                                   NO. 07-06-0335-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                   OCTOBER 13, 2008

                         ______________________________


                             ADRIAN BIERA, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE

                       _________________________________

           FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2005-410,709; HONORABLE JIM BOB DARNELL, JUDGE

                         _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                 DISSENTING OPINION


      While I agree with the majority conclusion that the trial court erred by failing to give

an accomplice as a matter of fact instruction pertaining to the testimony of Stephanie

Yzaguirre, I respectfully disagree with the majority conclusion that the omission was not

harmless error. Because I would find such error harmless, I dissent.
       A conviction cannot be had upon the testimony of an accomplice witness unless that

testimony is “corroborated by other evidence tending to connect the defendant with the

offense” committed. Tex. Code Crim. Proc. art. 38.14 (Vernon 2005). When the evidence

raises a question of fact concerning whether or not a witness is an accomplice, the trial

court must submit an accomplice witness instruction, and failure to do so is error.

Oursbourn v. State, 259 S.W.3d 159, 180 (Tex.Crim.App. 2008). However, the failure to

submit an accomplice witness as a matter of fact instruction may amount to harmless error

if some non-accomplice evidence tends to connect the accused to the offense. Herron

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


       The harmless error analysis for the omission of an accomplice witness instruction

should be flexible, taking into account the existence and strength of any non-accomplice

evidence and the applicable standard of harm. Id. In determining the strength of a

particular item of non-accomplice evidence, an appellate court must examine (1) its

reliability or believability and (2) the strength of its tendency to connect the defendant to

the crime. Id.


       When, as here, the error is properly preserved, a reversal is required if “some harm”

is shown. Under the “some harm” standard, the omission of an accomplice witness

instruction is harmless if it does not affect the substantial rights of the appellant. Tex. R.

App. P. 44.2(b). A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. Russell v. State, 113 S.W.3d


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530, 549 (Tex.App.–Fort Worth 2003, pet. ref’d) (citing King v. State, 953 S.W.2d 266, 271

(Tex.Crim.App. 1997)).


       In order to determine whether the testimony of an accomplice witness tends to

connect the defendant to the crime, an appellate court must disregard all accomplice

witness testimony and instead focus solely upon the remaining non-accomplice witness

evidence. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App. 1993). It is not necessary

that the non-accomplice evidence prove all the elements of the offense charged, nor is it

necessary that the evidence directly link the defendant to the crime. Gill v. State, 873

S.W.2d 45, 48 (Tex.Crim.App. 1994). Although the non-accomplice evidence may be

weak, if it fails to connect the defendant to the offense the evidence is insufficient to

support a conviction. Munoz, 853 S.W.2d at 560. In evaluating the sufficiency of the non-

accomplice evidence, each case must be considered on its own facts and circumstances,

and only non-accomplice evidence presented to the jury may be considered. Id.


       In the instant case, aside from the testimony of the accomplice witnesses, the State

presented testimony from Adam Salazar, one of the Whataburger employees who was

robbed, to the effect that he recognized the eyebrows and eyes of Appellant. While the

strength of the tendency of this non-accomplice witness testimony to connect Appellant to

the crime is great (such testimony is tantamount to an eye witness identification), it can be

argued that the reliability or believability factor is weak. Where the evidence of a witness’s

status as an accomplice was tenuous (barely enough to support submission as an


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accomplice as a matter of fact), the Court of Criminal Appeals has found error harmless

under the “some harm” standard when the non-accomplice evidence consisted of

eyewitness testimony connecting the defendant to the crime. Medina v. State, 7 S.W.3d

633 (Tex.Crim.App. 1999).


       Having considered the non-accomplice evidence, the strength of its tendency to

connect Appellant to the crime, its relative reliability, and the tenuous status of Yzaguirre

as an accomplice witness, I remain convinced that the trial court’s failure to submit an

accomplice witness instruction as to Yzaguirre did not have a substantial and injurious

effect or influence on the jury’s verdict. Because I would find the error harmless, I would

overrule Appellant’s issue.




                                                  Patrick A. Pirtle
                                                      Justice


Publish.




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