*1 SELMAN, Appellant, Michael Joe
The STATE of Criminal
Court 1991.
Rehearing Overruled Dallas, appeal only, Hagler, H.
Jоhn M. Vance, Atty., Dist. Constance John Beach, Maher, Chapman and Andrew Kevin Dallas, Hut- and Robert Attys., Asst. Dist. Austin, tash, for the State. Atty., State’s PETITION FOR ON STATE’S OPINION REVIEW DISCRETIONARY McCORMICK, Presiding Judge. Michael Joe appellant, capital conspiring to commit twenty-five him to murder and sentenced appealed. He years’ confinement. first determined Dallas Court naming appellant law” a matter of properly charge was co-defendant’s conviction reversed Court holding on the comment State, 726 appellant’s case. Selman 1987). This for dis petition granted the State’s whether review to determine cretionаry Appeals was holding of the Court ratio differ with its Although we correct. judgment of nale, we shall affirm Appeals. does this Court the issue before evidence, shall sufficiency of raise *2 311 dispense synopsis with a appellant’s Selman, the facts of the case. 726 S.W.2d at alleged only offense and summarize disagree 181. We with this analysis. procedural Appellant matters at issue. and appellant was indicted for the co-defendant, Barnes, a Tommy in were same offense as his the trial separately dicted jointly but tried for con 1 court in determining was correct that he sрiring Danny to murder Doyle “for remu an “accomplice as a matter of law.” neration promise and the of remuneration.” State, See Harris v. 579 V.T.C.A., Code, 15.02(a) Penal Sections (Tex.Cr.App.1989); but sеe DeBlanc v. 19.03(a)(3). During by jury, the trial State, 709 at note 7 appellant pled and testified in his Cr.App.1990) (questioning validity of auto defense; Barnes, own co-defendant how finding “accomplice matic ever, invoked his Fifth Right Amendment law”). But it a firmly princi established testify. not to Subsequently, co-defendant ple in this State that testimony elicited Barnes that the trial court in from a by witness called the accusеd and (in struct jury the charge on his by offered the accused is accomplice- innocence) appel [Barnes’] which must be corrobo testimony required lant’s corroboration be contemplated rated under Article appellant accomplice “an V.A.C.C.P. See also Aston v. of law.” See Article (trial S.W.2d (Tex.Cr.App.1983) court Appellant’s V.A.C.C.P. objection to this erred in instructing a witness requested instruction was overruled and by called accomplice defense was an his motion to sever his case was denied.2 witness; the State did not call the witness Apрellant and co-defendant Barnes were though even granted he had immunity been in separate verdicts returned un State); Brown v. jury charges. 36 (Tex.Cr.App.1978); Cranfil appeal, appellant On complained that the (Tex.Cr.App.1975) and au accomplice instruction in co-defendant (authorities thorities collected therein clear Barnes’ prejudicial was a com ly suрport the rule that when an accused ment on weight of the evidence in his calls a as a witness and offers the [appellant’s] case and should not have been of such witness the given. Relying on Crew v. accomplice that of an which must be S.W.2d 787 (Tex.App. pet. statute). Rather, corroborated under the ref’d), the Appeals held that co-de accomplice-witness testimony must be cor fendant Barnes had right a to have the roborated only and the so instructed instructed testimony was when the State calls the witness and seeks accomplice testimony. rely оn such testimony. witness’s Nevertheless, S.W.2d at 181. by analogiz ing Appellant was not called charge instruction to the State nor in Talk State; ington offered S.W.2d 674 ref’d) appellant behalf, i.e., —Eastland pеt. testified (describing a complainant rape Moreover, victim”), case as was witness for the “the defense. the court held accomplice formally was not instruc witness in prejudicial tion was a co-defendant Barnes’ case because he was weight of the evidence in contradiction to not called the State or the co-defen- V.A.C.C.P. and dant. the Court of jury charge constituted reversible error in in holding erred Appellant sever, entering Selman was indicted for trial motion to but this also was denied. agreement into an to commit murder with Paul presented It is unclear from the record to this Kosmach, while his co-defendant Barnes was pretrial Court whether amade motion entering agreement with into an sever, contesting is not both Kosmach and severance, therefore, grant court’s failure to we will not address that issue. 2. Co-defendant Barnes also court’s in his case and renewed his identify- or innocence heard the court describe
was entitled to “an ing as an as matter him matter of law.” law.”3 Appellant effect identified *3 first the objection accomplice-wit- to Normally, when an error in a when he that ness instruсtion declared objection, preserved timely is telling feel is the ... the Court “[w]e if required the error causes reversal is Michael that the Court has determined that harm the some to accused. See Almanza act J. Selman has committed an unlawful (Tex.Cr.App. 686 S.W.2d or omission in this of- the commission of 1984) (Opinion on State’s Motion Re fense.” more evident This effect becomes hearing). analysis The Almanza harm is when the itself is examined: however, case, appropriate not in this be accomplice, “An as the term is herein error object did not to in used, any person mеans connected with charge, he to the instruc thereto, charged, party the crime as a Still, charge. in tion his co-defendant’s to persons connect- and includes all who are рreserved hold has not error that crime, parties, ed with the as such did or suffered harm because the error part their unlawful act or omission on originate his would under cause number during the transpiring either before or ignore practicality joint trial of time of of the offense. the commission separate jury trying situation —one two co- criminally responsible defendants cannоt isolate the evidence and party to if the offense is an offense “separate into intellectual box instructions conduct, by the by his own committed States, es.” See Bruton United crimi- conduct of for which he is another 1620, 1625, 123, 131, 88 S.Ct. U.S. responsible nally or both.... (1968). Consequently, preserved appellant properly hold that objected to appeal error for when he co-de- “You are further instructed that complain on instruction and continued to persons fendants accused in preju appeal this instruction was that un- same offense are indictments of the to
dicial comment contradiction Article of accomplices Tex.R.App.Pro. V.A.C.C.P. See that you are instructed law. 52(a). also Euziere v. you convict the defendant (Tex.Cr.App.1983). 703-704 Michаel unless testimony Selman provides testimony 38.05 you first that his believe any remark calculated to shall not make the defendant is true shows convey jury, opinion you of the case to convict charged, his and then cannot any proceeding prior you to the stage testimony at of the his unless defendant on return of verdict. For remarks further there is further believe case, of Article judge to constitute violation of the this outside reviewing court must find a benefit Michael Selman.... injury appellant. or an to State
Garcia v. one “You are further instructed that Cr.App.1968); Joshlin corroborate complice may not (Tex.Cr.App.1972); Pilcher v. purposes accomplice for the of another (Tex.Cr.App. charge relating to accom- 1974). this Following guideline, wе shall set plice testimony, Ap affirm the the Court under ... cannot injured when the of Michael peals each other.” law corroborate same that was determine did ine We note opportunity cross-exam- of the avail himself MILLER, concurring. Judge, Hence, setting, if the joint in this guilty of the co-defendant Barnes found the doc- majority correctly reiterates offense, jury under these thе same from a wit- “testimony elicited trine that irrebuttably conclude instructions must by the accused and offered ness called guilty because accomplice-witness testi- the accused is not law.” as con- mony must be corroborated constitutionally is tantamount This Y.A.C.C.P.,” templated under Article State. prohibited directed verdict for the 311. I note we are majority opinion, pagе explained: As Justice Scalia has party neither has upon, not called disapproved [Supreme] “The Court has issue, to consider the continued raised the *4 mandatory the use of conclusive Tex.R. viability of the doctrine vis-a-vis sumptions merely it conflicts abolishing the “voucher” Crim.Evid. 607 overriding presumption of inno- rule. v. Russeau which the endows the cence with law (Tex.Cr.App.1990). It be aсcused, also because it invades situation, given as one where the such in a criminal factfinding function which brings examination State on cross jury. assigns solely case the accomplice testimony, the de- incriminating right constitutional entitled to an fendant would be profound judgment embodies about light of the shift from way in law should be enforced and brought previous rules of evidence justice administered. It is a structural 607, among others. Rule guarantee that reflects a fundamental decision about the exercise of official MALONEY, J., joins. power plenary reluctance to еntrust —a powers liberty over life and of the citi- group judges. A zens to one may assuredly
defendant insist ob- guarantee
servance of this even when overwhelming
the evidence is so as to guilt beyond
establish a reasonable why That is has found
doubt.
constitutionally impermissible
it
for
BODIN, Appellant,
Steven James
judge to direct a verdict for the State.”
263,
California,
Carella v.
491 U.S.
268,
2419, 2421-22,
S.Ct.
The STATE
(1989) (citations omitted) (Scalia, J.,
concurring).
263,
California,
See Carella v.
491 U.S.
Court of Criminal
2419,
(1989) (per
109 S.Ct.
opinion);
442 U.S.
Sandstrom v.
(1976).
complice-witness instruction co-defen-
dant Barnes’
appellant’s case. We affirm and remand
of the Court proceedings
cause to the trial court opinion. with this
inconsistent