OPINION ON REHEARING

Opinion on rehearing by Justice GARZA.

On the motion of appellant, Frederick W. Patterson, the en banc Court has reconsidered the merits of the instant appeal and now orders that the panel's opinion in this matter be withdrawn and that the following opinion by the en banc Court be issued in its place.

This appeal follows three convictions stemming from three controlled purchases of crack cocaine by Santos Castro Castaneda, a paid informant working for the Edna Police Department and the Jackson County Sheriff's Department. Castaneda made the purchases of crack cocaine through Acie Jones, Jesse Darnell Chase, and Lisa Robinson. The crack cocaine sold to Castaneda was allegedly supplied to Jones, Chase, and Robinson by appellant.

Appellant was indicted and convicted on three counts of delivery of a controlled substance and was sentenced to ten years' imprisonment for each offense, with the sentences to run concurrently. TEX. HEALTH SAFETY CODE ANN. § 481.002(8), (9) (Vernon Supp. 2006). Appellant was also assessed court costs in the amount of $140 and a fine of $2,000 for each offense. Appellant now challenges his conviction by two issues: (1) there is insufficient evidence to corroborate testimony given at trial by Castaneda, a paid informant, or testimony given by Jones, Chase, and Robinson, who are accomplice witnesses as a matter of law; and (2) counsel provided appellant with ineffective assistance at trial. For the reasons that follow, we affirm the judgment of the trial court.

Background

The three controlled transactions leading to appellant's arrest and convictions occurred over the course of two months. At trial, two officers from the Jackson County Sheriff's Department testified about how the transactions unfolded. Prior to each transaction, the officers met with Castaneda and searched her person, belongings, and vehicle for illegal drugs. None were found. An electronic audio transmitting and recording device (i.e., a wire) was then placed in her purse, and she was given money to purchase illegal drugs. The two officers then followed Castaneda at a generous distance, remaining in the same general area but often allowing her to move beyond their sight.

Castaneda approached numerous drug users and dealers and asked where she could purchase crack cocaine. Three of the individuals she approached (Jones, Chase, and Robinson) indicated that she could purchase crack cocaine from appellant. Each individual accompanied her to an area near appellant's house, where he or she took Castaneda's money and then went into appellant's house. Castaneda was left waiting in her car during all three transactions. Each individual subsequently returned to the car with crack cocaine, which they each indicated had come from appellant. After each transaction, Castaneda rendezvoused with the officers and delivered into their possession the crack cocaine she had purchased.

Throughout the investigation, the officers monitored the audio transmissions generated by the wire carried by Castaneda and were thereby able to listen to conversations she had with the various people with whom she came into contact. The conversations were primarily with Jones, Chase, and Robinson, though Castaneda did have two conversations with appellant, which are detailed below. The officers recorded the transmissions generated by the wire, and the recordings were played for the jury at trial. A transcript of the recordings was also admitted into evidence, along with the crack cocaine recovered by the officers after each transaction.

There was also trial testimony from Castaneda, Jones, Chase, and Robinson. Castaneda testified that she saw appellant at or near his house before or after each of the transactions, though she never saw the transactions, never saw appellant in possession of any crack cocaine, and never saw any exchange of money between appellant and Jones, Chase, or Robinson. Castaneda had a conversation with appellant before the first transaction, which was captured by the wire and is documented below. During that conversation, appellant did not directly respond to Castaneda's request for crack cocaine, though he did react to it. In a second conversation that occurred before the third transaction, Castaneda commented that appellant had been drinking too much alcohol. Based on the recording, appellant apparently did not respond to Castaneda's comment.

At trial, Jones, Chase, and Robinson testified that they purchased the crack cocaine from appellant and then gave it to Castaneda. For their part, the two officers involved in the operation testified that they never actually saw appellant during the transactions and never actually saw Castaneda come into contact with Jones, Chase, or Robinson. They also did not see Jones, Chase, or Robinson come into contact with appellant. One of the officers testified that he recognized appellant's voice during the following exchange documented on a recording generated during the first transaction:

Castaneda: What's up, [appellant's name]?

Appellant: (Inaudible)

Castaneda: Can you fix me up a tight fifty?

Appellant: You see that white boy on the corner? On that bicycle. (Inaudible)

The exchange then ended abruptly, with appellant driving off in his car ostensibly to avoid the "white boy on the corner."

In addition to the foregoing exchange, the recordings also contained numerous comments by Jones, Chase, and Robinson indicating that they could obtain crack cocaine from appellant and that the crack cocaine they ultimately sold to Castaneda had come from appellant.

This constitutes the entire record of evidence incriminating appellant in the transactions.

I. Corroboration of Testimony by Informant and Accomplices

Appellant's first issue is comprised of two sub-issues, one challenging the sufficiency of the evidence to corroborate the testimony of the informant (Castaneda) and the second challenging the sufficiency of the evidence to corroborate the testimony given by the three accomplice witnesses (Jones, Chase, and Robinson). At the outset, this Court must decide a preliminary question of law: may an informant corroborate the testimony of an accomplice and vice versa?

A. Corroboration Statutes

The legislature has mandated that a defendant may not be convicted based on the testimony of an informant except as follows:

(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.

TEX. CODE CRIM. PROC. ANN. art. 38.141 (Vernon 2005).

A similar provision restricts the use of testimony by accomplice witnesses:

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.

TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005).

Article 38.17 provides, "In all cases where, by law, two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction." See TEX. CODE CRIM. PROC. ANN. art. 38.17 (Vernon 2005).

B. Issue Preservation

The State contends that this Court should not address the merits of appellant's first issue because it was not preserved by a timely objection at trial. For the reasons that follow, we conclude that no timely objection at trial is required to preserve for appellate review complaints regarding the sufficiency of corroboration evidence.

In general, to preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context. TEX.R.APP. P. 33.1; see Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App. 2000). A party's failure to timely and specifically object at trial usually amounts to a procedural default that prevents review of the error on appeal. See Blue, 41 S.W.3d at 131. This is a general rule to which there are exceptions, as shown below.

Before addressing the question of issue preservation, we note that appellant is not challenging the trial court's failure to submit an accomplice-witness jury instruction, which would be a jury-charge error and could be raised for the first time on appeal. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Instead, appellant argues that there is insufficient evidence to corroborate the testimony of the informant and accomplices.

Although the State maintains that appellant was required to preserve this issue at trial, no authority is cited for this proposition other than the general mandate of rule 33.1. See TEX.R.APP. P. 33.1. We are unaware of any case precedent requiring that an objection be made to preserve a challenge to the sufficiency of corroboration evidence on appeal. Likewise, we are unaware of any case precedent holding that the issue can be raised for the first time on appeal.

Criminal defendants may bring challenges to the legal and factual sufficiency of the evidence on appeal without raising the issue at trial. See Moff v. State, 131 S.W.3d 485, 488-89 (Tex.Crim.App. 2004). But a challenge to the sufficiency of corroboration evidence is different than an ordinary legal or factual sufficiency challenge. See Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App. 1999). The informant-witness rule and the accomplice-witness rule are statutorily imposed and are not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Id. Thus, we cannot conclude, as appellant urges, that no objection is required to preserve the sufficiency of corroboration evidence simply because no objection at trial is required to bring ordinary challenges to the legal and factual sufficiency of the evidence.

Instead, we must turn to the law on procedural defaults to determine whether the issue can be raised for the first time on appeal. The court of criminal appeals has explained that the criminal justice system in Texas contains three distinct kinds of rules: (1) absolute requirements and prohibitions, (2) rights of litigants which must be implemented by the system unless expressly waived, and (3) rights of litigants which are to be implemented upon request and are otherwise forfeited. Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993), overruled in part by Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997); see also Garcia v. State, 149 S.W.3d 135, 144 (Tex.Crim.App. 2004). Rights which are waivable only, as well as absolute systemic requirements and prohibitions, cannot be made subject to rules of procedural default because, by definition, they are not forfeitable. Marin, 851 S.W.2d at 279; Garcia, 149 S.W.3d at 144. Therefore, to determine whether the sufficiency of corroboration evidence can be raised for the first time on appeal, we must decide whether the issue is subject to rules of procedural default by determining which category of rules it implicates.

As noted above, the provisions regarding corroboration of testimony by informants and accomplice witnesses are found in the code of criminal procedure. See TEX. CODE CRIM. PKOC. ANN. arts. 38.141, 38.14. The informant-witness provision states that a "defendant may not be convicted . . . unless the [informant's] testimony is corroborated by other evidence tending to connect the defendant with the offense committed." TEX. CODE CRIM. PROC.ANN. art. 38.141. The accomplice-witness provision contains a similar rule: "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. . . ." TEX. CODE CRIM. PROC. ANN. art. 38.14. If such requirements are not fulfilled, "the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction." See TEX. CODE CRIM. PEOC.ANN. art. 38.17.

From the foregoing provisions, it appears that the sufficiency of corroboration evidence is an absolute requirement and therefore falls in the first category. We are mindful that it could also fall in the second category because the provisions impose a duty on the trial court to render a judgment of acquittal sua sponte if the evidence is insufficient. See id.; Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App. 2004). The provisions do not use language such as "on motion of the defendant" or "on the defendant's request." There is no indication in the code of criminal procedure that sufficient corroboration evidence is required only if demanded by the defendant, and we are unaware of any case law requiring the defendant to speak up to enforce the corroboration requirements. We therefore disagree with the State's contention that the sufficiency of corroboration evidence cannot be raised for the first time on appeal.

Because appellant did not expressly waive the sufficiency of corroboration evidence at trial, this Court does not need to decide whether the issue falls in the first or second category. For the purposes of this appeal, we need only hold that the issue does not fall in the third category and is therefore not subject to procedural default. See TEX.R.APP. P. 47.1.

C. Accomplices as a Matter of Law

Before addressing the essential question raised by appellant's first issue, we must resolve an additional point, which, according to the State, would defeat appellant's first issue regardless of whether there was sufficient corroboration evidence. The State contends that Jones, Chase, and Robinson were not accomplices as a matter of law because, at the time of their testimony against appellant, they had already been indicted, tried, and convicted for delivery of a controlled substance. We disagree.

An accomplice is a person who participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state. Kutzner v. State, 994 S.W.2d 180, 187 (Tex.Crim.App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App. 1996)). The person's participation must involve an affirmative act that promoted the commission of the offense with which the accused is charged. Id. A person is an accomplice as a matter of law if he or she would be susceptible to prosecution for the offense with which the accused is charged or a lesser included offense. Id.; Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App. 1998). A co-indictee is an accomplice as a matter of law. Hendricks v. State, 508 S.W.2d 633, 634 (Tex.Crim.App. 1974).

Although the court of criminal appeals has used the expression "susceptible to prosecution" to describe an accomplice, the court has clarified that what it means by that expression is that "a person is an accomplice if there is sufficient evidence connecting them to the criminal offense as a blameworthy participant." Blake, 971 S.W.2d at 454-55. According to the court, "Whether the person is actually charged and prosecuted for their participation is irrelevant to the determination of accomplice status — what matters is the evidence in the record." Id. at 455. Accordingly, we conclude that there is no merit to the State's contention that a person ceases to be an accomplice upon conviction for the offense in which he or she was an accomplice. Given the ample evidence adduced at trial to show that Jones, Chase, and Robinson committed delivery of a controlled substance, the same offense with which appellant was charged, we conclude that they were accomplices as a matter of law and proceed to address appellant's first issue on the merits,

D. "Other Evidence" under Corroboration Provisions

We now address what constitutes "other evidence" under the corroboration provisions, or more specifically, what cannot constitute "other evidence" under the corroboration provisions. See TEX. CODE CRIM. PROC. ANN. arts. 38.141, 38.14. Appellant contends that the corroboration provisions should be applied together and that "other evidence" should therefore exclude evidence that needs corroboration under either provision. The State disagrees. It contends that the provisions should be applied independently. According to the State, accomplice testimony is "other evidence" under the informant-testimony provision, and informant testimony is "other evidence" under the accomplice-witness provision.

In deference to the legislature, which has already legislated in this area, and in deference to the court of criminal appeals, which will have the final say in how the provisions should be applied, this Court concludes that appellant's interpretation of "other evidence" is the interpretation that comports closest to existing legal precedent. Only appellant's position recognizes the inherent suspicion and disfavor owed as a matter of law to testimony from witnesses such as accomplices and informants, who are of dubious credibility, especially where such testimony is offered as the sole proof of guilt against the defendant. See Blake, 971 S.W.2d at 454.

Under the State's interpretation, an accomplice would be able to corroborate the testimony of an informant at trial. The same informant could then testify at the same trial to corroborate the same accomplice. In this circular fashion, a defendant could be convicted on nothing more than the testimony of an accomplice and an informant. This result would be absurd in light of the legislature's clear action to disfavor such evidence and to hold it insufficient for conviction as a matter of law.

Accordingly, in reviewing the record to determine whether there is "other evidence tending to connect the defendant with the offense committed," we exclude from consideration all testimony that needs to be corroborated under articles 38.141 and 38.14.

E. Review of "Independent" Evidence that "Tends to Connect"

The tends-to-connect standard presents a low hurdle for the State. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996); Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App. 1993). After all, the tends-to-connect evidence is unlikely to be the same evidence that proves guilt beyond a reasonable doubt. If the "other evidence" required by the corroboration statute were always sufficient for conviction, there would be no necessity for the State to ever rely on accomplice or informant testimony in the first place. No precise rule has been formulated as to the amount of evidence required to corroborate the testimony of such witnesses, but the Texas Court of Criminal Appeals has articulated some basic precepts for our assistance. Dowthitt, 931 S.W.2d at 249; Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994). The evidence used for corroboration does not need to be in itself sufficient to establish guilt beyond a reasonable doubt. Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559; Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App. 1992). Nor must it directly link the accused to the commission of the offense. Dowthitt, 931 S.W.2d at 249; Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559; Cox, 830 S.W.2d at 611. While the accused's mere presence in the company of the accomplice or informant before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence, coupled with other suspicious circumstances, may tend to connect the accused to the offense. See Dowthitt, 931 S.W.2d at 249; Gill, 873 S.W.2d at 49; Cox, 830 S.W.2d at 611. Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. See Dowthitt, 931 S.W.2d at 249; Munoz, 853 S.W.2d at 559. The absence of "smoking gun" evidence does not invalidate evidence that does connect the defendant to the offense. Trevino v. State, 991 S.W.2d 849, 852 (Tex.Crim.App. 1999).

Having reviewed the "independent" evidence in this case, we conclude that the record presents the additional "suspicious circumstances" that, when coupled with the appellant's "mere presence," are sufficient for corroboration purposes. See Dowthitt, 931 S.W.2d at 249; Gill, 873 S.W.2d at 49; Cox, 830 S.W.2d at 611. We are mindful that these circumstances are not necessarily proof of guilt beyond a reasonable doubt, and do not list them as such. They are simply "suspicious circumstances" that were established by the evidence at trial:

(1) Law enforcement agents successfully recovered crack cocaine on three separate occasions in which they instructed the same confidential informant to purchase crack cocaine while secretly carrying a wire.

(2) Audio recordings generated by the informant's wire captured most of her conversations with the three accomplices who testified at trial.

(3) The audio recordings demonstrate that, on all three occasions, the informant asked one of the three accomplices to help her purchase crack cocaine.

(4) Each accomplice made statements on the audio recordings indicating that appellant could provide the crack cocaine on each date in question.

(5) The recordings indicate that the accomplices each took the informant to locate appellant and that each attempt to purchase crack cocaine ended at appellant's home, where the recordings demonstrate that the informant and accomplices succeeded in purchasing crack cocaine from appellant.

(6) Throughout the recordings, the accomplices and the informant refer to appellant as the source of the crack cocaine purchased by the informant on all three occasions.

(7) Appellant's voice is confirmed on recordings generated prior to two of the drug buys.

(8) On the first occasion in which appellant's voice is confirmed, the records demonstrate that the informant openly asked appellant for drugs and that appellant responded with a suspicious statement to the effect that he was concerned about a "white boy on the corner."

(9) In the foregoing exchange, appellant did not deny having drugs or deny that he sells drugs.

(10) Appellant's voice was also confirmed on the date of the third transaction, but this recording of appellant's voice merely confirms his presence at a bar before the transaction at his home.

(11) The law enforcement agents who monitored the informant's activities on all three occasions testified that they secured crack cocaine from the informant's possession immediately after the transactions that, according to the recordings, were completed at appellant's home.

(12) The law enforcement agents testified that, although they did not remain in visual contact with the informant and accomplices during the transactions, they could independently verify that the transactions occurred at or near appellant's home.

Although there is nothing we would call a "smoking gun" in the factors listed above, the court of criminal appeals has stated that sufficient tends-to-connect evidence may sometimes be comprised of seemingly "insignificant circumstances." See Dowthitt, 931 S.W.2d at 249; Munoz, 853 S.W.2d at 559. The suspicious circumstances in this case are far from insignificant. Because the independent evidence "tends to connect" appellant to the offenses at issue, his challenge to the sufficiency of the evidence is overruled.

II. Ineffective Assistance of Counsel

In his second issue, appellant contends that his trial counsel was ineffective for failing to request a jury instruction on informant and accomplice witness corroboration. The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, an appellant must prove by a preponderance of the evidence that (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient representation prejudiced appellant's defense. Id. at 688, 104 S.Ct. 2052; Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999). To carry this burden, an appellant must show that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). In other words, the appellant must prove counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686, 104 S.Ct. 2052. If, however, "there is at least the possibility that the conduct could have been legitimate trial strategy," then we must "defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Murphy v. State, 112 S.W.3d 592, 601 (Tex.Crim.App. 2003).

Our review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct fell within the wide range of reasonable representation. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Tong, 25 S.W.3d at 712. An appellate court should not use hindsight to second-guess the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim.App. 1979); Harner v. State, 997 S.W.2d 695, 704 (Tex.App.-Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).

Although counsel's failure to object to the jury charge in this case was a "glaring error," see Robinson v. State, 665 S.W.2d 826, 831 (Tex.App.-Austin 1984, pet. ref'd) (stating that counsel's failure to request a charge pursuant to article 38.14 when it was clear that witness was accomplice witness as a matter of law was a glaring error, but finding that representation was not ineffective because there was ample corroboration by other evidence), we cannot conclude that counsel's deficient representation prejudiced appellant's defense. As discussed above, the State produced ample corroboration evidence. We therefore cannot conclude that, but for the counsel's deficiency, the result of the trial would have been different. See Tong, 25 S.W.3d at 712. Accordingly, appellant's second issue is overruled.

The judgment of the trial court is affirmed.

Concurring Opinion by Justice ERRLINDA CASTILLO.

Dissenting Opinion by Justice LINDA REYNA YAÑEZ.