May v. State

OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder. The punishment is death.

The appellant asserts twenty-nine grounds of error. Since he complains that the evidence is insufficient to corroborate accomplice witness testimony, a detailed recitation of the facts is necessary.

Appellant was indicted for the murder of his stepfather, Roy Melton Ayotte. It was alleged that the appellant, for remuneration and the promise of remuneration, hired Arthur Smith to kill Ayotte. Ayotte had been shot once; his body was found outside the Acme Refrigeration Company located at 3111 Polk Street in Houston.

Arthur Smith, who admitted he shot the deceased, pled guilty to murder and testified as a State’s witness in return for the State’s promise not to seek the death penalty against him. The appellant did not testify-

Smith, a part-time employee at a service station owned by Troy Pardue, testified as follows concerning the events preceding the commission of the offense: He became acquainted with appellant in 1976 and in late September or early October, 1977, appellant approached him about killing the deceased and told him that upon the death of the deceased, the Acme Refrigeration Company, a business then owned and operated by the deceased, would pass to appellant’s mother who in turn would allow appellant to operate the business. In return for the killing, appellant promised him payments of $1,000 and a 1968 Oldsmobile immediately after the killing and approximately $4,000 and a job within the following three year period. In preparation for the killing, he and appellant discussed various ways to kill the deceased and various alibis he could use. On four different occasions, he and appellant went to the Hot Wells Shooting Range to practice shooting appellant’s .30-.30 Winchester rifle; the same rifle he used to shoot the deceased. While at the shooting range on one of these occasions in late October, 1977, he remembered seeing two police officers target practicing and he also remembered that appellant purchased a new box of ammunition for the rifle. In early November, 1977, appellant delivered a .38 caliber pistol to him, assisted him in placing a lawnmower muffler on the barrel, and instructed him to use it to kill the deceased on Saturday, November 12, 1977. He decided, however, to make no attempt to kill the deceased on either that Saturday or the following Saturday, November 19. Then on November 26, he attempted to kill the deceased, but the shot he fired with the pistol missed. The following week appellant delivered his .30 — .30 Winchester rifle to *338him in exchange for the pistol and instructed him to kill the deceased on December 3, 1977. Appellant told him to park on Polk Street across from the Acme Refrigeration Company and shoot the deceased with the rifle before the deceased entered the building.

Smith further testified as follows concerning the events surrounding the commission of the offense: He left work on the morning of December 3, 1977, armed with appellant’s rifle. He drove appellant’s blue Dodge automobile and parked on Polk Street across from the Acme Refrigeration Company. While waiting for the deceased, he observed William Miller and a man named Wayne driving around in the area and he then recalled that Miller had been present on a number of occasions when he had discussed killing the deceased with appellant. When the deceased arrived around 9:30 a. m., he shot the deceased one time with the rifle. At approximately this same time, he observed Miller and Wayne drive away from the scene. He then left the murder scene, placed the rifle in the trunk of the blue Dodge and returned to work that afternoon. Subsequently, he hid the rifle in the garage attic of Pardue’s home. Appellant came by Pardue’s service station later that day as did Miller and Wayne. He did not discuss the payment with appellant at that time. He did, however, discuss the killing with Miller and he told Miller that he was waiting for appellant to pay him for the killing. That evening he and Pardue went to Pardue’s home and while he was there appellant called him on the phone and later came by to get him. He, appellant, and a woman named Vera then went to get the 1968 Oldsmobile before going over to appellant’s home where he then received from appellant $150 in cash, papers to the car, and a promise that an additional $350 would be left for him in an envelope at Pardue’s service station. After arguing with appellant about a change in the payment terms, he left to visit his estranged wife, Rhonda Stovall. He told Stovall about the killing of the deceased and appellant’s involvement in the killing. He left her some of the $150 he was paid by appellant and he then drove to his sister’s home in Louisiana. The following day, however, he returned to Houston for the purposes of collecting the $350 from the appellant and revisiting Stovall. He was unsuccessful in his attempt to collect the money from appellant, but he did revisit Stovall. He then returned to Louisiana where he was subsequently arrested for this murder. At the time of his arrest, he was driving the 1968 Oldsmobile given to him by appellant on the day of the murder.

The trial court properly instructed the jury that Smith was an accomplice witness as a matter of law. A conviction cannot be had upon the testimony of an accomplice witness unless that testimony is corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. Art. 38.14, V.A.C.C.P.

Troy Pardue testified that Smith left work at approximately 9:00 a. m. on December 3, 1977, Smith did not return to work until the afternoon of the same day, and appellant also came by his station the same afternoon. He and Smith left work around 7:00 p. m. and went over to his home. Shortly thereafter, appellant called on the phone and asked to speak with Smith. Approximately thirty minutes after the phone call, he heard a car horn outside and Smith left. He did not, however, observe the occupants of the car.

Rhonda Stovall, Smith’s estranged wife, testified that as early as November, 1977, Smith had mentioned killing a man for appellant. She also testified that Smith visited her around 10:00 p. m. on the night of December 3, 1977, and told her about the killing of the deceased and appellant’s involvement in the killing. He left her some money which he told her was part of the payment he received from appellant for killing the deceased. The following evening, he again visited her.

Stovall further testified that based on what Smith had told her about the killing, she contacted Houston police officers by *339phone on two different occasions. In the first phone call, she told police officers that she thought the rifle Smith used could be found in the trunk of a blue car which was parked at Pardue’s service station. In the second phone call, she told police officers that she subsequently learned the rifle Smith used in the killing could be found in Pardue’s garage attic.

R. L. Deloney, an officer of the Houston Police Department, testified that he received two phone calls after the killing of the deceased and that the caller identified herself as Rhonda Stovall on the second phone call. Based on Stovall’s information, police officers recovered a spent .30 caliber cartridge on a desk at Pardue’s service station and a .30-.30 Winchester rifle in Par-due’s garage attic. These items were admitted in evidence.

G. E. Thysson and J. E. Wiggens, officers of the Houston Police Department, testified that they observed appellant with Smith at the Hot Wells Shooting Range in late October, 1977, and that he was carrying a .30 — .30 Winchester rifle; the same type of rifle as the one admitted in evidence. They also observed appellant coming out of the office of the Hot Wells Shooting Range carrying a new box of ammunition.

Larry Hoffmaster, an officer of the Houston Police Department, testified that he and other officers conducted a search of appellant’s home and discovered a box of ammunition containing .30 caliber cartridges. The box was minus six cartridges. Dallas Lamar, the secretary/manager of the Hot Wells Shooting Range, testified that the handwritten price marking on the box of ammunition recovered from appellant’s home appeared to be the handwritten price marking that she placed on boxes of ammunition from her shooting range. Officer Hoffmaster further testified that he recovered the fatal bullet at the murder scene. Although the bullet was badly damaged, Robert Warkentin, a chemist, testified that it was a .30 caliber bullet.

William Miller was called by the State as a rebuttal witness. Appellant argues that Miller’s testimony may not be considered in corroboration of Smith because Miller was an accomplice witness as a matter of law. See Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977); Chapman v. State, 470 S.W.2d 656 (Tex.Cr.App.1971).

Miller testified that appellant told him on at least three occasions prior to December 3, 1977, that he (appellant) wanted a man on Polk Street killed and that he (appellant) had hired Smith to do the killing. He further testified that Smith was present on at least two of these occasions and that Smith had also told him that he (Smith) had been hired by appellant to kill a man on Polk Street. On the evening of December 2, 1977, appellant delivered to him a .38 caliber pistol with a lawnmower muffler attached. The following morning, he and Wayne Spring drove to Polk Street to wait for a man; Miller was carrying the .38 caliber pistol with him at this time. He saw the man he was waiting for shot, but he did not see who fired the shot. He and Spring then drove to Pardue’s service station where he told appellant about the killing. Appellant said he knew of the killing but stated that he did not wish to discuss any of the details at that time. Miller subsequently talked with Smith and Smith told him that he had just killed a man and that he was waiting to be paid by appellant for the killing.

Miller was asked if he could identify the rifle offered in evidence by the State. He testified that it was the same rifle appellant had delivered to him about a month prior to the killing and the same rifle appellant had then obtained from him about a week prior to the killing of the deceased.

The record reflects that the appellant withdrew his request for the court to instruct the jury that Miller was an accomplice witness and he objected to the court submitting such an instruction. However, the court submitted the issue of whether Miller was an accomplice witness as a fact question for the jury to decide. Where there is doubt whether a witness is an accomplice, submitting the issue to the jury is sufficient even though the evidence preponderates in favor of the conclusion that the *340witness is an accomplice as a matter of law. Carrillo v. State, 591 S.W.2d 876 (Tex.Cr. App.1979); Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975); Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975). Miller admitted that he knew of the scheme to kill the deceased and that he was present at the scene of the offense carrying a pistol delivered to him by appellant. There is no evidence that Miller was ever charged with this offense or that he was a party to any agreement between appellant and Smith. A witness is not deemed an accomplice witness because he knew of the crime but failed to disclose or even concealed it. Carrillo v. State, supra; Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976); Gausman v. State, 478 S.W.2d 458 (Tex.Cr.App.1972). Mere presence at the scene of the offense does not compel the conclusion that the witness is an accomplice witness. Arney v. State, 580 S.W.2d 836 (Tex.Cr.App.1979); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978). One is not an accomplice witness who cannot be prosecuted for the offense for which the accused is charged. Carrillo v. State, supra; Villarreal v. State, supra; Easter v. State, supra. A witness’ complicity with the accused in the commission of another offense does not make his testimony that of an accomplice to the offense for which the accused is on trial. Carrillo v. State, supra; Caraway v. State, supra; Easter v. State, supra. We hold that the trial court did not err in submitting the issue of whether Miller was an accomplice witness as a fact question for the jury. See and compare Carrillo v. State, supra; Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975); Zitterich v. State, 502 S.W.2d 144 (Tex.Cr.App.1973).

In view of the court’s instruction and the jury’s verdict, we may consider the testimony of Miller in corroboration of the testimony of the accomplice witness Smith. To test the sufficiency of the corroboration of an accomplice witness, one must eliminate from consideration the evidence of the accomplice witness, and then examine the evidence of the other witnesses to ascertain if it is of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Carrillo v. State, supra; Brown v. State, 561 S.W.2d 484 (Tex.Cr.App.1978); Caraway v. State, supra; Etheredge v. State, 542 S.W.2d 148 (Tex.Cr.App.1976); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1972). The corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Lyman v. State, 540 S.W.2d 711 (Tex.Cr.App.1976); Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975); Black v. State, 513 S.W.2d 569 (Tex.Cr.App.1974); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971). The corroboration need only make the accomplice’s testimony more likely than not. James v. State, 538 S.W.2d 414 (Tex.Cr.App.1976); Bentley v. State, supra; Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).

There is ample evidence in the record to corroborate Smith’s testimony other than the mere commission of the offense. We hold that the testimony of Miller and that of the other State witnesses, is incriminating, tends to connect appellant to the commission of the offense, and makes Smith’s testimony more likely than not. Appellant’s challenge to the sufficiency of the evidence to corroborate Smith’s testimony is overruled.

Appellant next' asserts the trial court erred in failing to grant his motion to quash the indictment. In his motion to quash appellant states that the indictment is insufficient in that it alleges “remuneration generally, vaguely, and indefinitely .. . absent specificity, thereby making it impossible for the Defendant to defend himself against such a cryptic and enigmatic accusation.”

The indictment in pertinent part alleges that the appellant on or about December 3, 1977,

“. . . did then and there unlawfully, intentionally and knowingly cause the death of Roy Melton Ayotte by employing another, namely Arthur Smith, to commit the murder for remuneration and *341the promise of remuneration and said Arthur Smith did cause the death of Roy Melton Ayotte pursuant to the aforementioned agreement by shooting him with a gun.”

An indictment must allege facts sufficient to give a defendant notice of precisely what he is charged with. Art. 21.11, V.A.C. C.P. However, unless a fact is essential for notice to the defendant, the indictment need not plead the evidence relied on by the State, Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980), Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966), Bedwell v. State, 142 Tex.Cr.R. 599, 155 S.W.2d 930 (1941), and it is a rare exception when an indictment drawn in the language of the penal statute is legally insufficient to provide a defendant with notice of the charged offense. Phillips v. State, supra; Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978); Ames v. State, 499 S.W.2d 110 (Tex.Cr.App.1973); Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.1973).

V.T.C.A.Penal Code, Sec. 19.03, in part provides:

“Sec. 19.03(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
* * * * * *
“(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.”

V.T.C.A.Penal Code, Sec. 19.02, in part provides:

“Sec. 19.02(a) A person commits an offense if he:
“(1) intentionally or knowingly causes the death of an individual.”

The indictment in the instant case contains all of the constituent elements of an offense under the provisions of V.T.C.A. Penal Code, Sec. 19.03(a)(3). The additional information requested by appellant in his motion to quash is evidentiary and not required for purposes of notice and plea in bar. We therefore find the indictment sufficiently alleges facts to enable the appellant to prepare his defense and is not subject to a motion to quash. See McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979). See and compare Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976).

Appellant next asserts the trial court erred in overruling his objection to the testimony of a police officer that he observed no remorse on the part of appellant. Officer Deloney testified that he had a conversation with appellant three days after the shooting of the deceased, appellant did not appear to be emotionally upset, appellant was neither crying nor weeping, “there was no remorse that he evidenced,” and appellant became nervous when questioned about the rifle. Appellant’s objection was made relative to appellant showing “no remorse that he evidenced” for the reason that it called for a conclusion on the part of Officer Deloney.

This Court has consistently held that when a lay opinion as to the mental attitude or emotional state of an accused is the mere shorthand rendering of the facts, the opinion is admissible as indicative of demeanor, subject to cross-examination as to the facts upon which it is based. See Brown v. State, 561 S.W.2d 484 (Tex.Cr.App.1978); Ashley v. State, 527 S.W.2d 302 (Tex.Cr.App.1975); Miller v. State, 145 Tex.Cr.R. 419, 168 S.W.2d 864 (1943); Hernandez v. State, 110 Tex.Cr.R. 159, 8 S.W.2d 947 (1927); Willis v. State, 91 Tex.Cr.R. 329, 239 S.W. 212 (1922); Beaupre v. State, 206 S.W. 517 (Tex.Cr.App.1918); Crowell v. State, 56 Tex.Cr.R. 480, 120 S.W. 897 (1909). We find the evidence that, after the shooting of the deceased, Officer Deloney spoke with and observed the appellant’s actions and demeanor, is competent and the complained of statement describing appellant’s mental attitude is merely a shorthand rendition of the facts occurring on that visit. This ground of error is overruled.

Appellant next asserts in thirteen related grounds of error that the provisions of Art. 38.14, supra, are applicable to the extraneous offenses offered in evidence by the State at the punishment stage of his trial. *342We have grouped these grounds of error into three general areas whereby appellant urges that: (1) the testimony of an accomplice witness must be corroborated before it may be used to support the jury’s answers to both special issues of Art. 37.071, V.A.C. C.P.; (2) the court erroneously failed to submit, after a timely request, charges on “accomplice witnesses” at the punishment stage of the trial; and (3) the evidence, excluding the testimony of the accomplice witnesses, is insufficient to sustain the jury’s findings that his conduct was deliberate and that there was a probability he would commit criminal acts of violence that would constitute a continuing threat to society. Art. 37.071, supra.

Art. 38.14, supra, provides:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

Art. 38.14, supra, concerns the sufficiency of evidence needed to support a conviction and to connect the defendant with the offense charged when the State is relying on accomplice witness testimony. Before the punishment stage of the trial is reached the defendant has been found guilty — he has been convicted — only his punishment remains to be assessed. Nothing in Art. 38.-14, supra, suggests that “yes” answers to the special issues of Art. 37.071, supra, at the punishment stage of the trial cannot be had upon uncorroborated accomplice witness testimony.

Art. 37.071, supra, in pertinent part provides that at the punishment stage of a capital murder trial,

“(a) . .. evidence may be presented as to any matter that the court deems relevant to sentence.”

This provision has been interpreted to allow the trial judge wide discretion in the evidence that may be admitted. Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.d.2d 250 (1977); Gholson and Ross v. State, 542 S.W.2d 395 (Tex.Cr.App.1976), cert. denied, 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977). In Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979), it was said:

“In upholding the constitutionality of the Texas death penalty procedures, the United States Supreme Court noted:
“ ‘Texas law requires that if a defendant has been convicted of a capital offense, the trial court must conduct a separate sentencing proceeding before the same jury that tried the issue of guilt. Any relevant evidence may be introduced at this proceeding .... The Texas capital-sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death .... What is essentia] is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.’ [Emphasis added.]
“Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).”

Relevant information about a defendant includes admitting evidence of his “prior criminal conduct,” whether or not such conduct resulted in a final conviction. Hammet v. State, supra; Jurek v. State, supra. Uncorroborated accomplice witness testimony falling within the range of “prior criminal conduct” would be relevant information about a defendant and we find nothing in Art. 37.071, supra, to preclude it from supporting an affirmative answer to either special issue. This Court has consistently held that the provisions of Art. 38.14, supra, are not applicable to every facet of a case that is supported by uncorroborated accomplice witness testimony. See Russell v. State, 551 S.W.2d 710 (Tex.Cr.App.1977) and Moreno v. State, 476 S.W.2d 684 (Tex.Cr.App.1972) (rule inapplicable to revocation of probation hearings); Komurke v. *343State, 562 S.W.2d 230 (Tex.Cr.App.1978) and Carnathan v. State, 478 S.W.2d 490 (Tex.Cr.App.1972), V.T.C.A. Penal Code, Sec. 8.07 (rule inapplicable to testimony of a complainant that is too young to be criminally responsible for his conduct); Cranfil v. State, 525 S.W.2d 518 (Tex.Cr.App.1975) and Jenkins v. State, 484 S.W.2d 900 (Tex.Cr.App.1972) (rule inapplicable to testimony of an accomplice witness called by the accused); Brown v. State, 476 S.W.2d 699 (Tex.Cr.App.1972) (rule inapplicable to evidence introduced by the accused); Saunders v. State, 572 S.W.2d 944 (Tex.Cr.App.1978) and Carr v. State, 495 S.W.2d 936 (Tex.Cr.App.1973) (rule inapplicable to testimony of an accomplice witness when the accused takes the stand and admits all acts constituting the crime charged.) See also Rice v. State, 605 S.W.2d 895 (Tex.Cr.App.1980) (on motion for rehearing this Court withheld its ruling on whether an accomplice witness testifying at the guilt stage of a trial about an extraneous offense need be corroborated before the extraneous offense is admissible in evidence.) We hold that evidence offered to prove the special issues of Art. 37.071, supra, is not included within the provisions of Art. 38.14, supra. Therefore, the “yes” answers to the special issues of Art. 37.071, supra, are supportable on the relevant accomplice witnesses’ testimony concerning the appellant’s prior criminal conduct and the court did not err in failing to submit an “accomplice witness” charge at the punishment stage of the trial.

At the punishment stage of the trial, the State re-offered the evidence adduced at the guilt stage of the trial. In addition, the State introduced the following evidence to show that appellant had been involved in other murder for hire schemes; Miller testified that on the night of December 2, 1977, appellant delivered a pistol to him and asked him to kill a man on Polk Street; appellant offered him $1,000 for the job. Both Miller and Smith testified that appellant had hired them to kill Howard Ross prior to Smith killing the deceased. After one of their unsuccessful attempts to end Ross’ life, appellant told them, “(h]e ain’t dead. I want him dead.” Smith then shot Ross, but Ross did not die from the gunshot wound. When appellant discovered that Ross was still alive, he instructed them to go to the hospital where Ross was recovering and finish him off. This plan was too dangerous and they decided against killing Ross while he was in the hospital. Appellant then instructed them that Ross was going to be transferred to New Orleans and that they should shoot Ross and everyone else in the car en route to New Orleans. They refused, however, to carry out appellant’s instructions and Ross was never killed. Miller and Smith also testified that appellant next wanted the deceased’s father killed. And Smith further added that appellant discussed with him the killing of a merchant seaman and the killing of an unknown man whose wife wanted him murdered. We find the testimony of Smith and Miller, combined with the evidence adduced at the guilt stage of the trial, sufficiently supports the jury’s determination that appellant’s conduct was deliberate and appellant would commit criminal acts of violence that would constitute a continuing threat to society. Art. 37.071, supra. These thirteen grounds of error are overruled.

Appellant next asserts that the prosecutor made an improper jury argument. He says the prosecutor attempted to bring to the jury’s attention matters not admissible in evidence. During the State’s closing argument at the guilt stage of the trial, the following occurred:

“[PROSECUTOR]: You heard Mr. Miller testify up here, and you heard what he had to say, what the law let you hear. He could have told you—
“MR. McLEAN [DEFENSE ATTORNEY]: I object. That’s something inadmissible that they couldn’t hear, Your Honor.
“MR. POE [PROSECUTOR]: It’s what the law lets you hear.
“THE COURT: The jury has heard the evidence.
“MR. McLEAN: May I have a ruling?
“THE COURT: Overruled.
*344“MR. POE: They could have asked him any question they wanted to on cross examination to impeach him, but they didn’t. They wanted to come up with one conflict.
“Remember how Mr. House [Defense Attorney] came up here with that statement and folded it up really little and handed it to Miller so he would read one line? You remember that. You saw that.
“And he told you under oath there is more in that statement than what he testified to. They could ask him anything they wanted to. They say he’s a big buddy and all that of Chester’s. Why didn’t they go into all of that stuff on cross examination? It makes you wonder, doesn’t it, about what Miller knew.
“MR. McLEAN: I object to that. That’s an inference that there is some inadmissible testimony the jury should have heard. That’s inadmissible. I object to that.”

Appellant’s objection was sustained and an instruction to disregard given. His motion for mistrial was overruled.

An argument 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. Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980); Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App.1979); Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977). If a prosecutor’s remarks during jury argument may be reasonably construed as referring to the defendant’s failure to present evidence through a witness other than himself, reversal is not required. McMahon v. State, 582 S.W.2d 786 (Tex.Cr.App.1978); Bolden v. State, 504 S.W.2d 418 (Tex.Cr.App.1974); Brown v. State, 475 S.W.2d 761 (Tex.Cr.App.1971); Alvear v. State, 170 Tex.Cr.R. 378, 341 S.W.2d 426 (1960).

If the prosecutor’s argument can be construed to refer to inadmissible testimony, we are unable to conclude that the error is reversible under the circumstances presented in the instant case. Our reading of this record as a whole reveals overwhelmingly the guilt of appellant and we do not perceive the prosecutor’s argument to have been extreme or manifestly improper, violative of a mandatory statute, or as having injected new facts harmful to the accused into the trial. See Little v. State, 567 S.W.2d 502 (Tex.Cr.App.1978); Taylor v. State, 550 S.W.2d 695 (Tex.Cr.App.1977). See also Todd v. State, supra; Hardeman v. State, 552 S.W.2d 433 (Tex.Cr.App.1977); Mims v. State, 466 S.W.2d 317 (Tex.Cr.App.1971); Hoover v. State, 449 S.W.2d 60 (Tex.Cr.App.1969). Cf. Stearn v. State, 487 S.W.2d 734 (Tex.Cr.App.1972). As a result of the court overruling appellant’s first objection, the prosecutor merely commented on appellant’s failure to present evidence through the witness Miller. See McMahon v. State, supra; Bolden v. State, supra; Brown v. State, supra. And the sustaining of appellant’s second objection followed by an instruction to the jury to disregard the prosecutor’s argument sufficiently cured the later error.

Appellant next asserts the trial court erred in admitting evidence seized during the search of appellant’s home. After appellant’s arrest and removal from his home, his wife was asked if she would consent to a search of their home. She said that she would consent and she then signed a written consent to search form that was witnessed by three Houston police officers. The search turned up a box of .30 caliber cartridges and various other papers.

In Nastu v. State, 589 S.W.2d 434 (Tex.Cr.App.1979), it was said:

“It is the right of every citizen to be secure in his home from warrantless searches in all but a few instances. However, ‘[o]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.’ Kolb v. State, 532 S.W.2d 87, 89 (Tex.Cr.App.). But before consent can be effective, the prosecution must prove by clear and convincing evidence that the consent was given freely and voluntarily. Bump*345er v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.); Kolb v. State, supra.
“ ‘Whether a consent to search was voluntary is a question of fact to be determined from the totality of the circumstances.’ Brem v. State, 571 S.W.2d 314, 319 (Tex.Cr.App.).
“Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).”

The evidence adduced at the hearing on appellant’s motion to suppress reflects that a capias issued for appellant’s arrest at approximately 3:00 p. m. and that he was subsequently arrested at his home around 1:00 a. m. the next morning. Officer Hoff-master, an arresting officer, then talked with appellant’s wife to determine whether she would execute a consent to search form. He informed her that she had the right to refuse her consent and that the purpose of the search was to look for evidence implicating appellant in this offense. The consent to search form was signed by her at approximately 1:20 a. m. and it included a statement that she had been informed of her constitutional right not to have a search made. She testified that the police officers had been polite to her; they did not threaten her to obtain her consent for the search. Although appellant introduced evidence to show that his wife is or was an alcoholic, she specifically testified that she was not under the influence of any intoxicants at the time she consented to the search. Given the totality of the circumstances in this case, we find ample evidence to support the trial judge’s decision that the appellant’s wife voluntarily consented to a search of the premises. See Swinney v. State, 529 S.W.2d 70 (Tex.Cr.App.1975); Jemmerson v. State, 482 S.W.2d 201 (Tex.Cr.App.1972).

Appellant also complains that the consent to search form in this case allowed the State to circumvent the warrant requirements because it was used to conduct a general exploratory search. We reiterate that a search conducted pursuant to consent is one of the specific established exceptions to the Fourth Amendment requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, supra; Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946); Nastu v. State, supra; Doescher v. State, 578 S.W.2d 385 (Tex.Cr.App.1978). The extent of a consent to search is limited by the consent obtained in a particular instance. May v. State, 582 S.W.2d 848 (Tex.Cr.App.1979). In the instant case, the written consent to search form authorized police officers to conduct a complete search of appellant’s home and seized any letters, papers, materials, or other property they desired. This ground of error is overruled.

Appellant next asserts in two grounds of error that the trial court committed reversible error in admitting in evidence a written statement of State’s witness Arthur Smith. Smith was recalled by the defense and in an attempt to discredit his testimony, defense counsel read portions of a written statement Smith had made to police officers after his arrest. On cross examination, the State requested that the statement in its entirety be introduced. Appellant objected urging that the statement improperly bolstered Smith’s testimony and contained references to extraneous offenses. The court overruled appellant’s objections.

The record reflects, however, that the statement was later withdrawn by the court on its own motion. Outside the presence of the jury, the following occurred:

“THE COURT: As to Arthur Smith’s statement, I’m going to let the record reflect the jury has not seen any of the contents of the statement and the Court is going to sustain the objection you made earlier concerning the extraneous matter and order that it be deleted, that portion of the statement which says, ‘He discussed the killing with me and Miller.’
“The portion saying, ‘and Miller,’ will be deleted from that statement.
“MR. HOUSE: His Honor is going to go ahead and let in the rest of the statement in total? Is that correct?
“THE COURT: Let me look at that statement again.
*346“We will withhold the ruling at this time. Prior to the statement being given to the jury, we will make that determination. Go ahead.”

A careful examination of the remainder of the record reflects that the statement was never readmitted in evidence for the jury’s consideration for any purpose whatsoever. Error, if any, is thereby rendered harmless. See Furtick v. State, 592 S.W.2d 616 (Tex.Cr.App.1980); Nelson v. State, 505 S.W.2d 271 (Tex.Cr.App.1974); Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.1972).

Appellant next asserts the trial court erred in admitting over objection the testimony of Rhonda Stovall that bolstered the unimpeached testimony of Smith. Stoval was permitted to testify as to statements made to her by Smith on the night of December 3, 1977, that implicated appellant in the murder.

Where there is sufficient independent evidence to establish a conspiracy, hearsay acts and statements of a conspirator which are made prior to the time the object of the conspiracy is completed are admissible, Denney v. State, 558 S.W.2d 467 (Tex.Cr.App.1977); Delgado v. State, 544 S.W.2d 929 (Tex.Cr.App.1977), Helms v. State, 493 S.W.2d 227 (Tex.Cr.App.1973), and they are admissible even though occurring out of the presence and hearing of the conspirator on trial. Lapp v. State, 519 S.W.2d 443 (Tex.Cr.App.1975); Saddler v. State, 320 S.W.2d 146 (Tex.Cr.App.1959).

The independent evidence of a conspiracy between appellant and Smith in the instant case is quite sufficient. Appellant argues, however, that “if the statements by Arthur Smith to Rhonda Stoval on the night of December 3, 1977, were after the conspiracy had ended, they were inadmissible and bolstering was the proper objection.”

In Robins v. State, 117 S.W.2d 82 (Tex.Cr.App.1938), it was said:

“A conspiracy is not finally terminated until everything has been done that was contemplated to be done by the conspirators.”

The conspiracy in the instant case did not terminate upon the completion of the murder. It was contemplated by the conspirators that Smith would receive compensation for the job. On the night of December 3, 1977, Smith had not yet received all of the compensation agreed upon; he had only been paid $150 and given the 1968 Oldsmobile. We find that the object of the conspiracy had not been completed. See Brown v. State, 576 S.W.2d 36 (Tex.Cr.App.1978) (rev’d on other grounds on Motion for Rehearing); Adamson v. State, 21 S.W.2d 675 (Tex.Cr.App.1929). See also Bates v. State, 587 S.W.2d 121 (Tex.Cr.App.1979). This ground of error is overruled.

Appellant next asserts he was denied his rights to a fair and impartial trial and due process of law because the State, “intentionally, knowingly, and deliberately presented patently false evidence amounting to a subrogation of perjury on the issue of whether William R. Miller was an accomplice as a matter of law” at the guilt stage of the trial. Appellant argues that because the State presented different versions of Miller’s complicity in the murder of the deceased at the two stages of the trial, he was denied due process and a fair and impartial trial.

Miller’s testimony at the guilt stage of the trial has already been set out in the recitation of facts. At the punishment stage of the trial, Miller testified that he was present on a number of occasions when appellant and Smith discussed killing the deceased. He was further permitted to testify that on the night of December 2, 1977, when appellant came to his trailer home with the .38 caliber pistol, appellant asked him to use the gun to kill a man on Polk Street. Appellant told him that Smith had (up until that time) failed on two or three occasions to do the job and that he would pay him (Miller) $1,000 for the killing.

Reviewing the evidence at both stages of the trial, we fail to perceive that the State presented false testimony at the guilt stage of the trial on the issue of Miller’s complicity. Moreover, appellant does not present us with any specific instances of false testimo*347ny. The State merely presented a more detailed recitation of Miller’s complicity at the punishment stage of the trial so that attention could be focused on the alleged extraneous offense involving appellant and Miller. At the guilt stage of the trial, it may have been an improper reference to an extraneous offense if the State had been permitted to prove that appellant had also hired Miller to kill the deceased. This ground of error is without merit.

Appellant next asserts he was denied his rights to a fair and impartial trial and due process of law because the State, “intentionally, knowingly, and deliberately presented patently false evidence amounting to subornation of perjury on the issue of remuneration” at the guilt stage of the trial. Appellant argues that the State presented false evidence on the issue of remuneration through the testimony of Smith at the guilt stage of the trial.

At the guilt stage of the trial, the following colloquy occurred as Smith was being questioned about the 1968 Oldsmobile:

“Q. [PROSECUTOR]: Mr. Smith, at some time during 1977 did Mr. May approach you about doing some work for him?
“A. Yes, sir, he did.
“Q. And as part of this work that you were to do for him, was there any mention of payment or partial payment for that work being accomplished by transferring an automobile to you?
“A. Yes, sir, it was.
“Q. And was an automobile actually bought by Mr. May for the purpose of paying you for this work that you were to do for him?
“A. Yes, sir.
“Q. What kind of automobile was it?
“A. ’68 Oldsmobile”
* * * * * *
“Q. Mr. Smith, did you ever receive possession of that automobile or drive it in any manner, except at the time that it was purchased, until December 3rd, 1977?
“A. No, sir, I did not.
“Q. One other thing, sir. On State’s Exhibit No. 1 there is a block that says: ‘Date Issued.’ What is that date, sir?
“A. 9-14-77.
“Q. September 14th, 1977?
“A. Right.
“Q. Does that sound consistent with the time that you and Mr. May bought that automobile, sir?
“A. Yes, sir, it does.
“Q. Shortly after that time, Mr. Smith, did the defendant begin talking to you about a job, shall we say, in relation to Roy Ayotte, Jr.?
“A. Yes, sir, he did.
“Q. What was the nature of the job that he wanted done, sir?
“A. He wanted him shot.
“Q. Did he want him killed, sir?
“A. Yes, sir, he did.”

At the punishment stage of the trial, the following colloquy occurred as Smith was being questioned about the 1968 Oldsmobile:

“Q. And, Mr. Smith, you testified previously in this case that the ’68 Oldsmobile that was given to you by Mr. May was actually bought for another job. What was that job, sir?
“A. For Howard C. Ross.”

Reviewing Smith’s testimony at both stages of the trial, we are unable to say that the State presented false evidence at the guilt stage of the trial on the issue of whether the 1968 Oldsmobile was partial remuneration for the murder of the deceased. The fact that the car was originally purchased as remuneration for another killing does not preclude it from eventually becoming remuneration for this killing. Moreover, at the guilt stage of the trial, it may have been an improper reference to an extraneous offense if the State had been permitted to prove that the car was actually bought by appellant to serve as remuneration for the killing of Ross. Smith’s testimony at the guilt stage of the trial merely establishes that the car was purchased in September by appellant for a “job” that he was to do for appellant. Shortly thereafter, *348appellant asked him to kill the deceased and the car was then used as partial remuneration for this offense. At the punishment stage of the trial, Smith testified that the car was actually purchased before the attempted killing of Ross; he and appellant discussed killing Ross in September, prior to any discussion concerning the killing of the deceased. He had attempted to kill Ross on three occasions and having failed to kill Ross he was then told by appellant to kill the deceased and the car became partial remuneration for this offense. This ground of error is without merit.

Appellant next asserts that the State’s failure to disprove the statement of Smith at the punishment stage of the trial that the 1968 Oldsmobile “was remuneration for another offense and not for the instant offense was such exculpatory substantive evidence that a reversal is mandated.” We reiterate that at the punishment stage of the trial, Smith testified that the car was originally purchased to serve as partial remuneration for the killing of Ross; he did not testify that the car was in fact the remuneration for that offense rather than the instant offense. The State, therefore, had nothing to disprove other than the fact that the car was not used for the original purpose for which it was bought.

At the guilt stage of the trial, Smith testified that he received the car as partial remuneration for the instant offense. His testimony was corroborated by other circumstances in the case. We find that the testimony of Smith plus the corroborating evidence at the guilt stage of the trial was sufficient to disprove that the ear was remuneration for another offense and sufficient to prove that the ear was partial remuneration for the instant offense. See Granger v. State, 605 S.W.2d 602 (Tex.Cr.App.1980); McManus v. State, supra.

Appellant next asserts the trial court erred in admitting over objection the testimony of Mizelle Miller, an inmate at the Harris County Detention Center. Appellant urges that the trial court violated the provisions of Art. 38.22, V.A.C.C.P.; he relies on Jimmerson v. State, 561 S.W.2d 5 (Tex.Cr.App.1978), and Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973).

Prior to Mizelle Miller testifying, appellant called three Harris County inmates to the stand and they all testified that Smith had told them that he killed the deceased in the course of a robbery. The State then called Mizelle Miller as a rebuttal witness and he testified that appellant had told him during their incarceration that he would receive free legal assistance if he would perjure himself at the trial and testify that Smith had told him that he (Smith) killed the deceased in the course of a robbery.

Prior to the 1977 amendment to Art. 38.-22, supra, effective August 29, 1977, there was a long standing rule that an oral statement of an accused, whether made in response to an interrogation or not, while “in jail or other place of confinement or in the custody of an officer,” was ipso facto inadmissible unless it fell within a statutory exception to Art. 38.22, supra. Oral statements made by an accused to jail inmates concerning a crime for which the accused was in custody did not fall within one of these statutory exceptions and were therefore inadmissible. Jimmerson v. State, supra; Easley v. State, supra.

The 1977 amendment to Art. 38.22, supra, now provides that the limitations of the statute apply only to statements that are the product of custodial interrogations; a voluntary oral statement is admissible if it is not the “result of” or does not “stem from custodial interrogation.” The statement from appellant to Mizelle Miller, which was made well after the effective date of the amendment, was not the product of a “custodial interrogation,” as that term is defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Newberry v. State, 552 S.W.2d 457 (Tex.Cr.App.1977); Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1975). Moreover, there is no evidence that Mizelle Miller was ever acting as an agent of law enforcement officials in his conversation with the appellant. We therefore find the appellant’s statement to Mizelle Miller was properly admitted in evidence over appellant’s objec*349tion. See Bubany, The Texas Confession Statute: Some New Wine in the Same Old Bottle, 10 Tex.Tech.L.Rev. 67, 73—6 (1978). Cf. Jimmerson v. State, supra at 8, note 1.

Appellant next asserts the trial court improperly excused prospective juror Anthony Rein in violation of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). A careful review of the record, however, reflects that no objection was raised to the exclusion of Rein. Failure to object to the improper exclusion of a potential juror waives such error on appeal. White v. State, 610 S.W.2d 504 (Tex.Cr.App.1981). See Evans v. State, 614 S.W.2d 414 (1980); Crawford v. State, 617 S.W.2d 925 (1980.)

Appellant next asserts in three grounds of error the trial court improperly excused prospective jurors R.L. Schlosser, Clarence Ellis, and D.C. Merdian in violation of Adams v. Texas, supra. A careful review of the record reflects that no specific objections were made by appellant to the State’s challenge for cause that any of the prospective juror’s exclusions were inconsistent with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Rather, appellant’s objections were directed to the disqualification of the jurors under V.T.C.A. Penal Code, Sec. 12.31(b). We find that the appellant’s failure to specify in his objections that the juror’s exclusions were inconsistent with Witherspoon waived such error on appeal. See and compare Evans v. State, supra.

The judgment is affirmed.