ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS CAUSE NO. W416-80539-2014-HC IN THE 416TH DISTRICT COURT COLLIN COUNTY
HERVEY, J., filed a dissenting opinion in which RICHARDSON, YEARY, and WALKER, JJ., joined. DISSENTING OPINION
This case stems from the burning down of Applicant's house. Investigators concluded that the fire was intentionally set and that, after speaking to Applicant's ex-girlfriend, Applicant set it. She told them that she knew Applicant burned his house down because she was with him when he did it. According to her, she was only there because Applicant forced her to go. His defense was that he was not there and that he did not know who set the fire.
In Zamora v. State, 411 S.W.3d 504, 513-14 (Tex. Crim. App. 2013), we said that "[t]he accomplice-witness rule cannot be reasonably categorized as a defensive issue that a defense attorney might forego as a matter of strategy" and that "it is difficult to envision that any competent attorney would reasonably forego an accomplice-witness jury instruction as a matter of strategy based on his theory of the case."
This case convinces me otherwise. From opening to close, Applicant's defense was that he was not there and that he did not know who committed the crime, and in line with that defense, trial counsel did not ask for an accomplice-witness instruction. Now, relying on Zamora, Applicant argues that trial counsel was ineffective because he should have asked for an accomplice-witness instruction, or at least objected to its omission. I think that we should reexamine our holding in Zamora.
It is certainly understandable why, in this post-conviction proceeding, Applicant is now taking the position that he is entitled to a new trial because defense counsel was ineffective in not asking for the instruction.
Imagine sticking to the same story the entire trial: you were not there when your house was set on fire, and you do not know who set it on fire, but at the last minute the jury was told that your ex-girlfriend might have been your accomplice. Despite the Zamora argument, the instruction here would not help. The point of the "go for broke" argument is to present the jury with two choices—he did it or he did not. But giving the accomplice instruction makes it appear as if you were really arguing that, "I had nothing to do with the crime, unless you think I did, in which case my ex-girlfriend was my accomplice."
If I were the defense attorney, I would not have wanted the jury to retire to deliberate thinking that I was trying to hedge my client's bets at the last minute by having it both ways. I might have even felt compelled to spend part of my closing arguments trying to clarify that we did not want the instruction and to emphatically emphasize that my client's ex-girlfriend could not have been an accomplice because my client was not there. But such an attempt would likely be confusing and unsuccessful given that the "accomplice bell" had already been rung. Instead, it would probably only draw the jury's attention to an issue that I never wanted it to think about it in the first place. On the other hand, not attempting to clarify the comments leaves the jury to fend for itself in figuring out what to make of this whole "accomplice" thing that no one ever mentioned at trial.
Trial counsel argued during his closing arguments that,
The point is, your job as a jury is to determine one thing. Did [Applicant] start [the fire] or not? So there's one question. Has it been proven beyond a reasonable doubt that [Applicant's ex-girlfriend] is truthful? Because that's the only witness. The entire investigation, they told you, was based on [the ex-girlfriend]'s statement. They went into that house looking for evidence to support it, and they found goose egg, zero, nothing.
I think we should take the opportunity to file and set this case so that we can reexamine our decision in Zamora to decide whether it should be overruled to the extent that it holds that a defense attorney cannot strategically forego an accomplice-witness instruction when the facts call for it. With these comments, I respectfully dissent. Filed: February 12, 2020 Publish