Defendant and two women drive out of town to buy several ounces of meth.One of the women is a confidential informant and has informed the local authorities who wait for them to come back into town and then stop for a traffic violation. Defendant , driver tosses the meth to the front passenger (CI)who tosses it back saying that she hadn't bought into it. Defendant then tosses it to the backseat passenger who panics and sticks it down her bra.They are searched and the dope is given to the officer by the backseat passenger who tells him that it's not hers but the defendants.CI confirms the hot potato with the meth scenerio in her stmt. The CI only gives info informally ie no contract and was not wired but is and has been credible.Judge thinks it's an instructed verdict because both women are accomplices as a matter of law and the Defendant's mere presence is not enough to convict him. I disagree because of the CI's testimony.What do you think?

I don't think the temporary possession of the dope by the CI would make her an accomplice as a matter of law unless she did something else to further the purchase or possession. If someone throws dope at me and I catch it and throw it back, I would hate to think I would be guilty of a crime. Is it possible to give the jury an instruction and let them decide whether the CI is an accomplice instesd of an instruction that the CI is an accomplice as a matter of law?

The CI is an accomplice witness only if the jury finds that she was a party to the offense of possession by the defendant. Since she denies intending to promote or assist the defendant (and there is considerable evidence to corroborate her claim), surely the judge cannot determine as a matter of law that her testimony is subject to 38.14. I have also argued that 38.14 is a test for sufficiency upon appeal and was never designed to allow the court to comment on the weight of evidence.

Uder 38.141, unless your CI is a peace officer, you would still have to corroborate the testimony of the CI:
Art. 38.141. Testimony of Undercover Peace Officer or Special Investigator
(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.

So whether the CI is an accomplice or not is a distinction without a difference. You will need the same degree of corroboration.

Maybe this illustrates why 38.141 is overly broad. Obviously it was designed to preclude the possibility of someone misidentifying from whom they obtained drugs in a "controlled buy". Where the CI is nothing more than an observer of an offense by someone else, the fact that they may be acting covertly on behalf of law enforcement should not make their testimony suspect. In fact, one could argue that where the person is willing to risk their own safety to act on behalf of law enforcement, their credibilty may actually be enhanced. In any event, because your suspect was shown to be present at the time of the offense (apart from the testimony of the informer), does that not constitute corroboration that "shows" more than "the commission of the offense"? See e.g., Infante, 612 S.W.2d at 605. Your case may not be a strong one, but it should not be weakened by 38.14 or 38.141. By the way, when are they going to give 38.141 a proper title? Although it started as the Tulia bill, as passed, the statute seems to have nothing really to do with "Testimony of [a] Undercover Peace Officer or Special Investigator".