

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
 

                                                                  O
P I N I O N
 
            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 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, 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.  
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 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
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.


 
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 
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).
Panel[1]
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.


