Does Mere Presence During Crime Make Person Accomplice ?
A person is an accomplice if he participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense. Blake v. State, 971 S.W.2d 451, 454-455 (Tex.Cr.App. 1998).
Mere presence during the commission of the crime does not make one an accomplice, nor is one an accomplice for knowing about a crime and failing to disclose it, or even concealing it. Id. at 454.
Even where the evidence shows that the witness was present during the commission of the crime and participated in concealing that crime, such evidence is not sufficient to raise the issue of accomplice status. Medina v. State, 7 S.W.3d 633, 641 (Tex.Cr.App. 1999).
A defendant is entitled to an accomplice-witness instruction if and only if there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice. Id.
If a State's witness has no complicity in the offense for which an accused is on trial, his testimony is not that of an accomplice witness whatever may have been his complicity with the accused in the commission of other offenses. Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987).
If the evidence is clear that the witness is not an accomplice, no instruction need be given to the jury either that the witness is an accomplice as a matter of law or in the form of a fact issue as to whether the witness is an accomplice. Id.