COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00488-CR

ROBERT JACKSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Robert Jackson of two counts of aggravated 

robbery and sentenced him to forty years’ confinement for each count. In a 

single point, Jackson argues that the trial court erred by omitting an article 38.14 

accomplice witness instruction and that he suffered egregious harm. We will 

affirm.

 

1See Tex. R. App. P. 47.4.
2

Kelli Richey lives in Oklahoma and has had two children with Jackson. On 

September 18, 2009, Richey, Jackson, Rolando Spratt, and Spratt’s girlfriend, 

Deyonne, drove from Oklahoma to Dallas in Richey’s Isuzu Ascender to attend a 

party. Not long after arriving in Dallas, however, Richey and Deyonne headed

back to Oklahoma with the Isuzu in tow because it had broken down, but they

soon returned to Dallas in Richey’s other vehicle, a white Ford Mustang with 

racing stripes, to retrieve Jackson and Spratt.

On the way back to Oklahoma, the four decided to stop for the night at a 

Royal Inn and Suites hotel in Denton. After Richey checked into the hotel, she

and Jackson went to a nearby Dollar General store to look for a shirt. Jackson 

remained in the vehicle when Richey went inside. Richey did not find what she 

was looking for, and she and Jackson returned to the hotel.

Soon thereafter, Jackson told Richey to take him and Spratt to the Dollar 

General store. They arrived around 9:30 p.m., near closing time, and Richey 

waited in the Ford Mustang while Jackson and Spratt went inside. After asking 

Colby Nissen, a store employee, about some merchandise, Jackson pulled a gun 

on Nissen and told him to take them to the manager’s office, where Janice FoustVallon, the store’s manager, was counting money. Foust-Vallon opened the door 

when she heard a knock, and Jackson entered the office, shoved Foust-Vallon to 

the ground, and demanded money, pointing the gun at her. Foust-Vallon gave 

Jackson the cash that was in the office while Spratt detained Nissen on the floor. 
3

Holding the gun to Foust-Vallon’s ribs, Jackson then escorted her to the front of 

the store, where she gave Jackson the money from Nissen’s cash register. 

Jackson and Spratt left the store, and Foust-Vallon called the police.

Richie, Jackson, and Spratt returned to the Royal Inn and Suites to pick up 

Deyonne before leaving immediately for Oklahoma. Richie later claimed that she 

did not know that Jackson and Spratt had robbed the Dollar General until 

Jackson said that they had done so during the drive back to Oklahoma.

Authorities investigating the armed robbery learned that Jackson, Richey, 

Spratt, and Deyonne had stayed at the Royal Inn and Suites on September 20, 

2009, and they recovered video recordings taken by the hotel’s surveillance 

cameras. Investigators also obtained a surveillance video from the Dollar 

General store. Police eventually arrested Richey, Spratt, and Jackson. Like 

Jackson, Richey was indicted for aggravated robbery, but she testified against 

Jackson at trial in exchange for ten years’ deferred adjudication.

Jackson argues in his only point that he suffered egregious harm due to 

the trial court’s error in failing to include an accomplice witness instruction in the 

jury charge at the guilt phase of his trial.

In our review of a jury charge, we first determine whether error occurred; if 

error did not occur, our analysis ends. See Abdnor v. State, 871 S.W.2d 726, 

731–32 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26 
4

(Tex. Crim. App. 2009). If error occurred, we then evaluate whether sufficient 

harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731–32.

The statutory accomplice witness instruction provides that ―[a] conviction 

cannot be had upon the testimony of an accomplice unless corroborated by other 

evidence tending to connect the defendant with the offense committed; and the 

corroboration is not sufficient if it merely shows the commission of the offense.‖ 

Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). A witness who is indicted for 

the same offense or a lesser-included offense as the accused is an accomplice 

as a matter of law. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). 

If a prosecution witness is an accomplice as a matter of law, the trial court is 

under a duty to instruct the jury accordingly. Herron v. State, 86 S.W.3d 621, 

631 (Tex. Crim. App. 2002). Failure to do so is error. Id.

Here, Richey was indicted for aggravated robbery. Therefore, she was an 

accomplice as a matter of law, and the trial court erred by failing to instruct the 

jury accordingly. The State impliedly concedes this.

Having found error in the charge, we must now evaluate whether sufficient 

harm resulted from the error to require reversal. See Abdnor, 871 S.W.2d at 

731–32. An article 38.14 instruction ―merely informs the jury that it cannot use 

the accomplice witness testimony unless there is also some non-accomplice 

evidence connecting the defendant to the offense.‖ Herron, 86 S.W.3d at 632. 

―Once it is determined that such non-accomplice evidence exists, the purpose of 
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the instruction is fulfilled . . . . Therefore, non-accomplice evidence can render 

harmless a failure to submit an accomplice witness instruction by fulfilling the 

purpose an accomplice witness instruction is designed to serve.‖ Id.

―In determining the strength of a particular item of non-accomplice 

evidence, we examine (1) its reliability or believability and (2) the strength of its 

tendency to connect the defendant to the crime.‖ Id. In addressing the 

sufficiency of non-accomplice evidence, the court of criminal appeals also 

recently stated,

When reviewing the sufficiency of non-accomplice evidence 

under Article 38.14, we decide whether the inculpatory evidence 

tends to connect the accused to the commission of the offense. The 

sufficiency of non-accomplice evidence is judged according to the 

particular facts and circumstances of each case. The direct or 

circumstantial non-accomplice evidence is sufficient corroboration if 

it shows that rational jurors could have found that it sufficiently 

tended to connect the accused to the offense. So when there are 

conflicting views of the evidence—one that tends to connect the 

accused to the offense and one that does not—we will defer to the 

factfinder’s resolution of the evidence. Therefore, it is not 

appropriate for appellate courts to independently construe the nonaccomplice evidence.

Smith, 332 S.W.3d at 442 (footnotes omitted).

Jackson concedes that he failed to object to the absence of an accomplice

witness instruction; therefore, he must show that he suffered egregious harm 

from the error to obtain reversal. Herron, 86 S.W.3d at 632. Under the 

egregious harm standard, the omission of an accomplice witness instruction is 

generally harmless unless the corroborating (non-accomplice) evidence is ―so 
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unconvincing in fact as to render the State’s overall case for conviction clearly 

and significantly less persuasive.‖ Id.

Here, Foust-Vallon identified Jackson at trial as the person who entered 

the manager’s office, pointed the gun at her, and demanded money from her

during the robberies.

Narinder Singh testified that he was the manager on duty at the Royal Inn 

and Suites on September 20, 2009, and that he observed two men with Richey 

after she checked in. When the State showed Singh several still photographs 

from the hotel’s video surveillance, he identified the two men depicted in the 

photographs as the same two men who were with Richey at the hotel on 

September 20, 2009. One of the men was wearing a white T-shirt with a cross 

on it. Singh testified that he went to the Dollar General store to view footage of 

the robberies captured by the store’s surveillance video and that the two men 

that he observed in the video were the same two men that he had seen with 

Richey at the hotel.

Clint McCoy, an investigator with the Denton Police Department, testified 

that he was called to the scene after the robberies and that he viewed the 

surveillance videos from both the Dollar General and the Royal Inn and Suites. 

McCoy opined that the two men that he saw in the surveillance video from the 

Dollar General were the same two men that he saw in the surveillance video from 

the Royal Inn and Suites.
7

Michael Behrens, an officer with the Denton Police Department, testified 

that a white Ford Mustang with racing stripes was used in the robberies and that 

police in Oklahoma confirmed that a white Ford Mustang was located at Richey’s 

house the morning after the robberies. Singh also recalled that Richey and the 

others that she was with at the Royal Inn and Suites drove a white Ford Mustang 

with stripes.

When authorities visited Richey at her house in Oklahoma the day after the 

robberies, they seized a pair of black, gold, and white shoes. Detective Keith 

Martin of the Denton Police Department testified that the shoes looked identical 

to the shoes worn by one of the suspects in the surveillance video from the Dollar 

General. Detective Martin also testified that he showed Richey photographs of

the two robbery suspects and that she identified the one wearing the T-shirt with 

the cross on it as Jackson.

Accordingly, affording deference to the jury’s resolution of the factual 

issues and considering the reliability of the testimony, we hold that the nonaccomplice witness testimony sufficiently tends to connect Jackson to the 

aggravated robberies at the Dollar General. We cannot conclude that the nonaccomplice witness evidence was ―so unconvincing in fact as to render the 

State’s overall case for conviction clearly and significantly less persuasive‖; 
therefore, the trial court’s charge error was harmless. See Herron, 86 S.W.3d at 

632. We overrule Jackson’s sole point and affirm the trial court’s judgment.

BILL MEIER

JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: February 2, 2012