By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Juvenile was not accomplice witness in
criminal proceedings although she plead true to the offense in juvenile court
(99-3-41)
On August 19, 1999, the Houston Fourteenth District Court of Appeals held
that a juvenile witness was not an accomplice although she plead true to a
robbery charge which was part of the murder transaction about which she
testified. In addition, the court held that failure to instruct the jury about
the accomplice witness requirement of corroboration was not egregiously harmful
because there was sufficient evidence of corroboration admitted.
99-3-41. Matthews v. State, ___ S.W.2d ___, No. 14-95-00161-CR, 1999 WL 627895,
1999 Tex.App.Lexis ___ (Tex.App.--Houston [14th Dist.] 8/19/99)[Texas Juvenile
Law (4th Edition 1996)].
Facts: Danny Leon Matthews appeals his conviction by a jury for capital murder.
The jury assessed his punishment at life imprisonment. We affirmed the
conviction on original submission. Matthews v. State, 965 S.W.2d 541 (Tex.App.-Houston
[14th Dist.] 1997). Appellant obtained discretionary review and the court of
criminal appeals vacated our decision and remanded the cause to this court for
reconsideration of appellant's contention that the trial court erred in failing
to instruct the jury that a juvenile was an accomplice witness in light of Blake
v. State, 971 S.W.2d 451 (Tex.Crim.App.1998). Matthews v. State, 971 S.W.2d 72
(Tex.Crim.App.1998). In his sole point of error on remand, appellant contends
that the trial court committed reversible error in failing to instruct the jury
that Elizabeth Johnson was an accomplice witness as a matter of law, and that
her testimony would require corroboration.
On January 19, 1993, appellant and his fourteen-year-old girl friend, Elizabeth
Johnson, also known as Elizabeth McAnally (Elizabeth), rented a room at the Sun
Light Motel. The next day, appellant told Elizabeth they were almost out of
money and he was going to rob the motel clerk. Appellant left Elizabeth in the
room and went to the motel office. Standing at a window outside of the office,
appellant asked the clerk (Honk Sam Chow) for a Sprite. Appellant slid sixty
cents under the window to Ms. Chow for the drink. Ms. Chow then opened the door
to hand the drink to appellant, and he pointed a gun at her and forced his way
into the office. Appellant demanded money, and Ms. Chow showed appellant the
cash register. Appellant grabbed the cash, ordered Chow to get on the floor, and
then he shot her in the back of the head. The medical examiner testified Ms.
Chow died from a gunshot wound to the head, and a .38 caliber bullet was
recovered. The .38 caliber pistol used by appellant to kill Ms. Chow was
admitted into evidence. Appellant signed a detailed confession admitting guilt
to the murder. Appellant's sister, Jennifer Matthews, gave the police officers a
statement indicating appellant called her and admitted the murder to her; the
statement was placed into evidence by the State.
Held: Affirmed.
Opinion Text: This case was remanded to this court because the subsequent
decision in Blake v. State, 971 S.W.2d 451 (Tex.Crim.App.1998) overruled
Villareal v. State, 708 S.W.2d 845 (Tex.Crim.App.1986), relied upon in part by
this court on original submission. Our opinion, dated September 4, 1997, held
that Elizabeth was fourteen years of age on the date of this offense, January
20, 1993, and she could not have been an accomplice witness as a matter of fact
or a matter of law under Villareal, 708 S.W.2d at 848. Blake abolished the
juvenile exception to the accomplice witness rule, and the testimony of
juveniles who could potentially be subject to state sanctioned punishment is now
subject to the accomplice witness rule, in the same manner as the testimony of
adults. Blake, 971 S.W.2d at 461. We will address only appellant's sole point of
error on remand in this opinion. See Lester v. State, 889 S.W.2d 592, 593 (Tex.App.-Houston[14th
Dist.] 1994, pet. ref'd).
Article 38.14, Texas Code of Criminal Procedure, requires the testimony of an
accomplice to be corroborated to uphold a conviction. Appellant did not object
to the jury charge at trial, nor did he submit a special request for an
accomplice witness instruction to the trial court. Tex.Code Crim. Proc. Ann.
art. 36.15 (Vernon 1981 & Supp.1999). If the defendant fails to object to
the jury charge at trial, he must show that he suffered egregious harm to secure
a reversal on appeal. Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 1981 &
Supp.1999); Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App.1996) Solis v.
State, 792 S.W.2d 95, 97 (Tex.Crim.App.1996); Almanza v. State, 686 S.W.2d 157,
171 (Tex.Crim.App.1984); Hall v. State, 937 S.W.2d 580, 582 (Tex.App.-Texarkana
1996, pet. ref'd).
Egregious harm consists of errors affecting the very basis of the case, or that
deprive the defendant of a valuable right, vitally affect a defensive theory, or
make the case for conviction or punishment clearly and significantly more
persuasive. Saunders v. State, 817 S.W.2d 688, 692); Almanza, 686 S.W.2d at 172;
Hall, 937 S.W.2d at 583.
In Blake, the court of criminal appeals reviewed the accomplice witness rule as
follows, in pertinent part:
A person who is merely present at the scene of the offense is not an accomplice;
an affirmative act or omission is required. An accomplice participates before,
during, or after the commission of the crime--presence at the scene of the
offense is not required--though one is not an accomplice for knowing about a
crime and failing to disclose it, or even concealing it.
We have also repeatedly stated that a person is an accomplice if he or she could
be prosecuted for the same offense as the defendant, or a lesser included
offense. By this we mean that a person is an accomplice if there is sufficient
evidence connecting them to the criminal offense as a blameworthy participant.
"The test is whether or not there is sufficient evidence in the record to
support a charge against" the witness alleged to be an accomplice.... [W]hether
the person is actually charged and prosecuted for their participation is
irrelevant to the determination of accomplice status- what matters is the
evidence in the record.
Blake, 971 S.W.2d at 454-559 (citations omitted).
Appellant contends that Elizabeth pleaded guilty to robbery and received
punishment as a juvenile offender. Thus, appellant contends that Elizabeth was
an accomplice as a matter of law. As indicated in Blake, "whether the
person is actually charged and prosecuted for their participation is irrelevant
to the determination of accomplice status--what matters is the evidence in the
record." Id. In his written confession, appellant told Elizabeth to go home
after the murder, because she "did not do anything." Elizabeth
testified that appellant told her they needed money, and he was going to rob the
clerk. After the murder, appellant came back to the room and told Elizabeth he
shot the clerk. Appellant left in a cab, and a few minutes later, Elizabeth's
grandmother picked up Elizabeth. Although appellant stole $180.00 in cash from
the clerk, there is nothing in the record to indicate he divided the money with
Elizabeth. There is nothing in the record to affirmatively indicate Elizabeth
actively participated in or encouraged the crime either before, during, or after
the crime. The only evidence of any charges filed against Elizabeth came from
her testimony. On cross-examination, appellant's counsel asked Elizabeth if she
had been charged with the offense and she replied, "no," and denied
any participation in the crime. In response to further cross-examination,
Elizabeth said she had pleaded guilty to a charge of aggravated robbery so she
would be released from detention in juvenile hall. Other than her self-
contradictory testimony, there is nothing in the record to show what if any
charges were ever filed against Elizabeth. From the record, we find there is no
evidence to support any charge against Elizabeth for any crime arising out of
the murder by appellant.
Assuming arguendo, that Elizabeth was an accomplice, her testimony was
corroborated by (1) appellant's detailed confession, (2) appellant's admission
of guilt to his sister, Jennifer Matthews, a non-accomplice witness, (3) the
murder weapon (appellant's .38 caliber pistol), and (4) the medical report and
the medical examiner's testimony showing the victim was killed with a .38
caliber bullet. See Farris v. State, 819 S.W.2d 490, 495 (Tex.Crim.App.1990),
cert. denied, 112 S.Ct. 1278 (1991) (appellant's confession was sufficient to
corroborate an accomplice, because the proof of the confession did not depend
upon the testimony of the accomplice; an oral admission of guilt alone by
appellant to a non-accomplice witness was sufficient evidence to convict him).
We find: (1) Elizabeth Johnson/McAnally was not an accomplice as a matter of law
or as a matter of fact; (2) even if Elizabeth were an accomplice, her testimony
was corroborated by appellant's confession and other non-accomplice evidence;
(3) appellant has not demonstrated any harm as a result of the failure of the
trial court to include the instruction requiring corroboration of accomplice
witness testimony. We hold appellant has not met the burden of proving that he
was egregiously harmed by the failure to instruct. See Bacey v. State, 990
S.W.2d 319, 327-32 (Tex.App.-Texarkana 1999, no pet.h.); Hilton v. State, 975
S.W.2d 788, 792- 93 (Tex.App.-Texarkana 1998, pet. ref'd). We overrule
appellant's sole point of error on remand and affirm the judgment of the trial
court.