By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Minor not an accomplice witness in criminal
prosecution for delivery of controlled substance to a minor [Rodriguez v. State]
(00-4-21).
On November 2, 2000, the Austin Court of Appeals held that because a minor
to whom a controlled substance had been delivered had an affirmative defense to
a charge of delivery of a controlled subtonic to a minor, that person was not an
accomplice witness in a criminal trial of the adult for delivering the
controlled substance.
¶ 00-4-21. Rodriguez v. State, ___ S.W.3d ___, No. 03-99-00591-CR, 2000 WL
1636883, 2000 Tex.App.Lexis __ (Tex.App.—Austin 11/2/00)[Texas Juvenile Law
(5th Edition 2000)].
Facts: A jury found appellant Johnny Rodriguez guilty of delivering cocaine to a
minor. See Tex. Health & Safety Code Ann. § 481.122 (West Supp.2000). The
jury assessed punishment, enhanced by a previous felony conviction, at
imprisonment for sixty years and a $10,000 fine. We will modify the judgment of
conviction to delete the affirmative finding that Rodriguez used a deadly weapon
in the commission of the offense and affirm the judgment as modified.
Rodriguez's daughter, K.R., testified that on September 9, 1998, when she was
fourteen years old, she went to the house her father shared with his mother,
K.R.'s grandmother. Rodriguez and K.R. went to his bedroom where Rodriguez
produced a "twenty" of cocaine. [FN1] Rodriguez placed the cocaine on
the top of a speaker, chopped it with a razor blade, and divided it into lines.
Then, using a rolled up dollar bill, K.R. inhaled the cocaine as Rodriguez
watched.
FN1. K.R. testified that a "twenty" was $20 worth of cocaine, or about enough to fill a thimble.
Later that day, K.R. gave her mother, Linda Watts, four dollars to purchase gasoline. [FN2] One of the bills was the one K.R. had used to inhale the cocaine. Watts noticed some white powder on the bill. When she tasted it, it made her tongue numb. Suspecting the powder was cocaine, Watts confronted K.R., who revealed what had happened. A urine specimen taken from K.R. the next day tested positive for cocaine.
FN2. Rodriguez and Watts were divorced. Both lived in New Braunfels. K.R. lived with her mother, but often visited her father.
Held: Affirmed as modified.
Opinion Text: Rodriguez contends the evidence is legally insufficient to support
the jury's finding that he delivered cocaine to K.R. The question presented is
whether, after viewing all the evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
324 (1979); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App.1981).
Rodriguez first argues that K.R. was an accomplice witness, and that her
testimony was not adequately corroborated. See Tex.Code Crim. Proc. Ann. art.
38.14 (West 1979) (accomplice witness rule). Rodriguez relies on the opinion in
Blake v. State, 971 S.W.2d 451, 461 (Tex.Crim.App.1998), in which the juvenile
exception to the accomplice witness rule was abolished.
The test for determining whether a witness is an accomplice under article 38.14
is whether the witness could be prosecuted under the same indictment by which
the accused was charged. See Gamez v. State, 737 S.W.2d 315, 322
(Tex.Crim.App.1987); Reyna v. State, 22 S.W.3d 655, 659 (Tex.App.--Austin 2000,
no pet.). It is an affirmative defense to prosecution for delivering a
controlled substance to a minor that the actor was younger than twenty-one years
of age. See Tex. Health & Safety Code Ann. § 481.122(b)(1) (West
Supp.2000). Thus, while there is no longer a blanket exception to the accomplice
witness rule for juveniles, K.R. could not be prosecuted for the offense for
which Rodriguez was indicted and therefore was not an accomplice witness.