Blake v. State

MANSFIELD, Judge,

dissenting.

The question presented in appellants’ petitions for discretionary review is the continued viability of the juvenile exception to the accomplice witness rule. See Tex.Code Crim. Proc. art. 38.14. While I believe that the exception should be limited, I do not agree that it should be abolished. Therefore, I respectfully dissent to the opinion of the Court which, effectively, abolishes the juvenile exception to the accomplice witness rule.

Appellant Blake was convicted of theft of property valued at over $20,000. 1 At Blake’s trial a juvenile testified he and Blake together stole keys to an automobile, which they later stole from the dealer’s car lot. The juvenile, who was twelve years old, was named in the indictment as part of a scheme Blake formed to steal vehicles. The trial court refused to instruct the jury over appellant’s objection, that the juvenile was an accomplice witness and therefore his testimony had to be corroborated. Three other witnesses were identified in the jury charge as accomplices, and the proper instruction as to corroboration was given.

The Sixth Court of Appeals affirmed the judgment of the trial court, noting the juvenile fell under the age of criminal responsibility and could not be certified as an adult. Blake v. State, 946 S.W.2d 118 (Tex.App.-Texarkana, 1997). Tex. Penal Code *462 § 8.07(a); Tex. Fam.Code § 54.02(a)(2). The court of appeals cited our holding in Villarreal v. State, 708 S.W.2d 845, 847-49 (Tex.Crim.App.1986), that a minor who cannot be prosecuted for an offense is not an accomplice witness, and without further analysis, rejected appellant’s contention that the juvenile exception to the accomplice witness rule no longer makes sense.

Appellant Lane was convicted of the offense of aggravated robbery and was sentenced to thirty years in prison. The evidence at trial included testimony from one of the participants in the offense as well as from a thirteen-year-old juvenile who stayed in the truck with appellant while two other participants actually committed the offense. 2 According to the testimony at trial, appellant recruited the other actors to commit the offense, drove them to the scene, and picked them up after the offense was completed.

Appellant Lane moved the court to instruct the jury that the thirteen-year-old juvenile’s testimony could not be considered, being uncorroborated, if they found her to be an accomplice as a matter of fact. The trial court denied appellant’s specially requested charge.

The Second Court of Appeals held the trial court did not erf as the juvenile, being under age fifteen, could not have been prosecuted for the instant offense. Lane v. State, 942 S.W.2d 208 (Tex.App.-Fort Worth, 1997). Therefore, she could not be an accomplice as a matter of fact or law. Villarreal, supra,; Tex. Penal Code § 8.07(a). The court of appeals rejected appellant’s claim that the mere fact that the juvenile could have been tried for engaging in delinquent conduct under the Family Code and deprived of her liberty until she attained age eighteen should subject her to the accomplice witness rule. Citing Villarreal, supra, at 848-849 , the court of appeals found that only individuals subject to punishment under the Texas Penal Code are covered by the accomplice witness rule.

The court of appeals noted that under revisions to Texas Family Code §§ 53.045(a) and 54.04(d)(3), a juvenile could be sentenced up to forty years, with a potential transfer from the Texas Youth Commission to the penitentiary, if found to have engaged in delinquent conduct, to wit: aggravated robbery.

In light of changes in the law since Villarreal which, in certain circumstances, subject juveniles adjudicated as delinquent to punishment by confinement in the Institutional Division of the Texas Department of Criminal Justice, I believe it appropriate to revisit our holding in Villarreal that juveniles not subject to punishment as adults under the Penal Code are not covered by the accomplice witness rule.

An accomplice witness is an individual who has participated with the accused before, during or after the commission of a crime. McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App.1996); Russell v. State, 598 S.W.2d 238 (Tex.Crim.App.1980). Our case law for many years has been that a witness who has been indicted for the same offense as the accused is an accomplice witness as a matter of law, and the jury must be so instructed. See, e.g., Solis v. State, 792 S.W.2d 95 (Tex.Crim.App.1990); Barrara v. State, 42 Tex. 260 (1875); Garza v. State, 164 Tex.Grim. 9, 296 S.W.2d 267 (1956). Furthermore, a witness who is indicted for the same offense as the accused, but is promised immunity if he testifies against the accused, is an accomplice witness as a matter of law. Stiles v. State, 232 S.W. 805 (Tex.Crim.App.1921). Recently, we held: “In order to be an accomplice as a matter of law, the witness must be susceptible to prosecution for the offense with which the accused is charged. A witness is not an accomplice witness merely because he may have known of the offense and did not disclose it or even concealed it.” McFarland, supra, at 514 . Finally, the First Court of Appeals has held that mere presence at the scene of the crime does not make a witness an accomplice. Tran v. State, 870 S.W.2d 654, 657 (Tex.App.-Houston [1st Dist.] 1994, pet. refused).

*463 Based on our prior ease law, a witness is an accomplice witness as a matter of law if he or she:

1. is indicted for the same offense as the accused; or

2. is susceptible to prosecution for the same offense as the accused.

A witness may be an accomplice as a matter of law if he committed one or more affirmative acts to promote commission of the offense for which the accused is charged, either before, during or after actual commission of said offense.

Where there is conflicting evidence as to whether a witness is an accomplice, the issue is to be submitted to the jury as a question of fact for it to determine whether or not the witness is an accomplice. Brown v. State, 640 S.W.2d 275, 279 (Tex.Crim.App.1982); Carrillo v. State, 591 S.W.2d 876 (Tex.Crim.App.1979).

In Lane , it is not clear from the record whether the juvenile witness, assuming, ar-guendo, article 38.14 applies to juvenile witnesses, is an accomplice as a matter of law, matter of fact, or as the State contends in its brief, is not an accomplice under either standard. Also assuming, arguendo, that article 38.14 applies to juvenile witnesses, in Blake , the record may well support the conclusion that the juvenile witness would be an accomplice as a matter of law.

The purpose of the accomplice witness rule is evident — the testimony of an accomplice is inherently untrustworthy and should be viewed with caution. Eckert v. State, 623 S.W.2d 359, 361 (Tex.Crim.App.1981). The accomplice’s motives in testifying against the accused may well include malice, an attempt to shift blame, or to curry favor from the State in the form of a lesser punishment, or perhaps, no punishment. The Legislature appropriately enacted article 38.14 to prohibit criminal convictions based solely on inherently suspect accomplice testimony, unless it is corroborated by other evidence.

However, if the witness cannot be prosecuted for the same offense as the accused or otherwise face punishment under the Penal Code, the rationale behind the accomplice witness rule is inapplicable. For example, an eight year old “accomplice” to an accused on trial for delivery of cocaine cannot be certified as an adult for the same offense. Neither does he face confinement in the Texas Youth Commission facilities, with a possible transfer to adult prison. At most, he could be confined in a Texas Youth Commission facility until age eighteen, should he be adjudicated as a delinquent. The incentive to lie or shift blame is not nearly as great for a witness not facing trial and/or punishment as an adult under the Penal Code. 3

Accordingly, I would hold that article 38.14 does not apply to a juvenile witness unless that witness:

1. Is subject to certification as an adult under Family Code § 54.02(a) and thus can be tried as an adult for the same offense as the accused; or

2. Is subject, if adjudicated as delinquent for committing one or more of the offenses described in Family Code § 53.045(a), under Family Code § 54.02(d)(3), to commitment to a TYC facility with a possible transfer to the Institutional Division.

In light of the above, the judgments of the courts of appeals in Lane and in Blake should be vacated and the causes remanded for the courts of appeals to determine:

1. Whether the juvenile witnesses are subject either to certification as an adult under Family Code § 54.02(a) or, if adjudicated as delinquent under Family Code § 53.045(a), face potential confinement in the Institutional Division under Family Code § 54.02(d)(3).

2. If the answer to 1 above is “yes,” whether the juvenile witnesses in each cause are accomplice witnesses as a matter of law, as a matter of fact, or are not accomplices.

3. If the answer to 2 above is “yes,” whether the failure to give the accomplice witness instruction is reversible *464 error under Almanza v. State, 686 S.W.2d 157 (Tex.Crixn.App.1984). See Burns v. State, 703 S.W.2d 649, 651 (Tex.Crim.App.1985).

I respectfully dissent.

. Appellant Blake was sentenced to life in prison due to his present conviction being enhanced by two prior convictions.

. One of the actors died in jail prior to appellant’s trial and thus did not testify at trial. The other actor, who did testify at appellant’s trial as part of a plea agreement, received a sentence of twenty years:

. Of course, the Legislature is free to amend article 38.14 to cover juvenile witnesses, which would effectively overrule Villarreal, supra. The fact that the Legislature has had eleven years to do so but has not so acted may well indicate their satisfaction with our holding in Villarreal .