PD-0862-20 01/13/2021
1. “If the testimony from an alleged accomplice witness-in-fact is completely removed from consideration, where the jury charge contained two accomplice witness instructions—one clearly correct regarding the accomplice as a matter of law—and there was substantial non-accomplice evidence to corroborate either accomplice witness’s testimony, did Appellant suffer egregious harm from any alleged error in the accomplice-in-fact instruction?”
2. “Did Appellant invite—or is he otherwise estopped from challenging—the allegedly erroneous instruction he requested and now complains of on appeal?”
3. “Was Appellant even entitled to an instruction on whether Hogarth was an accomplice as a matter of fact?”
4. “In a case where the Defense argues a witness was an accomplice, who bears the burden to prove a witness’s status as an accomplice as a matter of fact, and what is the appropriate burden?”
Four men carrying handguns robbed a tattoo shop. Surveillance video and audio captured the perpetrators during the offense, and one of them could be heard calling his compatriot by Ruffins’s nickname, Poohbear. Cell phones taken in the robbery were located at the apartment complex where Ruffins and his friends lived. Police traced the phones back to one of the friends, and they were all charged with aggravated robbery. One of the men, Trevino, pled guilty before Ruffins’ trial and testified against him. Trevino testified that it was his idea to rob the shop (which belonged to his cousin) and that he drove the other four men to the robbery. Trevino also testified that another of the State’s witnesses, David Hogarth, had overheard him discussing the possibility of robbing the shop but had not taken part nor encouraged the others. After the robbery, Trevino contacted Hogarth and told him to get a lawyer and not talk to police.
Hogarth testified that he associated with Ruffins and the other codefendants, rode to the tattoo shop days before the offense, and overheard their plans about robbing it. The night of the offense, he saw the men drive off in Trevino’s white Volvo. The same color Volvo was captured on surveillance video near the scene of the robbery.
At the charge conference, the parties discussed a draft of the charge. It instructed that Trevino was an accomplice as a matter of law and that his testimony had to be corroborated. It also instructed that Hogarth’s testimony had to be corroborated if the jury determined beyond a reasonable doubt that Hogarth was an accomplice. Regarding this charge, Ruffins said, “I don’t think there’s been an instruction that they need to believe—when they consider accomplice, they have to agree beyond a reasonable doubt that he is an accomplice. I don’t think that’s in there…. Unless I’m wrong.… I don’t see it.” The State read the excerpt requiring corroboration if the jury found he was an accomplice beyond a reasonable doubt, and Ruffins said, “I’m good.” The jury was given the instruction, and it convicted.
On appeal, Ruffins argued that the instruction was erroneous. The court of appeals majority rejected the State’s argument that Ruffins had invited the error and concluded that, by saying he was “good,” he essentially withdrew his objection but that this would not prevent appellate review. It also concluded that the charge was erroneous because it inverted what the jury should have been told, i.e., that corroboration was required unless the State proved beyond a reasonable doubt that Hogarth was not an accomplice. The error was also harmful because, other than Trevino and Hogarth’s testimony, the evidence of Ruffins’ guilt was less than overwhelming. A concurring justice would have found the instruction doubly erroneous because it failed to require that the jury believe the accomplice’s testimony was true (as well as corroborated) before using it to convict the defendant. The dissenting justice thought Ruffins was estopped from complaining of the charge because, by saying that he was “good” with the instruction, he affirmatively communicated to the court that the instruction sufficed in lieu of the one he requested. It expressed uncertainty about who had the burden to prove a witness’s status as an accomplice, since Code of Criminal Procedure Article 38.14 provided no guidance. It also criticized the majority’s harm analysis, which it saw as substituting the majority’s own credibility assessments (discounting the State’s corroborative evidence and giving greater credibility to the defense’s exculpatory evidence), failing to consider that the accomplice witness instruction was not entirely omitted, and finding theoretical, instead of actual, harm.
In addition to adopting the dissent’s arguments, the State argues the jury was properly instructed to corroborate Trevino’s testimony, which (because it was abundantly corroborated) should have been considered in assessing the strength of the State’s remaining evidence. It also contends that Hogarth’s being present for planning, disappointed that he was left behind during the robbery, and initially uncooperative with law enforcement was not enough to require any instruction in the first place. Finally, it cites early Court of Criminal Appeals’s precedent and caselaw from other jurisdictions that place the burden on the defendant, as the recipient of the benefit of corroboration, to show the witness was an accomplice. It argues that even if the standard was a preponderance of the evidence, that error, for the same reasons, was not egregiously harmful.
