### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00448- CR NO. 03-12-00449- CR NO. 03-12-00450- CR NO. 03-12-00451- CR

Joshu a Rendon, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 390 TH JUDICI AL DISTRICT NOS . D-1 -DC- 11- 2006 00, D- 1-DC- 11- 3015 01, D- 1-DC- 11- 3016 46 & D-1 -DC- 11- 3017 18

HO NORAB LE B OB P ERKI NS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jur y fo u n d ap pellant J oshua Rendon g uilty of three counts of burg lary of a vehicle and one count of unauthorized use of a motor vehicle. See Tex. Penal Code §§ 30.04, 31.07. Following Rendon’s pleas of “true ” to enhanc ement para g raphs, the trial court sentenc ed Rendon to eig ht y ear s’ confine ment for one of the burg lary -of- a-ve hicle convictions and ten y ear s’ confine ment for e ach of the rema ining convictions, with the sentenc es to run conc urre ntly . On appe al, Rendon

asser ts tha t the trial court err ed in (1) admitting evidenc e of an extraneous offe nse and (2) deny ing his motion for mistrial following the State’s impermissible comment on Rendon’s failure to testify

. We will affirm the judg ments of the trial c ourt.BACK GR OUND This case involves four vehicular burg laries, all of which occur red within a twenty

four hour period. On Fe bruar

y 3, 2011, Shannon Evans was leaving her home when she dis covered that her g old-colore d Honda CR-V was not in front of her house wher e she parke d it. Evans would later testify that she had not g iven any one permission to use her vehicle, and she suspected that it had been stolen. Evans did not see w ho took he r vehicle, nor did she know exactly when it wa s taken. She later r eporte d the vehicle stolen.

T h at same morning , betwee n 9:00 and 9:30 a.m., Matthew Pury ear returne d to h i s vehicle to find that his driver’ s-side rea r window had been “busted open.” Pury ear later testified that his backpa ck, drumsticks, tambourine, compac t discs, and a duffle bag containing toiletries and his medication had be en taken from his car. Pury ear had par ked his ca r on the stre et the nig ht before , and he did not see who broke into his vehicle.

L ess than two hours afte r Pury ear discovere d that his ve hicle had been burg larized, Rache l Ba ldera ch parke d her car on the street near Z ilker Park so that she could beg in her morning

run. When she returne d to he r vehicle, she discovere d that her ve hicle’s window had been broken and someone had stolen her purse, which contained her wallet and cr ed i t ca rds. Ba ldera ch later 1 testified that her stolen cre dit car d was used at a local g roce ry store and a g as station. She also stated that when police returne d her items to her, approximately $100 was missing from her wa l l et. Ba ldera ch did not see w ho burg larized her ve hicle.

At trial, Ba ldera ch was never asked how long her run lasted or when she returne d from 1 her run. There fore , it is not clea r exactly when her vehicl e wa s b u rglarized. Howeve r, g iven the testimony outlined below, the burg lary must have occ urre d betwee n 10:00 and 11:30 a.m. 2Finally , at approximately 11:00 a.m. that same morn in g , Ch r istophe r Chance y parke d his vehicle in a parking lot near the Ba rton Creek Gre enbelt befor e his morning run. Chance y later testified that it was cold that morning , and he rema ined in his parke d car while he debate d whether he would in fac t g o running

. Whil e he was in his car , Chance y observe d a tan or g old Honda CR-V drive throug h the parking lot and park next to his car . Chance y noted that it “fe lt weird ” t h at t h e driver of the CR-V—whom he descr ibed as a Hispanic male with black hair—wa s parking direc tly
next to his vehicle even though the parking lot was otherwise empty

. Chance y b egan his run, but wit h i n t wo m inutes he decide d to turn back and chec k on his car . When he returne d, Chance y discovere d that the CR-V was g one, that his window had been broken in, and that someone had taken approximately

$2 in chang e and his ve hicle’s owne r’s manua l. Shortly there afte r, Offic er Raul Carrillo with the Austin Police Depa rtment observe d

a g old Honda matching the descr iption of a stolen vehicle drive and park in front of a home in East Austin. Offic er Carrillo “ra n the license plate” and confirme d that it was Evans’s stolen Honda CR-V. Offic er Carrillo parke d his police cruiser , and he observe d the male driver—w hom he later identified as Rendon—exit the vehicle and walk toward the back of a near by home, cut throug h the backy ard, and approa ch the passeng er side of another parke d vehicle. Offic er Carrillo activate d his overhe ad lights and Rendon ran awa y on foot, ignor i n g C ar ri l l o’s command to “fr eeze.” Offic er Carrillo put out a descr iption of Rendon and beg an his pursuit. Rendon was soon appre hended by 2

o t h er police office rs in the are a. When he was arr ested, Rendon had the key s to Evans’s s t o l en

Offic er Carrillo did not testify as to when he observe d Rendon parking the stolen vehicle. 2 Howeve r, other office rs testified that they responde d to Offic er Carrillo’s dispatch that Rendon was flee ing at 11:38 a.m. 3Honda CR-V and Ba ldera ch’s driver’ s license and cre dit car d in his pockets. Police also rec overe d

Ba ldera ch’s purse and wallet, Pury ear ’s backpa ck and other stolen proper ty , and Chance y ’s owner ’s manual in Evans’ s stolen vehicle.

Rendon was indicted fo r o n e co unt of unauthorized use of a motor vehicle, three
counts of burg lary of a vehicle, and o n e co u n t o f evading arr est. See id. §§ 30.04, 31.07, 38.04. Rendon pleade d g uilty

to evading arr est and to the burg lary of Chance y ’s vehicle , but pleaded not
g uilty to the remaining counts. At trial, the S tate called Evans, Pury ear , Ba ldera ch, and Chance y , who testified about the thefts as outlined above and identified their stolen proper ty that was

rec overe d by police office rs. The State also called police office rs who wer e involved in Re ndon’s

arr est and the resulting investiga tion. The jury found Rendon g uilty of all char g es. Rendon elec ted
to have the trial court assess punishment. The court sentenc ed Rendon to eig ht y ear s’ confine ment for the two offe nses to which he pleade d g uilty and ten y ear s’ confine ment for eac h of the rema ining offe nses, with sentenc es to run conc urre ntly

. This appea l followed. 3

DISCUSSIO N R en don raises two separ ate issues on appea l. First, he asser ts that the trial co u rt

err ed in admitting Chance y ’s testimony about the events lead i n g up to the burg lary of his vehicle beca use Rendon had alre ady pleade d g uilty to that offe nse, and there fore that burg lary was an
extraneous offe nse that was not rele vant to proof of the rema ining char g es. See Tex. R. Evid. 404(b). Second, Rendon claims that the trial court err ed in deny ing his motio n fo r m i s t ri al afte r the State

Rendon did not appea l his judgme nt of conviction fo r evading arr est, and that judgme nt 3 is not before us. 4im

p e r mi s s ib ly c o mm e n te d o n Re n d o n ’ s f a il u r e to te s ti f y . We w il l a d d

r e s s Re n d o n ’ s s e c o n d a

p p e ll a te 4 issue first.

Im perm issib le jury ar gum ent

I n h i s s econd issue, Rendon asser ts that the trial court err ed in deny ing his motion for mistrial afte r the State impermissibly commented on his failure to testify

. Specifica lly , Rendon
arg ues that the State’s comments “we re so direc t that no instruction was sufficie nt to overc ome their eff ect on the jury .” There fore , acc ording to Rendon, the trial court’s instruct i o n t o disreg ard the State’s comment wa s insufficient to cur e the c omment’s harm, and thus the only eff ective r emedy

was a mistrial. Nea

r the beg inning of its closing arg ument, the State made the following comments to the jury : There was a lot of cross-e x amination in this case . Def ense asked the wit nesses many , many , many questions. And there is no d o u b t th a t th e d e f e n d a n t g o t a g o o d d e f

e n s e in th is c a s e . . . . T h e r e w e r e a lot o f t h i n gs t alked about in this case , but there was nothing that explains what [R endon] was doing driving Shannon Evans’ stolen car or why her car key was found in his po cket, or why Rache l Ba ldera ch’s driver’ s license was in his pocket or her stolen cre dit car d was in his pocket. There absolutely was no g ood explanation for that other than he is guilty

of these of

fense s.

We note that neither of

these two a

ppellate issues could arg uably undermine the validity 4 of Rendon’s open g uilty pleas, which he made prior to the State’s opening statement. There fore , we conclude that Rendon’s valid g uilty plea to burg larizing Chance y ’s vehicle waived his rig ht to appea l these issues in c ause number 03-12-00451- CR bec ause his judg ment of g uilt for that offe nse “wa s rende red independe nt of, and is not supported by , the err or” alleg ed in Rendon’s appea l. See Y oung v. State , 8 S.W .3d 656, 667 (Tex. Crim. App. 2000). There fore , we will addre ss Rendon’s appellate issues only

as they rela te to the three char g es to which he pleade d not guilty

. 5I f they can explain what the key was doing in his pocket, if they can explain why he was driving that car , if they can explain why he has Rac hel’s stuff in his pocke t, then let him go.

Rendon’s trial counsel objected, asser ting that the State’s arg ument was “an impermissible comment

on my client’s silence.” The trial court sustained the o b j ec t i o n , reminded the jury that Rendon’s decision not to testify could not be considere d as evidenc e, and instructed the jury to disre g ard the State’s re marks. Rendon’s c ounsel moved for a mistrial, which the tria l court denie d. We reviewa trial c ourt’s ruling on a motion for mis trial for an abuse of discretion. Archie v. State , 221 S.W .3d 695, 699 (Tex. Crim. App. 2 0 07). We will uphold the trial court’s

r u li n g if it is w it

h in th e zo n e o f r e a s o n a

b le d is a g r e e me n t. I

d

. “ O n ly in e xtr e me c ir c u

ms ta n c e s , w h e r e prejudice is incura

ble, will mistrial be require d.” Hawkins v. State , 135 S.W .3d 72, 77 (Tex. Crim. App. 2004). “ [W ]hether a mistrial should have been g rante d involves most, if not all, of the same considerations that attend a harm analy sis.” Id. I n deter mining whether an improper jury arg ument

war rants a mistrial, we apply the following “

Mosley fac tors”:
1) sever ity of the misconduct (the mag nitude of the prejudicia l eff ect of the prose cutor’s c omments); 2) measure s adopted to cure the misc o nduct (the eff icac y of any cautionar y instruction by

the judg e); a

nd 3) the c erta inty

of convic tion absent the misconduct (the streng th of the evidenc e supporting conviction).

See Archie , 221 S.W .3d at 700 (citing Mosley v. S t a t e , 983 S.W .2d 249, 259 (Tex. Crim. App. 1998)). W e wi l l assume without deciding that the State’s arg ument was in fac t a comment on Rendon’s fa ilure to testify . Wit h this assumpti on in mind, we will apply the Mosley

fac tors.
6First, the State’s comment was very brief, did not direc tly ref ere nce Rendon’s failure
to testify , and only discussed R endon’s unex plained possession of stolen prope rty . Thus, the trial
court could have rea sonably conclude d that the S t at e’ s m i sconduct was not so sever e as to

nece ssarily mandate a mistrial. See id. (noting that comment on acc used’s failure to testify was brief and only rela ted to some of the c harg es). Fur thermore , the trial cour

t sustained Rendon’s obj ection to the State’s comments, immediately instructed the jury to disreg ard them, and included a jury -cha rg e instruction that ag ain explained that Rendon’s decision not to testify could not be conside red in the jury ’s deliber ations. Given these cura tive measure s, the trial court could have rea sonably conclude d that it “ame liorated
any potential harm” from the State’s alleg edly improper co m m en t s . See id. ; Bower v. State , 769 S.W .2d 887, 907 (Tex. Crim. App. 1989) (“O rdinarily , any injury from improper jury arg ument is obviated when the court instructs the jury to disreg ard

. . . .”), overruled on other grounds , Heitman v. State , 815 S.W .2d 681, 685 n.6 (Tex. Crim. App. 1991).

Finally , the State’s ca se ag ainst Rendon on all of the c harg es wa s very strong

. The State introduced evidenc e that (1) Offic er Carril lo o b s e r v e d Re n d o n o p e r a

ti n g E v a n s ’ s vehicle within h o urs of its being repor

ted stolen; (2) Evans did not g ive Rendon permission to use her v eh i cl e; (3) Rendon fled when Offic er Carrillo approa ched him and ignor ed Carrillo’s commands to fre eze; (4) R en d o n h ad Evans’s car key s in his pocket when he was arr ested; (5) Pury ear ’s proper ty was

rec overe d from Evans’s vehicle within twelve hours of that proper ty being stolen; and (6) within two hours of the burg lary of Ba ldera ch’s vehicle, Rendon had Ba ldera ch’s dr iver’s license and cre dit car d in his pocket and Ba ldera ch’s rema ining stolen proper ty was rec overe d from Evans’s stolen vehicle.

7Given this overw helming evidenc e, the trial court could have rea sonably conclude d that reg ardle ss

of t he S tate’s comments on Rendon’s failure t o testify , Rendon woul d alm ost cer tainly have been convicted of the char g es ag ainst him. S ee Archie , 221 S.W .3d at 700 (noting that overw helming inculpatory evidenc e indicates punishment would likely be the same reg ardle ss of impr o p er jury
arg ument); see also Tab o r v. State , 88 S.W .3d 783, 786 (Tex. App.—Ty ler 2002, no pet.) (“To

war rant an infere nce of g uilt based solely on the possession of stolen proper ty , it must be established that the possession was pe rsonal, re cent, a nd unexplained.”). There fore , all three Mosley fac tors support the trial court’s d et er m i n ati on that a

m istrial was not war

rante d in this case . See Archie , 221 S.W .3d at 699–700. T h u s , we ca n n o t conclude that the t ri al court abused its discretion in deny ing Rendon’s motion for mistrial. We

overr ule Rendon’s sec ond appellate issue.

Extraneous off

ense I n his first issue on appea l, Rendon asser ts that the trial court err ed in admitting Chance y ’s testimony about the burg lary of his vehicle. Specifica lly , Rendon arg ues that beca use he h a d a lr e a d y p le a d e d g

u i l t y t o t h a t b u r g l a r y , C h a n c e y ’ s te s ti mo n

y w a s im p e r mi s s ib le e xtr a

n e o u s - o f f e n s e evidenc e that was int roduce d to show that Rendon was a burg lar a nd there fore was more likely to have committed the rema ining burg laries. See Tex. R. Evid. 404(b). Rendon also arg ues that even if the testimony was offe red for a permissible purpose under Rule 404(b) of the Rules of Evidence , its probative value w as substantially outweig hed by

its prejudicial ef

fec t. See id. 403. Rule 404(b) states that “[e]vidence of other crimes, wrong s or acts is not admissible
to prove the char acte r of a person in order to show action in confor mity there with. I t may , howeve r,
8be admissible for other purposes, such as proof of motive, opportunity , i ntent, prepa ration, plan, k n o w le d g e , id e n ti ty , o r a

b s e n c e o f mi s ta

k e o r a c c id e n t

. . . . ” G e n e r a ll y , w e r e v ie w a tr ia l c o u r t’ s r u li n g

on extraneous-off

ense evidenc e for an abuse of discretion. De la Paz v. State , 279 S.W .3d, 343 ( T e x. Cr im

. A p p . 2 0 0 9 )

. H o w e v e r , w h e th e r th e tr ia l c o u r t a b u s e d it s d is c r e ti o n is o n ly p a r t o f th e a n a ly s is

. I f t he tr i al co urt err s in admitting ex trane ous-offe nse evidence, we wil l reve rse the
t ri al court’s judgme nt only if the err or aff ecte d the substantial rig hts of the acc used. See Tex. R

. App. P. 44.2( b); DeLeon v. State , 77 S.W .3d 300, 316 (Tex. App.—Austin 2001, pe t. r ef’ d). This non-constitutional err or is not g rounds for reve rsal if, “af ter examining the rec ord as a whole,” there is “fa ir assura

nce that the err or did not influence the jury , or had but a slight eff ect.” Motilla v. State , 7 8 S

. W.3d 352, 355 (Tex. Crim. App. 2002) (interna l quotations omitted); Johnson v. State , 9 6 7 S.W .2d 410, 417 (Tex. Crim. App. 1998). “A conviction is tainted if the err or is of such a mag nitude that it d i s rupt ed the jurors’ order ly evalua tion of the evidenc e, no matter how overw helming the other evidenc e.” Zuliani v. State , 903 S.W .2d 812, 828 (Tex. App.—Austin 1995, pet. ref ’d). For
p u rposes of this case , we will assume without deciding that the trial court err ed in admitting Chance y ’s testimony , beca use the rec ord is clea

r that Rendon suffe red no harmful err or even if the trial court a

bused its discretion. The State prese nted overw helming evidenc e of Rendon’s g uilt. Offic er Carrill o testified t h at h e o b serve d Rendon driving Evans’s stol en vehicle wit hin hours of its theft and that Re n d o n f le d w h e n Ca

r r il lo a p p r o a c h e d h im

. O n c e Re n d o n w a s a p p r e h e n d e d , p o li c e o f

f ic e r s r e c o v e r e d stolen proper

ty from Pury ear ’s and Ba ldera ch’s vehicles on Rendon’s person and in Evans’s stolen vehicle. Thus, even without Chance y ’s brief testimony , the State prese nted overw helming evidenc e

9that Rendon was g uilt y of the offe nses alleg ed, and the majority of this evidenc e was not

contra dict ed o r undermined by the defe nse. Compare DeLeon , 77 S.W .3d at 316 (conc luding admission of ext rane ous-offe nse evidence was harmful wher e “[ m] ore time wa s spent developing the extraneous wr ong doing tha n proving the ultimate issues alleg ed in the indictment”)

. F u rthermor e, Rendon pleade d g uilty to b u r g la r iz in g Ch a n c e y ’ s v e h ic le in th e p r e s e n c e of the jury

. “A plea of g uilty to a felony befor e a j u ry ad m i t s t he exis tence of all incriminating fac ts nece ssary to establish g uilt.” W ilkerson v. State , 736 S.W .2d 656, 659 (Tex. Crim. App. 1987).
T h er efore, the jury was awa re at the outset of the trial that Rendon had burg larized Chan ce y ’s vehicle. Chance y ’s testimony about this burg lary was very brief. He testified that he observe d a Hispanic male parke d near his vehicle in a y ellow or g old Honda CR-V minutes be fore his ve hicle

was burg larized. Given that the jury was alre ady awa re that Rendon was g uilty of this burg lary and Offic er Carrillo testified that he observe d Rendon opera ting Evan s ’s v ehicle, it is unlikely that Chance y ’s brief rec itation of the fac ts surrounding the minutes leading up to the burg lary disrupted the jury ’s orde rly

evalua tion of the evidenc e. See Zuliani , 903 S.W .2d at 828. Finally , the substance of Chance y ’s testimony was repe ated in Offic er Daniel Perez’s explanation of hi s investiga tion of C hance y ’s burglar ized vehicle. Offic er Perez testified wit hout objection that he responde d to Chance y ’s 911 call that his vehicle had been burg larized. P ere z testified t hat C hance y “advise d there was a g old SUV parke d next t o him with a male subject that had a hat and jacke t on, and when he walked awa y from his vehicle, he didn’t fee l rig ht so he came back 10 minutes later. That’s when he saw t h e g old, tan Honda SUV g one and his front window broken out.” This was eff ectively the same information Chance y provided in his testimony , and thus

10Chance y ’s testimony , even if inadmissible, was cumu l at ive of other evidenc e that was admitted

without objection. See Chamberlain v. State , 998 S.W .2d 230, 235 (Tex. Crim. App. 1999) (noting th a t th e r e is n o h a

r m in a d mi tt in g e v id e n c e if s a

me e v id e n c e s u

b s e q u e n tl y a d mi tt e d w it h o u t o b je c ti o n )

. Given the streng th of the State’s case , the limit ed scope of Chance y ’s testimony , the f a c t th a t Re n d o n p le a d e d g

u il ty b e f o r e th e ju r y to b u r g la r iz in g Ch a

n c e y ’ s v e h ic le , a

n d O f f ic e r Pe r e z’ s repe ating the substance of Chancey ’s testimony without objection, there is fair assura nce in the

rec ord that any potential err or in admitting Chance y ’s testimony did not influence the jury

. Motilla , 78 S.W .3d at 355. Thus, we conclude that any potential err or in admitting Chance y ’s testimony was harmless. We over

rule Rendon’ s first appellate issue.

CONCLUSION Having overr

uled Rendon’s two issues on appea l, we aff irm the judgme nt of the trial
court.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Aug ust 14, 2013 Do Not Publish

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