concurring and dissenting.
To this Court sustaining the San Antonio Court of Appeals’ holding that Richard Sanchez was not an accomplice witness as *325a matter of law, and that the evidence was sufficient to sustain appellant’s conviction for the capital murder of Joe Banda, I concur. It is now obvious to me that this Court should not have granted appellant’s petition for discretionary review on these issues.
I pause to point out that oftentimes the fact that at least four (4) members of this Court vote to grant a petition for discretionary review should never mean, in my view, that that decision is written in stone. We are human and, to err, is of course human. I confess: Many times I have voted to grant a petition for discretionary only because I felt at the time that sufficient study had not been made by this Court regarding the issue on which the party seeks review, but that later on more study might be devoted by this Court’s members to the issue on which the petition was granted. However, later, after I have personally gone over the issue in more detail, or after another member of this Court has carefully gone over the issue in more detail, as Presiding Judge Onion, the author of the majority opinion, has most certainly done in this instance, sometimes it then becomes apparent or obvious to me that those of us who voted to grant the petition should have voted to refuse, rather than grant, the petition. In this instance, as to appellant’s contentions that Sanchez was an accomplice witness as a matter of law and that the evidence was insufficient, I have now concluded that this Court should not have granted the appellant’s petition to review the court of appeals’ holdings on these contentions. Thus, I now vote to put the improvidently granted stamp to these contentions, and also would delete from the majority opinion everything that relates to them because, in all due respect to Presiding Judge Onion, the author, I do not find anything he states therein adds anything whatsoever to the jurisprudence of this State, and the facts of this case are not of such significance that they warrant a place in the lawbooks.
However, I do find that this Court acted quite properly when it originally granted appellant’s petition to review the holding by the court of appeals that the trial judge in this cause was not disqualified. See Gamez v. State, 665 S.W.2d 124 (Tex.App.-4th 1983). The majority opinion affirms this holding. I dissent because the case law in point will simply not support the holding that the trial judge in this cause was not disqualified.
Our Constitution provides in part, see Art. V, § 11, that “No judge shall sit in any case ... when he shall have been counsel in the case.” Art. 30.01, V.A.C.C.P., states: “No judge or justice of the peace shall sit in any case where ... he has been of counsel for the State ...” These provisions have long been liberally construed by this Court. See the cases cited in Lee v. State, 555 S.W.2d 121 (Tex.Cr.App.1977). However, for reasons not reflected in the majority opinion, these provisions are now to be construed in the strictest fashion.
Given the facts of this case, I find that the “key” in deciding the issue, whether the trial judge in this cause was disqualified, is whether the record clearly reflects that he participated in the case as “counsel for the State.” If he “participated” in the case, no matter how slight or perfunctory, he is then disqualified; if he did not “participate”, then he was not disqualified.
One common definition for the word “participate” is to take part in something with others. See Webster’s Ninth New Collegiate Dictionary 858 (1985 edition); The American Heritage Dictionary of the English Language 955 (1973 edition).
The appellate record of this cause reflects that all that Judge Barrera, the trial judge in this cause, did was to “probably” personally place his signature stamp on the State’s announcement of ready forms for the prosecutor who was handling arraignments for the State on that particular day. Did this amount to him “participating” in the case? Of course it did, even though his “participation” was ever so slight and ever so perfunctory. See the San Antonio Court of Appeals original decision in this cause, in which it abated the cause to the trial court for a hearing on the issue. Gamez v. State, 644 S.W.2d 879 (Tex.App.-4th 1983). Justice Butts pointed out in the dissenting *326opinion that she filed in that cause, “The announcement of ‘ready’ in the pleading foreclosed a possible defense [sic], regardless whether a stamped or handwritten signature of a State’s attorney was employed. The State relied upon the pleading to forestall any defense [sic] that the State was not ready for trial whether or not an assembly line method of stamping official prosecuting attorneys’ signatures to several pleading produced this result.” (881). Also see Chapter 32, V.A.C.C.P., and this Court’s decision of Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987, pending on rehearing), in which an aggressive and assertive majority of this Court on original submission held that the “Speedy Trial Act” was unconstitutional, on the most ludicrous of reasons, that it violated the separation of powers doctrine of our State Constitution. Nevertheless, at the time of appellant’s trial, the Speedy Trial Act was alive, well, and breathing.
In the dissenting opinion that Justice Butts filed to the decision of the court of appeals to abate the cause to the trial court for a hearing, see 644 S.W.2d 879, she further pointed out the following:
In the present case what the then assistant district attorney, now the trial judge, did was to sign his name in his official capacity as counsel for the State to a pleading. Whether he tried the case or participated at trial doesnot matter. The same is true of any assistant district attorney who signed the State’s motions in the case but did not participate in the trial. Further, the fact that a ‘stamp’ of the State Attorney’s signature may have been used does not matter. This was a pleading upon which all parties in the case relied. The fact that the pleading was an announcement of the State that the State was ‘ready’ for trial in the case signifies that it was relied upon by the State to protect its position. Just as importantly the appellant could not raise the defense [sic] that the State was not ready for trial, which defense [sic] was now made automatically unavailable by the very pleading. (881).
When the case next reached the court of appeals, that Court overruled appellant’s contention that Judge Barrera was disqualified, holding: “We are of the opinion that this merely perfunctory act of Judge Barrera standing alone is not enough to bring the judge within the ambits of either the Constitution’s or Code of Criminal Procedure’s restrictions. Lee v. State, 555 S.W.2d 121, 122 (Tex.Cr.App.1977).” (128). Given what this Court approved in Lee, supra, I find that the court of appeals’ reliance upon that case as authority for its holding that Judge Barrera was not disqualified is sorely misplaced.
This Court’s majority opinion in this cause merely cites, but does not discuss, Lee, supra, which I find, like Justice Butts of the courts of appeals did, as far as being factually in point, is the latest expression by this Court on the subject. This Court in Lee, supra, held that the issue was so serious that it did not even have to be raised on direct appeal. Given the facts and what this Court approved in Lee, supra, I am compelled to agree with Justice Butts’ implicit finding that she made in both of her dissenting opinions that she filed in the court of appeals that although Lee is not a “white horse” case, it is to these eyes most certainly grayish in color, and should be discussed, and not merely cited in the majority opinion, and, of course, distinguished, which I find is impossible, and perhaps that is why it is not discussed in the majority opinion.
In Lee, supra, the record reflected that when the trial judge in that cause was an assistant district attorney, and while acting in his position as Chief of the Trial Division of the District Attorney’s Office, he merely reviewed the file on the case and wrote defense counsel a letter informing him, inter alia, that, as Chief, he could not recommend to counsel anything less than life imprisonment for counsel’s client, and advised defense counsel to get ready for trial. This Court held that these acts clearly constituted “participation” in that case and ruled that the trial judge was disqualified because of those acts of participation.
*327Given what this Court stated and held in Lee, supra, it should be obvious to almost anyone that under Lee, supra, Judge Barrera “participated” in this cause as “counsel for the State”, even though such participation was ever so slight and ever so perfunctory. In Lee, supra, this Court held: “If the [trial judge] participated in any manner ... in the case when he was Assistant County [or District] Attorney, he would be counsel for the State”, Lee, supra, at 125. Thus, given our facts, Judge Barrera was clearly disqualified from presiding over appellant’s case.
Judge Barrera was also disqualified from sitting in this cause under Bradshaw v. Mc Cotter, 796 F.2d 100 (5th Cir.1986) and Bradshaw v. Mc Cotter, 785 F.2d 1327 (5th Cir.1986). On original submission, the Fifth Circuit was confronted with the issue whether, as a matter of federal constitutional law, Judge Vollers of this Court, who never in the technical sense “participated” in that case, but whose prior relationship to the case was only because his name and position of State’s Attorney, which position he occupied before becoming a judge on this Court, had been placed on the brief that was filed by the local district attorney, was disqualified from sitting in that case solely and only for that reason. The Fifth Circuit, on original submission, not only found that Judge Vollers should have disqualified himself in that case, it is also held that there was no need on the part of the defendant to even show harm. On rehearing, the Court, after concluding that because Judge Vollers’ vote in that case was not controlling, denied the defendant relief. However, the Court on rehearing made it expressly clear that it was not backing off on its finding that Judge Vollers should have disqualified himself in that case. Thus, contrary to what footnote 8 of this Court’s majority opinion might insinuate, the Fifth Circuit did not modify its “conclusion in its original opinion that Judge Vol-lers should have disqualified himself in all cases in which his name appeared on the brief as a prosecutor.” (101). Therefore, given the facts of Bradshaw v. Mc Cotter, supra, if Judge Vollers was not qualified to sit in that cause, then I do not understand how this Court can hold that Judge Barrera was qualified to sit in this cause, and what is stated in footnote 8 of the majority opinion is totally unpersuasive to show that Judge Barrera was not disqualified.
For the above and foregoing reasons, I respectfully dissent to the majority opinion’s erroneous holding that Judge Barrera was not disqualified to sit in this cause.