Clark, Michael Dwayne

PD-1424-15
PD-1424-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/5/2015 11:28:39 AM
Accepted 11/5/2015 3:11:30 PM
NO. __________________ ABEL ACOSTA
CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

MICHAEL DWAYNE CLARK

v.

THE STATE OF TEXAS

From the Waco Court of Appeals
Cause No. 10-15-00022-CR

APPELLANT MICHAEL DWAYNE CLARK’S
PETITION FOR DISCRETIONARY REVIEW

E. Alan Bennett
State Bar #02140700
Counsel for Appellant

Sheehy, Lovelace & Mayfield, P.C.
November 5, 2015 510 N. Valley Mills Dr., Ste. 500
Waco, Texas 76710
Telephone: (254) 772-8022
Telecopier: (254) 772-9297
Email: abennett@slmpc.com

ORAL ARGUMENT REQUESTED
 Identity of Judge, Parties and Counsel

Appellant, pursuant to Rule of Appellate Procedure 68.4(a), provides

the following list of the trial court judge, all parties to the trial court’s

judgment, and the names and addresses of all trial and appellate counsel.

THE TRIAL COURT:

Hon. Matt Johnson Trial Court Judge
54th District Court, McLennan County
501 Washington Avenue, Suite 305
Waco, Texas 76701

THE DEFENSE:

Michael Dwayne Clark Appellant

Seth A. Sutton Trial Counsel
Jason M. Milam
Sutton, Milam & Fanning
400 Austin Avenue, Suite 202
Waco, Texas 76701

E. Alan Bennett Appellate Counsel
510 North Valley Mills Drive, Suite 500
Waco, Texas 76710

Appellant Michael Dwayne Clark’s PDR Page 2
THE PROSECUTION:

Brandon D. Luce Trial Counsel
Andrew T. Erwin
Assistant Criminal District Attorneys

Sterling Alan Harmon Appellate Counsel
Assistant Criminal District Attorney

Abelino Reyna
Criminal District Attorney
McLennan County District Attorney’s Office
219 North 6th Street, Suite 200
Waco, Texas 76701

Appellant Michael Dwayne Clark’s PDR Page 3
 Table of Contents

Identity of Judge, Parties and Counsel ................................................................2

Table of Contents ....................................................................................................4

Index of Authorities ................................................................................................6

Statement Regarding Oral Argument ..................................................................7

Statement of the Case .............................................................................................7

Statement of Procedural History ..........................................................................8

Grounds for Review................................................................................................8

Reasons for Granting Review ................................................................................9

Argument ...............................................................................................................10

1. Whether the Waco Court of Appeals correctly concluded that the
person in possession of the heroin was NOT an accomplice as a matter of
law. .......................................................................................................................10
A. A Participant May Be an Accomplice as a Matter of Law or Fact. 10

B. McQuirter Is an Accomplice as a Matter of Law. .............................12

C. The Waco Court Majority Erroneously Concluded That McQuirter
Was an Accomplice in Fact. ..........................................................................13

D. This Error Harmed Appellant. ............................................................14

E. The Court Should Grant Review.........................................................16

Appellant Michael Dwayne Clark’s PDR Page 4
Prayer ......................................................................................................................17

Certificate of Compliance ....................................................................................18

Certificate of Service .............................................................................................18

Appendix ................................................................................................................19

Appellant Michael Dwayne Clark’s PDR Page 5
 Index of Authorities

Federal Cases

United States v. Mance, 26 M.J. 244 (C.M.A. 1988) .............................................12

Texas Cases

Clark v. State, No. 10-15-00022-CR, 2015 WL 5949338 (Tex. App.—Waco Oct.
8, 2015, pet. filed) (mem. op., not designated for publication)................ 13, 14

Cocke v. State, 201 S.W.3d 744 (Tex. Crim. App. 2006) ........................ 10, 11, 13

Herrera v. State, 462 S.W.2d 597 (Tex. Crim. App. 1971) ..................................12

Herron v. State, 86 S.W.3d 621 (Tex. Crim. App. 2002).....................................14

Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) .............................12

Texas Statutes

TEX. CODE CRIM. PROC. art. 38.14 .........................................................................12

TEX. HEALTH & SAFETY CODE § 481.102 ..............................................................13

TEX. PEN. CODE § 8.02 ............................................................................................13

Rules

TEX. R. APP. P. 66.3 .............................................................................................9, 16

Appellant Michael Dwayne Clark’s PDR Page 6
 Statement Regarding Oral Argument
Oral argument will aid the decisional process. By granting oral

argument, counsel may answer questions posed by the judges regarding the

interplay between the requisite culpability for possession of a controlled

substance and the witness Raven McQuirter’s status as an accomplice. In

addition, oral argument would allow counsel to answer questions regarding

the unique reasons the trial court’s error (and the Waco Court’s approval of

that error) was harmful. For these reasons and to address any other issues,

Appellant respectfully requests the opportunity to appear and present oral

argument.

Statement of the Case

A jury convicted Appellant of possessing between one and four grams

of heroin. Appellant pleaded “true” to an enhancement allegation. The jury

assessed his punishment at fifteen years’ imprisonment. The trial court

sentenced Appellant in accordance with the verdict.

Appellant Michael Dwayne Clark’s PDR Page 7
 Statement of Procedural History

The Waco Court of Appeals affirmed Appellant’s conviction in an

opinion authored by Justice Scoggins that was handed down October 8,

2015. Chief Justice Gray authored a concurring opinion. No motion for

rehearing was filed.

Grounds for Review

1. Whether the Waco Court of Appeals correctly concluded that the
person in possession of the heroin was NOT an accomplice as a
matter of law.

Appellant Michael Dwayne Clark’s PDR Page 8
 Reasons for Granting Review

The Court should grant discretionary review in this appeal because: (1)

the Waco Court of Appeals has decided an important question of state law

that has not been, but should be, settled by this Court; (2) the Waco Court

has decided an important question of state law in a way that conflicts with

the applicable decisions of this Court; (3) the Waco Court has misconstrued

article 38.14 of the Code of Criminal Procedure; and (4) the justices of the

Waco Court have disagreed on a material question of law necessary to the

court’s decision. TEX. R. APP. P. 66.3.

Appellant Michael Dwayne Clark’s PDR Page 9
 Argument

1. Whether the Waco Court of Appeals correctly concluded that the
person in possession of the heroin was NOT an accomplice as a
matter of law.

When the police officer arrested Appellant for possession of heroin,

the passenger in his car, Raven McQuirter, was literally holding the bag. In

fact, she had the bag hidden in her pants and admitted that she knew it

contained narcotics. Regardless of this evidence, the trial court instructed the

jury to consider whether McQuirter was an accomplice as a matter of fact.

This was error because the evidence established that she was an accomplice

as a matter of law. The Waco Court of Appeals erred by concluding

otherwise.

A. A Participant May Be an Accomplice as a Matter of Law or Fact.

A person may be an accomplice either as a matter of law or as a matter

of fact. The person’s status is determined from the evidence. Cocke v. State,

201 S.W.3d 744, 747 (Tex. Crim. App. 2006).

“An accomplice is an individual who participates with a defendant

before, during, or after the commission of the crime and acts with the

requisite culpable mental state.” Participation involves an affirmative act

Appellant Michael Dwayne Clark’s PDR Page 10
that promotes the commission of the offense the defendant has been charged

with. A person “is clearly an accomplice if [she] could be prosecuted for the

offense or a lesser-included offense.” The evidence must connect the alleged

accomplice to the offense as a “blameworthy participant.” It is irrelevant

whether the alleged accomplice-witness is actually charged or prosecuted

for the offense. Id. at 748.

Unless the evidence clearly shows that the witness is an
accomplice as a matter of law, e.g., the witness has been, or could
have been, indicted for the same offense, a question about
whether a particular witness is an accomplice is properly left to
the jury with an instruction defining the term “accomplice.”

Id. at 747-48.

If the witness is an accomplice as a matter of law, the trial court must

provide an accomplice-witness instruction to the jury. However, if the record

contains conflicting or unclear evidence on this issue, the trial court must

instruct the jury to resolve the issue as a matter of fact. Id. at 748.

The importance of properly classifying an accomplice witness cannot

be understated because a defendant cannot be convicted on the testimony of

an accomplice, unless that testimony is sufficiently corroborated. TEX. CODE

CRIM. PROC. art. 38.14.

Appellant Michael Dwayne Clark’s PDR Page 11
B. McQuirter Is an Accomplice as a Matter of Law.

The undisputed testimony establishes that Raven McQuirter

knowingly exercised care, custody and control of a package containing

marihuana and heroin capsules. (3 RR 121-23) Therefore, she is an

accomplice as a matter of law.1

McQuirter asked Clark to give the drugs to her. (3 RR 121) She thought

that she was exercising possession of marihuana and cocaine. (3 RR 123) Her

mistake regarding the nature of the Penalty Group 1 substance2 that she

possessed is irrelevant to this inquiry. See TEX. PEN. CODE § 8.02. Stated

differently, the State must prove that a person such as McQuirter knew that

the substance she possessed was contraband. Poindexter v. State, 153 S.W.3d

402, 405 (Tex. Crim. App. 2005). She has the requisite culpability regardless

of whether she believed she possessed cocaine even though it was in fact

heroin. See United States v. Mance, 26 M.J. 244, 254 (C.M.A. 1988) (if defendant

1
McQuirter should be distinguished from a confidential informant who possesses
narcotics as part of an undercover operation. A confidential informant under such
circumstances is not an accomplice. See Herrera v. State, 462 S.W.2d 597, 599 (Tex. Crim.
App. 1971). The record does not support a finding that McQuirter acted as an agent of
the State.

2
Cocaine and heroin are both Penalty Group 1 controlled substances. TEX. HEALTH
& SAFETY CODE § 481.102(2), (3)(D).

Appellant Michael Dwayne Clark’s PDR Page 12
“believes he possesses cocaine when, in fact, he possesses heroin, he could

be convicted of wrongful possession of heroin because he had ‘knowledge’

adequate to establish wrongfulness”).

McQuirter undisputedly asked Clark to give her the narcotics for

which he was prosecuted. She took them and hid them in her pants. For these

reasons, she is “clearly” an accomplice as a matter of law because she could

have been (and still could be) prosecuted for possession of the heroin she hid

in her pants. See Cocke, 201 S.W.3d at 748.

C. The Waco Court Majority Erroneously Concluded That McQuirter
Was an Accomplice in Fact.

In an opinion authored by Justice Scoggins, a majority of the justices

of the Waco Court of Appeals held that McQuirter was NOT an accomplice

as a matter of law because there was evidence that she did not know the bag

contained heroin. See Clark v. State, No. 10-15-00022-CR, 2015 WL 5949338, at

*2 (Tex. App.—Waco Oct. 8, 2015, pet. filed) (mem. op., not designated for

publication). Chief Justice Gray disagreed with the majority’s analysis and

concluded that McQuirter was an accomplice as a matter of law. Id., 2015 WL

5949338, at *4 (Gray, C.J., concurring). For the reasons set forth in Part 1(B)

Appellant Michael Dwayne Clark’s PDR Page 13
above, Appellant contends that Chief Justice Gray is correct on this

particular issue. 3

D. This Error Harmed Appellant.

Appellant did not object to the trial court’s erroneous instruction

directing the jurors to determine whether McQuirter was an accomplice.

Therefore, he has to show egregious harm before the error requires reversal.

Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). And while the

issue of harm is not before this Court, it is important for the Court to consider

that in understanding the importance of granting review in this case.

Appellant plainly suffered egregious harm from this error for a

number of reasons.

First, the jury charge erroneously failed to: (A) instruct the jury that

McQuirter was an accomplice as a matter of law and (B) further require the

jury (rather than giving them the option) to find corroborating evidence

3
Chief Justice Gray ultimately concurred with the majority decision because he
concluded that the trial court’s error was harmless. See Clark v. State, No. 10-15-00022-CR,
2015 WL 5949338, at *4 (Tex. App.—Waco Oct. 8, 2015, pet. filed) (Gray, C.J., concurring).
Appellant disagrees with this aspect of Chief Justice Gray’s opinion and will ask the
Court to remand the case to the lower court for a proper harm analysis.

Appellant Michael Dwayne Clark’s PDR Page 14
before returning a guilty verdict. It cannot be determined whether the jury

decided McQuirter was an accomplice. If not, then the jurors erroneously

decided Appellant’s guilt without evaluating the existence or sufficiency of

the corroborating evidence.

Second, the entirety of Appellant’s defense rested on the accomplice

issue. Appellant further contends that the State wholly failed to present

evidence corroborating McQuirter’s testimony.

Third, a substantial portion of the prosecutor’s opening argument

focused on whether McQuirter was an accomplice. Accordingly, defense

counsel had to devote an inordinate portion of his argument to McQuirter’s

status as an accomplice because of the trial court’s erroneous failure to

instruct the jury that she was an accomplice as a matter of law.

Finally, the jury sent back four notes during their deliberations. Two

of these focused on McQuirter and the drugs. A proper accomplice-witness

instruction may have given the jurors pause as they reflected on this

evidence.

To summarize, the trial court erred by failing to instruct the jury that

McQuirter was an accomplice as a matter of law. The Waco Court of Appeals

Appellant Michael Dwayne Clark’s PDR Page 15
erred by concluding that she was not an accomplice as a matter of law.

Appellant suffered egregious harm because of these errors.

E. The Court Should Grant Review.

The Court should grant review of this issue for several of the reasons

listed in Rule 66.3. See TEX. R. APP. P. 66.3.

The Waco Court has effectively decided an important question of state

law that has not been, but should be, settled by this Court, namely whether

a person may be criminally responsible for the knowing possession of an

unlawful controlled substance when she believes that she is possessing a

different unlawful controlled substance. Id. 66.3(b).

The Waco Court’s decision conflicts with the applicable decisions of

this Court, namely Cocke. Id. 66.3(c).

The Waco Court appears to have misconstrued article 38.14 of the

Code of Criminal Procedure. Id. 66.3(d).

The justices of the Waco Court disagreed on a material question of law

necessary to that court’s decision, namely, McQuirter’s status as an

accomplice at law. Id. 66.3(e).

For these reasons, this Court should grant discretionary review.

Appellant Michael Dwayne Clark’s PDR Page 16
 Prayer

WHEREFORE, PREMISES CONSIDERED, Appellant Michael

Dwayne Clark asks the Court to: (1) grant review on the issues presented in

this petition for discretionary review; and (2) grant such other and further

relief to which he may show himself justly entitled.

Respectfully submitted,

/s/ Alan Bennett
E. Alan Bennett
SBOT #02140700
Counsel for Appellant

Sheehy, Lovelace & Mayfield, P.C.
510 N. Valley Mills Dr., Ste. 500
Waco, Texas 76710
Telephone: (254) 772-8022
Fax: (254) 772-9297
Email: abennett@slmpc.com

Appellant Michael Dwayne Clark’s PDR Page 17
 Certificate of Compliance

The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 2,358

words.

/s/ Alan Bennett
E. Alan Bennett

Certificate of Service

The undersigned hereby certifies that a true and correct copy of this

brief was served electronically on November 5, 2015 to: (1) counsel for the

State, Sterling Harmon, sterling.harmon@co.mclennan.tx.us; and (2) the

State Prosecuting Attorney, lisa.mcminn@SPA.texas.gov.

/s/ Alan Bennett
E. Alan Bennett

Appellant Michael Dwayne Clark’s PDR Page 18
 Appendix

Opinion of Waco Court of Appeals:

Clark v. State, No. 10-15-00022-CR, 2015 WL 5949338 (Tex. App.—Waco
Oct. 8, 2015, pet. filed)

Appellant Michael Dwayne Clark’s PDR Page 19
Clark v. State, Not Reported in S.W.3d (2015)
2015 WL 5949338

was identified as the driver of the vehicle. Officer Bonner had
Clark exit the vehicle, and he placed Clark in handcuffs while
2015 WL 5949338
he waited for assistance and conducted an investigation.
Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR Raven McQuirter was a passenger in the vehicle. Officer
DESIGNATION AND SIGNING OF OPINIONS. Bonner asked if there was anything illegal in the car, and
McQuirter motioned toward the console area. Officer Bonner
Court of Appeals of Texas, observed a clear cup containing a “green leafy substance” in
Waco. the console area of the car. McQuirter removed a bag from her
pants that contained what appeared to be marihuana. Inside
Michael Dwayne Clark, Appellant
the bag of marihuana, was a smaller plastic bag that contained
v. heroin capsules and additional marihuana. Officer Bonner
The State of Texas, Appellee testified that when he told McQuirter the bag contained heroin
capsules, she appeared to have no knowledge that there was
No. 10–15–00022–CR | Opinion
heroin in the bag.
delivered and filed October 8, 2015

From the 54th District Court, McLennan County, Texas, Trial
Court No. 2014–585–C2 Accomplice Instruction and Evidence

Attorneys and Law Firms In the first issue, Clark argues that the trial court erred by
failing to instruct the jury that Raven McQuirter was an
E. Alan Bennett, for Michael Dwayne Clark accomplice as a matter of law. Appellate review of alleged
jury-charge error involves a two-step process. Abdnor v.
Abel Reyna, Sterling A. Harmon, Gabriel Price, for the State
State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). Initially,
of Texas
the court must determine whether error actually exists in the
Before Chief Justice Gray, Justice Davis, and Justice charge. If error is found, the court must then evaluate whether
Scoggins sufficient harm resulted from the error to require reversal. Id.
at 731–32.

MEMORANDUM OPINION The trial court instructed the jury as follows:

AL SCOGGINS, Justice You are instructed that an “accomplice,” as the term is here
used, means anyone connected with the crime charged, as
*1 The jury convicted Michael Dwayne Clark of the offense a party thereto and includes all persons who are connected
of possession of a controlled substance, heroin, and assessed with the crime by unlawful act or omission on their
punishment at fifteen years confinement. We affirm. part transpiring either before or during the time of the
commission of the offense, and whether or not they were
present and participated in the commission of the crime.
A person is criminally responsible as a party to an offense
Background Facts
if the offense is committed by his or her own conduct, by
Officer Jared Bonner, with the Lacy Lakeview Police the conduct of another for which he or she is criminally
Department, testified at trial that while on patrol around 5:45 responsible, or by both. Mere presence alone, however, will
a.m. he observed a vehicle traveling at a high rate of speed. not constitute one a party to an offense.
Officer Barron observed that the vehicle's tail lights were not
A person is criminally responsible for an offense
working, and he initiated a traffic stop. The vehicle pulled
committed by the conduct on (sic) another if, acting with
over, but continued to “creep for a while” before coming to
intent to promote or assist the commission of the offense,
a complete stop. Officer Bonner approached the vehicle, and
he or she solicits, encourages, directs, or aids or attempts
he noticed a “fairly good amount” of what he suspected to
to aid the other person to commit the offense. The term
be marihuana on the driver's clothes. Michael Dewayne Clark

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Clark v. State, Not Reported in S.W.3d (2015)
2015 WL 5949338

“conduct” means any act or omission and its accompanying Id. When the evidence presented by the parties as to the
mental state. witness's complicity is conflicting or inconclusive, then the
accomplice-witness instruction asks the jury to (1) decide
*2 You are further instructed that a conviction cannot be whether the witness is an accomplice as a matter of fact, and
had upon the testimony of an accomplice unless the jury (2) apply the corroboration requirement, but only if it has first
first believes that the accomplice's evidence is true and determined that the witness is an accomplice. Id.
that it shows the defendant is guilty of the offense charged
against him, and even then you cannot convict unless the Clark was indicted for intentionally or knowingly possessing
accomplice's testimony is corroborated by other evidence heroin, but McQuirter was not charged with the offense.
tending to connect the defendant with the offense charged, McQuirter testified that when they were pulled over by the
and the corroboration is not sufficient if it merely shows the police, Clark pulled a bag out of his pocket. McQuirter knew
commission of the offense, but it must also tend to connect the bag contained marihuana, and she told Clark to give
the defendant with its commission. her the bag. McQuirter stated that she has never knowingly
possessed heroin, and that she was “shocked” when Officer
Now, if you believe from the evidence beyond a
Bonner told her the bag also contained heroin. Officer Bonner
reasonable doubt that an offense was committed and you
also testified that McQuirter appeared to have no knowledge
further believe from the evidence that the witness Raven
that the bag contained heroin.
McQuirter was an accomplice, or if you have a reasonable
doubt as to whether she was or not, as that term is defined
An accomplice is a person who participates in the
in the foregoing instructions, then you cannot convict the
offense before, during, or after its commission with the
defendant upon the testimony of Raven McQuirter unless
requisite mental state. Smith v. State, 332 S.W.3d 425, 439
you first believe that the testimony of Raven McQuirter is
(Tex.Crim.App.2011). A person is not an accomplice if the
true and that it shows the defendant is guilty as charged in
person knew about the offense and failed to disclose it or
the indictment; even then you cannot convict the defendant
helped the accused conceal it. Smith v. State, 332 S.W.3d
unless you further believe that there is other evidence
at 439. “When the evidence clearly shows (i.e., there is no
in the case, outside the evidence of Raven McQuirter
doubt) that a witness is an accomplice as a matter of law, the
tending to connect the defendant with the commission of
trial judge must instruct the jury accordingly.” Id. Because the
the offense charged in the indictment, and then from all the
evidence is inconclusive that McQuirter knowingly possessed
evidence you must believe beyond a reasonable doubt that
heroin, we cannot say that the trial court erred instructing the
the defendant is guilty.
jury to determine if McQuirter was an accomplice as a matter
of fact, and to apply the corroboration requirement only if it
Clark argues that Raven McQuirter was an accomplice as a
determined that she was an accomplice. We overrule the first
matter of law and that the trial court erred instructing the
issue.
jury that they were required to determine whether she was
an accomplice as a matter of fact. A proper accomplice-
*3 In the second issue, Clark argues that the evidence
witness instruction informs the jury either that a witness is
is insufficient to corroborate the accomplice's testimony.
an accomplice as a matter of law or that he is an accomplice
It cannot be determined from the record whether or not
as a matter of fact. Zamora v. State, 411 S.W.3d 504, 510
the jury found McQuirter to be an accomplice. However,
(Tex.Crim.App.2013); Cocke v. State, 201 S.W.3d 744, 747
we will address the sufficiency of the evidence to support
(Tex.Crim.App.2006). The evidence in each case will dictate
corroboration.
the type of accomplice-witness instruction that needs to be
given, if any. Zamora v. State, 411 S.W.3d at 510.
Article 38.14 of the Code of Criminal Procedure provides
that, “A conviction cannot be had upon the testimony of an
A witness is an accomplice as a matter of law when the
accomplice unless corroborated by other evidence tending
witness has been charged with the same offense as the
to connect the defendant with the offense committed; and
defendant or a lesser-included offense, or “when the evidence
the corroboration is not sufficient if it merely shows the
clearly shows that the witness could have been so charged.”
commission of the offense.” Tex.Code Crim. Proc. Ann.
Id. For accomplice witnesses as a matter of law, the trial
38.14 (West 2005). When reviewing the sufficiency of
court affirmatively instructs the jury that the witness is an
nonaccomplice evidence under Article 38.14, we decide
accomplice and that his testimony must be corroborated.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Clark v. State, Not Reported in S.W.3d (2015)
2015 WL 5949338

whether the inculpatory evidence tends to connect the accused
to the commission of the offense. Smith v. State, 332 S.W.3d Prior to the expert giving the expert's
at 442. The direct or circumstantial non-accomplice evidence opinion or disclosing the underlying
is sufficient corroboration if it shows that rational jurors could facts or data, a party against whom
have found that it sufficiently tended to connect the accused the opinion is offered upon request
to the offense. Id. So when there are conflicting views of in a criminal case shall, or in a civil
the evidence, we will defer to the factfinder's resolution of case may, be permitted to conduct a
the evidence. Id. It is not appropriate for appellate courts to voir dire examination directed to the
independently construe the non-accomplice evidence. Id. underlying facts or data upon which
the opinion is based. This examination
Clark admitted to Officer Bonner that he was rolling shall be conducted out of the hearing
a marihuana “blunt” while he was driving, and Officer of the jury.
Bonner observed marihuana on Clark's clothes. Clark further
admitted to Officer Bonner that he had purchased the bag *4 TEX.R. EVID. 705(b) 1 . At trial, Clark stated that the
of marihuana that contained the heroin pills. Officer Bonner purpose of the voir dire was to insure that the test met the
stated that McQuirter appeared to have no knowledge that requirements of Rule 702 of the Texas Rules of Evidence.
the bag of marihuana also contained heroin. We find that, Clark did not request to voir dire the witness based upon Rule
assuming the jury found McQuirter to be an accomplice, 705(b) of the Texas Rules of Evidence. Clark has waived
a rational jury could have found that the non-accomplice his complaint for appellate review. TEX.R.APP.P. 33.1(a).
evidence sufficiently connected Clark to the offense. We Moreover, any error in denying the request was harmless.
overrule the second issue. TEX.R.APP.P. 44.2(b). Clark questioned Hatfield on cross-
examination about the calibration and maintenance of the
equipment. Hatfield stated that the machine does not require
Expert Testimony calibration and that she had performed maintenance on the
machine during the time leading up to the examination of the
In the third issue, Clark argues that the trial court abused its evidence. We overrule the third issue.
discretion by refusing to permit him to conduct a voir dire
examination of the State's expert about the underlying facts
and data supporting her opinion. The State called Lindsey
(Chief Justice Gray concurring)
Hatfield, a forensic scientist for the Texas Department of
Public Safety, to testify concerning her testing and analysis
of the heroin capsules in this case. TOM GRAY, Chief Justice, concurring.
I believe the Court has erroneously applied the standard for
When the State was preparing to introduce Hatfield's report sufficiency of the evidence to determine whether a person is
on her findings, Clark's trial attorney stated, “while we an accomplice as a matter of law. The standard to determine
have no objection to Ms. Hatfield being recognized as an whether an accomplice-as-a-matter-of-law instruction should
expert, before she testifies as to this particular test, I would be given is not dependent on whether the evidence establishes
like to take her on a brief short voir dire as to this test as a matter of law that the person is guilty of the offense or
only.” The trial court asked for what purpose, and trial a lesser included offense. “A witness is an accomplice as a
counsel responded, “To inquire into maintenance, calibration, matter of law when the witness has been charged with the
supporting documents she may have to make sure that this same offense as the defendant or a lesser-included offense,
test meets requirements of 702 and should actually come into or ‘when the evidence clearly shows that the witness could
evidence.” The trial court overruled the request. have been so charged.’ ” Court's op. at p. 4. McQuirter was
in possession of what she knew was two different types of
Clark argues on appeal that Rule 705(b) requires the trial court contraband, marijuana and “crack or powder.” She could have
to permit a voir dire examination. Rule 705(b) in effect at the been charged with the same offenses as Clark.
time of trial states that
There may be some evidence from which a fact finder could
have concluded McQuirter was not aware the second category

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Clark v. State, Not Reported in S.W.3d (2015)
2015 WL 5949338

of contraband was heroin, but that does not mean she was
As to the third issue, I must also note my disagreement with
not an accomplice as a matter of law. She could have been
the Court. I believe the objection was sufficiently specific to
charged with possession of both the marijuana and the heroin.
inform the trial court what it was that counsel wanted and the
Furthermore, a fact finder could have rejected her feigned lack
basis for it. We have never required the objecting party to
of knowledge that one of the substances was heroin rather
articulate the specific rule number or statute under which the
than some other contraband and convicted her. McQuirter was
challenged conduct was proper. The issue was, in my opinion,
an accomplice as a matter of law. The trial court's charge was
adequately preserved. Nevertheless, I agree with the Court
erroneous by failing to instruct the jury properly.
that the error was harmless.
Nevertheless, I find the charge error in allowing the jury to
Accordingly, I concur in the Court's judgment which affirms
determine if she was an accomplice rather than instructing
the trial court's judgment.
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
All Citations
(Tex.Crim.App.1985) (op. on reh'g). I, too, would therefore
overrule issue one. Not Reported in S.W.3d, 2015 WL 5949338

Footnotes
1 Tex.R. Evid. 705(b) was amended effective April 1, 2015.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4