¶1concurring.
¶2En banc consideration of the second point of error was requested.
¶3A majority of the Court voted to consider point of error two en banc.
¶4The remainder of the opinion, which is a three-judge panel opinion, does not meet the criteria for publication, and is ordered not to be published. TEX.R.App.P. 47.
¶5concurring.
¶6Until this case, the requirement of corroboration of accomplice witness testimony in Texas arose solely from a statute. Article 38.14 of the Code of Criminal Procedure provides, “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” TexCode Crim. P. Ann. art. 38.14 (Vernon 1979) (emphasis added). Because an affirmative finding of a deadly weapon is not a conviction, article 38.14 does not require that accomplice witness testimony proving the use of a deadly weapon be corroborated. See and compare Soliz v. State, 171 Tex. Crim. 376, 350 S.W.2d 566, 567 (1961) (accomplice witness testimony supporting revocation of probation need not be corroborated); Stevenson v. State, 997 S.W.2d 766, 770 (Tex.App.-Houston [1st Dist.] 1999, pet. ref d) (accomplice witness testimony establishing extraneous offenses at the punishment stage need not be corroborated).
¶7In deciding that accomplice witness testimony proving extraneous offenses at the punishment stage of a death penalty case need not be corroborated, the Texas Court of Criminal Appeals held that article 38.14 applies only to convictions. The court reasoned that it was up to the legislature to expand or restrict the scope of article 38.14. See Thompson v. State, 691 S.W.2d 627, 634 (Tex.Crim.App.1984). In clear contradiction of the high court’s reasoning, the main opinion expands the scope of article 38.14 to require corroboration of accomplice witness testimony establishing the affirmative finding of a deadly weapon. Even if it were proper for us to do this, there is no reason to do so in this case where the result is the same whether we apply article 38.14 as written, or as expanded by the main opinion. With this unauthorized and unnecessary expansion upon the legislature’s intent, I vigorously disagree.
¶8We should hold that accomplice witness testimony establishing the use or exhibition of a deadly weapon for purposes of an affirmative finding need not be corroborated. Because appellant does not claim that the uncorroborated accomplice witness testimony was insufficient to support the trial court’s affirmative finding of a deadly weapon, we should overrule appellant’s second point of error. I cannot join the majority opinion’s holding that the affirmative finding of a deadly weapon, something that is not a conviction, must be supported by corroborated accomplice witness testimony.
¶9The main opinion raises the specter of unreasonable results to which this concurring opinion would lead in two situations. First, if the majority had concluded the evidence was insufficient to support the guilty verdict, the affirmative finding would somehow survive. This is unlikely because normally we would reverse without even reaching the issue of an affirmative finding. Second, where the jury had found the accused guilty of the lesser offense of robbery or theft, the trial court could still enter an affirmative finding. Yet, how could the trial court have entered an affirmative finding the jury, as trier of fact at guilt and punishment, had never made? The main opinion raises impossible scenarios and attributes them to the concurring opinion that proposes no such things.
¶10*830What I propose is simply to apply the statute as it is -written, and in the way in which it has consistently been applied. In this case, it makes no difference in the result, because the accomplice witness was corroborated. There may be cases, however, where the confusion caused by the main opinion’s expansion of the statute will cause a court to question whether an affirmative finding of a deadly weapon, or some other non-conviction matter, ought to be treated as a conviction so as to require corroboration of accomplice witness testimony establishing the matter. Accordingly, I can only concur with the result of the main opinion regarding point of error two, while I join the remainder of the opinion.
¶11Chief Justice SCHNEIDER and Justices HEDGES and NUCHIA join the concurring opinion on point of error two.
¶12OPINION ON REHEARING
¶13We overrule the State’s “Motion for Rehearing and Motion for Rehearing En Banc,” noting we agree with the State that non-accomplice corroborative evidence merely has to tend to connect the defendant to the offense; accomplice testimony need not be corroborated as to every element of the offense charged. See Tex. Code Crim. P. Ann. art. 38.14 (Vernon 1979); McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997); Thomas v. State, 993 S.W.2d 392, 393 (Tex.App.—Eastland 1999, no pet.). Because the non-accomplice evidence was sufficient to connect appellant to the bank robbery, the accomplice witness testimony was properly considered for all purposes.