Blake v. State

• Decision Date: 24 June 1998
• Docket Number: Nos. 0736-97,0609-97,s. 0736-97
• Citation: 971 S.W.2d 451
• Parties: Whitney Ladell BLAKE & James William Lane, Appellants, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 451

971 S.W.2d 451

Whitney Ladell BLAKE & James William Lane, Appellants, v. The STATE of Texas.

Nos. 0736-97, 0609-97.

Court of Criminal Appeals of Texas En Banc.

June 24, 1998.

Before the court en banc.

Allan K. Butcher, Allan K. Butcher, Jr., Fort Worth, for appellant.

David M. Curl, Asst. Dist. Atty., Fort Worth, Matthew Paul, State's Atty., Austin, for the State.

OPINION ON APPELLANTS' PETITIONS FOR DISCRETIONARY REVIEW

MEYERS, Judge, delivered the opinion of the Court in which McCORMICK, P.J., and BAIRD, OVERSTREET, KELLER, PRICE, HOLLAND and WOMACK, JJ., join.

Appellant Blake was convicted of theft of property valued over $20,000. He was subject to a higher range of punishment due to his prior convictions. The jury sentenced him to life in prison. Appellant Lane was convicted of aggravated robbery of an elderly person. The court sentenced him to thirty years in prison.

We granted Appellants' petitions for discretionary review to address the viability of the juvenile exception to the accomplice witness rule.

I.

Appellant Blake was convicted of stealing a pickup truck and an automobile. A juvenile testified that, among other things, he and Blake together stole the keys to the automobile, which were later used to drive the automobile from the dealer's lot. In the indictment, the juvenile was listed as a member of the criminal combination Blake allegedly formed.

On appeal, Blake argued that the juvenile exception to the accomplice witness rule does not make sense and should not be applied in this case. The Court of Appeals declined to address Blake's arguments. The court said "[t]he appellant's arguments are unavailing because we are bound by the precedent of the Texas Court of Criminal Appeals," and cited Villarreal v. State, 708 S.W.2d 845 (Tex.Crim.App.1986). Blake v. State, 946 S.W.2d 118, 120 (Tex.App.--Texarkana 1997). ¹

Appellant Lane was convicted of aggravated robbery of an elderly person. A juvenile testified that Lane planned the robbery and enlisted her, and two other minors, to carry it out. She further testified that when the initial attempt was unsuccessful Lane became angry and insisted that the minors return and commit the crime. Finally, she testified as to Lane's role in the commission of the crime, and as to the disposition of the stolen property.

On appeal, Lane argued the trial court erred by not submitting the factual issue of the juvenile's accomplice status to the jury. Lane argued that the legislature's decision to increase the punishments which juveniles may face renders past case law obsolete. ² Citing Villarreal, the Court of Appeals rejected Lane's argument, stating "[c]learly, the notion that a child cannot possibly be prosecuted under the penal code was the controlling factor in the various applicants and disapplications of the rule through the years as penal code provisions came and went. Deprivation of liberty was simply not a factor." Lane v. State, 942 S.W.2d 208, 212 (Tex.App.--Fort Worth.1997). Therefore, the court held that "the amendments to the family code ... do not affect the case holdings that exclude from the accomplice-witness rule juveniles who cannot be prosecuted under the penal code." Id.

Appellants urge this Court to reexamine the juvenile exception to the accomplice witness testimony rule. Appellants argue that the juveniles who testified against them were blameworthy participants in the crimes for which Appellants were tried, and should therefore have been treated as such.

II.

For over one hundred years, it has been the jury's job to assess the credibility of accomplice witness testimony. See, e.g., Johnson v. State, 33 Tex. 570 (1870). Article 38.14 of the Texas Code of Criminal Procedure provides that "[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." The present wording of this section was enacted in 1965, ³ but the rule has been part of Texas law since at least 1925. ⁴ The jurisprudence surrounding this rule is well developed. ⁵

The accomplice witness rule is not mandated by common law or the federal constitution. ⁶ The rule reflects a legislative determination that accomplice testimony implicating another person should be viewed with a measure of caution, ⁷ because accomplices often have incentives to lie, such as to avoid punishment or shift blame to another person. The corroboration requirement applies only when the accomplice witness is called by the state. ⁸

Our case law has clearly defined who is subject to the accomplice witness rule. A person who is merely present at the scene of the offense is not an accomplice; ⁹ an affirmative act or omission is required. ¹⁰ An accomplice participates before, during, or after the commission of the crime ¹¹--presence at the scene of the offense is not required ¹²--though one is not an accomplice for knowing about a crime and failing to disclose it, or even concealing it. ¹³

We have also repeatedly stated that a person is an accomplice if he or she could be prosecuted for the same offense as the defendant, ¹⁴ or a lesser included offense. Ex parte Zepeda, 819 S.W.2d 874 (Tex.Crim.App.1991). By this we mean that a person is an accomplice if there is sufficient evidence connecting them to the criminal offense as a blameworthy participant. Singletary v. State, 509 S.W.2d 572, 575 (Tex.Crim.App.1974). "[T]he test is whether or not there is sufficient evidence in the record to support a charge against" the witness alleged to be an accomplice. Morgan v. State, 171 Tex.Crim. 187, 346 S.W.2d 116, 118 (1961). To determine whether the Morgan witnesses were accomplices, we examined the record for evidence of their participation in the crime. Whether the person is actually charged and prosecuted for their participation is irrelevant to the determination of accomplice status--what matters is the evidence in the record.

Finally, when an accomplice witness testifies it is the jury's task to determine whether the testimony has been sufficiently corroborated. Some witnesses are accomplices as a matter of law. If "there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law [then] 'the court is under a duty to so instruct the jury.' " DeBlanc v. State, 799 S.W.2d 701, 708 (Tex.Crim.App.1990). See also Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App.1987). Others are accomplices as a matter of fact. If the evidence presented by the parties is conflicting, and it is not clear whether the witness is an accomplice, the jury must initially determine whether the witness is an accomplice as a matter of fact. If the evidence is conflicting, it is proper to leave the question of whether an inculpatory witness is an accomplice witness as a matter of fact to the jury under instructions defining the term accomplice. Id. (citing Gonzales v. State, 441 S.W.2d 539, 541 (Tex.Crim.App.1969)).

III.

While the testimony of an adult accomplice offered by the state must be corroborated in order to support a conviction, this Court held that the testimony of an identically situated child ¹⁵ does not require corroboration. Appellants challenge this law.

The juvenile exception to the accomplice witness rule developed in a line of sodomy cases in which children were the victims of adult perpetrators. The exception was established to avoid conferring accomplice status on the child victims, and requiring corroboration of the child victims' testimony in order to obtain a conviction.

In Slusser v. State, 155 Tex.Crim. 160, 232 S.W.2d 727 (1950) (op. on reh'g), the defendant was convicted of sodomy. On appeal, he argued that the trial court erred by not providing the jury with a definition or instruction on his victim's status as an accomplice. ¹⁶ This Court upheld the trial court's instruction as proper, and concluded that juveniles could be accomplices based on the Penal Code then in place. At that time, article 30 of the Penal Code provided that no child between the ages of nine and thirteen could be criminally responsible for any offense unless that child "had discretion sufficient to understand the nature and illegality of the act."

In support of our holding, we pointed to a long line of cases holding that juveniles could be criminally responsible because they have the ability to form criminal intent and knowingly choose to perform criminal acts. For example, in Holmes v. State, 99 Tex.Crim. 298, 269 S.W. 96 (1925), the defendant was charged with aggravated assault for indecent familiarity with a child. We stated: "[c]hildren of the tender age referred to [between the ages of nine and thirteen] may be shown possessed of capacity and knowledge placing them clearly in the list of those who by knowledge and intent are criminals or accomplices as the case may be." Holmes, 269 S.W. at 97. In a companion case in which the defendant was also charged with aggravated assault for indecent familiarity with a child, Holmes v. State, 99 Tex.Crim. 270, 269 S.W. 95 (1925) we further stated:

Boys and girls 10, 11 and 12 years old are quite capable of embarking in [sic] criminal enterprises, and might be shown to have full knowledge and full understanding of the criminality of various acts denominated crimes. Our own opinion is that the better rule would be that each case should be determined by its own facts, and that, when in doubt as to whether the boy or girl involved was an accomplice, that is, one who voluntarily participates with knowledge and intent in the criminal act, the better rule would be for the court trying the case to submit the issue to the jury.

Holmes, 269 S.W. at 96. ¹⁷

Slusser 's conclusion that children could be accomplices led to the remarkable result that male juvenile victims who were sodomized by pedophiles, and had sufficient discretion to understand...