Blake v. State

judg- рlaintiff and to reverse remand Whitney plaintiff to whom BLAKE & James

ment for the other exees- Ladell awarded). Lane, Appellants, damages were William sive appeals cited Finally, court of Cotner only that “were its conclusion Texas. The STATE of court, judg- to the trial Tucker remanded 0736-97, Nos. 0609-97. plaintiffs ment entered Wilson Texas, Appeals liabil- preclude relitigation of of Criminal [Baker’s]

would Court ity under the doctrine of collateral En Banc. on retrial” Cotner, (citing estoppel. at 188 24, 1998. June 819). Assuming without decid- 845 S.W.2d at correct, only ing analysis that this applica- be harmed

party that could solely estoppel a retrial

tion of collateral Baker, not damages and Baker did judgment.

appeal the trial court’s The Wil- arguing have plaintiffs

son no basis judgment trial court’s should be reversed regard of harm that

with to them because adversary. their The Wilson

might befall

plaintiffs Baker can show no harmful error if collaterally estopped on remand. See

Jackson, (holding that a 499 S.W.2d at

petitioner may complain not do of еrrors that injure petitioner merely or that affect others). any rights We also note that estoppel in the

issue of collateral retrial moot, claim is now that Tucker and

Tucker’s

Baker have settled. appeals

While the court of found error respect appeal, yet to

with it has Tucker’s

determine whether error also exists

damage plaintiffs. award to the Wilson grants Baker

Accordingly, Pat Court and,

Company’s petition without for review judg- argument,

hearing oral reverses the appeals of the court and remands

ment the Wilson

case to that court to consider TexR.App. ‍‌‌​‌​‌​​​‌‌​‌​​‌​‌‌‌​​​​​​​​​‌‌‌‌​‌‌​‌​​​‌‌‌​​​​‍ P. points survivors’ of error.

59.1. unavailing appellant’s arguments are

“[t]he precedent are because we bound Appeals,” of Criminal the Texas Court cited Villarreal Blake Butcher, Jr., Butcher, Allan Allan K. K. (Tex.App. —Texarkana Worth, appellant. Port for mi).1 Curl, Atty., Asst. Fort David M. Dist. Austin, Worth, Paul, Atty., Matthew State’s aggravat- Appellant Lane was convicted of for the State. elderly juvenile A robbery person. of an ed robbery planned the and testified that Lane PE- ON APPELLANTS’ OPINION minors, her, carry two to enlisted and other TITIONS FOR DISCRETION- when the it out. further testified that She ARY REVIEW attempt initial was unsuccessful Lane be- MEYERS, Judge, opinion the of delivered angry came insisted that the minors MeCORMICK, P.J., the Court in which Finally, return and commit the crime. she BAIRD, OVERSTREET, KELLER, to Lane’s in the commission testified as role PRICE, WOMACK, JJ., HOLLAND and crime, disposition to of and as the the join. property. stolen Appellant Blake of of was convicted theft $20,000. property He sub- valued over was argued the trial court appeal, On Lane ject punishment a to higher range to due submitting not the factual issue of erred prior his convictions. The sentenced juvenile’s accomplice jury. the the status to prison. Appellant him to was life Lane legislature’s argued Lane decision to aggravated robbery elderly convicted of of an punishments juveniles the which increase person. thirty The court him to sentenced past case law obsolete.2 face renders years prison. Villarreal, Citing Appeals the re- Court granted Appellants’ petitions We for dis- stating jected argument, “[cjlearly, Lane’s cretiоnary viability review to the address possibly the notion that a child cannot be juvenile exception accomplice wit- the to the penal prosecuted the was the code ness rule. applicants controlling factor various through disapplieations of the rule the I. provisions penal came years as code Appellant Blake a stealing was convicted of simply was Deprivation liberty went. not pickup juvenile and an A truck automobile. that, Lane among things, testified other factor.” he Worth.1997). together keys Therefore, Blake the stole automo- (Tex.App.—Fort bile, which were used auto- later to drive the to the court held that “the amendments the from the mobile dealer’s lot. the indict- ... the family not affect case hold code do ment, juvenile the was listed as member ings accomplice-wit from that exclude the allegedly the criminal combination Blake juveniles prosecuted who cannot be ness rule formed. penal under the code.” Id. appeal, argued juvenile Blake the On Appellants to urge this Court reexamine exception to witness does juvenile applied make be not sense and should not Appellants argue ness rule. Appeals this case. The Court of declined to against who them were testified arguments. address Blake’s The court said concurrence, accomplices" agreed “probably, legally, [] niles can 1. In a brief Justice Grant by prece- requested jury appeals the court was bound instruction but refused Lane’s dent, urged but this Court to re-examine based on its conclusion however, issue. Appeals, accomplice. Court of did The Lane have enti- not address whether would been at issue tled to an instruction petition argues 2. The State Lane’s discretion- if holding аpplied, in- ary because there review should be dismissed rule does not stead that the witness no evidence that the was an accom- fact, apply juveniles regardless juve- of the circum- plice. In court trial conceded blameworthy participants in the crimes for legislative constitution.6 rule reflects a Appellants tried, and should accomplice testimony determination that im- therefore have been treated as such. person plicating another should be viewed caution,7 with a measure accom- because II. plices lie, often have incentives such over years, For one it has hundred been punishment avoid blame another shift jury’s job credibility assess the person. ap- requirement corroboration See, testimony. e.g., plies only when the witness is Johnson Tex. Article called state.8 38.14 of the Code of Texas Criminal Proce- clearly Our ease law has defined provides dure “[a] cannot conviction who is rule. upon had of an person A merely present who is at the scene by unless corroborated other evidence tend- accomplice;9 the offense is not an an ing to connect the defendant with the offense affirmative act or An required.10 omission is committed; and the is corroboration not suf- before, accomplice participates or during, af it merely ficient if shows the commission of ter the commission presence present wording offense.” The crime11 — this at the required12 scene the offense is not 1965,3 section was enacted in but the rule has —though is one not an know part of been Texas law least since at 1925.4 ing it, failing about a crime and to disclose or jurisprudence The surrounding this rule is concealing even it.13 developed.5 well The accomplice repeatedly have is not We also stated that person mandated common law or a the federal is an if he or she could (1983); State, granted (1978); stances. We review to examine this Brown v. 576 S.W.2d 36 State, purely legal (Tex.Crim.App. issue. v. 525 518 S.W.2d Cranfil 1975); State, (Tex. v. 508 Hendricks S.W.2d 633 Crim.App.1974). 1965, 2, 317, Leg., p. 3. Acts 59th vol. ch. 722. 6. See 5. See 4. 8. A 7. v. (Tex.Crim.App.), See, O. S.Ct. structing Guide (1983 Crim.App.1991); not constitution does not 1925). F.2d 1273 See failure do not States (6th Cir.1995); Crim.App.1982). (8th See 25 See Paulus Collins, Teague, present also, e.g., court’s refusal to e.g., Selman v. Cir.1993); 184, Tex.Code Thompson & §§ v. require Tex. Supp.1997); Restrepo, 73B.04[2]-[4](Frank satisfy 88 (9th Cir.1993). eds. 937 F.2d 175 constitutional v. State, L.Ed.2d JuR.2d Criminal Law 3439-3447 United States v. Crim. Harrington v. corroboration. witness rule is Dec.1997). United corroboration v. cert. Aston 994 State, State, art. Proc. Ann. is 153 633 denied 3 Texas Criminal Practice charge require the rule called v. States F.2d (5th Cir.1991) (federal (1985); State, error). S.W.2d 807 691 S.W.2d Hayes, 173 474 U.S. Maloney Nix, v. S.W.2d corroboration, requirement applies See, error, Necoechea, see also Brown jury regarding the defendant. (5th Cir.1993). Federal courts 827, §§ 983 ^[718] (Vernon 49 F.3d 178 e.g.. 310 & when the 843 627, as is in- 865, F.2d 872 Marvin United (Tex. (Tex. does 631 986 106 so 11. 9. 10. McFarland v. 12. App.1976). advises, commands, State, 307 S.W.2d 264 ent at the Tex.Crim. State, Smith v. commit the offense is an 515 cert. note Walker v. L.Ed.2d 604 Crim.App.1996), cert. (Tex.Crim.App. Crim.App.1983); Brown v. S.W.2d 761 275 107 1986); 120 S.W.2d 590 ce Creel Easter v. State, Crank See, L.Ed.2d (1946); denied 12; 442 168 Tex.Crim. rt. v. e.g., Kunkle, v. v. State, 771 S.W.2d 435 Harris State, State, 333, S.W.2d commission but State, denied 493 U.S. Goodwin v. 492 U.S. State, (1989); King 162 (Tex.Crim.App. 1974); 110 S.W.2d 906 supra 721 754 149 Tex.Crim. (1957) (person v. 761 340 State, (1928); (1989); v. State, S.W.2d 844 452, S.W.2d ‍‌‌​‌​‌​​​‌‌​‌​​‌​‌‌‌​​​​​​​​​‌‌‌‌​‌‌​‌​​​‌‌‌​​​​‍205 Brown or note S.W.2d State, denied_; (1969). 925, State, Johnson v. accomplice). S.W.2d encourages 928 329 S.W.2d 94 645 S.W.2d 447 State, before Stevens v. 11; McFarland, Creel, (Tex.Crim.App. 109 v. 135 Tex.Crim. 874, 1973); 328 165 Tex.Crim. S.W.2d State, (1937). 501, who is not S.Ct. 505 S.W.2d 850 supra (1988); the act is (Tex.Crim.App.1988) (Tex.Crim.App. 110 S.Ct. 196 S.W.2d 640 S.W.2d State, another Gregory (Tex.Crim. State, 3259, 482 Miller v. note (1959); Kunkle 1986), supra pres- (Tex. done (Tex. 375, 378, 209, 502 133 106 11; v. 539, State, (citing 441 S.W.2d prosecuted for same as the Id. Gonzales offense defendant,14 (Tex.Crim.App.1969)). a Ex lesser included offense. (Tex.Crim.

parte Zepeda, 819 S.W.2d 874 III. App.1991). By person this mean a is we if there is suffiсient evidence testimony of an adult ac While the connecting them to the criminal offense as a complice by the must be corrob offered state blameworthy participant. Singletary conviction, support this in order to a orated (Tex.Crim.App. an identical Court held 1974). test is not is whether or there “[T]he corrobo ly require child15 does situated sufficient evidence in the record challenge law. Appellants this ration. charge against” alleged the witness exception accomplice. Morgan v. 171 Tex.Crim. sodomy developed in line of To deter- victims of cases in which children were the Morgan mine witnesses were perpetrators. adult was es- accomplices, examined the record for evi- we conferring sta- tablished to avoid participation dence their the crime. victims, requiring tus child cor- on the person charged actually Whethеr the child victims’ roboration prosecuted participation for them is irrele- order to obtain a conviction. accomplice of vant the determination sta- State, 160, In v. 155 Tex.Crim. 232 Slusser in tus —what matters is the evidence the (1950) the (op. reh’g), on defen- S.W.2d 727 record. sodomy. appeal, On dant convicted of by not argued he that the trial court erred Finally, when an wit a in- providing jury the with definition or jury’s ness it is testifies the task deter an on his victim’s status as accom- struction mine whether the has been suffi upheld trial plice.16 This Court the court’s ciently Some witnesses are corroborated. proper, ju- and that instruction as concluded accomplices as a matter of If “there law. accomplices based the could be on veniles clearly or exists doubt the shows no evidence time, place. in At that Penal then Code that a is an witness as a provided of the Penal Code article 30 matter law under a of ‘the court is [then] ” ages child the nine and thirteen between duty jury.’ instruct v. so the DeBlanc responsible any for of- criminally could be State, 701, (Tex.Crim.App. 799 S.W.2d 708 suffi- fense unless that child “had discretion 1990). State, See also Gamez v. 737 S.W.2d illegality the and cient to understand nature 315, 322 are Others of the act.” accomplices as a If the matter fact. evi presented by pointed to a parties conflicting, holding, dence the is of our we long holding it is could and is not clear whether the witness an line of cases criminally accomplice, initially responsible they have jury the must determine because ability and know- whether the witness is an the to form criminal intent ingly perform If criminal acts. For conflicting, matter of fact. the is choose evidence State, in v. 99 Tex.Crim. proper question example, it is to leave the of whether Holmes 298, (1925), the defendant was inculpatory witness is an wit 269 S.W. 96 fоr jury charged aggravated assault indecent ness as a matter of fact the with accomplice. familiarity “[c]hil- with a child. We stated: defining the term instructions argued prosecution principle the court should or ac- 16.The defendant 14. This includes Creel, 11; State, cessory. supra jury v. note how to determine Gamez have instructed the Easter, (Tex.Crim.App.1987); 737 su- S.W.2d 315 was an as a mat- whether the victim 15; Johnson, 13; supra Gregory, pra note note argued court erred ter fact. He also that the 13; 13; Walker, supra King, supra note note by instructing victim the that his 13; Walker, supra supra note 13. note also as a matter law. See discus- sion, supra at II. child, blameworthy participant A who is a crime, punish- to state sanctioned ment. 456 age

dren of tender referred to rule for the [between better would be court ages may of nine and trying thirteen] be shown the case to submit the issue to the possessed capacity jury. knowledge placing and clearly by them the list of those who Holmes, 269 at 96.17 S.W. knowledge intent and are criminals or accom- Slusser’s conclusion that children could be plices Holmes, as the case be.” 269 accomplices led to the result that remarkable companion at 97. In a S.W. case male victims who were sodomized was also charged aggra- defendant with pedophiles, had and sufficient discretion to familiarity

vated assault for indecent -with a wrong, understand that such an act was were child, State, 270, Holmes 99 Tex.Crim. 269 accomplices perpetration considered (1925) S.W. 95 we further stated: their In many own abuse.18 other sexual 10, Boys girls years old are assault held eases we the child victims quite capable of embarking criminal [sic] See, accomplices as a matter of law.19 enterprises, might be shown to have State, e.g., Gallager v. 131 Tex.Crim. knowledge full and full understanding (1936); State, Compton S.W.2d 954 criminality various acts denominated 130 Tex.Crim. opinion crimes. own Our better Hinson v. Tex.Crim. be that case (1948), would each should be example, S.W.2d 750 this Court facts, that,

determined its own appellant’s “repul- called acts criminal boy sive,” when in as to yet doubt or overturned his conviction so- girl accomplice, is, victim, involved was an domizing because voluntarily participates one who with “small boy,” was an whose testi- act, knowledge mony and intent criminal was uncorroborated.20 See, key e.g., 17. The in sexual status assault Court. Eremita v. "struggled” (thirteen cases (Tex.Crim.App.1967) year was whether child had 609 old cases, In "consented.” both Holmes we ulti- complainant’s friend an was not to mately concluded the child was not an accom- sodomy though experi even friend had “similar struggled he because testified that he defendant); State, ence” with v. 171 Tex. Bowers against defendant’s conduct. 345, (minоr (1961) Crim. S.W.2d 350 27 friend complaining of witness was not even involving juvenile 18. The results in cases female defendant); though to she had "submitted” apparently depended victims the on crime with 302, State, Young 159 263 v. Tex.Crim. S.W.2d example, charged. the defendant For was (1953) (juvenile complaining 164 friend of statutory rape victims were not considered ac though ness was not even he had State, 508, complices. v. Tex.Crim. 163 Soliz "consented” to defendant’s sodomization of him- (1956); State, Lacey 293 662 v. S.W.2d 1-37Tex. self); State, see Camathan v. 478 S.W.2d 490 also 87, (1939). Crim. 127 S.W.2d In 890 cases 866, (Tex.Crim.App.1972), rt. 409 U.S. denied ce relative, rapist where the was a it was ‍‌‌​‌​‌​​​‌‌​‌​​‌​‌‌‌​​​​​​​​​‌‌‌‌​‌‌​‌​​​‌‌‌​​​​‍common 160, (1972) (fondling 93 S.Ct. L.Ed.2d 114 of 34 prosecutor charge for the to elect to the defen- child); State, male Thompson v. 501 S.W.2d 109 statutory rape. dant with instead incest of If the child); (Tex.Crim.App.1973) (fondling of male prove "participation" victim failed to that her State, (Tex.Crim.App. v. 261 S.W.2d 838 Griffin threats, duress, influence, was due to undue 1953) child). (fondling of female she was an as a matter of law. For State, example, Wilson v. 393 S.W.2d 918 catch-22; put they pre- boys 20.This in a were (Tex.Crim.App.1965), underage we held that the accomplices, prove they sumed otherwise to daughter-victim was an because she prove they struggled against had to ers, their attack- "appeared sufficiently strong willed” to resist. generally but there -were no witnesses to the case, an In another we overturned incest convic- testimony. Pipkin assault to their In corroborate 154 Tex.Crim. step- tion where the defendant had forced the State, 640, v. 230 S.W.2d 221 daughter-victim to have sex with him while she (1950), we conviction reversed defendant's for ages was between the of fifteen ten and because sodomy year of a fourteen old victim because outcry the victim did not make an and had there- ”[i]t much consent- "consented,” [the victim] not so though fore even she testified she objeсted ed to the act as it is whether thereto he nothing stepfather. said due to of fear her Wil- perpetrated State, was forced submit to the act son v. Tex.Crim. upon against him his will.” There no other assault, unable witnesses to the so the victim was this, present struggled. appeals he holding 19. Some sufficient evidence that courts extended State, eyewitnesses accomplices, See v. were also also Gottschalk 157 Tex.Crim. (1952) though (fondling those decisions were overturned in this conviction re- defendant, capi- convicted App.1986). The and the 1967 amendments A. Komurke murder, the trial argued appeal tal Penal Code the failing give an court erred pro- Article amended to 30 was regarding an instruction vide: year for the witness who testified eleven old any convicted of of- person No rule of argued that the state. defendant fense, except perjury, which commit- longer wаs no law announced Komurke age; years he was 15 ted before revisions, and this penal code sound due only appears when it he had perjury State, 645 v. opinion Court’s Harris na- sufficient to understand the discretion (Tex.Crim.App.1983). S.W.2d 447 obligation of an oath. ture and development of explanation After first ease to the 1967 amend- address accomplice wit- juvenile exception to the effect on was Komurke ment’s Slusser Komurke,21 rule, we ness via Slusser and S.W.2d examining Sec- concluded our discussion sodomy un- The defendant convicted Code, successor to tion 8.07 of the Penal argued the 1925 Penal Code. He der Noting Article that Section 8.07 set forth that his victim was an evidence established prosecution, general the same rule law, accomplice as a trial matter of any exception, not we held that did contain charge jury. failing to so court erred juvenile in сould not because the Villarreal opportunity We took the to overturn the mur- prosecuted for have been the offense Slusser, citing announced revision der, necessarily “it follows she could not Article 30 of then the Penal Code have Villarre- been an witness.” discussion, supra change. See at II. al, rejected at 848. We S.W.2d observed that revised Article 30 set We supported argument that Harris defendant’s general prohibition prior same as the out the to an that he was entitled proposition 30, namely Article that a could not accomplicewitness instruction. provision prosecuted, but that the revised Harris, court erred in we held trial exception allowing did not contain an jury to whether a charging determine prosecution where the had sufficient year witness. fifteen old was nature discretion to understand the and ille- Harris at 454. The gality the act. set forth We then what evidence, conflicting including record showed accepted syllogism supporting the became testimony, re- juvenile’s in conflicts the own juvenile the to the offense, garding participation her (1) juvenile statutorily rule: a the ness put question into whether she was a age criminally prosecuted cannot be set and blameworthy participant. concluded that We (2) (3) therefore is not an facts, distinguishable on the Villarreal was not subject therefore is in that ease there no evidence the that rule Although witness rule. this was estab- juvenile involved in question in had been the in the context of child sexual assault lished crime, that only evidence she had witnessed eases, no mention was made of the context of it.22 development. opinion its Our written in Harris also showed that evidence no matter broadly, with limitations. begun the certifica- the state but halted had Challenge B. Recent to the Komurke necessary try juvenile proceedings to the tion Rule: Villarreal not, however, consider as an We did adult. Har- challenged dispositive. Our of Komurke rule was in Vil- this fact resolution (Tex.Crim. ris this Court’s determination larreal v. illustrates juvenile year testified the had old victim’s 22. The defendant versed because thirteen testimo- uncorroborated). ny was "chicken” asked defendant whether he was too making that state- to kill She denied the victim. out, however, neglected point 21. We topic testimony ment there was on had, point, developed exclusively to this in by other witnesses. primarily prosecutions sex abuse for child sodomy, indecency, cases— fondling. omitted). (citations Harris, blameworthy participation, and not whether at 459 S.W.2d juvenile a for trial has been certified as an Our on decision turned an evaluation of the adult, is what case, determines whether facts and of the circumstances not necessary.23 witness instructions are We ex- poten- certification trial as an adult amined the determine record to whether legal juvenile. tial prosecution bar to was a there conflict in the evidence such that light post-Villarreal statutory devel- jury juvenile could find that was an opments and a more detailed examination First, of law. matter we adopted the rule of law in Villarreal and juvenile’s testimony observed conflicts in the based, precedent it is on which we now revis- trial guilt. at related to consciousness of She it this issue. making prior admitted statements that she guilty “just believed she was because she was IV. Harris, part they of it as were.” Second, pro- S.W.2d at 456. we noted that syllogism developed We first note that ceedings certify juvenile begun had longer purpose Komurke no serves the adult, as an completed, trial but not did, namely which it once to allow the uncor- that she testified had a testimony roborated victims State, exchanging with the “deal” her testi- sexual assault to convict adult assailants. mony sentencing for a favorable recommen- extensively just The Penal Code was revised Third, dation. we observed after defendant trial. The new Komurke’s testimony “awas witness whose vir- formed Code, both at the time Komurke was decided tually the case against appel- State’s entire present, provides pellucid and at delineations lant, every and one who reason to had shade against of sex children it crimes which make testimony downplay her her own involve- clear that are accomplices children not Harris, ment in that offense.” at See, e.g., their attackers. Tex. Penal Code (citation omitted). Comparing the Har- Child), § (Indecency § 21.11 awith 22.011 eases, facts to several ris the facts of other (Sexual Assault), (Aggravated § 22.021 Sexu- distinguishable primarily we found Harris Assault). charge al Prosecutors- tend very due inconsistent statements of adult these assailants with crimes lieu conclusion, juvenile. we stated: specific less crimes defined terms charged been so should have assaulting adults children.24 juvenile] was an [the said, today we That hold that and whether her was corrobo- juvenile exception

rated. Her actions and and the blameworthy rule —that who are whole, especially evidence as a her action participants exempt are unilaterally crimes taking possession of the truck without sup from the rule —is not permission anyone, or instruction while Court, ported by progress, the decisions this is not killing was still in raised the statute, whether, supported contrary ‘prior fact issue of or contem- current event,’ purpose accomplice to poraneous with criminal the of witness rule. the she the agreement hereby was a kill party holding to the to the Cases otherwise are overr exception juvenile uled25 to the deceased for his truck. and the so, 23.By doing implicitly recognized arguably we the 24. A child could be considered an ac- dan- specific ger allowing accomplice complice in status to turn on to crimes. these less See Tex. certification, (Prohibited expressly § and we do so now. Al- Sexual Conduct Penal Code 25.02 (Homosexual Conduct), [Incest]), lowing accomplice § to turn on status certification 21.06 Lewdness). (Public gives option forego delay the State the to § 21.07 accomplice juve- certification in where the cases would state as a nile be useful to the witness in importance recognize principle 25. We the of the juvenile to have the excluded the order from decisis, of to stare and reaffirm our commitment accomplice of the witness rule. milieu This is adhering precedent. We to note that our deci- spirit contraiy accomplice to the of the letter and today nothing prin- sion to undermine that does witness rule. ciple. today, creating The cases we overrule exception maintaining juvenile the to the accom- presented in that accomplice emphasize is issue abolished. The the to a potentially ease Harris was entitled who could was whether juvenile’s as an jury instruction on the status subject punishment to state sanctioned is recog- rule, accomplice as a matter fact. We accomplice in now the witness same of- anyone nized that indicted for the the same manner as the fense, age, accomplice as a regardless of an adults.26 Harris, at

matter of law. A. citing 457 n. McCloud v. (Tex.Crim.App.1975). After cit- S.W.2d 885 The decisions of this do not Court ing accomplice as a matter definitions juvenile accomplice the fact, accomplice as a we law and matter of In deciding ness rale. that the deci- Harris said: Villarreal, germane” sion was “not this (1) distinguished on two

Court Harris bases: in say that the erred We cannot trial court juvenile the lack of the jury juve- evidence failing the [the to instruct (2) crime, participated in the Villarreal mat- was an witness as a nile] proceedings However, the certification instituted in light ter of of the evi- law. against the detail, Harris. below in the trial dence set out instruct to de- court’s refusal to sound, provides ap- The first basis is juve- question cide the fact whether [the propriate logical support for our decision a mat- nile] was an witness [as Harris, we stated “the Villarreal. ter of was reversible error. fact] defendant entitled to an re- instruction Harris, garding girl reading or not the was an ac- at 454. A fact, clearly as a complice opinion matter of since evi- entire Harris shows clearly girl proceedings dence showed that the certification had been institution of Villarreal, involved the murder.” 708 not the the decision. The certifica- basis for added). (emphasis proceedings only S.W.2d at 849 tion went Villar- to whether pointed we real out that the circumstances was an as a matter Harris, clearly 456- esp. different because there was no law. See S.W.2d at evidence that the had been involved 459. murder, specifical- where Harris we B. evidence, ly emphasized presence in- juvenile exception juvenile’s

cluding testimony, pointed supported by witness is not statute. participation. her juve- excluding There is statute or rule basis, however, The second misreads Har- rale; niles from witness it is ris and is not a conclusion that can rea- judge-made Priоr creation doctrine. sonably premises. drawn from the In Villar- exception, applications of the of the accom- comparison real we continued our of the two emphasized rale the witnesses’ Harris, proceedings already cases: “[i]n had participation Legal crime. bars attorney been instituted the district prosecution not remove status did adult, girl have certified as and this purposes rale. that, girl Court noted had the been indicted Code, murder, For Penal example, then she would have been prosecution of relatives servants of matter of law. S.W.2d at Villarreal, n. 27.” No class of 708 S.W.2d at 849. the defendant was barred. other times, prosecution. Arti- persons exempt this from We made observation several rule, by accomplice plice supported logic status. A are not an essential element longer accomplice person may the reasons for its existеnce are no valid of fact be an as a matter light of current statutes. that if the determines there is sufficient connecting person to record evidence in the blameworthy partici- the criminal offense Though person prosecuted 26. a is who Singletary, pant. parte Zepeda, supra; Ex a See same offense the defendant or lesser includ- discussion, law, supra supra; Morgan, supra; at accomplice ed offense is as a matter of prosecution we note that the of a is not II. initiation provided cle 78 following suspicion “[t]he cannot inherent and belief in the untrust- accessories; accomplice’s husband or wife of the testimony. worthiness of the offender, sisters, his brothers and his rela- The rule’s roots can be traced to common ascending tions in the descending by- or line law, parties precluded where interested consanguinity affinity, or his domеstic ser- testifying from in both criminal civil vants.” Turner v. 117 Tex.Crim. perjury cases—“fear of was the reason for 434, (1931), argued the state States, this rule.” Benson v. United 146 U.S. prohibition prosecution this removed the 325, 335, 60, 13 S.Ct. 36 L.Ed. 991 daughter-in-law defendant’s from the con- Supreme The United recog- States Court fines of witness rule. The nized that the basis of such rules was to set syllogism the nearly State advocated was a persons aside class of who likely were ‍‌‌​‌​‌​​​‌‌​‌​​‌​‌‌‌​​​​​​​​​‌‌‌‌​‌‌​‌​​​‌‌‌​​​​‍more juveniles identical to that established for perjury to commit than other witnesses. (1) daughter-in-law Komurke: is a rela- Texas, Washington v. 388 U.S. 87 S.Ct. by tion affinity and criminally cannot be (1967) (rejecting 18 L.Ed.2d 1019 (2) prosecuted and therefore is not an accom- only federal rule that co-defendants were (3) therefore is not to the state). competent witnesses for the rejected witness rule.- We suspicion This perjury and fear of is not argument: State’s without Accomplices reason. often strikе if prosecu- such witness be excluded [from state, bargains prosecutor with the where the by tion] the terms of article P.C.—that agrees sentencing to a favorable recommen- is, if the prosecuted witness could not be dation in exchange accomplice’s for the testi- accessory as an under the terms of said mony against person. another Courts have by article —it no means that said follows recognized plea bargain contains a by his might conduct not so con- DeSantis, degree compulsion. People v. nect with the case as to character himself (Cal.1992), 831 P.2d 1210 cert. denied 508 ize him as an witness as a addition, U.S. 917. those accused of matter by law when called the state to try place crimes tend to responsibility testify. proposition think it a We sound for the commission of the crime on the other ordinarily that one who would be liable to participants downplaying while their own prosecution exemption but for the [ ] of participation, often order to avoid the con 78, P.C., article would fall under the classi- sequences of criminal acts. For these rea “accomplice fication of an witness” when sons, protect and to the criminal defendant testify. called the state to case, legislature each has determined Turner, added). (emphasis 37 S.W.2d at 749 uncorroborated accom Thus the cloak of witness status plice is not enough a criminal by specific statutory not removed pro- conviction. barring prosecution. vision suppose There is no reason to the testimo- why We see no reason logic the same does ny blameworthy juveniles potentially sub- apply statutory prosecution bars to ject punishment by any the state is less under the current Penal Code.27 suspect blameworthy than the espeсially light adults. This is true

C. recent amendments to the Juvenile Justice juvenile exception change way juve- Code which in which contrary purpose may adjudicated punished, niles such witness rule. The consequences heart now face legislature’s witness rule is the similar to those faced adults.28 Juvenile Presently only persons 27. cally persons incompetent two classes of are ab- declare insane to be 601(a)(1). solutely exempt prosecution: juve- witnesses. TexR. from criminal Evid. persons. generally niles and insane See Tex. Pe- ch. 8. The issue of the Code Among things, legislature expanded other nal conduct, witness rule does not arise in the context of delinquent expanded the definitions of persons, specifi- felony insane as the rules of evidence the list of offenses that authorize criminal sealed, they came Appeals from which longer permanently Courts are nо records with this proceedings consistent prior for further adjudications now count as and some purposes. opinion. for enhancement felony convictions forty years up now face

Juveniles change prior from the law imprisonment, a J., MANSFIELD, dissenting filed a Youth only in the Texas allowing confinement opinion. facility age eigh- until Corrections teen.29 MANSFIELD, dissenting. Judge, such, distinguish As we find no reason peti- appellants’ question presented The juvenile testimony in testimony from adult contin- discretionary review is the tions for juvenile exception to the regard. this juvenile exception to the viability of the ued contrary to the accomplice witness rule is Tex.Code accomplice witness rule. See purpose of the rule. I 38.14. While believe Crim. Proc. art. limited, I do not exception should be Conclusion Therefore, agree that it should be abolished. juvenile ex- The Court-created unilateral opinion of the respectfully I dissent to the is abol- ception which, effectively, juve- abolishes Court juvenile participants ished. The rule. accomplicewitness nile pun- sanctioned potentially to state of theft of Appellant Blake was convicted falls the milieu of the accom- ishment within $20,000.1 At Blake’s at over property valued emphasize that the witness rule. We togeth- Blake he and trial a testified juve- particular determination of whether a automobile, they keys stole er purposes for nile is car lot. The from the dealer’s later stole in the accomplice witness rule shall be made old, was juvenile, years who was twelve of wheth- same manner as the determination part scheme as of a named the indictment particular adult is an for er a The trial to steal vehicles. Blake formed discussion, supra purposes of thе rule. See appel- jury over refused to instruct the court pro- against at II. whom criminal Juveniles an ac- objection, that lant’s juvenile adjudications ceedings or have been his complice witness and therefore instituted for the same offense as the defen- Three other wit- had to corroborated. dant or a lesser included offense are accom- jury charge as were identified nesses proceedings If plices as a matter of law. proper instruction as accomplices, and the instituted, juvenile is an ac- have been given. corroboration was complice a matter of fact if the finds link- the record contains sufficient evidence Appeals affirmed The Sixth Court of ing juvenile to criminal offense as court, juve noting the judgment the trial much blameworthy-participant. Each case responsibil age of criminal nile fell under the be considered on its own facts. as an adult. ity not be certified and could (Tex.App.- Appeals Blake v. judgments of the Courts 1997). Texarkana, Tex. Penal Code are remanded to are reversed. The causes correct the Lane court age 29. We note that proceedings over the of four- for teen, possibility the Texas De- stating confinement in of confinement authorized that it is not the grades partment for various of Criminal Justice liberty weighs in deprivation itself conduct, catego- felony felony habitual participants simi- finding juvenile to be favor of felony adjudications as "final con- rized certain counterparts. larly with their adult situated that can be used as enhancements victions” repeat testify falsely or to pressure Rather it is the offenders, forbidding provisions removed accompanies possibility that blame that shift photograph and of centralized the maintenance footing with adult ac- puts juveniles similar records, repealed the seal- fingerprint laws about complices. records, and man- ing and destruction of of Criminal dated the use of Texas Rules prison provisions Chap- Appellant sentenced to life evidentiary Blake was and the Evidence being Procedure instead present ter 38 of the Code of Criminal enhanced to his conviction due proceed- counterparts judicial of their civil ings prior convictions. two involving juveniles. 462 54.02(a)(2). 8.07(a); 54.04(d)(3),

§ § Tex. Fam.Code could be sentenced appeals court of holding cited our in Villarre up forty years, potential to with a transfer State, (Tex. 845, al v. 847-49 from the Texas Youth Commission to the Crim.App.1986), that a minor who cannot be penitentiary, if engaged found to have prosecuted for an offense is not an accom conduct, delinquent aggravated to wit: rob- witness, analysis, and without further bery. rejected appellant’s juve contention that the light changes the law since Villar- accomplice nile which, circumstances, subject real in certain longer makes sense. juveniles adjudicated delinquent punish- as to Appellant Lane was convicted of the of- by ment confinement the Institutional Di- aggravated robbery fense of and was sen- Department vision of the Texas of Criminal thirty years prison. tenced to The evi- Justice, appropriate I believe it to revisit our testimony dence at trial from included one of holding Villarreal not sub- participants in the offense as well as from ject punishment as adults under the Penal thirteen-year-old juvenile stayed who accomplice Code are not covered appellant partici- truck with while two other ness rule. pants actually committed the offense.2 Ac- trial, cording at appеllant accomplice An witness is an individual who recruited the other actors commit before, participated has with the accused offense, scene, picked drove them to during or after the of a crime. commission up completed. them after the offense was State, McFarland v. 928 514 S.W.2d Appellant Lane in- moved the court State, (Tex.Crim.App.1996); Russell v. 598 jury thirteen-year-old ju- struct the S.W.2d 238 Our case considered, venile’s could not many years law for that a has been witness uncorroborated, being they if found her to be who has been for the same offense indicted aas matter of fact. The trial as the is an accused witness appellant’s court specially requested denied law, matter and the must be so charge. See, State, e.g., instructed. v. Solis Appeals The Second Court of trial held the (Tex.Crim.App.1990); S.W.2d 95 Barrara v. juvenile, being court did not erf as the under State, Statе, (1875); 42 Tex. 260 Garza fifteen, age prosecuted could not have been Fur- Tex.Grim. State, for the instant offense. Lane v. thermore, a witness who indicted 1997). Worth, (Tex.App.-Fort S.W.2d 208 accused, promised same offense as but is Therefore, she could not as accused, immunity if against he testifies Villarreal, supra,; a matter of fact or law. is an witness as a matter of law. 8.07(a). § Tex. Penal Code The court of (Tex.Crim.App. Stiles S.W. 805 appeals rejected appellant’s claim that 1921). Recently, “In to be an we held: order mere fact that the could have been law, aas matter of the witness engaging delinquent tried for un- conduct susceptible prosecution for the must be Family deprived der the Code and of her charged. offense with which the accused is liberty age eighteen until she attained should A witness is not an mere subject her to the witness rule. ly because he have known of the offense Villarrеal, 848-849, Citing supra, at and did not disclose it or even concealed it.” appeals only court of found that individuals McFarland, supra, Finally, at 514. the First punishment under the Texas Penal Appeals pres Court of has held that mere are Code covered ence at the scene of the crime does make rule. accomplice. a witness an Tran v. appeals (Tex.App.-Houston [1st court of noted 53.045(a) refused). 1994,pet. §§ Family revisions to Dist.] Texas Code part plea jail prior appel- agreement, received a sentence of 2. One of the actors died in of a testify lant’s trial and thus did not other at trial. The years: twenty actor, testify appellant’s at trial who did the Penal law, punishment under is otherwise face prior ease a witness Based on our Code, if he the rationale behind accomplice witness as a matter of law an example, an inapplicable. For rule is or she: witness “accomplice” to an accused on eight year old as the 1. is indicted for the same offense delivery of cocaine cannot be certi- trial for accused; or the same offense. Nei- an adult for fied as prosecution for the susceptible 2. is Texas face confinement ther does he same offense as the accused. facilities, possible with a Youth Commission may A be an as a matter witness most, prison. At he could to adult transfer affirma- of law if he committed one or more Texas Youth Commission be confined promote commission of the of- tive acts adju- eighteen, should he be facility age until charged, fense for which the accused is either lie delinquent. The incentive to as a dicated before, during or after actual commission of nearly great as for a blame is not or shift said offense. punishment as facing trial witness not and/or conflicting as to there is evidence Where the Penal an adult under Code.3 accomplice, a witness is an the issue whether that article 38.14 Accordingly, I would hold question as a is to be submitted to the juvenile unless apply to a does not whether or not the fact for it to determine that witness: State, accomplice. witness is an Brown v. subject to certification as an adult 1. Is (Tex.Crim.App.1982); 640 S.W.2d 279 54.02(a) § thus Family Code under (Tex.Crim. State, Carrillo tried as an adult for the same can be App.1979). accused; or offense as Lane, it is not clear from the record adjudicated delinquent subject, 2. Is if as witness, juvenile assuming, whether the ar- or more of the committing one guendo, applies juvenile article 38.14 Family Code offenses described nesses, law, is an as a matter of 53.045(a), Family § under Code fact, matter of or as the in its State contends 54.02(d)(3), § to commitment to a TYC brief, is not an under either stan- facility possible transfer to the with a assuming, arguendo, dard. Also article Institutional Division. witnesses, Blake, juvenile applies 38.14 may well above, record the conclusion light judgments of the juvenile witness would be an accom- appeals in Lane in Blake courts of aas matter of law. vacated and the causes remanded should be appeals courts of to determine: for the purpose The 1. witnesses are Whether accomplice is is evident —the of an subject either to certification as inherently untrustworthy and should be 54.02(a) or, § Family adult under Code State, viewed with caution. Eckert v. adjudicated delinquent if (Tex.Crim.App.1981). The S.W.2d 53.045(a), potential § Family face Code accomplice’s testifying against motives in Institutional Divi- confinement malice, may attempt well include accused 54.02(d)(3). Family § sion under Code blame, curry to shift or to favor from punishment, or State in the form of a lesser “yes,” to 1 above is 2. If the answer perhaps, punishment. Legislature witnesses each prohib- appropriately enacted article 38.14 to cause are witnesses solely on inher- it criminal convictions based fact, law, as a matter of matter of accomplice testimony, it ently suspect unless accomplices. are not is corroborated other evidence. “yes,” If the answer to above However, give the accom- prose- whether the failure to if the witness cannot be is reversible plice witness instruction cuted for the same offense as the accused or course, years Legislature Legislature has had eleven amend fact that the 3. Of is free to witnesses, their but has not so acted well indicate to cover do so article 38.14 Villarreal, holding in effectively supra. with our Villarreal. overrule satisfaction would

error under Almanza v. (Tex.Crixn.App.1984). See

Burns respectfully

I dissent. MAYO, Appellant, E.

Jon Texas,

The STATE of State. 2-96-394-CR,

Nos. 2-96-395-CR. Texas, Appeals

Court of

Fort Worth.

May Hase, Worth, appellant. Fort

Don Curry, Atty., Dist. Charles Tim Criminal Swenson, Curl, Mallín, E. David M. M. Anne Atty., for Asst. Criminal Dist. state. LIVINGSTON, Before RICHARDS and HOLMAN, JJ. THE PETITION

OPINION ON STATE’S REVIEW FOR DISCRETIONARY HOLMAN, ‍‌‌​‌​‌​​​‌‌​‌​​‌​‌‌‌​​​​​​​​​‌‌‌‌​‌‌​‌​​​‌‌‌​​​​‍Justice. judgment January prior opinion and

Our jury-in Tarrant A 1998 is withdrawn.

Case Details

Case Name: Blake v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 24, 1998

Citation: 971 S.W.2d 451

Docket Number: 0736-97, 0609-97

Court Abbreviation: Tex. Crim. App.