1

In The

Court of Appeals

Ninth District of Texas at Beaumont

_________________

NO. 09-17-00129-CR 

NO. 09-17-00130-CR

_________________

MICHAEL CHARLES MCCARTY, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 75th District Court

Liberty County, Texas

Trial Cause No. CR31891 (Counts 1 and 2)

________________________________________________________________________

MEMORANDUM OPINION

In a single indictment, the State charged Michael Charles McCarty with two 

counts of abuse of official capacity stemming from a series of incidents between 

January 1, 2013 and January 1, 2015. Both counts of the indictment alleged abuse of 

official capacity in an ongoing scheme or course of conduct. See Act of May 29, 

1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 39.02, 1993 Tex. Gen. Laws 3586, 3673–
2

74, amended by Act of May 11, 2009, 81st Leg., R.S., ch. 82, § 1, 2009 Tex. Gen. 

Laws 127, 127 (amended 2015) (current version at Tex. Penal Code Ann. § 39.02 

(West 2016)).

Count One of the indictment alleged McCarty misused government personnel 

and Count Two alleged McCarty misused government property. Both counts 

included specific instances of alleged misuse with values greater than $1,500.00 but 

less than $20,000.00. McCarty pleaded not guilty. A jury convicted McCarty on both 

counts and determined the value was between $20.00 and $500.00 on each count

which, at the time, was a Class B misdemeanor. See 1993 Tex. Gen. Laws at 3673, 

amended by 2009 Tex. Gen. Laws at 127.1 McCarty received a six-month probated 

sentence on each count and a fine of $2,000.00. McCarty now appeals. 

McCarty raises these issues on appeal2

: (1) The evidence is insufficient to

prove McCarty intentionally or knowingly misused government property or 

 1 The values of misuse and their associated punishments were amended in 

2015. See Act of May 31, 2015, 84th Leg., R.S., ch. 1251, § 28, 2015 Tex. Sess. Law 

Serv. 4208, 4219–20. Because the amendment directs that it applies only to offenses 

committed on or after the effective date of the act, September 1, 2015, and the date 

that the commission of any of the elements occurred was prior to the effective date, 

in addition to, because the defendant was charged with violating the statute pursuant 

to one scheme or continuing course of conduct, we apply the prior law in effect 

before the 2015 amendment. See Act of May 31, 2015, 84th Leg., R.S., ch. 1251, §§ 

30(a), 31, 2015 Tex. Sess. Law Serv. 4208, 4220–21. 2 McCarty raises eight issues on appeal, but there are essentially four identical 

issues for each count.
3

personnel; (2) the trial court reversibly erred in refusing his requested accomplicewitness instruction on both counts for Jo Carol Bolt; (3) the trial court reversibly 

erred in refusing his request for an accomplice-witness instruction for David Murphy

on both counts; and (4) the trial court erred in denying his motion to quash the 

indictment for both counts. We reverse the trial court’s judgment.

I. Background

McCarty was elected as Liberty County Commissioner of Precinct 1 and took 

office in January 2013. By all accounts, he had a more hands-on management style 

than prior Precinct 1 Commissioners. Before taking office, McCarty owned several 

oilfield service businesses. When he took office, only one of these businesses, 

Triangle Petroleum (Triangle), was still operating. Triangle’s operations included a 

disposal well where trucks from surrounding oilfields deposited saltwater and 

drilling waste. The only person Triangle paid during this time was Clair “Buck” 

Gordon. Gordon performed duties for Triangle and helped with McCarty’s small 

farming operation. 

Gordon began working for McCarty as a truck driver in 1989 when Triangle 

included a trucking operation. Over the years, there were periods where Gordon 

worked part-time for McCarty, periods where he worked full-time for McCarty, and 
4

yet other times where he was not working for McCarty at all. Every few years, 

Gordon would go work elsewhere. 

McCarty became ill in 2010 and was hospitalized from August until 

November. McCarty continued receiving treatment for a year after he was 

discharged from the hospital. While McCarty was sick, Gordon took care of the 

disposal well and farm for him. This was Gordon’s only employment, and McCarty 

paid him twenty dollars per hour weekly. McCarty and his wife both wrote checks 

to Gordon over the years and did not require detailed time reporting. Gordon told 

the McCartys his hours, and they wrote him a check. 

McCarty ultimately recovered and decided to run for commissioner, which 

became his primary occupation. McCarty’s election campaign was time-consuming

and took him away from his business and his farm. During the campaign, Gordon 

continued taking care of the farm and disposal well. The disposal business eventually 

slowed with the downturn of the oil market. Gordon testified McCarty paid him less 

regularly during this period, and he voiced these concerns to McCarty. When 

McCarty became commissioner, Gordon claimed McCarty owed him $13,000.00 for 

work done previously. At trial, however, McCarty testified he did not owe Gordon 

any money, and instead, advanced him money sometimes in the past. McCarty 

claimed he paid Gordon an extra $200 per week for almost a year. He also asserted 
5

he had given Gordon a lawnmower valued at $3,000.00 he expected Gordon to work 

off. Contrary to this, McCarty admitted at trial he told the Texas Ranger during the 

investigation he owed Gordon about $3,000.00. Gordon eventually went to work for 

the county as a “contract employee” for Precinct 1.3

Following an investigation by the Texas Rangers, McCarty was indicted. The 

specific charges for misuse of government personnel in the amended indictment 

were:

Directing Liberty County personnel to perform tasks related to and in 

furtherance of the Defendant’s private enterprise known as Triangle 

Petroleum Service, thereby resulting in a personal benefit to Defendant, 

and/or

Directing Liberty County personnel to perform tasks related to and in 

furtherance of the Defendant’s private farming/ranching enterprise, 

thereby resulting in a personal benefit to Defendant, and/or

Directing Liberty County personnel to purchase supplies and transport 

said supplies to Defendant’s private enterprise known as Triangle 

Petroleum Service, thereby resulting in a personal benefit to Defendant, 

and/or

Directing Liberty County personnel to perform administrative tasks 

related to or in furtherance of the Defendant’s private enterprise known 

as Triangle Petroleum Service, thereby resulting in a personal benefit 

to Defendant, and/or

 3 Witnesses, including Gordon and McCarty, consistently referred to Gordon 

as a “contract employee.” That said, the county auditor and accountant indicated the 

county incurred penalties from the IRS related to Gordon’s employment status. 
6

Directing Liberty County personnel to perform repairs on nongovernment equipment belonging to Randy Humber, a personal friend 

of the Defendant, and/or

Directing Liberty County personnel to perform tasks related to a private 

birthday celebration while on county time and while being 

compensated as county employees with no benefit to Liberty County; 

to wit: delivering supplies and equipment in preparation for the birthday 

celebration and retrieving same after the fact, and/or

Directing Liberty County personnel to perform repairs on a vehicle and 

or non-government equipment belonging to the Defendant, thereby 

resulting in a personal benefit to Defendant, and/or

Directing Liberty County personnel to transport personal cooking 

equipment belonging to the Defendant, including numerous barbeque 

pits owned by the Defendant to be utilized at a Chamber of Commerce 

event thereby resulting in a personal benefit to Defendant, and/or

Directing Liberty County personnel to use equipment belonging to 

Liberty County to grade or otherwise improve a private road that 

provides access to the Defendant’s private property, thereby resulting 

in a personal benefit to Defendant, . . . 

THAT HAD COME INTO DEFENDANT’S POSSESSION OR 

CUSTODY BY VIRTUE OF HIS OFFICE OR EMPLOYMENT, 

AND THE VALUE OF THE MISUSED THING WAS greater than 

$1,500 but less than $20,000,

And the MISUSE OF GOVERNMENT PERSONNEL was conducted 

pursuant to one scheme or continuing course of conduct which began 

on or about the 1st day of January 2013 and continued until on or about 

the 1st day of January 2015[.]
7

The acts charged as misuse of government property in the amended indictment 

were:

Directing Liberty County personnel to use a county-owned motor 

vehicle and or a truck to perform tasks related to and in furtherance of 

the Defendant’s private enterprise known as Triangle Petroleum 

Service, thereby resulting in a personal benefit to Defendant, and/or

Directing Liberty County personnel to use a county-owned motor 

vehicle and or a truck to perform tasks related to and in furtherance of 

the Defendant’s private farming/ranching enterprise, thereby resulting 

in a personal benefit to Defendant, and/or

Directing Liberty County personnel to purchase supplies and use a 

county-owned motor vehicle and or a truck and trailer to transport said 

supplies to Defendant’s private enterprise known as Triangle Petroleum 

Service, thereby resulting in a personal benefit to Defendant, and/or

Directing Liberty County personnel to use county-owned tools and or 

equipment to perform repairs on non-government equipment belonging 

to Randy Humber, a personal friend of the Defendant, and/or

Directing Liberty County personnel, to use a county-owned motor 

vehicle and or a truck to perform tasks related to a private birthday 

celebration while on county time and while being compensated as 

county employees with no benefit to Liberty County; to wit: delivering 

supplies and equipment in preparation for the birthday celebration and 

retrieving same after the fact, and/or

Directing Liberty County personnel to use county-owned tools and or 

equipment to perform repairs on a vehicle and or non-government 

equipment belonging to the Defendant, thereby resulting in a personal 

benefit to Defendant, and/or

Directing Liberty County personnel, to use a county-owned motor 

vehicle and or a truck and trailer to transport personal cooking 

equipment belonging to the Defendant, including numerous barbeque 
8

pits owned by the Defendant to be utilized at a Chamber of Commerce 

event, thereby resulting in a personal benefit to Defendant, and/or

Directing Liberty County personnel to use county-owned fuel to fill the 

fuel tank of a personal vehicle belonging to the Defendant, thereby 

resulting in a personal benefit to Defendant, and/or 

Directing Liberty County personnel to use county-owned fuel to fill the 

fuel tank of a personal vehicle belonging to Randy Humber, a friend of 

the Defendant, and/or

Directing Liberty County personnel to use a motor grader belonging to 

Liberty County to grade or otherwise improve a private road that 

provides access to the Defendant’s private property, thereby resulting 

in a personal benefit to Defendant, . . .

THAT HAD COME INTO DEFENDANT’S POSSESSION OR 

CUSTODY BY VIRTUE OF HIS OFFICE OR EMPLOYMENT, 

AND THE VALUE OF THE MISUSED THING WAS greater than 

$1,500 but less than $20,000,

And the MISUSE OF GOVERNMENT PROPERTY was conducted 

pursuant to one scheme or continuing course of conduct which began 

on or about the 1st day of January 2013 and continued until on or about 

the 1st day of January 2015[.]

Several Liberty County Precinct 1 employees and former employees testified 

at trial including Gordon,Jo Carol Bolt, John Boston, Koby Box, Kenneth Etheridge, 

Randy Humber, James Lartigue, David Murphy, Edward Tanner, and McCarty.

Other county employees who testified included the County Treasurer, Precinct 2 

Commissioner, and former County Auditor.
9

At trial, Gordon testified McCarty had him run errands for Triangle in county 

vehicles on county time. Gordon also testified when he began doing contract labor 

for the county, McCarty instructed him to keep his county time and Triangle time

separate. After several months working for the county, Gordon testified McCarty 

told him to stop segregating his time and submit it all through the county, even 

though he continued to perform work for McCarty personally. McCarty disputed 

this. McCarty’s secretary, Jo Carol Bolt, testified she noticed irregularities in 

Gordon’s time sheets. Even though the County employees worked Monday through 

Thursday of each week, Bolt noticed Gordon turned in time for purported work on 

Fridays, Saturdays, and Sundays. Bolt testified Gordon at times came in late because 

he had to go to the farm or disposal well for McCarty, but McCarty instructed Bolt 

to report Gordon’s start time at 7:00 a.m. Bolt also recalled Gordon occasionally

taking county vehicles to attend to McCarty’s private business.

Several witnessestestified that McCarty directed county employees to retrieve

and deliver equipment he owned to a birthday party. There was conflicting evidence 

as to whether county employees delivered the equipment while on county time and 

using county vehicles. McCarty denied the employees set up for the birthday party

while on county time but recalled them setting up for the party on a Friday, since 

everyone agreed the party occurred on a Saturday. He also denied county employees 
10

used a county truck or trailer to do so. Even so, McCarty admitted in his testimony

he had county employees retrieve party supplies the following Monday during a 

regular work day. Box testified he spent the better part of the Monday following the 

party to tear down and clean the equipment.

Misuse of county fuel was another issue at trial. Gordon testified McCarty had 

him put county fuel in his personal vehicle. Although McCarty denied putting fuel 

in his personal vehicle as often as Gordon said, he corroborated a portion of 

Gordon’s testimony by admitting he put county fuel in his personal vehicle after 

hauling heavy loads for the county with his personal truck. McCarty also admitted 

he had Gordon put three gallons of county fuel in Gordon’s personal vehicle once,

even though it went against county policy. McCarty’s justified his action because

Bolt sent Gordon to retrieve automotive parts for the county in his personal vehicle. 

There were various allegations McCarty used county equipment for personal 

errands. McCarty admitted at trial he used a county trailer to haul bales of hay from 

Beaumont to his property, and he was aware the people of Liberty County owned 

that equipment. A State witness also testified about the typical daily rates charged to 

rent trailers and other equipment.

Finally, there were allegations McCarty instructed a county employee to grade 

a private road going to Triangle’s disposal site with a county-owned road 
11

maintainer.4 McCarty, county employee Edward Tanner, the investigating Texas 

Ranger, a mechanic who repaired the grader, the county clerk, and Liberty County 

Precinct 2 Commissioner testified about this incident. According to county 

employee Edward Tanner, McCarty called him into his office and told him to pick 

up the maintainer from a mechanic. McCarty also directed Tanner to test it for leaks 

by performing a light grade on a rock road across the street from the mechanic’s 

shop. Tanner found it odd that McCarty shut his office door when he gave these

instructions. Tanner testified he made three passes down the road where McCarty 

told him to test the machine. Tanner suggested that normally when maintaining a 

road, he would make six passes but asserted he was not there to maintain it. Instead, 

he was only checking for oil leaks. Tanner’s testimony about the need to check the 

equipment for leaks tracked the testimony of McCarty and the mechanic. 

Tanner testified that when he tested the maintainer, he did not know whether 

the road was a county road. But after Tanner tested the equipment, Bolt advised him 

the road was private and belonged to McCarty. McCarty subsequently asked Tanner 

if he told anyone what he did. According to Texas Ranger Ryan Clendennen, 

McCarty admitted he instructed an employee to grade a road in the area, which 

Ranger Clendennen determined led to the Triangle disposal well site. There was 

 4 Witnesses also referred to this piece of equipment as a “grader.”
12

conflicting testimony from the Precinct 2 Commissioner and the County Clerk about 

whether the road at issue was private or county owned. The County Clerk asserted 

it was a public road based on maps of the area, while the Precinct 2 Commissioner 

testified it was a private road and never maintained by the county. The Precinct 2 

Commissioner also testified he was aware of a “no trespassing” sign on the road.

McCarty acknowledged at trial he told the Ranger and the grand jury he believed it 

was a private road. McCarty also agreed he may have told the Ranger “[p]art of me 

said maybe technically we shouldn’t do this” about the road maintainer. 

In the charge, the trial court instructed the jury that Gordon was an accomplice 

witness as a matter of law on both counts, and his testimony required corroboration

before they could consider it. The trial court also instructed the jury that if they 

determined Box was an accomplice witness, his testimony must be corroborated as 

well. McCarty requested the trial court to include witnesses Bolt and Murphy in the

accomplice witness instruction given for Box, but the trial court denied his request. 

The jury convicted McCarty on both counts, the first of misusing county 

personnel and the second of misusing county property. The jury determined the 

value to be between $20 and $500 on both counts.
13

II. Analysis

A. Issues One and Two: Legal Sufficiency

In his first two issues, McCarty argues the evidence is insufficient to prove he 

intentionally or knowingly misused government personnel or property. See Tex. 

Penal Code Ann. § 39.02(a)(2). When there is a challenge to the sufficiency of the 

evidence, we review the evidence in the light most favorable to the verdict to 

determine whether any rational factfinder could have found the essential elements 

of the offense beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895, 

912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307 (1979)) 

(concluding the Jackson standard “is the only standard that a reviewing court should 

apply” when examining the sufficiency of the evidence); Hooper v. State, 214 

S.W.3d 9, 13 (Tex. Crim. App. 2007). We look to all evidence in the record, 

including admissible and inadmissible evidence, and direct and circumstantial 

evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The jury 

is the sole judge of the witnesses’ credibility and weight to be given to their 

testimony. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Juries may 

draw multiple reasonable inferences from facts so long as each inference is 

supported by the evidence presented at trial. Id. Accordingly, we must defer to the 
14

jury’s determinations of weight and credibility of the witnesses. See Brooks, 323 

S.W.3d at 899.

McCarty admitted to putting county fuel in personal vehicles and 

acknowledged it went against county policy. McCarty also admitted using a county 

trailer to haul hay to his farm. There was conflicting testimony about who owned the

equipment used and when county employees delivered supplies to a birthday party, 

but McCarty admitted he instructed county employees to retrieve the supplies after

the party while on county time. 

The Penal Code defines “misuse” as dealing with property contrary to:

(A) an agreement under which the public servant holds the property;

(B) a contract of employment or oath of office of a public servant;

(C) a law, including provisions of the General Appropriations Act 

specifically relating to government property, that prescribes the manner 

of custody or disposition of the property; or

(D) a limited purpose for which the property is delivered or received.

Tex. Penal Code Ann. § 39.01(2) (West 2016). 

In support of his argument the evidence was legally insufficient to support 

that he intentionally or knowingly misused government property or personnel, 

McCarty contends there was no evidence of any agreement under which McCarty 

held the property, whether a contract of employment or oath of office relevant to the 

case existed, that any laws applied to the use of the property or personnel in question, 

or that the property or personnel was delivered for a limited purpose. We disagree. 
15

The former County Auditor testified commissioners were paid about $15,000 per 

year as a vehicle allowance to pay for, maintain, and put fuel in their personal 

vehicles. So, they were not entitled to use county personnel to work on their vehicles 

or to put county fuel in their vehicles. And McCarty agreed it was wrong to put 

county fuel in personal vehicle. McCarty also conceded he used a county trailer to 

haul hay for his farm. A rational trier of fact may draw logical inferences. Jackson, 

443 U.S. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). 

From McCarty’s testimony, a jury could have determined beyond a reasonable doubt 

that policies existed prohibiting this type of use of county property and personnel 

and McCarty used the county property and personnel in violation of the limited 

purpose for which it was entrusted to him, and McCarty was aware of these 

prohibitions.

McCarty attempted to justify the tasks he directed county employees to 

perform on his personal equipment and vehicles in addition to his use of county 

equipment and personnel by pointing out he allowed the county to use his personal 

equipment, tools, and vehicle for the benefit of the county. However, this begs the 

question. McCarty’s contends on appeal that he did not intentionally or knowingly 

misuse government personnel or property, a separate element of the offense from 
16

“intent to obtain a benefit.”5 See Tex. Penal Code Ann. § 39.02 (a)(2). Similarly, in 

Campbell v. State, our sister court in Amarillo upheld the conviction of a law 

enforcement officer for abuse of official capacity relating to the officer’s use of a 

subordinate to install a computer in his home on police department time. 139 S.W.3d 

676 (Tex. App.—Amarillo 2003, pet. ref’d). In that case, Campbell argued the 

computer was for personal as well as work-related uses, and thus would benefit the 

department. Id. at 684. The Amarillo Court rejected that argument noting evidence 

of a possible benefit to the department could not render evidence of the appellant’s 

intent to obtain a personal benefit legally insufficient. Id. The Texas Supreme Court 

examined the predecessor statute to section 39.02 in determining whether a sheriff 

had misapplied county resources by directing deputies to patrol an apartment 

complex in exchange for free rent. See State ex rel. Hightower v. Smith, 671 S.W.2d 

32 (Tex. 1984). The Court held the evidence legally sufficient to support a jury 

finding the sheriff committed an illegal act. Id. at 35. Since the evidence supported 

 5 McCarty cites to a recent Texas Court of Criminal Appeals case. See

Reynolds v. Texas, 543 S.W.3d 235, 243 (Tex. Crim. App. 2018). We find that case 

to be distinguishable from the one before us. Indeed, in that case, there was no 

evidence suggesting the appellant knew her confiscation of a child’s cell phone was 

unlawful. Id. at 242. That is not the case here. There was evidence, testimony from 

McCarty in particular, that conveyed he knew what he did was against county policy. 

Thus, here there was evidence from which a rational trier of fact could determine he 

intentionally or knowingly misused government property and personnel.
17

the conclusion the patrols were done for his benefit, the court rejected the sheriff’s 

argument there was no misapplication because the patrols fulfilled a legitimate 

function of the department. Id. Likewise, we conclude McCarty’s “evidence of a 

possible public benefit, even a primary benefit, from his use of government resources 

does not negate the State’s proof of the elements of the offense.”6 See Campbell, 139 

S.W.3d at 686. 

When the record supports conflicting inferences, we presume that the jury 

resolved the conflicts in favor of the verdict. See Tate, 500 S.W.3d at 413. There was 

evidence from which the jury could determine McCarty was aware of the policies 

prohibiting the use of county property and personnel in the way he used them when 

he instructed them. Viewing all evidence in the light most favorable to the verdict,

we conclude it was legally sufficient, and the jury was rationally justified in finding 

McCarty intentionally or knowingly misused government property and personnel. 

See Brooks, 323 S.W.3d at 899. We overrule McCarty’s first and second issues.

B. Issues Three through Six: Jury Charge and Accomplice-Witness Instruction

In his next four issues, McCarty contends the trial court erred by refusing his 

request for an accomplice-witness instruction for Jo Carol Bolt and David Murphy 

 6 The Amarillo Court of Appeals performed a factual sufficiency of the 

evidence.
18

on both counts. See Tex. Code Crim. Proc. Ann. art. 38.14. (West 2005) The charge 

instructed the jury that Gordon was an accomplice as a matter of law, and his 

testimony required corroboration. The charge also instructed the jury that if it

determined Koby Box was an accomplice, the jury would have to find his testimony 

was corroborated by other evidence before they could consider it. The trial court 

refused McCarty’s requested accomplice-witness instruction for Bolt and Murphy. 

Under Almanza, we use a two-step process in reviewing jury charge error. See 

Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Almanza v. State, 

686 S.W.2d 157, 171 (Tex. Crim. App. 1985). First, we determine whether there was 

error in the charge. See Ngo, 175 S.W.3d at 743. Second, we examine whether the 

appellant was harmed by the error. See id. The level of harm required for reversal 

depends on whether the appellant preserved the error by objecting at the trial court 

level. Id. at 743–44; Ferreira v. State, 514 S.W.3d 297, 300 (Tex. App.—Houston 

[14th Dist.] 2016, no pet.). If the appellant objected to the charge, we will reverse if 

we find “some harm[.]” See Ngo, 175 S.W.3d at 743–44 (citing Almanza, 686 

S.W.2d at 171). But if the appellant failed to object to the charge, we will not reverse 

unless egregious harm is established by the record. See id. Since error was preserved

by McCarty’s timely request for an accomplice-witness instruction for Bolt and 

Murphy, we must reverse if the error is “calculated to injure the rights of 
19

defendant[.]” See Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). We must 

determine if there was some harm to the defendant. See Trevino v. State, 100 S.W.3d 

232, 242 (Tex. Crim. App. 2003) (citing Almanza, 686 S.W.2d at 171). The “some 

harm” standard requires us to find “the defendant ‘suffered some actual, rather than 

merely theoretical, harm from the error.’” Reeves v. State, 420 S.W.3d 812, 816 

(Tex. Crim. App. 2013) (quoting Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. 

App. 2008)). In this analysis, we consider “the entire jury charge, the state of the 

evidence, including the contested issues and weight of probative evidence, the 

argument of counsel[,] and any other relevant information revealed by the record of 

the trial as a whole.” Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011) 

(quoting Almanza, 686 S.W.2d at 171).

McCarty asserts that by not including an accomplice witness instruction for 

Bolt and Murphy, the jury could consider their testimony without any corroborating 

evidence to support his conviction. McCarty argues without including all these 

witnesses in the accomplice instruction, the testimony of Bolt and Murphy could be

used to corroborate the testimony of Gordon and Box and vice versa in an 

“impermissible accomplice witness loop,” which resulted in some harm to him. 

“A conviction cannot be had upon the testimony of an accomplice unless 

corroborated by other evidence tending to connect the defendant with the offense 
20

committed[.]” Tex. Code Crim. Proc. Ann. art. 38.14; Druery v. State, 225 S.W.3d 

491, 498 (Tex. Crim. App. 2007) (explaining accomplice testimony requires 

corroboration by “independent evidence tending to connect the accused with the 

crime”). An accomplice as a matter of fact is someone, who under the evidence, 

could have been charged with the same or a lesser-included offense as that with 

which the defendant was charged. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. 

App. 2013) (citing Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006)). 

There are two types of accomplice-witness instructions, and the type of 

instruction given depends on the evidence presented. Id. A correct accomplicewitness instruction advises the jury either that a witness is an accomplice as a matter 

of law or requires the jury to determine if the witness is an accomplice as a matter 

of fact. Id. For an accomplice as a matter of law, the trial court instructs the jury the 

witness is an accomplice and his (or her) testimony must be corroborated. Id.; 

Druery, 225 S.W.3d at 498. When the evidence of a witness’s complicity is 

conflicting, the instruction given by the trial court “asks the jury to (1) decide 

whether the witness is an accomplice as a matter of fact, and (2) apply the 

corroboration requirement, but only if it has first determined the witness is an 

accomplice.” Zamora, 411 S.W.3d at 510; Druery, 225 S.W.3d 498–99.
21

The trial court provided the jury an instruction asking them to decide whether 

Box was an accomplice as a matter of fact. Box worked for McCarty as a county 

employee during the summer of 2014, while on break from college. Box was 

acquainted with McCarty and graduated high school with one of McCarty’s 

daughters. Box had worked for McCarty on his farm in the past for wages. 

McCarty’s daughter informed Box that he might be able to work under her father at 

the county maintenance barn for the summer. Box testified he worked around twelve 

to fourteen weeks for the county that summer, from Memorial Day to late August. 

Box testified McCarty instructed him to assist the county maintenance crew 

however he was needed, and he was often assigned to work with Buck Gordon. On 

occasion, estimated at a couple of times per week, McCarty instructed him to 

perform personal tasks for him. Box testified that he was directed to pick up hay 

from the feed store and put it out for McCarty’s cattle. When McCarty’s horses got 

loose, he and other county employees helped to pen the horses. On other occasions, 

he was instructed to retrieve McCarty’s tools and mechanical and cooking 

equipment from a warehouse owned by McCarty, using a county truck and trailer, 

and deliver it for use in various fundraising events in the county for the volunteer 

fire department and chamber of commerce. He testified he was also instructed to 

pick up equipment and other items and deliver them to a private residence for a 
22

birthday party. On the Monday following the birthday party, he and other county 

employees were instructed to pick up the items from the party and return them to the 

county barn, where they spent much of a day cleaning them. While working for the 

county that summer, he was also asked to work on McCarty’s personal lawnmower 

and the trailer wiring on McCarty’s personal truck. He estimated he spent from ten 

to fifteen percent of his time that summer performing personal tasks for McCarty 

rather than doing work for the county.

Bolt was McCarty’s secretary at the precinct barn. She testified that while she 

questioned Gordon’s hours he submitted on his timesheets, she submitted them 

anyway. Bolt also testified she was aware Gordon performed non-county work while 

on county time. She remembered that Gordon and Box delivered hay to McCarty’s 

farm with county equipment. Bolt testified she organized work tickets for Triangle 

Petroleum while on county time, but the evidence conflicted about whether she did 

that on her own initiative or whether McCarty asked her to do so. While McCarty 

admitted Bolt organized Triangle tickets on county time, it was his position that she 

did so on her own initiative and he did not ask her to do that for him. 

David Murphy worked as a mechanic for the county for more than ten years. 

Murphy testified he helped Gordon and Box set up for a birthday party while on 

county time. Murphy admitted that he knew the birthday party was for a friend of 
23

McCarty’s and had nothing to do with his job responsibilities for the County. 

McCarty and other witnesses maintained the setup for the party did not occur while 

on county time and McCarty maintained Murphy voluntarily helped deliver items to 

the party on his own time because he wanted to borrow some of the cooking 

equipment after the party. Additionally, Murphy testified he worked on a wiring 

issue on McCarty’s personal vehicle, which he felt was inappropriate. Murphy 

estimated it took two hours to work on the wiring connection during a normal work

day. Again, McCarty justified Murphy’s assignment because a county employee had 

damaged the wiring on his personal truck while it was being used for county 

purposes.

Murphy and Bolt both suggested they were simply following McCarty’s 

directions. Bolt expressed she had concerns for her job if she refused to comply. Yet

there was no evidence in the record that either Murphy or Bolt participated in the 

alleged misuse under duress (i.e., force, threat, or coercion). Absent such threat of 

force, they can still be found to be accomplice witnesses. See State v. Trevino, 930 

S.W.2d 713, 715–16 (Tex. App.—Corpus Christi 1996, pet. ref’d).

We conclude as with Box, both Murphy and Bolt could have been charged as 

accomplices in this case, as both admitted to knowing the conduct they engaged in 

was against county policy. Thus, McCarty was entitled to an accomplice-witness 
24

instruction for Bolt and Murphy. Zamora, 411 S.W.3d at 510; Druery, 225 S.W.3d

498–99; see also Zamora v. State, 432 S.W.3d 919, 921 (Tex. App.—Houston [14th 

Dist.] 2014, no pet.) (“Zamora II”) The trial court erred in failing to include an 

accomplice-witness instruction for Bolt and Murphy. 

Having found error in the charge that was properly preserved by a timely 

request for an instruction, we must now determine if McCarty suffered “some harm”

as a result. See Ngo, 175 S.W.3d at 743–44; Almanza, 686 S.W.2d at 171. As stated 

above, when considering harm, we look to the entire jury charge, the state of the 

evidence, arguments of counsel, and other relevant information revealed by the 

record as a whole. See Barron, 353 S.W. 3d at 883 (quoting Almanza, 686 S.W.2d 

at 171).

1. Jury Charge

While the charge included an accomplice witness as a matter of law 

instruction for Gordon on both counts and an accomplice witness as a matter of fact 

for Box on both counts, the trial court summarily refused the requested accomplice 

as a matter of fact instructions for Bolt and Murphy on both counts. The trial court 

included the accomplice as a matter of fact instruction for Box, whose actions were

much like those of Bolt and Murphy in that he admitted in engaging in non-county 

business for McCarty while on county time. Although there was some dispute about 
25

the level of participation of Bolt and Murphy, there were enough facts in the record 

to raise the issue of their accomplice status. The jury members should have been 

afforded the opportunity to make that determination for themselves but were unable 

to do so given the charge presented.

2. State of the Evidence

While there is evidence from non-accomplice witnesses about some of the 

alleged misuse in this case, including McCarty’s own admissions about some of the 

alleged misuse, there are yet other instances of misuse established solely by evidence 

from accomplice witnesses with no independent corroboration. Because the 

indictment alleged an ongoing “course or scheme of conduct” with multiple manner 

and means, there is no way to distinguish whether the jury used the testimony of Bolt 

and Murphy as corroboration for some of the alleged instances of misuse. Murphy’s 

testimony was offered to corroborate the testimony of Box and Gordon about setting 

up for the birthday party. Murphy’s testimony and Box’s testimony established the 

amount of time and hourly rate for the party setup and was uncorroborated by any 

non-accomplice witness or other evidence. With respect to Gordon submitting noncounty hours for payment through the county, the jury had only Bolt’s testimony to 

corroborate Gordon’s testimony on this issue. The failure of the trial court to provide 

the requested accomplice-witness instruction for Bolt and Murphy allowed the jury 
26

to consider their testimony without first determining if they were accomplices; and 

if they were, to first determine whether their testimony could be corroborated

independent of accomplice testimony before the jury properly considered it. Because 

the State charged McCarty’s actions as an ongoing scheme with multiple manner 

and means over a period of two years, we are unable to discern whether the testimony 

of Bolt and Murphy was used to corroborate the testimony of Gordon and Box. 

Absent the accomplice-witness instruction, the jury could have done so, creating an 

impermissible accomplice witness loop, where one accomplice’s testimony supports 

that of another. See Zamora II, 432 S.W.3d at 924. Nor can we determine whether 

their testimony alone was considered as evidence of the misuse alleged by the State

without other corroborating evidence. Indeed, the trial court’s failure to instruct the 

jury on the additional accomplices as a matter of fact may have resulted in the jury 

convicting McCarty solely on the testimony of either or both Bolt and Murphy, a 

circumstance the accomplice evidence rule is designed to prevent. See Tran v. State, 

870 S.W.2d 654, 658 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

3. Arguments of Counsel

The State spent a significant portion of its closing addressing accomplicewitness testimony and instructions. Additionally, the State advised the jury that they 

did not have to prove each and every incident of misconduct included in the 
27

indictment beyond a reasonable doubt, rather they only had to prove some of them 

and their value. We find this argument by the State problematic. Because both counts 

charged the misconduct occurred as an “ongoing scheme or course of conduct,” there 

is no way to ascertain the specific instances of misconduct the jury found credible to 

support the conviction in this case and accordingly, whether accomplice-witness 

testimony alone was used by the jury to render their verdict. As charged, the State 

alleged misuse valued at “$1,500 or more but less than $20,000.” The amounts the 

jury found on each count were far less, “$20 or more but less than $500.” Clearly, 

the jury rejected much of the manner and means alleged in the indictment, but 

because we are unable to discern which of the manner and means the jury found to 

support the verdict, we cannot say there is no harm to the defendant. 

4. Other Relevant Information in the Record

Other relevant information in the record includes testimony provided by 

Texas Ranger Clendennen admitting he asked Bolt if “she [wanted] to get something 

off her chest,” while assuring her she was not in trouble. Implicit in this testimony 

is that while Bolt did something wrong, she was not going to be charged for it 

because the State was only looking to charge McCarty. Additionally, there was some 

evidence Bolt was responsible for submitting the time sheets of county employees

for payment.
28

In light of the foregoing analysis, we are unable to conclude McCarty suffered 

no harm as a result of the trial court’s error. Rather, after reviewing evidence from 

McCarty and other non-accomplice witnesses, the record, the entire jury charge, and 

the arguments of counsel, we determine McCarty suffered some harm by the trial 

court’s refusal to provide the requested accomplice-witness instructions for Bolt and 

Murphy. See Barron, 353 S.W.3d at 883; Reeves, 420 S.W.3d at 816.

We sustain issues three through six.

C. Issues Seven and Eight: The Indictment

In issues seven and eight, McCarty complains the trial court erred in denying 

his motion to quash count one and count two of the indictment. Because the 

sufficiency of the indictment sets the stage for the criminal proceedings, we address 

these issues despite our sustaining issues three though six.

We apply a de novo standard of review when examining a trial court’s 

decision on a motion to quash an indictment. See Lawrence v. State, 240 S.W.3d 

912, 915 (Tex. Crim. App. 2007). “The sufficiency of an indictment is a question of 

law.” State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

The Texas Code of Criminal Procedure sets out the requirements for an 

indictment in article 21.02 and provides that the “offense must be set forth in plain 

and intelligible words.” Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009). An 
29

indictment is usually legally sufficient if it tracks the penal statute in question. Moff,

154 S.W.3d at 602. An indictment must allege that (1) a person, (2) committed an 

offense. Teal v. State, 230 S.W.3d 172, 179 (Tex. Crim. App. 2007) (citing Cook v. 

State, 902 S.W.2d 471 (Tex. Crim. App. 1995)). To determine if a charging 

instrument alleges an offense, we must decide if the allegations are clear enough that 

one can identify the offense alleged. See id. at 180. A trial court and the defendant 

must be able to identify what penal code provision is alleged and whether that 

provision vests jurisdiction in the trial court. See id. An indictment that tracks the 

statutory language generally satisfies constitutional and statutory requirements. State 

v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).

The indictment in this case tracks the statutory language. See id.; see also Tex. 

Penal Code Ann. § 39.02. The two counts allege that McCarty, with an intent to 

obtain a benefit for himself or with intent to harm and defraud Liberty County,

intentionally or knowingly misused government personnel in Count One and 

government property in Count Two. The indictment then sets out several manner 

and means by which McCarty allegedly violated the statute. The indictment further 

states in both counts that the misuse was conducted pursuant to one scheme or course 

of conduct beginning on or about January 1, 2013 and continuing until on or about 

January 1, 2015. See Tex. Penal Code Ann. § 39.02(e).
30

McCarty asserts the indictment “did not provide [him] with sufficient notice 

to prepare a defense for trial.” McCarty complains that by failing to provide dates of 

his allegedly wrongful actions, the name of the employee he is alleged to have 

misused, or the identity of the property he is alleged to have misused, the indictment 

did not allow him to prepare adequately for trial.

Because the indictment tracks the language of the statute and specifically 

enumerates multiple ways in which McCarty is alleged to have violated the statute

on each count, we conclude it is sufficient to have put him on notice and allow him

adequately to prepare a defense for trial. The record is clear McCarty was not tried

by ambush or surprise. Indeed, he testified with clarity on each allegation against 

him and provided detailed accounts of each incident, along with his rationale for 

engaging in the otherwise prohibited conduct. 

III. Conclusion

We conclude the evidence in this case was legally sufficient to support the 

jury’s finding that McCarty knowingly or intentionally misused government 

personnel and property under the statute. We further determine the indictment was 

sufficient to put McCarty on notice and allow him adequately to prepare a defense. 

Nevertheless, the trial court erred by failing to submit accomplice-witness 

instructions for Bolt and Murphy, and we conclude this resulted in harm “calculated 
31

to injure the rights of defendant[, McCarty.]” See Tex. Code Crim. Proc. Ann. art. 

36.19 (West 2006). We reverse the judgments of the trial court on both counts and 

remand for a new trial on the merits.

REVERSED and REMANDED.

 ________________________________

 CHARLES KREGER 

 Justice

 

Submitted on May 31, 2018

Opinion Delivered October 31, 2018

Do Not Publish 

Before McKeithen, C.J., Kreger and Johnson, JJ.