PD-1641-14 

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS 

KIRBY HALL

 Petitioner/Appellant 

v. 

THE STATE OF TEXAS

Respondent/Appellee 

On Petition for Discretionary Review from the Fourteenth Court of Appeals 

In Cause No. 14-13-00742-CR, affirming the conviction in 

Cause No. 1394653 from the 228th District Court of Harris County, Texas 

PETITION FOR DISCRETIONARY REVIEW

ORAL ARGUMENT REQUESTED ALEXANDER BUNIN

 Chief Public Defender 

Harris County, Texas 

 FRANCES BOURLIOT

 Assistant Public Defender 

 Harris County, Texas 

Texas Bar No. 24062419 

1201 Franklin, 13th Floor 

Houston, Texas 77002 

Phone: (713) 368-0016 

Fax: (713) 437-4317 

frances.bourliot@pdo.hctx.net

 

Counsel for Petitioner 

PD-1641-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 1/14/2015 11:29:58 PM

Accepted 1/16/2015 2:09:11 PM

ABEL ACOSTA

CLERK
ii 

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Kirby Hall 

 TDCJ # 01880638 

 Alfred Hughes Unit 

 Route 2 Box 4400 

 Gatesville, Texas 76597 

 

TRIAL PROSECUTORS: Ms. Gretchen Flader 

 Ms. Jane Waters 

Assistant District Attorneys 

 Harris County, Texas 

 1201 Franklin, Suite 600 

 Houston, Texas 77002 

DEFENSE COUNSEL AT TRIAL: Rudy Duarte 

 2016 Main, Suite 103 

 Houston, Texas 77002 

PRESIDING JUDGE: Hon. Marc Carter 

 228th District Court 

 Harris County, Texas 

1201 Franklin, 16th Floor 

Houston, Texas 77002 

COUNSEL ON APPEAL FOR APPELLANT: Frances Bourliot 

 Assistant Public Defender 

 Harris County, Texas 

 1201 Franklin, 13th Floor 

 Houston, Texas 77002 
iii 

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................. ii 

TABLE OF CONTENTS .......................................................................................... iii 

INDEX OF AUTHORITIES ..................................................................................... iv 

STATEMENT REGARDING ORAL ARGUMENT ......................................................... 1 

STATEMENT OF THE CASE ..................................................................................... 1 

STATEMENT OF PROCEDURAL HISTORY ................................................................ 1 

QUESTION FOR REVIEW ........................................................................................ 1 

DID THE COURT OF APPEALS ERR WHEN IT FOUND THAT YBARRA AND 

GARZA WERE NOT ACCOMPLICES AND THAT THE EVIDENCE WAS 

LEGALLY SUFFICIENT TO UPHOLD MR. HALL’S CONVICTION?

REASON FOR GRANTING REVIEW ......................................................................... 2 

ARGUMENT .......................................................................................................... 2 

PRAYER ............................................................................................................... 8 

CERTIFICATE OF SERVICE .................................................................................... 9 

CERTIFICATE OF COMPLIANCE ............................................................................ 9 
iv 

INDEX OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ...................................................... 6 

Casanova v. State, 383 S.W.3d 530 (Tex. Crim. App. Nov. 21, 2012).. ........................................ 7 

Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007) ..................................................... 7

Curtis v. State, 573 S.W.2d 219 (Tex. Crim. App. 1978). ...................................................... 6 

Hall v. State, 14-13-00742-CR, 2014 WL 6085585 (Tex. App.—Houston [14th Dist.] 

Nov. 13, 2014) ................................................................................................................... 1, 5 

Hooper v. State, 214 SW.3d 9 (Tex. Crim. App. 2007) ........................................................... 2 

Jackson v. Virginia, 443 U.S. 307 (1979) .............................................................................. 2, 6 

Nava v. State, 379 S.W.3d 396 (Tex. App. – Houston [14th Dist.] 2012, aff’d 415 S.W.3d 289 

(Tex. Crim. App. 2013) ............................................................................................................ 6

Temple v. State, 342 S.W.3d 572 (Tex. App.--Houston. [14th Dist.] 2010, no pet.) .......... 6 

Thompson v. State, 514 S.W.2d 275 (Tex. Cr. App. 1974) ...................................................... 6 

Wincott v. State, 59 S.W.3d 691 (Tex.App.-Austin 2001, pet. ref'd) .................................... 7 

Statutes

Tex. Code Crim. Proc. art. 38.14. ........................................................................................... 5

 
1 

STATEMENT REGARDING ORAL ARGUMENT

Petitioner requests oral argument as it may aid the Court since the analysis of 

this case depends upon a detailed review of the record. 

STATEMENT OF THE CASE

This petition seeks review of a direct appeal brought after a conviction for 

aggravated assault of a peace officer. On August 12, 2013, Mr. Hall’s case was called 

for a jury trial; he was arraigned and entered a plea of not guilty. (3 R.R. at 19). On 

August 15, 2013, the jury found Mr. Hall guilty as charged in the indictment. (5 R.R. 

at 108). On August 16, 2013, the trial court assessed his punishment at fifty (50) years 

confinement in the Texas Department of Criminal Justice – Institutional Division. (6 

R.R. at 60). 

STATEMENT OF PROCEDURAL HISTORY 

On November 13, 2014, in an unpublished memorandum opinion, the 

Fourteenth Court of Appeals affirmed Mr. Hall’s conviction. Hall v. State, 14-13-

00742-CR, 2014 WL 6085585 (Tex. App.—Houston [14th Dist.] Nov. 13, 2014). See

Appendix. No motion for rehearing was filed. 

QUESTION FOR REVIEW

DID THE COURT OF APPEALS ERR WHEN IT FOUND THAT YBARRA AND 

GARZA WERE NOT ACCOMPLICES AND THAT THE EVIDENCE WAS 

LEGALLY SUFFICIENT TO UPHOLD MR. HALL’S CONVICTION?
2 

REASON FOR GRANTING REVIEW

The opinion of the Fourteenth Court of Appeals conflicts with decisions by 

this Court and the Supreme Court of the United States in that its determination that 

the evidence is legally sufficient conflicts with Jackson v. Virginia, 443 U.S. 307 (1979) 

and Hooper v. State, 214 SW.3d 9 (Tex. Crim. App. 2007). 

ARGUMENT

DID THE COURT OF APPEALS ERR WHEN IT FOUND THAT YBARRA 

AND GARZA WERE NOT ACCOMPLICES AND THAT THE EVIDENCE WAS 

LEGALLY SUFFICIENT TO UPHOLD MR. HALL’S CONVICTION?

On the night that this incident occurred, several people including Ybarra, 

Garza, and Hall, gathered for a party at Rodriguez’s house. (3 R.R. at 205). Ybarra and 

Rodriguez were very close. (3 R.R. at 204). Garza and Rodriguez had recently met and 

Rodriguez had picked up Garza to bring her to his party. (4 R.R. at 71-72). Later that 

evening, Ybarra agreed to drive Gonzalez and Garza home. (3 R.R. at 212). Hall had 

shown them a gun and Rodriguez suggested that they go to an area close to his exgirlfriend’s house to shoot the gun. (3 R.R. at 195). Ybarra drove Hall, Rodriguez, 

Garza, and Gonzalez to the area Rodriguez suggested to shoot the gun. (3 R.R. at 

198-199). The group dropped Gonzalez off at home and, on the way to Garza’s 

house, Rodriguez shot the gun out of the window. (3 R.R. at 202-203). Ybarra began 

to get nervous that someone would call the police because of the gunshots. (3 R.R. at 

204). 
3 

 Officer Alan Whitlock received a call around 2:00 a.m. and was dispatched to 

an apartment complex for a disturbance call. (3 R.R. at 39, 43). As he and the other 

units were walking back to the vehicles, they heard several rounds of gunfire in the 

area. (3 R.R. at 44). Whitlock observed two suspicious vehicles and decided to activate 

his lights and initiate a traffic stop. (3 R.R. at 49-53). Whitlock decided to call for 

another unit because he felt the passengers in Ybarra’s car were making furtive 

movements; before Whitlock could call for another unit, the Cadillac started to roll 

forward slowly and turn left. (3 R.R. at 56-57). Whitlock followed the Cadillac and 

then saw the passenger in the back left side lean out of the window with a gun. (3 R.R. 

at 60, 62-63). He originally identified the driver as the shooter but in retrospect 

decided it must have been the back seat passenger because the car never stopped 

moving. (3 R.R. at 61, 94). Whitlock never looked at a photo spread because he did 

not believe he would be able to pick out the person who fired the shot. (3 R.R. at 82). 

 Ybarra testified that Hall told him not to stop the car after Whitlock had 

initiated the stop. After Ybarra stopped the car, Hall allegedly told Rodriguez to shoot 

the cop. (3 R.R. at 230-231). Ybarra tried to tell Rodriguez to throw the gun out of the 

car. (3 R.R. at 232). Rodriguez, however, passed the gun to Hall. (3 R.R. at 233-236). 

As Ybarra was driving off, he heard shots and saw Hall getting back into his seat. (3 

R.R. at 233-236). Ybarra never saw Hall lean out of the car and shoot at Whitlock. (4 

R.R. at 43). Rodriguez, Garza, and Hall eventually jumped out of the car. (3 R.R. at 

238-40). 
4 

Ybarra ran to Rodriguez’s aunt’s house and Rodriguez called him while he was 

there. (3 R.R. at 218, 4 R.R. at 11-12). Garza ran with Rodriguez to his house. (4 R.R. 

at 103). About ten minutes later, Hall arrived at Rodriguez’s house without the gun 

and stayed for a short time. (4 R.R. at 103-104). 

Wanting to protect Rodriguez, Ybarra initially told the police that he was with 

two black males and a Puerto Rican. (4 R.R. at 15). Garza ran with Rodriguez to his 

house. (4 R.R. at 103). 

Ybarra and Rodriguez were both no-billed by the grand jury on charges of 

attempted capital murder of a peace officer. (3 R.R. at 193-194, C.R. at 58). In 

connection with this case, Ybarra plead guilty to evading arrest in a motor vehicle. (4 

R.R. at 23-24). Garza was charged with evading arrest in connection to this case and 

she pleaded guilty and received probation. (4 R.R. at 123-124). 

 Hall was found hiding in a tree. (5 R.R. at 20). When Hall was arrested and 

when he gave his buccal swab, he gave his name as Kendall Davis with a birthdate of 

October 9, 1988. (5 R.R. at 19-20). Law enforcement later found out that Kendall 

Davis’s real name was Kirby Hall and that his real date of birth is May 10, 1989. (5 

R.R. at 51). Hall had a warrant for his arrest out of Louisiana and that warrant was for 

an offense where he could get up to life in prison. (5 R.R. at 53). 

 GSR samples and buccal swabs were taken from several people, including Hall 

and Ybarra. (3 R.R. at 117-118, 125-126). The Cadillac was also swabbed for DNA 

residue and fingerprints. (3 R.R. at 175, 178). Hall’s fingerprints were not found in any 
5 

of the swabs from the Cadillac. (3 R.R. at 182). No latent prints were found on any of 

the recovered shell casings. (3 R.R. at 190). The GSR analysis showed no particles 

present on Hall’s hands or clothing. (4 R.R. at 179, 185). The GSR analysis of Ybarra 

was inconclusive. (4 R.R. at 179). None of the DNA swabs taken from the car 

matched Hall. (4 R.R. at 209). 

Ybarra, Rodriguez, and Garza all knew that the gun was in the car and they had 

discussed a plan to shoot the gun over in an area that Ybarra and Rodriguez were 

familiar with. It should have been foreseen that shooting a firearm into a 

neighborhood might attract the attention of law enforcement and that in entering into 

that conspiracy someone might get shot. In fact, Ybarra was nervous that someone 

would call the police because of the gunshots. (3 R.R. at 204). Officer Whitlock heard 

those gunshots and, finding Ybarra’s car suspicious, initiated a traffic stop—Ybarra 

drove away from Whitlock. (3 R.R. at 44, 56-57). 

Mr. Hall challenged the legal sufficiency of the State’s evidence regarding the 

aggravated assault, arguing that Ybarra and Garza were both accomplices as a matter 

of fact and that the independent corroborating evidence was insufficient. On appeal, 

the Court of Appeals found the evidence legally sufficient to support the judgment 

because: “[t]here is no evidence that Ybarra and Garza were appellant's accomplices 

as a matter of fact; therefore, there is no requirement of corroboration. See Tex. Code 

Crim. Proc. art. 38.14.”. Hall v. State, 14-13-00742-CR, 2014 WL 6085585, at *4 (Tex. 

App.—Houston [14th Dist.] Nov. 13, 2014). 
6 

An appellate court is to apply a “rigorous” Jackson v. Virginia analysis of the 

sufficiency of evidence. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 

2010). See, also, Temple v. State, 342 S.W.3d 572, 628 (Tex. App.--Houston. [14th Dist.] 

2010, no pet.) (McCally, J., dissenting to denial of rehearing en banc). In evaluating 

the sufficiency of the evidence, the appellate court must view all of the evidence in the 

light most favorable to the verdict to determine whether any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 319 (1979). 

 “Where several people act together in pursuit of an unlawful act each one is 

liable for collateral crimes, even though unplanned and unintended, if those crimes are 

the foreseeable, ordinary and probable consequences of the preparation or execution 

of the unlawful act.” Thompson v. State, 514 S.W.2d 275 (Tex. Cr. App. 1974); Curtis v. 

State, 573 S.W.2d 219, 223 (Tex. Crim. App. 1978). For example, in Nava v. State, three 

co-defendants entered into a conspiracy to commit felony theft by purchasing what 

they believed to be stolen televisions from an undercover police officer. While 

attempting to make this transaction, one of the co-defendants shot and killed the 

undercover officer. Nava v. State, 379 S.W.3d 396, 404-405 (Tex. App. – Houston [14th

Dist.] 2012, aff’d 415 S.W.3d 289 (Tex. Crim. App. 2013). The court held the evidence 

was sufficient, finding that because the co-defendants knew that a gun was being 

brought to the transaction, the co-defendants who did not shoot the officer should 

have anticipated it was a potential result. Nava, 379 S.W.3d at 406. 
7 

 The same logic applies to the case at bar. All of the parties knew of the gun and 

should have anticipated the potential of an aggravated assault. Thus, all are 

accomplices under the theory of party liability. 

The testimony of an accomplice is inherently untrustworthy and should be 

viewed with caution because “the accomplice is a corrupt source who may well have 

improper incentives when testifying against the accused-e.g., to redirect blame or to 

gain favor with the State in exchange for a reduced punishment.” Wincott v. State, 59 

S.W.3d 691, 698 (Tex.App.-Austin 2001, pet. ref'd). In reviewing the sufficiency of the 

corroborating evidence, the appellate court must eliminate from its consideration all 

accomplice testimony and review the remaining portions of the record to determine 

“if there is any evidence that tends to connect the accused with the commission of the 

crime.” Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The 

corroborating evidence does not need to be sufficient by itself to convict the accused. 

Casanova v. State, 383 S.W.3d 530 (Tex. Crim. App. Nov. 21, 2012). 

 Whitlock was not able to identify Hall as the shooter and there was no GSR, 

DNA, or fingerprint evidence linking Hall to the incident. None of Hall’s clothes 

were found to have GSR even though the accomplices testified that Hall had shot the 

gun earlier that evening. In contrast, Ybarra’s right hand had gunshot residue and 

Rodriguez’s fingerprints and palm prints were found on the rear driver’s side of the 

car. The fact the physical evidence more strongly indicates Ybarra or Rodriguez as the 
8 

shooter provides a motive to implicate Hall. This motive and attempt to shift blame is 

the very reason the accomplice witness rule exists. 

Because there is no evidence other than the uncorroborated accomplice 

testimony that identifies Hall as the individual who shot at Whitlock, the evidence is 

legally insufficient to support a conviction for aggravated assault of a peace officer. 

The Court of Appeals erred in holding that Ybarra and Garza were not accomplices 

as a matter of fact and that the evidence was legally sufficient to prove that Mr. Hall 

committed an aggravated assault on a peace officer. 

PRAYER

Mr. Hall asks the Court to grant his petition and conduct a full review of his 

appeal in the Fourteenth Court of Appeals. 

 Respectfully submitted, 

 ALEXANDER BUNIN

 Chief Public Defender 

 Harris County Texas 

 

/s/Frances Bourliot 

 ______________________________ 

 FRANCES BOURLIOT

 Assistant Public Defender 

 Harris County, Texas 

Texas Bar No. 24062419 

1201 Franklin, 13th Floor 

Houston, Texas 77002 

Phone: (713) 368-0016 

Fax: (713) 437-4317 

frances.bourliot@pdo.hctx.net
9 

CERTIFICATE OF SERVICE 

 This is to certify that a copy of the foregoing petition for discretionary review 

has been served on the District Attorney of Harris County, Texas, by e-file on the 

14th day of January, 2015. A copy has also been sent by e-file to the State Prosecuting 

Attorney, also on the 14th day of January, 2015. 

 /s/Frances Bourliot 

 _________________________________ 

 Frances Bourliot 

Certificate of Compliance 

 Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief 

complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i). 

1. This brief contains 2,669 words printed in a proportionally spaced typeface. 

2. This brief is printed in a proportionally spaced, serif typeface using Garamond 

14 point font in text and Garamond 13 point font in footnotes produced by 

Microsoft Word software. 

3. Upon request, undersigned counsel will provide an electronic version of this 

brief and/or a copy of the word printout to the Court. 

4. Undersigned counsel understands that a material misrepresentation in 

completing this certificate, or circumvention of the type-volume limits in Tex. R. App. 

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against 

the person who signed it. 

 /s/Frances Bourliot 

 ________________________________ 

 Frances Bourliot 
Hall v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2014 WL 6085585

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR

DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

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

Court of Appeals of Texas,

Houston (14th Dist.).

Kirby HALL a/k/a Kendell Davis, Appellant

v.

The STATE of Texas, Appellee.

No. 14–13–00742–CR. | Nov. 13, 2014.

On Appeal from the 228th District Court, Harris County,

Texas, Trial Court Cause No. 1394653.

Attorneys and Law Firms

Frances Young Bourliot, for Kirby Hall aka Kendell Davis.

Alan Curry, for State of Texas.

Panel consists of Chief Justice FROST and Justices

CHRISTOPHER and BUSBY.

MEMORANDUM OPINION

TRACY CHRISTOPHER, Justice.

*1 Appellant Kirby Hall a/k/a Kendell Davis appeals his

conviction for aggravated assault against a public servant

challenging the sufficiency of the evidence to support his

conviction. See Tex. Penal Code § 22.02(b)(2)(B). Finding

sufficient evidence to support appellant's conviction, we

affirm.

I. BACKGROUND

On September 1, 2011, Harris County Sheriff's Deputy Alan

Whitlock was dispatched to a disturbance in an apartment

complex. As he drove to the location of the disturbance

Whitlock heard shots fired. Soon after hearing the shots fired,

Whitlock observed a white Cadillac and a black car driving

very close together. Whitlock testified this was suspicious

in that it was approximately 2:00 a.m. and there were no

other cars in the area. When Whitlock pulled behind the white

Cadillac he noticed the passengers of the car making furtive,

suspicious movements. Whitlock turned on his emergency

lights to stop the Cadillac. When the driver of the car did not

stop, Whitlock turned on his siren and followed the car. As

the car went around a curve Whitlock saw the passenger in the

back left side behind the driver lean out of the window with a

gun. Whitlock could not identify the individual with the gun

other than his race, which was African–American. Whitlock

then heard gunfire and felt a bullet hit his chest.

Juan Ybarra, the owner of the white Cadillac, testified that

on the day of the offense, he went to Richard Rodriguez's

house to drink and to smoke marijuana with six or seven of

their mutual friends including Jose Gonzalez, Brianna Garza,

and appellant. At some point in the evening, Ybarra planned

to drive Gonzalez and Garza home. Appellant left the house

for a few minutes, returned with a rifle, and said to Ybarra,

“Let's go shoot this.” At that point, Ybarra, Rodriguez, and

appellant decided to shoot the gun, then drive Gonzalez and

Garza home. Rodriguez knew of a location where neighbors

shot guns without anyone calling the police.

When they arrived at the location described by Rodriguez,

Ybarra stopped the car, appellant got out, shot the gun

in the air four or five times, and got back in the front

passenger seat of the car. Ybarra then drove to Gonzalez's

house. After Gonzalez got out of the car, the rest of the

passengers changed positions. Rodriguez moved to the front

passenger seat, Garza sat behind Rodriguez in the right back

passenger seat, and appellant sat behind Ybarra in the left

back passenger seat. As Ybarra drove out of Gonzalez's

neighborhood, Rodriguez leaned out of the front passenger

seat and fired the gun once. Ybarra became nervous about

Rodriguez and appellant shooting the gun, and decided to

drive them back to Rodriguez's house before taking Garza

home. Ybarra testified, “I wanted to get that gun out of my

car as quick as I could.”

As Ybarra was driving toward Rodriguez's house he saw two

patrol cars pass. One of the cars shined its spotlight on the car

and activated its emergency lights. Although appellant told

him not to stop, Ybarra stopped the car. At this time, Ybarra

testified that everyone was afraid because the gun was sitting

in the front seat of the car. Ybarra told Rodriguez to throw the

gun out of the window. Appellant told Rodriguez to shoot the

police officer. Rodriguez gave the gun to appellant explaining

that he did not want to shoot the police officer. At this point,
Hall v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Ybarra sped up because he was afraid if he stopped for the

police car that appellant would shoot him. As Ybarra was

driving he heard three to four gun shots in quick succession.

Shortly after the shooting, when Ybarra slowed the car to

make a turn, Rodriguez and Garza jumped out of the moving

car. Later, appellant jumped out of the car. Ybarra eventually

pleaded guilty to evading arrest with a motor vehicle.

*2 Brianna Garza testified and gave an account similar to

that of Ybarra. Garza testified that it was her understanding

that she would be driven home before the men began

shooting the gun. She recounted the initial shooting in

the field, Rodriguez shooting the gun while the car was

moving, the police attempting to stop them, appellant telling

Rodriguez to shoot the officer, and Rodriguez refusing to

do so. When appellant took the gun and said he was going

to shoot the officer, Garza hit the back of the gun in an

attempt to stop appellant from shooting. Garza thought that

appellant attempted to point the gun at Ybarra because Ybarra

was stopped for the police car and did not want to flee.

Garza testified that as appellant began shooting, she and

Rodriguez jumped out of the car. Garza and Rodriguez ran to

Rodriguez's house. Appellant returned to Rodriguez's house

approximately ten minutes later, but left again when the

police arrived. Garza pleaded guilty to evading arrest.

Appellant was convicted of aggravated assault against a

public servant and sentenced to 50 years in prison.

II. SUFFICIENCY OF THE EVIDENCE

In a single issue appellant claims the evidence is insufficient

to support his conviction. Specifically, appellant contends

that the evidence does not sufficiently corroborate the

testimony of the accomplice witnesses.

In evaluating the sufficiency of the evidence, we must view

all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The accomplice-witness rule 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. art. 38 .14. The rule derives

from the legislative determination that accomplice testimony

must be taken with a degree of caution. Nolley v. State, 5

S.W.3d 850, 852–53 (Tex.App.-Houston [14th Dist.] 1999,

no pet.). The underlying rationale is that the accomplice is

a corrupt source who may well have improper incentives

when testifying against the accused-e.g., to redirect blame

or to gain favor with the State in exchange for a reduced

punishment. Wincott v. State, 59 S.W.3d 691, 698 (Tex.App.-

Austin 2001, pet. ref'd). For these reasons, an accomplice

witness is a “discredited witness,” and regardless of how

completely the accomplice may outline the facts of a case,

the jury may not convict the accused without additional

corroborating evidence. Walker v. State, 615 S.W.2d 728, 731

(Tex.Crim.App.1981); Gaston v. State, 324 S.W.3d 905, 908–

09 (Tex.App.-Houston [14th Dist.] 2010, pet. ref'd).

Before turning to whether the evidence was sufficiently

corroborated, we review whether Ybarra and Garza were

accomplice witnesses. 1 An accomplice is an individual

who participates with a defendant before, during, or after

the commission of the crime and acts with the requisite

culpable mental state. Cocke v. State, 201 S.W.3d 744,

747 (Tex.Crim.App.2006); Yost v. State, 222 S.W .3d 865,

871 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd). Such

participation must involve an affirmative act that promoted

the commission of the offense with which the accused

was charged. Paredes v. State, 129 S.W.3d 530, 536

(Tex.Crim.App.2004).

*3 To sustain a conviction for aggravated assault of a

public servant the evidence must demonstrate that: (1) the

person intentionally or knowingly threatened another with

imminent bodily injury, (2) the person used or exhibited a

deadly weapon during the commission of the assault, and (3)

the offense was committed against a person the actor knew

was a public servant while the public servant was lawfully

discharging an official duty. Tex. Penal Code §§ 22.01(a)

(2), 22.02(a)(2), (b)(2)(B). Pursuant to Texas Penal Code

sections 7.01 and 7.02, an individual can be convicted as

a party to an offense if that offense was committed by his

own conduct, by the conduct of another for which he is

criminally responsible, or both. Tex. Penal Code § 7.01. A

person is criminally responsible for an offense committed by

the conduct of another if, acting with intent to promote or

assist the commission of the offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the

offense. Tex. Penal Code § 7.02(a)(2). Therefore, we review

the record to determine whether the evidence reflects that

Ybarra and Garza could have been convicted as parties to the
Hall v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

offense of aggravated assault of a public servant. Appellant

did not request an accomplice witness instruction at trial, nor

does he argue that Ybarra and Garza were accomplices as

a matter of law. Therefore, we address whether Ybarra and

Garza were accomplices as a matter of fact. See Druery v.

State, 225 S.W.3d 491, 497–98 (Tex.Crim.App.2007) (jury

instruction is given on an accomplice as a matter of law when

witness is charged or could be charged with the offense or

lesser-included offense; when the evidence is conflicting as

to whether witness was accomplice, jury decides whether

witness is an accomplice as a matter of fact).

The record reflects that Ybarra and Garza were present when

the offense occurred, and that they participated in the offense

of evading arrest or detention. Ybarra was charged with

evading arrest or detention in a motor vehicle, a state jail

felony. See Tex. Penal Code § 38.04(b)(1)(B). Garza was

charged with evading arrest on foot, a Class A misdemeanor.

See id. § 38.04(a). However, the record does not reflect that

Ybarra and Garza participated with appellant before, during,

or after the commission of the offense of aggravated assault

of a public servant, or acted with the requisite culpable mental

state to commit that offense.

Both Ybarra and Garza testified that they knew a gun was in

the car and that appellant and Rodriguez intended to shoot

it in an open area. Garza expected to be dropped off at

her home before any shooting began. Ybarra testified he

attempted to stop the car when the police initiated the traffic

stop, and that he only drove away because he feared appellant

would shoot him. Ybarra further testified that he instructed

Rodriguez to throw the gun out of the window. Similarly,

Garza testified that she hit the back of the gun in an attempt

to prevent appellant from shooting Whitlock. There is no

evidence that Ybarra or Garza took any affirmative act to

assist in shooting Whitlock. While they knew of the gun and

the plan to shoot it prior to commission of the offense, they

believed appellant and Rodriguez intended to shoot the gun

in an open area. Ybarra and Garza did not anticipate that

appellant would shoot a police officer, nor did they act with

the requisite culpable mental state to commit the offense of

aggravated assault of a public servant. The fact that Ybarra

and Garza were in the car, coupled with their knowledge of the

weapon when appellant shot Whitlock, does not render them

accomplice witnesses to the charged offense. See Zuniga v.

State, 393 S.W.3d 404, 414 (Tex.App.-San Antonio 2012, pet.

ref'd) (witness was not an accomplice simply because he was

a passenger in the car at scene of murder).

*4 Appellant further argues that Ybarra and Garza

participated in a conspiracy to shoot the weapon, and could be

considered accomplices under section 7.02 of the Texas Penal

Code. If in the attempt to carry out a conspiracy to commit one

felony another felony is committed by one of the 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 carrying

out the conspiracy. Tex. Penal Code § 7.02(b); Zamora v.

State, 432 S.W.3d 919, 922 (Tex.App.-Houston [14th Dist.]

2014, no pet.).

Appellant argues that Ybarra and Garza knew that the gun was

in the car and discussed a plan to shoot the gun in an open area.

Therefore, appellant argues, the parties should have “foreseen

that shooting a firearm into a neighborhood might attract the

attention of law enforcement and that in entering into that

conspiracy someone might get shot.”

The record does not reflect that Ybarra and Garza

were accomplice witnesses because they were criminally

responsible for appellant's actions under the conspiracy

theory of party liability. Appellant argues that by planning

to discharge a firearm in the city, the group should have

anticipated the potential for the offense of aggravated assault

of a public servant.

Appellant's theory is not supported by the evidence or the

Penal Code definition of co-conspirators. Section 7.02(b) of

the Penal Code provides that a person can be held criminally

responsible under the law of parties if, in the attempt to carry

out a conspiracy to commit one felony offense, another felony

is committed by one of the conspirators. See Hooper v. State,

214 S.W.3d 9, 13–14 (Tex.Crim .App.2007). Discharging a

firearm in a municipality is a misdemeanor, not a felony. See

Tex. Penal Code §§ 42.01(a)(7), (d) (discharge of a firearm

in a public place is a Class B misdemeanor) & 42.12(a),

(b) (discharge of a firearm inside the corporate limits of a

municipality having a population of 100,000 or more is a

Class A misdemeanor). The record does not contain evidence

of a conspiracy to commit a felony.

Appellant's argument is predicated on the idea that Ybarra

and Garza were accomplices to aggravated assault of a public

servant. The record does not support appellant's assertion.

The record reflects that Ybarra and Garza did not participate

in the shooting of the police officer, did not conspire to

shoot a police officer, nor could they have anticipated when
Hall v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

they got in the car with appellant that he would shoot a

police officer. If a State's witness has no complicity in

the offense for which an accused is on trial, the witness's

testimony is not that of an accomplice witness whatever may

have been the witness's complicity with the accused in the

commission of other offenses. Gamez v. State, 737 S.W.2d

315, 322 (Tex.Crim.App.1987). There is no evidence that

Ybarra and Garza were appellant's accomplices as a matter of

fact; therefore, there is no requirement of corroboration. See

Tex.Code Crim. Proc. art. 38.14.

*5 Based on all the evidence presented, including the

testimony of Ybarra and Garza, viewed in the light most

favorable to the verdict, we conclude a rational jury could

have found the essential elements of the offense beyond a

reasonable doubt. See Jackson, 443 U.S. at 319. We therefore

overrule appellant's sole issue, and affirm the trial court's

judgment.

Footnotes

1 In his brief appellant contends that Ybarra, Garza, and Rodriguez were accomplice witnesses. Rodriguez, however, did not testify;

therefore, we confine our review to Ybarra and Garza.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.