matter of fact instruction in Texas

2015Under this standard, omission of a proper accomplice instruction is generally harmless unless the corroborating evidence is so weak as to render the prosecution’s case ‘clearly and significantly less persuasive.’ Herron, 86 S.W.3d at 632 .

2010Herron v. State, 86 S.W.3d 621, 632-33 (Tex. Crim.

2020When there is doubt or the evidence is conflicting as to whether a witness is an accomplice, then the trial court must leave to the jury the question of whether the witness is an accomplice witness as a matter of fact under instruction defining the term, “accomplice.” Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim.

2005See Paredes , 129 S.W.3d at 536 ; Mize v. State , 915 S.W.2d 891, 895-96 (Tex. App.—Houston [1st Dist.] 1995), pet. ref’d , 922 S.W.2d 175 (Tex. Crim.

2013See Green v. State, 72 S.W.3d 420, 424 (Tex.App.-Texarkana 2002, pet. ref’d) ("[A]s [the appellant] did not request an accomplice as a matter of fact instruction, he has not preserved any error of the trial court in failing to give such instruction”); see also Thomas v. State, No. 04-06-00356-CR, 2007 WL 3171285 , at *3 (Tex.App.-San Antonio Oct. 31, 2007, no pet.) (mem.op.); Sutphen v. State, No. 14-02-00114-CR, 2003 WL 1986991 , at *2 (Tex.App.-Houston [14th Dist.] May 1, 2003) (mem. op., not designated for publication).

2013See Green v. State, 72 S.W.3d 420, 424 (Tex. App.—Texarkana 2002, pet. ref’d) (“[A]s [the appellant] did not request an accomplice as a matter of fact instruction, he has not preserved any error of the trial court in failing to give such instruction”); see also Thomas v. State, No. 04-06- 00356-CR, 2007 WL 3171285 , at *3 (Tex. App.—San Antonio Oct. 31, 2007, no pet.) (mem. op.); Sutphen v. State, No. 14-02-00114-CR, 2003 WL 1986991 , at *2 (Tex. App.—Houston [14th Dist.] May 1, 2003) (mem. op., not designated for publication).

2008See Marlo v. State , 720 S.W.2d 496, 500-01 (Tex. Crim. App. 1986) (en banc).

2005See Marlo v. State , 720 S.W.2d 496, 500-01 (Tex. Crim.

2008Gamez v. State , 737 S.W.2d 315, 322 (Tex. Crim. App. 1987).

2005An accomplice witness as a matter of fact instruction is appropriate when some doubt exists that a witness is an accomplice witness as a matter of law, “even though the evidence appears to preponderate in favor of the conclusion that the witness is an accomplice witness as a matter of law.” See Gamez v. State , 737 S.W.2d 315, 322 (Tex. Crim.

2015Yet, even had the trial court erred by failing to include an accomplice as a matter of fact instruction on 290 Smith, 332 S.W.3d at 442. 291 Id. 292 (CR-160-162, 170; RRVII-17,18,20-22,24-25,38-39,44,47-48,51-52,59,64). 293 Smith, 332 S.W.3d at 442; Hernandez, 939 S.W.2d at 176-179 (evidence the defendant was with the complainant two hours before the killing, two people killed the victim, the defendant fled after the murder, the defendant in the past possessed one of the types of weapons, and the defendant drank the type of beer found at the scene sufficient to corroborate accomplice evidence)

2015App. 1990); see, Williams v. State, 974 S.W.2d 324, 328 (Tex. App.—San Antonio 1994, pet. ref’d, cert. denied)(“Since Williams requested and received an accomplice as a matter of fact instruction as to each of these witnesses, Williams must show that the trial court erred in failing to submit an accomplice as a matter 30 It is noteworthy that the defense did not question Julissa about this claimed conversation during her testimony. 42 of law instruction and that such error, if any, resulted in egregious harm to Williams.”).

2013Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim.

2007See Solomon v. State, 49 S.W.3d 356, 362 (Tex.Crim.App.2001) (holding that where instruction on accomplice as a matter of fact is raised by the evidence, jury is free to believe witness was not in fact an accomplice); Arney v. *471 State, 580 S.W.2d 836, 839 (Tex.Crim.App. [Panel Op.] 1979) (where witness was not accomplice as a matter of law and accomplice as a matter of fact instruction was given, court reviews whether jury’s conclusion that witness was not accomplice was reasonable), abrogated in part on other grounds by Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App.1998); Yost v. State,

2007See Solomon v. State, 49 S.W.3d 356, 362 (Tex.Crim.App.2001) (holding that where instruction on accomplice as a matter of fact is raised by the evidence, jury is free to believe witness was not in fact an accomplice); Arney v. *471 State, 580 S.W.2d 836, 839 (Tex.Crim.App. [Panel Op.] 1979) (where witness was not accomplice as a matter of law and accomplice as a matter of fact instruction was given, court reviews whether jury’s conclusion that witness was not accomplice was reasonable), abrogated in part on other grounds by Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App.1998); Yost v. State,

2007See Solomon v. State, 49 S.W.3d 356, 362 (Tex.Crim.App.2001) (holding that where instruction on accomplice as a matter of fact is raised by the evidence, jury is free to believe witness was not in fact an accomplice); Arney v. *471 State, 580 S.W.2d 836, 839 (Tex.Crim.App. [Panel Op.] 1979) (where witness was not accomplice as a matter of law and accomplice as a matter of fact instruction was given, court reviews whether jury’s conclusion that witness was not accomplice was reasonable), abrogated in part on other grounds by Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App.1998); Yost v. State,

2005App. 1987); Van Buskirk v. State , 492 S.W.2d 279, 281 (Tex. Crim.

2005See Paredes , 129 S.W.3d at 536 ; Mize v. State , 915 S.W.2d 891, 895-96 (Tex. App.—Houston [1st Dist.] 1995), pet. ref’d , 922 S.W.2d 175 (Tex. Crim.

2005Blake , 971 S.W.2d at 454 .

2005See id.

1998See Tran, 870 S.W.2d at 658 (when judge gives jury instruction on accomplice as a matter of fact when instruction should have been on accomplices as a matter of law, error is harmful if jury could have used accomplice testimony to convict).

1998See Tran, 870 S.W.2d at 658 (when judge gives jury instruction on accomplice as a matter of fact when instruction should have been on accomplices as a matter of law, error is harmful if jury could have used accomplice testimony to convict).

1998See Posey v. State, 966 S.W.2d 57 (Tex.Crim.App.1998); Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984).