Opinion filed October 25, 2012




                                            In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-10-00307-CR
                                        __________

                           THOMAS PRYER KEITH, Appellant

                                               V.

                                 STATE OF TEXAS, Appellee


                            On Appeal from the 66th District Court
                                     Hill County, Texas
                                Trial Court Cause No. 35,934


                                         OPINION

       The jury convicted Thomas Pryer Keith of burglary of a habitation. Upon appellant’s
plea of “true” to two prior felony convictions alleged for enhancement purposes, the jury
sentenced him to confinement in the Institutional Division of the Texas Department of Criminal
Justice for life and assessed a fine of $10,000. Appellant challenges his conviction in four
issues. We affirm.
                                       Background Facts
       Sheila Schultz testified that she received a call on March 18, 2009, from a credit card
issuer regarding the possible fraudulent use of her credit card. Schultz was out of town visiting
her sister at the time she received the call. She returned to her home that evening to discover
that her home had been burglarized. All of her jewelry had been taken from the home in
addition to other items.
       Officers responding to Schultz’s home determined that the burglars made entry into the
home through a rear window.        Schultz speculated to the officers that friends of her ex-
boyfriend, Monty Gene Walton, may have committed the burglary. These friends consisted of
appellant and his wife, Sara. Schultz testified that appellant’s wife knew Schultz was out of
town because Schultz received calls from appellant’s wife looking for appellant while Schultz
was gone.
       Walton testified that he and appellant were previously coworkers. He further testified
that they were friends outside of work and that they sometimes used methamphetamine together
along with Vivian Williams Waterston, who was a friend of appellant. Walton did drugs with
appellant, Waterston, and April Williams two days prior to Schultz’s discovery of the burglary.
He testified that appellant asked him during this episode if he was “ready to hit Sheila’s,” which
he interpreted to mean burglarizing Schultz’s house. Walton testified that they had previously
discussed burglarizing her home. Walton told appellant and Waterston that it would be easy to
burglarize Schultz’s home because she kept all of her jewelry on the counter in the bathroom.
Walton also mentioned during this conversation that Schultz was out of town.
       Officers obtained video surveillance footage from a Foot Locker location in Fort Worth.
The footage revealed that Waterston and Carla Grissom used Schultz’s credit card to purchase
shoes at the store.    After arresting Waterston, officers determined that she sold jewelry
belonging to Schultz at two pawn shops in Fort Worth and that appellant accompanied her as
reflected in surveillance video from the pawn shops. Officers also recovered Schultz’s property
from Waterston’s daughter and a relative of appellant.
       Waterston testified at trial. She stated that she and appellant burglarized Schultz’s home
because both of them had financial problems. Their original plan was to appear as if they were
delivering flowers to Schultz’s home. However, they encountered Schultz’s neighbor, who
checked on her home while she was away. After the encounter with the neighbor, Waterston
and appellant staked out Schultz’s home from across the road near a tank dam while waiting for
an opportunity to enter the home. After waiting for several hours, they entered the home
through a back window.
                            Corroboration of Accomplice Testimony
       Appellant asserts in his third issue that the trial court erred in denying his motion for
acquittal under Article 38.14 of the Texas Code of Criminal Procedure. TEX. CODE CRIM.
PROC. ANN. art. 38.14 (West 2005). This article provides that a conviction cannot be upheld on
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the basis of accomplice testimony unless it is corroborated by “other evidence tending to
connect the defendant with the offense committed.” Id. Appellant contends that Waterston’s
testimony was not sufficiently corroborated with non-accomplice testimony. We disagree.
       In reviewing the sufficiency of the corroborating evidence, we eliminate the accomplice
testimony from consideration and focus on the remaining portions of the record to determine
whether there is any evidence that tends to connect the defendant with the commission of the
crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Cathey v. State, 992
S.W.2d 460, 462–63 (Tex. Crim. App. 1999). The corroborating evidence may be direct or
circumstantial and need not be sufficient by itself to establish the defendant’s guilt; it is
sufficient if the combined weight of the non-accomplice evidence tends to connect the
defendant to the offense. Solomon, 49 S.W.3d at 361; Gosch v. State, 829 S.W.2d 775, 777
(Tex. Crim. App. 1991).
       Several witnesses provided non-accomplice testimony in this case tending to connect
appellant with the commission of the crime.           Walton testified that appellant discussed
burglarizing Schultz’s home with him a few days prior to its occurrence.          Williams also
overheard conversations between appellant and Waterston regarding the intention to burglarize
a home, and she observed some of the items that they stole afterward at Waterston’s home.
Additionally, appellant and his wife took Williams to visit Waterston in jail to see if Waterston
had informed the police about his involvement in the burglary. Surveillance footage revealed
that appellant accompanied Waterston to two pawn shops to sell items stolen from Schultz’s
home. Evidence that the defendant was in the presence of the accomplice at or near the time or
place of the offense is proper corroborating evidence. McDuff v. State, 939 S.W.2d 607, 612
(Tex. Crim. App. 1997). Items of stolen property were recovered from appellant’s ex-brother-
in-law, Edwin B. Miller, III. Miller helped appellant obtain these items from appellant’s vehicle
after it had been involved in an accident. A defendant’s unexplained possession of property
recently stolen permits an inference that the defendant is the one who committed the theft. See
Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Poncio v. State, 185 S.W.3d
904, 905 (Tex. Crim. App. 2006). Finally, appellant made verbal threats to others to deter them
from divulging his involvement in the burglary.
       The direct or circumstantial non-accomplice evidence is sufficient corroboration if it
shows that rational jurors could have found that it sufficiently tended to connect the accused to
the offense. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011); Simmons v. State,
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282 S.W.3d 504, 508 (Tex. Crim. App. 2009). We defer to the factfinder’s resolution of the
evidence in making this determination. Smith, 332 S.W.3d at 442; Simmons, 282 S.W.3d at
508.   The non-accomplice testimony in this case sufficiently connected appellant to the
commission of the charged crime. Appellant’s third issue is overruled.
                                            Hearsay
       In his first issue, appellant asserts that the trial court erred in admitting hearsay
statements in two instances at trial. We review a trial court’s decision regarding the
admissibility of evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d
15, 19 (Tex. Crim. App. 2007). Appellate courts will uphold a trial court’s admissibility
decision when that decision is within the zone of reasonable disagreement because trial courts
are in the best position to decide questions of admissibility. Id. An appellate court may not
reverse a trial court’s decision regarding the admissibility of evidence solely because the
appellate court disagrees with the decision. Id. A trial court abuses its discretion when its
decision lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d
372, 391 (Tex. Crim. App. 1991).
       The first instance of alleged hearsay occurred when Sergeant Hunter Barnes of the Hill
County Sheriff’s Office was asked if he had identified any possible suspects from his initial
investigation of the burglary. He responded by saying that he asked Schultz if she had any idea
who may have committed the burglary and that she responded by providing the names of
appellant and his wife. The trial court overruled appellant’s hearsay objection on the basis that
appellant waived the objection and that the statement constituted a “mental sense impression” of
Schultz. See TEX. R. EVID. 803(1). We conclude that the officer’s statement did not constitute
hearsay.
       Hearsay is a statement, other than one made by the declarant while testifying at trial,
offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). A police
officer may describe statements made by others for the purpose of showing why the defendant
became a suspect and to explain the events and circumstances leading to the defendant’s arrest.
See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Reed v. State, 794 S.W.2d
806, 809 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d). As such, the statement does not
constitute hearsay under Dinkins because it was not offered to prove the truth of the matter
asserted.

                                               4
        The second instance of alleged hearsay occurred when Shea-Lynn Delcuze, a relative of
Waterston, testified that appellant made a statement in her presence that, “if any of us had said
anything, snitched him out, that he would harm my family.” Delcuze interpreted this statement
to pertain to appellant’s alleged role in the burglary of Schultz’s home. We agree with the trial
court’s conclusion that this statement did not constitute impermissible hearsay. The statement
by appellant was an admission by a party; therefore, it was not hearsay. See TEX. R. EVID
801(e)(2)(A). A party’s own statements are not hearsay and are admissible on the logic that a
party is estopped from challenging the fundamental reliability or trustworthiness of his own
statements. Trevino v. State, 991 S.W.2d 849, 852–53 (Tex. Crim. App. 1999). Appellant’s
first issue is overruled.
                                       Extraneous Offenses
        Appellant asserts in his second issue that the trial court erroneously admitted evidence of
extraneous offenses in four instances. He contends that the admission of this evidence violated
TEX. R. EVID. 403 and 404(b). Rule 404(b) provides in relevant part:
        Evidence of other crimes, wrongs or acts is not admissible to prove the character
        of a person in order to show action in conformity therewith. It may, however, be
        admissible for other purposes, such as proof of motive, opportunity, intent,
        preparation, plan, knowledge, identity, or absence of mistake or accident.

Rule 404(b) prohibits the admission of evidence of extraneous offenses committed by the
defendant for the purpose of proving that, on the occasion in question, the defendant acted in
conformity with the character demonstrated by the other bad acts. Santellan v. State, 939
S.W.2d 155, 168 (Tex. Crim. App. 1997). However, evidence of extraneous offenses is not
inadmissible if it is relevant to a fact of consequence apart from the tendency to show conduct
in conformity with character. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
The exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively
exhaustive. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). Rule 404(b) is a
rule of inclusion rather than exclusion. Id. Even if evidence is admissible under Rule 404(b),
the trial court may exclude the same evidence if it determines that the probative value of such
evidence is substantially outweighed by its unfair prejudice. Rule 403.
        Whether extraneous offense evidence has relevance apart from character conformity, as
required by Rule 404(b), is a question for the trial court. De La Paz, 279 S.W.3d at 343. So,
too, is a ruling on the balance between probative value and the counter factors set out in

                                                 5
Rule 403, although that balance is always slanted toward admission, not exclusion, of otherwise
relevant evidence. Id. A trial court’s ruling on the admissibility of extraneous offenses is
reviewed under an abuse of discretion standard. Id. As long as the trial court’s ruling is within
the zone of reasonable disagreement, there is no abuse of discretion, and the trial court’s ruling
will be upheld. Id. at 343–44. A trial court’s ruling is generally within this zone if the evidence
shows that (1) an extraneous transaction is relevant to a material, non-propensity issue and
(2) the probative value of that evidence is not substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading of the jury. Id. at 344. Furthermore, if the trial
court’s evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be
disturbed even if the trial judge gave the wrong reason for his right ruling. Id.
        One alleged instance occurred during the testimony of Deputy Jason Patrick when he
testified about “other pending charges.” Upon appellant’s objection to this comment, the
prosecutor informed the trial court and appellant’s counsel outside the jury’s presence that the
statement pertained to the driver of the vehicle in which appellant was riding at the time of his
arrest, rather than to appellant.    Appellant’s counsel agreed that he would withdraw his
objection if the prosecutor clarified this matter to the jury. Accordingly, Deputy Patrick’s
statement did not constitute evidence of an extraneous offense as a result of the subsequent
clarification.
        Two other alleged instances pertained to evidence of threats made by appellant. We
have previously addressed one of the threats that appellant made to Delcuze in the preceding
section pertaining to appellant’s hearsay issue. Appellant made the other threat to Grissom
when he told her “[t]hat if anybody snitched him out or got him in trouble that he would have
them bumped off and they would clean up the mess.” We conclude that the trial court did not
abuse its discretion in determining that evidence of these threats had relevance apart from the
tendency to show conduct in conformity with character. Acts designed to reduce the likelihood
of prosecution, conviction, or incarceration for the offense at issue are admissible under
Rule 404(b) to show the defendant’s “consciousness of guilt.” See Ransom v. State, 920 S.W.2d
288, 299 (Tex. Crim. App. 1996). Attempts by the accused to suppress the testimony of a
witness are admissible under the “consciousness of guilt” exception. Rodriguez v. State, 577
S.W.2d 491, 493 (Tex. Crim. App. 1979); Roberts v. State, 795 S.W.2d 842 (Tex. App.—
Beaumont 1990, no pet.). “Threats or other attempts at coercion are ‘hardly the actions of an
innocent accused,’ and evidence of such is every bit as probative of guilt as would be flight by
                                                 6
the accused.” Peoples v. State, 874 S.W.2d 804, 809 (Tex. App.—Fort Worth 1994, pet. ref’d)
(quoting Rodriguez, 577 S.W.2d at 493). Therefore, Rule 404(b) did not prohibit evidence of
appellant’s attempts to deter others from reporting his involvement in the charged crime with
threats of violence. Furthermore, the trial court did not abuse its discretion by determining that
the probative value of this evidence was not substantially outweighed by unfair prejudice.
       The fourth instance occurred when Miller was asked why he, rather than appellant
himself, recovered property from appellant’s car that was in a “junkyard.” Specifically, the
prosecutor asked Miller, “How come you went in to get the stuff?” Miller replied, “He was --
we went to the gas station, [I] dropped him off, and then he just needed to be dropped off. He
said it was -- he didn’t want to -- his parole.” Appellant’s counsel objected to Miller’s reference
to appellant being on parole. The trial court sustained the objection and gave the jury an
instruction to disregard the statement. Appellant’s counsel then moved for a mistrial, and the
trial court denied the motion.
       Appellant appears to complain on appeal that the trial court erred in admitting the
statement.   However, the trial court did not allow the statement into evidence because it
sustained a contemporaneous objection to the statement. Additionally, the trial court gave the
jury an instruction to disregard it. A witness’s inadvertent reference to an extraneous offense
generally can be cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241,
250 (Tex. Crim. App. 1998). We presume that a jury will obey a trial court’s instruction to
disregard evidence that has not been admitted. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.
App. 1999). An exception exists when the reference to an extraneous offense was clearly
calculated to inflame the minds of the jury or was of such damning character as to suggest it
would be impossible to remove the harmful impression from the jurors’ minds. Rojas, 986
S.W.2d at 250. As in Rojas, the objectionable reference in this case was at most an oblique
reference to an extraneous offense. Miller’s statement was not of a nature calculated to inflame
the jury or of such damning character as to be impossible to remove from the jurors’ minds.
Rather, this statement was adequately addressed by a sustained objection and an instruction to
disregard. See id. at 250–51; Sperling v. State, 924 S.W.2d 722, 724–25 (Tex. App.—Amarillo
1996, pet. ref’d) (reference by State’s witness to defendant’s prior incarceration during direct
examination did not require mistrial). Accordingly, appellant’s second issue is overruled.



                                                7
                                    Improper Jury Argument
       In his fourth issue, appellant contends that the trial court erred in denying his motion for
mistrial during the prosecutor’s closing argument. Appellant contends that the prosecutor made
an improper comment on his decision not to testify at trial. He objected to the following
argument:
               What about [appellant]? [Waterston] has stood up and said to you, I am
       guilty. It was me. [Appellant] is hiding. [Appellant], instead of saying, I’m
       guilty, is acting guilty. And what do we talk about with that circumstantial
       evidence? That you can tell somebody’s intent. You can tell what they did by
       looking at their actions. [Appellant] is hiding. I don’t have a driver’s license. I
       can’t pawn the stuff.

Appellant objected at this juncture on the basis that the reference to appellant “hiding”
constituted an impermissible reference to his constitutional right not to incriminate himself.
The trial court sustained the objection to the extent “you can make such an inference out of such
a statement.” Appellant then requested a mistrial, which the trial court denied. The prosecutor
then continued her argument by pointing out instances of appellant’s conduct prior to being
arrested wherein he attempted to detach himself from the stolen property, including having
Miller retrieve the property from appellant’s automobile.
       A comment on a defendant’s failure to testify offends the Texas and United States
Constitutions, as well as Texas statutory law. U.S. CONST. amend. V; TEX. CONST. art. I, § 10;
TEX. CODE CRIM. PROC. ANN. art. 38.08 (West 2005). A prosecutor’s comment amounts to an
impermissible comment on a defendant’s failure to testify only if, when viewed from the jury’s
standpoint, the comment is manifestly intended to be, or is of such character that a typical jury
would naturally and necessarily take it to be, a comment on the defendant’s failure to testify.
Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Bustamante v. State, 48 S.W.3d
761, 765 (Tex. Crim. App. 2001).
       If the harm caused by an improper jury argument is incurable, a motion for mistrial is
sufficient to preserve error for appellate review. Cruz, 225 S.W.3d at 548; Young v. State, 137
S.W.3d 65, 70 (Tex. Crim. App. 2004). We review a trial court’s denial of a motion for mistrial
under an abuse of discretion standard. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App.
2007); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We conclude that the
prosecutor’s statements did not amount to improper comments on appellant’s failure to testify at


                                                8
trial. Viewed in context, the complained-of statement by the prosecutor relates to appellant’s
concealment efforts prior to being arrested, rather than his failure to testify. As such, the
statement did not constitute an impermissible comment on appellant’s failure to testify, and the
trial court did not abuse its discretion in denying the motion for mistrial premised on this
contention.
         We also conclude that the trial court did not err in denying appellant’s motion for
mistrial for another reason. Except in the most blatant instances, an instruction to disregard a
comment on the defendant’s failure to testify will cure any harm caused by the comment.
Moore v. State, 999 S.W.2d 385, 405–06 (Tex. Crim. App. 1999). If a defendant fails to request
an instruction to disregard and the instruction would have cured any harm, the trial court does
not abuse its discretion in denying a motion for mistrial. Young, 137 S.W.3d at 72. Even if the
prosecutor’s statement in this cause amounted to comments on appellant’s failure to testify, it
was not so blatant that it would have rendered an instruction to disregard ineffective. Moore,
999 S.W.2d at 405–06. Because appellant failed to request an instruction to disregard, the trial
court did not abuse its discretion in denying his motion for mistrial. Young, 137 S.W.3d at 72.
Appellant’s fourth issue is overruled.
                                                  This Court’s Ruling
         The judgment of the trial court is affirmed.




                                                                               TERRY McCALL

                                                                               JUSTICE
October 25, 2012
Publish. See TEX. R. APP. P. 47.2(b).
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill.2




          1
            Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a
successor by the governor or until the next general election.
         2
          John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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