¶1dissenting.
¶2I dissent. The majority refuses to hold that Dianna Mitchell was an accomplice as a matter of law despite clear and convincing evidence of the fact. Furthermore, the State failed to produce evidence that a deadly weapon was used or exhibited. The judgment of the trial court should be reversed. At minimum we should modify the judgment to delete the affirmative finding on the use of a deadly weapon.
¶3*457Mitchell herself provides the testimony that establishes her culpability. She stated that she knew of the plans to “hit two dykes.” She knew that this meant robbery. The disproportionate reward of $500 merely for knocking on a door strongly suggests an understanding that illegal activities were being pursued. Mitchell witnessed the appellant and Kitchens arm themselves before approaching complainant’s door at 3:30 in the morning and she proceeded to carry out her part of the bargain by knocking and attempting to persuade complainant to open the door while her armed companions remained out of sight. She even falsely employed the name “Susan” when asked who she was. When the police arrived, she hid first under a mobile home and then in the van. She continued to assist the fleeing men by implicating a fictitious “John” in the crime.
¶4Beyond doubt, Mitchell was an actor; she was more than a mere observer. Her actions in knocking on the door while her companions waited to force their way in made her into an active participant in the episode for which appellant was tried, the only legitimate question raised by the majority opinion is whether or not she was coerced into assisting the would be burglars. Suffice to say, she never directly testified that she was coerced. Although only nineteen, she was worldly enough to agree to voluntarily climb into a van with two men at the hour of midnight in return for the promise of five hundred dollars just to knock on a door. The circumstances under which she signed aboard this voyage bespeak nefarious conduct. Bear in mind that according to her own admission, the crew made several stops. Between midnight and three a.m., she never asked to be released from her bargain. She never asked to be taken home. She gave no testimony of a direct threat. In the three hours of meandering about in the van, she voluntarily engaged in a sex act with Kitchens. Although she testified that she was frightened while knocking on the door of the mobile home, she admitted on cross examination that she was not afraid of her companions; her fright is referable only to the circumstances — circumstances under which anyone with good sense would feel the pangs of fright.
¶5The amount of money promised, the activities and conversations prior to arrival, the fact that this activity occurred in the middle of the night, her flight, and her initial false statements to the police, taken together, reject the notion that she was acting under duress, subject to coercion of a nature sufficient to destroy her free will. Had she been a co-indictee, her testimony would have been entirely adequate to sustain a conviction. She was, as a matter of law, an accomplice.
¶6The majority is doubtless correct when it states that the question whether a witness is an accomplice is ordinarily reserved for the trier of fact. However, I do not share the majority’s concern for the right of trial by jury. History clearly teaches that jury trial was forged as a safeguard for individual liberty against the excesses of government. We do not limit that right when we hold that the evidence will not sustain a conviction. Where the evidence clearly establishes that a witness is an accomplice as a matter of law, we are under the duty to so declare. Allen v. State, 461 S.W.2d 622, 624 (Tex.Crim.App.1970).
¶7It is difficult to imagine a more clearly established case of criminal responsibility than the one before us. The quoted testimony, shows nothing more than her apprehension concerning the consequences, should she refuse to carry out her part of the offense. The record reveals no threat and no violence by either of these men to force Mitchell to begin or continue her criminal conduct. Certainly a conspirator on the threshold of the offense is likely to harbor fears that backing out of the crime would bring reprisals from his confederates. Such apprehension hardly provides a defense to criminal responsibility.
¶8The author is aware of the cases holding that the question whether a witness is an accomplice should be submitted to the jury even if the evidence prepondates in favor of a witness being an accomplice. In each *458case, however, the alleged accomplice or other witness gave exculpatory testimony. The cases merely recognize that the jury is free to believe a witness’s plea of innocence. But here, the testimony of Dianna Mitchell herself shows her to be a willing participant in a criminal endeavor. The evidence being clear, the trial court was obligated to instruct that she was an accomplice as a matter of law.
¶9In the following instances, reversal is required if the trial court fails to instruct the jury that the witness is an accomplice as a matter of law is reversible: (1) if the witness is, in fact, an accomplice and there is no evidence to corroborate his testimony, or (2) without the testimony there is insufficient evidence to support a conviction or (3) because it is the sole corroboration of the testimony of another accomplice witness. Gonzales v. State, 441 S.W.2d 539, 541-542 (Tex.Crim.App.1969); Morales v. State, 663 S.W.2d 150, 151 (Tex.App.—Corpus Christi 1983, no pet.).
¶10Without Mitchell’s testimony, the case against appellant collapses. The state can only point to his arrest some four hours after the burglary in the general area in a bedraggled condition. The resulting situation meets the second prong of the Gonzalestest. Without Mitchell, there is insufficient evidence to support a conviction and this court should order an acquittal.
¶11Neither can this writer find evidence to support the finding that appellant used or exhibited a deadly weapon. This phase of the case turns upon the proper definition of the term “used.” The federal cases relied on by the majority involve the construction of a federal criminal statute. They are not controlling. Neither are they persuasive.
¶12Mitchell testified that appellant and Kitchens had a rifle and pistol when they exited the van. Police found a gun at the rear of the complainant’s mobile home. However, complainant never saw a weapon, was not threatened by one and was unaware that appellant possessed a gun. In fact, the complainant was not aware of appellant’s presence. She testified that she only saw one man outside the trailer. No evidence indicated that any guns were taken into the mobile home.
¶13The record is barren of any suggestion that the gun or the rifle were “exhibited.” The inquiry narrows to the question whether either of them was, “used” in the commission of the offense within the sense contemplated by the statute. Black’s Law Dictionary defines “to use” as “to make use of, to convert to one’s service, to avail one’s self of, to employ.” Webster’s Ninth New Collegiate Dictionary states that “use” employed as a verb means “to put into action or service, avail oneself of, employ.” Undoubtedly these definitions reflect the common understanding of the term.
¶14Here, the weapons formed no operative part of the offense. No evidence indicates that guns were fired or deployed as a threat. The offense would have occurred in the same way had appellant been totally unarmed. Certainly, it is unnecessary that a weapon be fired for it to have been “used.” May v. State, 660 S.W.2d 888, 889 (Tex.App.—Austin 1983, pet. granted). However, the author believes that the complainant or some other innocent person at the scene of the crime must be made aware of the presence of the weapon and placed in apprehension before it can be declared, within the statutory concept, that the weapon has been used. An aggravated robbery conviction has been upheld where a gun was concealed in a black bag, but even though the gun never left the bag, the witness was able to identify it as a pistol. Riddick v. State, 624 S.W.2d 709, 710-711. (Tex.App.—Houston [14th Dist.] 1981, no pet.). This knowledge coupled with a threat supplied the aggravating circumstances. Id. at 711.
¶15This Court upheld an aggravated assault conviction where a man armed with a shotgun accosted a restaurant employee in a freezer. He neither pointed the gun at the complainant nor threatened to use it, but kept it within the complainant’s sight. “It was the presence of the gun in appellant’s hand that installed fear in the complainant and made her feel threatened with bodily *459injury.” Again, the weapon played a visible role in the offense. Gaston v. State, 672 S.W.2d 819, 821 (Tex.App.—Dallas 1983, no pet.).
¶16In another case, an indictment for aggravated robbery alleged that a deadly weapon had been used and exhibited. The evidence showed that the defendant’s confederate had held another employee at gunpoint while the defendant robbed the complainant. The complainant knew that the confederate was armed but was unaware that he was holding her co-worker. The court refused to find the necessary elements of aggravation in the robbery because the complainant did not know of the weapon’s use by the co-defendant and the defendant’s threat to the complainant was not a threat to use deadly force. Taylor v. State, 637 S.W.2d 929, 931-932 (Tex.Crim.App.1982).
¶17Possession of weapons did not affirmatively aid the appellant in committing the offense. The firearms were not fired, aimed or employed as instruments of intimidation. The majority takes the position that a gun has been used wherever the defendant commits an offense while armed, but if this was the intent of the Legislature, it could have so stated. See People v. Chambers, 7 Cal.3d 666, 102 Cal.Rptr. 776, 498 P.2d 1024 (1972). Criminal statutes are not to be expanded by construction. I would hold that the statute requires active use — the gun must constitute some operative part of the offense.
¶18This interpretation is consonant with the language of the entire statute. The statute applies not only to guns but to all “deadly weapons”, with specific reference to the definition contained in TEX.PENAL CODE § 1.07(a)(ll). The statutory definition of “deadly weapon” includes “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” If we extend the “no-parole” statute to cases where the defendant merely possessed an arguably deadly weapon, we reach a situation of circuity: The article was used because it was in defendant’s possession at the time of the offense and it is deadly because it was used. The Legislature could not have intended to go so far.
¶19The author further notes Mitchell’s testimony that Kitchens tapped on the complainant’s home with the pistol. However, there is no suggestion that the occupant was made aware that the tapping was being done with a gun. Neither is there testimony that actors were attempting to make complainant aware of his possession of the gun nor place the complainant under apprehension of its use. The gun was merely being employed as a tool, a hammer. The guns, in their capacity as firearms, played no operative part in the offense. Possession at the time of the crime, standing alone, does not meet the requirement as the “no-parole” statute.
¶20The affirmative finding should be deleted from the judgment.