dissenting.
A jury convicted appellant of murder and assessed his punishment at 60 years’ imprisonment.
In two of his grounds of error on appeal the appellant urged the trial court erred in failing to instruct the jury that State’s witnesses, Charles Pee, Jr., and Rohnie Johnson, were accomplice witnesses as a matter of law, and alternatively, in failing to submit to the jury as fact issues whether Pee and Johnson were accomplice witnesses. See Article 38.14, V.A.C.C.P. The Court of Appeals concluded that Pee and Johnson were not accomplice witnesses. The conviction was affirmed. Marlo v. State, 681 S.W.2d 82, 83 (Tex.App.—Houston [14th] 1984). We granted appellant’s petition for discretionary review to determine the correctness of the holding of the Court of Appeals as to the question of accomplice witnesses.
The evidence reveals that Charles Pee, Jr., age 20, and Rohnie Johnson, age 36, lived in a trailer in appellant’s yard, which they rented from appellant, age 41. Pee and appellant worked for an oil well service company. On December 25, 1981, Pee, Johnson and appellant drove from Bay City to Galveston in appellant’s pickup truck. En route they stopped at a bar to drink beer and shoot pool. Upon arriving in Galveston, the three went to a bar for another drink and then to a restaurant. Between 8 and 9 p.m. they arrived at the Kon Tiki lounge. There the men encountered three women, La Nora McGehee, her cousin, Carolyn Cranford and the deceased, Jamie “Smokey” Price. According to McGehee, Cranford and Price were homosexuals and had once lived together. Cranford came to Brazoria County and on Christmas Eve Price had come from Corsicana to see her. McGehee revealed that the Kon Tiki was a bar which was frequented by homosexuals.1 The three men and three women drank and socialized for about three hours or so.
Pee testified that late in the evening Johnson became intoxicated. Pee helped him to the pickup because Johnson couldn’t locate the truck. Pee returned to the Kon Tiki, but soon joined Johnson in the truck. About 10 minutes later appellant came to the truck with the deceased Price. He said they were going to take Price to her car in Old Ocean which was on the way to Bay City.2 All four were in the front seat. Pee *502described Price as “pretty drunk.” He recalled she mentioned “her girl” and stated that she had five of the best looking women in the world, that there were “ten bad mother fuckers in the world and nine of them sent her a Christmas card.” To Pee she appeared tough, acted more like a man than a woman. She told the men she had a black belt in karate. Thereafter she passed out. Johnson soon indicated he wanted to “make love” to Price. As they drove along, Pee told Johnson that Price “might just kick his ass,” and appellant responded “that if she gave them any trouble that he had little Joe with him,” referring to his .22 caliber pistol.
Later appellant turned off at Old Ocean and drove to the site of Well 121, where he and Pee had worked for an oil well service company. At the well site appellant and Pee got out of the pickup. Johnson proceeded to unbutton Price’s blouse. Price aroused and jumped out of the truck. Price shouted at appellant and asked where she was. Johnson stated all he wanted was a “piece of ass.” Price responded, “You will have to kill me first.” At this point appellant drew his pistol and shot Price twice in the head saying, “There’s a bad mother fucker for you” and “There’s only three bad mother fuckers in the world and two of them send me Christmas cards.” Pee testified Price was still alive when she hit the ground, that appellant kicked and shot her three more times.
Pee stated what happened was totally unexpected and he was scared, that appellant told him the same thing could happen to him. Appellant then ordered Pee and Johnson to take the jewelry off the body and load it in the bed of the truck. Pee complied because he was afraid he would be shot. The body was taken to a nearby bridge where it was dumped in a creek. They drove to Bay City where appellant made Pee and Johnson wash the blood out of the back of the truck at a car wash. Still fearful of being killed, Pee and Johnson were told to throw the jewelry off a bridge near the car wash. Pee stated appellant told them to lie to the police if asked, to say that the deceased left the bar with him but got “mad” and left before getting into the truck.
Pee stated he lied per appellant’s instructions when first questioned by police, but later revealed what had happened. He denied he took an active part in the murder and later helped conceal evidence solely out of fear for his own life.
As noted by the Court of Appeals, Johnson’s testimony collaborated Pee’s testimony in all important respects.3 Johnson, who was intoxicated, stated that the firing of the shots began to sober him up, that he was afraid of appellant, who made threats to him and Pee, and that he did what appellant told him because he was afraid.
Price’s body was found in the creek on January 2, 1982, by a man and his grandsons on an outing. The autopsy reflected the cause of death was three gunshot wounds to the head. The neck wound would not have been fatal. The blood alcohol level in the body was 0.198 percent, while the alcoholic content of the clot from the brain was 0.250 percent.
At the conclusion of the trial appellant objected to the court’s charge “failure of the court to submit charge of accomplice in that there is (sic) accomplice witnesses in the testimony presented by the State.” The objection did not identify the witnesses. At the same time a special requested charge was filed asking that the court submit as fact issues to the jury whether Pee and Johnson were accomplice witnesses. Neither objection nor requested charge maintained that Pee and Johnson were accomplice witnesses as a matter of law which is not urged on appeal. The objec*503tion was overruled and the requested charge denied.
A conviction cannot be had upon the testimony of an accomplice witness unless that testimony is 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. Article 38.-14, V.A.C.C.P.
It has been said before and after the adoption of the 1974 Penal Code that an accomplice witness is someone who participated with another before, during or after the commission of a crime. Brooks v. State, 686 S.W.2d 952, 957 (Tex.Cr.App.1985); Harris v. State, 645 S.W.2d 447 (Tex.Cr.App.1983); May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981); Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980), and cases there cited; Easter v. State, 536 S.W.2d 223, 226 (Tex.Cr.App.1976); Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.1974). One is not an accomplice witness, however, who cannot be prosecuted for the offense with which the accused is charged. Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1979); Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978); Russell v. State, supra; Brooks v. State, supra. If a State’s witness has no complicity in the offense for which an accused is on trial, his or her testimony is not that of an accomplice witness whatever may have been his complicity with the accused in the commission of other offenses. Easter v. State, 536 S.W.2d 223, 225 (Tex.Cr.App.1976), and cases there cited; Brooks v. State, supra.
In Easter v. State, supra, it was observed that the 1974 Penal Code had made some notable changes with regard to parties to a crime, and that an accessory (to the person) after the fact4 had been eliminated as a party to a crime and replaced with a separate and distinct crime of “hindering apprehension or prosecution.” See V.T.C.A., Penal Code, § 38.05. While an accessory was an accomplice witness under the former code, this is no longer true. Easter v. State, supra; Emmett v. State, 654 S.W.2d 48, 49 (Tex.App.—Dallas 1983).
The mere fact that a witness was present when the crime was committed does not compel the conclusion the witness is an accomplice witness. Brooks v. State, supra; Brown v. State, 640 S.W.2d 275 (Tex.Cr.App.1982); Arney v. State, 580 S.W.2d 836 (Tex.Cr.App.1979); Easter v. State, supra, at p. 225. Further, a witness is not deemed an accomplice witness because he knew of the crime but failed to disclose it or even concealed it. Easter v. State, supra, at p. 225; Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979). See also Villarreal v. State, supra; Russell v. State, supra.
The evidence in a case determines what jury instruction needs to be given on an accomplice witness. When the evidence clearly shows the witness is an accomplice witness as a matter of law, the trial court must so instruct the jury. Harris v. State, supra, at p. 454; Arnay v. State, supra, at p. 836; Allen v. State, 461 S.W.2d 622 (Tex.Cr.App.1970). When there is a question from the evidence whether a witness is an accomplice witness, it is then proper to submit that fact issue to the jury, and this is sufficient even though the evidence appears to preponderate in favor of the conclusion that the witness is an accomplice witness as a matter of law. Harris v. State, supra, at p. 454; Brown v. State, 640 S.W.2d 275 (Tex.Cr.App.1982); May v. State, supra; Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975); Gonzales v. State, 441 S.W.2d 539 (Tex.Cr.App.1969), and cases there cited. If the evidence is clear that the witness is not an accomplice witness, no charge need be given to the jury either that the witness is an accomplice witness as a matter of law or in the form of a fact issue whether the witness is an accomplice witness. Villarreal v. State, supra, at p. 51; Harris v. State, supra, at p. 456.
In the instant case there is no evidence that either Pee or Johnson knew of appel*504lant’s intention to murder Jamie Price. As the Court of Appeals pointed out, “Pee knew appellant had a pistol, but there is no evidence in the record he had knowledge a murder was planned.” Marlo v. State, supra, at p. 83.5 Pee and Johnson were shocked and surprised by the shooting. There was no showing that Pee or Johnson participated in the planning or assisted or encouraged the murder. Their mere presence at the scene does not compel the conclusion they were accomplice witnesses. Villarreal v. State, supra; Arney v. State, supra. After the fact they took the jewelry off the body and helped to dispose of the body and jewelry at appellant’s instructions because of his threats and in fear of their lives. Cf. Easter v. State, supra. Pee did lie at first to the police in accordance with appellant’s instructions, but as we have seen, the failure to disclose a crime or even conceal it does not alone an accomplice witness make. Russell v. State, supra; Carrillo v. State, supra. The testimony of Pee and Johnson was undisputed and unchallenged. Neither were indicted for the murder. I would not conclude that the trial court erred in refusing to submit to the jury fact issues as to whether Pee and Johnson were accomplice witnesses as requested by the appellant. Russell v. State, supra. The evidence did not call for such submission, nor did it show they were accomplice witnesses as a matter of law.
The majority states: “It is clear that a common understanding existed among appellant and these two men that some offense would be committed, and that use of deadly force was contemplated, however, jokingly, to effectuate that end; ...”
I do not read the evidence to show such common understanding among the three who had been heavily drinking.
I would affirm the judgment of the Court of Appeals. I dissent.
TOM G. DAVIS, W.C. DAVIS and WHITE, JJ., join this opinion.. Whether this fact was known to Pee, Johnson or appellant is not shown by the record.
. McGehee related that before the deceased left the Kon Tiki with the appellant, she (the deceased) and Cranford had an argument, and the deceased stated she was going to get her car at the home of McGehee in Old Ocean and return to Corsicana that night.
. There were some minor inconsistencies in their testimony. They did not agree as to the times when Johnson was unconscious from drinking. The order of events after the shooting were recalled differently. Pee stated they went to the car wash, then to a Seven-Eleven store for coffee, and then Johnson threw the jewelry off a bridge. Johnson recalled that Pee threw the jewelry off the bridge into the river as instructed by appellant, that they then got coffee, and then went to the car wash. Both admitted they had been drinking heavily all day.
. Article 77, V.A.P.C., 1925, provided in part:
"An accessory is one who, knowing that an offense has been committed, conceals the offender, or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence_”
. Appellant may not have long planned the murder. He left a telephone number through which he could be reached with La Nora McGehee at the Kon Tiki Bar. It was through this number the police were able to locate appellant.