Abner Lee Cocke v. The State of Texas--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00056-CR

Abner Lee Cocke,

Appellant

v.

The State of Texas,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court No. 03-11-13,695 BCCR

concurring Opinion

Under the authority of Billips, an instruction defining what an accomplice is and a generic accomplice-witness instruction under article 38.14 should have been given. Billips v. State, 465 S.W.2d 973 (Tex. Crim. App. 1932); Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).

Under the authority of Herron, the failure to give the instruction was some harm. Herron v. State, 86 S.W.3d 621 (Tex. Crim. App. 2002).

I concur in the judgment of the majority.

Any further discussion in the majority opinion about what should have been included in the charge and what the jury could or could not do based upon its determination of whether Bundrandt or Sneed were accomplices I do not join, because it is unsupported by the statute (art. 38.14), or the case law, is unnecessary for the disposition of this appeal, and is merely an advisory opinion which we have no jurisdiction to render.

TOM GRAY

Chief Justice

Concurring opinion delivered and filed July 13, 2005