
NO. 07-99-0441-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO
 
PANEL C

DECEMBER 5, 2001

______________________________


FRANK SCOTT LANDEN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;

NO. 4220; HONORABLE DAVID M. MCCOY, JUDGE

_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.
	Appellant Frank Scott Landen appeals from his conviction for burglary of a
habitation and his sentence of two years incarceration.  By ten issues he urges that (1) the
trial court erred in denying his plea of double jeopardy; (2) his right to a speedy trial was
violated; (3) the evidence was legally and factually insufficient for conviction; (4) the trial
court erred in allowing all the testimony of a witness to be read back to the jury during trial;
(5) the jury charge did not contain an accomplice witness instruction; and (6) he was
entitled to introduce into evidence the fact that the indictment against a co-defendant was
dismissed. We affirm.  BACKGROUND
 On the weekend of April 18 and 19, 1998, Mr. Gary Dewayne Burt and his wife left
Childress to spend the weekend in Oklahoma City.  When the Burts returned to their
residence on Sunday, April 19, at about 11:15 p.m., they found the house had been
burglarized.  The money and receipts from Burt's My-T-Burger restaurant operations for
Friday and Saturday were missing.  
	Stephen McMahan was one of appellant's acquaintances. On May 24, 1998,
McMahan gave a written statement to the Childress Police Department in which he stated
that on April 18, 1998, he drove appellant and Dory Wilks to the Burt's residence and then
drove around for about fifteen to twenty minutes while appellant and Wilks were in the
house. 
	Christopher Bushell was also an acquaintance of appellant's.  On June 15, 1998,
while he was in jail on an unrelated charge, Bushell told a Childress County deputy sheriff
that appellant had confessed to committing the burglary of the Burt residence.  According
to Bushell, appellant came over to Bushell's house on Monday, April 20, 1998, and gave
Bushell $350.  Appellant informed Bushell that appellant obtained the money by
burglarizing the Burt residence.  Bushell stated that appellant described the particular
method used to burglarize the residence. 
	On September 14, 1998, appellant was indicted for the offense of Burglary of a
Habitation. The case first went to trial on June 15, 1999.  Bushell was called as a witness
by the State.  Bushell testified, in violation of a Motion in Limine filed by appellant and
granted by the trial court, that appellant used to buy marijuana from him.  The trial judge
granted appellant's request for a mistrial.  Appellant then filed a Special Plea of Double
Jeopardy.  The trial court held a hearing on appellant's special plea on September 13,
1999.  At the conclusion of the hearing the court denied the plea.  
	On September 14, 1999, the court again called the case for trial.  The State
announced "not ready" and requested a continuance due to the absence of a witness. 
This was the State's first and only request for a continuance.  Appellant announced ready
and moved the court for dismissal for failure to afford him a speedy trial. The court denied
appellant's motion to dismiss, granted the State's request for continuance, and reset the
trial for October 13, 1999. 
	On October 13, 1999, the court again called the case for trial and the case was
tried.  During this trial the State again called Bushell as a witness.  At the conclusion of the
State's direct examination of Bushell, two jury members indicated that they had not heard
at least a portion of Bushell's testimony.  Over appellant's objection, the trial court had all
of Bushell's testimony read to the jury by the court reporter.  The trial court gave the jury
a limiting instruction before the reading of Bushell's testimony.  The trial court also
included a limiting instruction as to such testimony in the jury charge.  
	During trial, appellant attempted to introduce evidence of the State's indictment and
dismissal of the indictment against appellant's co-defendant, Dory Wilks, for the burglary
of the Burt house.  The State objected, and the court sustained the objection and refused
to admit the evidence.  
	Before the jury charge was read to the jury, appellant requested that the court
include an accomplice witness instruction in regard to Bushell's testimony.  The court
denied the request.  
	The jury found appellant guilty and assessed punishment at a fine of $5000 and two
years in the Texas Department of Criminal Justice-Institutional Division.  As previously
noted, appellant challenges his conviction by ten issues.  We will address the issues in the
order presented by appellant.
ISSUE ONE: DOUBLE JEOPARDY
	During appellant's first trial in June, 1999, Bushell was called as a witness by the
State.  During direct examination by the prosecutor, part of Bushell's answer to a question
was that appellant "used to come over and buy marijuana from me."  The trial court had
previously granted appellant's motion in limine in regard to extraneous offenses.  Appellant
objected to the testimony as injecting an extraneous offense and moved for a mistrial on
the basis that an instruction to the jury to disregard the testimony would not cure the harm. 
The trial court sustained the objection and granted the motion for mistrial.   
	Appellant asserts that re-trial constituted double jeopardy because the State's
witness, after having been admonished not to refer to extraneous offenses, testified to an
extraneous offense in front of the jury.  He urges that although the State sought to prevent
the testimony from being given by admonishing the witness before calling him to the stand,
the State nevertheless should be held accountable for the mistrial.  Thus, appellant
reasons, his double jeopardy claim should be sustained pursuant to Article 1, § 14 of the
Texas Constitution and Ex parte Bauder, 974 S.W.2d 729 (Tex.Crim.App. 1998).  
	If a defendant moves for and obtains a mistrial because a prosecutor either
deliberately or recklessly crosses the line between legitimate adversarial conduct and
"manifestly improper" conduct during trial, then re-trial is prohibited by the Texas
Constitution.  See Tex. Const. art. I, § 14; Bauder, 974 S.W.2d at 732.   As noted,
however, appellant does not urge that overreaching trial conduct by the prosecutor
necessitated appellant's motion for mistrial.  See id. at 732-33 (Baird, J., concurring).  Nor
did the trial court reach such a conclusion. 	
	Appellant cites no authority for his proposition that because a State's witness
testifies to an extraneous offense by the defendant, after having been instructed by the
prosecutor as to the trial court's ruling on a motion in limine as to such matter, further
prosecution is prohibited by the double jeopardy provisions of the Texas Constitution. 
Appellant's motion for a mistrial was granted.  We decline to hold that under the record
before us the State should be charged with misconduct so as to warrant dismissal of the
prosecution on double jeopardy grounds.  We overrule appellant's first issue.

ISSUES 2 AND 3: SPEEDY TRIAL
	By his second and third issues, appellant urges that his rights to a speedy trial
under the United States Constitution and the Texas Constitution were violated.  We
disagree.
	The Sixth Amendment to the United States Constitution guarantees the right to a
speedy trial.  See Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d
101 (1972).  The Texas Constitution also guarantees the right to a speedy trial.  Tex.
Const. art.  I, § 10.  The test for whether speedy trial rights have been violated under the
federal and state constitutions is the same.  See Hull v. State, 699 S.W.2d 220, 221
(Tex.Crim.App. 1985). 
	Our review of speedy trial claims is de novo.  See Johnson v. State, 954 S.W.2d
770, 771 (Tex.Crim.App. 1997).     When reviewing the trial court's decision to grant or
deny a defendant's claim that his right to a speedy trial has been violated, the appellate
court must balance four factors:  (1) the length of the delay, (2) reasons for the delay, (3)
the defendant's assertion of the right, (4) any prejudice to the defendant resulting from the
delay.  Barker 407 U.S. at 530, 92 S.Ct. at 2192.  No one factor is determinative of the
result of the balancing process.  Id. at 533, 92 S.Ct. at 2193.  
A.  Length of Delay
	The primary burden to bring a defendant to trial rests upon the State.  Id. at 527, 92
S.Ct. at 2190.  Although no specific length of time before a defendant is brought to trial
triggers a speedy trial analysis, some courts presume that a delay of eight months or
longer is prejudicial.  See Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992) (en
banc).  The length of the delay is measured from the time the defendant is arrested or
formally accused.  Id. (citing United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455,
459, 30 L.Ed.2d 468 (1971)).
	The State has the initial burden of justifying a lengthy delay.  Emery v. State, 881
S.W.2d 702, 708 (Tex.Crim.App. 1994).   In light of a silent record, or one containing
reasons insufficient to excuse the delay, it must be presumed that no valid reason for the
delay existed.  Turner v. State, 545 S.W.2d 133, 137-38 (Tex.Crim.App. 1976).  Different
reasons for the delay should be assigned different weights.  A deliberate attempt to delay
the trial in order to hamper the defense should weigh heavily against the State, while
overcrowded dockets or negligence should weigh less heavily.  Barker, 407 U.S. at 531,
92 S.Ct. at 2192.  "Neutral" reasons not attributable to conscious design of the State to
delay trial still weigh against the State because the ultimate responsibility for such
conditions rests with the State.  Id.  Absent evidence of a reason for the delay, we presume
no valid reason existed for the delay of appellant's trial.  Mabra v. State, 997 S.W.2d 770,
777 (Tex.App.--Amarillo 1999, pet. ref'd). 
	Nine months elapsed between the date appellant was indicted and the date
appellant's first trial began.  The time between appellant's completion of discovery and the
June trial date, however, was approximately five months.  Following the granting of his
motion for mistrial in June, appellant did not object to the case being reset for the
September docket, and the record reflects that the reason for the delay was due to
scheduling conflicts of the prosecutor, the court and appellant's counsel.  The length of
delay factor weighs slightly in favor of appellant.  Assuming, arguendo, that the delay was
sufficiently long to trigger consideration of the remaining speedy trial factors, however, we
next consider the reasons for the delay.
B.  Reasons for delay
	Little evidence was offered at appellant's speedy trial motion hearing.  The trial
court took judicial notice of several times and events.  Both the prosecutor and counsel for
appellant made numerous statements of facts about the case history which could have
been, but were not, disputed by opposing counsel.  See Pitts v. State, 916 S.W.2d 507,
510 (Tex.Crim.App. 1996) (en banc).  Those statements, and thus the record,  reflect that
some of the delay was attributable to appellant and some of the delay was attributable to
the State.  The delay between September, 1998, and January, 1999, was attributable to
appellant because defense counsel was conducting discovery until January.  On the other
hand, the four month delay between January and June, 1999, is attributable to the State
as there is no explanation about why appellant's case was not brought to trial during the
months the court was in session in Childress County. (1)  There is no assertion that the case
was deliberately delayed following the mistrial in June, 1999.  Appellant did not file a
motion for speedy trial until the State sought its first continuance at the September, 1999,
trial setting.  There is no evidence that any of the delay attributable to the State was a
deliberate attempt to hamper the defense.  We conclude that the second factor does not
weigh heavily against either the State or appellant.  
C.  Assertion of right to speedy trial     
	A defendant who fails to demand a speedy trial does not forever waive the right. 
Barker, 407 U.S. at 528, 92 S.Ct. at 2191.   Nevertheless, a defendant's failure to demand
a speedy trial can be a strong indication that the defendant did not want one.  Id. at 536,
92 S.Ct. at 2195; Harris, 827 S.W.2d at 957; Harlan v. State, 975 S.W.2d 387, 390
(Tex.App.-Tyler 1998, pet. ref'd).   A defendant's motivation in asking for dismissal rather
than a prompt trial is clearly relevant, and may attenuate the strength of his claim.  Phillips
v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983).	
	Appellant's counsel completed pre-trial discovery in January, 1999.  There is no
evidence that appellant requested a trial setting or otherwise acted to bring his case to trial
until June 15, 1999, when he announced ready for trial.  On the other hand, there is no
evidence that appellant requested a continuance or delayed the proceedings, at least until
the setting of October, 1999, when he requested a continuance which the trial court
denied.  Appellant did not move for a speedy trial until September 14, 1999, when he
lodged an oral motion following the State's first request for a continuance due to the
absence of a witness.  In addition to making his oral motion for speedy trial, appellant filed
a Motion to Dismiss for Failure of Speedy Trial.  The trial court denied the motion to
dismiss, granted the speedy trial motion and set the case for trial on the next month's trial
docket, at which time the case proceeded to trial.  
	Appellant's failure to request a trial setting or otherwise assert his right to a speedy
trial until September 14, 1999, approximately nine months after pre-trial discovery had
been completed, and after the State had disclosed the absence of a witness and moved
for a continuance, to a large degree negates his claim that he truly desired a speedy trial. 
Moreover, the record of the discussion between counsel and the trial judge following the
mistrial in June, when the trial judge, the prosecutor and appellant's counsel reviewed their
calendars to determine when the case could be set for re-trial, indicates that the 3-month
period of time between June and the September trial date was not objectionable to
appellant.  Appellant's failure to assert his right until after the State asked for its first
continuance, at which time he moved for a dismissal, weighs heavily against him.  See
Barker, 407 U.S. at 536, 92 S.Ct. at 2195; Harris, 827 S.W.2d at 957.
D.  Prejudice by delay
	The United States Supreme Court noted in its Barker opinion that trial delay can be
harmful to a defendant in three ways:  (1) pretrial incarceration may be oppressive;  (2) the
accused may be unduly subjected to anxiety and concern;  or (3) the accused's defense
may be impaired.  Barker, 407 U.S. at 532, 92 S.Ct. 2193.   It is the defendant's burden to
make a prima facie showing of prejudice.  See Chapman v. Evans, 744 S.W.2d 133, 137
(Tex.Crim.App. 1988) (en banc).  If such a showing is made by the defendant, the burden
shifts to the State to prove that the accused suffered no serious prejudice beyond that
which ensued from the ordinary and inevitable delay of trial.  Ex parte McKenzie, 491
S.W.2d 122, 123 (Tex.Crim.App. 1973).	
	In support of appellant's motion to dismiss for failure to receive a speedy trial, his 
counsel argued matters such as appellant was having difficulty obtaining employment in
the county with the charge pending, appellant was subject to harassment and police
scrutiny, and appellant consistently protested his innocence and felt as though he were
being slandered.  Appellant offered no proof of such matters, however, and these are not
the type of factual representations that the State's attorney could reasonably be expected
to dispute, given the timing of and presentation of the oral motion to dismiss.  See Pitts,
916 S.W.2d at 510.  
	Appellant further asserts that he was prejudiced by a change in the testimony of
Stephen McMahan, who was the absent witness in September.  At the trial in June, the
State called McMahan and he testified that he met with and drove appellant and co-defendant Dory Wilks to the Burt house.  The testimony of McMahan during the October
trial, however, was offered by appellant, and was to the effect that McMahan lied in June
and at all other times he implicated appellant in the burglary.  At the October trial
McMahan denied participating in the burglary and denied driving appellant and Wilks to
the burglarized house.  Appellant does not specify how the change in McMahan's
testimony was prejudicial to him, and we fail to discern how the change prejudiced him. 
To the contrary, for a witness to change testimony in the manner McMahan's testimony
was changed appears to benefit appellant: it removes eyewitness testimony to appellant's
participation in the burglary.  We conclude that appellant has not proved prejudice from
the delay.  The fourth factor weighs against appellant.  
	On balance, only one of the three Barker factors weigh in favor of appellant, and
that factor only slightly so.  Two of the factors weigh against him; one heavily so.  We
conclude that appellant's right to a speedy trial has not been violated, and overrule his
issues two and three.  
ISSUES 4 AND 5: LEGAL AND FACTUAL SUFFICIENCY 
OF THE EVIDENCE 
	Appellant's fourth and fifth issues challenge the legal and factual sufficiency of the
evidence to prove that he entered the Burt house with the intent to commit theft.  His
argument primarily relies on assertions that Christopher Bushell was an accomplice
witness.  Bushell testified that appellant told him about how appellant conducted the
burglary.  In the alternative, appellant urges that the evidence was factually insufficient to
prove appellant's intent to burglarize the Burt house, even if Bushell was not an
accomplice witness.  
	When reviewing challenges to both the legal sufficiency and the factual sufficiency
of the evidence to support the verdict, we first review the legal sufficiency challenge. 
Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996) (en banc).  If the evidence is
legally sufficient to support the verdict, we then review the factual sufficiency challenge,
if one is properly raised.  Id.  Our review is taken being mindful that the jury is the sole
judge of the weight and credibility of the evidence.  Santellan v. State, 939 S.W.2d 155,
164 (Tex.Crim.App. 1997) (en banc). 
	The evidence is legally sufficient if, after viewing the evidence in the light most
favorable to the prosecution, a rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979); Clewis, 922 S.W.2d at 132.  All the evidence is
reviewed, but evidence that does not support the verdict is disregarded.  See, e.g.,
Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991) (en banc). 
	A factual sufficiency review of the evidence begins with the presumption that the
evidence supporting the jury's verdict was legally sufficient under the Jackson test. 
Clewis, 922 S.W.2d at 134. Factual sufficiency review is accomplished without viewing the
evidence in the light most favorable to the prosecution, as the evidence is viewed in
determining legal sufficiency.  Id.  The evidence is factually sufficient to support the verdict
if the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust.  Id.  Stated otherwise, the evidence is not factually sufficient  to support
a conviction if the appellate court determines, after viewing all the evidence in a neutral
light, that the proof of guilt is so obviously weak as to undermine confidence in the jury's
determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed
by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (en banc). 
	The elements of burglary of a habitation, as applicable to the matter before us, are:
(1) a person; (2) without the effective consent of the owner; (3) enters a habitation; (4) with
intent to commit a felony or theft.  See Tex. Penal Code Ann. § 30.02(a) (Vernon Supp.
2001). (2)  Circumstantial evidence will support a burglary conviction.  See Hardage v. State,
552 S.W.2d 837, 838-840 (Tex.Crim.App. 1977); Nelson v. State, 905 S.W.2d 63, 64
(Tex.App.--Amarillo 1995, no pet.).  The State may use circumstantial evidence to prove
burglarious entry, Clark v. State, 543 S.W.2d 125, 127 (Tex.Crim.App. 1976), lack of
consent, Kirvin v. State, 575 S.W.2d 301, 303 (Tex.Crim.App. 1978), and intent.  Stearn
v. State, 571 S.W.2d 177, 178 (Tex.Crim.App. 1978).
	Bushell testified that on Monday, April 20, 1998, appellant gave him $350 and
identified the money as proceeds from the burglary of the Burt residence.   Bushell also
testified that appellant described the method used to burglarize the Burt residence,
particularly mentioning that the burglars unscrewed the light bulbs from the porch. (3) 
Appellant's mother, Sharon Finch, testified that on Saturday, April 18, 1999, she and
appellant took the money and the daily receipts from Burt's restaurant to the Burt
residence and left them inside the residence.  After they left the Burt residence, they went
to her house, where they watched television together until about 3:00 a.m. in the morning,
at which time Finch went to bed.  She testified that she did not see or speak to appellant
again until she saw him at about 9:00 a.m. the following morning at the My-T-Burger.  A
written statement given by McMahan to the police was introduced without limitation.  In the
statement, McMahan related that on the night of April 18, 1998, he was driving his car and
at appellant's request, gave appellant and Dory Wilks a ride to the Burt residence and let
them off in the alley.  The written statement further set out that McMahan then drove
around for fifteen to twenty minutes while appellant and Wilks were inside the residence. 
When McMahan returned, appellant and Wilks put something in the trunk of McMahan's
car and McMahan then drove them back to appellant's house.  Although McMahan testified
in October that he did not drive appellant to the Burt house, he was cross-examined
extensively about his prior inconsistent written and oral statements, including his trial
testimony in June, 1999, all of which implicated appellant in the burglary.    
	Based on the testimony of these witnesses and all reasonable inferences and
deductions to be made therefrom, a rational trier of fact could have found the existence of
all the elements of the offense of burglary of a habitation beyond a reasonable doubt.  See
Jackson, 443 U.S. at 318-319, 99 S.Ct. at 2788-89; Geesa v. State, 820 S.W.2d 154, 156-157 (Tex.Crim.App. 1991) (en banc).
	In reviewing the factual sufficiency of the evidence, we consider all of the evidence,
and compare that which tends to prove the existence of disputed facts with evidence that
tends to disprove such facts.  In support of his position appellant points to the evidence
he presented to contradict the State's allegations.  One of his witnesses was McMahan. 
On the witness stand, McMahan completely recanted the assertions contained in his
written statement and testified that he never had any knowledge concerning the burglary
of the Burt residence.   He also denied driving appellant to the Burt house on Saturday,
April 18, 1998.  His testimony was supported by the testimony of his wife, Veronica
McMahan.  She testified that Stephen was with her continuously from about 5:00 p.m. on
Saturday, April 18, 1998 until about 10:00 a.m. on Sunday, April 19th, and that they did not
go to the part of town where the Burt residence was located at any time that night.  Sammy
Mathison also testified that he was at a party with McMahan from about 6:30 p.m. on
Saturday, April 18th until about 2:00 a.m. on Sunday, April 19th.  However, McMahan
himself testified that he did not remember being at a party on that night.  
	It was within the province of the jury to consider all of the testimony and evidence,
as well as the demeanor and credibility of the witnesses, and to resolve the numerous
conflicts in the evidence.  See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.
1997) (en banc).  We conclude that the verdict is not so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust, and thus the evidence is factually
sufficient.  Clewis, 922 S.W.2d at 135.  Appellant's fourth and fifth issues are overruled.
ISSUES 6 AND 7: READING TESTIMONY OF 
A WITNESS TO THE JURY 
	By his sixth and seventh issues, appellant contends that the trial court abused its
discretion in allowing the direct testimony of Christopher Bushell to be read to the jury in
response to jurors' statements that some of Bushell's testimony had not been audible. 
Appellant urges that the reading of the testimony was an abuse of the trial court's
discretion, denied appellant a fair trial and violated appellant's due process rights under
the Fifth and Fourteenth amendments to the United States Constitution and Article 1, §§
10 and 19 of the Texas Constitution.  Appellant also references Code of Criminal
Procedure art. 36.28 in his argument.
	After Bushell departed the witness stand following his direct testimony during the
State's case-in-chief, oral statements were made by members of the jury to the effect that
some of Bushell's testimony had not been audible.  The judge recessed the jury and
discussed the matter with counsel for the State and counsel for appellant.  Over
appellant's objection, the judge brought the jury in and had the court reporter read the trial
transcript of Bushell's testimony, as previously admitted before the jury, including
objections by counsel and instructions and rulings by the judge.  Before the reading of the
transcript, however, the judge instructed the jury, in effect, that the testimony of Bushell
was going to be read by the court reporter solely because of the statements by the jurors. 
The judge also instructed the jury that neither the testimony nor Bushell as a witness was
to be accorded any added weight, credibility, or consideration other than that given other
witnesses and testimony. 
	Appellant does not point out in his argument to this court how the reading of
Bushell's testimony resulted in an unfair trial to him in light of the trial court's instruction
to the jury.  In regard to his harm analysis, however, appellant concludes that because
Bushell's testimony was the only evidence presented by the State to prove appellant
entered the Burt residence, it cannot be said beyond a reasonable doubt that the reading
of the testimony made no contribution to appellant's conviction. 
	Appellant's discussion as to how the alleged error harmed him is cursory. 
Nevertheless, he suggests how he was harmed by the alleged error, which is sufficient to
require appellate harm analysis.  See Ovalle v. State, 13 S.W.3d 774, 787 (Tex.Crim.App.
2000) (en banc).  In making our analysis we note that an error in admission of evidence
is cured where the same evidence comes in elsewhere without objection, see Hudson v.
State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984) (en banc), and that inadmissible
evidence can be rendered harmless if other evidence at trial is admitted without objection
and it proves the same fact that the inadmissible evidence sought to prove.  See Mayes
v. State, 816 S.W.2d 79, 88 (Tex.Crim.App. 1991) (en banc).  
	Assuming, arguendo, that the trial court's allowing the reading of Bushell's
testimony was an abuse of discretion and error, even considering the court's instructions
to the jury as to the testimony, we conclude that the error did not harm appellant.  During
presentation of appellant's case, appellant recalled Bushell as an adverse witness. 
Bushell repeated the substance of his prior testimony about what appellant told Bushell. 
That is, Bushell testified, when recalled by appellant, that appellant told Bushell, among
other matters: (1) appellant and Wilks were dropped off close to the Burt residence by
McMahan, for the purpose of burglarizing the Burt residence, (2) appellant and Wilks
unscrewed the lights in the back of the Burt residence, (3) appellant went into the Burt
residence through the back, (4) the $350 appellant gave Bushell was from burglary of the
Burt residence, and (5) appellant broke into the Burt residence.  Bushell testified that his
testimony given during appellant's case was consistent with his testimony given during the
State's case.  
	Thus, Bushell effectively testified twice, without objection, that appellant told him of
entering the Burt residence to burglarize it.  The second time was after Bushell's testimony
was read to the jury over appellant's objection.  We conclude that the error, if any, was
cured and was harmless.  We overrule appellant's issues six and seven.  


ISSUE 8: DENIAL OF ACCOMPLICE 
WITNESS JURY INSTRUCTION
	Appellant's eighth issue alleges error by the trial court in refusing to include in the
jury charge an accomplice witness instruction as to Christopher Bushell.  At the time he
objected to the jury charge's failure to include such an instruction, appellant objected on
the basis that the evidence raised an inference that Bushell himself participated in the
burglary of the Burt residence and such participation was how he gained knowledge of how
the burglary occurred.  On appeal, however, he does not so argue.  On appeal he urges
that Bushell, either as a matter of law or as a question of fact to be resolved by the jury,
could have been charged with the same offense as appellant under the law of parties,
citing Penal Code § 7.02, or for a lesser included offense of theft by receiving, citing Penal
Code §§ 31.03(a),(b)(2).  In responding that Bushell was not an accomplice as a matter
of law and that the evidence did not warrant a factual determination of the question by the
jury, the State refers us to Tucker v. State, 689 S.W.2d 235, 237 (Tex.App.-El Paso 1985,
pet. ref'd).  We agree with the State.
	The trial court instructed the jury, without objection, that a person commits the
offense of burglary if, without the effective consent of the owner, the person enters a
habitation with intent to commit theft or any felony.  See Penal Code § 30.02(a)(1).
	The appropriation of property which one knows to be stolen by another is theft, not
burglary.  See Penal Code § 31.03(b)(2).  Theft and burglary are distinct and separate
offenses.   
	 Commission of a different "downstream" offense, even with knowledge of the prior
criminal act later charged against the defendant does not make the downstream participant
an accomplice in the original offense.  See Tucker, 689 S.W.2d at 237.  Thus, the fact that
a witness received property taken during a burglary, knowing it to be stolen, does not
make the witness an accomplice to the burglary offense that produced the stolen property. 
See id.
	Bushell testified that appellant gave him the sum of $350.  According to Bushell,
appellant told him that this money was obtained by burglarizing the Burt residence. 
Bushell testified that he did not assist appellant in committing the burglary and only found
out about it after the fact.  The record contains no evidence that Bushell was ever indicted
for the same offense as appellant.  Nor is there evidence in the record that Bushell
performed any affirmative act either before, during or after the burglary which would have
subjected him to prosecution for burglary of the Burt residence.  
	Even assuming that error was preserved despite the differing arguments by
appellant in the trial court and on appeal, we conclude that the trial court did not abuse its
discretion in failing to give an accomplice witness instruction as to Bushell.  We overrule
appellant's eighth issue.  
ISSUES 9 AND 10: EXCLUSION OF EVIDENCE THAT
INDICTMENT AGAINST CO-DEFENDANT WAS DISMISSED
	By issues nine and ten, appellant asserts that the trial court erred in excluding
evidence that Dory Wilks, who allegedly participated in burglarizing the Burt residence,
was indicted for the offense, and that the indictment was subsequently dismissed. 
Appellant offered the evidence during cross-examination of Christopher Bushell to
impeach Bushell's credibility.  Appellant urges that in excluding the evidence, the trial court
violated his rights  to confront the witnesses against him pursuant to Article 1, § 10 of the
Texas Constitution and the Sixth Amendment to the United States Constitution.  Appellant
does not argue that the Texas Constitution provides more protection to him in this matter
than does the United States Constitution, thus we will not address his state constitution
claim separately.  See Brown v. State, 943 S.W.2d 35, 36 n.3 (Tex.Crim.App. 1997) (en
banc).  
	We review the trial court's rulings in admitting or excluding evidence by the abuse
of discretion standard.  See Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct.
1431, 1435, 89 L.Ed.2d 674, (1986) (trial judges have wide latitude in admitting or
excluding evidence to cross-examine witness pursuant to right to the "effective"
cross-examination guaranteed by the Confrontation Clause of the Sixth Amendment to the
United States Constitution) and Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.
1996).  A trial court abuses its discretion only if the reviewing appellate court can say with
confidence that no reasonable perception of the matter under consideration could have
yielded the decision made by the trial court.  See Montgomery v. State, 810 S.W.2d 372,
391 (Tex.Crim.App. 1990) (op. on rehrg) (en banc). 
	Generally, unless otherwise provided, relevant evidence is admissible and evidence
which is not relevant is inadmissible.  See Tex. R. Evid. 402.  Relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or of misleading the jury.  See Tex. R. Evid. 403.       
	Evidence which tends to show a bias or motive for a witness to testify a certain way
is generally relevant and admissible to impeach a witness.  See Miller v. State, 741
S.W.2d 382, 389 (Tex.Crim.App. 1987) (en banc).  Evidence of disposition of charges
against a different, non-testifying person, who has been indicted for the same offense as
the accused, however, generally is not admissible.  See id.; Beasley v. State, 838 S.W.2d
695, 703 (Tex.App.-Dallas 1992, pet. ref'd). 
	Appellant offered the indictment of Wilks and Motion to Dismiss and Order of
Dismissal in order to show what he perceived as a conspiracy to convict him, and to
"attack [Bushell's] testimony and that evidence."  On appeal, he urges that the documents
were admissible to dispute and impeach Bushell's testimony and Bushell's credibility and
believability.  
	In reviewing the Motion and Order of Dismissal, we note that the motion was
predicated on the "Best interest of Justice; per the District Attorney," and was a dismissal
without prejudice.  The record presents no basis for the dismissal other than the
prosecutor's argument to the trial judge that numerous reasons could have existed for the
dismissal, including a lack of evidence due to Wilks not having made a statement that he
participated in the burglary, as Bushell testified appellant made.  Appellant does not
present argument as to how the dismissal was relevant to Bushell, or how Bushell might
have had a stake in the dismissal or possible benefit to be received via some connection
between the dismissal and testimony he gave.  Appellant points to no evidence that
Bushell was part of a conspiracy to convict appellant, nor does he refer us to any evidence
in the record that the dismissal of the indictment against Wilks was in any manner
contingent on Bushell's trial testimony.  Dismissal of the indictment against Wilks, standing
alone, does not impeach Bushell's testimony that appellant told Bushell that both appellant
and Wilks burglarized the Burt residence, and thus is not relevant.  We conclude that the
trial judge did not abuse his discretion in excluding evidence of the indictment and
dismissal.  See Miller, 741 S.W.2d at 389;  Beasley, 838 S.W.2d at 703. We overrule
issues nine and ten.  
CONCLUSION
	Having overruled appellant's ten issues, we affirm the judgment of the trial court. 


						Phil Johnson
						    Justice


Do not publish.  

1. Only three of those months truly weigh against the State as the trial court was not
in session in Childress County for one of the four months.
2. Further references to sections of the Texas Penal Code will be by reference to
"Penal Code §_".
3. For reasons which are fully discussed under the analysis of appellant's eighth point
of error, we hold that Bushell was not an accomplice witness.  His testimony did not
therefore need to be corroborated, and constituted evidence of appellant's involvement in
the burglary.


MARILLO
 
PANEL C
 

MARCH
23, 2011
 

 
EDDIE PEEL, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 367TH DISTRICT COURT OF
DENTON COUNTY;
 
NO. F-2010-0942-E, F-2010-0943-E; HONORABLE LEE GABRIEL, JUDGE

 

 
Before QUINN,
C.J., and HANCOCK and PIRTLE, JJ.
 
MEMORANDUM OPINION
            Appellant,
Eddie Peel, entered pleas of guilty to sexual assault of a child[1]
in Cause No. 07-10-0402-CR and sexual assault[2]
in Cause No. 07-10-0403-CR.[3]  Pursuant to a plea agreement, appellant was
placed on deferred adjudication community supervision on each case.  The deferred adjudication was subsequently
adjudicated and appellant was sentenced to serve a term of confinement of 11
years in the Institutional Division of the Texas Department of Criminal Justice
(ID-TDCJ) on each case, all confinement to be served concurrently.  Appellant appeals raising
two issues.  We will affirm.
Factual and Procedural Background
            Appellant
was initially indicted on charges of sexual assault of a child and aggravated
sexual assault of a child.  See §§
22.011(a)(1), 22.021(a).  After indictment and prior to entry of a
plea, appellant and the State agreed on a plea whereby appellant would plead guilty
to the sexual assault of a child in Cause No. 07-10-0402-CR and to a
lesser-included charge of sexual assault in Cause No. 07-10-0403-CR.  In return for the pleas of guilty, appellant
was placed on deferred adjudication community supervision for a period of eight
years on each case.  No pretrial motions
were filed in either case by appellants trial counsel.
            Subsequently,
the State filed a motion in each case to adjudicate appellant guilty.  The trial court conducted a hearing on the
States motion to adjudicate and appellant entered pleas of true to each of the
allegations contained in the States motions. 
After hearing evidence regarding punishment, the trial court sentenced
appellant to confinement in the ID-TDCJ for a period of 11 years on each case.  
            Appellant
appeals contending that the indictment in Cause No. 07-10-0402-CR is
fundamentally defective, and that section 22.021 is void for vagueness as
applied to appellant.  We will affirm the
judgment of the trial court.
 
Defective Indictment 
            Appellants
first issue contends that the indictment in Cause No. 07-10-0402-CR is
defective because it fails to negate an exception to the crime, as provided in
section 22.011(e), that the actor was the spouse of the child at the time of
the offense.  Appellants theory
continues that, since the missing portion is an element of the offense, the
indictment is incomplete.  Therefore,
according to appellant, the indictment is fundamentally defective.  See Murk v. State, 775 S.W.2d
415, 416 (Tex.App.Dallas 1989), revd
815 S.W.2d 556 (Tex.Crim.App. 1991).  Further, appellant posits that a
fundamentally defective indictment does not invest jurisdiction in the trial
court.  See Beets v. State,
767 S.W.2d 711, 723 (Tex.Crim.App.
1987).  Accordingly, under appellants
theory, this type of error cannot be waived. 
See Oliver v. State, 787 S.W.2d 170, 172 (Tex.App.Beaumont 1990), revd
808 S.W.2d 492 (Tex.Crim.App. 1991).  As can be ascertained by the subsequent
history of the cases cited to support appellants position, most of the cases
have been reversed.  
            The
State posits that appellant has forfeited his complaint by not raising this
issue when the deferred adjudication was first granted.  See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.
1999).  It is only if we are reviewing a
void judgment that this rule is not applicable. 
See Nix v. State, 65 S.W.3d 664,
667-68 (Tex.Crim.App. 2001).  Therefore, if the indictment was defective to
the point that it did not confer jurisdiction to render a judgment, then
appellant would not have to worry about the issue of preservation of this point
for appeal.  See id.
            The
problem with appellants theory, as pointed out by the State and accepted by
this Court, is that the law regarding an indictment that is so defective as to
not confer jurisdiction on the trial court has changed.  Under the Texas Court of Criminal Appealss decision in Smith v. State, a defect in an
indictment by failure to recite an element is a substance defect in the
indictment.  Smith v. State, 309 S.W.3d 10, 16-17 (Tex.Crim.App.
2010).  A substance defect in an
indictment still confers jurisdiction on the trial court.  Id. at 17.  Therefore, the conviction is not void.  Id. 
Since the conviction is not void, appellant must comport with the
requirements of article 1.14 of the Texas Code of Criminal Procedure.[4]  The record clearly bears out that there was
no objection ever lodged against this indictment in Cause No.
07-10-0402-CR.  Accordingly, appellant
has waived any purported error and his issue is overruled.
Constitutional Challenge to § 22.021
            Appellants
final issue contends that section 22.021 is unconstitutionally void for
vagueness as applied to him.  Because of
this alleged constitutional infirmity, appellant insists that we must reverse
and dismiss the case in Cause No. 07-10-0403-CR.  The record reveals that, although appellant
was indicted pursuant to section 22.021, he entered a plea of guilty to the
lesser-included offense found in section 22.011(a)(1).  Therefore, we are immediately faced with the
issue of whether or not appellant has standing to challenge the
constitutionality of section 22.021.  We
hold that appellant does not have standing to make a constitutional challenge
to section 22.021.
            To
have standing to challenge the constitutionality of a statute, the challenger
must first demonstrate an adverse impact on his rights.  See Suarez v. State, No.
14-97-00342-CR, 1999 Tex. App. LEXIS 1256 at *6 (Tex.App.Houston
[14th Dist.] Feb. 25, 1999, no pet.) (not designated for publication) (citing
Santikos v. State, 836 S.W.2d 631, 633
(Tex.Crim.App. 1992)).  In the case before the Court, appellant did
not enter a plea to any charge pursuant to section 22.021.  In the Suarez case, the appellant was attempting
to challenge the constitutionality of Texas Transportation Code section 724.061
regarding admission of the appellants refusal to give a specimen of his breath
or blood.  Id.
at *6-*7.  Suarez pleaded guilty
and did not go to trial, therefore, the court held he
had no standing to challenge the constitutionality of section 724.061 of the
Texas Transportation Code.  Id.  Here, appellant entered his plea to a reduced
charge and was not subjected to the punishment of section 22.021,
therefore, he has no standing. 
Appellants challenge is overruled.
Conclusion
            Having
overruled appellants issues, the judgment of the trial court is affirmed.
 
                                                                                                Mackey
K. Hancock
                                                                                                            Justice
Do not publish.  



[1] See Tex.
Penal Code Ann. § 22.011(a)(2) (West Supp.
2010).
 


[2] See Tex.
Penal Code Ann. § 22.011(a)(1).
 


[3] Further reference to the Texas Penal Code Ann. will
be by reference to section ___ or § ___.


[4] Article 1.14(b) of the Texas Code of Criminal
Procedure provides: 
 
If the defendant does not object to a defect, error,
or irregularity of form or substance in an indictment or information before the
date on which the trial on the merits commences, he waives
and forfeits the right to object to the defect, error, or irregularity and may
not raise the objection on appeal or in any other postconviction
proceeding.


