









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-00-00153-CR
______________________________


CHAD WAYNE JESTER, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 12,088





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius

O P I N I O N

	A jury convicted Chad Wayne Jester of murdering Raymond Howell.  The jury assessed
Jester's punishment at fifty years' confinement.   On appeal Jester contends that the trial court erred
by giving an improper instruction regarding accomplice witness testimony, by denying his motion
for an instructed verdict, and by entering, without sufficient evidence, an affirmative finding on the
use of a deadly weapon.  For the reasons stated below, we overrule these contentions and affirm the
judgment.
	Jester first argues that the trial court erred by failing to instruct the jury that witness Wesley
Bradford was an accomplice as a matter of law.  The trial court instructed the jury that whether
Bradford was an accomplice was a question of fact, and if they found him to be an accomplice, they
must find that Bradford's testimony was sufficiently corroborated before it could be considered. 
Jester objected and requested that the trial court instruct the jury that Bradford was an accomplice
as a matter of law.  The court overruled the objection.  Because we find that the evidence does not
clearly show that Bradford was an accomplice, the court did not err in failing to give the requested
instruction.
	Jester also asks that we hold that any person who has received a grant of immunity to an
offense is an accomplice to that offense as a matter of law.  Because the current rule fully safeguards
the defendant's right to confrontation and adequately ensures the reliability of the evidence while
leaving the resolution of disputed facts squarely within the purview of the jury, we decline Jester's
invitation to make such a holding. 
	An accomplice witness is a witness who participated with a defendant before, during, or after
the commission of a crime.  McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996);
Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986).  A person is an accomplice if there
is sufficient evidence connecting him to the criminal offense as a blameworthy participant.  Blake
v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998).  The participation necessary to be considered
an accomplice must involve an affirmative act or omission by the witness to promote the commission
of the offense.  Id. at 454; McFarland v. State, 928 S.W.2d at 514.  One who is or can be indicted
for the same offense with which a defendant is charged, or for a lesser included offense based on
participation in the commission of the greater offense, is considered an accomplice as a matter of
law.  Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991).  The test is whether there is
sufficient evidence in the record to support a criminal charge against the witness based on the
indictment on which the defendant is tried.  Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App.
1987).  Whether the witness is actually charged with a crime for participation in the offense is
irrelevant; what is relevant is what is shown by the evidence.  Blake v. State, 971 S.W.2d at 455.  
A witness may be deemed an accomplice as a matter of law when there exists no doubt as to his
participation, or when the evidence clearly shows that he is an accomplice.   Where a witness is
deemed an accomplice as a matter of law, the trial court is under a duty to so instruct the jury.  Id. 
	A person who is merely present at the scene of an offense, however, is not an accomplice. 
Id.  Knowing about a crime and not disclosing it is not sufficient to make one an accomplice.  Id.;
Kunkle v. State, 771 S.W.2d at 439.  Evidence showing that the witness was present during the
commission of the crime and participated in concealing the crime is not necessarily sufficient to raise
the issue of accomplice status.  Smith v. State, 721 S.W.2d 844, 851 (Tex. Crim. App. 1986).   If
evidence presented by the parties is conflicting, the issue of whether an inculpatory witness is an
accomplice is properly left to the jury as a fact question under instructions defining the term
"accomplice."  Blake v. State, 971 S.W.2d at 455.  This is true even if the evidence shows more
likely than not that the witness is an accomplice as a matter of law.  Gamez v. State, 737 S.W.2d at
322. 
	Bradford was one of thirty witnesses who testified during the State's case-in-chief.  The
evidence showed that Bradford was aware of the crime, that he was present at the scene the night of
the killing, that he had observed Jester disposing of the murder weapon, and that he had not reported
the crime to the police.  Bradford also testified that he believed Jester only intended to vandalize the
victim's car and that he was unaware of Jester's intent to kill Howell.  Bradford further testified that
he had left the scene and was walking away at the time the fatal shot was fired.  On cross-
examination, Jester elicited testimony not only that Bradford was granted transactional immunity
from any crime arising out of the death of Howell, but that the State further agreed to dismiss with
prejudice all criminal charges pending against Bradford (including one drug charge and two burglary
charges), as well as to modify the terms of his then-current probation.  Jester also introduced
evidence that Bradford had at one time told his ex-wife that he, not Jester, had killed Howell.  On
cross-examination, the State elicited testimony that Bradford had later retracted the statement.  The
State also disputed the content of this statement by Bradford and offered an alternate explanation for
it.
	There is conflicting evidence in the record regarding Bradford's participation in Howell's
murder.  Jester has raised sufficient evidence to justify submitting the issue of his status as an
accomplice to the jury as a fact issue.  See Blake v. State, 971 S.W.2d at 455.  The record does not
clearly show, however, that Bradford was an accomplice as a matter of law, and Jester was not
entitled to an instruction to that effect.  This issue was properly submitted as a question of fact for
the jury to decide.  Paragraph 3 of the court's charge defines "accomplice" and explains the
corroboration requirement.  Paragraph 4 applies paragraph 3 to the facts of the case:
	Now, if you believe from the evidence beyond a reasonable doubt that an offense was
committed and you further believe from the evidence that the witness Wesley
Bradford was an accomplice, as that term is defined in the foregoing instructions,
then you cannot convict the defendant upon the testimony of the said Wesley
Bradford unless you first believe that the testimony of the said Wesley Bradford is
true and that it shows the defendant is guilty as charged in the indictment; even then
you cannot convict the defendant unless you further believe that there is other
evidence in the case, outside of the offense charged in the indictment, and then from
all the evidence you must believe beyond a reasonable doubt that the defendant is
guilty.
There was no error in declining to instruct the jury that Bradford was an accomplice as a matter of
law.
	Jester nevertheless contends that the State's grant of immunity to Bradford conclusively
makes him an accomplice.  A witness who is indicted for the same offense as the accused, but is
promised immunity in exchange for testifying against the accused, is an accomplice witness as a
matter of law.  Bradford was not indicted for the murder of Howell.  The fact that Bradford was
granted immunity, standing alone, does not render him an accomplice as a matter of law.  See
Moulton v. State, 508 S.W.2d 833, 836 (Tex. Crim. App. 1974).  The test requires the evidence to
clearly show that Bradford participated in the crime and could be charged under the same indictment
as Jester.  Blake v. State, 971 S.W.2d at 455.
	At oral argument, Jester asked us to adopt a new rule:  any witness who is granted immunity
should be deemed an accomplice as a matter of law.  We decline to do so.   We have found no
authority supporting such a rule, and we discover no sound basis for such a rule.  The general policy
behind the accomplice witness rule is that an accomplice is a discredited witness, and his testimony
is to be carefully scrutinized because he may have an interest in the outcome of the trial in which he
is testifying.  Hilton v. State, 975 S.W.2d 788, 792 (Tex. App.-Texarkana 1998, pet. ref'd).  Many
witnesses are granted immunity for crimes completely unrelated to the case in which they testify. (1) 
A grant of immunity in those instances does not necessarily discredit the witness' testimony in
another proceeding.  Moreover, even if the immunity applies to the offense about which a person
testifies, the grant of immunity does not always mean that the recipient of the immunity is guilty of
the crime.  The prosecution may have doubts about the accomplice's guilt, but still grant him
immunity in order to induce him to give testimony that the prosecution might not otherwise be able
to procure.  
	The accomplice witness corroboration requirement properly serves the interests of justice by
protecting the interest of the defendant while preserving competent evidence for use by the trier of
fact. In this case, Jester was able to fully explore Bradford's credibility and bias on cross-
examination, and to put before the jury any facts that would tend to establish ill feelings, bias, motive
to testify, or  vulnerable relationship with the State.  See McDuff v. State, 939 S.W.2d 607, 618 (Tex.
Crim. App. 1997).  The current rule protects the defendant by subjecting the testimony at issue to
the crucible of adversarial testing, including full and effective cross-examination.  See Davis v.
Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).  The jury is completely and fully
instructed on the accomplice witness rule, but is left to judge for itself the credibility of the evidence
and the soundness of the arguments presented.  This is nothing more than the jury's role on any
disputed fact question.  Absent conclusive evidence, this issue is inappropriate for determination
other than by the trier of fact.  The current test also avoids arbitrary impairment of untainted,
probative evidence from nonaccomplices and thereby promotes the basic objective of the justice
system-the search for the truth.
	In his second point of error, Jester argues the evidence is legally insufficient to support the
guilty verdict, and the trial court therefore erred by overruling his motion for an instructed verdict. 
Jester's argument on this point is based on Bradford being an accomplice as a matter of law and his
testimony being insufficiently corroborated.  Because Bradford was not an accomplice as a matter
of law, and because there is sufficient evidence to support the verdict, we overrule Jester's contention
on this issue.
	A challenge to the trial court's ruling on a motion for instructed verdict is in actuality a
challenge to the legal sufficiency of the evidence to support the verdict.  Cook v. State, 858 S.W.2d
467, 470 (Tex. Crim. App. 1993).  In reviewing a legal sufficiency challenge, we view the entire
body of evidence in the light most favorable to the prosecution and determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  See
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Williams v. State, 937
S.W.2d 479, 482-83 (Tex. Crim. App. 1996).
	Jester argues that under Cook  Bradford's testimony must be excluded from consideration in
evaluating the sufficiency of the evidence.  See Cook v. State, 858 S.W.2d at 470.  This position is
incorrect.  As was shown above, Bradford was not an accomplice as a matter of law.  Whether
Bradford was an accomplice in fact was an issue for the jury to decide, but was not submitted as a
separate special issue.  The jury returned a general verdict of guilty.  Therefore, we do not know
whether the jury found Bradford to be an accomplice.  As shown above, there is adequate evidence
in the record to support a finding that Bradford was not an accomplice.  We need not inquire as to
the jury's finding on this issue, however, as Bradford's testimony is sufficiently corroborated even
if Bradford was an accomplice.  See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon Supp. 2001).
	There is sufficient corroboration if, disregarding Bradford's testimony, there is other evidence
that tends to connect Jester to the crime.  See Tex. Code Crim. Proc. Ann. art. 38.14.  The
corroboration is insufficient if it merely shows the commission of the offense, but the fact that the
crime was committed is a factor to be considered along with other factors in determining whether
there is sufficient independent evidence to corroborate the accomplice witness's testimony.  Reed v.
State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).  Corroboration need not directly link the
accused to the crime or be sufficient in itself to establish guilt.  Even seemingly insignificant
circumstances may be sufficiently corroborating provided they tend to connect the defendant with
the offense. 
	Other evidence, unconnected to Bradford, showed that Jester had stolen guns from Howell,
that Jester and Howell had argued about this matter, and that Howell feared that he was in danger
from Jester.  Several witnesses testified to admissions by Jester that he had taken the guns, and that
if Howell continued to "mess with" him, Jester would kill him.  This evidence sufficiently connects
Jester to the crime to corroborate Bradford's testimony.  Bradford's testimony placed Jester at the
scene at the time of Howell's death, with a shotgun in his hand.  Bradford heard a shot fired, and later
saw Jester first hiding, then disposing of, the same gun.  Other evidence showed that Howell was
killed by a shotgun blast.  Viewing the evidence in the light most favorable to the verdict, there is
sufficient evidence to support the jury's guilty verdict.  See Williams v. State, 937 S.W.2d at 482-83. 
	Finally, Jester argues that the deadly weapon finding should be stricken from the judgment
because the evidence is insufficient to support the entry of an affirmative finding of the use of a
deadly weapon.  Jester also bases this argument on Bradford's status as an accomplice as a matter
of law and on the need for corroboration.  At oral argument, Jester abandoned this point in light of
the decision of the Court of Criminal Appeals in Vasquez v. State, where the Court held that the
corroboration requirements of Article 38.14 are inapplicable to the testimonies of accomplice
witnesses regarding the use or exhibition of a deadly weapon.  Vasquez v. State, No. 1573-00, 2001
Tex. Crim. App. LEXIS 67, at *6 (Tex. Crim. App. Sept. 12, 2001). 
	For the reasons stated, we affirm the judgment.

							William J. Cornelius
							Chief Justice

Date Submitted:	October 24, 2001
Date Decided:		November 28, 2001

Publish
1.  Bradford was granted immunity on unrelated charges, but was also granted transactional
immunity for the case in which he agreed to testify.

t.  Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  Under this
standard, a claimant must prove that counsel's representation so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just result. 
Strickland, 466 U.S. at 686. 
            In this case, Piper contends counsel was ineffective because he did not attempt to subject the
videotape of the stop to "meaningful adversarial testing."  Piper argues that trial counsel should have
objected to the tape because, when it became apparent that the tape was not an original and that it
had the initials of another officer on the box, counsel nevertheless did not object and require the
officer to verify the authenticity of the copy.  
            There is, however, nothing in the record to show that the videotape did not accurately portray
the events of the scene of the search or that such an objection would have had any likelihood of being
sustained.  Accordingly, we cannot find that counsel was deficient by failing to object.
            Piper also argues that trial counsel was ineffective because he did not argue to the trial court
that Piper's seizure as a result of the traffic stop gave him standing to seek suppression.  We have
addressed that matter above.  There is no evidence to show that Piper did have standing to seek to
suppress the items discovered as a result of the traffic stop, and counsel did not render inadequate
assistance by failing to raise an argument that cannot prevail. 
            Piper finally complains because trial counsel did not object to hearsay statements. 
Specifically, he complains about statements that were repeated by the testifying officer attributed to
the other officer at the arrest site and to the jail personnel who processed Piper.  He also complains
because counsel did not object to leading questions asked of the officer to elicit information about
the existence of a trail car (apparently there was not one), and about the State's prompting of the
officer to recount the events immediately following the stop:  checking drivers' licenses and
obtaining identities.
            However, the Texas Rules of Evidence, except with respect to privileges, do not apply when
the determination of questions of fact preliminary to admissibility of evidence when the issue is to
be determined by the court under Rule 104.  Tex. R. Evid. 101(d)(1)(A).  Rule 104 states that
"[p]reliminary questions concerning . . . the admissibility of evidence shall be determined by the
court . . . .  In making its determination the court is not bound by the rules of evidence except those
with respect to privileges."  Tex. R. Evid. 104(a).
            Suppression hearings involve the determination of preliminary questions concerning the
admissibility of evidence.  Therefore, the Texas Rules of Evidence, with the exception of privileges,
do not apply to suppression hearings.  Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App.
2002).  The hearsay objections would have been fruitless.  Counsel was therefore not ineffective in
failing to object.
            The other complained-of questions by the State were arguably leading in nature.  Even if they
were, however, for the reason stated above, leading questions are not objectionable in this context. 
Tex. R. Evid. 104(a), 611(c). 
            Piper finally complains because counsel did not more rigorously question the officer about
the specifics of the lane change and failure to signal.  However, inasmuch as counsel has failed to
show or suggest what the officer's testimony would have been, and inasmuch as our record does not
contain the reason why trial counsel did not ask further questions, Piper has failed to show that his
counsel was ineffective for failing to ask further questions and has failed to show that, if his counsel
had asked more questions, the result of his trial would have been different.  See Davis v. State, 119
S.W.3d 359, 370 (Tex. App.—Waco 2003, pet. ref'd).  The contention of error is overruled.
            We affirm the judgment.
 


                                                                        Jack Carter
                                                                        Justice
 
Date Submitted:          July 14, 2004
Date Decided:             August 25, 2004

Do Not Publish

