Ash v. State

• Decision Date: 28 June 2017
• Docket Number: NO. PD-0244-16,PD-0244-16
• Citation: 533 S.W.3d 878
• Parties: Andre Jammar ASH, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

533 S.W.3d 878

Andre Jammar ASH, Appellant

v.The STATE of Texas

NO. PD-0244-16

Court of Criminal Appeals of Texas.

Delivered: June 28, 2017

ATTORNEYS FOR APPELLANT: Stanley L. Schwieger, Attorney at Law, P.O. Box 975, Waco, TX 76703-0975.

ATTORNEYS FOR THE STATE: John R. Messinger, Assistant State Prosecuting Attorney, Box 13046, Austin, TX 78711, and Stacey Soule, Austin, TX.

OPINION

Hervey, J. delivered the unanimous opinion of the Court.

The issue in this case is whether the court of appeals erred when it held that a witness cannot be an accomplice as a matter of law unless the witness is charged with the same offense as the defendant or a lesser-included offense. We conclude that it did err in so holding, but we nonetheless affirm its judgment.

BACKGROUND

Officer Josh Tulloch initiated a traffic stop after observing a Suburban driving with "its high beams on." When he approached the vehicle, he saw five people in the car and could smell the odor of burnt marijuana emanating from an open window. Tulloch decided to remove everyone from the car. As a passenger in the second row of seats was getting out of the vehicle, Tulloch saw her wipe a green substance, which he thought was marijuana, off of her clothing. Tulloch detained everyone and searched the vehicle. During his search, he found cocaine in the door panel of the front passenger-side door, which was found to weigh approximately 41.63 grams. Even though everyone was arrested, only Ash was charged with possession of cocaine.

Ash was convicted of possession of cocaine over four grams but less than 200 grams with the intent to deliver and was sentenced to 30 years' confinement and fined $5,000. See TEX. HEALTH & SAFETY CODE § 481.112(a) & (d). Ash appealed, arguing that he was entitled to accomplice-as-a-matter-of-law instructions as to each passenger, or at least accomplice-as-a-matter-of-fact instructions. The court of appeals, however, affirmed the judgment of the trial court. Ash v. State, No. 10-14-00405-CR, 2016 WL 455121, at *2 (Tex. App.—Waco Feb. 4, 2016) (mem. op., not designated for publication). Subsequently, Ash filed a petition for discretionary review, which we granted, asking us to examine the court of appeals' holding that a witness cannot be classified as an accomplice as a matter of law in the absence of formal charges.

FACTS

On May 25, 2014, Ash was at the Pretty Lady's Gentlemen's Club in Killeen when he ran into an acquaintance who was dancing at the club, Deondra Kierra Medford (Medford). Ash told Medford that there were better opportunities for her and her friends to make money dancing in Houston than at Pretty Lady's.¹ He offered to give them a ride the next day because he needed to go to Houston to finish some business anyway. Medford's friends were Keandra Jennings (Jennings) and Demarshaye Alexander (Alexander). Neither of them had ever met Ash. Because it was raining hard the next day, however, Ash decided not to go to Houston, and the dancers found a ride to Austin where they planned to hang out. The following morning, Ash and his girlfriend, Jefferi Varnado (Varnado), picked up the three dancers in Austin, and they headed to Houston. Ash was driving a Suburban with three rows of seats.

The dancers testified that when the group arrived in Houston, it was too early for them to dance in any of the clubs, so Ash decided to drive around to find some Spice (synthetic marijuana) that he could buy. After he found some, Ash suggested that the group go to Crockett, where he was from, to hang out with "country boys." Everyone agreed, and while Ash drove them to Crockett, the dancers smoked marijuana and Varnado smoked some of the Spice.

According to Varnado, Ash drove to Crockett weekly to buy drugs from his brother, Ju Ju. Arriving in Crockett, the group briefly stopped at a park and then headed to Moon's house. (Moon was Ash's friend.) Ash told the dancers that they could go inside to shower and freshen up before they went to the club later that evening. The dancers had never met Moon, but they agreed to take showers at his house while Ash and Varnado went to Walmart to pick up a money order. Ash and Varnado were gone for about an hour and a half before they came back and picked up the dancers.

After leaving Moon's house, the group went to Ash's brother's house. Once they arrived, Ash told the girls that they could go into the house to get something to eat. Everyone went inside except for Varnado, who stayed in the vehicle. Once inside, the dancers saw Ju Ju counting cash on a table and taking some sort of notes. Alexander testified that she believed he said that the cash totaled $4,000. Ju Ju then began making sexual comments directed at Medford while referencing how much money he had. After a brief conversation with Ju Ju, the dancers got some food in the kitchen and went outside to eat in the car. Ash joined them a few minutes later after he got into an argument with the woman who was his connection to the Houston strip club. Because of the argument, the girls were not going to be able to dance at the club in Houston, so Ash asked them what they wanted to do.

Ash suggested that they to go to a club in Crockett, which they did. After the dancers talked to a few people and had a drink, they walked outside. Ash came outside later and began arguing with them about whether the group should go back to Killeen or on to Houston. They decided to go back to Killeen, but first the dancers wanted to buy some Xanax. After driving around for awhile, they ended up back at the club where they found someone who would sell them Xanax. The dancers bought two pills each.

The group then headed to Killeen. Initially, Ash was driving, Varnado was in the front-passenger seat, and Alexander, Jennings and Medford were in the second row. Alexander sat in the middle with Jennings to one side and Medford to the other. As they were driving, Medford took a Xanax and moved to the third-row seats to go to sleep. Shortly thereafter, Ash asked the others if one of them would drive the rest of the way. Jennings offered to drive because she had not taken any Xanax, and Ash agreed. Alexander moved into the front-passenger seat, and Ash and his girlfriend moved into the second-row seat.

As Jennings drove through Marlin, a small town close to Killeen, she had her high beams on as they passed a Marlin police officer. Officer Josh Tulloch initiated a traffic stop and approached the Suburban on foot. He smelled the odor of burnt marijuana emanating from the vehicle after Ash rolled down his window and stated, "Hey, you pulled us over because of high beams, huh?" While Tulloch checked Jennings's license, his partner, Officer James West, arrived. Both officers approached the vehicle and West removed Alexander from the front-passenger seat. During this process, West noticed one of the dancers in the back of the car was "stuffing something under her seat," so the police removed everyone else from the vehicle. While Varnado was getting out of the vehicle, Tulloch noticed that she had a green substance on her clothing. As she was wiping the substance off, she told the officers that it was tobacco.

Once Jennings, Alexander, Varnado, and Ash were all removed from the vehicle² and detained, Tulloch began searching the SUV. He started at the passenger's side of the vehicle. While searching, Alexander asked the officers for her cigarettes, which were in the Suburban. Tulloch searched for them but instead found a white plastic bag in "the door jamb, where the door ends." He opened the bag and found what he believed to be cocaine. At that point, Ash started yelling at the other passengers to "claim your stuff." Everyone denied knowing what the substance was or whose it was. The police arrested everyone, but only Ash was indicted for possessing the cocaine.

COURT OF APPEALS

Ash appealed his conviction, arguing that he was harmed when the trial court overruled his request for accomplice-witness instructions. Ash, 2016 WL 455121, at *1. The lower court, however, did not reach Ash's accomplice-as-a-matter-of-fact issue because it was not preserved at trial. Before addressing Ash's accomplice-as-a-matter-of-law complaint, the court of appeals set out the applicable law. It explained that a witness is an accomplice as a matter of law if he has been charged with the same offense as the defendant or a lesser-included offense. Id. at *2. It also noted that a witness is an accomplice as a matter of law if he was charged, but the charges were dismissed in exchange for testifying against the defendant. Id. In a footnote, the lower court stated that, "[t]he Court of Criminal Appeals has vacillated on whether a person who could be charged with the same or lesser included offense is an accomplice as a matter of law. The Court's current case authority does not include this type of witness as an accomplice as a matter of law." Id. at n.1 (emphasis added). The court also pointed out, however, that if the evidence "clearly shows or there is no doubt" that the witness was an accomplice, then trial judges must give an accomplice-as-a-matter-of-law instruction, and the failure to do so is error. Id. at *2.

Turning to the facts of the case, the appellate court held that the trial court did not err in overruling Ash's accomplice-as-a-matter-of-law instruction request because none of the women were charged with the same crime as Ash or a lesser-included offense. Id. Nonetheless, the court undertook an Almanza harm analysis and concluded that, even if the trial court did err in overruling Ash's request for accomplice-as-a-matter-of-fact and matter-of-law instructions,³ he was not egregiously harmed because the non-accomplice evidence was sufficient to connect Ash to the possession of the cocaine found in the vehicle. Id.

Ash petitioned this Court to review the decision of the court of appeals, arguing that it erred when it held that, without formal charges, a witness cannot be an accomplice as a matter of law.

ARGUMENTS

Ash argues...