Clark, Michael Dwayne, PD-1424-15

Background

Police stopped a vehicle; Michael Dwayne Clark was the driver and Raven McQuirter was a passenger.
Officer observed marijuana; McQuirter removed a bag from her pants containing marijuana and a smaller bag of heroin capsules. McQuirter told Clark to give her the bag.
McQuirter testified she did not know the bag contained heroin and believed she possessed marijuana and cocaine.
Clark was convicted of possession of 1–4 grams of heroin and sentenced to 15 years.
At trial the court instructed the jury to decide as a question of fact whether McQuirter was an accomplice; Clark argued she was an accomplice as a matter of law, which would trigger the statutory corroboration requirement.
The Waco Court of Appeals (majority) held McQuirter was not an accomplice as a matter of law; Chief Justice Gray concurred in the judgment but would have found her an accomplice as a matter of law and deemed any charge error harmless.

Issues

Issue	Plaintiff's Argument (Clark)	Defendant's Argument (State)	Held (Waco Court of Appeals)
Whether the passenger (McQuirter) was an accomplice as a matter of law	McQuirter had actual custody/control of the contraband and knowingly took it; therefore she could have been charged and is an accomplice as a matter of law	Evidence could support that McQuirter lacked knowledge the bag contained heroin, so her status was not clearly that of an accomplice as a matter of law	Majority: Not an accomplice as a matter of law; remanded as a jury question. Chief Justice Gray: she was an accomplice as a matter of law but any error was harmless.
Whether the trial court erred by instructing jury to resolve accomplice status as fact	Charge error: court should have instructed accomplice-as-a-matter-of-law and required corroboration	No reversible error because evidence was inconclusive and any error was harmless	Court affirmed conviction; no reversal for charge error.
Effect of accomplice classification on sufficiency/corroboration requirement	If accomplice-as-a-matter-of-law, conviction cannot rest on her testimony without independent corroboration tending to connect Clark to the offense	State relied on non-accomplice evidence (e.g., Clark admitted rolling a marijuana blunt; marijuana on his clothes) to supply corroboration	Court found a rational jury could find non-accomplice evidence sufficient if jury deemed McQuirter an accomplice; issue left to factfinder.
Standard for appellate review of accomplice-as-a-matter-of-law	Cocke and precedent require jury instruction only when evidence is inconclusive; otherwise the judge must instruct accomplice-as-a-matter-of-law	State urges application of that standard to submit question to jury where evidence is conflicting	Waco majority applied the precedent and left issue to jury; Clark seeks CCA review arguing misapplication.

Key Cases Cited

Cocke v. State, 201 S.W.3d 744 (Tex. Crim. App. 2006) (distinguishes accomplice-as-matter-of-law vs. fact; instruct when evidence is inconclusive)
Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) (knowledge element analysis for possession)
Herron v. State, 86 S.W.3d 621 (Tex. Crim. App. 2002) (standard for preserved jury-charge error and harm analysis)
Smith v. State, 332 S.W.3d 425 (Tex. Crim. App. 2011) (corroboration standard under art. 38.14; sufficiency review for nonaccomplice evidence)
Herrera v. State, 462 S.W.2d 597 (Tex. Crim. App. 1971) (confidential informant distinction for accomplice status)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standard for harm from jury-charge error)