"The Waco Court of Appeals erred in holding, without formal charges, an accomplice witness can only be classified as a matter of fact and cannot be an accomplice as a matter of law."
Ash was convicted of possession of over 41 grams of cocaine that was found in the passenger side door panel of his Suburban. There were five people in the vehicle; Ash was a passenger at the time, seated in the middle row on the driver's side next to his ex-girlfriend. Only Ash was charged. The four others testified against Ash. Ash was denied an instruction on accomplice as a matter of law as to all the passengers. He refused an instruction on accomplice as a matter of fact.
The court of appeals affirmed. Noting some inconsistency, it held that the Court of Criminal Appeals currently requires that a witness actually be charged with the same or a lesser-included offense as the defendant to be an accomplice as a matter of law. Reviewing for egregious harm for the unrequested instruction on accomplice as a matter of fact, it found the non-accomplice evidence was not so unconvincing as to render the State's overall case clearly and significantly less persuasive.
Ash argues that the most recent case on the issue, Zamora v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013), held that a witness who "could have been so charged" as the defendant is an accomplice as a matter of law. In his view, everyone present could have been charged. His ex-girlfriend admitted accompanying Ash to purchase drugs in the past, obtained a large amount of cash that night at an ATM, and had smoked marijuana and made a furtive gesture at the time of the stop. But all had proximity to the cocaine and the other three admitted to or were caught with Xanax that night and witnessed the cash being counted. Ash argues that this proves "some harm" from being denied an instruction on accomplice as a matter of law.