TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON REMAND

NO. 03-18-00540-CR

Anthony Ruffins, Appellant

v.

The State of Texas, Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY

NO. CR2016-614, THE HONORABLE DWIGHT E. PESCHEL, JUDGE PRESIDING

C O N C U R R I N G O P I N I O N

I agree with the Court’s analysis and join the Court’s opinion regarding issues two 

through four and six through eleven. While I agree that Ruffins’s fifth issue should be overruled, 

I do not agree that there was no error in the jury charge as concluded by the Court.

In his fifth issue, Ruffins asserts that the trial court’s jury charge setting out the

accomplice-witness instructions for David Hogarth and codefendant Gustavo Trevino contains 

error because it did not instruct the jury that it must first believe that the accomplice witness 

testimony is true. See Tex. Code Crim. Proc. art. 38.14. For the reasons set out in my original 

concurrence before remand, I still believe that the omission is error under the present state of the 

law. See Ruffins v. State, 613 S.W.3d 192, 217-21 (Tex. App.—Austin 2020) (“Ruffins I”)
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(Baker, J., concurring), rev’d, 666 S.W.3d 636 (Tex. Crim. App. 2023) (“Ruffins II”). If the 

belief instruction is no longer required or needed (and perhaps never was), that clarification 

needs to come from the Court of Criminal Appeals. Cf. Cortez v. State, No. 09-01-00193-CR, 

2002 WL 1040248, at *2 (Tex. App.—Beaumont May 22, 2002, no pet.) (op., not designated for 

publication) (noting that “an intermediate court of appeals cannot abandon a requirement 

imposed by the Court of Criminal Appeals” and that “it is for the Court of Criminal Appeals” to 

change its prior requirements).

Even though I believe the jury charge contained error, I would be unable to 

sustain Ruffins’s fifth issue on appeal because I do not believe the error harmed Ruffins. When

I explained in my previous concurrence that this error harmed Ruffins, my primary concern 

was how this error compounded an additional error in the accomplice-witness instruction for 

Hogarth. See Ruffins I, 613 S.W.3d at 221. However, as the Court correctly determines, Ruffins 

was not entitled to an accomplice-witness instruction for Hogarth because he was not an 

accomplice, and the inclusion of an instruction for Hogarth, even an erroneous one, only 

benefitted Ruffins. In the absence of a need for an instruction for Hogarth and the potential need 

for corroboration of his testimony, I do not believe that Ruffins was egregiously harmed by the 

error in the instructions for Trevino. See Aston v. State, 656 S.W.2d 453, 456 (Tex. Crim. App. 

1983) (noting that trial court erred by including accomplice-witness instructions for first witness 

because first witness was not accomplice and concluding that first witness’s testimony could, 

therefore, corroborate actual accomplice’s testimony).

For these reasons, I respectfully concur with the Court’s overruling of Ruffins’s 

fifth issue on appeal and otherwise join the opinion.
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__________________________________________

Thomas J. Baker, Justice

Before Chief Justice Byrne, Justices Baker and Kelly

Filed: August 14, 2020

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