Frank Scott Landen v. State

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.

2
 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.

3
 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.

4
 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.

5
 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

6
 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

7
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

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.

8
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

9
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

10
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

11
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.

12
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

13
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

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.

14
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

15
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

16
 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.

17
 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

18
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

19
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

20
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

21
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.

22
 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

23
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.

24