NO. 73,455






Womack, J., filed a dissenting opinion in which Johnson, J., joined.

The ninth point of error is that the appellant was denied effective assistance of counsel when his counsel failed to request a jury charge on the "legality of his confession." The Court holds that we need not consider the merits of this point because the appellant "has failed to argue how this prejudiced him." Ante at 15. It seems obvious that if such an instruction had been given and the jury disregarded the confession, the evidence of guilt would have been significantly weaker. As the Court points out, the evidence that corroborated the accomplice witnesses was "primarily his own videotaped confession." Ante at 13.

Such a jury charge on the confession also figures in the points of error about the trial court's refusal to give a charge on the law of accomplice-witness evidence. It is unquestioned that the trial court erred by denying the appellant's request for such a charge. The Court points out that there was a good bit of corroborating evidence, primarily the confession. It also sets out the rule of law that, when the error is giving a charge on accomplice-as-a-matter of fact when the charge should have been accomplice-as-matter-of-law, the error is harmless when there was a good bit of accomplice evidence. Ante at 12. That is correct but irrelevant, since the error in this case was not giving the wrong kind of charge; it was giving no charge at all.

The Court says the "same analysis applies." Ante at 12. It cites no authority for this statement. The obvious difference between these errors is that, if the jury is charged on the law of accomplice-as-a-matter-of-fact and they apply the law correctly, they will reach the right result so long as there was sufficient corroborating evidence. But if there was no charge at all on the law of accomplice-witnesses, there is no chance that the jury could have applied the law correctly.

In Saunders v. State, 817 S.W.2d 688 (Tex. Cr. App. 1991), the unobjected-to failure to charge on accomplice witness law was reversible error, that is, egregious error. In that case we held that the "good-bit-of-corroborating-evidence" test for harm was "defunct." Saunders is a strong indication that the "good-bit of corroboration" test that the Court uses today does not apply in that way in a case in which the trial court gave no charge at all on accomplice-witness evidence.

Although the corroborating evidence in Saunders included a confession, we pointed out that the court's charge included an instruction to disregard the confession if the jury did not find that it was voluntary. The jury might well have done this, so there the confession could not be given much weight as corroborating evidence. The case now before us is one in which the appellant complains of the absence of such a jury instruction about the voluntariness of the confession.

I am not sure that the Court is wrong to overrule these points of error, but I am sure that it should not do so without finding and applying the correct test for harmless error.

I respectfully dissent to an affirmance of the judgment in this fashion.

En banc.

Filed October 9, 2002.