Long v. State , 2000 Tex. App. LEXIS 159 ( 2000 )

OPINION

Opinion by Justice ROSS.

James Long appeals his conviction for capital murder, with a sentence of life imprisonment. See Tex. Pen.Code Ann. § 12.81(b) (Vernon 1994).

About 6:00 a.m. on Saturday, September 21,1996, Robert Madura, the manager of a Walgreens store in Montgomery County, arrived at the store. He noticed that the alarm had not been activated. When he walked into the office, he found one of his assistant managers, John Cedars, lying dead on the floor. The sum of $2,831.46 was missing from the office safe. Cedars’ wallet was also missing.

Medical evidence showed that Cedars had died instantly from a gunshot wound to the head. The weapon had been fired from one to two inches away.

Long contends that the trial court erred in refusing his request for jury instructions on accomplice witness testimony regarding two of the State’s witnesses, Billy Woodard and Jeremy Scardino.

An accomplice witness is a witness at trial who participated with a defendant before, during, or after the commission of a crime. McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App.1996); Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App.1986); Howard v. State, 972 S.W.2d 121, 125 (Tex.App.-Austin 1998, no pet.). A conviction cannot be had on the testimony of an accomplice witness unless corroborated by other evidence tending to connect the defendant with the offense committed. Corroboration is not sufficient if it merely shows the commission of the offense. Tex.Code CRIm. PROC. Ann. art. 38.14 (Vernon 1979); Howard, 972 S.W.2d at 125-26. The so-called “accomplice witness rule” is not mandated by the United States Constitution or the common law. Rather, it reflects a legislative determination that accomplice witness testimony im-pheating another person should be viewed cautiously due to the incentive to lie to avoid punishment or shift blame to another person. Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App.1998). The rule requires the jury to receive and act on such testimony with caution, considering the selfish interests and possibly corrupt motives of the witness. Howard, 972 S.W.2d at 125.

A person is an accomplice if there is sufficient evidence connecting him or her to the criminal offense as a blameworthy participant. Blake, 971 S.W.2d at 455. The participation necessary to be considered an accomplice must involve an affirmative act or omission by the witness to promote the commission of the offense. Id. at 454; McFarland, 928 S.W.2d at 514. The test is whether there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice. Whether the person is actually charged and prosecuted for his or her participation is irrelevant; what matters is the evidence in the record. Blake, 971 S.W.2d at 455. Witnesses may be accomplices as a matter of law. If there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law, the trial court is under a duty to so instruct the jury. Blake, 971 S.W.2d at 455. One who is or may be indicted for the same offense with which a defendant is charged, or for a lesser included offense based on alleged participation in the commission of the greater offense, is considered an accomplice as a matter of law. Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex.Crim.App.1991). If' evidence presented by the parties is conflicting, it is proper to leave the question of whether an inculpatory witness is an accomplice witness as a matter of fact to the jury, under instructions defining the term accomplice. Blake, 971 S.W.2d at 455; see Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App.1987).¹

It is also clear who is not an accomplice witness: a person who is merely present at the scene of an offense is not an accomplice. Blake, 971 S.W.2d at 454; one is not an accomplice for knowing about a crime and not disclosing it, or even concealing it. Id.; Kunkle, 771 S.W.2d at 489. If the evidence is clear that the witness is not an accomplice witness, 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 whether the witness is an accomplice witness. Gamez, 787 S.W.2d at 822.

WITNESS BILLY WOODARD

Billy Woodard was a Mend of Long and shared an apartment with him for several months, including the relevant time period. The testimony showed that Woodard overheard Long and Eddie Brown² discussing the possibility of robbing the Walgreens store but, at the time, Woodard did not believe they were serious. On the evening of the robbery and murder, Long returned to the apartment and told Woodard what had happened, and showed him the money, ski masks, and victim’s wallet taken in the robbery. Woodard further testified that Long told him the details of the murder. Later, Woodard met with Long at the home of Jeremy Scardi-no’s grandmother, where Woodard testified that Long gave the money and other items from the robbery to Jeremy Scardi-no, so Scardino could dispose of them. Woodard said that he did not go to the police earlier because he was raised in a neighborhood and environment which fostered distrust and animosity toward law enforcement.

The evidence in the record does not demonstrate that Woodard could be considered an accomplice or that he assisted Long in the planning or carrying out of the robbery and murder. There was certainly no basis to, and the State did not, charge Woodard with capital murder or any lesser included offense. The record shows that, at most, Woodard was aware of the offense, did not disclose it, and may have concealed it. Under the cited authority, this does not make him an accomplice and would not entitle Long to an instruction on accomplice witness testimony. The trial court did not err in refusing to instruct the jury regarding Woodard as an accomplice witness.

WITNESS JEREMY SCARDINO

At the time of trial, Jeremy Scar-dino lived in Austin, Texas. He was a good Mend of Woodard and knew Long. He also knew Brown, but not well. Sear-dino went to Woodard and Long’s apartment about a week before the robbery and murder, and heard Long discuss the possibility of robbing the place where Brown worked.

Later on the same day of the robbery and murder at Walgreens, Long and Woodard visited Scardino at his grandmother’s house in Spring, Texas. Scardi-no testified that during this visit Long told him that he and Brown had committed the robbery and murder at Walgreens, and that Long asked him to hold the money and dispose of other items from the robbery. Long then gave Scardino the money, along with ski masks, a lock, a wallet, and some pieces of paper. Scardino immediately threw away the masks and the lock while at his grandmother’s house. At that time, he was living in an apartment in Houston, where he took the money and wallet. Later, he threw the wallet in the dumpster at Long’s apartment.

Long later contacted Scardino and told him to give the money to Brown. Scardi-no and Brown met at a restaurant near Scardino’s apartment. Brown drove up in his car, and Scardino handed the money to him through the car window.

Scardino gave authorities a written statement after he entered into an immunity agreement with the Montgomery County District Attorney’s office.

The record does not show that Scardino was an accomplice as that term has been considered in Texas law. Scardino did not assist either Brown or Long in planning the robbery and was not involved in the execution of the plan or the resulting homicide. There was no basis on which the State could charge Scardino with capital murder or with any lesser included offenses arising out of the robbery and murder. As with Woodard, the most that can be said is that Scardino knew about the crime, did not disclose it, and possibly concealed it. Under the authority previously cited, these actions are not sufficient for Scardino to be considered an accomplice. The trial court did not err in refusing Long’s request for an accomplice witness instruction with respect to Scardino’s testimony.

Long also contends that the trial court erroneously denied his challenges for cause regarding two prospective jurors.

Long’s trial counsel made the following request, which was denied by the trial court:

Your Honor, at this time before she calls out the strikes, the defendant would make a motion to the Court to have the Court grant us at least two more strikes for peremptory challenge for the Court denying, in our view improperly, the challenges for cause that we made to several of the jurors; and we would ask the Court to grant us two additional strikes, because we’ve had to use strikes on jurors that the Court in our mind should have excused for cause.

When the trial court erroneously overrules a challenge against a veni-reperson, a defendant is harmed only if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of a strike. Error is preserved for review on appeal only if appellant: 1) used all of his peremptory strikes, 2) asked for and was refused additional peremptory strikes, and 3) was then forced to take an identified objectionable juror whom the defendant would not otherwise have accepted. McFarland, 928 S.W.2d at 508; Chambers v. State, 866 S.W.2d 9, 23 (Tex.Crim.App.1993); Garcia v. State, 960 S.W.2d 329, 331 (Tex.App.Corpus Christi 1997, no pet.).

While the record shows that Long requested additional peremptory strikes, the record does not show that Long had used all of his strikes and, further, does not show that he was forced to take an identified objectionable juror. Long does not identify any objectional juror or jurors. Under the above-cited authority, Long has failed to demonstrate how he was harmed by the alleged error. These points are, therefore, denied.

Long further contends that the trial court erred and abused its discretion in excluding the testimony of Raymond Phillips and Jamie Donohue. The exact ruling by the trial court was as follows:

Okay. The Court’s ruling remains the same. The proffered bill, the Court finds, is not relevant to the issues the jury is called upon to decide. To the extent it has any probative value for •these issues, the prejudicial effect is— substantially outweighs any probative value it may have for the issue the jury is to decide.

I want the counsel to understand I’m not ruling on the truth, believability or otherwise of these witnesses. It concerns the Court, the testimony that’s been elicited; but as far as what this jury is to determine, that’s my ruling.

In the course of the discussion on whether to allow the jury to hear Phillips’ and Donohue’s testimonies, the trial court stated:

Well, it would be relevant had the State put on Phillips and attempted to obtain •some testimony from him relevant to this case. The State did not, I assume because they found out the guy says he now lied under oath on this statement.

■ You now want to build a sandcastle so you can knock it over. I’m not going to let you do that. It’s irrelevant at this point.

Rule 401 of the Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401; see Lum v. State, 903 S.W.2d 365, 371 (Tex.App.-Texarkana 1995, pet. ref'd). In order to be included in this definition, the proffered evidence must have influence over a consequential fact, i.e., any fact that is of consequence to the determination of the action. Mayes v. State, 816 S.W.2d 79, 84 (Tex.Crim.App.1991); Wells v. State, 880 S.W.2d 185, 187 (Tex.App.-Texarkana 1994, pet. ref'd). Questions of relevance should be largely left to the trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App.1993); Wells, 880 S.W.2d at 188. Appellate review of the trial court’s rulings admitting or excluding evidence are subject to an abuse of discretion standard. Rachal v. State, 917 S.W.2d 799, 816 (Tex.Crim.App.1996). If the trial court’s decision is within the bounds of reasonable disagreement, the appellate court will not disturb the trial court’s ruling. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). Raymond Phillips testified as follows by way of a bill of exception and out of the jury’s presence:

Around April 1997, he resided in the same apartment as did Long. At his apartment, Phillips was placed in a police car and taken to the Montgomery County Law Enforcement Center in Conroe. He was taken into a small room and interrogated by a detective of the Montgomery County Sheriffs Department. Initially the detective, who is African-American, sought to be friendly with Phillips, who is also African-American. However, this friendly demeanor disappeared as the detective sought information from Phillips regarding Long’s involvement in the Walgreens robbery and homicide. Phillips was questioned as to how he could be good friends with a “white guy.” When Phillips told the detective he did not know anything about the robbery and murder, the detective refused to believe him. Phillips was handcuffed, and a piece of paper was put' in front of him. He was told to write a statement regarding what he knew concerning the robbery and murder at Walgreens. 'When Phillips wrote “I don’t know” on the paper, the detective crumpled it and threw it away. Phillips was given another piece of paper, and the detective left the room. On returning and discovering that Phillips had written, again, that he did not know anything, the detective became very upset. Phillips said that the detective is a large, muscular individual and was angry. Phillips said he was in handcuffs and was frightened and intimidated. The detective then began illustrating with his finger, jabbing at Phillips’ head, how someone, like the victim in this case, could be shot in the head. Phillips was again asked to write what he knew, and when Phillips again said that he did not know anything, the detective kicked the chair from under Phillips, causing him to fall to the floor. He then jerked Phillips up by the handcuffs and told him what to write. After Phillips had written this statement, he was taken back to his apartment, where he told his apartment manager, Jamie Donohue, about the incident. Phillips’ written statement (which was not introduced as evidence by the State at trial) was, according to Phillips, completely false.

After being subpoenaed by the district attorney’s office to testify in this case, Phillips was told to talk to the assistant district attorney in charge of the prosecution. Phillips went to the attorney’s office with Woodard. Phillips told the attorney that the written statement was false and told him the circumstances under which it was given. The attorney told Phillips that he thought his treatment was wrong and that they did not intend to call him as a witness, but that he did not want to get involved with that particular detective. He told Phillips that the detective was in the building in which they were meeting; he also told Phillips to file a complaint. The attorney then said, “Well, fuck it. Let’s go home.”

Jamie Donohue testified, also under a bill of exception and out of the jury’s presence, as follows:

She was the manager of the apartment building in which Phillips lived in April 1997. She saw the Montgomery County sheriffs car being driven away with Phillips inside. She spoke with Phillips after he returned and observed that he was very upset. She also observed that the T-shirt he was wearing was stretched out of shape and there were red marks on the side of his neck.

We must determine whether the trial court abused its discretion by not admitting this testimony. If the State had called Phillips as a witness, or if it had attempted to introduce his written statement into evidence, then the determination whether the statement was made voluntarily would not only have been relevant, but constitutionally required. See Crane v. Kentucky, 476 U.S. 683, 687-88, 106 S.Ct. 2142, 90 L.Ed.2d 636, 643 (1986). However, the State did not introduce Phillips’ testimony, and there was no testimony that similar interrogation techniques were utilized to obtain information from the other key witnesses in the case.

In United States v. Wickersham, 29 F.3d 191 (5th Cir.1994), the Fifth Circuit upheld the ruling of the district judge barring admission of evidence of alleged pros-ecutorial misconduct. The appellant’s attorney had wanted to introduce at trial the testimonies of the co-defendant’s attorneys, whom he contended would testify that a United States attorney threatened a witness with indictment if he did not change his grand jury testimony. After an evidentiary hearing, the district court found that no threats had been made, but also held that such evidence was not relevant. Id. at 193-94.

Phillips’ intimidation, if it occurred, should be condemned as inappropriate conduct. It was not, however, a matter that would aid the jury because Phillips’ testimony was not before it. The trial court did not abuse its discretion, and these points of error are overruled.

Long further contends that the trial court committed reversible error in sustaining the State’s objection to Kelly Hendricks’ testimony regarding the specific polygraph questions asked of Brown. Long contends that such evidence should have been admitted under the rule of optional completeness, which provides that:

When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.

Tex.R. Evid. 107. Long claims that according to this rule, the State “opened the door” to such testimony when Detective Bryan Dubose testified on direct examination that Brown had failed his polygraph test. Long contends that the specific questions asked, and the techniques employed by Kendricks, the polygraph expert, would demonstrate for the jury exactly how Brown had lied, particularly, “the jury may have been left with the false impression that Brown failed [the polygraph test] because he lied about excluding Appellant.”

During the direct examination of Du-bose, the assistant district attorney asked him why he had accompanied Brown to Houston. Dubose testified that, because Brown had failed his polygraph test, Du-bose wanted to get more information from Long about Brown’s potential involvement in the case. Long did not object to the introduction of this testimony. During the direct examination of Brown, the assistant district attorney inquired of Brown whether he had been given a polygraph test, to which Brown responded in the affirmative, and further asked Brown if he had been told how he did on the test, to which Brown responded that he had failed it. Once again, Long did not object to the introduction of Brown’s polygraph examination results.

The appellate courts of this state have uniformly refused to permit the results of polygraph examinations to be admitted at trial, for either the defendant or the State. Robinson v. State, 550 S.W.2d 54, 59 (Tex.Crim.App.1977); Romero v. State, 493 S.W.2d 206 (Tex.Crim.App.1973) (lie detector test results not admissible, even by stipulation). Because of their inherent unreliability and tendency to be unduly persuasive, polygraph examination results are inadmissible on proper objection for any purpose in a criminal proceeding. Marcum v. State, 983 S.W.2d 762, 765 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd); see also Nethery v. State, 692 S.W.2d 686, 700 (Tex.Crim.App.1985); Banda v. State, 727 S.W.2d 679, 681 (Tex.App.-Austin 1987, no pet.).

However, Long insists that once the State introduced the results of the polygraph examination into evidence, it “opened the door” to further inquiry into this subject and further inquiry was the allowable way to remedy the false impression the testimony left with the jury. The general idea behind this proposition is that once one party has begun an inquiry into a particular subject, that party cannot complain when the opposing party desires to go into the details of that subject. Evidence used to fully explain a matter opened up by the other party need not ordinarily be admissible. Parr v. State, 557 S.W.2d 99, 102 (Tex.Crim.App.1977). Long contends that by not allowing him to clarify why Brown failed the polygraph test, the jury may have been left with a false and harmful impression that all Brown had been asked about was his involvement, and that this testimony, with nothing more, would allow the State to benefit unfairly from normally inadmissible, unduly persuasive evidence.

In certain limited instances, it is true that polygraph evidence, which was erroneously admitted at trial, has “opened the door” to further inadmissible evidence regarding the polygraph results. See Lucas v. State, 479 S.W.2d 314, 315 (Tex.Crim.App.1972); Patteson v. State, 633 S.W.2d 549, 552 (Tex.App.-Houston [14th Dist.] 1982, no pet.). However, these cases are distinguishable from the case at hand. In the Lucas case, the defendant, testifying on his own behalf, stated that he had made an agreement with the district attorney to take a polygraph test, that the district attorney had agreed that if he “passed” the test his case would be dismissed, and that the results of the test showed that he was not guilty. Thereafter, the Texas Court of Criminal Appeals held that the state should be allowed to introduce evidence that the defendant, in fact, did not pass the polygraph test. Lucas, 479 S.W.2d at 315. Allowing an opposing party to correct a misstatement of the results of a polygraph examination, though, is very different from the circumstances of the case at hand.

In the Patteson case, a court of appeals also allowed further explanation by the state of polygraph examination results after the results were first introduced into evidence by the defendant. In this case, the defendant successfully, and incorrectly, persuaded the trial court that his polygraph evidence was admissible since this was a nonjury trial. Patteson, 633 S.W.2d at 551. Additionally, it is important to note that when the defendant originally attempted to introduce this evidence, the state did object. Id. at 550. Therefore, due to the circumstances surrounding the introduction of the polygraph results in the Patteson case, and due to the fact that the opposing party lodged an objection to the introduction of this evidence, this case is distinguishable from the case at hand.

In the instant case, Long never objected to the inadmissible polygraph evidence when it was introduced by the State. To preserve error, it has been consistently held that one must object each and every time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991). This rule remains true with regard to testimony regarding polygraph examination results. See Leach v. State, 548 S.W.2d 383, 385 (Tex.Crim.App.1977); Banda, 727 S.W.2d at 681. Long should have objected to all references that were made regarding polygraph results in order to preserve error for review. See Leach, 548 S.W.2d at 385; Banda, 727 S.W.2d at 681. Further, had Long properly objected to the testimony regarding Brown’s polygraph examination results and insisted on a mistrial, Long would have been entitled to receive this mistrial. When a defendant immediately objects to testimony that reveals the results of a polygraph test of the defendant or other crucial witness, the harm is so great that it cannot be cured by an instruction to disregard. Nichols v. State, 378 S.W.2d 335, 337-38 (Tex.Crim.App.1964); Banda, 727 S.W.2d at 682. In such circumstances, the defendant is entitled to a mistrial. See Banda, 727 S.W.2d at 682.

Long did not choose to object to this inadmissible testimony. He did not choose to move for a mistrial, to which he was entitled. Instead, he attempted to use the rule of optional completeness to mitigate damage done by the very inadmissible evidence that he willingly allowed to be introduced. The rule of optional completeness does not and should not work to reward this type of behavior. In other similar types of situations, when a party should have objected to the introduction of inadmissible evidence that was presented, and failed to do so, that party has not been allowed to present additional improper evidence under the guise of rebuttal. See Nixon v. State, 653 S.W.2d 443, 444 (Tex.Crim.App.1983); White v. State, 590 S.W.2d 936, 937 (Tex.Crim.App. [Panel Op.] 1979); Wiggins v. State, 778 S.W.2d 877, 892 (Tex.App.-Dallas 1989, pet. ref'd) (these cases all deal with means of impeaching a person’s character and hold that a party who does not object to inadmissible evidence when it is introduced may not then impeach that witness with other inadmissible evidence on rebuttal). In this situation, Long was rightfully prevented from introducing additional inadmissible evidence of Brown’s polygraph test to counteract the inadmissible evidence that he willingly allowed the State to introduce into evidence. The trial court excluded the inadmissible evidence concerning the polygraph test at the first opportunity it had to do so, and if Long was truly concerned about the false impression that the inadmissible polygraph evidence was going to leave in the minds of the jurors, then he should have objected to. the introduction of this evidence and demanded a mistrial. By not doing so, Long, has missed his opportunity to receive a new trial.

Additionally, even if the trial court did in fact err by not allowing Long to clarify why Brown failed the polygraph examination, this error did not affect Long’s substantial rights. A substantial right is affected “when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557, 1572 (1946)). In Kotteakos, the United States Supreme Court explained the standard of review as follows:

If, when all is said and done, the [reviewing court] is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand,.... But if one cannot say, with fair assurance, after pondering • all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.

Kotteakos, 328 U.S. at 764-65, 66 S.Ct. 1239.

In the case at hand, even if the trial court erred by excluding evidence of the specific questions given to Brown on the polygraph examination, the effect this had on the jury’s verdict was slight, at most. Long argues that excluding this evidence left the false impression with the jury that Brown failed his polygraph test because he lied about whether Long had committed the murder, when in fact the test indicated that he failed the polygraph test because he lied about his own involvement in the murder. However, there is no reason to assume that the jury inferred any such thing from the disclosure of these polygraph results and, in fact, in the context of the questions that were asked regarding Brown’s failure of the polygraph examination, it seems more likely that the jury would have inferred exactly the opposite of what Long is contending. The context of the questions logically point to the fact that Brown failed the test because he was lying about his own involvement in the murder, not Long’s. For example, during the direct examination of Dubose, the following exchange took place:

Q And why did you and Detective Ervin go to Houston?

A Because Eddie Brown had failed his polygraph, and we wanted to get more details from Mr. Long concerning that night when he picked Eddie up.

Q You wanted to speak to James Long again?

. A Correct.

Q And what specific details did you want to ask him about? What other information, further information, did you hope to receive from the defendant?

A Well, we wanted to know, you know, exactly what happened again that night; if he picked him up, if he [Brown] was outside, where he [Brown] was located, if he [Brown] had anything with him and what they had done.

Then, during the direct examination of Eddie Brown, the following testimony was given:

Q You lied to cover up your involvement in this incident?

A Yes, sir.

Q Were you given a polygraph test?

A Yes, I was.

Q Did they tell you how you did on the polygraph?

A They told me that I failed it.

Q And did the detectives try and interrogate you and try to get you to give them a confession that day?

A Yes, sir, they did.

Q But you continued to deny your involvement in this; is that right?

A Yes, sir.

Finally, Long called Dubose back to the stand, and during this examination the discussion went as follows:

Q Of course, as early as September the 24th, maybe even earlier, but at least September 24, 1996, the investigation towards Mr. Brown had turned dramatically, had it not, sir?

A Correct.

Q Now, he was not only just a suspect — I mean, just a witness; he had— the pendulum was now pointing to him as a suspect, correct?

A Correct.

Q In fact, it was so bad that his— suspect-wise, that Detective Ervin read him his rights after he failed the polygraph.

A Correct.

When the testimony regarding the polygraph examination was given, it was clear that Brown failed this test because he was lying about his own involvement. The testimony even went so far as to state that when Brown failed the polygraph he, not Long, was the suspect in this murder investigation. There is no reason that the jury would have been left with a false impression regarding why Brown failed this polygraph examination, and the fact that the court excluded the specific questions asked of Brown during this test does not affect Long’s substantial rights. This point of error is overruled.

The judgment of the trial court is affirmed.

Dissenting Opinion by Justice GRANT.

1 . In Marlo v. State, 720 S.W.2d 496 (Tex.Crim.App.1986), the Texas Court of Criminal Appeals, in a 5-4 decision, reversed a murder conviction because the trial court failed to submit to the jury the fact issue of whether two key witnesses were accomplices. In that case, the evidence showed that both witnesses were present at the murder scene; that a "common understanding” existed between the appellant and the two witnesses that some offense would be committed; that use of deadly force was contemplated, however jokingly; and that both had participated in the disposal of the body, one of them even washing out the bed of the truck afterward. On the other hand, both witnesses asserted that they never anticipated a murder and that they assisted in the coverup only because they were afraid of the appellant. The majority opinion held that, notwithstanding the fact that these assertions were uncontradicted, they "could very well have been discounted under the circumstances presented in this case," id. at 500, and "[w]hether there existed 'a common understanding, or proof of criminal intent’ on the parts of [the witnesses] to commit murder ... was properly an issue for resolution by the juiy, and the trial court erred in not submitting that issue accordingly....” Id. at 501. The dissenting opinion, finding no conflict in the witnesses’ testimonies, would not have required submission of the accomplice factual issue to the jury. Id. at 503-04 (Onion, J., dissenting). Subsequent cases citing Mario have emphasized that where there is no conflict in the evidence regarding whether the witness is an accomplice, the trial court may properly refuse to submit that issue to the jury. See, e.g., Herrick v. State, 825 S.W.2d 215, 218 (Tex.App.-Houston [1st Dist.] 1992, no pet.).

2 . Eddie Brown was a key witness against Long, and he participated in the robbery. As an employee of the Walgreens store, he allowed Long to enter the premises after all other employees had departed and, for a time, pretended to be another victim of the robbery. In his testimony, Brown acknowledged his complicity in the robbery, but denied any preconceived intent to kill Cedars. Brown was allowed to plead guilty to aggravated robbery in return for his testimony.