dissenting.
Appellant presented evidence that he is not a man of violent character, that he neither drinks nor takes drugs, and that he was a diligent employee respectful of his coworkers. These character traits do not fall squarely within the ambit of Penry v. Lynaugh, supra, and they obviously carry little weight as mitigating evidence with the majority today. Nevertheless, it is not plain to me that jurors would find these facets of appellant’s character insignificant in making the normative evaluation whether he deserves to live in spite of his crime. The Supreme Court has not expressly limited its view of “relevant” mitigating evidence to those circumstances necessarily bearing on personal culpability for the particular offense committed or those aspects of the defendant’s background or makeup to which his crime may be, at least in part, attributable. See Skipper v. South Carolina, 476 U.S. 1, at 4-5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1, 7 (1986). To the contrary, there is every indication a majority of the Supreme Court believes “[ejvidence of voluntary service, kindness to others, or of religious devotion” to be relevant inasmuch as it “might demonstrate positive character traits that might mitigate against the death penalty.” Franklin v. Lynaugh, 487 U.S. 164, at 186, 108 S.Ct. 2320, at 2333, 101 L.Ed.2d 155, at 173 (1988) (O’Connor, J., concurring). Appellant’s proffered evidence was of the same ilk. Because jurors in this cause were precluded from effectuating that evidence beyond the scope of special issues under Article 37.071, § (b), V.A.C.C.P., appellant has been sentenced to death in contravention of the Eighth Amendment. His conviction should be reversed and remanded for new trial. Article 44.29(c), Y.A.C.C.P.
I also disagree with the majority’s treatment of appellant’s first point of error. Article 38.14, Y.A.C.C.P., reads substantially as it has read since originally promulgated as Art. 653 of the Old Code, viz:
“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.”
The majority concludes that a defense witness may not be considered an accomplice for purposes of this statute, and thus con-*539eludes the trial court did not err in failing to submit appellant’s requested instruction at the conclusion of the guilt phase of trial. In this I believe the majority errs.
It is true that in relatively recent years the Court has said that, e.g., “Article 38.14, supra, is not construed to require corroboration of a witness called by the accused. Brown v. State, 476 S.W.2d 699 (Tex.Cr.App.1972); Davis [sic] v. State, 162 Tex.Cr.R. 280, 284 S.W.2d 713 (1955).” Jenkins v. State, 484 S.W.2d 900, at 902 (Tex.Cr.App.1972). Reasoning from this proposition, the Court later concluded that any testimony offered by an accused “is not that of an accomplice witness.” Cranfil v. State, 525 S.W.2d 518, 520 (Tex.Cr.App.1975); Aston v. State, 656 S.W.2d 453, 455 (Tex.Cr.App.1983). All of these holdings seem to me to derive from a misunderstanding of earliest holdings construing predecessors to Article 38.14, supra.
In Joseph v. State, 34 Tex.Cr.R. 446, 30 S.W. 1067 (1895), the decomposed body of a newborn was found in a cistern, and Joseph was charged with infanticide. Marie Nicholas, a woman with whom Joseph was “engaged in the business of peddling,” testified that:
“she gave birth to the child; that she did so in a privy on the premises; that, after its birth, it uttered a cry, and she took it up, and it immediately died; and that by herself, without any knowledge on the part of any person, she disposed of it in the cistern.”
Id., 30 S.W. at 1068. The trial court gave an accomplice witness instruction pursuant to then Article 741 of the 1879 Code of Criminal Procedure. After quoting the statute, this Court observed:
“If there was a crime committed in this case, certainly Marie Nicholas was an accomplice. She was not introduced by the state as a witness, and all her testimony was in favor of the defendant; and yet the jury were told that, if the state relied for a conviction in any measure upon her testimony, they were to discredit it to the extent of requiring its corroboration before they would be authorized to convict. While this might be true as an abstract proposition, yet, without a pertinent charge telling the jury in this connection that the same rule did not apply to said witness where her testimony was in favor of the defendant, it was liable to mislead and confuse the jury, and to discredit said witness when they should come to consider her testimony. Under such a charge they were liable to regard the same rule applicable to the state as equally applicable to the defendant, and to require that she be corroborated before they would be authorized to acquit the defendant upon the testimony of said witness alone. We believe that the charge was erroneous as to said witness.”
Id., 30 S.W. at 1068-69. A year later, in Williams v. State, 37 S.W. 325 (Tex.Cr.App.1896), the accused appealed his conviction for incest. “The appellant proposed to prove by his said daughter, in substance, that at no time had he ever had carnal intercourse with her.” He sought a continuance to obtain her presence, and in the process of holding it should have been granted, the Court opined:
“The law does not require the testimony of an accomplice to be corroborated, when given for the accused. The statute forbids conviction upon the testimony of an accomplice, unless corroborated, but does not require such testimony to be corroborated when given for the accused.”
Id. Thus, the Court indicated that when an accomplice witness testifies purely to facts favorable to an accused, an instruction pursuant to the statute, without qualification, would be error inasmuch as it might lead the jury to believe, contrary to the law, that an accomplice witness’s testimony must be corroborated not only before it may support a conviction, but also before it may support an acquittal.1 That is to say, *540a jury must not be misled to believe that testimony from an accomplice that exculpates an accused need also be corroborated under the statute.
Two points must be noted. First, the Court did not hold in these cases that a witness called by the defendant to give exculpatory testimony cannot be considered an accomplice. Quite the contrary, both Joseph and Williams identify the defense witness as an accomplice, “[i]f there was a crime committed” at all. Second, by “given for the accused,” the Court did not mean simply that the testimony was proffered during the defendant’s presentation of evidence, but that the testimony was exculpatory, admitted solely in an effort to persuade the jury to acquit, not to convict, as would be impermissible sans corroboration under the statute. These cases do not address the question whether the statute requires corroboration of an accomplice who is called by the defendant, but gives testimony upon which the jury could rationally rely to convict. Facially, the statute would appear to require corroboration in the premises, for it contains no express or implicit qualification based upon which party sponsors the accomplice witness.
Nevertheless, on opinion on appellant’s motion for rehearing in Daviss v. State, 162 Tex.Cr.R. 280, 284 S.W.2d 713, at 714 (1955), the Court held that inculpatory testimony from an accomplice witness, when the witness is proffered by the accused, need not be corroborated under the statute. Without further elaboration, the Court simply cited Joseph and Williams, both supra, and concluded that no corroboration was required because the testimony at issue had been “given for the accused.” The holding of Daviss was uncritically accepted and expanded in Jenkins, Cranfil, and Aston, all supra, to the point that we now say that no witness called by an accused can be an accomplice at all. It seems to me these cases thwart the very purpose of Article 38.14, supra.
Frequently the State must offer an accomplice immunity or leniency in order to induce him to forego constitutional privileges against self-incrimination and testify. There is reason to mistrust testimony of an accomplice under those circumstances, for he has every incentive to fabricate, or to downplay his own involvement in the offense to the detriment of the accused. He wants to appease the State and “to save his own skin.” But suppose an accused can prove some exculpatory fact through no means other than the testimony of an accomplice who otherwise has an abundance of inculpatory testimony to give. If the State declines to call that witness, must the accused suffer loss of the benefit of Article 38.14, supra, simply because he must rely on that witness for partial exculpation? An accomplice witness willing to relinquish his testimonial privilege without benefit of a deal with the State, willing to establish some small point in favor of the accused because it does not concomitantly incriminate him, may nevertheless harbor strong incentive to inculpate an accused in other aspects to deemphasize his own involvement in the crime. As to those inculpatory aspects of his testimony, the same reasons exists to mistrust his testimony as had the State itself called the accomplice. Moreover, in this cause Terry Johnson had worked out a plea agreement with the State in exchange for testimony at appellant’s trial. That the State then declined to call him in its case-in-chief does not relieve the pressure he was under to testify in such a way as to appease the State. Under such circumstances “the aura of distrust” does not lift simply because appellant himself called the witness to the stand.
1 cannot imagine a rationale for holding that an accomplice witness called by an accused who gives inculpatory testimony is not subject to the statutory corroboration requirement, unless it is a remnant of the “voucher” notion — that a party is bound to the testimony of the witnesses he presents, and any grounds for mistrust must fall *541away. This “voucher” requirement has been largely discredited on the sensible ground that a party must take his witnesses as he finds them. See 3A Wigmore, Evidence, Chadbourn rev. 1970, § 898; McCormick, Evidence, Cleary ed. 1984, § 38. Accordingly, Rule 607 of the Federal Rules of Evidence has abandoned the former common law prohibition against a party impeaching its own witness, at least on its face.2 Except for the gender-neutral terminology in the current federal rule, our Tex.R.Cr.Evid., Rule 607 is identical to its federal counterpart. Having abandoned “voucher” in the context of impeachment, I can see no compelling reason that we should cling to it in the context of construing the corroboration requirement of Article 38.14, supra. I would therefore hold the trial court erred in failing to give the requested instruction.3
Although the majority correctly disposes of appellant’s remaining points of error, a few bear further comment. In his seventh, eighth, and ninth points of error appellant alleges the trial court erred in instructing the jury at the punishment phase of trial that it must find appellant either “solely caused the death” of the two victims, or else “contemplated” that they would be killed. In my view this instruction was not only not erroneous, it was probably necessary if a sentence of death was to pass Eighth Amendment muster in this cause.
In Cuevas v. State, 742 S.W.2d 331, 343 (Tex.Cr.App.1987), the Court held that the first special issue alone is sufficient to meet the demands of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). I do not believe that invariably to be the case, however.
We have held that when a jury convicts a capital accused as a party under the provisions of V.T.C.A. Penal Code, § 7.02(a)(2), the verdict of guilty entails a sufficient finding under Enmund and Tison, both supra. See Webb v. State, 760 S.W.2d 263, at 268-69 (Tex.Cr.App.1988); Tucker v. State, 771 S.W.2d 523, at 530 (Tex.Cr.App.1988). This is so because:
“before the accused may be found criminally responsible for the conduct of another who ‘intentionally commits the murder,’ under the provisions of V.T.C.A. Penal Code, § 7.02(a)(2), it must be shown the accused harbored a specific ‘intent to promote or assist the commission of’ the intentional murder the other *542committed. Meanes v. State, [668 S.W.2d 366,] at 375-76 [ (Tex.Cr.App.1983) ]; Rector v. State, 738 S.W.2d 235, 244 (Tex.Cr.App.1986); See also Martinez v. State, 763 S.W.2d 413, 420 n. 5 (Tex.Cr.App.1988). One could hardly indulge an intent to promote or assist in the commission of an intentional murder without, at a minimum, intending or contemplating that lethal force would be used. In short, that the jury may not have believed [a capital accused] pulled the trigger of the actual murder weapon is of no moment. Because it was required to find an intent to promote or assist commission of an intentional murder before the jury could convict [him] as a party to the offense in the first instance, we cannot say its later punishment verdict was ‘fatally defective’ under Enmund.” 4
Webb v. State, supra. The same cannot be said where the jury may have reached a verdict of guilty relying upon a conspiracy theory of parties under V.T.C.A. Penal Code, § 7.02(b). That provision reads:
“(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.”
Under § 7.02(b), supra, a jury could convict a capital accused upon no more than a finding that the killing “should have been anticipated as a result of the carrying out of the conspiracy.” That a result “should have been anticipated” does not necessarily mean a capital accused did in fact intend or contemplate it, or even that he harbored “the reckless indifference to human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death.” Tison v. Arizona, 481 U.S. at 157, 107 S.Ct. at 1688, 95 L.Ed.2d at 144. A guilty verdict premised upon § 7.02(b), supra, will not meet the dictates of Enmund and Tison.
Furthermore, the first special issue will also prove insufficient to ensure that En-mund and Tison have been met where a capital accused has been convicted under a conspiracy theory of parties. The jury is to focus on “the conduct of the defendant that caused the death of the deceased” under Article 37.071(b)(1), V.A.C.C.P. When a capital defendant has been found guilty as a party under § 7.02(a)(2), supra, we have construed Article 37.071(b)(1), supra, to require that what must be scrutinized for deliberateness is not the conduct of the primary actor which directly caused the death, but the conduct of the defendant by which he solicited, aided, encouraged or directed that killing. Meanes v. State, supra, at 375-76; Martinez v. State, supra, at 420, n. 5. Analogously, unless we are to hold that the law of parties does apply at the punishment phase of a capital case— something we expressly declined to do in Green v. State, 682 S.W.2d 271 (Tex.Cr.App.1984)—then what must be shown to have been deliberate on the part of a capital accused found guilty under § 7.02(b), supra, is his conduct as a conspirator. But again, because that is conduct which may have been committed without actual anticipation that death would result, application of the first special issue in this context may not satisfy Enmund and Tison after all.
Thus, the instruction given in this cause, that if the jury finds appellant himself was not the triggerman it must find at least that he “contemplated” that death would result, may very well have been necessary to render any sentence of death imposed as a consequence of the jury’s answers to special issues valid under the Eighth Amendment. Appellant contends the instruction operated to lessen the State’s burden of proof on the issue of his deliberateness, in violation of due process and due course of law. But the only finding of deliberateness required by Article 37.-071(b)(1), supra, focuses on appellant’s conduct as a conspirator in the underlying felony. Requiring a finding for purposes *543of the Eighth Amendment that appellant at least “contemplated” that death would result as a consequence of carrying out the conspiracy only serves to increase the State’s burden beyond that which the statute alone imposes, not to decrease it.5
For this reason I also agree with the majority’s ultimate disposition of appellant’s seventh, eighth, and ninth points of error. Nevertheless, because in my view the trial court erred in failing to give the requested Penry instruction, I respectfully dissent.
. Prior to this Court’s decision in Daviss v. State, 162 Tex.Cr.R. 280, 284 S.W.2d 713 (1955), see text post, the rule was stated in the second edition of Branch's as follows:
“When an accomplice testifies for the defendant it is error to charge that if the State relies for a conviction in any measure upon his testimony it must be corroborated, if the *540charge omits to also inform the jury that the same rule does not apply to his testimony given in favor of the defendant." (Emphasis added.)
2 Branch’s Annotated Penal Code, §-744 (2d ed. 1956).
. Caselaw requirements of “surprise" and "damage” as prerequisites to impeaching one’s own witness are conspicuously absent from Federal Rule 607. These requirements were designed to protect against a party calling a witness he knows will testify adversely to his cause solely so that he might introduce as "impeachment” a prior inconsistent statement of that witness, hoping the jury will consider the statement for its substantive content, the hearsay rule notwithstanding. The drafters of Federal Rule 607 dispensed with this problem by “proposing a definition of hearsay which excluded prior inconsistent statements, thereby making such evidence admissible for all purposes." 27 Wright & Gold, Federal Practice and Procedure: Evidence § 6091 (1990), at 483. Because by this scheme prior inconsistent statements were to be admitted for any purpose, there would no longer exist an incentive to present a witness solely to "impeach” him with one, and the necessity for showing surprise and damage as a prerequisite to impeachment of one’s own witness would disappear. “Unfortunately, ... Congress would reject Rule 801 as proposed and greatly limit the class of prior inconsistent statements that may be considered ‘not hearsay.’ Congress made no effort to revise Rule 607 in light of the changes made to Rule 801(d)(1)(A).” Id. Commentators and federal courts have struggled with the question of whether, and if so how, to read “surprise” and "damage" requirements back into Rule 607, in view of the fact that prior inconsistent statements are still considered inadmissible hearsay. Id., § 6093, at 496-515. Because Tex. R.Cr.Evid., Rule 801(e)(1)(A) echoes Federal Rule 801(d)(1)(A), presumably this Court will eventually confront a similar problem.
. One of appellant’s other brothers testified during the State’s case-in-chief that appellant had admitted to him facts that were substantially the same as those Terry Johnson later testified to, insofar as they inculpated appellant. Under these circumstances the Court has held under earlier incarnations of Article 36.19, V.A.C.C.P., that failure to give an accomplice instruction “was not calculated to injure the rights of the defendant_” Saucier v. State, 156 Tex.Cr.R. 301, 235 S.W.2d 903, at 909-910 (1951), and cases cited therein. Because I believe that it was reversible error not to give appellant’s requested mitigation instruction, I need not address the question of harm.
. Emphasis in the original.
. Whether the instruction given here is authorized or even permitted under Article 37.071, supra, is quite another question, cf. State v. Wagner, 309 Or. 5, 786 P.2d 93 (1990), but one which appellant does not now raise.