Alejandro Garcia v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-99-00897-CR

Alejandro GARCIA,

Appellant

v.

STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 1999-CR-3375-A

Honorable Mary Roman, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 18, 2000

REVERSED AND REMANDED

A jury found Alejandro Garcia ("Alejandro") guilty of two counts of aggravated sexual assault, aggravated robbery, and aggravated kidnapping. In his first point of error, Alejandro argues that the trial court erred in submitting an instruction in his co-defendant's case that Alejandro was an accomplice as a matter of law. In his second point of error, Alejandro argues that the trial court erred in refusing his request for severance from his co-defendant.

The State concurs with Alejandro's argument as to the first point of error. We agree that the trial court erred in submitting the accomplice witness instruction and that this error warrants reversal of the trial court's judgment. Because we reverse and remand for a new trial, we do not consider Garcia's second point of error.

Background

Alejandro and his co-defendant, Andrew Garcia ("Andrew") kidnapped Brandy Lewis ("Lewis") and forced her to drive to a gas station and several department stores. At the gas station, the Garcia brothers used her debit card for their purchases. At the various department stores, they forced Brandy to write checks on their behalf for their purchases. At various times, Alejandro and Andrew forced her to have sexual relations with them.

The State tried Andrew and Alejandro in the same proceeding. After the State rested, Andrew testified that he tried to persuade Alejandro not to kidnap, rob, or sexually assault Lewis. Andrew stated that Alejandro threatened to kill him if he testified against Alejandro. Andrew also testified that Alejandro forced him and Lewis to have oral sex.

Testifying on his own behalf in narrative form, Alejandro contradicted the testimony of Lewis and Andrew. He stated that Lewis willingly offered the brothers a ride, consented to sexual relations with Alejandro, and offered to purchase merchandise for them. Alejandro also testified that Andrew forced Lewis to engage in sexual acts with him (Andrew).

The trial court included, over Alejandro's objection, an instruction on accomplice witness testimony in Andrew's jury charge. The court likewise denied Alejandro's request for severance. The court issued separate jury charges for Andrew and Alejandro. Andrew's charge read, in part:

The witness, Alejandro Garcia, is an accomplice, if an offense was committed, and you cannot convict the defendant [(Andrew)] upon his [(Alejandro's)] testimony unless you first believe that his testimony is true and shows that the defendant is guilty as charged . . . .

(emphasis added).

Discussion

An instruction on accomplice witness testimony serves to remind a jury that such testimony is insufficient to convict a defendant "unless corroborated by other evidence tending to connect the defendant with the offense committed . . . and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc Ann. art. 38.14 (Vernon 1979).

In the present case, Alejandro's testified in his own behalf. The State neither called him nor offered his testimony. Alejandro was a witness for the defense. Alejandro's statements do not rise to accomplice-witness testimony for the purposes of Andrew's jury charge. See Selman v. State, 807 S.W.2d 310, 311 (Tex. Crim. App. 1991). Even if Alejandro is an accomplice, his testimony "must be corroborated and the jury so instructed only when the State calls the witness and seeks to rely on such witness's testimony." Id. We find that the trial court erred as to Alejandro in submitting the accomplice witness testimony instruction in Andrew's jury charge. Cf. id. at 311-12.

This error caused reversible harm to Alejandro. A trial judge "shall not . . . make any remark calculated to convey to the jury [the judge's] opinion of the case." Tex. Code Crim. Proc Ann. art. 38.05 (Vernon 1979). In the present case, the instruction in Andrew's charge amounted to a statement to the jury that if they found Andrew had committed an offense, then Alejandro was guilty because he would then be an accomplice. "This is tantamount to a constitutionally prohibited directed verdict for the State." Selman, 807 S.W.2d at 313. In its brief, The State agrees.

We hold that this improper accomplice-witness instruction in Andrew's jury charge was a prejudicial comment on the weight of the evidence in Alejandro's case. We sustain his first point of error.Conclusion

We reverse the trial court's judgment and remand the cause for a new trial. We need not reach Alejandro's second point of error.

Phil Hardberger, Chief Justice

DO NOT PUBLISH