Zamora, Jaime Arturo

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1395-12

JAIME ARTURO ZAMORA, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY

A LCALA, J., delivered the opinion for a unanimous Court.

OPINION

Must a trial court sua sponte give an accomplice-witness instruction when the

evidence raises the issue under the theory that the witness was a party as a co-conspirator?

We answer this question affirmatively. Furthermore, we conclude that, when the issue of a

trial court’s failure to give an accomplice-witness instruction is raised on appeal, a court of

appeals should first determine whether a trial court erred by failing to sua sponte give that

instruction before it considers whether a defendant preserved his complaint for appeal, a
 Zamora - 2

matter that is pertinent to a harm analysis. Because it failed to address the question of charge

error in the first instance, we hold that the court of appeals erred by determining that Jaime

Arturo Zamora, appellant, forfeited his jury-charge complaint by failing to request an

accomplice-witness instruction that was based specifically on a co-conspirator theory of party

liability. See Zamora v. State, 375 S.W.3d 382, 388-89 (Tex. App.—Houston [14th Dist.]

2012). We, therefore, reverse the judgment of the court of appeals and remand the case to

that court so that it may analyze appellant’s complaint under the procedural framework of

Almanza v. State, 686 S.W.2d 157, 160-74 (Tex. Crim. App. 1985) (op. on reh’g) (holding

that, in reviewing complaint of charge error, court of appeals must first decide whether jury

instruction is erroneous, and, if so, court then determines whether instruction harmed

defendant by applying either “some harm” standard if complaint was preserved for appeal,

or “egregious harm” standard if complaint was not preserved for appeal).

I. Background
A. The Facts

Appellant and his brother, Danny Zamora, had a business selling cocaine and

marijuana. His brother ran the business in Mexico, and appellant was in charge of

distribution throughout the Houston area. Appellant received the assistance of salesmen in

Houston who helped him distribute the drugs. One such salesman was Salinas. The

relationship between Salinas and appellant grew bitter in 2005, however, when appellant

discovered that Salinas was receiving narcotics directly from Mexico instead of through him.

Around this same period of time, another conflict arose between Salinas and
 Zamora - 3

appellant: Rosales, a lower-level drug dealer, stopped buying contraband from Salinas and

started working with appellant and his brother instead. Over time, Rosales and appellant

united against Salinas. Appellant told Rosales that Salinas owed him money on a prior

narcotics transaction and asked Rosales for help in recovering the money. Rosales looked

for someone who could carry out this task, but his efforts at that time were unavailing.

Another event in the summer of 2005 caused the relationship between appellant and

Salinas to further sour. Appellant suspected that Salinas stole 17 kilos of cocaine in a

burglary of appellant’s storehouse. Upset by this incident, appellant no longer wanted merely

to recover his money from Salinas, but instead decided to kill him.

The bitter relationship between appellant and Salinas became even more acrid,

resulting in mutually violent acts and, ultimately, the deaths of three people over the course

of five escalating events reminiscent of the Hatfields and McCoys. First, appellant’s brother

Danny tried to kill Salinas by shooting him through the neck, but Salinas survived and went

into hiding. Second, Salinas tried unsuccessfully to kill Danny by having grenades thrown

into a restaurant where he was eating. Third, appellant hired someone to kill Salinas at a

Houston restaurant called “Chilos,” but another person, Jose Perez, was mistakenly killed

instead. Fourth, Salinas had Danny assassinated by gunmen in Mexico. Fifth, appellant

finally succeeded in having Salinas killed after appellant and Rosales spotted him at a

Houston bar one night and called in hit men to shoot him.

Although many violent events transpired throughout this conflict, appellant’s capital
 Zamora - 4

murder conviction in this case stems only from the third event, which resulted in the death

of Perez, the complainant in this case. Just before that event, appellant, wanting to kill

Salinas, pressured Rosales to find him. Rosales looked for Salinas in places where he might

be hiding and reported his results to appellant. Rosales knew generally that appellant had

“people ready on standby” to kill Salinas, but he was unaware that appellant had already

hired Armando Chapa to kill Salinas. Chapa procured assistance from Steven Torres, who

had received a tip that Salinas would be dining at a restaurant called “Chilos” while wearing

an “old-style” Houston Astros jersey. Torres recruited two men, Pedro Quintanilla and

Michael Belmarez, who went to the restaurant to kidnap Salinas, but while they were waiting

outside for Salinas to emerge, Torres called them and told them to “take him out” instead.

Torres’s men shot and killed the wrong man, Perez, whose fatal misfortune was that he wore

an Astros jersey that night as he dined with his family.

B. Trial and Appellate Court Proceedings

At his trial for the capital murder of Perez, four of appellant’s former associates

testified for the State: Belmarez, Chapa, Rosales, and Rogelio Gonzales, appellant’s

bookkeeper. They described appellant’s role in causing the mistaken killing of Perez and

their respective roles in appellant’s various criminal activities as detailed above.

At the conclusion of the evidence, the trial court instructed the jury that it could

convict appellant of capital murder under any of three theories. First, appellant could be

convicted for his own conduct if the jury determined that he intentionally caused the death
 Zamora - 5

of Perez by paying or promising to pay another person to kill him. See T EX. P ENAL C ODE §

19.03(a)(3). Second, appellant could be convicted as a direct party if the jury determined that

he, with the intent to promote or assist in the commission of the offense of capital murder,

solicited, encouraged, directed, aided, or attempted to aid Quintanilla and/or Torres and/or

Belmarez in the shooting of Perez for remuneration or promise of remuneration. See id. at

§§ 19.03(a)(3); 7.02(a)(2). Third, appellant could be convicted under a conspiracy theory of

party liability if the jury determined that (1) he entered into an agreement with Quintanilla

and/or Torres and/or Belmarez to kidnap Perez; (2) they carried out their kidnapping

conspiracy pursuant to that agreement; (3) while in the course of committing kidnapping, and

in furtherance of the conspiracy, Quintanilla caused the death of Perez; and (4) Perez’s death

should have been anticipated as a result of the carrying out of the conspiracy. See id. at §§

19.03(a)(2); 7.02(b).1

In contrast to the jury instructions that permitted appellant to be convicted under any

of the three theories described above, the accomplice-witness instructions were limited to the

direct-party theory only. See id. at § 7.02(a). The jury was instructed that Belmarez was an

accomplice as a matter of law under a direct-party theory. Similarly, the instructions told the

jury to consider whether, under the facts, Chapa and Gonzales were accomplices under a

direct-party theory of culpability. None of the instructions on any of the alleged accomplices

1
It is unclear why the jury instructions referred to Perez as the intended victim in this case, as
opposed to Salinas. It was undisputed at trial that Perez was mistakenly killed in place of Salinas,
the actual intended victim. We, however, do not address that matter in this opinion because the issue
is not raised in this petition for discretionary review.
 Zamora - 6

mentioned a party-conspirator theory of culpability. And none of the instructions on

accomplice witnesses referred to Rosales.

Appellant objected. At the charge conference, appellant orally made a general request

for an accomplice-witness instruction for Rosales. He also submitted a proposed written

instruction limited to the theory that Rosales was an accomplice under a direct-party theory.

The trial court denied the requests, noting that, at the time of the shooting at Chilos,

Rosales’s involvement was limited to attempting to get money from Salinas. Appellant’s

attorney disagreed. He argued that, at the time of the shooting at Chilos, appellant wanted

Rosales to collect money, kidnap, or kill Salinas.

On direct appeal, appellant argued that the jury should have been given an instruction

on whether Rosales was an accomplice as a matter of fact under both a direct-party theory

and a party-conspirator theory. As to the direct-party theory, the court of appeals applied

Almanza in reaching its decision that “there was no error in the charge because there is no

evidence of any affirmative act on Rosales’s part to assist in Perez’s murder.” Zamora, 375

S.W.3d at 387–89 (citing Almanza, 686 S.W.2d at 171). As to the party-conspirator theory,

however, the court of appeals did not apply Almanza. Id. Rather, the court of appeals held

that appellant “failed to preserve error on this point” by requesting an accomplice-witness

instruction for Rosales based only on the direct-party theory, and it declined to reach the

merits of appellant’s complaint. Id. at 389 (“Under the charge requested, the jury could not

reasonably have found that Rosales was an accomplice witness, and appellant did not request
 Zamora - 7

a charge under which it could have done so.”).

In his three grounds in this petition for discretionary review, appellant challenges only

the ruling of the court of appeals on the party-conspirator theory, contending that his

arguments adequately alerted the trial court that he was requesting an accomplice-witness

instruction on Rosales under this theory.2 The State responds that appellant did not request

an instruction under a party-conspirator theory, and that, in any event, he would not have

been entitled to one because co-conspirators are not accomplices for purposes of the

accomplice-witness statute. We do not reach appellant’s preservation arguments because,

under Almanza, the matter of whether an appellant preserved his complaint for appeal

becomes pertinent only after a court of appeals has analyzed whether the jury instructions

were erroneous. We limit this opinion to address (1) the State’s argument that an

accomplice-witness instruction is not required under a party-conspirator theory, and (2) the

threshold question of whether Almanza applies to this case.

II. Instruction on Accomplice-Witness Rule Under Party-Conspirator Theory

2
Appellant’s three grounds for review in this Court are:

(1) When Texas Penal Code § 7.02(b) language is in the jury charge, must it be
specifically referred to when requesting an accomplice witness instruction for a co-
conspirator?

(2) The opinion of the Fourteenth Court of Appeals is in conflict with Nelson v. State,
297 S.W.3d 424 (Tex. App. Amarillo 2009) as well as with Paredes v. State, 129
S.W.3d 530 (Tex. Crim. App. 2004).

(3) Where the Texas Penal Code § 7.02(b) language is in the jury charge, is a request
for a standard Art. 38.14 instruction substantially correct under Stone v. State, 703
S.W.2d 652 (Tex. Crim. App. 1986)?
 Zamora - 8

In its brief on discretionary review, the State asserts that a witness who is a party to

an offense as a co-conspirator under Texas Penal Code Section 7.02(b) “does not comport

with the definitions this Court has espoused for the evidence necessary to include an

accomplice witness instruction,” and, therefore, no accomplice-witness instruction is

warranted. The State appears to argue that the definition of an accomplice is limited to one

who affirmatively acts to promote the commission of the charged offense and does not

include one who acts as a co-conspirator party. See T EX. P ENAL C ODE § 7.02(a), (b).3 As we

will show below, we disagree with the State’s position and hold that the definition of an

accomplice is broad enough to encompass one who is liable as a co-conspirator party to an

offense.

Texas law provides that “[a] conviction cannot be had upon the testimony of an

accomplice unless corroborated by other evidence tending to connect the defendant with the

3
Penal Code Section 7.02 provides in relevant part,

(a) A person is criminally responsible for an offense committed by the conduct of
another if:
...
(2) acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense[.]
...
(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony
is committed by one of the conspirators, all conspirators are guilty of the felony
actually committed, though having no intent to commit it, if the offense was
committed in furtherance of the unlawful purpose and was one that should have been
anticipated as a result of the carrying out of the conspiracy.

TEX . PENAL CODE § 7.02.
 Zamora - 9

offense committed[.]” T EX. C ODE C RIM. P ROC. art. 38.14; see Druery v. State, 225 S.W.3d

491, 498 (Tex. Crim. App. 2007) (testimony of an accomplice must be corroborated by

“independent evidence tending to connect the accused with the crime”). The rule has been

a part of Texas law since at least 1925, and reflects “a legislative determination that

accomplice testimony implicating another person should be viewed with a measure of

caution, because accomplices often have incentives to lie, such as to avoid punishment or

shift blame to another person.” Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998).

Because the rule requires corroboration of accomplice-witness testimony before a conviction

can stand, the jury must be instructed accordingly, but the particular instruction that must be

given depends on the circumstances of each case. We examine the various types of

accomplice-witness instructions to explain why all of these types should be similarly treated

under Almanza.

A. Types of Accomplice-Witness Instructions

A proper accomplice-witness instruction informs the jury either that a witness is an

accomplice as a matter of law or that he is an accomplice as a matter of fact. Cocke v. State,

201 S.W.3d 744, 747 (Tex. Crim. App. 2006). The evidence in each case will dictate the

type of accomplice-witness instruction that needs to be given, if any. Id. A witness is an

accomplice as a matter of law when the witness has been charged with the same offense as

the defendant or a lesser-included offense, or “when the evidence clearly shows that the

witness could have been so charged.” Cocke, 201 S.W.3d at 747–48; Druery, 225 S.W.3d
 Zamora - 10

at 499. For accomplice witnesses as a matter of law, the trial court affirmatively instructs the

jury that the witness is an accomplice and that his testimony must be corroborated. See

Druery, 225 S.W.3d at 498-99. In contrast, when the evidence presented by the parties as

to the witness’s complicity is conflicting or inconclusive, then the accomplice-witness

instruction asks the jury to (1) decide whether the witness is an accomplice as a matter of

fact, and (2) apply the corroboration requirement, but only if it has first determined that the

witness is an accomplice. Id.

Regardless of whether it identifies an accomplice as a matter of law or as a matter of

fact, the jury instructions must also explain the definition of an accomplice. The accomplice-

witness statute does not define the term, but this Court has repeatedly described an

accomplice as someone who, under the evidence, could have been charged with the same or

lesser-included offense as that with which the defendant was charged. Medina v. State, 7

S.W.3d 633, 641 (Tex. Crim. App. 1999) (noting that defendant is “entitled to an

accomplice-witness instruction if and only if ‘there is sufficient evidence in the record to

support a charge against the witness alleged to be an accomplice’”) (citing Smith v. State, 721

S.W.2d 844, 851 (Tex. Crim. App. 1986)); Blake, 971 S.W.2d at 454-55 (noting that Court

has “repeatedly stated” that person is an accomplice “if he or she could be prosecuted for the

same offense as the defendant, or a lesser included offense”); Morgan v. State, 346 S.W.2d

116, 118 (Tex. Crim. App. 1961) (describing test for determining whether witness should be

deemed an accomplice as “whether or not there is sufficient evidence in the record to support
 Zamora - 11

a charge against” him).

In applying this broad definition, appellate courts have frequently tailored the

definition of an accomplice to the facts of particular cases, most of which involve accomplice

witnesses who are or may be direct parties to the offense. See T EX. P ENAL C ODE § 7.02(a)(2)

(describing law of parties for direct participant in offense). Implicitly referring to a direct-

party theory for accomplices, this Court has described an accomplice as an individual who

“participates with a defendant before, during, or after the commission of the crime,” “acts

with the requisite culpable mental state,” and performs an “affirmative act that promotes the

commission of the offense with which the defendant is charged.” Cocke, 201 S.W.3d at 748;

see also Blake, 971 S.W.2d at 454 (describing accomplice as “a blameworthy participant”).

In contrast, this Court has had only one occasion to specifically discuss an accomplice

as someone who is or may be a party to the offense as a co-conspirator. See T EX. P ENAL

C ODE § 7.02(b) (describing law of parties for co-conspirators). In Paredes v. State, this

Court stated,

The trial court’s instructions included an instruction on the law of conspiracy
under Penal Code § 7.02(b). Appellant argues that [certain named individuals]
were accomplices under the meaning of Section 7.02(b) and[,] therefore, he
was entitled to the charge on accomplice witnesses. . . . Appellant does not
explain how this section would apply to [the named individuals]. To be
applicable, there would still need to be evidence that [the named individuals]
were conspirators in carrying out one felony when another felony was
committed. There is no evidence that the three conspired or attempted to carry
out the murders.

Paredes v. State, 129 S.W.3d 530, 538–39 (Tex. Crim. App. 2004). In Paredes, this Court
 Zamora - 12
determined that the evidence should be examined under a party-conspirator theory, but it did

not fully explain why that theory applied. We now explain more fully that the conspiracy

theory of party liability applies in the accomplice-witness context because (1) as explained

above, an accomplice is a person who may be charged with the same or lesser-included

offense as that with which the defendant is charged, and (2) a person may be charged with

an offense as a principal, a direct party, or as a co-conspirator. See T EX . P ENAL C ODE §§

7.01 (person is “criminally responsible” for his own conduct or for “conduct of another for

which he is criminally responsible”); 7.02(a)(2) (describing criminal responsibility for direct

party); 7.02(b) (describing criminal responsibility for party as co-conspirator).

Although this Court has had only one opportunity to address the precise question of

whether testimony from a co-conspirator triggers the requirement for an accomplice-witness

instruction, several courts of appeals have adopted the view that it does. See Williams v.

State, 47 S.W.3d 626, 630 (Tex. App.—Waco 2001, pet ref’d) (holding that accomplice-

witness instruction required because witness could have been indicted for charged offense

as co-conspirator); De La Rosa v. State, 919 S.W.2d 791, 794 (Tex. App.—San Antonio

1996, pet. ref’d) (same); Riggs v. State, 744 S.W.2d 140, 142 (Tex. App.—Houston [1st

Dist.] 1986) (same), pet. dism’d, improvidently granted, 745 S.W.2d 1 (Tex. Crim. App.

1988). In De La Rosa v. State, the court of appeals explained that co-conspirator parties to

an offense are accomplices for purposes of administering the accomplice-witness rule:

[I]f the witness and the accused were coconspirators in a conspiracy to commit
a felony other than the crime with which the accused is charged, the accused
 Zamora - 13
committed the charged offense in furtherance of that conspiracy, and the
charged offense was one that should have been anticipated by the witness as
a result of carrying out the conspiracy, the witness is an accomplice.

De La Rosa, 919 S.W.2d at 794 (citations omitted).

We also observe that Professors Dix and Schmolesky have similarly adopted this view

of the interaction between the accomplice-witness rule and the law of parties:

[I]f the witness is associated with the commission of the crime by the accused
in any of the ways described in section 7.02, the witness is criminally
responsible for the conduct . . . and thus is a party and an accomplice witness.
If, for example, the evidence shows that the witness “solicit[ed], encourage[d],
direct[ed], aid[ed], or attempt[ed] to aid” the accused . . . and the witness acted
“with intent to promote or assist the commission of the offense,” the witness
is responsible for the accused’s conduct and is an accomplice witness. The
same is the case if the witness and the accused were coconspirators in a
conspiracy to commit a felony other than the crime with which the accused is
charged, the accused committed the charged offense in furtherance of that
conspiracy, and the charged offense was one that should have been anticipated
by the witness as a result of carrying out the conspiracy.

See 43A G EORGE E. D IX & J OHN M. S CHMOLESKY, T EXAS P RACTICE S ERIES: C RIMINAL

P RACTICE AND P ROCEDURE § 51:75 (3d ed. 2012) (citations omitted, emphasis added).

Having already applied the party-conspirator theory as a basis to decide whether an

accomplice-witness instruction was required in Paredes, we now expressly agree with those

courts of appeals that have held that an accomplice-witness instruction is required when the

evidence raises the question of whether a witness is an accomplice under a party-conspirator

theory. See T EX. C ODE C RIM. P ROC. art. 38.14; T EX. P ENAL C ODE § 7.02(b); Paredes, 129

S.W.3d at 538-39.

B. Application of Almanza to Accomplice-Witness Instructions
 Zamora - 14
This Court has definitively held that the procedural framework of Almanza applies to

accomplice-witness instructions, both as a matter of law and as a matter of fact, based on

evidence that the witness was a direct party to the offense. Casanova v. State, 383 S.W.3d

530, 533 (Tex. Crim. App. 2012) (matter of law); Herron v. State, 86 S.W.3d 621, 631–32

(Tex. Crim. App. 2002) (matter of law); Medina, 7 S.W.3d at 642 (matter of fact). The

narrow question before us, therefore, is whether the rule of Almanza should somehow be

different or inapplicable when it is alleged that a witness is an accomplice as a party to a

conspiracy, as compared to a direct party.4 Our review of the underlying principles of

Almanza compels us to conclude that all complaints about the trial court’s failure to include

an accomplice-witness instruction must be analyzed under its procedural framework.

4
We note that a trial court’s burden to sua sponte instruct the jury on accomplice-witness
testimony arises only when the evidence raises the issue. Oursbourn v. State, 259 S.W.3d 159, 180
(Tex. Crim. App. 2008) (noting that, “[i]f the evidence raises an issue” as to a witness’s accomplice
status, then “the trial court shall instruct the jury” on the accomplice-witness rule); Medina v. State,
7 S.W.3d 633, 642 (Tex. Crim. App. 1999) (holding that there was sufficient evidence to “raise[]
a fact issue” as to one witness’s accomplice status, thereby requiring accomplice-witness instruction
for that witness, but finding evidence insufficient to warrant instruction as to other witnesses).
Furthermore, the trial court is not required to give an accomplice-witness instruction when the
evidence is clear that the witness is neither an accomplice as a matter of law nor as a matter of fact.
Cocke v. State, 201 S.W.3d 744, 748-49 (Tex. Crim. App. 2006) (holding that trial court did not err
by failing to give accomplice-witness instruction because “the evidence did not raise the issue”).
Mere presence during the commission of the crime does not make one an accomplice, nor is one an
accomplice for “‘knowing about a crime and failing to disclose it, or even concealing it.’” Medina,
7 S.W.3d at 641 (quoting Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)); Druery v.
State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). Complicity with the defendant in another
offense does not make the witness an accomplice. Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim.
App. 1986). Because the court of appeals did not conduct an error analysis, we do not reach the
question of whether the party-conspirator theory was raised by the evidence at trial or whether the
omission of the instruction was erroneous.
 Zamora - 15
1. Almanza, Generally

Under Almanza, a trial court must submit a charge setting forth the law “‘applicable

to the case,’” which imposes a duty on trial courts to sua sponte instruct the jury on these

matters. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998); Almanza, 686 S.W.2d

at 160–74. The framework in Almanza “is not a court-made rule; it is based on this Court’s

interpretation of [the Texas Code of Criminal Procedure],” and its statutory predecessors.

Posey, 966 S.W.2d at 60; see T EX. C ODE C RIM. P ROC. art. 36.14 (“[J]udge shall . . . deliver

to the jury . . . a written charge distinctly setting forth the law applicable to the case”).

Almanza applies when “a rule or statute requires an instruction under the particular

circumstances,” and includes errors of commission and omission. Oursbourn v. State, 259

S.W.3d 159, 180 (Tex. Crim. App. 2008) (emphasis in original).

Almanza, however, does not apply to defensive issues, which may be forfeited if not

preserved at trial. See Posey, 966 S.W.2d at 60–61; Mendoza v. State, 88 S.W.3d 236, 239

(Tex. Crim. App. 2002). Defensive issues are those “on which instructions are not mandated

by any statute.” Oursbourn, 259 S.W.3d at 179. They involve strategic decisions and tactics

generally left to the lawyer and the client. Posey, 966 S.W.2d at 63; Delgado v. State, 235

S.W.3d 244, 249 (Tex. Crim. App. 2007).

2. Accomplice-Witness Instruction is Law Applicable to the Case

An examination of the plain language in the accomplice-witness statute reveals that

it is, in all its variations, the law applicable to the case rather than a defensive issue. The
 Zamora - 16
accomplice-witness statute states,

A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the
offense committed; and the corroboration is not sufficient if it merely shows
the commission of the offense.

T EX. C ODE C RIM. P ROC. art. 38.14. The statute’s plain meaning disallows any conviction

based upon uncorroborated testimony of an accomplice. Oursbourn, 259 S.W.3d at 180.

The statute is not worded conditionally upon a defendant’s proper objection or request for

an instruction. See T EX. C ODE C RIM. P ROC. art. 38.14. The statute sets out an “implicit ‘If-

then’ proposition: If the evidence raises an issue of [the witness’s status as an accomplice],

then the trial court shall instruct the jury [regarding the corroboration requirement].”

Oursbourn, 259 S.W.3d at 180 (generally discussing group of statutes, including accomplice-

witness statute, that “require[] an instruction under the particular circumstances” and,

therefore, constitute “law applicable to the case”). In light of the plain language that a

conviction cannot be had on the testimony of an accomplice unless it is corroborated, an

instruction on the accomplice-witness rule is like those instructions that this Court has held

to be the law applicable to the case. Compare Huizar v. State, 12 S.W.3d 479, 484 (Tex.

Crim. App. 2000) (holding that trial court has sua sponte duty to instruct based on statutory

provision requiring proof of extraneous-offense evidence “beyond a reasonable doubt”);

Oursbourn, 299 S.W.3d at 180–81 (holding that trial court has sua sponte duty to instruct

based on statutory requirements governing admissibility of defendant’s out-of-court

statements).
 Zamora - 17
The accomplice-witness rule cannot be reasonably categorized as a defensive issue

that a defense attorney might forego as a matter of strategy.5 Compare Posey, 966 S.W.2d

at 61–62 (mistake-of-fact instruction matter of strategy); Granger v. State, 3 S.W.3d 36, 38

(Tex. Crim. App. 1999) (same); Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App.

2010) (lesser-included-offense instruction is matter of strategy to pursue outright acquittal);

Delgado, 235 S.W.3d at 250 (limiting instruction is matter of strategy to minimize jury’s

recollection of unfavorable evidence). We agree with those courts that have observed that

it is difficult to envision that any competent attorney would reasonably forego an accomplice-

witness jury instruction as a matter of strategy based on his theory of the case. See Freeman

v. State, 352 S.W.3d 77, 82 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Howard v.

State, 972 S.W.2d 121, 126 (Tex. App.—Austin 1998, no pet.). This is especially true in

light of the legislative determination to disallow a conviction on the uncorroborated

testimony of an accomplice based on concern that such witnesses may have incentives to lie

or shift blame, and this concern is equally applicable whether the witness is alleged to be a

direct party or a party to the offense as a co-conspirator. See Blake, 971 S.W.2d at 454

(observing that rule reflects legislative determination to view accomplice testimony with

5
At oral argument, the State asserted that an accomplice-witness-as-a-matter-of-fact
instruction should be treated as a defensive issue rather than “law applicable to the case.” In support,
it cited this Court’s opinion in Cocke, 201 S.W.3d at 747-48. But the State mischaracterizes the
holding of that case. In Cocke, this Court held that the defendant was not entitled to an accomplice-
witness instruction because there was “no evidence” to suggest that the witnesses in question were,
in fact, accomplices. See id. at 749. Because it reached the merits of appellant’s jury-charge
complaint, the Court in Cocke did not address whether an accomplice-witness instruction should be
treated as law applicable to the case or as a defensive issue.
 Zamora - 18
caution because accomplices often have incentives to lie to avoid punishment or shift blame).

Having already determined in other cases that an accomplice-witness instruction must

be analyzed under Almanza when it arises under a direct-party theory as a matter of law or

as a matter of fact, today we hold that Almanza similarly applies when the instruction arises

under a party-conspirator theory. Because it failed to apply Almanza to its party-conspirator

theory analysis, the court of appeals erred.6

III. Conclusion

We reverse the judgment of the court of appeals and remand this cause for

consideration of appellant’s charge-error complaint under Almanza’s procedural framework.

Delivered: October 23, 2013

Publish

6
The court of appeals cited to Marlo v. State for support, but that case is distinguishable.
Marlo v. State, 720 S.W.2d 496, 499-500 n.7 (Tex. Crim. App. 1986). In Marlo, this Court declined
to consider the appellant’s argument that the witnesses in question were accomplices under a party-
conspirator theory because that argument was raised for the first time in a supplemental brief on
petition for discretionary review and had not been presented to the court of appeals. Id. We do not
read Marlo as holding, as the court of appeals below suggested, that the party-conspirator theory
must be preserved in the trial court before that issue may be properly addressed by the court of
appeals. See id. We also disapprove of holdings by other courts of appeals that have suggested that
the issue of a trial court’s failure to give an accomplice-witness instruction must be preserved for
appeal. See Green v. State, 72 S.W.3d 420, 424 (Tex. App.—Texarkana 2002, pet. ref’d) (“[A]s [the
appellant] did not request an accomplice as a matter of fact instruction, he has not preserved any
error of the trial court in failing to give such instruction”); see also Thomas v. State, No. 04-06-
00356-CR, 2007 WL 3171285, at *3 (Tex. App.—San Antonio Oct. 31, 2007, no pet.) (mem. op.);
Sutphen v. State, No. 14-02-00114-CR, 2003 WL 1986991, at *2 (Tex. App.—Houston [14th Dist.]
May 1, 2003) (mem. op., not designated for publication).