument ignores the overwhelming circumst antial evidence. The evidence proves he was near the scene of the murder, minutes be fore the murder. He had the victim’s car key, car, and cellphone immediately after the assault. He made admissions that a crime had occurred. Viewing the evidence in the lig ht most favorable to the verdict, Norwood killed the victim and took his car.3 STATEMENT OF FACTS Juan Navarro owned the Navarro Bakery located on Broadway and 38 th Street in
Galveston. 1 Navarro also owned a silver Lexus SUV. 2 His bakers came in at 5 a.m. and the bakery closed at 10 p.m. 3 He usually stopped at the bake ry after 11 p.m. to turn the
alarm on. 4 After the bakery closed on e night in January 2013, Navarro took a co-worker and his family to dinner. 5 They parted ways around 12 a.m. 6 Navarro drove to the bakery. At 12:23 a.m., Navarro tu rned into the parking lot. 7 He left his blinker on, but never went into the bakery. 8 He may’ve fallen as leep in the car. At 1:04 a.m., an officer respon ding to an unrelated dispatch, 9 noticed what appeared to be a Lexus SUV in the bakery’s pa rking lot with its turn signal continuously blinking. 10 The doors were closed an d the headlights were on. 11 The officer’s in-car video was not on. 12 But, as the officer was returning to the police station to complete the dispatch, her in-car video was recording. 13 At 1:28 a.m., the in -car video shows the

1 R.R. III: 46. 2 R.R. III: 54. 3 R.R. III: 47. 4 R.R. VI: 219. 5 R.R. III: 30. 6 R.R. III: 32. 7 R.R. VI: 67; State’s Ex hibit 1 (bakery videos). 8 R.R. VI: 67; State’s Exhibit 1; State’s Exhibit 25 (Chevron video showing continuous blinking). 9 R.R. VI: 89. 10 R.R. III: 112-13. 11 R.R. III: 113. 12 R.R. III: 114-15. 13 R.R. III: 115-16; State’s Exhibit 24 (in-car video).4 blinking light at the bakery. 14 At 1:37 a.m., a surveillance video at the Mercadito restaurant across Broadway from the bakery showed a sing le man dressed in all dark walk away from the bakery. 15 At 1:41 a.m., the vide o shows the man return. 16 The man was alone. 17 He walked passed the restaurant and towards the bakery. 18 Two of Norwood’s friends identified him as the man on the video. 19 They explained they identifi ed him based on his unique
walk. 20 At 1:49 a.m., the videos from the Ch evron station across Broadway from the bakery and the bakery’s in door surveillance video show the blinking stopped. 21 The Lexus’ headlights were turned on and it pulled onto 38 th Street, away from Broadway. 22 At 1:59 a.m., Officer Ticas noticed a man lying in the bakery parking lot. 23 He stopped and found Nava rro gravely injured. 24 He called EMS. 25 Meanwhile, between 12 a.m. and 2 a.m., Richard Lacy testified he was at his

14 R.R. VI: 32-33, 89; State’s Exhibit 24; State’s Exhibit 353 (screen shot of in-car video showing Lexus and blinking light at bakery). 15 R.R. III: 33-34; VI: 137-38; State’s Exhibit 59 (Mercadito video). The le ad detective testified she checked each video against the dispatch time. R.R. VI: 77-78. Evidently each video was a few minutes off. Id . So she adjusted the times to be consistent with dispatch. Id

. 16 R.R. VI: 137-38; State’s Exhibit 59. 17 State’s Exhibit 59. 18 R.R. VI: 137-38; State’s Exhibit 59. 19 R.R. V: 57-58, 71-72. 20 R.R. V: 58-59; 72. 21 R.R. VI: 24-25; State’s Exhibit 1 (bakery videos); State’s Exhibit 25 (Chevron video). 22 R.R. VI: 67-68; State’s Exhibit 25. 23 R.R. III: 94-95. 24 R.R. III: 94. 25 R.R. III: 94.5 neighbor’s house on 38 th Street drinking and using drug s with several people, including James Nolan. 26 The house was about a bl ock behind the bakery. 27 Close to 2:00 a.m., he
saw a silver SUV on 38 th coming from Broadway. 28 Lacy thought it was his friend Joseph. 29 It wasn’t Joseph, it was Norwood. 30 Lacy, who’d known Norwood for a few days, had never seen Norwoo d drive the Lexus before. 31 Norwood asked Lacy where
there was a Coinstar. 32 Lacy told Norwood the only one available at that time was at Kroger on 50 th and the Seawall. 33 James Nolan testified that on the nigh t of the murder, he was with Lacy at a
house. 34 Nolan heard the conversation about the coins between Norwood and Lacy. 35 Nolan said Lacy left with Norwood. 36 At 1:58 a.m., the silver Lexus parked at Kroger. 37 Norwood, wearing all dark clothes, got out of the driver’s seat. 38 Lacy testified Norw ood had the car key. 39 Lacy, wearing a yellow jacket and khaki pant s, got out of the passenger seat. 40 The men

26 R.R. IV: 107-08. 27 R.R. VI: 68-69. 28 R.R. IV: 110. 29 R.R. IV: 109-10. 30 R.R. IV: 110. 31 R.R. IV: 112. 32 R.R. IV: 113. 33 R.R. IV: 113. 34 R.R. IV: 65-66. 35 R.R. VI: 65, 67. 36 R.R. IV: 67. 37 R.R. IV: 52-53; VI: 42-43; State’s Exhibit 62 (Kroger parking lot video). 38 R.R. IV: 53-54, 120; State’s Exhibit 62. 39 R.R. IV: 121. 40 R.R. IV: 53-54, 120; State’s Exhibit 62.6 entered Kroger and we nt to the Coinstar. 41 Lacy testified Norwood had a cloth bag full
of coins. 42 Lacy testified the men cashed the coins and Norwood made him keep the cloth bag until after they left Kroger. 43 The Coinstar receipt for $117.15 was issued at
2:01 a.m. 44 At 2:11 a.m., Lacy and Norwood left Kroger. 45 Norwood had the car key. 46 Lacy testified he drove as they left be cause Norwood’s dr iving was erratic. 47 As they drove, Norwood told Lacy he was taking a penitentiary chance in the vehicle. 48 Lacy thought he meant something was going on with the car or that it was stolen. 49 Lacy testified Norwood might’ve said he hit a lick (whi ch could mean taking something from someone or taking someth ing without permission). 50 Lacy testified Norwood told him he shouldn’t say anything about the car. 51 They got more drugs. 52 At the hospital, a trauma surgeon tried to save Navarro. 53 Unfortunately, his injuries were not survivable and he died at 8:13 p.m. 54 At 2:30 a.m., the on-call detective (D etective Sollenberger) was called to the

41 R.R. IV: 114-15. 42 R.R. IV: 117-18. 43 R.R. IV: 114-15, 134; State’s Exhibi t 63 (video of inside Kroger). 44 R.R. IV: 48-50; State’s Exhibit 64 (Coinstar receipt). 45 R.R. VI: 69. 46 R.R. IV: 121. 47 R.R. IV: 114. 48 R.R. IV: 122. 49 R.R. IV: 122. 50 R.R. IV: 139-40. 51 R.R. IV: 137. 52 R.R. IV: 123. 53 R.R. IV: 8-9. 54 R.R. IV: 15-16.7 scene. 55 When she first got to th e bakery, she noticed a dry void in an otherwise wet parking lot. 56 It was the size of a car. 57 The wet spot was consistent with an air conditioning drip spot, as if a ve hicle had been sitting and running. 58 The victim’s key ring was laying next to him, but there was no car key on the ring. 59 Detective Sollenberger te stified she was able to pu ll up a photograph of the bakery owner. 60 The first officer on the scene id entified him as the injured man. 61 The bakery was locked and nothing looked disturbed inside it. 62
An officer went to the victim’s home to learn why Navarro may’ve been at the bakery that late and to as k if there was a missing car. 63 The victim’s wife told the police about the missing Lexus. 64 The detective sent out a regi onal broadcast about the missing
Lexus. 65 Multiple officers looked for the Lexus. 66 Detective Sollenberger also posted a Facebook post to the polic e account asking for information on the stolen car. 67 The next day, the police got a ti p that the car was parked on 38 th Street. 68 The car

55 R.R. VI: 9. 56 R.R. VI: 11-12. 57 R.R. VI: 12. 58 R.R. VI: 14. 59 R.R. VI: 20. 60 R.R. VI: 15. 61 R.R. VI: 15. 62 R.R. VI: 14, 16. 63 R.R. VI: 15. 64 R.R. VI: 16. 65 R.R. VI: 16-17. 66 R.R. III: 168-69, 183. 67 R.R. VI: 17. 68 R.R. VI: 25-26.8 was warm and the air conditio ning condenser was dripping. 69 This indicated to the officers that the car was recently driven. 70 An officer looked un der the car and noticed what appeared to be blood in the driver ’s side wheel well. 71 The officers decided to tow the car to the police depa rtment for processing. 72 While the police were st ill at the scene where the Lexus was found, a woman came up to them and said she fe ared Norwood was dead in the car. 73 The police also got a call from Norwood’s brother. 74 He too feared Norwoo d was dead in the car. 75 Norwood wasn’t. Several agenci es began looking for Norwood. 76 On February 16, 2013, a Houston police officer arrested Norwood. 77
At the Galveston Police Department, the office rs dusted the car for fingerprints. 78 They found swipe mark s on the driver’s door. 79 This indicated to the
officers that someone trie d to wipe the door clean. 80 Fortunately, the officers were still able to get a fingerprint. 81 The fingerprint matched Norwood. 82

69 R.R. III: 186; VI: 26. 70 R.R. III: 186-87; VI: 26. 71 R.R. III: 188, 191-92. 72 R.R. III: 193. 73 R.R. III: 194-98. 74 R.R. VI: 29. 75 R.R. VI: 29-30. 76 R.R. VI: 53-54. 77 R.R. V: 141-43. 78 R.R. IV: 88; V: 178. 79 R.R. V: 200-01. 80 R.R. V: 200-01. 81 R.R. V: 179. 82 R.R. V: 147, 149, 151.9 The police officers immediately trie d to locate the victim’s cellphone. 83 They called it and had the service provider ping it. 84 The pings didn’t provide an exact
location. 85 However, the officers were able to get the phone’s call logs. 86 There were several calls made after the victim was found. 87 The officers determined each person called knew Norwood. 88 The officers also determined that a call was made to check someone’s bank account balance. 89 The bank recorded the telephone call. 90 Dietrich
Simmons made the ca ll to the bank. 91 She testified she go t the cellphone from Norwood. 92 The day after the murder, Richard Lacy spoke to his brother about Norwood. 93 Lacy knew he’d been in the car. 94 His brother urged Lacy to do the right thing. 95 Lacy called 911 to say he had information. 96 Lacy voluntarily went to the police station twice and gave two statements. 97 He told the police what he knew about Norwood. 98 Lacy said

83 R.R. VI: 17-18. 84 R.R. VI: 17-18. 85 R.R. VI: 18. 86 R.R. V: 132. 87 R.R. V: 133-36. 88 R.R. V: 137-38; VI: 44-48. 89 R.R. VI: 45. 90 R.R. VI: 45. 91 R.R. VI: 45. 92 R.R. V: 59-60. 93 R.R. IV: 137. 94 R.R. IV: 137. 95 R.R. IV: 137. 96 R.R. IV: 127-28. 97 R.R. VI: 34, 36-37. 98 R.R. IV: 128-29.10 he’d seen Norwood contin ue to drive the Lexus af ter their Kroger trip. 99 He said Norwood used a cloth to wipe the car down every time he got out of it. 100 Lacy testified he thought he also told the police that the nigh t before the murder, he and Norwood walked by the bakery and on the way to the corner store. 101 Norwood said to Lacy “That’s a nice car.” 102 On cross-examination, La cy agreed Norwood didn’t say he stole a car, hurt someone, or killed someone. 103 Lacy agreed he didn’t see Norwood steal the Lexus or hurt anyone. 104 Lacy said he didn’t as sume the car was stolen until after Norwood said he was taking a penitentiary chance by driving it and Norwood wiped the car down. 105 During Norwood’s case-in-chief, he recalled Lacy. 106 He questioned Lacy about his criminal history. 107 Lacy said he saw Norwood dr ive the Lexus fo r 4 or 5 days. 108 When Norwood asked if Lacy would be surpri sed the car was recovere d within 2 days of the murder, Lacy said he coul d be wrong about the days. 109 Lacy voluntarily gave the police a DNA sample and the clothes he was wearing. 110

99 R.R. IV: 125. 100 R.R. IV: 126. 101 R.R. IV: 136. 102 R.R. IV: 136. 103 R.R. IV: 144. 104 R.R. IV: 145-46. 105 R.R. IV: 147. 106 R.R. VII: 53. 107 R.R. VII: 54. 108 R.R. VII: 60-67. 109 R.R. VII: 68. 110 R.R. IV: 129.11 He also gave the police the shoes he lean t to Norwood. 111 None of the victim’s DNA was on Lacy’s clothes or Norwood’s shoes. 112 One of Lacy’s shoes tested positive for presumptive blood. 113 The DNA test showed it was a mixture. 114 Lacy was the major contributor. 115 The data regarding the minor cont ributor was too small to make an
identification. 116 Lacy told the jury he ha d a prior felony conviction for forgery and for possession of a controlled substance. 117 He admitted he has a drug problem. 118 He told the jury he was under arrest for a misdemea nor offense of obstructing a passageway, but didn’t have a deal with the Stat e for his testimony. 119 Detective Sollenberger test ified that initially Lacy was a suspect because he was on the Kroger video 10 minutes after the vehicle was stolen. 120 She testified, however, that Lacy was ruled out as a su spect early in the investigation. 121 The detective explained that the police were able to speak to La cy’s roommates, including James Nolan, and corroborated what Lacy told them. 122 The Kroger and Mercadito surveillance videos also

111 R.R. IV: 129-30. 112 R.R. VI: 194, 199; State’s Exhibit 360 (DNA laboratory report). 113 State’s Exhibit 359 (forensic toxicology laboratory report); State’s Exhibit 360. 114 State’s Exhibit 360. 115 State’s Exhibit 360. 116 State’s Exhibit 360. 117 R.R. IV: 105. 118 R.R. IV: 108. 119 R.R. IV: 106. 120 R.R. VI: 138. 121 R.R. VI: 138. 122 R.R. VI: 138, 143.12 corroborated Lacy. 123 Lacy was not with Norwood when he assaulted the victim and
took his car. The Medical Examiner testified Nava rro had abrasions on his head, face, forehead, check, ear, both knees, and his elbow. 124 He had 2 broken ribs. 125 Navarro had a hemorrhage under both sides of his scalp and a hemorrhage over the left side of his brain. 126 He had a basal skull fracture stre tching from one ear to the other. 127 There was blood coming out of his ears, which is a characteristic of the skull injury. 128 The Medical Examiner testified a basal skul l fracture is most commonly seen in car accidents where the person’s head is moving ve ry quickly and suddenly stops or when people fall from a height and there’ s a hyperflexion. 129 He said a basal skull fr acture is always fatal. 130 The doctor said Navarro could’ve been struck while his head was still or could’ve been pushed over and his head struck a fixed object. 131 The Medical Examiner testified the manner of death was homicide and the cause of death wa s blunt force head trauma. 132
The Medical Examiner testified he revi ewed the crime scene pictures of the

scene. 133 Based on the scene, the doctor explaine d the victim’s facial abrasions and the

123 R.R. VI: 138, 144. 124 R.R. V: 17. 125 R.R. V: 38-39. 126 R.R. V: 17-18. 127 R.R. V: 18. 128 R.R. V: 22. 129 R.R. V: 27. 130 R.R. V: 27. 131 R.R. V: 33. 132 R.R. V: 33. 133 R.R. V: 34-35.13 pattern on his chest could’ve been caused from a fight, fr om getting rolled over by a vehicle and being caught unde r the undercarriage, or getti ng his head slammed to the ground. 134 The doctor explained that the vehicle co uld’ve caused the basal skull fracture if the victim was lying flat on the ground, with his head up and as the tire came across his chest, slamming his head back. 135 The doctor agreed that the victim could’ve been trying to get up when the car rolled over his chest. 136 The doctor also agreed that Navarro could’ve been standing up or in his vehicle and received a blow to the head that caused the brain hemorrhages. 137 The doctor testified, base d on the crime scene photos, the rib fractures could’ve b een caused by the vehicle ro lling over the vi ctim’s chest. 138 The Medical Examiner testified a vehicle, used to run over someone in this way, is a deadly weapon. 139 Norwood did not request an y instructions in the jury charge and affirmatively stated he had no objections to the charge. 140 There was no accomp lice witness language in the charge. 141 The jury convicted Norwood of murder and made an affirm ative finding of a deadly weapon. 142

134 R.R. V: 35. 135 R.R. V: 35-36. 136 R.R. V: 36-37. 137 R.R. V: 37-38. 138 R.R. V: 38-39. 139 R.R. V: 39. 140 R.R. VII: 81-82. 141 C.R. 159. 142 C.R. 164, 166.14 The jury heard Norwood had 17 conviction s---7 for drug convictions, a failure to identify conviction, 3 evadin g arrest convictions, 3 thef t convictions, and 3 assault
convictions. 143 The jury found both en hancements for possession of a controlled substance true and se ntenced Norwood to 80 years confinement. 144 This appeal followed.

143 R.R. VIII: 37-44. 144 C.R. 174.15 

### FIRST ISSUE
There must be evidence a witness is an accomplice before a court is required to include an accomplice witness instruction in its charge. If the court should’ve included th e instruction, but the defendant didn’t object, the defendant must show he was egregiously harmed.
How’s there harmful reversible erro r when there’s no evidence Lacy was an accomplice, Norwood didn ’t object to the charge, and Norwood made no argument he was egregiously harmed?



### ARGUMENT AND AUTHORITIES Norwood doesn’t cite to any evidence from any source th at Lacy was a coconspirator accomplice wi tness. Consequently, the Trial Co urt did not err by omitting a sua sponte jury instruction that he was. Even if ther e was error, Norwood wasn’t egregiously harmed by the omission becaus e the non-accomplice ev idence corroborates Lacy’s testimony by tending to connect Norwood to the crime.
V. 

### Accomplice Witness Applicable Law An accomplice is a person who participates before, during, or after the
commission of the offense with the requisite culpable mental state. 145 A person can be an accomplice as a direct party or as a co-conspirator. 146

145 Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). 146 Zamora v. State , 411 S.W.3d 504, 511 (Tex. Crim. App. 2013) (citing T EX
. P ENAL C ODE §7.01 (person is “criminally responsible” for his own cond uct or for “conduct of another for which he is criminally responsible”); T EX
. P ENAL C ODE §7.02(a) (describing criminal responsibility as a direct party); T EX
. P ENAL C ODE §7.02(b) (describing criminal responsibility for a party as a co-16 If a witness is an accomplice, Code of Criminal Procedure article 38.14 requires a jury instruction that a conviction cannot rest on the testimony of the accomplice witness “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.” 147 The accomplice witness rule reflects “the legislative determination that accomplice testimony mu st be taken with a certain degree of
caution.” 148 “Accomplices often have an incentive to lie, such as to avoid punishment or shift blame to another person.” 149 The evidence in the particular case dictates whether an accomplice-witness instruction is required. 150 A witness may be considered an accomplice as a matter of
law or as a matter of fact. 151 A prosecution witness who is indicted for the same
offense as the defendant or a lesser-included offense is an accomplice as a matter of
law. 152 “If a prosecution witness is an accompli ce as a matter of law, the trial court is under a duty to instruct the jury accordingly.” 153 “Failure to do so is error.” 154 When, however, there is doubt as to whether a witn ess is an accomplice—i.e., the evidence is conflicting—then the court may instruct the jury to determine the witness’s conspirator)). 147 Zamora , 411 S.W.3d at 509-10; T EX
. C ODE C RIM
. P ROC

. A NN . art. 38.14. 148 Gaston v. State, 324 S.W.3d 905, 908 (Tex. App.---Ho uston [14th Dist.] 2010, pet. ref’d); see Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. App. 1995). 149 Smith, 332 S.W.3d at 439. 150 Id

. 151 Id

. 152 Id. ; Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). 153 Herron, 86 S.W.3d at 631. 154 Id

.17 accomplice status as a fact issue. 155 When the evidence clearly shows that th e witness is not an accomplice, then the court is not required to instruct the jury on the accomplice-witness rule at all. 156 If the trial court improperly omitted an accomplice witness instruction, the appropriate harm standard depends on whether the defendant preserved his complaint by bringing the omission to the trial court’s attention. 157 If the error was properly preserved, the appeals court must reverse if “some harm” is shown. 158 But if the defendant failed to preserve the complaint, the error “must be ‘fundamental’” “and requires reversal only if it was so egregious and created such harm that the defendant has not had a fair and impartial trial.” 159

VI. 

### Lacy Was Not An Accomplice Norwood claims the Trial Court erred by not sua sponte including anaccomplice witness instruction in its jury charge because Lacy was Norwood’s coconspirator. Norwood is wrong. According to the Penal Code, a person is a co-conspirator and is criminally responsible for another, If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the

155 Smith, 332 S.W.3d at 439-40. 156 Id. at 440. 157 See Herron, 86 S.W.3d at 632. 158 Id

. 159 Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)).18 conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. 160 Notably, Norwood doesn’t identify the supposed conspiracy Lacy and Norwood entered into. Norwood doesn’t cite to any evidence and there is no evidence from any source that there was a conspiracy. Norwood speculates that Lacy might’ve been a co-conspirator in some kind of conspiracy because the night before the murd er he went for a walk with Norwood. As they walked by the bakery on their way to a store, Norwood said he liked the Lexus parked at the bakery. There’s no evidence Lacy and Norwood formulated a plan or had a common understanding to take the car. There’s no evidence Lacy knew Norwood was going to steal the car the following night and kill the owner. There’s no evidence Lacy anticipated or reasonably shou ld’ve anticipated Norwood was going to steal the car and run over the victim. Norwood argues Lacy was a conspirator because there was blood on his shoe when he talked to the police in the days after the murder. There’s no evidence tying the blood to the victim. There’s no eviden ce explaining when the blood got onto the shoe. This is no evidence of a conspiracy. Norwood further claims Lacy was a co-conspirator because he was in the

160 T EX
. P ENAL C ODE §7.02(b).19 Lexus after the murder and drove the Lexus when they left Kroger. This argument is based solely on Lacy’s presence in the car after the murder. Mere presence doesn’t make a person an accomplice 161 or a conspirator. 162 To be clear, there’s no testimony or evidence that Lacy was with Norwood when Norwood committed the murder. To the contrary, the evidence establishes Norwood was alone. The Mercadito vide o shows Norwood was alone when he walked away from the bakery and then 4 minutes later returned and walked towards the bakery. The video is not the only evidence that proves Lacy was not at the bakery. Nolan testified Lacy was with him at a house before Norwood showed up to ask if there was a nearby coin machine. There’ s no evidence Lacy intended Norwood to commit any crime when Lacy was using drug s and drinking with Nolan at a house blocks away from the bakery. Because there’s absolutely no testimony and no evidence that would make Lacy an accomplice as a matter of law and becaus e there’s also no conflicting evidence suggesting Lacy was an accomplice as a ma tter of fact, the Trial Court wasn’t obligated to instruct the jury on the acco mplice witness rule as it could apply to Lacy. 163

161 See Smith , 332 S.W.3d at 439. 162 See Wygel v. State , 555 S.W.2d 465, 469 n.3 (Tex. Crim. App. 1977). 163 See Smith , 332 S.W.3d at 439-40.20 VII. 

### Norwood Wasn’t Egregiously Harmed: The NonAccomplice Evidence Corroborates Lacy & Tends To
Connect Norwood To The Murder Because Norwood didn’t object to the jury charge and affirmatively stated he had no objections to the charge, 164 this Court reviews the alleged error to determine whether the omission caused Norwood egregious harm. 165 Norwood made no effort to explain ho w he was egregiously harmed by the absence of an accomplice witness instructi on in his brief. Norwood’s failure to brief doesn’t impact the outcome of this case because he wasn’t harmed and certainly wasn’t egregiously harmed. Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. 166 The error must have been so harmful as to effectively deny the defendant a fair and impartial trial. 167 The egregious harm standard “is a difficult standard to meet.” 168 The omission of the accomplice witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is “so unconvincing in fact as to render

164 R.R. VII: 81-82. 165 See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998). 166 Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). 167 See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). 168 Nava v. State , 415 S.W.3d 289, 298 (Tex. Crim. App. 2013).21 the State’s overall case for conviction clearly and significantly less persuasive.” 169 In other words, if the non-accomplice evidence corroborates the accomplice testimony by tending to connect the defendant to the cr ime, the failure to give the instruction is generally harmless. 170 Evidence corroborating an accomplice need not directly link the accused to the offense or be sufficient in itself to establish guilt; instead, the corroborating evidence need only tend to connect the accused to the crime committed. 171 “Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration.” 172 Furthermore, there need only be some non-accomplice evidence tending to connect th e defendant to the crime, not to every
element of the crime. 173
The evidence tends to connect Norwood to the murder. While a defendant’s mere presence at the crime scene is insufficient to corroborate accomplice testimony, “‘[p]roof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.’” 174 The Mercadito, the

169 Herron, 86 S.W.3d at 632. 170 Id

. 171 Moron v. State, 779 S.W.2d 399, 401 (Tex. Crim. App. 1985). 172 Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). 173 Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007). 174 Malone v. State , 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Brown v. State , 672 S.W.2d22 Chevron, and the bakery videos establish the Lexus was at the bakery when 1 man walked by the Mercadito restaurant. The Mercadito video shows the man was alone and was wearing dark clothes. The Mercadito video then shows the man in dark was still alone when he walked towards the bake ry 4 minutes later. Two people identified Norwood as the man walking on the Mercaidtio video. The Mercadito, the Chevron, and the bakery videos show the SUV’s blinking light turned off 8 minutes after Norwood walked towards the bakery. The Chevron video shows the SUV turned onto 38 th Street when it left the bakery. Nolan testified he heard Norwood discuss coins with Lacy and then the men left the house on 38 th
Street. It’s certainly a suspicious circumstance that 10 minutes after the victim’s Lexus left the bakery, the Kroger video shows Norwood park it. Norwood was still wearing
dark colored clothes. He cashed coins an d left the Kroger in the victim’s SUV. Norwood’s fingerprint on the SUV corrobor ates the videos and the witnesses. The wipe marks on the SUV shows Norw ood’s effort to destroy evidence. To add to the suspicious circumstances, Norwood also had the victim’s cellphone after the murder. He gave it to Simmons, who call ed the bank to check an account’s balance. All the other calls made with the phone after the assault were to people Norwood knew.

487, 489 (Tex. Crim. App. 1984)).23 The timeline, the physical evidence, and the witnesses’ testimonies tend to connect Norwood to the murder. 175 Lacy’s testimony was corroborated. 176 Additionally, the jury was well aware Lacy may not be truthful. Norwood attacked Lacy’s credibility when he crossed hi m, when he recalled him in his case-inchief, and during his closing argument. During the testimony, Norwood highlig hted Lacy’s criminal history. He attempted to show Lacy was only testifying because he was hoping for a deal on his recent obstruction of a passageway arrest. An d he illustrated Lacy was wrong when he testified that Norwood drove the car for 4 or 5 days. In closing statements, Norwood reminded the jury that Lacy is a repeat convicted felon. 177 He argued Lacy couldn’t keep his story straight. 178 He argued Lacy had every reason to lie because he was in the car after the murder, helped Norwood cash the coins, drove the car away from Kroger, had blood on his shoe two days later, and the car was found in front of his house. 179 Norwood told the jury it was more

175 See Herron, 86 S.W.3d at 632 (“[N]on-accomplice eviden ce can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.”). 176 See id. (“Under the egregious harm standard, the om ission of an accomplice witness instruction is generally harmless unless the corroborating (non-acco mplice) evidence is ‘so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’”). 177 R.R. VII: 112-13. 178 R.R. VII: 113. 179 R.R. VII: 113-14.24 likely Lacy committed the crime. 180 The jury was aware that it could take Lacy’s testimony with caution.
VIII. 

### Conclusion: No Ground For Reversal There was significant non-accomplice evidence that tended to connect Norwood to the murder. The non-accomplice evidence was not so unconvincing as to render the State’s overall case for convicti on clearly and significantly less persuasive. The purpose of the accomplice witness inst ruction was fulfilled and any error was
harmless. 181
Norwood’ first issue should be overruled.

180 R.R. VII: 114. 181 See Herron , 86 S.W.3d at 632.25 

### SECOND ISSUE Video proves Norwood walked towards the crime scene minutes before the victim’s car was st olen. Video proves Norwood was driving the car minutes after the vict im was left dying in his bakery parking lot. Norwood had the vict im’s car, his car key, and his cellphone. Viewing the evidence in the light most favorable to the verdict, how’s there insufficient evidence to prove Norwood murdered the victim?



### ARGUMENT AND AUTHORITIES
III. Relevant Sufficiency Law Norwood only challenges the factual su fficiency of the evidence. He doesn’t challenge the legal sufficiency of the eviden ce. He argues that proving he drove the victim’s Lexus after the murder isn’t sufficient to establish he comm itted the murder.
The Court of Criminal Appeals has determined and repeatedly affirmed 182 that
the Jackson v. Virginia legal sufficiency standard is th e only standard that a reviewing court should apply in determin ing whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable

182 See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (“As the court of appeals properly noted, this Court now applies only one standard ‘t o evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt: legal sufficiency.’”); Ex parte Flores, 387 S.W.3d 626, 641 (Tex. Crim. App. 2012) (noting that court “did away with” factual sufficiency review in Brooks ); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only standard for courts to apply in determining sufficiency of evidence).26 doubt. 183 Therefore, in anal yzing Norwood’s challenge to th e sufficiency of the evidence, this Court applies only the Jackson v. Virginia standard. When reviewing the sufficiency of the ev idence, the appellate court views all of the evidence in the light most favorable to the verdict and determines, based on that evidence and any reasonable inferences therefrom, whether a rational jury could have found the elements of the offense beyond a reasonable doubt. 184 The reviewing court also considers both direct and circumstanti al evidence, as well as any reasonable inferences that may be drawn from the evidence. 185 Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be suffic ient to establish guilt. 186 The evidence is insufficient when the record contains no evidence, or merely a “modicum” of evidence, probative of an
element of the offense. 187 The reviewing court does no t reevaluate the weight an d credibility of the evidence or substitute its judgment for that of the factfinder. 188 Because the jury is the sole judge of the credibility of witnesses an d of the weight given to thei r testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. 189

183 See Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App. 2011). 184 See Gear v. State, 340 S.W.3d 743, 746 (Tex . Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). 185 See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 186 See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). 187 See Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012). 188 See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 189 See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).27 To obtain a conviction fo r murder, the State must pr ove the defendant intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of an individual. 190 

### IV. The Evidence Proves Norw ood Killed The Victim Norwood claims the evidence is factually insufficient to prov e murder because it only shows he drove the victim’s car. Norwood is misstates the evidence.
The timeline of events is detailed above. In shor t, nobody else could’ve committed the crime within the established timeframe. To summarize, Norwood was near the scene 7 minutes before the Lexus left the parking lo t. He was alone. Two of his
friends identified him as th e man in dark clothes walkin g towards the bakery. Norwood stopped on 38 th Street, blocks from the bakery, an d asked Lacy about a coin machine. Nolan overheard the conversation. Lacy left with Norwood. Norwood drove to and parked the victim’s Lexus at the Kroger 10 minutes after leaving the bakery. Detective Sollenberger testified she repe atedly timed the drive from 38 th to the Kroger. 191 On average the drive take s 7 1⁄2 to 8 1⁄2 minutes. 192 There was no time for anyone else to have committed the murder, stolen the car, have a conversation about a coin machine, and then drive Lacy to the Kroger. 193 When Norwood and Lacy left Kroger, Norwood told Lacy he was taking a

190 T EX
. P ENAL C ODE § 19.02(b)(2). 191 R.R. VI: 70, 33-34. 192 R.R. VI: 70. 193 See Palomo v. State , 352 S.W.3d 87, 90-91 (Tex. App.---Houston [14 th Dist.] 2011, pet. ref’d) (circumstantial evidence of guilt include proximity to the murder scene near the time of the murder).28 penitentiary chance by driving the car. He said Lacy shouldn’t tell anyone about the car. And he told Lacy he hit a lick. The jury could reasonab ly conclude that Norwood’s admissions, coupled with the other evidence , was proof his consciousness of guilt. The jury also knew Norwood had both the victim’s car key and his cellphone after the assault. When the pol ice got to the bakery, they foun d the victim’s keyring next to him. The Lexus key was mi ssing. Lacy testified Norwood had the key when he was driving the Lexus minutes afte r the victim was hurt. Simm ons testified Norwood gave her the victim’s cellphone. The jury could reasonably conclu de car keys and a cellphone would’ve been on the victim or in his immediate reach. The car key was never found. Based on his injuries and th e timing, the jury could re asonably infer that only the murderer would have those items. 194 Lacy testified Norwood had a cloth bag wi th coins. Norwood made Lacy pull the bag out of the Kroger trash can. Lacy test ified Norwood threw the bag out as they drove away. The victim’s wife testif ied her husband kept coins in a cloth bag. The jury could reasonably infer Norwood’s ac tion of disposing of the cl oth bag was an inference of guilt. 195 Throwing the coin bag away and hidi ng the car key were not Norwood’s only attempt to conceal evidence. Lacy testified Norwood wiped the car down every time he

194 See Flores v. State , 551 S.W.2d 364, 369 (Tex. Crim. App. 1977) (holding a defendant’s unexplained possession of a victim’s stolen property ma y be sufficient to sustain a conviction). 195 See Miller v. State , 177 S.W.3d 177, 184 (Tex. App.---Houston [1 st Dist.] 2005, pet. ref’d) (attempting to hid evidence is circumstantial evidence of guilt).29 got out of the car. When the police processed the car for fi ngerprints, they found wipe marks. They also found Norwood’s fingerpr int. This is more proof of Norwood’s guilt. 196 Viewing the evidence in the light most favorable to the ju ry’s verdict, the evidence establishes Norwood murder ed the victim and took his SUV. Norwood’s second issue should be overruled.

196 See id

.30 CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment of the Trial Court be a ffirmed in all respects. Respectfully submitted, JACK ROADY CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY, TEXAS

/s/ Rebecca Klaren REBECCA KLAREN Assistant Crim inal District Attorney State Bar Number 24046225 600 59 th Street, Suite 1001 Galveston, Texas 77551 Tel (409)770 -6004/Fax (409)621-7952 rebecca.klaren@co.galveston.tx.us31 CERTIFICATE OF SERVICE The undersigned Attorney fo r the State certifies a copy of the forego ing brief was sent via email, eFile service, or certified mail, return receipt request ed, to Zachary S. Maloney, attorney for Harold Joseph Norwood, Jr., at zachmaloeny@gmail.com or 2925 Gulf Freeway South Suite B #295, Leag ue City, Tx 77573, on August 3, 2015.

/s/ Rebecca Klaren REBECCA KLAREN Assistant Crim inal District Attorney Galveston County, Texas

CERTIFICATE OF COMPLIANCE The undersigned Attorney fo r the State certifies this br ief is computer generated, and consists of 6,284 words.

/s/ Rebecca Klaren REBECCA KLAREN Assistant Crim inal District Attorney Galveston County, Texas