IN THE
TENTH COURT OF APPEALS
No. 10-15-00022-CR
MICHAEL DWAYNE CLARK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2014-585-C2
CONCURRING OPINION
I believe the Court has erroneously applied the standard for sufficiency of the
evidence to determine whether a person is an accomplice as a matter of law. The
standard to determine whether an accomplice-as-a-matter-of-law instruction should be
given is not dependent on whether the evidence establishes as a matter of law that the
person is guilty of the offense or a lesser included offense. “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.’” Court’s op. at p. 4. McQuirter was in possession
of what she knew was two different types of contraband, marijuana and “crack or
powder.” She could have been charged with the same offenses as Clark.
There may be some evidence from which a fact finder could have concluded
McQuirter was not aware the second category of contraband was heroin, but that does
not mean she was not an accomplice as a matter of law. She could have been charged
with possession of both the marijuana and the heroin. Furthermore, a fact finder could
have rejected her feigned lack of knowledge that one of the substances was heroin
rather than some other contraband and convicted her. McQuirter was an accomplice as
a matter of law. The trial court’s charge was erroneous by failing to instruct the jury
properly.
Nevertheless, I find the charge error in allowing the jury to determine if she was
an accomplice rather than instructing the jury that she was an accomplice as a matter of
law harmless under the well-recognized test set out in Almanza and its progeny.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). I, too, would
therefore overrule issue one.
As to the third issue, I must also note my disagreement with the Court. I believe
the objection was sufficiently specific to inform the trial court what it was that counsel
wanted and the basis for it. We have never required the objecting party to articulate the
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specific rule number or statute under which the challenged conduct was proper. The
issue was, in my opinion, adequately preserved. Nevertheless, I agree with the Court
that the error was harmless.
Accordingly, I concur in the Court’s judgment which affirms the trial court’s
judgment.
TOM GRAY
Chief Justice
Concurring opinion delivered and filed October 8, 2015
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