Rhymes v. State

• Decision Date: 12 December 2017
• Docket Number: No. 06-16-00222-CR,06-16-00222-CR
• Citation: Rhymes v. State, 536 S.W.3d 85 (Tex. App. 2017)
• Parties: Octavious Lamar RHYMES, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

536 S.W.3d 85

Octavious Lamar RHYMES, Appellant

v.The STATE of Texas, Appellee

No. 06-16-00222-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: November 20, 2017

Date Decided: December 12, 2017

Rehearing Denied January 3, 2018

Discretionary Review Refused May 16, 2018

Michael P. Kopech, Law offices of Michael P. Kopech, 1309 South Jefferson Ave., Mount Pleasant, TX 75455, for Appellant.

David Colley, Assistant District Attorney, Charles C. Bailey, Titus/Camp County District Attorney, P O Box 249, Mount Pleasant, TX 75456, for Appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Burgess

After their original plan to plant illicit drugs in Ernest Lee Ibarra, Jr.'s, truck was abandoned, Johnathan Sanford, Jose Ponse, and Octavious Lamar Rhymes quickly devised another plan: they would kidnap and murder Ibarra instead.Within hours, they kidnapped Ibarra from his Titus County home and transported him to some isolated woods in Camp County where he was shot to death.Consequently, Sanford, Ponse, and Rhymes were each charged with aggravated kidnapping¹ in Titus County and with murder² in Camp County.

Sanford and Ponse pled guilty to the charges and were sentenced to fifty years' imprisonment for both the aggravated kidnapping and the murder convictions, with the sentences to run concurrently.After a jury trial, Rhymes was convicted in Titus County of aggravated kidnapping and was sentenced to twenty-three years' imprisonment.³Rhymes was later tried in Camp County, where a jury convicted him of murder and assessed him seventy-five years' imprisonment, which the trial court ordered to be run consecutively to his Titus County sentence.

In his first point of error, Rhymes (1) challenges the sufficiency of the evidence supporting his conviction and (2) complains that the trial court failed to include an accomplice-witness instruction in its jury charge.⁴In his second point of error, Rhymes asserts that the trial court erred in overruling his motion to quash the indictment because of prosecutorial and judicial vindictiveness.In his third point of error, Rhymes asserts that he received ineffective assistance of counsel at trial.Because we find (1) that sufficient evidence supports the conviction, (2) that any jury charge error was harmless, (3) that the trial court did not err in denying Rhymes' motion to quash, and (4) that ineffective assistance of counsel has not been shown, we will affirm the trial court's judgment.

I.The Trial Court's Error in Failing to Give a Proper Accomplice-Witness Instruction Was Harmless

A.Introduction

We first address Rhymes' complaint that the trial court erred in failing to given an accomplice-witness instruction.

B.Standard of Review

We review an alleged error in an accomplice-witness instruction under the procedural framework of Almanza .⁵Zamora v. State , 411 S.W.3d 504, 512(Tex. Crim. App.2013)(citingCasanova v. State , 383 S.W.3d 530, 533(Tex. Crim. App.2012);Herron v. State , 86 S.W.3d 621, 631–32(Tex. Crim. App.2002);Medina v. State , 7 S.W.3d 633, 642(Tex. Crim. App.1999) ).Under this framework, we employ a two-step process in our review of the alleged error.SeeAbdnor v. State , 871 S.W.2d 726, 731(Tex. Crim. App.1994)."Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal."Wilson v. State , 391 S.W.3d 131, 138(Tex. App.—Texarkana 2012, no pet.)(citingAbdnor , 871 S.W.2d at 731–32 ).In examining the charge for possible error, appellate courts"must examine the charge as a whole instead of a series of isolated and unrelated statements."

Dinkins v. State , 894 S.W.2d 330, 339(Tex. Crim. App.1995).Only if we find error do we analyze that error for harm.SeeAbdnor , 871 S.W.2d at 731.

C.Analysis

1.The Trial Court Failed to Give a Proper Accomplice Witness Instruction

Sanford participated in the kidnapping and murder, and he pled guilty to the aggravated kidnapping and murder of Ibarra.Therefore, he was an accomplice as a matter of law.Hall v. State , 161 S.W.3d 142, 149(Tex. App.—Texarkana2005, pet. ref'd)."If a witness is an accomplice as a matter of law, the trial court is required to provide an accomplice-witness instruction to the jury."Cocke v. State , 201 S.W.3d 744, 748(Tex. Crim. App.2006).The instruction must explain the definition of an accomplice and inform the jury that the witness is an accomplice as a matter of law.Zamora , 411 S.W.3d at 510.It must also instruct the jury regarding the requirements of Article 38.14.SeeTEX. CODE CRIM. PROC. ANN. art. 38.14(West 2005);Zamora , 411 S.W.3d at 510.

If a State witness is an accomplice as a matter of law, the trial court has a duty to include a proper accomplice-witness instruction in its jury charge, and failure to do so is error.Herron v. State , 86 S.W.3d 621, 631(Tex. Crim. App.2002).In this case, although the trial court instructed the jury regarding the requirements of Article 38.14, it failed to include the definition of an accomplice and identify Sanford as an accomplice as a matter of law.Therefore, the trial court erred in failing to give a proper accomplice-witness instruction.

2.The Trial Court's Error Did Not Harm Rhymes

Next, we must determine whether Rhymes was harmed by the trial court's omission."Where the evidence clearly shows a witness is an accomplice as a matter of law, the trial court must so instruct the jury, but if the appellant fails to object to the omission of the instruction, as in [Rhymes'] case, he or she must prove egregious harm to prevail on appeal."Hall , 161 S.W.3d at 149.Article 38.14 provides, "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.

The purpose of this instruction is to inform "the jury that it cannot use the accomplice witness testimony unless there is also some non-accomplice witness evidence connecting the defendant to the offense."Herron , 86 S.W.3d at 632.Generally, in an egregious harm analysis, "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.However, there may be harm if "the corroborating (nonaccomplice) evidence is ‘so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive.’ "Hall , 161 S.W.3d at 150(quotingHerron , 86 S.W.3d at 632 ).

To evaluate the sufficiency of corroboration evidence, we eliminate the accomplice-witness testimony from our consideration and examine the non-accomplice evidence "to ascertain if there is evidence which tends to connect the accused with the commission of the offense."Hernandez v. State , 939 S.W.2d 173, 176(Tex. Crim. App.1997)(citingReed v. State , 744 S.W.2d 112, 125(Tex. Crim. App.1988) );Burks v. State , 876 S.W.2d 877, 887(Tex. Crim. App.1994);Hall , 161 S.W.3d at 150.The non-accomplice evidence need not establish guilt beyond a reasonable doubt or directly link the defendant to the crime.Hernandez , 939 S.W.2d at 176;Gill v. State , 873 S.W.2d 45, 48(Tex. Crim. App.1994).Rather, "[t]he accomplice witness rule is satisfied if there is some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment."Hernandez , 939 S.W.2d at 176(citingGill , 873 S.W.2d at 48(citingGosch v. State , 829 S.W.2d 775, 777(Tex. Crim. App.1991), cert. denied , 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722(1993) );Cox v. State , 830 S.W.2d 609, 611(Tex. Crim. App.1992) ).

Evidence placing the defendant"in the company of the accomplice at or near the time or place of the offense is proper corroborating evidence."McDuff v. State , 939 S.W.2d 607, 613(Tex. Crim. App.1997)(citingCockrum v. State , 758 S.W.2d 577, 581(Tex. Crim. App.1988);Burks , 876 S.W.2d at 887–88 ).Further, "[i]n determining the strength of the particular item of nonaccomplice evidence, we must examine (1) its reliability or believability, and (2) the strength of its tendency to connect the defendant to the crime."Hall , 161 S.W.3d at 150(citingHerron , 86 S.W.3d at 632 ).

In this case, the non-accomplice evidence consisted of: (1) Rhymes' admissions that (a)he knew of the plan to murder Ibarra, (b)he assisted in obtaining the gloves used in the murder, (c)he assisted in the kidnapping of Ibarra, (d)he participated in taking Ibarra into the woods, and (e)he saw Ponse shoot Ibarra; (2) the facts that Rhymes received warning text messages from Wohlford during the timeframe that Ibarra was being transported to the woods and shortly after the murder; and (3) the fact that the murder weapon was found underneath Rhymes' residence.Although the location of the murder weapon could be attributed to Ponse, who was also residing at Rhymes' house, we find that the remaining evidence is reliable and clearly connects Rhymes to the murder.Therefore, we hold that the trial court's error was harmless and overrule this issue.

II.Legally Sufficient Evidence Supports the Jury's Verdict

A.Standard of Review

We next consider Rhymes' complaint regarding the sufficiency of the evidence.In evaluating legal sufficiency,⁶we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt.Brooks v. State , 323 S.W.3d 893, 912(Tex. Crim. App.2010)(plurality op.)(citingJackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979) );Hartsfield v. State , 305 S.W.3d 859, 863(Tex. App.—Texarkana2010, pet. ref'd).In our review, we focus on the quality of the...