Page 77 - March April 2020 TPA

accomplice.” 1It is certainly understandable why, in this post-
If I were the defense attorney, I would not have conviction proceeding, Applicant is now taking the
wanted the jury to retire to deliberate thinking that position that he is entitled to a new trial because
I was trying to hedge my client’s bets at the last defense counsel was ineffective in not asking for
minute by having it both ways. I might have even the instruction.
felt compelled to spend part of my closing
arguments trying to clarify that we did not want the I think we should take the opportunity to file and
instruction and to emphatically emphasize that my set this case so that we can reexamine our decision
client’s ex-girlfriend could not have been an in Zamora to decide whether it should be overruled
accomplice because my client was not there. But to the extent that it holds that a defense attorney
such an attempt would likely be confusing and cannot strategically forego an accomplice-witness
unsuccessful given that the “accomplice bell” had instruction when the facts call for it. With these
already been rung. Instead, it would probably only comments, I respectfully dissent.
draw the jury’s attention to an issue that I never
wanted it to think about it in the first place. On the Ex Parte Ross, Applicant, Tex. Crim. App., No.
other hand, not attempting to clarify the comments WR-84,576-02, Feb. 12, 2020.
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.

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