David C. Newell
Questions
1
Craig Hill Johnson was stopped solely because the license plate on his car was partially obscured by a license plate frame. Specifically, the frame partially obscured the word “Texas,” fully obscured the nickname “The Lone Star State,” and obscured a depiction of a space shuttle in a nighttime sky. After the stop, the arresting officer determined that Johnson was driving while intoxicated and arrested him for DWI. Before his trial, Johnson filed a pre-trial motion to suppress, arguing that he had not violated §509.409 of the Transportation Code which makes it a class C misdemeanor to attach an emblem or device on a license plate that obscures the name of the state, the letters or numbers on the plate, or another original design feature of the plate. The trial court granted the motion to suppress after saying, “Boy, I don’t know. I am afraid that all these logo plates are going to do a little obscuring.” The State appealed.
Can a police officer stop a car whose license plate frame partially obscures “Texas” or any other letters, numbers, or designs on the license plate?
yes ______ no ________
2
In 1990, Randall Lee Roemer was convicted of “involuntary” manslaughter. In 2003, Roemer was charged with driving while intoxicated. The indictment also included an enhancement paragraph that indicated Roemer had a 1990 conviction for “intoxication” manslaughter. Problem is, back in 1990, the offense of “intoxication” manslaughter was statutorily contained in Penal Code §19.05(a)(2), otherwise known as “involuntary” manslaughter. The State later amended the indictment to reflect that Roemer had been convicted of “involuntary” manslaughter under §19.05(a)(2) in 1990 rather than “intoxication” manslaughter under Penal Code §49.08. After being informed of the legal issue concerning the use of “involuntary” manslaughter to elevate his DWI conviction to a 3rd-degree felony, Roemer plead guilty and stipulated to the allegedly improper enhancement provision in exchange for a recommended sentence of four years (which, incidentally, is the sentence he received). Roemer then filed a writ of habeas corpus claiming that his sentence was illegal and that his attorney rendered ineffective assistance of counsel for stipulating to the allegedly improper enhancement.
Is Roemer estopped from claiming that his sentence is illegal because he stipulated to the validity of the enhancement?
yes ______ no ________
3
David Wayne Casey was charged with aggravated sexual assault of K.T., a young girl who worked as a “shot girl” at a topless bar in Dallas. Under the indictment, Casey was charged with sexual assault that became aggravated through Casey’s administration of GHB to his victim. During the trial, the attorney objected to the jury charge because it referred to K.T. in the application paragraph as the “victim of the offense.” According to Casey’s attorney, the designation of K.T. as a victim was a comment on the weight of the evidence as it, in effect, designated K.T. as a victim as a matter of law. Casey’s attorney suggested that the application paragraph simply require the jury to determine whether or not Casey had administered GHB to K.T. without designating her as a victim. The trial court overruled the objection.
Did the trial court’s reference to K.T. as the victim of the offense amount to an impermissible comment upon the weight of the evidence?
yes ______ no ________
4
Christopher Jordan Bahm pled guilty to aggravated sexual assault of a child and was placed on deferred adjudication for eight years pursuant to a plea bargain. Within five months, the State moved to revoke his probation and adjudicate his guilt. He plead “true” to allegations that he had failed to pay various fees, but he plead “not true” to allegations that he had not obtained suitable employment, that he had not completed community service hours, that he had not attended and completed sex offender counseling, and that he had admitted to having sexual intercourse with a minor child. The trial court found all the allegations true, except the ground related to sexual intercourse with a minor child, and sentenced him to 25 years. He filed an untimely motion for new trial, but later, upon habeas review, he was granted an out-of-time appeal. Bahm filed a second motion for new trial alleging, among other things, that he had received ineffective assistance of counsel. This motion was denied by the trial court without a hearing. Attached to the motion was Bahm’s unsworn inmate declaration attesting to the truth of Bahm’s statements; it complied with the Texas Civil Practices and Remedies Code for inmate declarations with one exception: Bahm’s declaration qualified Bahm’s assertions that the information was correct with the phrase “according to my belief.” According to the court of appeals, this qualification disqualified the declaration under the statute because it failed to attest to the truthfulness of the facts.
Does the addition of the phrase “according to my belief” in an inmate declaration invalidate an otherwise acceptable motion for new trial?
yes ______ no ________
5
A jury convicted Ronald Herndon of driving while intoxicated. Herndon filed a motion for new trial alleging that the court reporter failed to record a bench conference at which Herndon objected to the prosecutor’s closing argument. The trial court granted the motion for new trial, and the State appealed. The court of appeals determined that the trial court had abused its discretion in granting the motion for new trial because Herndon had not objected to this failure to record the bench conference during the trial. Under Rule 11(a) of the Texas Rules of Appellate procedure (the applicable rule at the time), Herndon was required to object to the failure to record a bench conference to preserve error for appeal. Everyone agreed that he did not object timely and preserve error for appeal.
Does the failure to preserve error for purposes of appeal preclude the trial court from granting a new trial based such unpreserved error?
yes ______ no ________
6
Lawrence Few was indicted for solicitation of capital murder in cause number 20030D05342. He was eventually re-indicted under a new cause number, 20050D04727. However, both the State and the defense continued to file documents under the first cause number, or, as it came to be known, the “03” cause number. The State then filed an “Agreed Motion to Carry Over” asking the trial court to allow the record from the “03” cause number to be carried over to the “05” cause number, as it became known. The trial court granted the motion and ordered that all motions, notices, and records from the “03” cause number be carried over to the “05” cause number.
Less than two weeks later, Few was convicted under the “05” cause number and filed his pro se notice of appeal, mistakenly citing the “03” cause number. A month later, the State moved to dismiss the “03” cause number because it had been re-indicted under the “05” number. The trial court granted the dismissal and also issued a certified right to appeal under yet another cause number (that’s three if you’re keeping track). The court of appeals sent the case back for the trial court to hold a hearing to determine which case is being appealed, the “03” or the “05.” At the hearing, the State asked the trial court to deny the right to appeal because the “03” case was a non-final case (having been dismissed) and the time had run for filing notice in the “05” case. The trial court determined that the motion to carry over applied only to those documents in the file at the time of the order and not the later filed notices. Consequently, the trial court denied Few’s right to appeal. Then, the State filed a motion to dismiss the appeal for want of jurisdiction, and the court of appeals did just that.
Did the defendant’s pro se notice of appeal filed under the wrong cause number invoke the jurisdiction of the court of appeals?
yes ______ no ________
7
James Masonheimer was indicted for murdering his daughter Lucy’s boyfriend. At a pre-trial hearing, Masonheimer’s attorney advised the court that his client intended to show that the defendant shot the victim in self-defense and in defense of his daughter. Shortly after the beginning of Masonheimer’s first trial (you see where this is going), the defense discovered that one of the State’s witnesses had told the police that Masonheimer had stated shortly after the shooting that the victim “had threatened his daughter and it was either him or her.” The defendant moved for a mistrial for failure to disclose exculpatory evidence, but the trial court granted a continuance instead. Eventually, however, the trial court granted the mistrial because a death in the prosecutor’s family resulted in an extension of the continuance. Soon after, the lead prosecutor left the district attorney’s office to become a judge. Prior to the second trial, the new lead prosecutor who had been sitting second on the first trial, disclosed to the defense a second statement, this one from the ex-husband of Masonheimer’s daughter Lucy. In that statement, the ex-husband related that Lucy had asked her ex-husband to keep their children the day before the victim was shot. He also stated that when he called her in the evening, Lucy had broken down because of the problems she had been having with the victim and that he had urged her to go to the police to get a restraining order. Masonheimer plead nolo contendere without a stipulation of evidence (thereby requiring the State to put on evidence of guilt). During this proceeding, the second trial if you will, the prosecution disclosed even more previously undisclosed evidence, which consisted of a statement from the victim’s friend who had found several boxes containing steroids in the victim’s apartment after the victim’s death. Masonheimer again moved for a mistrial. At the hearing on the motion, testimony was presented that the lead prosecutor from the first trial and his investigator were aware of the evidence that the victim had boxes of steroids in his apartment prior to the first trial. However, none of this information was in the case file or the prosecutor’s notes, and everyone agreed that the second prosecutor knew about this information. The State argued at the motion that there was no evidence that this information was withheld to goad the defense into moving for a mistrial. The trial court determined that the withheld information was exculpatory evidence that should have been disclosed before the first trial but that the prosecutor’s conduct in this case was reckless. The trial court then granted the mistrial.
Masonheimer filed a pre-trial writ of habeas corpus seeking relief from double jeopardy relying heavily upon Bauder v. State for the proposition that double jeopardy bars a retrial after a mistrial is granted due to a prosecutor’s reckless conduct. The trial court granted the writ, holding that double jeopardy had attached and that further prosecution was barred. The court of appeals, however, decided that further prosecution was not jeopardy-barred under either the state or federal constitutions because there was no evidence that the lead prosecutor on the second trial acted intentionally or recklessly. While the case was pending on appeal, the Court of Criminal Appeals overruled Bauder. Before the Court of Criminal Appeals, Masonheimer argued that the court was required to consider whether the lead prosecutor on the first trial had intentionally withheld exculpatory evidence rather that focus solely upon the intent of the prosecutor in the second trial.
Is the third trial of Masonhimer barred by the Double Jeopardy Clause due to the prosecution’s intentional withholding of exculpatory evidence in the first trial?
yes ______ no ________
8
Michael Miller Euler was indicted for bribery, but he pled guilty pursuant to a plea bargain and was placed on probation for four years. Within three years, the State moved to revoke his probation, alleging that he had driven while intoxicated and consumed a controlled substance, namely cocaine. At the hearing on the motion to revoke, Euler plead “not true.” The State presented evidence to establish the grounds alleged in the motion to revoke. Euler responded by introducing evidence from himself, an attorney, his friend, and a letter from his physician indicating that Euler may have appeared intoxicated because of a neurological disorder. After both sides had rested and closed, the trial court found that Euler had violated the conditions of his probation. When the trial court asked Euler if he had anything to say before he imposed sentence, Euler responded with a request that punishment be postponed until he could gather some evidence as to some alternative to the punishment assessed. The trial court denied the request. In his motion for new trial, Euler complained that he had been denied due process because the trial court had refused to grant him a separate hearing on punishment. The court of appeals affirmed the trial court’s denial of Euler’s request for a separate hearing on punishment because Euler had already been given an opportunity to present the mitigating evidence of his neurological disorder.
Does Euler have a due process right to a separate hearing on punishment at his probation revocation hearing?
yes ______ no ________
9
Hugo Alejandro Sierra, a Mexican national, was convicted of capital murder. During the investigation he was arrested and given his Miranda warnings, and Sierra gave a written confession of his involvement in the crime. Although the police knew he was a Mexican national, the Mexican consulate was never contacted and Sierra was never informed of his right to contact the consulate under Article 36 of the Vienna Convention. The Court of Criminal Appeals had previously held that a “treaty” was not a law for purposes of exclusion of evidence under Article 38.23 of the Texas Code of Criminal Procedure. However, the court asked for briefing on whether the Vienna Convention created a privately enforceable right in a criminal proceeding and, if so, whether a violation of that right justified the exclusion of a voluntary statement. Moreover, while the case was pending before the Court of Criminal Appeals, the United States Supreme Court granted certiorari to answer the very same questions.
Does the failure to inform a foreign national of his rights under the Vienna Convention or the failure to inform his consulate regarding his apprehension prior to taking a voluntary statement justify the exclusion of that statement?
yes ______ no ________
10
In October 2002, Marcus Druery went to the apartment of a friend known as “Rome.” Druery asked Rome to travel with him to Bryan, Texas. Rome hesitated at first but eventually agreed to go. Rome, who was known to have sold marijuana, took his cell phone, approximately $400 to $500, his gun, and some marijuana. This trip would be his last. Druery indicated that he and Rome went to Bryan and they partied into the night until Rome wanted to go home. According to Druery, Rome’s girlfriend picked him up in an orange Cadillac. The Texas Rangers were never able to locate an orange Cadillac. Druery’s ex-girlfriend, Joquisha Pitts, and Druery’s friend, Marcus Harris, told a different story. According to Pitts, Druery, Harris, Rome, and Pitts left a club in Bryan and drove out to some property owned by Druery’s family. While on the property, the group took turns shooting Rome’s gun at bottles they had thrown into the nearby stock pond. At this point, Druery informed Pitts that he intended to kill Rome to get his stuff, but Pitts thought he was only playing. She did notice that when they ran out of ammunition, Druery began wiping the bullets clean with a rag before he loaded them into the gun’s magazine. Then, as Rome lit a pipe filled with marijuana, Druery skulked up behind him and shot him in the head and neck. After Rome’s body had fallen to the ground, Druery fired another shot into his body. Pitts and Harris were screaming and crying hysterically, so Druery tried to calm them with $40 each. He had already retrieved Rome’s wallet, marijuana, cell phone, and gun. Soon afterwards, Druery obtained some gasoline. He poured it onto the body and set it ablaze. Later, he instructed Pitts and Harris on how to respond to police questions so that their stories were consistent. He also returned with Pitts the next day and burned the body a second time. Harris also assisted Druery in disposing of the murder weapon.
Were Pitts and Harris accomplices to the capital murder?
yes ______ no ________
Answers
1
Yes. The Court of Criminal Appeals held that a motorist violates the Transportation Code if she drives a car that sports a license place frame that obscures or partially obscures some aspect of the original design of the license plate. Here, the trial court had suppressed the evidence on the basis that motorist has not violated the law by decorating his license plate with a license plate frame that partial obscured an aspect of the original design. However, the Fourth Court of Appeals in San Antonio reversed the trial court by explaining that the legislature had changed the law in response to a federal case (U.S. v. Granado, 302 F.3d 421 [5th Cir. 2002] in case you are interested) that had interpreted the previous statute in favor of suppression. The Court of Criminal Appeals agreed with the court of appeals in a seven-vote majority opinion. The court also noted that the 5th Circuit itself had recognized that the legislative changes in the Transportation Code had proscribed the use of such license plate frames. The majority opinion also noted that there was a likelihood that some cars would not be in compliance with this statute. Interestingly, the concurring opinions were not as circumspect, demonstrating both a discomfort with an “uncommonly bad law” and a strong desire to use the phrase “doo-dad design” as often as possible. State v. Johnson, ______ S.W.3d ______, 2007 WL 461521 (Tex. Crim. App. February 14, 2007).
2
No. Roemer is not estopped from challenging the legality of his sentence. According to the Court of Criminal Appeals, Roemer’s sentence is illegal because the statutory provision that allows for enhancement with proof of a prior “involuntary” manslaughter conviction also requires proof of an additional conviction relating to the operating of a motor vehicle while intoxicated. The only way that Roemer’s DWI could have been enhanced with only one prior conviction was if that prior conviction was for “intoxicated” manslaughter. Because Roemer had previously been convicted of “involuntary” manslaughter under §19.05(a)(2) instead of “intoxicated” manslaughter under §49.08, his offense was not properly enhanced to a 3rd-degree felony, and his sentence was illegal. Moreover, Roemer was not estopped from challenging the legality of his sentence because there was no invited error in this case because Roemer did not ask for something, get what he asked for, and then complain about it. While he did plead guilty to an offense at a higher level than he was eligible, it was not invited error. And, as a final epilogue, the court determined that Roemer’s attorney was not constitutionally ineffective because he did base his advice to plead on existing caselaw, namely an unpublished case out of the First Court of Appeals. Ex parte Roemer, ______ S.W.3d ______, 2007 WL 601607 (Tex. Crim. App. February 28, 2007).
3
No. The trial court did not abuse its discretion by referring to K.T. as the victim in the jury charge. In this case, the court of appeals had reversed the case on two grounds, namely the introduction of pictures that the defense claimed were unfairly prejudicial and the inclusion of the word “victim” in the jury charge. According to the court of appeals, if the jury charge had simply required the jury to find that the defendant had administered GHB to K.T. with the requisite intent and without a reference to her as the “victim of the offense,” the jury charge would not have commented on the weight of the evidence. The Court of Criminal Appeals affirmed the conviction and reversed the court of appeals by upholding the admission of the photographs and the use of the word “victim” in the jury charge. As the Court of Criminal Appeals reasoned, Article 36.14 of the Code of Criminal Procedure required the trial court to charge the jury on the law applicable to the case, and the statute in question here, namely §22.021(a)(1)(A)(i), specifically made it a crime for someone to commit sexual assault by the administration of GHB to “the victim of the offense.” Because the State was required to prove the administration of GHB to a “victim” and because the inclusion of the word in the jury charge did not assume the truth of a controverted fact, the court affirmed the trial court’s inclusion of “victim” in the jury charge. Casey v. State, ______ S.W.3d _______, 2007 WL 601629 (Tex. Crim. App. February 28, 2007).
4
No. The addition of the phrase “according to my belief” in an inmate’s unsworn declaration attached to a motion for new trial does not invalidate an otherwise acceptable motion for new trial. According to the Court of Criminal Appeals, the addition of the phrase did not run afoul of §132.003 of the Texas Civil Practices and Remedies Code section dealing with unsworn inmate declarations. All that was required under §132.003 was that the unsworn declaration be written, that it was sworn to be true under the penalty of perjury, and that it substantially tracked the statutory language, “I … declare under penalty of perjury that the foregoing is true and correct.” Bahm’s declaration substantially complied with the statute and was therefore valid. Moreover, the Court of Criminal Appeals rejected the court of appeals reasoning that swearing that something is true and correct is not the same as swearing that you believe something is true and correct. According to the Court of Criminal Appeals, the perjury statute on its face applies equally to sworn affidavits and unsworn inmate declaration. The Court of Criminal Appeals explained the penalty of perjury language is entitled to great weight, while the phrase “according to my belief” is neither prohibited nor required. And, as if to add insult to injury, the court also noted that it uses the same “belief” language in its prescribed form for writs of habeas corpus, so invalidating Bahm’s declaration would mean the court had been requiring that inmates use a legally invalid form for their writs of habeas corpus. Finally, the court explained that Bahm’s assertions in his declaration that his attorney had not informed him of a plea offer was sufficient to show that reasonable grounds existed for a new trial. Consequently, the court of appeals decision was reversed and the case was remanded to the trial court for an evidentiary hearing on the motion for new trial. Bahm v. State, ____ S.W.3d _____, 2007 WL 601618 (Tex. Crim. App. February 28, 2007).
5
No. A trial court can grant a new trial based upon unpreserved error so long as the defendant’s substantial rights are affected. In reaching its decision, the Court of Criminal Appeals first points to the plurality opinion in State v. Gonzales for the oft-quoted proposition that a trial court has discretion to grant a new trial “in the interest of justice.” The court even cites no less of an authority than Charles Allen Wright for the proposition that a trial court can grant a new trial based upon errors that would not result in an appellate reversal so long as the trial court believed that the proceeding resulted in a “miscarriage of justice.” However, the court also notes that “interest of justice” does not include situations where a defendant’s substantive rights weren’t affected. All that is required is that the defendant articulate a valid legal claim in the motion, that he marshal evidence in the trial or outside the record to substantiate his legal claim, and that he show prejudice to his substantial rights. There is no requirement that a claimed error in a motion for new trial be preserved for appellate review before the trial court can consider it when hearing a motion for new trial. Thus, in this case, the court of appeals erred in determining that the trial court erroneously granted a new trial based upon an error that had not been preserved for appeal. State v. Herndon, ____ S.W.3d ____, 2007 WL 601625 (Tex. Crim. App. February 28, 2007).
6
Yes. In a unanimous opinion, the Court of Criminal Appeals held that Few’s notice of appeal was sufficient to invoke the court of appeals’ jurisdiction even though it was technically filed in the wrong case. Always eager to turn a phrase, the court in its majority noted that “to err is human, but to repair is now possible.” The 2003 amendments to the Texas Rules of Appellate Procedure allowed for the amendment of a defective notice of appeal at any time before an appealing party’s brief is filed. Moreover, everyone involved in the case had effectively conceded actual knowledge of exactly which conviction Few wanted to appeal. Indeed, the State’s motion to dismiss set out the defect with such particularity that it was impossible to doubt the State’s awareness that Few intended to appeal his conviction under the “05” cause number. Most importantly, the court noted its desire to be more like the Texas Supreme Court in situations like this by declining to elevate form over substance and by disfavoring the disposal of appeals based upon harmless procedural defects. Consequently, the court of appeals’ decision dismissing the appeal was reversed because Few’s notice of appeal was sufficient to invoke the jurisdiction of the court of appeals. Few v. State, ______ S.W.3d ______, 2007 WL 677230 (Tex. Crim. App. March 7, 2007).
7
Yes. Double jeopardy bars a third trial of Masonheimer because the first prosecutor intentionally withheld exculpatory evidence even though the second prosecutor did nothing wrong, knew nothing about it, and moved to correct the problem as soon as he found out about the evidence. First, the Court of Criminal Appeals acknowledged that it had overruled Bauder and adopted the federal constitutional standard for determining when retrial is barred after a defense-requested mistrial. Under this standard the court was required to determine if the prosecution’s conduct intentionally goaded the defense into requesting a mistrial. Central to this inquiry was the question of whether the first prosecutor had intentionally withheld exculpatory evidence in violation of Brady. Reasoning that the State encompasses the entire prosecutorial team, the court determined that because the first prosecutor had acted intentionally, the State’s attempts to put the defendant to trial for a third time should be prevented. While Judge Cochran pointed out in her dissenting opinion that withholding exculpatory evidence is not conduct that would “goad the defendant into moving for a mistrial,” the majority explained that Oregon v. Kennedy, the case setting out the federal constitutional standard for prosecution-induced mistrials, relied on cases where the Double Jeopardy Clause barred retrial because of intentional impropriety designed to avoid a defendant’s acquittal. Thus, looking at the evidence in a light most favorable to the trial court’s ruling, the prosecution was barred from trying Masonheimer again due to the intentional withholding of exculpatory evidence by the first prosecutor. Masonheimer v. State, _____ S.W.3d ______, 2007 WL 840780 (Tex. Crim. App. March 21, 2007).
8
No. The Court of Criminal Appeals affirmed the court of appeals’ opinion by holding that due process did not entitle Euler to a separate punishment hearing after a hearing on a motion to revoke. Probation may be revoked without violating due process as long as the State employs procedures that are fundamentally fair. In particular, where the factfinder has the discretion to continue probation after finding a probation violation, a defendant must be entitled to an opportunity to show not only that he didn’t violate probation, but also that he has a justifiable excuse for the violation or that revocation is not the appropriate disposition. In affirming the court of appeals, the majority explained that if Euler wanted to present punishment evidence on the motion to revoke, he should have been prepared to present that evidence upon the trial court’s finding that he had violated a condition of his probation. Moreover, the court explained that Euler’s reliance upon cases such as Duhart v. State and Issa v. State was misplaced because neither supports a claim that he was entitled to a separate hearing on punishment on a separate day. Four judges in a concurring opinion clarified that they agreed with the majority but wrote separately to explain that they did not believe Euler was entitled to a separate hearing at all because he had already been found guilty and sentenced pursuant to the plea bargain. Thus, at the very least, all of the judges unanimously agreed that due process does not entitle a probationer to a separate punishment hearing on a separate day after his probation is revoked. Euler v. State, ______ S.W.3d ______, 2007 WL 840493 (Tex. Crim. App. March 21, 2007).
9
Nope. Regardless of whether the Vienna Convention creates a privately enforceable right, a violation of that right does not justify the exclusion of an otherwise admissible and voluntary statement. In reaching its decision, the Court noted that the United States Supreme Court in Sanchez-Llamas v. Oregon and Bustillo v. Johnson had addressed the very same concerns and had determined that even if the Vienna Convention conferred privately enforceable rights in a criminal trial, it would not entitle a foreign national to exclude evidence obtained in violation of the treaty. The court also noted that it had addressed the issue extensively in Rocha v. State and reached the conclusion that the Texas exclusionary rule (Article 38.23 of the Texas Code of Criminal Procedure) did not apply to a violation of the Vienna Convention. Though the court recognized that a violation of the Vienna Convention could still play a part in a general attack on the voluntariness of a statement, it refused to hold that such a violation should invoke either the Texas or federal exclusionary rules. Thus, seeing no reason to reconsider its decision in Rocha, the court affirmed the court of appeals opinion that the trial court had not erred by admitting Sierra’s statement. Sierra v. State, _____ S.W.3d _____, 2007 WL 840483 (Tex. Crim. App. March 21, 2007).
10
No. Despite their assistance in the disposal of the body and the evidence, neither Pitts nor Harris were accomplices to the capital murder either as a matter of fact or as a matter of law. In his direct appeal of his capital murder sentence, Druery raised numerous issues, most of which stemmed from the claim that Pitts and Harris were accomplices either as a matter of fact or as a matter of law. While the trial court had instructed the jury to determine if Pitts and Harris were accomplices as a matter of fact, the Court of Criminal Appeals determined that they were not accomplices as a matter of fact or as a matter of law. To be an accomplice witness, a person must act with the requisite mental state and engage in an affirmative act to promote the commission of the offense with which the defendant is charged. Even if the witness knows about the offense and doesn’t disclose it (or conceals it), the witness is still not an accomplice. As the court summarized, if the witness cannot be charged with the offense that the defendant is charged with, the witness is not an accomplice. In this case, neither Pitts nor Harris were charged with capital murder. Even though Pitts drove Druery and Rome to the property where Rome was killed, there was no evidence she knew of Druery’s plans to murder Rome. Additionally, when Druery asked Pitts and Harris if they wanted any money, neither of them replied (he gave them $40 anyway). This evidence does not show that the two witnesses performed an affirmative act to assist in the commission of the offense. Moreover, their mere presence at the scene and their failure to warn Rome was not enough to establish them as accomplices either as a matter of fact or as a matter of law. Druery v. State, ______ S.W.3d ______, 2007 WL 984548 (Tex. Crim. App. April 4, 2007).