Opinion
NO. 01-10-00873-CRNO. 01-10-00874-CR
05-10-2012
TRACIE DENISE BELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case Nos. 1157495, 1224142
MEMORANDUM OPINION
Tracie Denise Bell appeals from her conviction for theft and attempted theft, arguing that the trial court erred in its refusal to submit "accomplice witness" jury instructions with respect to certain witnesses. We affirm.
See TEX. PENAL CODE ANN. §§ 15.01, 31.03(a), (b), & (e)(6) (West 2011).
Background
The State charged Bell with theft and attempted theft in connection with funds she obtained or sought to obtain from Debra King, Chief Financial Officer for the Houston Area Urban League, in remuneration for youth basketball camps Bell purportedly conducted through her nonprofit organization, The Youth Outlet. The State alleged that Bell submitted falsified documents to the Urban League, claiming to have run basketball camps that never took place and claiming that fictitious children attended the camps, in order to obtain grant funds provided to the Urban League by the American National Red Cross Hurricane Recovery Program for funding youth activity programming for children directly affected by Hurricanes Katrina, Rita, or Wilma.
Among the witnesses who testified against Bell were Marcus Nasia, Melba Hamilton, Evelyn Robinson, Vanessa Ausley, Stephanie Simon, and Elliott Dupree—each of whom assisted Bell to some degree in connection with the allegedly fraudulent basketball camps and paperwork. At the charge conference, the trial court ruled that, in the attempted theft case, it would instruct the jury that Dupree was an accomplice witness as a matter of law and that the jury was to decide whether Simon and Ausley were accomplice witnesses as a matter of fact. Bell requested that the trial court also instruct the jury that Hamilton, Robinson, and Nasia were accomplices as a matter of law or, alternatively, instruct the jury to decide whether they were accomplices as a matter of fact. The State argued that Hamilton, Robinson, and Nasia were not accomplice witnesses because there was no evidence that they knew that Bell was going to use the paperwork they assisted in filling out to commit or attempt to commit theft—i.e., they lacked the requisite mental state for the crime charged. The trial court denied Bell's requests for accomplice-witness instructions with respect to Hamilton, Robinson, and Nasia.
The jury convicted Bell on both charges. On the conviction for theft of property with an aggregate value of $100,000 to $200,000, the jury sentenced her to fifteen years' confinement and assessed a $3,300 fine. On the conviction for attempted theft of property with a value in excess of $200,000, the jury sentenced her to sixteen years' confinement and assessed a $6,460 fine. Bell appeals the trial court's denial of her requested accomplice-witness instructions.
Standard of Review
If the evidence at trial raises a question of fact as to whether a witness is an accomplice, the trial court must instruct the jury to decide whether the witness is an accomplice; if the evidence conclusively establishes that a witness is an accomplice, the trial court must instruct the jury that the witness is an accomplice as a matter of law. Druery v. State, 225 S.W.3d 491, 498-99 (Tex. Crim. App. 2007). We review a trial court's determination of whether the evidence supports either accomplice-witness instruction under an abuse of discretion standard. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).
Accomplice-Witness Instruction
Under article 38.14 of the Code of Criminal Procedure, a criminal conviction may not be based on the testimony of an accomplice-witness unless the testimony is "corroborated by other evidence tending to connect the defendant with the offense committed." TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2011). A witness is an accomplice-witness only if he participates in the crime with the defendant, taking "an affirmative act . . . to assist in the commission of the [crime]" before, during, or after the commission of the crime, with the required culpable mental state for the crime. Druery, 225 S.W.3d at 498-99; see also Paredes, 129 S.W.3d at 536. Mere presence at the scene of the crime does not render a witness an accomplice. Druery, 225 S.W.3d at 498; Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). Nor is a witness an accomplice merely because he knew of the crime and failed to disclose it or even concealed it. Druery, 225 S.W.3d at 498. In short, "if the witness cannot be prosecuted for the same offense with which the defendant is charged, or a lesser-included offense, the witness is not an accomplice witness as a matter of law." Delacerda v. State, No. 01-09-00972-CR, 2011 WL 2931189, at *22 (Tex. App.—Houston [1st Dist.] July 21, 2011, no pet.).
A. Bell's theft conviction
Bell's conviction for theft of property with an aggregate value of $100,000 to $200,000 relates to grant funds she received from the Urban League for a basketball camp purportedly held at Hoffman Academy on June 18-28, 2007. Bell identifies no evidence linking Nasia, Robinson, or Hamilton to that transaction. Nasia testified, without refute, that his involvement began in early-August 2007. Robinson testified, also without refute, that she became involved in mid-August 2007. Hamilton likewise testified that her involvement with Bell's basketball camp endeavor began in August 2007. Although a witness can be an accomplice based on after-the-fact involvement in a crime, there is no evidence that any of Nasia's, Robinson's, or Hamilton's actions related to the Hoffman Academy basketball camp; to the contrary, their testimony indicates that their actions were part of Bell's subsequent attempts to get additional funding from the Urban League for basketball camps purportedly conducted after the Hoffman Academy camp.
We hold that, to the extent the trial court may have overruled a request for an accomplice-witness instruction with respect to Nasia, Robinson, and Hamilton in the theft case against Bell, the trial court did not abuse its discretion.
The reporter's record appears to indicate that Bell's request for an accomplice-witness instruction with respect to Nasia, Robinson, and Hamilton was limited to the attempted-theft case against her, as was the trial court's ruling. On appeal, however, Bell does not limit her issue to the attempted-theft case.
B. Bell's attempted-theft conviction
Bell argues that Nasia, Robinson, and Hamilton were accomplices to her attempted theft and the trial court erred in refusing to submit an accomplice-witness instruction to the jury. The State responds that there is no evidence that Nasia, Robinson, or Hamilton had the necessary state of mind to be accomplices. We agree with the State that there was no evidence that Nasia or Robinson had the required intent for attempted theft, but we hold that there was evidence that Hamilton, with the required intent, took an affirmative act to assist Bell in the commission of her attempted theft. The trial court therefore erred in refusing Bell's request to instruct the jury to determine whether Hamilton was an accomplice as a matter of fact. We hold, however, that the trial court's error was harmless in light of the extensive non-accomplice evidence connecting Bell to the attempted theft.
1. Marcus Nasia
Marcus Nasia became involved in Bell's basketball camp venture through his former wife, Vanessa Ausley. Ausley recruited Nasia to make copies of blank forms, which were subsequently filled out and submitted to the Urban League. Ausley told Nasia that Bell would pay him for the copies. Nasia testified that he did not know the intended purpose for the forms when he made the copies or the nature of his wife's involvement. Nasia made the requested copies—more than 10,000 copies according to him—and provided them to Ausley and Bell.
Ausley played a significant role in Bell's basketball camp venture, and the trial court instructed the jury to determine whether Ausley was an accomplice to Bell in the attempted-theft case.
Nasia testified that Ausley later informed him that she and Bell needed assistance filling out some of the forms. Ausley instructed Nasia to "ask the kids" what to do with the forms, and he discovered that his children had a list of names and had been using it to fill out forms. Using a list provided by his son, Nasia also filled in ten to fifteen sets of forms. He testified that he and his family completed all of the information the forms called for except that they did not fill in the signature block.
Nasia subsequently discovered Ausley and his children signing the names in the forms' signature blocks. According to his testimony, he protested this with his family and ultimately contacted the FBI and FEMA, because he believed Bell was using the forms to obtain funds from FEMA that were designated to help children affected by Hurricane Katrina. After contacting the authorities, Nasia did not terminate all involvement with the project. At Ausley's request, he purchased some "white-out strips" for Bell. He also accepted payment of $3,500 from Bell for the copying he had done, which he had paid for on his account with the copy company. Nasia testified that he felt he needed to be "kosher" with Bell in order to get evidence. He continued to object to Ausley's and his children's involvement in Bell's enterprise, on which he discovered them working in his home and in his office. He contacted FEMA and the FBI again. Because Bell was a police officer, he also contacted the Houston Police Department's Internal Affairs.
When Bell became aware that the police were speaking with Nasia, she set up a meeting with Nasia and Ausley to discuss how to handle the matter. Internal Affairs recorded the conversation. Nasia also turned over boxes containing the filled-out forms to Internal Affairs. Nasia testified that he was never concerned that he might be charged with anything as a result of his involvement with Bell and never discussed any deal with the police to ensure that he was not charged. Bell does not contend that Nasia was ever charged with, or promised immunity for, attempted theft or a lesser-included offense. Cf. Jester v. State, 62 S.W.3d 851, 855-56 (Tex. App.—Texarkana 2001, pet. ref'd) (explaining that grant of immunity may, but does not necessarily, indicate that witness may be accomplice); see also Moulton v. State, 508 S.W.2d 833, 836 (Tex. Crim. App. 1974) (holding that witness is not necessarily accomplice even if State grants witness immunity in exchange for testimony).
Bell argues that there was evidence that Nasia was an accomplice to her attempted theft on three grounds. First, Bell argues that "Nasia's inconsistent statements could be interpreted in such a manner as to diminish his credibility in the eyes of the jury, in light of his denials, being no more tha[n] self[-]serving statements to avoid the consequences of his actions (common knowledge of any prosecutor or lawyer appearing in a criminal court); he was motivated by the payment of money to his wife and himself." But Bell does not identify any inconsistencies in Nasia's testimony, and Nasia's denial of a criminal intent, alone, cannot constitute evidence that he had a criminal intent. See State v. Krizan-Wilson, 354 S.W.3d 808, 816 (Tex. Crim. App. 2011) ("It is not enough for appellee to argue that the trial court may have disbelieved each and every witness that testified that the state had no negative intentions for the delay, appellee must still present positive proof of such an improper purpose."); Janecka v. State, 937 S.W.2d 456, 471-72 (Tex. Crim. App. 1996) (holding that, absent positive evidence of coercion, appellant's contention that jury "could have" disbelieved officer testimony or "could have interpreted" officers' statements as coercive was no evidence of coercion); cf. Safeway Stores, Inc. v. White, 348 S.W.2d 162, 165 (Tex. 1961) (observing that jury is free to disbelieve witness's testimony about his beliefs but that testimony "is not evidence that the opposite of what he said is true"); Gardner v. Hicks, No. 01-89-00271-CV, 1990 WL 84498, at *4 (Tex. App.—Houston [1st Dist.] June 21, 1990, no writ) ("a jury cannot properly find the converse of a witness' testimony when there is no independent evidence to support such a finding") (not designated for publication) (op. on reh'g).
Moreover, taking Bell's assertions about Nasia as true, it does not tend to show that Nasia had the necessary mental state for theft—specifically, that he assisted in Bell's attempt to unlawfully appropriate property with the intent to deprive the owner of the property.See TEX. PENAL CODE ANN. § 31.03(a) (West 2011); see also Druery, 225 S.W.3d at 498-99 (requiring evidence that witness took affirmative act to assist in commission of crime with necessary criminal intent). Although Nasia made copies of blank forms in exchange for payment and later assisted in partially filling-out some forms, there is no evidence that Nasia knew at that time that Bell intended to have the signatures on the forms forged or that she would turn in forms for reimbursement regardless of whether the children for whom the forms were filled-out had actually attended her basketball camp. To the contrary, the evidence is that Nasia contacted the authorities when he discovered his family forging signatures on the forms.
Bell does not argue that the evidence establishes or raises a fact issue as to whether Nasia could have been convicted of any lesser-included offense of attempted theft.
Bell next argues: "Secondly, [Nasia's] open hostility toward [Bell] for, in his mind, 'seducing his wife with a badge[,'] having her performing so many tasks for [Bell]; using his office for the conduct of work on [Bell's] endeavor; his incurring charges on his accounts at the Office Depot and Office Max[.]" But Nasia's dislike for Bell is entirely consistent with his testimony that he believed that Bell was engaged in illegal activities, had gotten his wife and children involved with such activities, and had used his office and home to conduct such activities. Moreover, even if Nasia's dislike for Bell resulted from some other source and may have motivated him to testify unfavorably toward her, it is no evidence that he intended to assist Bell in unlawfully depriving another person of her property. Cf. TEX. PENAL CODE ANN. § 31.03(a); see also Druery, 225 S.W.3d at 498-499.
Finally, Bell argues: "That [] Nasia was an accomplice is further supported by the Court's own order dated March 17, 2008 designating him as one of several accomplices." The order Bell cites is a "Bail Condition and No Contact Order." It does not identify Nasia as an accomplice; it merely identifies him as a person with whom Bell was prohibited from communicating while released on bail, along with numerous other witnesses in the case.
We therefore hold that the trial court did not abuse its discretion in declining to submit an accomplice-witness jury instruction with respect to Nasia.
2. Evelyn Robinson
Robinson met Bell through Robinson's daughter, who dated Bell's brother. Robinson's sister, Melba Hamilton, also knew Bell. In August 2007, Robinson was at her daughter's house when her daughter received a call from Hamilton and Bell. In the call, Bell invited Robinson and her daughter to "make [some] money," and they arranged for a meeting at Hamilton's house the following day. At the meeting, Robinson, her daughter, and Hamilton filled out forms according to instructions from Bell, who was not present. The forms were partially completed when the group started working on them—they contained zip codes, race information, and camp information, but not the child's name and contact information. Robinson testified that, through Hamilton, Bell had directed them to fill in the child information with names out of the phone book or with names they made up, which they did. Robinson testified that she had no idea for what Bell intended to use the forms and that, at the time she was filling out the forms, she did not know that Bell would turn in the forms in exchange for money. She stated that she would not have participated in filling in the forms if she had known they would be used to obtain funds illegally. At one point Robinson testified that she believed the forms would be used as "samples."
The forms required a statement that the child lived in an identified zip code within thirty days before landfall of Hurricane Katrina, Rita, or Wilma.
Robinson testified that she recruited other people to assist in completing the forms, including her grandchildren, her nephew, and a friend of her nephew. She also testified that Bell promised to pay them for filling out the forms, but that she never received payment. As a result, she filed a lawsuit in small claims court to recover the promised payment. In the lawsuit, Bell denied having Robinson or her family members do work for her. Robinson testified that if she had known that she was involved in illegal activity, she would not have wanted to draw attention to it by filing a lawsuit against Bell in small claims court.
An investigator from the district attorney's office contacted Robinson, and she turned over all of the information and paperwork she had relating to Bell and the lawsuit. Bell does not contend that Robinson was ever charged with, or promised immunity for, attempted theft or a lesser-included offense.
Bell argues that Robinson's "impractical claim of ignorance from another well[-]educated woman, a Registered Nurse, who most certainly was aware that falsifying documents while in the performance of duties of her own profession would be wrong and could implicate criminal charges, could very likely adversely affect her credibility in the eyes of the jury." Thus, Bell contends, "[t]he jury could well have found that she did know she was committing a wrongful act and therefore was an accomplice."
As with Nasia, Bell also cites to the trial court's "Bail Condition and No Contact Order" as identifying Robinson as an accomplice. But the order merely identifies Robinson, along with other witnesses, as people whom Bell was prohibited from contacting while released on bail.
We agree with Bell that the jury could have concluded that Robinson knew her conduct was "wrongful" based on the evidence that she filled out forms with made-up names. But to raise an issue of fact on whether Robinson was an accomplice witness, Bell must identify evidence that Robinson had the criminal intent necessary for attempted theft—not merely evidence that Robinson knew or should have known that something was not right about what she was doing. SeeDruery, 225 S.W.3d at 498-99; see also Paredes, 129 S.W.3d at 537-38 ("Although [the witness] may have suspected that foul play would occur when Torres arrived at her house, there is no evidence suggesting that she assisted in the preparation for or planning of the murders. [The witness] was not susceptible to prosecution for capital murder or a lesser-included offense."). Because there was no evidence that Robinson intended to unlawfully deprive a person of their property, she could not have been convicted of attempted theft.See TEX. PENAL CODE ANN. § 31.03(a); cf. Mize v. State, 915 S.W.2d 891, 896 (Tex. App.— Houston [1st Dist.] 1995, pet. ref'd) (holding that fact issue existed on whether witness had required intent to commit crime when evidence showed that witness saw robbery in progress before participating in robbery by driving "get away car").
Bell does not argue that the evidence establishes or raises a fact issue as to whether Robinson could have been convicted of any lesser-included offense of attempted theft.
We therefore hold that the trial court did not abuse its discretion in declining to submit an accomplice-witness jury instruction with regard to Robinson.
3. Melba Hamilton
Hamilton met Bell when Hamilton's niece—Robinson's daughter—dated Bell's brother. Hamilton's business, "Training Wheels," provides business enhancement services such as setting up nonprofit organizations, helping businesses incorporate, writing business and marketing plans, writing grants, and creating brochures. Hamilton helped Bell set up her nonprofit organization, "The Youth Outlet," in 2002. In Summer 2007, Bell contacted Hamilton and asked her to fill out an online application for Bell to participate in a program to provide summer camps through the Urban League. Hamilton stated that she went to the Urban League's website, but because the deadline for the application was too soon, she told Bell that she could not fill out the application for her. Hamilton said that she did not pay attention to the contents of the online application because she looked first at the due date, realizing immediately that it was too soon to allow her to help Bell with the application.
Hamilton testified that Bell contacted her again later, telling her that she had been able to get involved in the Urban League program. According to Hamilton, Bell told her that "she was going to make a lot of money. She told me that she was going to be rich and that she had gotten a big check. I believe she said $40,000 and asked me if I had a nonprofit because I could get in on it." Hamilton was working on creating a nonprofit but had not completed the process. After Hamilton told Bell that her nonprofit was not set up yet, Bell invited Hamilton to meet her at office Depot to "make $5,000." According to Hamilton, when she met Bell at Office Depot, Bell offered her $1,500 to fill out some paperwork. Hamilton testified that Bell did not tell her what the forms were for or how they would be used. Although she admitted that the forms contained the name "Houston Area Urban League" in a top, left-hand corner, Hamilton pointed out that the font-size of the words was small and asserted that she had not noticed them.
Hamilton testified that Bell told her how to fill out the forms, instructing her to sign in the signature block and to make up the names to use in filling out the forms or to get names out of the phone book. Hamilton admitted that she thought that making up the names was a little odd but stated that she did not have any idea Bell would use the forms to attempt to get money from the Urban League. She also stated that she did not make any connection between the paperwork she was filling out and the Urban League program Bell had previously discussed with her.
Following her meeting with Bell at Office Depot, Hamilton recruited her sister, Robinson, her niece, her nephew, and a friend of her nephew to help with the paperwork. Like Robinson, Hamilton stated that the forms were partially completed when they began working on them. She also testified that she noticed that the forms recorded a "camp cost" of $750 per person.
Hamilton testified that, when they were done with the paperwork, she contacted Bell to let Bell know they had completed the paperwork for 1,361 names. She testified that Bell responded, "Okay. I'll turn those in." She testified that she matched up the paperwork—putting the time and attendance sheets she and the others had filled out with the other forms—and turned the paperwork over to Bell. She subsequently testified that, when she dropped the paperwork off with Bell, Bell told her that she was going to turn the paperwork in. Hamilton testified that this was the first time she realized that Bell intended to do something else with the paperwork.
Hamilton stated that, when she began to contact Bell regarding the promised payment for the paperwork she and the others had done, Bell told her that she was unable to submit the paperwork to the Urban League because they were being audited. Hamilton testified that she understood this to mean that Bell had turned in their paperwork to the Urban League and that this was the first time she made the connection between the grant application Bell had asked her to fill out and the paperwork. According to Hamilton, Bell ultimately agreed to pay her, her sister, and her niece $1,000 each for the paperwork. Although her sister turned down the money, Hamilton accepted it. Hamilton testified that she felt "convicted" about the money after accepting it and gave it away to "people that I knew that had needs."
Hamilton testified that she never had any concern that she might be in any kind of trouble for her involvement with Bell and that no one in the district attorney's office ever told her that she could be in any kind of trouble. Bell does not contend that Hamilton was ever charged with, or promised immunity for, attempted theft or a lesser-included offense.
a. The trial court erred in refusing to instruct the jury to
determine whether Hamilton was an accomplice to Bell's attempted theft
Bell argues that "[a] jury could reasonably conclude that Ms. Hamilton was not credible when she denied knowledge of the wrongful character of what she was doing[,] making up and copying names from a phone book. Especially in light of her background and experience and the fact that she completed forms for 1,361 fully manufactured names." Whether Hamilton had knowledge of the wrongful nature of her actions is not the test for an accomplice-witness instruction—there must be evidence that Hamilton assisted Bell in Bell's attempted theft with the intent of unlawfully depriving a person of their property. See TEX. PENAL CODE ANN. § 31.03(a); Druery, 225 S.W.3d at 498-99; Paredes, 129 S.W.3d at 537-38. We hold that the evidence was sufficient to raise a fact question as to whether Hamilton had such intent.
As with Nasia and Robinson, Bell also cites to the trial court's "Bail Condition and No Contact Order" as identifying Hamilton as an accomplice. But the order merely identifies Hamilton, along with other witnesses, as people whom Bell was prohibited from contacting while released on bail.
Hamilton admitted that Bell asked her to assist in applying to be a part of the Urban League's summer camp program and that she went to the Urban League's website and viewed the application. She also admitted that, in the same phone call in which Bell invited her to "make $5,000," Bell first informed her that she had been able to get involved in the Urban League's grant program and was going to get rich as a result. Bell also invited Hamilton to "get in on it" with Hamilton's own nonprofit before inviting Hamilton to make money by assisting her. According to Hamilton, Bell then asked her to fill out forms that said "Houston Area Urban League" on them with made up names. Hamilton's testimony establishes that she knew the forms related to summer camps because she noticed that they identified a camp cost of $750. Finally, Hamilton admitted that Bell informed her Bell was going to "turn in" the fraudulent forms on several occasions.
This is circumstantial evidence that Hamilton knew not only that she was participating in some sort of fraudulent or wrongful endeavor, but specifically that she was assisting Bell in unlawfully depriving the Urban League of funds designated for summer camp programs. See Mize, 915 S.W.2d at 896. Because there is conflicting evidence from Hamilton in which she denies this knowledge, the evidence does not conclusively establish that Hamilton had the necessary state of mind to be an accomplice; it raises a fact question for the jury to decide. See id. The trial court therefore abused its discretion in refusing Bell's request to instruct the jury to determine whether Hamilton was an accomplice in fact. Having determined that the trial court erred, we must next determine whether the error was harmful to Bell. Medina v. State, 7 S.W.3d 633, 642 (Tex. Crim. App. 1999); Weathers v. State, No. 01-09-00093-CR, 2010 WL 3212123, at *3 (Tex. App.— Houston [1st Dist.] Aug. 12, 2010, pet. ref'd) (mem. op., not designated for publication). We reverse the trial court's judgment only if we conclude that there was harm. Medina, 7 S.W.3d at 643; Weathers, 2010 WL 3212123, at *5.
b. The error was harmless
Because the trial court erroneously denied Bell's request for an accomplice-as-a-matter-of-fact instruction as to Hamilton, we review the record for "some harm" under the standard set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). See Medina, 7 S.W.3d at 642-43. Under this standard "possible harm" is not enough—there must be a showing of actual harm. Medina, 7 S.W.3d at 644; see also Almanza, 686 S.W.2d at 174 (stating that court reviews record for "the actual, not just theoretical, harm"). "[T]he actual degree of harm must be assayed in light of 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." Almanza, 686 S.W.2d at 171.
Accomplice-witness testimony is admissible and will support a conviction as long as it is "corroborated by other evidence tending to connect the defendant with the offense committed[.]" TEX. CODE CRIM. PROC. ANN. art. 38.14. The corroborating evidence under 38.14 need not be sufficient, standing alone, to prove beyond a reasonable doubt that Bell committed attempted theft. Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007). "All that is required is that there is some non-accomplice evidence tending to connect the defendant to the offense." Id. Thus, "[t]he erroneous omission of an instruction that tells the jury that testimony must be corroborated generally is harmless unless the corroborating evidence is 'so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive.'" Weathers, 2010 WL 3212123, at *3 (citing Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002)). in reviewing the strength of the corroborating evidence, we examine both its reliability or believability and the strength of its tendency to connect the defendant to the crime. Id. (citing Herron, 86 S.W.3d at 632; Burks v. State, 876 S.W.2d 877, 888 (Tex. Crim. App. 1994)).
Bell fails to present any argument to this Court as to how she was harmed by the trial court's failure to submit an accomplice-witness instruction as to Hamilton or cite any evidence or legal authority to support such a contention. Cf. TEX. R. APP. P. 38.1(h) (requiring that appellant's brief contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"), 47.1 (requiring that court of appeals's opinion address all dispositive issues "raised" on appeal). The State points out that there was copious corroborating evidence of attempted theft. There was testimonial evidence—from witnesses who Bell does not contend were accomplices—and documentation tending to show that Bell submitted fraudulent forms to the Urban League and sought payment of grant funds for basketball camps reflected in the forms. There were also inconsistencies in Bell's statements to police about the camps.
Hamilton's testimony that Bell instructed her to fill out forms with made-up names finds some support in Robinson's testimony that Hamilton relayed that instruction to her and the others who met to fill out forms for Bell. Even if we assumed that it was Hamilton's idea to fabricate names for the forms, and Bell knew nothing about it, there is other independent evidence that Bell knew the forms she submitted to the Urban League were fraudulent. Bell submitted forms representing that she conducted basketball camps with certain times, locations, and attendance, but there was evidence at trial that these camps did not have the attendance or time-span represented or never occurred at all. This included documentation and testimony from non-accomplice-witnesses tending to prove no basketball camps were conducted at certain times and locations represented in the forms. There was also evidence that some of the purported locations of camps could not possibly have accommodated a basketball camp.
For example, Bell submitted forms to the Urban League seeking $264,750 for a basketball camp she allegedly conducted for more than 300 children from July 16, 2007 through August 6, 2007 at the "Young Youth Recreation Center," located at "1005 Martin Luther King" in Beaumont, Texas 77005. An investigating police officer testified at trial that he was unable to find any information about a "Young Youth Recreation Center" and, when he went to the location identified in the forms Bell submitted, there was only a vacant lot. He testified that there was no recreation center at the address provided and that the nearby addresses were not suitable for a basketball summer camp. Photographs in evidence support the officer's testimony.
The same officer looked into other locations at which Bell allegedly hosted basketball camps in August 2007. He testified that one location was a YMCA inside of a shopping mall; it was approximately the size of two retail stores and filled with workout equipment; there were no basketball goals or equipment in the YMCA or elsewhere in the mall or mall's parking lot area; and when he inquired about the possibility of hosting a basketball camp, an employee at the YMCA referred him to another YMCA location that had a gymnasium large enough to accommodate basketball practice. Bell submitted paperwork to the Urban League claiming she hosted a basketball camp for nearly 100 children at the in-mall YMCA. The officer testified that the YMCA space in the mall was not large enough to accommodate basketball practice.
The same officer also testified that one location at which Bell purportedly held a basketball summer camp was second-floor office space.
As another example, the evidence included time and attendance forms for a basketball camp at Welch Middle School that Bell purportedly hosted from August 6, 2007 through August 24, 2007. A teacher from the school testified that Bell sometimes held practices for an AAU basketball team at the school's gymnasium in the evenings, but Bell did not host a basketball camp at the school. She testified that Bell had inquired with her about using the school's gym for a summer camp but that she told Bell she did not think Bell would be able to get approval for that. She also testified that, although she opened the gym for Bell's evening basketball practices, she never opened the gym for Bell any other time. She stated that there was a "black top" area outside the gym where basketball could be played but she never saw Bell hosting a summer camp there, even though she was teaching at the school during the summer as well as the school year. The school's principal also testified that Bell never sought permission for a basketball summer camp and that she never witnessed a basketball camp taking place at the school. A fraud examiner from the Harris County district attorney's office testified that Bell wanted $345,000 from the Urban League for conducting this camp, which she represented was attended by more than 400 children.
Several witnesses testified that, independent of the Urban League program, Bell coached an AAU basketball team.
--------
These are only examples of the evidence against Bell, which was extensive. Given the substantial amount of non-accomplice evidence connecting Bell to the attempted theft charged, we hold that the trial court's error in failing to give an accomplice-witness instruction concerning Hamilton was harmless.
Conclusion
The trial court did not abuse its discretion in denying Bell's request for accomplice-witness instructions with regard to Nasia and Robinson in the theft and attempted theft cases, or with regard to Hamilton in the theft case. The trial court did abuse its discretion in denying Bell's request for an accomplice-witness-as-a-matter-of-fact instruction with regard to Hamilton in the attempted theft case, but the error was harmless in light of the substantial evidence connecting Bell to the attempted theft. We therefore affirm the trial court's judgment.
Harvey Brown
Justice
Panel consists of Justices Bland, Massengale, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).