### 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 PRESI D ING

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 an d six through ele ven . While I agree that R uffins ’ s fifth issue should be overruled, I do not agree that the re w as no erro r in the jury charge as concluded by the Cour t

.

In his fifth issue, Ruffins asserts that the trial c ou rt ’ s j ury charge setting out the accomplice

- wi tn ess i nstructions for David H og arth and co defendant Gustavo Trevino contains

error because it d id not ins truct th e jury that it must first believe that the accomp lice witness testimony is true

. See Tex. Code Crim . Proc. art. 38.14. For the reasons set out in my origi nal

concurrence before remand, I still believe that the omission is error unde r t h e present state of the law. See Ruffins v. State , 613 S.W.3d 1 92, 217

- 2 1 ( Tex. App.

— Austin 2020 ) ( “ Ruffins I ” )2

(Baker, J., concurring) , rev ’ d , 666 S.W.3d 636 (Tex. Crim. App. 2023) ( “ Ruf fins II ” )

. If the
belief inst ruction is no longer requi red or ne ed e d ( and p erh aps neve r was ) , that clarification
need s to come from t he Court of Criminal Appeals. Cf. Cortez v. State , No. 0 9

- 01

- 00193

- CR, 2002 WL 1040248, at * 2 (Tex. App.

— Beaumont May 22, 2002, no pet.) ( op., not designated for publication) (noting tha t “ a n inter m ed iate cou rt 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 )

.

E ven though I believe the jury charge c on tained error , I woul d b e unable to
susta in Ruffins ’ s fifth issue on appeal because I do not belie ve the error harmed Ruffins. When
I explained in my previous concurrence that this error harmed Ruffins, my primary concern

was how this error compoun ded an additional error in th e ac compl ic e - witnes s instruction for Hogarth. See Ruffin s I , 613 S.W.3d at 221. However , as the Court correctly determines, Ruffins was not entitled to an accomplice

- w itness instruction for Hogarth because he was not an accomplice, and the i nclusion of a n instru c ti on for H ogarth, even an erroneous one, o nly
benefitt ed Ruffins. In the absence of a need for an instruction for Hogarth and the potential need
for corroboration of his tes timony, I do not believe that Ruffins was egregiously harmed by the

err or i n the i ns truction s for Trevino. See As ton v . State , 656 S.W.2d 453, 456 (T e x. 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 f ir s t witnes s ’ s testim ony co uld, therefore, corroborate actual accomp lice ’ s testimony).

For these reasons, I respectful ly concur with the Court ’ s overruling of Ruffins ’ s fifth issue on appeal and otherwise join the opinion.3 _______________________ ________ ___________ Thomas J. Baker , J ustice
Before Chief Justice Byrne, Ju stices Baker and Kelly
Filed: August 14, 2020 Publish