                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00478-CR


DAVID ALBERTO DOZAL                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

          FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
                     TRIAL COURT NO. CR12-0232

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                        MEMORANDUM OPINION 1

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      In six points, appellant David Alberto Dozal appeals his convictions for two

counts of aggravated robbery.     He contends that the trial court abused its

discretion by denying his motion for mistrial, by sustaining two of the State’s

evidentiary objections, and by overruling his objections during jury arguments.

We affirm.


      1
      See Tex. R. App. P. 47.4.
                                Background Facts

        Doris Geer and her husband Joe Geer live at a home in Weatherford. One

evening in March 2012, Doris was watching television there when a doorbell

rang.    When Joe answered the door, two men who were displaying guns,

including Daniel Anderson, entered the home by force and commanded Joe to lie

on the floor while threatening to “blow [his] . . . head off.” The other robber,

identified by Doris and Joe at trial as appellant, saw Doris, held a gun to her

head, took her iPhone, and asked, “Where is your money?”

        Doris gave appellant her wallet.       Joe gave Anderson his wallet, which

contained credit cards and about $100. Eventually, the men instructed Doris to

lie on the floor close to Joe as they retrieved items (including jewelry and guns)

from a safe that Doris had opened. After the men also took Doris’s purse and

Joe’s cell phone and appellant loaded items into a car, Jacki Martin, with whom

appellant had a romantic relationship, drove the robbers away from the Geers’

home. Doris got up and called 911. Later that night, a gas station’s surveillance

system recorded the presence of appellant, Anderson, and Martin together.

        The police received “pings” from Doris’s cell phone that indicated that the

phone was taken to the block where appellant lived.          Other evidence linked

Anderson to the robberies, and while talking to the police, he admitted his

participation and implicated appellant in committing them.       The police found

items from the robberies in appellant’s house. During a custodial interview, when

an officer told appellant that the police had “nailed [him] down” on the robberies,


                                           2
he nodded. Stemming from the incident at the Geers’ home, Anderson pled

guilty to two counts of aggravated robbery, was convicted, and was sentenced to

thirty years’ confinement for each count.

      A grand jury indicted appellant with two counts of aggravated robbery. 2

After he pled not guilty and the parties presented the case to a jury, 3 for each

count, the jury convicted him and assessed his punishment at seventy years’

confinement. The trial court sentenced appellant in accordance with the verdicts

and ordered the sentences to run concurrently. Appellant brought this appeal.

                             Exclusion of Evidence

      In his second and third points, appellant argues that the trial court erred by

sustaining the State’s objections to two of his questions to Martin. Concerning

appellant’s second point, during his guilt-phase cross-examination of Martin, she

testified that she was a recovering drug addict. Appellant asked her how long

she had been addicted, and the State objected to the question on the ground that

      2
       For trial, the court consolidated these counts with a burglary charge from
another cause number. The jury found that appellant was not guilty of burglary
but convicted him of theft in that case. Appellant filed a notice of appeal in both
cases but later sought to withdraw the notice of appeal as to the theft conviction.
We granted appellant’s request and dismissed his appeal of the theft conviction.
See Dozal v. State, No. 02-13-00477-CR, 2013 WL 5674990, at *1 (Tex. App.—
Fort Worth Oct. 17, 2013, no pet.) (mem. op., not designated for publication).
Therefore, this appeal concerns only appellant’s convictions for aggravated
robbery. Accordingly, we focus our brief summary of the facts on evidence
related to appellant’s aggravated robbery convictions.
      3
       Anderson and Martin testified at trial about appellant’s involvement in the
robberies. Martin was confined and was awaiting trial for the Geers’ robberies at
the time of her testimony.


                                         3
it was irrelevant and was an improper form of impeachment.        The trial court

overruled the State’s objection, and Martin testified that she had been addicted

“[a]bout five years.”   When appellant asked Martin whether she had ever

requested treatment for her addiction, she answered, “No, sir.”     Immediately

afterwards, the State again objected as to relevance. Appellant argued that the

question was relevant because an untreated drug addiction could have impacted

Martin’s ability to perceive and recollect facts. 4 The trial court sustained the

State’s objection but did not instruct the jury to disregard the answer to the

question.

      Assuming, without deciding, that the trial court erred by sustaining the

State’s objection, such an error is not reversible unless it harmed appellant by

affecting his substantial rights. See Tex. R. App. P. 44.2(b); Walters v. State,

247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (“The erroneous exclusion of

evidence offered under the rules of evidence generally constitutes non-

constitutional error and is reviewed under Rule 44.2(b).”); Elmore v. State, 116

S.W.3d 809, 815 (Tex. App.—Fort Worth 2003, pets. ref’d) (explaining that we

review the exclusion of evidence under rule 44.2(b)’s nonconstitutional harm

standard where the exclusion “is the result of misapplication of the rules of

evidence and its admission is not claimed to be required by the United States or


      4
       Martin had already testified without objection that she had not received
treatment for her drug addiction in “any kind of a psychiatric or medical . . .
location.”


                                       4
state constitutions”). 5   A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s verdict. King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

      When a witness answers a question and the trial court later sustains an

objection to the question but does not instruct the jury to disregard the answer,

the answer remains “before the jury” to be freely considered. See Estrada v.

State, 313 S.W.3d 274, 313 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 905

(2011); Hicks v. State, Nos. 02-10-00075-CR, 02-10-00076-CR, 2011 WL

2436818, at *1–2 (Tex. App.—Fort Worth June 16, 2011, pet. ref’d) (mem. op.,

not designated for publication) (citing Wills v. State, 867 S.W.2d 852, 855 (Tex.

App.—Houston [14th Dist.] 1993, pet. ref’d)). Thus, because the jury could have

considered Martin’s answer that she had not requested treatment for her

addiction despite the trial court’s sustaining of an objection to the question

leading to that answer, we cannot conclude that the record establishes harm

under rule 44.2(b). See Tex. R. App. P. 44.2(b); Hicks, 2011 WL 2436818, at *1–

2; see also Smith v. State, 355 S.W.3d 138, 152 (Tex. App.—Houston [1st Dist.]

2011, pet. ref’d) (“Generally, no harm results when a jury is not instructed to

disregard a witness’s answer after an objection is sustained.”); Rodriguez v.

State, 903 S.W.2d 405, 410 (Tex. App.—Texarkana 1995, pet. ref’d) (“Where an


      5
       Appellant does not expressly argue that we should review harm on this
point under rule 44.2(a)’s standard for constitutional error. See Tex. R. App. P.
44.2(a).


                                         5
objection is made and sustained, but no motion is made to strike the answer or to

instruct the jury not to consider, the testimony is before the jury for whatever it is

worth. Because this portion of the evidence was not excluded from the jury’s

consideration, Rodriguez was not damaged by the court’s ruling.” (footnote

omitted)). We therefore overrule appellant’s second point.

      Relating to appellant’s third point, during the punishment phase of the trial,

the State recalled Martin to testify. In appellant’s cross-examination of her, he

asked about the offense for which she was previously confined in jail. The State

objected on the ground that the question sought improper impeachment under

rule of evidence 609. Appellant argued that the State had opened the door for

such testimony. The trial court did not rule on the objection; instead, appellant

withdrew the question.     Then appellant asked Martin, “What had you been

convicted of?”    The State again objected, and the trial court sustained the

objection.

      Appellant contends on appeal that Martin’s answer to the question would

have been material and relevant because it would have affected her credibility.

He also argues that the exclusion of the answer “contributed to the near

maximum punishment assessed” against him.             But the State contends that

appellant failed to preserve this point because he did not prove what Martin’s

answer would have been through a bill of exception or an offer of proof.

      To preserve error when evidence is excluded, the substance of the

excluded evidence must be shown unless it is apparent from the context of the


                                          6
questions asked. Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2); Holmes v. State,

323 S.W.3d 163, 168 (Tex. Crim. App. 2009) (“The primary purpose of the offer

of proof is to enable an appellate court to determine whether the exclusion was

erroneous and harmful.”); Mays v. State, 285 S.W.3d 884, 889–90 (Tex. Crim.

App. 2009). Error may be preserved by an offer of proof in question and answer

form or in the form of a concise statement by counsel. Tex. R. Evid. 103(b);

Holmes, 323 S.W.3d at 168.         Error is not preserved if the offer of proof is

inadequate. Holmes, 323 S.W.3d at 171; see also Mays, 285 S.W.3d at 890–91

(holding that error was not preserved when a defendant failed to proffer, with

some degree of specificity, the substantive evidence he intended to present).

      Here, the record does not disclose what Martin’s answer to appellant’s

question about her previous confinement would have been, nor does the context

of the question disclose the answer. Thus, we conclude that appellant failed to

preserve error as to this point, and we overrule it. See Tex. R. Evid. 103(a)(2);

Mays, 285 S.W.3d at 890–91; Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim.

App.), cert. denied, 552 U.S. 920 (2007); Bundy v. State, 280 S.W.3d 425, 428–

29 (Tex. App.—Fort Worth 2009, pet. ref’d).

                           Denial of Motion for Mistrial

      In his first point, appellant argues that the trial court erred by denying his

motion for mistrial. We review a trial court’s denial of a motion for mistrial under

an abuse of discretion standard and uphold the trial court’s ruling if it is within the

zone of reasonable disagreement. Marchbanks v. State, 341 S.W.3d 559, 561


                                          7
(Tex. App.—Fort Worth 2011, no pet.). “Only in extreme circumstances, where

the prejudice is incurable, will a mistrial be required.” Id. A mistrial is appropriate

only for a narrow class of highly prejudicial and incurable errors and may be used

to end trial proceedings when the error is so prejudicial that expenditure of further

time and expense would be wasteful and futile. Id. at 561–62; see Whitney v.

State, 396 S.W.3d 696, 703–04 (Tex. App.—Fort Worth 2013, pet. ref’d) (mem.

op.).

        In the guilt phase of the trial, the State’s direct examination of Martin

included questions concerning her and appellant’s activities on the day of the

robberies. During her testimony, while responding to an open-ended question by

the State, she began to explain that appellant knew a friend “from TDC.”

Appellant interrupted the testimony by objecting under rules of evidence 401

through 404. He argued that the testimony violated a motion in limine and that it

was unresponsive. The trial court sustained the objection to the extent that the

testimony was unresponsive, denied appellant’s motion for mistrial, and

instructed the jury to disregard Martin’s answer. 6 On appeal, appellant argues

that Martin’s “TDC” reference violated his motion in limine and that “evidence

showing [he] was a criminal could not help but [have impacted] the jury’s verdict.”

        An instruction to disregard testimony regarding extraneous offenses is

sufficient to cure an alleged harm “unless it appears the evidence was so clearly

        6
        Appellant appears to be mistaken in arguing that a “request for an
instruction to disregard . . . [was] denied.”


                                          8
calculated to inflame the minds of the jury or is of such damning character as to

suggest it would be impossible to remove the harmful impression from the jury’s

mind.” Drake v. State, 123 S.W.3d 596, 603–04 (Tex. App.—Houston [14th Dist.]

2003, pet. ref’d) (quoting Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.

1992), cert. denied, 508 U.S. 918 (1993)); see Ovalle v. State, 13 S.W.3d 774,

783 (Tex. Crim. App. 2000) (“Ordinarily, a prompt instruction to disregard will

cure error associated with an improper question and answer, even one regarding

extraneous offenses.”). We will generally presume that a jury has followed an

instruction to disregard testimony that should not have been presented. Gardner

v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.), cert. denied, 484 U.S. 905

(1987); see also Kemp, 846 S.W.2d at 308 (holding that a State’s witness’s

reference to the defendant’s prior incarceration was rendered harmless by a

curative instruction); Barney v. State, 698 S.W.2d 114, 124–25 (Tex. Crim. App.

1985) (holding that a witness’s answer that a victim did not like the defendant

because “he was an ex-con,” which violated the defendant’s motion in limine,

was improper but was cured by a jury instruction).

      We have applied this principle. In Hill v. State, we held that a trial court did

not abuse its discretion by denying Hill’s motion for mistrial because an

instruction to disregard was sufficient to cure the harm caused by an officer’s

testimony about extraneous offenses. No. 02-06-00357-CR, 2007 WL 2792863,

at *6 (Tex. App.—Fort Worth Sept. 27, 2007, pet. ref’d) (mem. op., not

designated for publication).   There, the officer gave an unresponsive answer


                                          9
about “previous burglaries” when the State asked about the officer’s actions after

seeing a car in the driveway of a house. Id. Hill, who had filed a motion in limine

concerning extraneous offenses, immediately objected.            Id.   This objection

stopped the testimony, and the trial court promptly instructed the jury to disregard

the officer’s statement and denied Hill’s motion for mistrial. Id. Hill claimed that

the evidence was not relevant and was prejudicial, but we concluded that the

instruction to disregard cured any harm or prejudice caused by the testimony. Id.

      Similarly, the unrepeated, undeveloped testimony here was not “so clearly

calculated to inflame the minds of the jury or . . . of such damning character as to

suggest it would be impossible to remove the harmful impression from the jury’s

mind.” See Drake, 123 S.W.3d at 603–04. Therefore, the trial court successfully

cured any harm caused by Martin’s unresponsive statement regarding

appellant’s connection to “TDC” by instructing the jury to disregard the statement.

See Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992) (“[R]eference

by a witness to a defendant’s prior incarceration in the penitentiary, . . .

oftentimes colloquially referred to as ‘TDC,’ is improper . . . . Nevertheless, this

Court has held that generally a prompt instruction to disregard cures the error.”);

see also Molina v. State, No. 14-96-00197-CR, 1998 WL 208812, at *2 (Tex.

App.—Houston [14th Dist.] Apr. 30, 1998, pet. ref’d) (not designated for

publication) (“[T]he unembellished and uninvited reference to appellant’s TDC

card, although inadmissible, was not so inflammatory as to undermine the

efficacy of an instruction to disregard . . . .”). We hold that the trial court did not


                                          10
abuse its discretion by denying appellant’s motion for mistrial on this basis. See

Marchbanks, 341 S.W.3d at 561. Thus, we overrule appellant’s first point.

                Alleged Improprieties During Jury Arguments

      Appellant’s fourth through sixth points concern alleged improprieties during

closing arguments. 7 We review a trial court’s decision to overrule an objection to

a closing argument for an abuse of discretion. See Montgomery v. State, 198

S.W.3d 67, 95 (Tex. App.—Fort Worth 2006, pet. ref’d). To be permissible, the

State’s jury argument must generally fall within one of the following areas:

(1) summation of the evidence, (2) reasonable deduction from the evidence,

(3) answer to argument of opposing counsel, or (4) plea for law enforcement.

Whitney, 396 S.W.3d at 704. Even when an argument exceeds these approved

areas, “such will not constitute reversible error unless, in light of the record as a

whole, the argument is extreme or manifestly improper, violative of a mandatory

statute, or injects new facts harmful to the accused into the trial proceeding.”

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (plurality op.),

cert. denied, 532 U.S. 944 (2001).

      In his fourth point, appellant contends that the State’s jury argument on his

guilt improperly referred to his decision to not testify.     While the State was




      7
        Although appellant alleges in these points that the trial court erred by
overruling motions for mistrial, appellant did not request a mistrial concerning the
facts of these points.


                                         11
making its initial closing argument on appellant’s guilt, the following exchange

occurred:

             [THE STATE:] When we talked about aggravated robbery, we
      had to prove to you some certain things, and I want to go through
      some elements. The first one’s going to be on or about March 9th,
      2012. That’s what you’re going to see in the charge. I would submit
      to you that with respect . . . to the testimony of Joe Geer and Ann
      Geer and all the cops and the 911 call, nobody questions we’re
      talking about March 9th, 2012.

             The second one’s going to be in Parker County, Texas.
      Again, I know it seems repetitive to y’all to some extent. We asked
      multiple witnesses, you know what, is your home . . . in Parker
      County, Texas? Yes, sir, it is. . . . I’d submit to you there is zero
      evidence to the contrary, okay? So we’re past one and two.

             [DEFENSE COUNSEL]: Your Honor, we’re going to object to
      the zero evidence to the contrary as being a comment on our client’s
      failure to testify, and we object.

            THE COURT: Overruled.

      The State cannot “comment on the failure of an accused to testify. Such a

comment violates the privilege against self-incrimination and the freedom from

being compelled to testify contained in the Fifth Amendment of the United States

Constitution and Article I, § 10, of the Texas Constitution.” Bustamante v. State,

48 S.W.3d 761, 764 (Tex. Crim. App. 2001) (footnote omitted); see Tex. Code

Crim. Proc. Ann. art. 38.08 (West 2005). To violate the defendant’s right against

compelled self-incrimination, however, the

      offending language must be viewed from the jury’s standpoint and
      the implication that the comment referred to the defendant’s failure
      to testify must be clear. It is not sufficient that the language might be
      construed as an implied or indirect allusion. The test is whether the
      language used was manifestly intended or was of such a character


                                         12
      that the jury would necessarily and naturally take it as a comment on
      the defendant’s failure to testify.

Bustamante, 48 S.W.3d at 765 (footnotes omitted). A mere indirect or implied

allusion to the accused’s failure to testify does not violate the accused’s right to

remain silent. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004).

      From appellant’s opening statement forward, his defensive theory was not

that the robberies had not occurred on the date and in the place alleged by the

State but that he was not involved in them to the extent alleged. Thus, viewing

the State’s argument in the specific context it was made and within the record as

a whole, we conclude that a reasonable jury would not likely consider it as a

comment on appellant’s decision to not testify but would instead tend to view it

only as a statement that the date and place of the offenses were uncontested

issues.

      Moreover, the place and date of the robberies were not facts exclusively

within the knowledge of appellant; other witnesses could have offered testimony

on these issues that contradicted the allegations in the indictment. See Myers v.

State, 573 S.W.2d 19, 20–21 (Tex. Crim. App. [Panel Op.] 1978) (“[A]n indirect

comment that labels certain evidence as uncontroverted, unrefuted, or

uncontradicted is impermissible if only the defendant could offer the rebutting

evidence.”); Pollard v. State, 552 S.W.2d 475, 477 (Tex. Crim. App. 1977) (“A

statement that certain evidence is uncontroverted or unrefuted or uncontradicted

does not constitute a comment on the accused’s failure to testify where the



                                        13
record indicates that persons other than the accused could have offered

contradictory testimony.”); see also Fuentes v. State, 991 S.W.2d 267, 275 (Tex.

Crim. App.) (“Calling attention to the absence of evidence which only the

defendant could produce will result in reversal only if the remark can only be

construed to refer to appellant’s failure testify and not the defense’s failure to

produce evidence.”), cert. denied, 528 U.S. 1026 (1999). The most reasonable

view of the State’s comment is simply that those witnesses did not do so.

Therefore, we cannot conclude that the trial court abused its discretion by

overruling appellant’s objection, and we overrule his fourth point.               See

Montgomery, 198 S.W.3d at 95; see also Goff v. State, 931 S.W.2d 537, 548

(Tex. Crim. App. 1996) (“Where the statement does not refer to evidence which

can only come from the defendant, then it is not a direct comment on a

defendant’s failure to testify.”), cert. denied, 520 U.S. 1171 (1997).

      Concerning appellant’s fifth point, during his closing argument on guilt, the

following colloquy occurred:

             [DEFENSE COUNSEL:] The evidence is clear, as I told you in
      opening statement, that property from that burglary was at his home,
      that he is in receipt of stolen property, and therefore he is guilty of
      theft. Theft and burglary are different offenses. Theft is not charged
      in the indictment against him in this case. So we’re going to --

            [THE STATE]: Judge, I’m going to object that his statement is
      a misstatement of the law in that sudden, unexplained possession of
      property alone is enough to prove burglary of a habitation.

            [DEFENSE COUNSEL]: Your Honor, I object. That is
      contrary to the Court’s instructions. It is not in the Court’s Charge, it



                                         14
         is not a rule of evidence before a jury, and there’s no reference to
         that in this record.

               THE COURT: Objection overruled.

         Assuming that the State’s comment was improper, we cannot conclude

that it was harmful. The comment concerned only appellant’s burglary charge.

As explained above, he was not convicted of that charge and has not appealed

the theft conviction related to that charge. Appellant does not explain how the

comment harmed him with respect to the aggravated robbery convictions at

issue.    Therefore, we overrule his fifth point.   See Tex. R. App. P. 44.2(b);

Wesbrook, 29 S.W.3d at 115; Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.

Crim. App. 2000).

         Finally, regarding appellant’s sixth point, during the State’s rebuttal

argument on appellant’s guilt, the following exchange occurred:

         [THE STATE:] If you will watch [the gas station surveillance] video,
         who’s there? Three people; the female, a guy in a hoodie, same
         hoodie that you see right here in the defendant’s bedroom. You can
         look at it.

               [DEFENSE COUNSEL]: Your Honor, object. I object. There
         is no evidence that the hoodie on the video is the hoodie in the
         photograph.

               [THE STATE]: They can see it for themselves, Judge.

               THE COURT: Overruled.

               [THE STATE]:        Watch the video.      Three people.     It
         corroborates a whole lot of evidence here.




                                         15
On appeal, appellant argues that the State’s statement about the hoodie was

“wholly outside the record and was an attempt by the [State] to inject new, and

harmful, evidence before the jury.”

      Directing us to testimony and exhibits admitted at trial, the State contends

that its argument about the hoodie from the surveillance video matching the

hoodie from appellant’s bedroom was a reasonable deduction from the evidence.

See Whitney, 396 S.W.3d at 704. We need not decide that issue, however,

because we conclude that even if the State’s argument was improper, it was not

harmful. See Tex. R. App. P. 44.2(b); Wesbrook, 29 S.W.3d at 115; see also

Logan v. State, 698 S.W.2d 680, 681–82 (Tex. Crim. App. 1985) (“[N]ot every

improper argument by a prosecuting attorney will cause a conviction to be

reversed.”); Ortiz v. State, 999 S.W.2d 600, 605–06 (Tex. App.—Houston [14th

Dist.] 1999, no pet.) (stating that an argument inviting speculation about matters

not in evidence is reviewed under the harm analysis for nonconstitutional error).

      In determining whether the argument above affected               appellant’s

substantial rights, we consider, in context of the entire record, the prejudicial

effect of the prosecutor’s remarks and the certainty of the conviction absent the

argument. Martinez, 17 S.W.3d at 692–93. Here, the prejudicial effect was low

and the certainty of conviction was high; appellant’s convictions did not hinge on

whether the hoodie in the surveillance video matched the hoodie from his

bedroom. Instead, to acquit appellant, the jury would have had to reject the

testimony of the Geers, Anderson, and Martin, all who directly linked appellant to


                                        16
the robberies. 8 We conclude that it is unlikely that the jury was inclined to reject

(or was unsure about accepting) the testimony of these four witnesses but

decided to believe them only when hearing the State’s argument about the

hoodie. Also, when confronted with the allegation that he had committed the

robberies during a custodial interview, appellant appeared to admit his guilt by

nodding and asking for a “guarantee” if he cooperated with the police.

      Because we conclude that the State’s argument did not harm appellant

when viewed in context with the entire record, we overrule his sixth point. See

Tex. R. App. P. 44.2(b); Martinez, 17 S.W.3d at 692–93.

                                    Conclusion

      Having overruled all of appellant’s points, we affirm the trial court’s

judgments.

                                                    PER CURIAM

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 8, 2015




      8
       As mentioned above, circumstantial evidence, including stolen property in
his possession, also linked appellant to the robberies.


                                         17
