Affirmed and Memorandum Opinion filed December 29 , 2011

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 10

- 00440

- C R NO. 14

- 10

- 00441

- CR

SIR JOSHTON STA VO H N MARTIN , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 185 th District Court

Harris County, Texas Trial Court Cause No s . 1212862 & 1212863



### M E M O R A N D U M O P I N I O N
Appellant, Sir Joshton Sta V o h n Martin, appeals his convictions for aggravated robbery with a deadly weapon and burglary of a habitation, contending (1) the evidence
is legally insufficient to support both convictions and the deadly

- weapon finding relative to the aggravated

- robbery conviction , and ( 2 ) the trial court erred by admitting certain
evidence during the punishment phase for both convictions. We affirm.2 I. B A CKGROUND A consolidated trial was conducted on both charges. According to the State‘s evidence, the home of Mario and Marilyn Porras was burglarized on the afternoon of April 16, 2009

. Their daughter, Jessa, who lived in the home, had previously dated appellant , and he visited the home during the relationship. At the time of the burglary, Jessa and appellant no longer maintained any relationship except that they have a child together

. When Jessa returned home at about 4:00 p.m., she discovered her par ents‘ bedroom was ―cluttered,‖ which she considered unusual. Further, a photograph admitted at trial showed pry marks on a window. The stolen property included some jewelry and a
.45 caliber pistol, which belonged to Mario and were kept in his bedroom , and a laptop computer, an ―X space,‖ a PlayStation, and a camera. Neither Mario nor Jessa gave appellant permission to enter their home that day , and Marilyn was working overseas at the time. Appellant did not have a key to the home.
That evening, appe llant drove his girlfriend, Shanteria G al van, and his friends, Johnny Roberts and Eddie Johnson, in appellant‘s car to a gas station , which was located
near the Porras home

. Appellant made a purchase in the store on the premises and
returned to the car. Galvan and Johnson then both entered the store. The complainant,
Isaac Segura, also entered the store while Galvan and Johnson were inside

. Johnson noticed Segura when he entered and watched him walk down a merchandise aisle. Johnson then immediately made a statement to Galvan as she exited
the store

. According to Houston Police Sergeant Mark Reynolds, Galvan reported that
Johnson said something to the effect of ―tell Boochy I need . . . something‖ or ―tell Boochy . . . to get . . . something‖ ; ―Booch y‖ is appellant‘s nickname

. However, at trial, Galvan equivocated regarding the statement and testified she did not exactly understand Johnson‘s words or pay much attention, but he said something to the effect of ― g et Duty.‖
In any event , Segura and all p ersons in appellant‘s group returned to their respective vehicles. Galvan sat in the front passenger seat of appellant‘s car
, and Johnson
and Roberts were passengers in the back seat. Johnson and Roberts then exited the car

.3

Johnson ran toward Segura‘s vehicle while Roberts followed

. Johnson immediately shot Segura in the jaw , and the men took Segura ‘s watch and neck lace

. In the meantime,

a ppellant drove around to the back of the station . Johnson and Roberts ran toward
appe llant‘s car. After they entered the car, appellant sped away. The store ‘s surveillance
video tape , which the jury viewed, showed the actions of the relevant persons inside the
store, Johnson run ning from appellant‘s car while holding a gun with Roberts following , the shooting, appellant driving to the back of the station, and Johnson and Roberts running toward the back of the station. While officers were investigating the scene, Mario Porras‘s nephew approached
and asked if a .45 caliber g un was used in the offense, stating that his relative‘s home was burglarized earlier that day , a .45 caliber gun was stolen , and the family suspected appellant committed the burglary

. Officers eventually determined a .45 caliber semi

automatic gun was use d in the shooting . However, they were unable to locate a gun that matched the bullet fragments removed from Segura ‘s body or fragments and casings found at the scene, much less trace a gun used in the shooting to the o ne stolen from the
Porras home

. Sergeant Reynolds interviewed Mario and his nephew to determine why they suspected appellant of the burglary, although, at trial, Sergeant Reynolds did not relay the
contents of their statements. Sergeant Reynolds also viewed the surveillance tape , obtain ed still photographs from the tape , and spoke with various individuals in an attempt

to ascertain the identity of the persons depicted therein

. After discover ing appellant w as the driver, Sergeant Reynolds contacted him

. On the night of April 17, 2009, a ppellant voluntarily appeared at the police station for an interview , but he did not drive his own

car

. Sergeant Reynolds did not testify regarding appellant‘s statement at the station. Sergeant Reynolds drove appellant home after the interview.

The next day, o fficers located appellant‘s car , in which they found a pawn ticket containing his name and some of Mario ‘s rings which were stolen during the burglary. Sergeant Reynold s then discovered that , on the afternoon of April 17, 2009, appellant4

pawned a nother ring and a necklace , which were stolen from Mario during the burglary.
O fficers also found Segura‘s blood on the floorboard of a rear passenger seat of appellant‘s car and a particle of gunshot residue on the driver‘s seat. Stephen Houck, an
emp loyee of the Harris County Institute of Forensic Science who analyzed the particle , characterized the results as ―inconclusive,‖ meaning he could not opine whether the
residue resulted from a weapon fired in th e area of the residue or ―incidental transfer.‖ Appellant was arrested for aggravated robbery and burglary of a habitation a week after
the se offenses when he went to the police station to retrieve his car.
Segura was not expected to live but did survive. Sergeant Reynolds showed photograph array s to Segura when he regained consciousness about forty

- eight hours after the incident. Segura immediately identified Johnson as the shooter but could not identify Roberts. Sergeant Reynolds did not show Segura an array containing appellant‘s photog raph because Sergeant Reynolds already knew that Segura ha d not personally
encountered appellant . At trial, Segura was unable to identify appellant as a perpetrator. In general, appellant does not dispute the above

- cited facts regarding the offenses

. Rat her, at trial, appellant maintained that he did not commit the burglary or participate in the robbery. Three witnesses provided direct testimony pert inent to whether appellant
was involved in committing one or both of these offenses: (1) Galvan, whom the State presented during its case

- in

- chief; (2) appellant, who testified on his own behalf; and (3)
Robert s , whom the State then p resented as a rebuttal witness.
Galvan did not provide any relevant testimony regarding the burglary. With

res pect to the robbery, Galvan did not express ly deny that appellant was a participa nt but suggested he was not involved other than being forced to drive Johnson and Roberts from the scene. In particular, Galvan testified that, w hen all members of the group had returned to the car, Johnson was ―like, on a mission‖ and ―talking crazy‖ that he planned to ―get some one or some thing .‖ Roberts then exited the car and followed Johnson, who was already out of the car

. Galvan told appellant to leave because she did not want to be
involved . Appellant appeared ―scared‖ and ― nervous‖ and began driving out of the5

station toward his mother‘s house
, but Galvan insisted they go to her ho me , so appellant abruptly turned around. He then stopped the car, Roberts and Johnson entered, and
Johnson ordered appellant to drive. Appellant left Galvan near her home

. At trial, a ppellant denied committing the burglary

. Rather, appellant testifi ed that
he spent three or four hours during the afternoon of April 16, 2009 at his grandmother‘s
house. Appellant also denied participating in the robbery and testified as follows regarding t he incident. After the group returned to the car , a ppellant heard a disturbing discussion between Roberts and Johnson, although appellant did not r elay the contents at trial. Appellant told them he ― wasn ‘ t down with it‖ and would leave if they exited the
car. After Roberts and Johnson exited the car, appellant began driving out of the station toward his mother‘s house , hoping such action would thwa rt their plans because he was
t heir only ride home. Galvan insisted appellant take her home , so he turned around and began travel ing an other direction which necessitated driving by the side of the station.
Roberts and Johnson ran toward the car with John son holding a gun. Appellant stopped
and allowed Roberts and Johnson to enter the car because appellant fear ed he would be
shot

. Appellant said he would drive to any location they chose if he were allowed to first
take Galvan home. Appellant left Galvan near her home. He then drove a few more minutes with directions dictated by Johnson, who finally told him to stop, and Johnson
and Roberts exited the car. The next day, appellant discovered jewelry that had been left by Johnson and Roberts in appe llant‘s car , but he did not know it belonged to Mario
Porras

. At first, appellant suggested that he felt entitled to pawn some of the jewelry
be cause Roberts and Johnson had involved him in these incidents. On cross

- examination, appellant admitted that o btaining money was the reason he pawn ed some of the jewelry. At trial, Roberts denied participat ing in the burglary although he had previously
visited the Porras home , and the State did not allege Roberts committed the burglary

. Rather, Roberts testified that, on the afternoon of th e burglary , appellant appeared at Roberts‘s house before appellant went to his grandmother‘s house. Appellant showed
Roberts s ome rings ( which Mario identified at trial as his stolen property ) , a .45 caliber6

pistol, and a lapto p computer , which Roberts had previously seen at the Porras home. Appellant did not reveal the source of the property but said ―everything wasn‘t for [Roberts] to know.‖ Roberts assumed appellant had burglarized a random home. However, l ater that day, Jessa Porras phoned Roberts , stat ing her home had been burglarized and she suspected appellant . Roberts ―covered‖ for appellant, claim ing he

was at Roberts ‘s home that day . When Roberts asked appellant about Porras‘s accusations, appellant re p li ed, ― just keep it on the low.‖ At the time of trial, Roberts had already been sentenced for commission of the robbery and provided the following testimony regarding that offense

. A fter all four members of the group returned to appellant‘s car, Johnson stated that a man inside the

store had a ―clean chain,‖ which Johnson liked. Johnson said to appellant, ―let me see the thing,‖ referring to the pistol that appella nt earlier indicated he had taken from the Porras home. Appellant ―reached down in the seat‖ and handed Johnson a pistol. Johnson then ran toward Segura‘s vehicle while Roberts followed . Johnson shot Segura and took his ―belongings.‖ Meanwhile , appellant drove to the back of the station and ―waited on the cue.‖ Johnson and Roberts ran to the car a nd ―jump [ ed ] in

. ‖ A ppellant drove away but demanded return of the gun , and Johnson complied

. Johnson also placed a necklace which was ―dripping‖ in blood on a rear floorboard . At some point , appellant ordered
Johnson to clean the blood on the floorboard

. They took Galvan home and then went to Roberts‘s house. Roberts disputed appellant‘s suggestion that he was attempting to drive away from the station and Johnson waved the g un to force appellant to stop. In the jury charge for the aggravated

- robbery a llegation, the trial court submitted an accomplice

- witness instruction relative to Roberts‘s testimony and an instruction regarding the law of parties. A jury found appellant guilty of both offenses and assessed punishment of fifteen years‘ confinement for the aggravated

- robbery conviction and four years‘ confinement for the burglary conviction.7 II. S UFFICIENCY OF T HE E VIDENCE Appellant has filed a separate appella te brief to challenge each conviction. In each brief, he presents legal

- sufficiency ch allenges relative to the particular conviction. When reviewing sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences from it, whether any rat ional fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia , 443 U.S. 307, 318

– 19 (1979) )

. We do not sit as
thir teenth juror and may not substitute our judgment for that of the fact finder by re

evaluating the weight and credibility of the evidence. Isassi v. State , 330 S.W.3d 633,
638 (Tex. Crim. App. 2010) . Rather, we defer to the responsibility of t he fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences
from basic facts to ultimate facts. Id. This standard applies equally to both circumstantial
and direct evidence. Id

. Our duty as reviewing court is to ensure the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State , 235 S.W.3d 74 2, 750 (Tex. Crim. App. 2007). We will consider separately appellant‘s legal

- sufficiency challenge relative to each offense.

A. Aggravated Robbery A person commits aggravated robbery ―if, in the course of committing theft

. . . and with intent to obtain or maintain control of the prope rty, he . . . intentionally or knowingly threatens or places another in fear of imminent bodily injury or death‖ and ―uses or exhibits a deadly weapon.‖ Tex. Penal Code Ann. §§ 29.02(a )(2); 29.03(a)(2) (West 2011). In the first and second issues of his b rief challenging the aggravated

robbery conviction, appellant contends the evidence is legally insufficient to support (1) the jury‘s finding that he committed the offense and (2) the jury‘s finding that he used or
exhibit ed a deadly weapon dur ing commissi on of the offense.8

1. Conviction as a Party to the Offense Appellant does not dispute that Roberts and Johnson committed aggravated robbery of Segura; instead, appellant essentially challenges sufficiency of the evidence to support the finding that he was a party . In particular, a ppellant contends (1) Roberts‘s accomplice

- witness testimony was not sufficiently corroborated by other evidence tending to connect appellant with commissio n of the offense, (2) the evidence established

at most appellant‘s ―mere presence‖ at the scene of the offense, and (3) there was no evidence appellant acted as a party to the offense. ―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.‖ Tex. Code Crim. Proc. Ann. art. 38.14 ( West 2005 )

. When evaluating sufficiency of corroboration evide nce under the accomplice

- witness rule, we eliminate the accomplice testimony from consideration and then examine the remaining portions of
the record to determine if there is any evidence that ―tends to connect‖ the defendant with
commission of the crime. Malone v. State , 253 S.W.3d 253 , 257 (Tex. Crim. App. 2008)

. The corroborating evidence need not, by itself, prove the defendant ‘ s guilt beyond a
reasonable doubt. Id. Rather, the evidence must si mply link the d efendant ―in some way‖ to commission of the crime and show that rational jurors could conclude that this evidence sufficiently ―tended to connect‖ the defendant to the offense. Id. Under the law of parties, ― [ a ] person is criminally respon sible for an offense committed by the conduct of another if

. . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. ‖ See Tex. Pen al Code Ann. § 7.02(a)(2) (West
2011 ). In reviewing the evidence regarding an appellant ‘ s culpability under the law of parties, we may consider events occurring before, during, and after commission of the offense, and may rely on the defendant ‘s actions that show an understanding and common design to perform the prohibited act. Ransom v. State , 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on rehearing). Party status may be proved by circumstantial9

evidence. Id. Mere presence at the scene of the offense is not sufficient alone to establish guilt as a party ; h owever, p resence at the scene is a circumstance tending to prove guilt which, when combined with other facts, may suffice to show that the
defendant was a participant. Valdez v. State , 623 S.W.2d 317, 321 (Tex. Crim. App.
19 81 ) (op. on rehearing)

. Our analysis of appellant‘s three sub

- issues is interrelated. Specifically, we
conclude Roberts‘s accomplice

- witness testimony supported the jury‘s implicit finding
that appellant intentionally aided Roberts and Johnson in commission of the aggravated robbery and was not merely present at the scene. According to Roberts, Johnson
indicated that he wanted Segura‘s jewelry and requested the gun from appellant; appellant handed Johnson the gun and willingly drove the getaway vehicle

. See Thompson v. State , 697 S.W.2d 413, 417 (Tex. Crim. App. 1985) ( recognizing that defendant‘s actions after commission of crime, including driving getaway vehicle,
alth ough alone insufficient to prove guilt at as a party, may be sufficient to sustain
conviction when combined with incriminating evidence of actions before commission of offense) ; Valdez , 623 S.W.2d at 321 (stating that, a lthough flight from scene of offense alone will not support ―guilty‖ verdict, flight is circumstance from which inference of guilt may be drawn ) . Additionally, the jury could have rationally inferred appellant‘s consciousness of guilt based on Roberts‘s testimony that a ppellant ordered Johnson to
clean the blood on the floorboard and demanded return of the gun

. See Wells v. State , 578 S.W.2d 118, 119 (Tex. Crim. App. 1979) (recognizing attempt to conceal incriminating evidence is indicative of guilt). The jury could ha ve also reasonably concluded appellant concealed or dispos ed of the gun , considering Roberts‘s testimony
that Johnson returned the gun t o appellant in conjunction with evidence the police never
located it

. We further conclude a rational jury could have determined that Roberts‘s testimony was corroborated by non

- accomplice evidence ―tend ing to connect‖ appellant10

to commission of the robbery as a party. 1 Specifically , th e surveillance tape, Sergeant Reynolds‘s testim ony, Galvan‘s testimony, appellant‘s own testimony, and physical evidence including Segura‘s blood and gunshot residue found in appellant‘s car, demonstrate d the following: once Johnson noticed Segura inside the store, Johnson
instructed Galvan to tell appellant (who had already returned to the car) that Johnson ―need[ed ] . . . something‖ or ―to get . . . something
, ‖ although Galvan apparently did not comply ; appellant was present in the car when Roberts and Johnson subsequently exited
to commit the robb ery ; and appellant then drove to the back of the station where he
retrieve d Roberts and Johnson

. See Malone , 253 S.W.3d at 257 (stating that proof defendant was at or near scene of crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect him to crime, thus furnishing sufficient corroboration to support conviction).
T he jury was free to disbelieve the portion s of both appellant‘s and Galvan‘s accounts suggesting that appellant was attempting to leave the scene for his mother‘s house but, after turning around to take Galvan home, felt forced to stop b ecause Johnson
wield ed a gun. Se e Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) ( expressing that jury may choose to believe or disbelie ve any portion of a witness‘s testimony )

. In fact, the surveillance video shows Johnson and Roberts immediately running directly to the back of the station after the shooting , as opposed to looking around for appellant‘s car. Thus, the jury could have rationally inferred that Johnson and Roberts knew where appellant would be waiting as part of the plan and did not simply force appellant to stop as he drove by the station. Moreover, some of appellant‘s actions and statements af ter the offense indicat ed
consciousness of guilt and thus corroborat ed Roberts‘s testimony

. In particular, appellant

1 We do not necessarily agree with appellant‘s suggestion that his conviction was ―had upon the testimony of‖ Roberts. See Tex. Code Crim. Proc. A nn. a rt. 38.14. Arguably, the non

- accomplice evidence was alone legally sufficient to support the conviction. In fact , the State presented Roberts as a rebuttal witnesses after appellant testified. Nonetheless, we need not decide whet her conviction was ―had upon the testimony of‖ Roberts because the non

- accomplice evidence at least ―tends to connect‖ appellant to commission of the offense , and Roberts‘s testimony and the non

- accomplice evidence together are legally sufficient to support the conviction.1 1

claimed he voluntarily appeared for his interview with Sergeant Reynolds to aid in the investigation

. Nevertheless , the jury could have r ationally inferred that appellant attempt ed to hide his participation in the offense , considering h e did not drive his own car to the police station admittedly because it had transported persons involved in the offense
and he was reluctant to inform Sergeant Reynolds regarding the identities and
whereabouts of Johnson and Roberts. Further, at trial, a ppellant acknowledge d that,
while incarcerated f

ollow ing his arrest for the offense, he told his grandmother by telephone, ―They don ‘ t have the gun; so, they don‘ t have a case on me.‖ The jury could have reasonably considered thi s statement as an admission that appellant had some role in provid ing the gun for the robbery and later concealed or disposed of it

. In sum, the evidence i s legally sufficient to support the jury‘s finding that appellant was a party to the aggravated robbery. We overrule his first issue relative to the aggravated

- robbery conviction.
2. Deadly

- Weapon Finding Appellant also contend s that the evidence is legal ly insufficient to support the jury‘s finding that he us ed or exhibited a deadly weapon. Appellant requests a judgment of acquittal on the ground that the State failed to prove use or exhibition of a deadly weapon as an element of the offense or, alternat ively, that we order the trial court‘s deadly

- weapon finding stricken from the judgment. When, as in this case, use or exhibition of a deadly weapon is an element of the
offense and the State alleges the defendant‘s guilt under the law of parties , the State must prove the defendant knew a weapon would be used or exhibited in commission of the
offense. Sarmiento v. State , 93 S.W.3d 566, 570 (Tex. App.

— Houston [14th Dist.] 2002, pet

. ref ‘ d) (en banc). T he jury‘s verdict of guilt necess arily constitutes an affirmative finding that the defendant was a party to the offense and knew a deadly weapon would be
used or exhibited in commission of th e offense , thus authorizing the trial court to enter a deadly weapon finding in the judgment. See id. ; see also Tex. Code Crim. Pro c

. Ann. art. 42.12, § 3g(a)(2) ( West Supp. 2011 ) (requiring trial court to enter deadly weapon finding12

in judgment if jury affirmatively finds defendant was a party to the offense and knew deadly weapon would be used or exhibited during commission of th at offense )

. A ppellant argue s the only evidence he knew a deadly weapon would be used or
exhibited in commission of the robbery was Roberts‘s accomplice

- witness testimony that
John s on requested the gun and appellant handed it to him

. However, t he requirement of

a ccomplice

- w itness corroboration does not apply to testimony of an accomplice witness regarding use or exhibition of a deadly weapon. Vasquez v. State , 56 S.W.3d 46, 48 (Tex. Crim. App. 2001)

. Specifically, i t is not necessary f or non

- accomplice evidence to connect the defendant with every element of the crime. Id. Nevertheless, as mentioned above, the jury could have rationally inferred from appellant‘s statement to his grandmother that appellant provided the gun used in commi ssion of the robbery. Therefore, the evidence is legally sufficient to support the jury‘s finding that appellant knew a deadly weapon would be used or exhibited in commission of the offense

. Accordingly, the trial court did not err by entering a deadly

- weapon finding in the judgment. We overrule appellant‘s second issue relative to the aggravated

- robbery
conviction.
B. Burglary of a Habitat i on A person commits burglary of a habitation ― if, without the effective c onsent of the owner, the person . . . e nters a habitation

. . . with intent to commit

. . . theft .‖ Tex. Penal Code Ann. § 30.02(a)(1) (West 2011)

. In the first issue of his brief challenging the burglary conviction, appellant contends the evidence is legally insufficient because the
State relied on appellant‘s possession of the stolen property to prove the offense without establishing appellant‘s explanation for possession was false or unreasonable. Appellant refers to the principle that Texas law ―has long permitted the conviction of a person for theft if the evidence shows him to have been found in possession of recently stolen property without offering an explanation inconsistent with guilt when first called upon directly or circumstant ially to do so.‖ Chavez v. State , 843 S.W.2d 586, 587 (Tex. Crim. App. 1992) (citing Sutherlin v. State , 682 S.W.2d 546 , 549 (Tex. Crim. App. 1984) ); James v. State , 48 S.W.3d 482, 485 (Tex. App.

— Houston [14th Dist.] 2001, no13

pet.) ; see Poncio v. State , 1 85 S.W.3d 904, 904

– 05 (Tex. Crim. App. 2006) ( express ing that this rule is applicable to charge for burglary of a habitation)

. This unexplained possession of recently stolen property permits an inference of guilt for the offense of
theft. See Sutherlin , 682 S.W.2d at 549; James , 48 S.W.3d at 485; see also Chavez , 843
S.W.2d at 587

– 88

. However, before the inference may be invoked, the State must establish that the possession was personal, recent, unexplained, and involved a distinct and conscious assertion of a right to the property by the defendant. Sutherlin , 682 S.W.2d at 549; see James , 48 S.W.3d at 485

. If a defendant explains his possession of stolen property when first called upon to do so, generally at the time of his arrest, the State must demonstrate the explanation is false or unreasonable. See Adams v. State , 552 S.W.2d 812, 815 (Tex. Crim. App. 1 977) ; James , 48 S.W.3d at 485

. Appellant suggests that the State could not rely on this inference in the present case because appellant offered a reasonable explanation for possess ing some of Mario
Porras‘s stolen property: Roberts and Johnson committed th e burglary and left the property in appellant‘s car after the robbery later that evening

. W e disagree that the State ―relied‖ on the unexplained

- possession rule to prove appellant committed the burglary. A lthough the State presented evidence that, after the
later robbery, appellant pawned some of Mario ‘s stolen property and the police found other stolen items in appellant‘s vehicle, the State did not rely solely on this possession to

prove appellant committ ed the burglary. Instead, Roberts testified that appellant appeared at Roberts‘s home after the burglary with some of Mario‘s stolen property

. When Roberts inquired whether appellant burglarized the Porras home, appellant replied,

― just keep it on the lo w

. ‖ T he jury could have reasonably construed this statement as a n admission of guilt for the burglary

. T he trial court did not submit an accomplice

- witness instruction in the jury charge for the burglary allegation. Consequently , there was no requiremen t for corroboration of Roberts‘s testimony relative to the burglary conviction

. Further actions by appellant also indicated consciousness of guilt with respect to the burglary

. Again, the jury could have rationally inferred that , during his interview
with Officer Reynolds, appellant also attempted to hid e his involvement in the burglary14

because he (1) did not driv e his own car, which contained some of Mario‘s stolen property and the pawn ticket, to the police station , (2) failed to mention his claim that
R oberts and Johnson left some stolen property in appellant‘s car
, and (3) f ailed to mention he had already pawned some of the items. Therefore, the fact that appellant was found in possession of some of Mario ‘s property after the robbery was merely an addit ional circumstance the jury could have considered along with the other evidence outlined above when determining he committed the burglary. Consequently, the State was not required to prove appellant‘s explanation for possessing some of Mario‘s property af ter the robbery was unreasonable to supp ort his conviction for burglary. Regardless , contrary to appellant‘s suggestion, the State is required to refute only the explanation made when the defendant is first found in possession of recently stolen property

— not an explanation made for the first time at trial. See Barnes v. State , 520 S.W.2d 401, 403 (Tex. Crim. App. 1975) ; Simmons v. State , 493 S.W.2d 937, 939 (Tex.
Crim. App. 1973)

. Appellant does not suggest, and t here is no indicatio n in the record , that he presented his explanation when he was first found in possession of Mario‘s property. Nonetheless, the jury could have determined that appellant‘s explanation at trial
was unreasonable. Whether an explanation for possession of stol en property is reasonable is a question of fact, the fact

- finder is not required to accept the defendant ‘ s explanation , and falsity may be shown by circumstantial evidence

. Prodan v. State , 574 S.W.2d 100, 103 (Tex. Crim. App. 1978) ; Adams , 552 S.W.2d at 815; James , 48 S.W.3d
at 486

. In particular, the jury could have rationally rejected appellant‘s suggestion that (1) Roberts and Johnson coincidently burglarized the home of appellant‘s former girlfriend and left the stolen property in hi s car , and (2) Roberts and Johnson would take the risk and effort to commit a burglary yet simply abandon some of the stolen property for the benefit of a non

- participant

.15

In sum, we conclude the evidence is legally sufficient to support the jury‘s finding that appellant committed burglary of a habitation . Accordingly, w e overrule appellant‘s
first issue relative to the burglary conviction.

III. A DMISSION OF E VIDENCE D URING P UNISHMENT P HASE In his second issue pertaining to the burglary conviction and third issue pertaining to the aggravated

- robbery conviction, appellant contends the trial court erred during the punishment phase by admitting appellant‘s jail disciplinary records

. During the punish m ent phase, the State presented testimony f rom Deputy
Kathleen Torres , who is employed in the Disciplinary and Grievance Office of the Harris County Sheriff‘s Department. Deputy Torres explained the disciplinary procedure applicable when an inmate in the Harris County jail is accused of violat ing a rule
contained in the handbook provided to all inmates : Deputy Torre s is presented with a report to review; the inmate enters a plea ; a disciplinary committee conducts a hearing and renders a finding; and a finding of guilt results in probation or revocation of privileges. The State also presented the office‘s written ― disciplinary history‖ for appellant,
which reflected that he was found guilty of the following violations over a ten

- month period during his pre

- trial detention for the present case : refusing to obey an order ;
presence in an unauthorized location; two separate occurrences of assault on another inmate; threatening staff; tattooing or possessing tattoo paraphernalia; failure to properly dress; e xtortion; disruptive conduct; simple assault; and threatening another inmate

. 2 During her testimony, Deputy Torres relied on th is document when recit ing the violations
listed therein. Before Deputy Torres testified, appellant objected outside the jury‘s presence that
evidence of his disciplinary history was ―more prejudicial than probative under 403 .‖ The trial court overruled his objection

. When the State offered the written history during

2 Pursuant to the trial court‘s instruction, the State redacted the document before it was admitted to remove a record of offenses for which appellant was charged but found not guilty.16

Deputy Torres‘s testimony , appellant renewe d his objection, but the trial court admitt ed
the document. On appeal, appellant suggests the trial court erred by admitting evidence of his disciplinary history for three reasons: (1) the court failed to conduct the requisite balancing test relative to Texas Rule of Evidence 403 ; (2) the evidence was inadmissible under Rule 403; and (3) the evidence did not satisfy Texas Code of Criminal Procedure article 37.07(3)(a)(1) because the disciplinary violations could not be proved beyond a
reasonable doubt.

D uring the punishment phase of a non

- capital offense, t he State may offer evidence pertaining to ― any matter the court deems relevant to sentencing , including

. . . evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by
eviden ce to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. ‖ Tex. Code Crim. Proc. Ann. art. 37.07 , § (3)(a)(1) ( West Supp. 2011 ). ―  ̳ Evidence is  ̳relevant to sentencing,‘ within the meaning of the statute, if the evidence is  ̳helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.‘ ‖ McGee v. State , 233 S.W.3d 315, 318 (Tex.
Crim. App

. 2007) (quoting Rodriguez v. State , 203 S.W.3d 837, 84 2 (Tex. Crim. App. 2006) )

. Admissibility of punishment

- phase evidence that the trial court deems relevant is
nonetheless subject to a R ule 403 analysis. See Rodriguez , 203 S.W.3d at 843; Reese v.
State , 33 S.W.3d 238, 240 (Tex. Crim. App. 2000)

. Under Rule 403 , even relevant evidence may be excluded ― if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleadi ng the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.‖ Tex.
R. Evid. 403

. A proper Rule 403 analysis includes, but is not limited to, the following factors: (1) probative value of the evidence; (2) potential to impress the jury ― in some irrational,17

but nevertheless indelible way ‖ ; (3) time needed to develop the evidence; and (4) the proponent ‘ s need for the evidence. Rodriguez , 203 S.W.3d at 843 (citing Reese , 33
S.W.3d at 240

– 41 )

. We review the trial court‘s ruling on a Rule 403 objection for abuse
of discretion. Id. at 84 1

. We will uphold the ruling if it lies within the zone of reasonable disagreement. Id. at 841, 843. With respect to appellant‘s initial complaint, o nce a Rule 403 objection is asserted, the trial court must engage in the balancing test required under that rule

. Williams v. State , 958 S.W.2d 186, 195 (Tex. Crim. App. 1997) ; see Caballero v. State , 919 S.W.2d 919, 92 2 (Tex. App.

— Houston [14th Dist.] 1996, pet. ref ‘ d)

. In this case, the trial court remarked that it found ―the probative value‖ of the evidence outweighed ―the prejudicial value,‖ although it did not recite specific findings relative to the above

- listed f actors. However, a trial court is not required to sua sponte place on the record its findings or
conclusions relative to the balancing test. Williams , 958 S.W.2d at 195

. Rather, we presume the t rial court engage d in the required balancing test once Rule 403 is invoked , and silence of the record does not imply otherwise. Id. at 195

– 96.
Relative to the substance of his Rule 403 complaint, appellant generally contends on appeal that his disciplinary history w as inadmissible under Rule 403 but does not specifically advance any reason its pr obative value was substantially outweighed by the danger of unfair prejudice. Regardless, when objecting at trial, appellant argued that the history w as more prejudicial than probative because of its ―repetitive nature.‖ However,
to the extent appellant engaged in a pattern of prohibited conduct , the number of
violations simply enhanced their probative value relative to demonstrating appellant‘s
ch aracter for sentencing purposes. Accordingly , the trial court did not abuse its discretion by determining th at the probative value of appellant‘s disciplinary history was not substantially outweighed by the danger of unfair prejudice. Finally, appellant contends that the evidence of his disciplinary history did not satisfy Code of Criminal Procedure article 37.0 7(3)(a)(1) because the State could not prove the violations beyond a reasonable doubt. However, appellant failed to preserve error on this complaint. See Tex. R. App. P. 33.1(a) (providing that, to preserve issue for18

appellate review, party must make tim ely objection or request to the trial court, sufficiently stating specific grounds for the requested ruling, unless apparent from the context, and obtain adverse ruling). Appellant‘s objection at trial was based solely on Rule 403; he advanced no objectio n that the evidence was inadmissible under article 37.07(3)(a)(1). See Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating that, to preserve error for appellate review, objection at trial must comport with the appellate complaint).
On cros s

- examination of Deputy Torres, appellant attempted to establish that the violations could not be proved beyond a reasonable doubt; Deputy Torres acknowledged that she had no personal knowledge of the violations shown on the document, the disciplinary comm ittee is an administrative court, violations are not necessarily criminal offenses, and guilt is determined under a preponderance

- of

- the

- evidence, rather than beyond

- a

- reasonable

- doubt, standard. Further, in each jury charge pertaining to punishment, the trial court instructed the jury that it was permitted to consider an extraneous crime or bad act only if the State proved beyond a reasonable doubt appellant
committed , or could be held criminally responsible for, such crime or act. However, appellant nev er raised the State‘s alleged inability to prove beyond a reasonable doubt that appellant committed the violations as a challenge to a dmissibility of the evidence in the first place. See M itch e ll v. State , 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) ( recognizing that trial court makes threshold determination for purposes of admissibility whether jury could rationally find beyond a reasonable doubt that defendant committed

extraneous offense or bad act, but jury actually decides if State met burd en of proof )

. It is un clear whether appellant is suggesting on appeal that the State‘s alleged inability to prove the violations beyond a reasonable doubt constituted a reason their probative value was substantially outweighed by the danger of unfair preju dice. To the extent appellant presents his Article 37.07 (3)(a)(1) complaint as a sub

- issue of his Rule 403 contention, he nevertheless failed to preserve error. When objecting at trial based on Rule 403, appellant mentioned only the ―repetitive nature ‖ of the violations and did not19

raise the State‘s alleged inability to prove the violations beyond a reasonable doubt as a reason they were inadmissible under Rule 403.
In sum, w e overrule appellant‘s second issue pertaining to the burglary conviction
and th ird issue pertaining to the aggravated

- robbery conviction. We affirm both of the trial court‘s judgments.

/s/ C harles W. Seymore Justice

Panel consists of J ustices Frost, Seymore , and Jamison

. Do Not Publish

— Tex. R. App. P

. 47.2( b).