“You’re an accomplice.” “If you knew, and did nothing, you’re an accomplice.” Often enough, these phrases seem to come out of the mouths of police officers. Similarly, prosecutors often seem to believe that anyone in the car or at the scene is an accomplice.
If only life were so simple for them. As any frequent reader of my blog might have guessed by now, these statements aren’t quite as a black and white as law enforcement would have you believe.
What is an accomplice?
An accomplice is an individual who participates with the defendant before, during, or after the commission of a crime, AND acts with the requisite culpable mental state. Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App. 2006). But being an “accomplice” is about more than simply being with the defendant and participating in the offense. For example, a person is not merely an accomplice because he happens to be the passenger in a vehicle that has just robbed a bank, and sped away—such person is, perhaps, a “hostage,” but is not an accomplice.
Participation AND Culpable Mental State
An accomplice must both participate and do so with the requisite culpable mental state. Thus, where a witness, Clem, was present when the drugs were initially purchased; and later paid a driver money to drive Defendant (charged with first-degree felony possession of a controlled substance with intent to deliver) away from the scene of an accident where the drugs were later found, the Court of Appeals was left to conclude that: “[w]ithout evidence that Clem intended by her conduct to help [Defendant] possess…the drugs that were left at the scene of the accident, we cannot conclude that Clem encouraged or aided Korell in committing the charged offense.” See: Korell v. State, 253 S.W.3d 405 (Tex.App.—Austin, pet. ref’d. 2008)(emphasis added). Because Clem lacked the requisite culpable mental state, she could not be an “accomplice.”
Intent may be proven by circumstantial or direct evidence. Louis v. State, 329 S.W.3d 260, 268-69 (Tex.App.—Texarkana 2010), aff’d, 393 S.W.3d 246 (Tex.Crim.App. 2012). So, in the earlier example of the passenger, the State would have to prove that (1) the passenger somehow participated in the robbery (for example, in the planning of, or escape from), AND did so with the culpable mental state—i.e. did not do so under coercion, distress, or did so mistakenly or such.
Affirmative Act Required
So what level of action or involvement in the offense is required? The accomplice’s participation must be some affirmative act that promotes the commission of the offense with which the defendant is charged. Blake v. State, 971 S.W.2d 451, 454-55 (Tex.Crim.App. 1998). So, to continue with the example provided above, if the passenger begins shouting directions to the driver to guide the escape, or tosses the bank bang from the window, the passenger has done some affirmative act that promotes the commission of the offense (robbery) and might properly be labeled an “accomplice.” Note that I wrote “to guide the escape”—this is important because it shows that the passenger has the requisite culpable mental state; i.e. he intends the same criminal objective as the driver, and acts with the same intent to commit that criminal objective.
A person can be determined to be an accomplice as a matter of law if the person could be prosecuted for the same offense that the defendant is charged with, or a lesser included offense of that offense. Cocke, 201 S.W.3d at 747. Additionally, the jury can find that a person acted as accomplice as a matter of fact. Id. Meaning, the Court can determine that an individual is an accomplice (provided the criteria above are satisfied), or, the jury can determine that an individual is an accomplice.
Does merely being present make a person an “accomplice”?
No. The law is abundantly clear on this. “Mere presence at a crime scene does not make an individual an accomplice.” Cocke, 201 S.W.3d at 748; Korell v. State, 253 S.W.3d 405, 410 (Tex.App.—Austin, pet. ref’d. 2008); Meyers v. State, 626 S.W.2d 778, 780 (Tex.Crim.App. 1982). The State is required to prove participation and the participation with the culpable mental state required for the offense—not simply that the accused person was at the scene of the crime.
Does failing to disclose to the police knowledge of a crime make a person an “accomplice”?
No. A person is not an accomplice simply because “he has knowledge about a crime and fails to disclose it.” Cocke, 201 S.W.3d at 748; Korell, 253 S.W.3d at 410. This means that simply failing to report to the police that a crime has been committed does not make a person an accomplice to the crime. So, the statement that “If you knew, and did nothing, you’re an accomplice” is patently untrue. If Person A lives with Person B at a trap house where Person B sells drugs, then Person A is not simply an accomplice because Person A fails to call the police and report Person B.
Furthermore, a person’s complicity with the defendant in the commission of another offense, apart from the offense charged, does not make the person an “accomplice.” Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App. 2004); Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App. 2007); Korell, 253 S.W.3d at 410. If Person A (our drug dealer) and Person B (his roommate) hatch a plan to steal a car, and do so, the fact that Person B was complicit in stealing a car does not mean Person B is somehow now magically an accomplice to the drug dealing.
Now you know…don’t let the police or anyone else tell you otherwise.
Also, for purposes of housekeeping: Effective June 26, 2015 my office will move from its current address to 903 EAST ELM STREET, DENTON, TEXAS 76201. It’s a few blocks further down Elm Street, and will be a larger building and larger office.