APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE
TENTH COURT OF APPEALS FALLS COUNTY
issue in this case is whether the court of appeals erred when
it held that a witness cannot be an accomplice as a matter of
law unless the witness is charged with the same offense as
the defendant or a lesser-included offense. We conclude that
it did err in so holding, but we nonetheless affirm its
Josh Tulloch initiated a traffic stop after observing a
Suburban driving with "its high beams on." When he
approached the vehicle, he saw five people in the car and
could smell the odor of burnt marijuana emanating from an
open window. Tulloch decided to remove everyone from the car.
As a passenger in the second row of seats was getting out of
the vehicle, Tulloch saw her wipe a green substance, which he
thought was marijuana, off of her clothing. Tulloch detained
everyone and searched the vehicle. During his search, he
found cocaine in the door panel of the front passenger-side
door, which was found to weigh approximately 41.63 grams.
Even though everyone was arrested, only Ash was charged with
possession of cocaine.
convicted of possession of cocaine over four grams but less
than 200 grams with the intent to deliver and was sentenced
to 30 years' confinement and fined $5, 000. See
Tex. Health & Safety Code § 481.112(a) & (d).
Ash appealed, arguing that he was entitled to
accomplice-as-a-matter-of-law instructions as to each
passenger, or at least accomplice-as-a-matter-of-fact
instructions. The court of appeals, however, affirmed the
judgment of the trial court. Ash v. State, No.
10-14-00405-CR, 2016 WL 455121, at *2 (Tex. App.-Waco Feb. 4,
2016) (mem. op., not designated for publication).
Subsequently, Ash filed a petition for discretionary review,
which we granted, asking us to examine the court of
appeals' holding that a witness cannot be classified as
an accomplice as a matter of law in the absence of formal
25, 2014, Ash was at the Pretty Lady's Gentlemen's
Club in Killeen when he ran into an acquaintance who was
dancing at the club, Deondra Kierra Medford (Medford). Ash
told Medford that there were better opportunities for her and
her friends to make money dancing in Houston than at Pretty
Lady's. He offered to give them a ride the next
day because he needed to go to Houston to finish some
business anyway. Medford's friends were Keandra Jennings
(Jennings) and Demarshaye Alexander (Alexander). Neither of
them had ever met Ash. Because it was raining hard the next
day, however, Ash decided not to go to Houston, and the
dancers found a ride to Austin where they planned to hang
out. The following morning, Ash and his girlfriend, Jefferi
Varnado (Varnado), picked up the three dancers in Austin, and
they headed to Houston. Ash was driving a Suburban with three
rows of seats.
dancers testified that when the group arrived in Houston, it
was too early for them to dance in any of the clubs, so Ash
decided to drive around to find some Spice (synthetic
marijuana) that he could buy. After he found some, Ash
suggested that the group go to Crockett, where he was from,
to hang out with "country boys." Everyone agreed,
and while Ash drove them to Crockett, the dancers smoked
marijuana and Varnado smoked some of the Spice.
to Varnado, Ash drove to Crockett weekly to buy drugs from
his brother, Ju Ju. Arriving in Crockett, the group briefly
stopped at a park and then headed to Moon's house. (Moon
was Ash's friend.) Ash told the dancers that they could
go inside to shower and freshen up before they went to the
club later that evening. The dancers had never met Moon, but
they agreed to take showers at his house while Ash and
Varnado went to Walmart to pick up a money order. Ash and
Varnado were gone for about an hour and a half before they
came back and picked up the dancers.
leaving Moon's house, the group went to Ash's
brother's house. Once they arrived, Ash told the girls
that they could go into the house to get something to eat.
Everyone went inside except for Varnado, who stayed in the
vehicle. Once inside, the dancers saw Ju Ju counting cash on
a table and taking some sort of notes. Alexander testified
that she believed he said that the cash totaled $4, 000. Ju
Ju then began making sexual comments directed at Medford
while referencing how much money he had. After a brief
conversation with Ju Ju, the dancers got some food in the
kitchen and went outside to eat in the car. Ash joined them a
few minutes later after he got into an argument with the
woman who was his connection to the Houston strip club.
Because of the argument, the girls were not going to be able
to dance at the club in Houston, so Ash asked them what they
wanted to do.
suggested that they to go to a club in Crockett, which they
did. After the dancers talked to a few people and had a
drink, they walked outside. Ash came outside later and began
arguing with them about whether the group should go back to
Killeen or on to Houston. They decided to go back to Killeen,
but first the dancers wanted to buy some Xanax. After driving
around for awhile, they ended up back at the club where they
found someone who would sell them Xanax. The dancers bought
two pills each.
group then headed to Killeen. Initially, Ash was driving,
Varnado was in the front-passenger seat, and Alexander,
Jennings and Medford were in the second row. Alexander sat in
the middle with Jennings to one side and Medford to the
other. As they were driving, Medford took a Xanax and moved
to the third-row seats to go to sleep. Shortly thereafter,
Ash asked the others if one of them would drive the rest of
the way. Jennings offered to drive because she had not taken
any Xanax, and Ash agreed. Alexander moved into the
front-passenger seat, and Ash and his girlfriend moved into
the second-row seat.
Jennings drove through Marlin, a small town close to Killeen,
she had her high beams on as they passed a Marlin police
officer. Officer Josh Tulloch initiated a traffic stop and
approached the Suburban on foot. He smelled the odor of burnt
marijuana emanating from the vehicle after Ash rolled down
his window and stated, "Hey, you pulled us over because
of high beams, huh?" While Tulloch checked
Jennings's license, his partner, Officer James West,
arrived. Both officers approached the vehicle and West
removed Alexander from the front-passenger seat. During this
process, West noticed one of the dancers in the back of the
car was "stuffing something under her seat, " so
the police removed everyone else from the vehicle. While
Varnado was getting out of the vehicle, Tulloch noticed that
she had a green substance on her clothing. As she was wiping
the substance off, she told the officers that it was tobacco.
Jennings, Alexander, Varnado, and Ash were all removed from
the vehicleand detained, Tulloch began searching the
SUV. He started at the passenger's side of the vehicle.
While searching, Alexander asked the officers for her
cigarettes, which were in the Suburban. Tulloch searched for
them but instead found a white plastic bag in "the door
jamb, where the door ends." He opened the bag and found
what he believed to be cocaine. At that point, Ash started
yelling at the other passengers to "claim your
stuff." Everyone denied knowing what the substance was
or whose it was. The police arrested everyone, but only Ash
was indicted for possessing the cocaine.
appealed his conviction, arguing that he was harmed when the
trial court overruled his request for accomplice-witness
instructions. Ash, 2016 WL 455121, at *1. The lower
court, however, did not reach Ash's
accomplice-as-a-matter-of-fact issue because it was not
preserved at trial. Before addressing Ash's
accomplice-as-a-matter-of-law complaint, the court of appeals
set out the applicable law. It explained that a witness is an
accomplice as a matter of law if he has been charged with the
same offense as the defendant or a lesser-included offense.
Id. at *2. It also noted that a witness is an
accomplice as a matter of law if he was charged, but the
charges were dismissed in exchange for testifying against the
defendant. Id. In a footnote, the lower court stated
that, "[t]he Court of Criminal Appeals has vacillated on
whether a person who could be charged with the same
or lesser included offense is an accomplice as a matter of
law. The Court's current case authority does not include
this type of witness as an accomplice as a matter of
law." Id. at n.1 ...