Page 36 - TPA Journal July August 2023

had an alibi. However, Appellant also made com- Hogarth to be an accomplice beyond a reasonable
ments such as “if you say I did it, I did it. If you doubt.
say that’s me, it’s me” and refused to provide any
information that would enable the detectives to Next, the court below agreed with Appellant that
follow up on his alibi information. A search of the charge was erroneous and reversed. It con-
Appellant’s father’s apartment at the Palms led to cluded that “a proper accomplice instruction
the discovery of a gun and a pair of gloves. Co- should inform the jury that if they have a reason-
defendant Trevino testified at Appellant’s trial in able doubt regarding whether or not the witness
exchange for the State’s abstention from recom- acted as an accomplice, then corroboration is nec-
mending punishment in his case. Trevino told the essary.”
jury that he decided to commit robbery at his
The court found that the charge “essentially
cousin’s shop because he needed money. He testi-
inverts this requirement by only requiring corrob-
fied that, before the robbery, he drove by the tat- oration if it is shown beyond a reasonable doubt
too shop with Hogarth and co-defendant Taylor; that Hogarth is an accomplice.” The court noted
that he discussed the possibility of the robbery; that, while Appellant failed to object to the
that Hogarth was not part of the plan; that Hogarth
instruction, he was egregiously harmed by the
had merely overheard the conversation concerning
error. Justice Baker concurred in the court’s opin-
the robbery between Trevino and Taylor; that ion but wrote separately to point out an additional
Hogarth did not help anyone commit the robbery; error in the charge – the failure to instruct the jury
and that he told Hogarth to get a lawyer and not that “it must determine whether or not Trevino and
talk to the police after the robbery. Trevino testi-
Hogarth’s testimony was both true and showed
fied that he drove to the tattoo shop in his white
[his] guilt before using the testimony to convict.”
Volvo with Appellant and codefendants Taylor, Justice Baker found this omission “compounded
McMichael, and Robert. He further testified that the harm,” and the charge errors “individually and
the four passengers put on masks and gloves and in aggregate egregiously harmed” Appellant.
had their guns ready. He confirmed that Appellant
Justice Goodwin dissented. Assuming that the
was wearing a white hat. At trial, Appellant called
charge was erroneous, she concluded that the
an ex-girlfriend to testify that she had been dating majority’s harm analysis was problematic
Appellant for several years and that he was with because, in its review of the facts, the majority
her on the night of the robbery. She admitted, placed itself “too far in the role of factfinder.” She
however, that Appellant had asked her to provide
said that “at some point an appellate court crosses
an alibi at trial. She never provided the alibi infor-
the line when it substitutes its own credibility
mation to investigative authorities, despite the fact assessments and fact determinations for those of
she knew he had been in custody for two years the jury,” and she feared that “that line has been
awaiting trial.
crossed here.”
Ultimately, the charge contained an accomplice-
She also stated that the Appellant “must have suf-
as-a-matter-of-law instruction for Trevino and the
fered some actual – rather than merely theoretical
accomplice-as-a-matter-of-fact instruction for – harm.” Here, the majority’s conclusion “that the
Hogarth. After considering the evidence, the jury jury could have had a reasonable doubt regarding
found Appellant guilty of aggravated robbery.
whether Hogarth was an accomplice” was a find-
… ing of “merely theoretical harm.” Justice Goodwin
also disagreed with Justice Baker’s concurrence,
On appeal, Appellant argued, among other things , concluding that “language in the accomplice-wit-
the charge regarding Hogarth was erroneous ness instruction directing the jury to first find the
because it instructed the jury that it had to find accomplice-witness testimony to be true is not

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