Phelps v. State, 532 S.W.3d 437

John Robert Phelps was convicted by a jury of prohibited sexual conduct (incest) for engaging in sexual intercourse with his 19‑year‑old daughter, Ashley; sentence: 20 years, $10,000 fine; court‑appointed attorney fees ($400) were also assessed.
Ashley testified to long‑term sexual, physical, and mental abuse beginning in childhood and continuing into adulthood, described an incident in 2012 where Phelps awakened her and penetrated her despite her attempts to push him away.
Other witnesses corroborated aspects of abuse and Ashley’s fear; Ashley reported the abuse to police and a friend after leaving the household.
Phelps denied the acts; his wife recanted earlier indications and said she never saw sexual abuse; defense argued Ashley was an accomplice and her uncorroborated testimony was legally insufficient.
Trial court instructed jury on accomplice‑witness rule; jury convicted. On appeal Phelps argued (1) Ashley was an accomplice as a matter of law so her testimony required corroboration, and (2) the trial court erred by not instructing the jury that Ashley was an accomplice as a matter of law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether complaining witness (Ashley) was an accomplice as a matter of law	State: Ashley was a victim; no corroboration required	Phelps: Ashley was a willing participant/accomplice, so her testimony required corroboration	Court: Ashley was not an accomplice as a matter of law; prosecution need not corroborate her testimony
Whether failure to instruct jury that Ashley was an accomplice was error	State: no instruction necessary because she was not an accomplice	Phelps: trial court should have instructed jury that she was an accomplice as a matter of law	Court: No error—no duty to instruct that a witness is an accomplice unless it is indisputable she is one
Whether statutory change to incest statute affects accomplice presumption	State: 1973 Penal Code language removed the prior presumption that both parties are co‑perpetrators	Phelps: older cases (Bolin/Mercer) controlling; complaining witness presumed accomplice absent proof of force/threat	Court: 1973 amendment superseded the Bolin/Mercer presumption; defendant must produce affirmative evidence that witness willingly participated
Whether attorney’s fees assessment was proper	State: fees were assessed by trial court	Phelps: indigent; trial court made no finding he could pay	Court: Modify judgment to delete court‑appointed attorney fees because no finding of ability to pay

Bolin v. State, 505 S.W.2d 912 (Tex. Crim. App. 1974) (earlier rule treating consenting incestuous participant as accomplice; court discusses limits after statutory amendment)
Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) (a witness is an accomplice only if their participation included affirmative acts promoting the offense)
Brown v. State, 657 S.W.2d 117 (Tex. Crim. App. 1983) (threats/force can support jury finding that complaining witness was compelled and not an accomplice)
Zamora v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013) (definition of accomplice: one who could be charged with the same or a lesser‑included offense)