# Mitchell v. State

> Court of Criminal Appeals of Texas · April 27, 1983 · 650 S.W.2d 801

URL: https://www.frixlaw.com/law-library/cases/9642272

## Case

- **Full name:** Andrew Lee MITCHELL, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 27, 1983
- **Citations:** 650 S.W.2d 801; 1983 Tex. Crim. App. LEXIS 1007
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Onion, Clinton, Teague, Miller
- **Cited by:** 142 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9642272

## How later opinions describe it (automated extraction)

- holding that evidence independent of accomplice witnesses tended to connect appellant with crime charged and sufficiently corroborated accomplice witness’s testimony
- finding no reversible error in the trial court’s refusal to instruct the jury on “mere presence” because the defendant did not testify and the evidence did not raise the issue of “mere presence”
- stating the accused’s presence with the accomplice, in conjunction with other circumstances, may be sufficient to corroborate accomplice-witness testimony
- holding presence of the accused with the accomplice may, when coupled with the other circumstances, be sufficient to corroborate accomplice testimony

## Opinion text

OPINION DISSENTING TO DENIAL OF APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR REHEARING
CLINTON, Judge.
In May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981), according to the opinion of the Court, a majority rejected the assertion that “the provisions of Art. 38.14, [V.A.C. C.P.] are applicable to the extraneous offenses offered in evidence at the punishment stage” of a capital murder case, id., at 341 . The Court concluded:
“We hold that evidence offered to prove the special issues of Art. 37.071, supra, is not included within the provisions of Art. 38.14, supra. Therefore, the ‘yes’ answers to the special issues of Art. 37.071, supra, are supportable on the relevant accomplice witnesses’ testimony concerning the appellant’s prior criminal conduct and the *813 court did not err in failing to submit an ‘accomplice witness’ charge at the punishment stage of the trial.” Id., at 343. [Emphasis added]
However, the conclusion reached by the May opinion- does not rule out a constitutional attack on the use of such testimony to show “a reasonable probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” Article 37.071(b)(2), V.A. C.C.P.
“An accomplice witness is a discredited witness;” 1 practically from the beginning the courts of this State have so regarded such a witness. 2 So much so that “the settled law in this state [is that] when evidence of collateral crimes is introduced for one of the various purposes for which such evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof,” Lankford v. State, 93 Tex.Cr.R. 442 , 248 S.W. 389 (1923), quoted approvingly in Wells v. State, 118 Tex.Cr.R. 355 , 42 S.W.2d 607, 608-609 (1931).
Now that we have the bifurcated trial procedure it would seem to follow that due course of law would also demand that testimony of an otherwise discredited witness purporting to report extraneous offenses on the part of the accused be similarly treated, examined and evaluated. In a capital case the question is at least important enough to look into.
Accordingly, I would grant leave to file for that purpose. Because the majority do not, I respectfully dissent.
TEAGUE and MILLER, JJ., join.
. Cast v. State, 164 Tex.Cr.R. 3 , 296 S.W.2d 269, 271 (Tex.Cr.App.1956).
. See cases annotated under Article 38.14, n. 54.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642272. Public record. Not legal advice.