NO. 07-99-0441 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C DECEM BER 5, 2 001

______________________________ FRANK SCOTT LANDEN, APP ELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 100 TH DISTRICT COURT OF CHILDRESS COUNT Y; NO. 4220; HON ORABLEDAVID M. M CCOY, JU DGE

_______________________________ Before QUINN and REAVIS and JOHNSON, JJ. Appellant Frank Scott L anden appeals from his conviction for burglary of a habitation and his sentence of tw o years incarceration. By ten issues he urges that (1) the trial court

erred in denying hi s plea of doub le jeopardy; (2) his right to a speedy trial was violated; (3) the evidence waslegally and factually insuffici ent for conviction; (4) the trial court err ed in allowing all the testimony of a witness to berea d ba ck to t he j ury dur ing t rial; (5) the jury charge did not contain an acco mplice witness instr uct ion; and (6) he was2

entitled to introduce into evidence the fact that the indictment

against a co-defendant w as dismissed. We affi rm. BACKGROUND
On the weekend of April 18 and 19, 1998, Mr. Gary Dewayne Burt and his w ife left Child ress to s pend thew eekend in O klah om a Ci ty. When th e B urts re tur ned to t heir residence on Sunday, A pril 19, at about 11:15 p.m ., they found thehouse had been burglarized. The money an d receipts from Burt’s M y-T-Burger restaurant operations for Friday and Saturday were missing. Stephen McM ahan was one o f appellant’s acquaintances. On M ay 24, 1998, McMa han gave a written statement to the Chil dress Police Departm ent in which he stated thaton A pril 18, 1998, he drove appellant and Dory Wilks to the Burt’s res idence and then drove around for about fifteen to tw enty m inutes while appellant an d W il ks we re in the house. Christopher

Bushell wasalso an acquaintance of appellant’s. On June15, 1998,
w hile he was in jail on an unrelated cha rge , B ush ell told a Childress County deputy sheriff thatappellant had confessed to com mitting the burglary of the Burt residence. A

ccording to Bushell, appellant came over to Bushell’s house on Monday, April 20, 1998, and gave Bu she ll $350. Appellant informe d Bushell that appellant obtained the m oney by burglarizing the Burt res idence. Bushell stated that appellant described the particular met hod used to burglarize the residence.3

On Septem ber 14, 1998, a ppellant was indicted for the of fense of Burglary of a Habitation. The case first went to trial on June 15, 1999. Bushell was call ed as a witness bythe State. B ushell testified, in viol ation of a Motion in Limine filed by app ellant and granted bythe trial court, that appellant used to buy m arijuana fromhim. Thetrial judge granted appell ant’s request for a m istr ial. Ap pella nt t hen filed a S pec ial P lea o f D oub le Jeopardy. The trial court held a hear ing on a ppellant’s special plea on Septemb er 13, 1999. At the conclusion of the hearing the court denied the plea.
On Septem ber 14, 1999, the court again called the case for trial. The State announced “not ready ” and requeste d a continua nce due to the absence of a witness. Thisw as t he S tate’sfirs t an d on lyrequest for a continuance. Appellant announced ready and mo ved the court for dism issal for failu re to af

for d him a s pee dy t rial. The court denied appell ant’s motion to dismiss, granted the State’ s request for continuance, and reset the trial for October 13, 1999.
On October 13, 1999, th e co urtaga in called the case for trial and the case w as tried. During this t ria l the State ag ain c all ed Bushe ll as a witne ss. At the conclusion of the State’s direct exam ination of Bus he ll , two jur

y m em bers indicated that they h ad not h eard atleast a p ortion of B ushell’s testim ony. O ver appe llant’s obj ection, t he trial cour thad all of Bushell’s testim ony read to the jury by the court reporte r. The tri al court gave the j ury a limiting instruction before the read ing of Bushel l’s testimony. The tri al court al so included a limiting instruction as to such testim ony in the jury charge.4

During trial, appellant attem pted to introduce evidence of the S tate’s indictm entand dismissal of the indictmen t against appellant’s co-defendant, Dory W ilks, for t he burglary of the Burt house. The State obj ected, and the court sustained the objec tion and refused to adm it the evidence.
Befor e the jury

charge was

read to the j ury, appellant requested that the cour t include an accom pl ice w itness ins truction in regard to Bus hell’s tes tim ony. Th e court denied the request.
The jury fou nd appellant guilty and assessed punishm ent at a fine of $5 00 0 a nd two years i n t he Te xa s D ep ar tme nt of Cr i mi nal Just ice- Ins titu tion al D ivis ion. Aspre viou sly noted, appell ant chall enges his convi ction by ten i ssues. W e will address the issues in the order presented by appellant.
ISSUE ONE: DOUBLEJEOPARDY
Dur ing a ppe llant ’s firs t tr ial in June, 1999, Bushell was called as a witness by the State. During direct examination by th e prosecutor, pa rt of Bushell ’s answer to a question
wasth at ap pe l l an t “ us ed to co me over and buy ma rijuana fromme .” The trial court had pre viou sly

granted appellant’s m otion in limine in regard to extraneous offens es. Appellant objected to the testim ony as injecting an ex traneous offense and m oved for a m istrial on the basis that an instruction to the j ury to disregard the te st i mon y wo ul d n ot cu re th e h ar m. The trial court sustained the objec tion and granted the m otion for mistrial.5

Appellant asserts that r e-tria l consti tuted doubl e jeopardy because the State’s witness, after having been adm onished not to refer to ex traneous offenses, testified to an extraneousoffense in front of the jury. He urges that although the State sought toprevent the testimon y from being given by admonishing the witness before calling him to the stand, the State nevertheless s houl d be held accountable for the m istrial. Thus, appellant reasons, his double jeopardy claim should be sustained pursuant to A rtic le 1, § 14 of the Texas Cons titution and Ex pa rte Bauder , 974 S.W.2d 729 (Tex.Crim .App. 1998).
If a defendant m oves for and obta ins a m is trial because a prosecutor either delib era tely

or r eckless ly crosses the line between legitimate adversarial conduct and “mani fes tlyi mproper” conduct during trial, then re-trial is prohi bited by the Texas Constitution. See T EX . C ONST . art. I, § 14; Bauder , 974 S.W. 2d at 732. Asnoted, however, appellant does not urge that overreaching trial conduct by the prosecutor necessitated appellant’s mot ion 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 beca use a State’s witness testifies to an ext raneous offense by th e defendant, after having been i nstruct ed by the prosecutor

as to the trial court’s ruling on a m otion i n limine as to such m atter, further prosecution is prohi bited b y the double jeopa rdy provisions of the Texas Constitution. Appella nt’s mo tion for a m istrial was granted. We decli ne to hold that un der t he recor d before us the State shou ld be charg ed with misconduct so as to w arrant dismissal of

the prosecution on double jeopardy grounds. We overrule appell ant’s first issue.6 ISSUES 2 AND 3: SPEEDY TRIAL Byhis second a nd 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 A mendm entto the United States Constitution guarantees the right to a speedytrial. See Barker v. Wingo , 407 U.S. 51 4, 515, 92 S.C t. 2182, 2184, 33 L.E d.2d 101 (1972). The Texas Co nstitution also guarantees the right to a speedy trial. T EX . C ONST . art. I, § 10. The test for whethe r speedy trial rights have been violated under the federal and state constitution s is the sam e. See Hull v. State , 699 S.W.2d 220, 221 (Tex.Crim .App. 1985).
Our rev iew of s pee dy t rial c la i ms is de novo

. See Johnson v. State , 954 S.W.2d 770, 771 (T ex.Crim .App. 1 997). When reviewing the trial court's decision to grant or deny a defendant's claim that his rightto a speedy trial has been violated, the appellate court mu st balance four factors: (1) the length of the delay, (2) reasonsfor the dela y, (3) the defendant's assertion of the right, (4)any prejud ice to the defendant resulting from the delay. Barker

407 U.S. at 530, 92 S.Ct. at2192. No one f actor is determ inative of the result of the balancing process. Id . at 533, 92 S. Ct. at 2193. A. Length of D elay7

The primary burden to bring a defendant to trial rests upon the State. Id . at 527, 92 S.Ct. at 2190. Although no s pecific length of ti me before a defendant is brought to trial triggers a speedy trial analysis, som e courts presum e that a delay of eight m onths or longeris prejudicial. See Harris v. State , 827 S.W.2d 949, 956 (Tex.Crim .App. 1992) (en ba nc). The len gth of the delay is m easured from the time the defendant is arrested or f orm ally accused. Id . ( citi

ng United States v. Marion , 404 U.S. 307, 31 3, 92 S. Ct. 455 , 459, 30 L.Ed. 2d 468 (1 971)).
The State has theinitial burden of j ustifying a lengthy delay. Em ery v. State , 881 S.W.2d 702, 708 ( Tex.Crim .A pp. 1994). In light of a silent record, or one containing
reasons insuffi cient to excuse the del ay, it mustbe presum ed 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 delayshould be assigned different weights. A deliberate attem pt to delay the trial in order to hamper the defense shoul d weigh heavi ly agai nst theSt ate , w hile overcrowded dockets or negligence should we igh less heavily. Barker , 407 U.S. at 531, 92 S.Ct. at 2 192. "Neutral" reasons not att r ibuta ble to conscious design of the State to delay trial still weigh against the S tate because the ultim ate respon sibil it y for such conditions rests w ith the State. Id . Absent evidence of a re as on fo r t he de l ay , we pr es ume no vali d re aso n ex iste d fo r th e de lay of ap pella nt' s tr ial. Mabra v. S tate , 997 S.W.2d 770, 777 (Tex.Ap p.--Am arillo 1999, pet. ref’d).
Nine m ont hs e laps ed b etw een thedate ap pella nt w as in dicted and the date appell ant’s fi rs t t ri al be ga n. Th e t i me betw een appe llant’s co m pletion of d iscovery and the1 Only three of thos e m onths t ruly weigh against the S tate asthe trial co urtwas not in sessio n in Chil dress County for one of the four months. 8 June tr i al da te , h ow ev er , wa s a pp ro xi ma tely fivem ont hs. Follow ing t he g ran ting of h is
m otion for

m is trial in June, appellant di d not obje ct to the case b eing reset for the Septem ber

docket, and the record reflects that the reason fo r th e de lay was due to scheduling conflicts of

th e prosecutor, the court and appellant’s counsel. The length of delay factor weighs slightly in favor of appellant. Assuming, arguendo , that the delay w as suf fici ent lylong to tr ig ge r c on si de ra ti on of th e r emai ni ng spe ed y tr ia l f ac to rs , h owe ve r, we next consider the re asons for the del ay. B. Reasonsfor delay
Litt le evidence was offered at appellant’s speedy trial m otion hearing . The tr ial court took judicial notice of sever al times and events. Both the prosec utor and counsel for appellant ma de num erous statem ents of fact s about the case hi story which could h ave been, but were n ot, disputed by opposing counsel. See Pitts v. State , 916 S.W.2d 507, 510 (Tex.Crim.App. 1996) (en banc)

. Those statem ents, and thus the record, reflect that
so me of t he d elay

w as a ttr ibutableto appellant and som e of the delay wasattributable to the State. The delay between S eptem ber, 1998, and January, 19 99, was attributable to appellant because defense counsel wascon duc ting discove ry u ntil January. On the ot her hand, the four m onth delay between January and June, 1999, is attributable to the State
as there is no explanation about w hy appellant’s case was not brought totrial during the mont hs the court was in sessio n in Chil dress County. 1 There is no assertion that the case9

wasdeliberately delayed foll owing the m istrial i n June, 1999. A ppellant did not file a mot ion for

speedy trial until the State sought its fi rst continu ance at the Septem ber, 1999, trial setting. There is no evidence that any of the delay attributable to the State was a deliberate attem pt to ham per the defense. We conclude that the second f actor does not weigh heavily against either the State or app ellant.
C. As ser

tion of r ight

to s pee dy t rial
A defendant w ho fails to demand a speedy tr ial does not forever waive the right. Barker , 407 U.S. at 528, 92 S.Ct. at 2191. Neverth eless, a defendant's failure to dem and
a speedy trial can be a strong indication that the defendant did not want one. Id . at 536, 92 S.Ct. at 2 195; Har ris , 827 S.W.2d at 957; H arlan v. State , 975 S.W.2d 387, 390 (Tex.App.–Ty ler1998, pet. ref’d). A d efe nda nt' s m otivatio n in asking for dism issal rather than a prom pt trial is clearly rel evant, and ma y attenuate the st rength of his claim. Phillips v. State , 650 S .W.2d 396, 401 (Te x.C rim. App. 1 983). Appella nt’s counsel com pleted pre-trial d iscovery in January, 1999. There is no evidence that appellant req ues ted a tr ial s ett ing o r ot her w ise a cte d tobrin g hiscase to trial unt il June 15, 1999, w hen he announced ready for t rial. On the other ha nd, there is no evidence thatappell ant requested a co ntinuance or delayed the proceedi ngs, at least unt il the setti ng of

Octobe r, 1999, whe n he requ ested acontinua nce w hich the t rial court denied. App ellant did not move for a s peedy trial until September 14, 19 99, when h e lodged an oral motion fol lowing the State’s fi rst request f or a continuance due to the10

absence of a witness . In addition to m aking his oral motion for speedy trial, appellant fil ed
a Moti on to Dism iss for Failure of Speedy Trial. The trial court denied the m otion t o dismiss, granted the speedy trial motion and set the case for trial on the next m onth’s trial docket, at w hich time the case proceeded to trial. Appella nt’s failu re to request a trial setting or otherwise ass ert his right to a speedy trial until September 14, 1999, approximately nin e months after pre-tri al disco veryhad been com pleted, and after the State had disclosed the absence of a witness and m oved for a continuance, to a large degree negates his claim that he truly desired a s pee dy t rial. Moreo ver, the record of the discuss ion between couns el and the trial judge following the mistrial in June, w hen the trial judge, thepro sec uto r an d ap pella nt’ s c oun sel r eview ed t heir calendarsto determ ine when the cas e could be set for re-trial, indicates that the 3-m onth period of time between J une and the Septem ber trial date was not obj ectionable to appellant. Appellan t’s failu re to assert hi s right unti l after the State ask ed for i ts first continuance, at which tim e he m ove d for a dism issal, weighs heavily against him. See Barker , 407 U.S. at

536, 92 S.Ct . at 2195 ; Har ris , 827 S.W.2d at 957

.

D. Prej udice by delay
The United States S upreme Court noted in its Barker opinion that trial delay can be harmfu l to a defendant in three w ays: (1) pretrial incarceration may be oppressive; (2) the accused m ay be unduly subj ected to anx iety and concern; or (3) the accused' s defense may be impaired. Barker , 407 U.S. at 532, 92 S.Ct. 219 3. It is the defendant's burden to11

make a prima fac ie showing of prej udice. See Chapm an v. Evans , 744 S.W.2d 133, 137 (Tex.Crim .App. 1988) (en banc). If such a show ing is made by t he defendant, the burden shifts to the St ate to prove that the accused suffered no serious prejudice beyond t hat which ensued from the ordinary and inevitable delay of trial. Ex p arte Mc Ke nzie , 491 S.W.2d 122, 12 3 (Tex .Crim .App. 1973). In support of appellant’s m otion to dismiss for f ailure to rec eivea s pee dy t rial, his counsel argued m atters such as appe llant was having diff icult y ob tain ing e m ploy m ent in the county with the charge pe nding, app ella nt was subject to harassment and poli ce scrutiny, and app ellant cons istently pr oteste d his innoce nce and felt as t hough hewer e being slandered. Appellantoffered no proof of such m atters, however, and these are not the type of factual representations that the State’s

attorney could reasonably be ex pected to dispute, given the tim ing of and presentation of the oral m otion to dismiss. See Pitts , 916 S.W.2d at 510. Appellant further asserts that he was p rejudiced by a c hange in the testimony of Stephen McM ahan, who was the absent w itness in Septem ber. At the tria l i n June, the State called McMahan and he testified that he m et with and drove appellant a nd co
defendant

Dory W ilks to the Burt house. Thetestimon y of McM ahan during the October tria l, however, was off

ered by appellant, and was to the effect that McM ahan lied in June and at all other times he im plicated appellant in the burglary. At the October trial McMa han denied participating in the burglary and denied drivi ng appellant and W ilks to the bu rglarized house. Appell ant does not speci fy how the change in McMahan’s12

testimony

was prej udicial to him, and we fa i l to di sc er n h ow th e c ha ng e p re ju di ce d h i m. To the con trary, for a witness to change testim ony in the m anner McM ahan’s testim ony waschanged appear s to benefit ap pell ant: it removes eyewitness testi mony to appellant’s par tici pat ion in the burglary. We conclude that appellant has not proved prejud ice from the delay. The fourth factor w eighs against appellant.
On balance, only one of the three Barker factors weigh in favor of appellant, and thatfa cto r only slightly so. Two of the fac tors weigh against him ; one heavily so. We conclude tha t ap pella nt’ s rig ht to a s pee dy t rial h as n ot b een viol ate d, a nd o ver rule his issues two a nd three.

ISSUES 4 AND 5: LEGAL AND F ACTUAL SUFF ICIENCY

OF THE EVIDENCE Appella nt’s fourth and fifth issues challenge the legal and factual sufficiency of the evide nce to prove tha t heentere d th e B urt hou se w ith t he in ten t tocom m it th eft . H is argument

primarily relies on assertions that Christopher Bushe l l wa s an accomplice witness. Bu shell testi fied that appellant told him about how appellant conducted the burglar y. In the alternative, appellant urges that the evidence was factually insufficient to prove appellant’s intent to burglarize t h e Burt house, even if Bushell was not an
accom plice witness.
W hen reviewing challenges to both the legal sufficiency and the factual suff icien cy of theevid enc e tosup por t th e ve rdic

t, w e fir st re vi ew t he legal sufficiency challenge.13

Clewis v. State , 922 S.W .2d 126, 133 (T ex.Crim.App. 1996) (en banc). If the evi dence is legally sufficient to support the verdict, we then review the fac tual sufficiency challenge, if one is properly raised. Id . Our review is taken bei ng m indful that th e j ury is t he s ole 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 th e evidence i n the li ght most favora ble to the prosecution, a rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. Jac kso n v. Vir ginia , 443 U.S. 30 7, 319, 99 S.Ct

. 2781, 2789, 61 L. Ed.2d 560 (1979); Clewis , 92 2 S .W.2d a t 13 2. A ll theevid enc e is
rev ie wed, but evidence that does not s upport the verdict is disregarded. See , e.g ., Cham bers v. State , 805 S.W.2d 459, 461 (Tex.Crim .App. 1991) (en banc).
A factual suffi ciency revi ew of the evi dence begins with the presum ption that the evidence sup por

ting thej ury ’s ver

dict w as le gally

suf fic ie nt under the Jackson test. Clewis , 922 S.W.2d at 134. Factual sufficiency review is accom plished without viewing the evidence in the light most favorable t o th e pr ose cut ion, as theevid enc e is view ed in determ ining legal sufficie ncy. Id . The evidence is factually sufficientto support the verd ict if the verdict is notso con tra ry to th e ov erw helm ing w eigh t of theevid enc e asto b e cle arly wrong and unjus t. Id

. Stated other wise, the ev idence is no t fact ually suffic ient to s upport
a conviction if the appel late court determines, after viewing all the evidence in a neutral light, tha t th e pr

oof of g uilt i s so obviousl y weak as to undermine confidence i n the jury’s2 Further references to sections of the Texas Penal Code w ill be by ref er ence to “Penal C ode §_”.

3 For reasons whic h are fully discussed under the analysis of appellant’s eighth point of error, we hold that B ushell was not an acc omplice w itness. His testim ony did not therefo re need to be corroborated, and const ituted evidence of app ellan t’s

invo lvem ent

in the burgl ary. 14 determ ination, or

thepro of o f gu ilt, alth oug h ad equ ateif t ake n alo ne, 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 ma tter before us, are: (1) a person; (2) w ithout the effective consent of the owner; (3) enters a habitation; (4) with intent to com m ita felony or theft. See T EX . P ENA L C ODE A NN . § 30.02(a) (Vernon S upp. 2001). 2 Circum stantial evidence will support a burglary conviction. See Hardage v. State , 552 S.W.2d 837, 838-840 (Tex.Crim .App. 1977); Nelson v. Stat e , 905 S.W.2d 63, 64 (Tex .A pp. --A m arillo1995, no pet.). The State m ay use circum stantial evidence to pr ove burglarious entry, Clark v. State , 543 S.W.2d 125, 127 ( Tex.Crim .App. 1976), lack of consent, Kir

vin v. State , 575 S.W.2d 301, 303 (Tex.Crim .App. 1978), and intent. Stearn v. State , 571 S .W.2d 177, 178 (Te x.C rim. App. 1 978).
Bu she ll testified that on Monday, April 20, 1998, appellant ga ve him $35 0 and identified the m oney asproceed s fromthe burg laryof the Burt resid ence. Bushell also testified tha t ap pella nt d esc rib ed the m ethod used to burglarize the Burt residence, par ticu larly m ent ionin g th at t he b urg larsuns cre w ed t he lig ht b ulb s fr om the porch. 3 Appella nt’s mo ther, Sharon Finch, testified that on S aturday, April 18, 1999, she and appellant took the m oney and t he daily re ceipts f rom Burt’ s resta urant tothe B urt15

residence and left them inside the residence. After they left the Burt residence, they went to her house, w here they watched television together until about 3:00 a.m . in the mo rning, at whi ch ti me Finc h went to b ed. Sh e te stif

ied t hat shedid not see or speak to appellant aga in until she saw himat about 9:00 a.m . the following mo rning at the My-T-Burger. A written statem ent given by McM ahan to the police was introduced without limitation. In the statem ent, McM ahan related that on the night of April 18, 1998, he was driving his car and atappellant’s request, gave appellant and Dory W ilks a ride to the Burt residence and let them off in the alley. The w ritten statement further set out that McMahan then dro ve around for

fifteen to t

w ent y m inutes w hile appellant and W ilks were inside the residence. W hen McM ahan returned, appellant and W ilks put something in the trun k of McMahan’s
car and McM ahan then drove them back to appell ant’s house. Although M cMahan test ified in October that he did not drive appe llant to the Burt hous e, he was cross-exa mined
ex ten siv ely abouthis pri or inconsistent written and oral statem ents, including his trial testimony

in June, 1999, all of which im plicated appellant in the burglary.
Based on th e t es ti mony of th es e wi tnesses an d all reasonable inferences and deductions to be ma de therefrom , a rational trier of fact could have found the existence of all the element

s 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) (e n banc).
In reviewing the factual sufficiency of the evidence, we cons ider all of the evidence, and com pare that w hich tends to prove the existence ofdisputed fact s with evidence that16

tends to dispr ove such facts. In su pport of his position appellant points to the evidence he presented to contr adict the State’sallegations. One of his witnesses w as McM ahan. On t he witness s tand, McM ahan com pletely recanted the assertions contained in hi s written statem ent and testified that he never had any know ledge concer ning the b urglary of the Burt residence. H e also denied driving appell ant to the Burt house on Saturday, Ap ril 1 8, 1998. His testim ony wassupported by the tes timony of his wife, V ero nic a McMa han. She testified that Stephen w

as with her cont inuously from about 5:00 p.m . on Saturday, April 18, 1998 until about 10:00 a.m . on Sunday, A pril 19th, and that they did not go to the part of tow n wh ere the B urtresidence was located at any tim e that night. Sa mmy Mathison also testified that he wasat a party w ith McMahan from about 6:30 p.m . on Sa tur day, April 18th until about 2:00 a.m . on Sunday, A pril 19th . However, McM ahan himself testified that he did not rem ember being at a party on that night.
Itwas w ithin the province of the jury to consider all of the testimon y and evidence,
as well as the dem eanor and credibility of the witnesses, and toresolve the num erous con flicts in the evidence. See Cain v. State , 958 S.W.2d 404, 408-09 (Tex.Crim .App. 1997) (en ba nc). W e conclude that the verdict is not so contrary to the overw helming weight of the evidence as to be clearly wrong and unjust , and thu s th e ev iden ce is fac tua lly sufficient. Clewis , 922 S.W.2d at 135. Appellant’s fourth and fifth issues are overruled.

ISS UES 6 AND7: RE ADIN G TES TIMON Y OF

A W ITNESS TO T HE JURY17

By his sixth an d seventh issues, appellant contends t hat the trial court abused its disc ret ion in allowing the direct testimo ny of Christopher Bushe ll to be r ead to t he j ury

in response to jurors’ statem ents tha t som e of Bushell’s testim ony had not been audible. Ap pell ant urges that the re ading of the testimony was an abuse of the trial court’s disc ret ion, den ied a ppe llant a fa ir trial and violated appellant’s due process rights under the Fifth and Fourteenth am endme nts to the United S tates Constitution and Article 1, §§ 10 and 1 9 of

theTex

as C ons titu tion . A ppe llant alsoref

ere nce s C ode of C rim ina l Procedure art. 36.28 in his argum ent.
Af ter Bu she ll departed the w itness stand following his direct testimony during the State’s case-in-chief, oral statem ents were madeby m embers of the jury to the effect tha t
so me of Bushell’s testim ony had not been audible. The j udge recessed the j ury and discu ssed the mat

ter with counsel for the State and couns el for appellant. Over appell ant’s objection, the judge brought the jury in and had the court reporter read thetrial transcriptof Bushell’s testim ony, as previously adm itted before t he jury, including objectionsby counsel and instructions and rulings by the j udge. Before the reading of t he transcript, however, the judge instructed the j ury, in effect, that the testimony of Bu she ll
wasgoing to be read by the court reporte r solel y because of the statements by the jurors. The judge also instructed the jury that neither the testim ony nor Bushell as a witness w as to be accorded any added weight, credibility, or consideration other than that given other witnesses and testimony

.18

Appellant does not point out in h is argument to this court how the reading of Bushell’s testim onyres ulte d in a n un fair tria l to him in light of the trial court’s instruction to the jury

. In re gard to his h arm analysis, however, appel lant concl udes that because Bushel l’s testimon y was the only evidence presented by the State to prove app ellant entered the B urtresidence, it cannot be said beyond a reaso nable doubt that the reading of the testim ony m ade no contribution to appellant’s conviction. Appella nt’s discussion as to ho w t he all eged error harmed him is cursory. Neverthele ss, he suggests how he was harmed bythe 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 m aking our analysis we note that an error i n admission of evi dence is cured w here the sa m e evidence com es in elsew here without obj ection, see Hudson v. State , 675 S.W .2d 507 , 51 1 (T ex .Cr im .A pp. 198 4) ( en b anc ), a nd t hat inad m iss ible evidence can be rendered harmless if other evidence at trial is admitted without obj ection and it proves the sam e fact that the inadmissible evidence sought to prove. See Mayes v. State , 816 S.W.2d 79, 88 (Tex.Crim .App. 1991) (en banc).
Assum ing, arguendo , that the trial co urt’s all owing the readi ng of Bushell ’s testimony

was an abuse of discretion and error, even cons idering the court’s instructions to the jury asto the testim ony, we conclude that the error did not harmappellant. During presentation of appellant’s case, appellant recalled Bushell as an a dv er se wi tness. Bushell repeated the substance of his prior testimony about w hat app ellan t to ld B ush ell. That is, Bushell testified, when recalled by appellant, that appellant told Bushell, among19

other ma tters: (1) appellant and W ilks were dropped off cl ose to the Burt residence by McMa han, f

orthe purpose of bur glari zing the Burt re sidence, (2 ) appell ant and W ilks
unsc rewed the lights in the back of the B urt reside nce, (3 ) appellant w ent into t he Burt residence through the back, ( 4) the $350 appe llan t gave Bushell was from burglary of

the Burt residence, and (5)app ellan t br okeintotheBu rt r

esid enc e. B ush ell te stif ied t hat his testimony

given during appellant’s case was consistent w ith his testimony given during the State’s cas e. Thus, Bu she ll eff

ect ively testified twice, without obj ection, that appellant told him of entering the Burt residence to burglarize it. The second time was after Bushell ’s testimon y wasread to the j ury over appellant’s obj ection. W e conclude that the error, if an y, wa s cured and was harm less. W e overrule appellant’s issues six and seve n.

ISSUE 8: DENIAL OF ACCOMPLICE W ITNESS JURY IN STRUCTION Appella nt’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 t ime he objected to the jury

charge’s failure to include such an instruction, appellant objecte d on the bas is t hat

theevid enc e ra ised an in fer enc e th at B ush ell him self par tic ip ated in the20

burglary of the Burt resid ence 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 la w or as a question of fact to be res olved by the jury,
cou ld have been charged w ith the sam e offense as appellant under the law of pa rt ies, citing Penal Code § 7.02, or f or a lesser included offense of theft by receiving, citing Penal Code §§ 31.03(a),(b)(2). In responding that Bushell was not an accom plice as a matter of law and that th e evidence did not warrant a factual determ ination of the question by the jury, the State refers us to Tucker v. State , 689 S.W.2d 235, 237 (Tex.A pp.–El Paso 1985, pet. ref’d). We agree with the State.
The trial court instr ucted the jury, without objection, tha t a perso n com mits the offense of burglary if, without the eff ective consent of theown er, the person enter s a habitation with intent to com mit theft or any felony. See Penal C ode § 30 .02(a)(1)

. The appropriation of property which one know s tobe s tole n by ano the r is theft, not burglar y. See Penal C ode § 31 .03(b)(2) . Theft and burg lary are disti nct and separate offenses.
Com mission of adifferent “downstream ” offense, even w ith knowledge of the prior criminal act later charged against the defendant does not m ake the dow nstream participant
an accom plice in the origi nal offense. See Tucker , 689 S.W .2d at 237. Thus, the fact that
a witness received proper ty taken during a burglary, know ing it to be stolen, does not21

make the witness an accom plice to the burglary offense that produced thestolen prop erty. See id.
Bu she ll testified that appellant gave him the sum of $350. Ac cor

ding to B ush ell, appellant told him that th is money was obta ined by burglarizing t h e Burt residence. Bu she ll testified that he did not assist appellant in comm itting the burglary and only found outaboutitafter the fact. The record contains no evidence that B ushell was ever indicted for the sa m e offen se as a ppellant. N or is thereevidencein the record that Bus hell performed any affirm ative act either before, dur ing o r af ter thebur glar y w hich w ould have subjected him to p rosecution for burglary of the Burt res idence.
Eve n assu ming that e rror was preserved despite the differing argument s by appellant in the tr ia l c ou rt an d o n a pp ea l, we conclude that the trial court did not abuse its discretion in failing to give an accomplice w itne ss inst ruc tion as to B ush ell. We over rule appellant’s eighth issue.

ISSUES 9 AND 10: EXCLUSI ON OF EVIDENCE T HAT INDICTMENT AGAINST CO-D EFENDANT W AS DISMISSED Byissues nine and ten, appellant asserts that th e trial court erred in excluding evidence that D ory Wilks, who a llegedly part ici pated in burglarizing the Burt residence,
wasindicted for the offense, and that the indictment w as s ubsequently dismissed. Appellant o ffered t he evidence during cross-exam ination of Christopher Bushell to impeach Bushell’s credibility. Appellant urges that in exc luding the ev idence, t he trial cour t22

violated his rights to confront the w itnesses against him pursuant to Article 1, § 10 of the Texas Constitution and the Six th Am endme nt to the United States Co nstitution. Appellant does not argue that the Texas Constitution provides mo re protection to him in this matter than does th e Unit ed St a tes Constitution, thus w e will not address his state cons titution 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 Delaw are v. Va n A rsd all , 475 U.S. 67 3, 678-79, 106 S.C t. 1431, 1435, 89 L.Ed.2d 674, (1986) (trial judges have w ide latitude in adm i tting or excluding evidenc e to cross-ex amine w itness pursuant to right to the "effe ctive"
cross-exam ination guaranteed by the Confrontation Clause of the Sixth Am endme nt to the United States Con stitution) and Green v. State , 934 S .W.2d 92, 101-02 (Te x.C ri m.A pp. 1996). A trial court abuses its discretion only if the reviewing appellate court can say w ith confidence that no reasonable p er ception of th e matter under consider ation coul d have yielded the decision mad e bythe trial court. See Montgom ery v. State , 810 S.W.2d 372, 391 (Tex.Crim .App. 1990) (op. on rehrg) (en banc).
General ly, unless otherwise pr ovided, relevant

evidence i s admissible and evidence
w hich is n ot r

elev ant is inadmissible. See T EX . R. E V ID . 402. Relevant evidence m aybe excluded if its probative value is substantially outweighed by the d anger of unf air prejudice, confus ion of the issues, or of m isleading the jury. See T EX . R. E V ID . 403.23

Evidence which tends to show a bias or motive for a witness to testify a certain way is general ly rel evant and adm issible to impeach a w itness. See Miller v. State , 741 S.W.2d 382, 389 (Tex.C rim.App. 1987) (en banc). Ev ide nce of di sposition of charges against a different, non-testifying person, who hasbeen indicted for the sam e offense as the accused, how

ever, generally is not admissible. See id .; Beasley v. Sta te , 838 S.W.2d 695, 703 (Tex.A pp.–Dallas 1992, pet. ref’d). Appellant offered the indictm ent of Wi lks and M otion to Dismiss an d Order of Dismissal in order toshow wha t he perceived as a co nspiracy to convict him , and to “attack [Bushell’s] testim onyand that evidence.” On appeal, he urges that the docum ents
wereadm issible to dispute and impeach Bushell ’s testimony and Bushell ’s credibili ty and believabil ity.
In reviewing the Moti on and Order of Di s missal, w e note that the m otion was predicated on the “Best interest of Justice; per the District Attorney,” and wasa dismissal without prejudice. The record p resent s no basis for the dism issal other than the prosecutor’s argum ent to the trial judge that num erous reasons could have ex isted for the dism iss al, including a lack of evidence due to Wil ks not having ma de a statem ent that he participated in t he b urg lary , asBu she ll tes tifie d ap pella nt m ade . A ppe ll a nt does not presentargum ent as to how the dismissal w as relevant to Bushell, or how Bushell might have had a stake in the dism issal or possible benefit to be received via som e connection between the dism issal and testimony h e gave. Appellant poin ts to no evidence that Bu she ll was part

of a conspiracy toconvict appell ant, nor does he r efer us to any evi dence24

i n the record that the dism issal of the indictment against Wil ks was in an y m anne r contingenton Bushell’s trial testimony. Dism issal of the indi ctment against W ilks, standing alone, does not

im pea ch B ush ell’ s te stim ony tha t ap pella nt told Bushell that both appellant and W ilks burglarized the Burt residence, and thus is not relevant. We conclude that the trial judge did not abus e hi s discret ion in excluding evidence of the indictment and dismiss al. See Miller , 741 S.W.2d at 389; Beasley , 838 S.W.2d at 703. W e o verrul e issues nine and ten.
CONCLUS ION Having overruled appellant’s ten issues, we affirm thejudgm ent of the trial court.

Phil Johnson Justice Do not publish.