DISSENTING OPINION
With the sentiments which exist today, it would be much easier for me to accept the conclusion of the majority in this case and concur in the judgment of guilt handed down to''John Robert Phelps regarding the allegation that he had engaged in incestuous acts with his daughter, Ashley. However, our predecessors on the bench said in much earlier years that “[i]t is of the utmost importance that rules of law once established should not be departed from, and it is the business of the courts, not to make laws, but to declare what the law is, whether it be wise or unwise.” Webster v. Heard, 32 Tex. 685, 690 (Tex. 1870), overruled in part by Webster v. Corbett, 34 Tex. 263 (1870). Other earlier courts in Texas have declared that “[i]n the discharge of our duty, the rules of evidence must be observed in all cases. This' is for the common benefit of all, in order that all may alike be protected by the rules of law.” Jones v. State, 38 Tex. Crim. 87, 105 (1897).
The issue which is controlling here is whether Ashley was an accomplice to the charged offense and, as such, (1) whether her testimony needed to be corroborated and (2) whether an instruction to that effect needed to be provided to the jury. Plainly, if she was an accomplice, her testimony needed to be corroborated.
The majority correctly states that if a joint actor does not willingly participate in a crime, that person is no longer an accomplice. However, the majority then states that Ashley was not a willing participant in the sex act which .constituted the incest. That is where I differ with the majority.
While it is true that the evidence apparently established that the incestuous relationship between Phelps and Ashley had been ongoing for a number of years before the timé of the incident giving rise to the charges, Ashley, was well into her majority (nineteen years of age) when the incident occurred. Not only was Ashley no longer a *452child, she had moved out of her father’s house and was no longer under his financial control for many months before the incident precipitating the criminal charges faced, by Phelps.
The concurrence relies partially on McCrory v. State, 854 S.W.2d 262, 264 (Tex. App.-Eastland 1993, pet. ref'd) which, in turn, cites Duby v. State, 735 S.W.2d 555 (Tex. App.-Texarkana 1987, pet. ref'd), for the proposition that where there is ah incestuous relationship between a father and a daughter, the power of the daughter to refuse sexual advances has been so diminished that the daughter was not an accomplice to the sex act.
However, neither McCrory nor Duby is applicable here because (unlike nineteen-year-old Ashley) the daughters in both of those cases were minors when the acts occurred. Neither of the girls was of an age to consent to the sexual activity. Besides, what is known as the juvenile exception to the accomplice witness rule wás abandoned by the Texas Court of Criminal Appeals in 1998 in Blake v. State, 971 S.W.2d 451, 458-59 (Tex. Crim. App. 1998), and affirmed by applying it retroactively two years later. Taylor v. State, 10 S.W.3d 673, 676 (Tex. Crim. App. 2000). Surely, if the accomplice witness rule now applies to mere children, there is no good reason, for it not to apply to adults.
The majority also relies oh Brown v. State, 657 S.W.2d 117 (Tex. Crim. App [Panel Op.] 1983), to affirm its conclusion that Ashley did not willingly participate in the sex act with her father, the accused here. The Brown case is totally different from the one at bar. In Brown, the daughter had sex with her father because the father threatened to slay the husband of the victim if she refused his sexual advances. In other words, the daughter was a victim because her consent to sex was elicited only through, threats of violence toward a person she loved.
What hold did Ashley testify that her father had over her should she reject his physical advances? Although .there was quite a bit of evidence of the brutality that Phelps visited on his daughters (such as slapping them on the face, whipping them with a belt, and throwing their belongings outside into the cold), there was no evidence of that brutality when Ashley said Phelps was trying to get her to engage in sex :acts with him on the night in question. When attempting to explain why she allowed Phelps to have intercourse with her, Ashley said, “[Phelps] would tell me that, oh, you don’t love me or you don’t care about me and kind of like make me feel bad about it if I would try to push him away.” She went on to add that she was afraid, that she did not report him to the authorities because her father had convinced her that the police were bad people and that he made her afraid of everybody. She testified that as a result of this, “[she] was just scared to tell anybody because [she] was scared of the consequences of what might happen.” Although Ashley may have been trying to prevent her father from making her feel badly for rejecting his advances or having him say that she did 'not' care about him, that hardly sounds like’ sufficient'threat to remove Ashley’s will to refuse to have sex. Certainly, a refusal by Ashley to engage in sex with her father was no more exigent than her decision to move out of the residence occupied by him.
It appears from the record that Ashley was not totally unable to place any limits on Phelps’ sexual conduct toward he'r. She testified,
[H]e would try to have me perform oral sex for him. And he would also try to have me like kiss him and things, like French kissing him and stuff. And I just *453got very uncomfortable with that, so he quit trying to get me to kiss him and things. And I didn’t want to perform oral sex for him.
It is obvious, then, that Ashley was able to resist some of the sexual acts that she testified that Phelps wanted her to perform. If she was able through her reticence to get Phelps to cease trying to get her to perform oral sex or even to French kiss him, why would she suddenly be' unable to resist his advances on the night in question? In another part of her testimony, Ashley was asked if she ever interposed any resistance to her father’s sexual advances. Ashley responded, “I would try and push him away, but most of the time it didn't work, and I just got to where I gave up trying to put up a fight because it wouldn’t have helped.” (Emphasis added). It is important to note that Ashley testified that her refusal did not have any impact on Phelps “most of the time,” but no one pursued the issue of the times that her refusal to participate did cause him to cease.
In particular, Ashley alleged in her statement to. the police that on the night that she alleged that she and Phelps engaged in sex together, she indicated that she had fallen asleep, only to awaken and find Phelps taking her underwear off and stroking her vagina in a sexual manner. According to her statement, she “tried pushing him away, but he continued. He made me turn sideways toward him, then he began to enter my vagina.” The State asked Ashley, “So it was not a struggle for him to turn you sideways then?” Ashley responded, “No.” It is apparent that Ashley did not resist. Ashley further described the events of that night by relating,
He began to touch my private area, and about that—he began penetrating me, and about that time he began, my mother had come out of their bedroom. And my door is here, and the door was open, and their bedroom was kind of eater-corner to where my room was. So she ■had come out of the room, and he had quickly threw the blanket. Pushed, kind of .pushed me back onto the bed and threw the blanket back over me really quick. And she asked him why .are you in Ashley’s room? What are you doing? And he just told her that I just felt really bad for hitting her and stuff and that I was just sitting in here. And.she didn’t really question it.
It is a cogent point that Ashley did not then cry out to her mother that her father was forcing her to have sex with him. Did she withhold any such outcry because (as she later described her motives for silence) she was afraid that she would feel badly about denying sex to him or that he might say that she did not care about him?
Strictly on the question as- to whether she was an accomplice, if the complaining party had been Ashley’s mother, could she not have filed a complaint of incest against both Ashley and Phelps?
The majority attempts to justify its departure from established law by pointing out certain’ language changes in Section 25.02 of the Texas Penal Code (the statute under which Phelps was charged with incest). While it is true that the law under which Bolin was tried and the law under which Phelps has been charged are not the same, there is nothing to show that the Legislature changed the previous law in an effort to eliminate the precedent set' by Bolin,18 Great stock in both the majority *454opinion and in the concurrence is placed upon the fact that the original statute giving rise to the opinion in Bolin makes reference to multiple participants whereas the newer version speaks in the singular. This makes no difference in defining the crime, and the performance of the act prohibited by the statute must necessarily involve more than one person. It did when the original statute was drafted and it still does; no one can violate this law by masturbating. If one looks at the 2005 changes to the statute, it is plain to see that one of the objects of the change was for the purpose of removing the idea that only a male can violate this law and that a woman can commit incest as well. There is nothing' in that statutory amendment to suggest an intention by the Legislature to except a daughter from the imposition of the law or to obviate the requirement that the testimony of an accomplice must be corroborated. The statute regarding accomplice witness testimony is clear, no matter what crime is alleged, and it does not contemplate a singular actor. “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.” Tex. Code Ckim. Proc. Ann. art. 38.14 (West 2005). The majority would have us to modify that long-standing requirement by adding wording to the statute that would limit its application only to cases not involving incest if there is a long-standing history of childhood sexual abuse. Although one might argue that changing the law in that respect might be a worthy goal, changing the law is a task for the Legislature, not for this Court; to do so amounts to judicial activism which I believe is prohibited.
Let us assume, arguendo, that the majority is correct and examine what would be a closely-related fact situation in which this new rule espoused by the majority could easily apply. In this scenario, one assumes that there is a case involving a different nineteen-year-old complainant, Between the time she was ten and the time she was thirteen, her father had sexually molested her but then the child moved away from him. After a period of some six years of separation (at which time the girl would have attained majority), the victim of the sexual molestation and her father are reunited and they resume sexual relations. Is that girl a victim or an accomplice in an incest case against the father? What if the parent and child have been living separately only one year? How about six months? How about if there was only one act of sexual misconduct on the part of the father when the child was twelve years old? What if there were three instances of sexual misconduct spread out over a ten-year period? At what point and under what circumstances does the child lose her ability to resist? How tall is a tree?
Pertaining to the argument that the party having the burden of proof regarding the issue of whether Ashley was an accomplice in the act of incest, Phelps needed to provide no evidence. The State provided ample evidence of the participation of Ashley in the sex act. The sole question would be whether she was a willing participant (i.e., an accomplice) or whether she was compelled (i.e., a victim).
The evidence in this case reveals Phelps to be a despicable person. Just because he is a despicable person is no reason to *455abrogate the long standing rule that the testimony of an accomplice must be corroborated. I am reminded that once a middle-aged student in a government class indicated to me that she believed that people who were accused of child sexual molestation should not have any rights at all. It would not surprise me if that were not a majority opinion within the community. Just because there may have been a seismic shift in the attitude of society regarding the position of child sex offenders (just as this woman’s comment would suggest) does not mean that we should deprive any accused of the rights afforded to others. The majority cites, among other things, the “seismic shift” in public opinion regarding sexual offenders. In doing so, it relies on sources outside of the record in an attempt to legitimize what would be a departure from the law.19 The courts should stand as a bulwark against that kind of attitude.
The majority attempts to show that Ashley was not Phelps’ accomplice because (1) the jury found that there was no accomplice relationship and (2) Phelps denied that any sex act had taken place at all.
The problem in relying on the jury’s ruling is that the jury rules on the facts and not the law. Incest is not a singular act; there must be at least two participants. The jury could certainly rule on whether the sex act took place between Phelps and his daughter, but here it is ultimately a question of law to determine whether Ashley was an accomplice.
As to the position of the majority that Phelps’ denial that sexual activity occurred between him and Ashley constitutes evidence that Ashley was not an accomplice is simply nonsensical. As an example, let us assume that the crime with which Phelps was charged was robbery and not incest. Would he be required to admit that he was a participant in the robbery before he could invoke the accomplice witness rule? No, of course not.
The laws exist to protect us all. In doing so, they protect the despicable and the wonderful without looking to see which kind of person they protect. It is far beyond the province of this Court to unilaterally bestow the title of victim on an accessory because we believe the accused to be a truly bad person.
I believe the evidence shows nineteen-year-old Ashley to have been a willing accessory to the crime of which Phelps has been charged. The very evidence presented by the State shows this to be true and no further evidence needed to be introduced to demonstrate Ashley’s active participation in incest with her father.
The trial court erred when it failed to direct the jury to disregard Ashley’s uncorroborated testimony, an instruction specifically requested by Phelps. Because the degree of harm needed for reversal depends on whether the appellant preserved the error by objecting to the charge, Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g), in some circumstances, we might be forced to examine the impact that the error had on the outcome. Had the jury been properly instructed to not consider the evidence supplied by Ashley, there would have been no evidence of the crime at all. Since the entire case of the State is based on the *456uncorroborated allegations of Ashley, an accomplice, there was insufficient evidence to convict Phelps of the crime with which he was charged.
Phelps’ conviction should be reversed.
. We note that the change in the law to which the majority refers was occasioned by the adoption of the Texas Penal Code, Although the wording of the revised statute is substantially different from the one it amended (primarily because it makes no reference *454to another statute within itself), it neither expands nor restricts the definition of the crime. Are we to assume, then, that no case-law that existed before the adoption of the Penal Code is to be followed, simply because new laws were passed involving the same subject?
. One should remember that law review articles are often advocates for change, not evidence of the law as it exists. Further, the very law review article to which footnote 12 of the majority opinion refers cites a change in Rule 412 of the Rules of Evidence as reflective of the "rape reform movement.” If the change in the law under which Phelps was convicted was likewise prompted by the same movement, it would have been quite easy for the writer of that law review article to cite it as well. There is no such citation.