Smith v. State
| Citation | 897 S.W.2d 348 |
| Decision Date | 15 March 1995 |
| Docket Number | No. 042-95,042-95 |
| Parties | Michael Lynn SMITH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Tom Zakes, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., and Scott A. Dufree and Denise Nassar, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., and Jeffrey B. VanHorn, Asst., State's Atty., Austin, for the State.
Before the court en banc.
State's Petition for Discretionary Review Refused.
MANSFIELD, Judge, dissenting to refusal of State's Petition for Discretionary Review.
Appellant, Michael Lynn Smith, and Richard Allen were indicted for the murder of appellant's girlfriend, Tammie Joe Love. The murder occurred early on September 25, 1992 in a water-filled sand pit located near Katy. Appellant shot the victim several times with a .22 calibre rifle, and eight bullets, all of that calibre, were recovered from her body. Allen fired rounds from a .380 calibre pistol into the water.
Allen pled guilty to attempted murder and agreed to testify against appellant. Allen testified that he aimed his pistol away from the victim when he fired. In its charge to the jury during the guilt/innocence phase, the trial court instructed the jury that they could find Allen was an accomplice as a matter of fact, but did not require them to do so. The jury convicted appellant of murder and sentenced him to life in the Texas Department of Corrections--Institutional Division.
The Texarkana Court of Appeals, in an unpublished decision, reversed the conviction and remanded the cause for a new trial. Smith v. State, No. 06-93-00109-CR (Tex.App.--Texarkana 1994). The court held the trial court erred by failing to instruct the jury that, because he had been indicted for the same offense as appellant, Allen was an accomplice as a matter of law.
An accomplice witness is an individual who has participated with the accused before, during or after the commission of a crime. Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980). If the evidence clearly shows that a witness is an accomplice as a matter of law, a failure to so instruct the jury may be reversible error. Solis v. State, 792 S.W.2d 95 (Tex.Cr.App.1990). While there is no statute providing that a witness who is indicted for the same offense as the accused is an accomplice witness as a matter of law, case law has developed to this effect over the years. In my opinion, a reexamination of this matter is in order.
The accomplice-witness rule's origin with respect to a witness indicted for the same offense as the accused can be found in Barrara v. State, 42 Tex. 260 (1875). In that case, Barrara was tried for murder. The only witness who could implicate Barrara was Lerma, who had been indicted for the same murder. Lerma agreed to testify against Barrara only if the indictment against him was dismissed. It was, and Lerma testified. The Supreme Court held that the jury should have been charged that Lerma was an accomplice as a matter of law because he agreed to testify only on condition that the charges against him be dismissed. The Court made it clear that it was not merely Lerma's status as an indictee for the same crime as Barrara that made him an accomplice witness as a matter of law. The instruction to the jury was required because Lerma testified only on condition that the charges against him with respect to the same crime for which Barrara was on trial were dropped.
In Williams v. State, 42 Tex. 392 (1875), a State witness was jointly indicted with Williams. The indictment against the witness was dropped, and there was no evidence that this was done pursuant to any negotiations between the witness and the State. The witness denied any involvement in the offense. The Supreme Court found that the instruction to the jury by the trial court, which did not require the jury to find the witness to be an accomplice as a matter of law, was acceptable.
Between 1875 and 1920, this Court ruled several times that the question of a witness' status as an accomplice was an issue to be submitted to and decided by the jury. See Jones v. State, 59 Tex.Crim. 559, 129 S.W. 1118 (1910); Standfield v. State, 84 Tex.Crim. 437, 208 S.W. 532 (1919). However, this Court ruled in Stiles v. State, 89 Tex.Crim. 603, 232 S.W. 805 (1921), that 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. This is consistent with Barrara and is based on a similar set of circumstances (i.e., dismissal of the charges versus immunity in exchange for testimony).
Reversing itself, this Court ruled a few years later that a witness who has been indicted for the same offense as the accused is an accomplice witness as a matter of law. Furthermore, failure to charge the jury accordingly is reversible error. Newton v. State, 94 Tex.Crim. 288, 250 S.W. 1036 (1923); Low v. State, 267 S.W.2d 270 (Tex.Cr.App.1924); Collier v. State, 108 Tex.Crim. 171, 300 S.W. 54 (1927). It is important to note that a statute which is no longer in effect, Art. 711, Code of Criminal Procedure (1925), did not allow persons charged as principals, parties or accessories to testify as witnesses for one another. The Court in Collier concluded that since Article 711 prevented an accused from having those parties testify on his behalf, the State should be able to use them as witnesses against the accused only if the jury was instructed that they are accomplices as a matter of law.
Since then this Court has held consistently that merely being indicted for the same offense as the accused means the witness is an accomplice as a matter of law. The Court did hold in Garza v. State, 296 S.W.2d 267 (Tex.Cr.App.1956), that the issue was properly submitted as a question of fact to the jury in a case where the indictment against the witness was dismissed the morning of the accused's trial. There was no evidence presented in Garza that the indictment was dismissed in exchange for the witness' agreement to testify or as part of any deal.
As described above, the cases holding that a witness indicted for the same offense as the accused is an accomplice witness as a matter of law have not been examined in many years. While passage of time in and of itself is not a reason to discard precedent, a close examination of those cases shows serious contradictions and reliance on a statute that no longer exists.
Texas Code of Criminal Procedure Art. 38.04 provides that the jury is the exclusive judge of the facts proved, and of the weight to be given to the testimony presented. The modern trend has been to allow the jury to decide contested issues of fact and to remove obstacles to same. See Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991); Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1981)...
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