                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00022-CR

MICHAEL DWAYNE CLARK,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2014-585-C2


                          CONCURRING OPINION


      I believe the Court has erroneously applied the standard for sufficiency of the

evidence to determine whether a person is an accomplice as a matter of law. The

standard to determine whether an accomplice-as-a-matter-of-law instruction should be

given is not dependent on whether the evidence establishes as a matter of law that the

person is guilty of the offense or a lesser included offense. “A witness is an accomplice

as a matter of law when the witness has been charged with the same offense as the
defendant or a lesser-included offense, or ‘when the evidence clearly shows that the

witness could have been so charged.’” Court’s op. at p. 4. McQuirter was in possession

of what she knew was two different types of contraband, marijuana and “crack or

powder.” She could have been charged with the same offenses as Clark.

        There may be some evidence from which a fact finder could have concluded

McQuirter was not aware the second category of contraband was heroin, but that does

not mean she was not an accomplice as a matter of law. She could have been charged

with possession of both the marijuana and the heroin. Furthermore, a fact finder could

have rejected her feigned lack of knowledge that one of the substances was heroin

rather than some other contraband and convicted her. McQuirter was an accomplice as

a matter of law. The trial court’s charge was erroneous by failing to instruct the jury

properly.

        Nevertheless, I find the charge error in allowing the jury to determine if she was

an accomplice rather than instructing the jury that she was an accomplice as a matter of

law harmless under the well-recognized test set out in Almanza and its progeny.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). I, too, would

therefore overrule issue one.

        As to the third issue, I must also note my disagreement with the Court. I believe

the objection was sufficiently specific to inform the trial court what it was that counsel

wanted and the basis for it. We have never required the objecting party to articulate the


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specific rule number or statute under which the challenged conduct was proper. The

issue was, in my opinion, adequately preserved. Nevertheless, I agree with the Court

that the error was harmless.

        Accordingly, I concur in the Court’s judgment which affirms the trial court’s

judgment.




                                        TOM GRAY
                                        Chief Justice

Concurring opinion delivered and filed October 8, 2015




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