Court of Appeals of Texas, Sixth District, Texarkana
Submitted: November 20, 2017
Appeal from the 76th District Court Camp County, Texas Trial
Court No. CF-15-1523
Morriss, C.J., Moseley and Burgess, JJ.
K. Burgess Justice.
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
kidnapping in Titus County and with
murder in Camp County.
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. Rhymes 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
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. In 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
The Trial Court's Error in Failing to Give a
Proper Accomplice-Witness Instruction
first address Rhymes' complaint that the trial court
erred in failing to given an accomplice-witness instruction.
Standard of Review
review an alleged error in an accomplice-witness instruction
under the procedural framework of
Almanza. Zamora v. State, 411 S.W.3d 504,
512 (Tex. Crim. App. 2013) (citing Casanova 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. See Abdnor 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.) (citing
Abdnor, 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. See Abnor,
871 S.W.2d at 731.
The Trial Court Failed to Give a Proper Accomplice
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.-Texarkana 2005,
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. See Tex. Code Crim. Proc. Ann. art. 38.14
(West 2005); Zamora, 411 S.W.3d at 510.
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
The Trial Court's Error Did Not Harm
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.
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
(quoting Herron, 86 S.W.3d at 632).
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) (citing Reed 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 (citing Gill,
873 S.W.2d at 48 (citing Gosch v. State, 829 S.W.2d
775, 777 (Tex. Crim. App. 1991), cert. denied, 509
U.S. 922 (1993)); Cox v. State, 830 S.W.2d 609, 611
(Tex. Crim. App. 1992)).
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) (citing Cockrum 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 (citing Herron, 86 S.W.3d at 632).
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.
Legally Sufficient Evidence Supports the Jury's
Standard of Review
consider Rhymes' complaint regarding the sufficiency of
the evidence. In evaluating legal sufficiency,  we 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.) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979));
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.
App.-Texarkana 2010, pet. ref'd). In our review, we focus
on the quality of the evidence presented. Brooks, 323 S.W.3d
at 917-18 (Cochran, J., concurring). Legal sufficiency is
reviewed under the direction of the Brooks opinion,
while giving deference to the responsibility of the jury
"to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443
U.S. at 318-19); Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007). In drawing reasonable inferences,
the jury "may use common sense and apply common
knowledge, observation, and experience gained in the ordinary
affairs of life." Duren v. State, 87 S.W.3d
719, 724 (Tex. App.-Texarkana 2002, pet. denied) (citing
Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim.
App. 1999) (Meyers, J., concurring)). Further, the jury is
the sole judge of the credibility of the witnesses and the
weight to be given their testimony and may "believe all
of a witnesses' testimony, portions of it, or none of
it." Thomas v. State, 444 S.W.3d 4, 10 (Tex.
Crim. App. 2014). We give "almost complete deference to
a jury's decision when that decision is based upon an
evaluation of credibility." Lancon v. State,
253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
review, we consider "events occurring before, during and
after the commission of the offense and may rely on actions
of the defendant which show an understanding and common
design to do the prohibited act." Hooper, 214
S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d
107, 111 (Tex. Crim. App. 1985)). It is not required that
each fact "point directly and independently to the guilt
of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the
conviction." Id. "Circumstantial evidence
and direct evidence are equally probative in establishing the
guilt of a defendant, and guilt can be established by
circumstantial evidence alone." Paroline v.
State, No. 06-16-00101-CR, 2017 WL 1178637, at *4 (Tex.