Full opinion text
OPINION ONION, Presiding Judge. This is an appeal from a conviction for capital murder in which the death penalty was imposed after the jury affirmatively answered the special issues submitted under Article 37.071, V.A.C.C.P. Appellant’s previous conviction for the same offense was reversed because he was denied his constitutional right to confrontation of witnesses against him due to the trial court’s refusal to allow effective cross-examination of the State’s principal witness, Valerie Rencher, to establish her bias or motive in testifying. Harris v. State, 642 S.W.2d 471 (Tex.Cr.App.1982). Following a change of venue from Brazos County to Montgomery County, appellant was retried and again convicted of committing capital murder. At the outset we are confronted with a claimed error in jury separation. Appellant contends the trial court erred in allowing the jurors in this death penalty case to separate after the charge was given at the guilt stage of the trial, and before a verdict was reached. Appellant argues that the separation was without his consent, that the mandatory provisions of Article 35.23, V.A.C.C.P., were violated, and that the State failed to rebut the presumption of harm. After the charge was given to the jury and the opening arguments of the State and defense at the guilt stage of the trial had been completed, the court declared a recess telling the jury to go to the jury room. It appears that during this recess the claimed separation took place. Immediately after the recess the record reflects: “THE COURT: Are y'all ready? “MR. PRICE (Defense Counsel): At this time, Curtis Paul Harris, the defendant in Cause Number 16,430 moves for a mistrial for reason that the jurors have separated in violation of 3523, The Code of Criminal Procedure; there having been no waiver of separation provision. “THE COURT: Emphatically denied. The Court was in attendance with the jurors just for convenience for the ladies who are members of this jury. So when they leave tonight, the Courthouse to journey to the motel, they didn’t have to walk to a dark parking lot and pick up their vehicles. So, the Court instructed them to go there, proceeded with them to the lot, and brought the cars back here. So, your motion is overruled. “MR. PRICE: Further, your Honor, for the record, please, may the record reflect that the Court is not the officer in charge of the jurors. “THE COURT: Whatever, your motion is emphatically denied.” Appellant made the jury separation one of the grounds set forth in his motion for new trial, alleging his lack of consent. Appellant testified that he had not consented to the jury separation nor had he been given an opportunity to consent or not to consent to the separation. The State did not cross-examine. Appellant’s counsel, Michael McDougal, testified: “As far — I’ll just reiterate what I just said and make that my testimony that I was never given the opportunity to consent or not consent to their being allowed to separate and leave the courtroom, for any purpose, whether it was to move their cars late at night or not. And, we did not consent to that. And I think Mr. Price (defense counsel) has already made his statement back when it happened.” The record then reflects: “THE COURT: And the Court made itself perfectly clear at that time, and went on the record at that time, and will go on the record for purpose of the Motion for a New Trial, at this time, in saying that I accompanied the jurors to— from the Courthouse to the County parking lot, especially the Court being concerned, at that time, with lady-jurors, who did — would have to walk during the night to their cars after we finished that night. And the court being concerned for the welfare of the lady-jurors, as well as the jurors in general, accompanied the jurors to the County parking lot, saw them to their cars, and the return of the cars to parking under the Courthouse and return here as a group. And the Court is positive that none of the jurors had access to any information or contact with other persons during this process. “MR. McDOUGAL: Did the Court ride in the cars with each of them? “THE COURT: That’s a mathematical impossibility, as counsel well knows. “MR. McDOUGAL: Is the Court aware of whether or not any of the jurors listened to their radios on their way back to the Courthouse? “THE COURT: No, the Court’s not aware of that. “MR. McDOUGAL: Is the Court aware of where the gentlemen, men-jurors, were when the ladies were moving their cars? “THE COURT: Yes, they were moving their cars, too. “MR. McDOUGAL: You didn’t — the Court did not go with the men to move their cars? They accompanied— “THE COURT: The Court accompanied all of them down there. “MR. McDOUGAL: To each of their cars? “THE COURT: Yes. “MR. McDOUGAL: They were all parked in the same place? “THE COURT: Yes, in the County parking lot. “MR. McDOUGAL: All twelve jurors? “THE COURT: Were parked in the County parking lot, except, I think, Thomas Vittrup, his was not there. He parked over in his Dad’s — about a block from here, but they all individually drove their cars back over here. Anyway, ground thirty-two is denied ground thirty-three is denied, ground thirty-four is denied, ground thirty-five is denied_ All right. Be denied and thirty-six is denied. “MR. BRYAN (Prosecutor): Your Honor, could we have ... as to the separation of ... that was late in the evening? ... “MR. BRYAN: It was late in the evening? “THE COURT: Yes, it was late in the evening. “MR. BRYAN: After working hours? “THE COURT: After normal working hours, it certainly was. We agreed to stay late that night. “Ground thirty-seven is denied. Okay, Curtis, would you stand?” No other effort was made by the State to show the circumstances under which the separation took place. The State did not contest the lack of consent to the separation or the lack of opportunity to consent or refuse to consent to the separation. The jurors were not called, although juror Vittr-up, who apparently had gone to “his Dad’s ...” to get his car, was a witness at the hearing on the motion for new trial on another ground. Article 35.23, V.A.C.C.P., gives the trial court the discretion to permit the jurors to separate in a felony case until the court has given its charge to the jury. After receiving the charge, the jury “shall be kept together” until a verdict is rendered or until the jury is finally discharged. Once the charge is given, Article 35.23, supra, allows the jury to separate only by permission of the court and with the consent of the parties. The provisions of Article 35.23, supra, are mandatory. Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974); Goodall v. State, 501 S.W.2d 342, 343 (Tex.Cr.App.1973); Wells v. State, 634 S.W.2d 868, 870 (Tex.App.-Houston [1st Dist.] 1982) pet. ref'd. The statute requires reversal if the jury is allowed to separate after the court’s charge has been given unless the defendant consents. McDonald v. State, 597 S.W.2d 365, 367 (Tex.Cr.App.1980), cert. den. 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 467 (1980); Skillern v. State, 559 S.W.2d 828 (Tex.Cr.App.1977). See also Rhynes v. State, 479 S.W.2d 70 (Tex.Cr. App.1972). It is the defendant’s burden to insure that the record shows that he or she did not consent to the separation. McDonald v. State, supra, at 367; Green v. State, supra; Burgett v. State, 646 S.W.2d 615, 619 (Tex.App.-Fort Worth 1983); Taylor v. State, 636 S.W.2d 600 (Tex.App.-El Paso 1982). “Where the defendant has established in the record that a separation occurred without his consent, the mandatory language of Article 35.23 raises a presumption of harm which the State must then seek to rebut.” Taylor v. State, 636 S.W.2d, supra, at 602. See also Reed v. State, 595 S.W.2d 856, 857 (Tex.Cr.App.1980); Goodall v. State, 501 S.W.2d 342, 343 (Tex.Cr.App.1973); Decker v. State, 570 S.W.2d 948, 950, n. 7 (Tex.Cr.App.1978); Trevino v. State, 565 S.W.2d 938, 940 (Tex.Cr.App.1978); Skillern v. State, supra. In order to afford the State an opportunity to rebut this presumption of harm, the issue of improper jury separation must be raised during trial or in a motion for new trial. Green v. State, supra, at 922; McDonald v. State, supra, at 367; McIlveen v. State, 559 S.W.2d 815, 818-819, n. 1 (Tex.Cr.App.1977); Taylor v. State, supra, at 602. The appellant raised the issue by his motion for mistrial during trial on the merits. While he might not have fully developed the facts then, he did allege the issue in the motion for new trial. At the hearing thereon he demonstrated that neither he nor his attorneys consented to the separation, nor were they ever given an opportunity to consent. The burden thus shifted to the State to rebut the presumption of harm. Apparently trying to equate failure to object with consent, the State argues, for the first time, on appeal, that appellant did not object to the separation before the alleged incident. The record does not show that appellant was ever aware of the proposed separation or plan to have the jurors move their vehicles. In fact, the record indicates the contrary. The State’s argument is without merit. The State also attempts to rely upon the “housing" exception in Article 35.23, supra, and contends the men and women jurors separated and moved their vehicles in anticipation of the separation of men and women for the night as permitted by the statute. This argument is totally meritless. Argument is also advanced that the separation was a mere temporary “de minimus” apartness of the jurors while the trial judge, as the officer in charge, remained in control of the jurors. Such, the State claims, was not an illegal separation. Without discussing the inadvisability of the trial judge acting as jury shepherd despite noble motives, particularly at this point in the trial, the record simply does not show the length of time the jurors were separated, the distance between the county parking lot and the places where the jurors’ vehicles were eventually parked, how long it took juror Vittrup, who went to “his Dad’s ... about a block from here” to rejoin the other jurors, etc. The trial judge did state he was positive none of the jurors had access to any information or contact with other persons. It was shown, however, he was not with all the jurors at all times during the separation and certainly not with juror Vittrup, who went to “his Dad’s.” The facts of the case, or lack of facts, distinguish this case from those cited by the State. Unlike McIlveen v. State, 559 S.W.2d 815 (Tex.Cr.App.1977), the prosecutor here did not obtain the testimony of jurors and rebut the presumption of harm, nor did the judge poll the jury as in O’Neil v. State, 642 S.W.2d 259 (Tex.App.-Houston [14th Dist.] 1982) no pet. It may have been relatively easy to rebut the presumption of harm, see Barnett v. State, 50 Tex.Cr.R. 538, 99 S.W. 556 (1907); McIlveen v. State, supra, but no effort was made by the State to call the jurors or other witnesses to rebut the presumption. The State relied alone upon the trial judge’s remarks. This was not enough. A jury separation statute and the presumption of harm is not new nor peculiar to Texas. A brief history thereof was discussed in the concurring opinion in Skillem v. State, 559 S.W.2d 828, 832 (Tex.Cr. App.1977). Once the issue of jury separation was raised in the motion for new trial, a quick research of applicable cases would have revealed what steps could have been taken to rebut any presumption of harm. This is the second time that this case has to be reversed on trial error. This Court, however, is bound by the record made in the trial court below. The judgment must be reversed. While the jury separation error necessitates reversal, the appellant advances sufficiency of evidence and related questions which must be reviewed and answered. For this purpose we shall briefly summarize this voluminous record. Valerie Denise Rencher was the State’s chief witness. She saw the appellant kill the deceased, Tim Merka. Rencher, 15 years old, had moved to Bryan in the Fall of 1978, and was in the ninth grade. She had been dating appellant for a month and a half before the night of December 11, 1978. On that night she was with the appellant, his mother and sisters at the Harris home in Bryan. While there James Manuel, known as “Dirty Red,” and appellant's brother Danny Harris, came to the house in a Ford Torino. Rencher and the appellant left with these two in the Torino about 7:30 p.m. After driving awhile, Danny Harris decided he wanted to see Ann Chambers, who lived on Sandy Point Road. Upon arriving at the Chambers’ house, they discovered Ann was not at home. The Torino would not then start and the three men began to beat on the car and tear up the interior. Danny Harris broke out the window on the driver’s side with a tire tool. A man came out on the porch of a nearby house, and in response to a question told the group he did not have any jumper cables. According to Rencher the group then started walking down the middle of the road when a pickup truck approached which Danny flagged down. The driver was a heavy-built white male of medium age who was wearing blue jeans, checkered shirt and a jacket. The driver backed his truck up to the Torino, and worked in vain for 20 to 25 minutes trying to start the Torino with jumper cables. The pickup truck driver told Danny he didn’t think the car was going to start but Danny said “Keep trying.” Rencher then saw Danny Harris and Manuel go behind the Torino and heard James Manuel say “No, man, my arm is still out of place.” Then she heard Danny tell the appellant Curtis Harris “We going to drive this man.” Rencher then saw Danny push the white male in the chest, causing him to fall on his back, then pin the man’s arms down while putting his weight on top of the fallen man. Rencher then saw the appellant hit the man, whom his brother was holding down, in the head with an automobile jack. The man asked what they wanted. Rencher, surprised by these violent actions, asked the appellant not to hit the man again, but the appellant hit him again hard enough to kill him. Rencher, being scared, got into the pickup truck, and heard and saw appellant hit the man at least six more times. The appellant got in the truck along with James Manuel, who had taken the man’s wallet and apparently some papers. Danny Harris got in the driver’s seat. Rencher, sitting next to the appellant, who was bloody, got blood on her off-white colored jacket. She noticed appellant also had blood on his tennis shoes. They drove to the Harris home in Bryan where the appellant and his brother Danny changed clothes. The foursome then drove towards Navasota, but ended up in Waller. In Waller Manuel got out of the truck with a shotgun in his hand, a shotgun that had been found in the pickup truck that night. After leaving a U-Totem store in Waller, they drove back to Bryan, arriving about midnight, and went into the woods behind the Harris house for about five minutes. Danny Harris then drove out of the woods, let Rencher and appellant out and said he was going to “dump that man’s truck.” Danny arrived at the Harris house about five minutes later. Rencher and appellant spent the night at the house. Valerie Rencher testified she washed the blood off her coat which she had gotten from sitting next to the appellant in the truck. She stated it “wasn’t evidence. To me it wasn’t then. At that time I was young and I was more shocked and scared more than anything. I didn’t know what they’d do to me while I was out there.” Rencher made two voluntary statements less than a week later, and before she knew of any plea agreement. She understood later that she would get 10 years in the penitentiary if she would “just tell the truth.” She did not know what she was being charged with, but thought she could be charged as an adult for capital murder. Avis Morgan placed both Harris brothers, Manuel and Rencher at the Harris home about 6:30 to 7 p.m. on the date in question. He also knew Manuel as “Dirty Red.” An hour and a half or so later on December 11,1978, Elmore Green, Jr., heard a car on Sandy Point Road near the front of his house. Someone knocked on Ann Chambers’ door and no one answered. Green heard bottles being thrown and a car being kicked. When Green went to his front door, one of the men in the group asked for jumper cables and Green told him that he did not have any. He heard one of the men call another “Dirty Red” and he knew that was what James Manuel was called, but it was dark and he could not clearly see them. He knew there were four black individuals, one being a female wearing a white sweater blouse. Green saw them “beating on the car” and then start to walk on the road towards Highway 50. Twice he said that “they” flagged down an approaching truck, and one time he said the female flagged down the truck. He saw the white male driver of the pickup truck pull the truck near the other car and raise the hood of the truck. He heard a car engine “turning over” and he went to sleep. The next morning he testified that the white male was the same man whose body he saw lying in the ditch at 6 a.m. Green called the police. Several officers arrived at the scene. Sheriff Bobby Yeager testified about finding the body of Merka at the scene as well as a bumper jack shaft and bumperjack ratchet with blood and hair on each instrument. A claw hammer with blood on the handle was found under Merka’s body. The cause of death was multiple severe injuries to the head and the brain. There were 15 lacerations to the head which were consistent with having been inflicted by the bumper jack shaft and ratchet mechanism found at the scene. The Merka 1978 GMC pickup truck was found later at 10 a.m. on December 12, 1978, on the Old Mumford Road in Bryan approximately four blocks from the Harris house. There was blood on the front seat and blood and hair on the toolbox. Later the same morning a deputy sheriff went to the Harris house and took the tennis shoes directly from appellant’s feet. There was blood on the shoes. A chemist identified the blood as human blood, but there was not enough in order to determine blood type. Elbert Warren testified that on December 15, 1978, Danny Harris sold him a shotgun while the appellant was present. Warren identified the shotgun as the one he purchased and sold to Chick Chatum from whom it was recovered. The shotgun serial number 177186 was the same number of the shotgun on an insurance policy owned by the deceased Tim Merka. Donald Evans, a co-worker of the deceased, saw the Winchester 12 gauge shotgun in Merka’s pickup on the night of December 11, 1978 before Merka left his job between 8:45 and 9 p.m. Barbara Gilmore King, the assistant manager at the U-Totem grocery store in Waller, testified at about 11:30 p.m. on December 11,1978, the night of the alleged offense, appellant was one of three men who entered her store with a shotgun. On March 22,1979, Ricky Kearney found Merka’s Texas A & M identification card, a gun case, a payment book and a 1978 GMC Driver’s Manual in the woods behind the Harris house. The gun case was identified by the deceased’s wife as belonging to her husband. There was, of course, additional testimony, but we do not conclude a further recitation is essential. With this background we turn to appellant’s contention that the trial court erred, over timely objection, in failing to charge that Valerie Denise Rencher was an accomplice witness as a matter of law. It is observed that the court did submit to the jury the fact issue of whether Rencher was an accomplice witness or not. By virtue of Article 38.14, V.A.C. C.P., a conviction cannot be had upon the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. It has been said before and after the adoption of the 1974 Penal Code that an accomplice witness is someone who participated with another before, during or after the commission of a crime. Brooks v. State, 686 S.W.2d 952, 957 (Tex.Cr.App.1985); Harris v. State, 645 S.W.2d 447 (Tex.Cr.App.1983); May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981); Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980), and cases there cited; Easter v. State, 536 S.W.2d 223, 226 (Tex.Cr.App.1976); Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.1974). One is not an accomplice witness, however, who cannot be prosecuted for the offense with which the accused is charged. Villarreal v. State, 576 S.W.2d 51 (Tex.Cr. App.1979); Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978); Russell v. State, supra; Brooks v. State, supra. If a State’s witness has no complicity in the offense for which an accused is on trial, his or her testimony is not that of an accomplice witness whatever may have been his complicity with the accused in the commission of other offenses. Easter v. State, 536 S.W.2d 223, 225 (Tex.Cr.App.1976), and cases there cited; Brooks v. State, supra. In Easter v. State, supra, it was observed that the 1974 Penal Code had made some notable changes with regard to parties to a crime, and that an accessory (to the person) after the fact had been eliminated as a party to a crime and replaced with a separate and distinct crime of “hindering apprehension or prosecution.” See V.T.C.A., Penal Code, § 38.05. While an accessory was an accomplice witness under the former code, this is no longer true. Easter v. State, supra; Emmett v. State, 654 S.W.2d 48, 49 (Tex.App.-Dallas 1983). The mere fact that a witness was present when the crime was committed does not compel the conclusion the witness is an accomplice witness. Brooks v. State, supra; Brown v. State, 640 S.W.2d 275 (Tex.Cr.App.1982); Arney v. State, 580 S.W.2d 836 (Tex.Cr.App.1979); Easter v. State, supra, at p. 225. Further, a witness is not deemed an accomplice witness because he knew of the crime but failed to disclose it or even concealed it. Easter v. State, supra, at p. 225; Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979). See also Villarreal v. State, supra; Russell v. State, supra. Tex.Jur.3rd, Vol. 25, Criminal Law, § 3443, pp. 272-273. “Furthermore, even though the witness was an actor in the criminal transaction he is not regarded as an accomplice if he did not act knowingly or willingly, or if he was too young to be criminally responsible.” Tex.Jur.3rd, Vol. 25, Criminal Law, § 3443, pp. 274-275. The evidence in a case determines what jury instruction needs to be given on an accomplice witness. Whether a witness is an accomplice witness so as to require corroboration of his testimony is frequently difficult to determine. If the evidence clearly shows that a witness is an accomplice witness as a matter of law, the trial court must so instruct the jury. Harris v. State, supra, at 454; Arney v. State, supra, at 836; Allen v. State, 461 S.W.2d 622 (Tex.Cr.App.1970). And failure to do so may constitute reversible error. Tex.Jur.3rd, Vol. 25, Crim. Law, § 3444, p. 281; Bolin v. State, 505 S.W.2d 912 (Tex.Cr.App.1974). See also Gonzales v. State, 441 S.W.2d 539 (Tex.Cr.App.1969). Where there is a conflict in the evidence, a doubt or question, as to whether a witness is an accomplice witness, it is proper to submit the same as a fact issue to the jury even though the evidence seems to preponderate in favor of the fact that the witness is an accomplice witness as a matter of law. Gonzales v. State, supra; Allen v. State, supra; Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1979), cert. denied 444 U.S. 885, 100 S.Ct. 176, 62 L.Ed.2d 114; Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975); Brown v. State, 640 S.W.2d 275 (Tex.Cr.App.1982); Harris v. State, supra, at 454. See also Drummond v. State, 624 S.W.2d 690 (Tex.App.Beaumont 1981) (With facts similar to the instant case.). If the evidence is clear that a State’s witness is not an accomplice witness, no charge need be given the jury thereon. Villarreal v. State, supra, at 51; Danny Harris v. State, supra, 645 S.W.2d at 456; Silba v. State, 161 Tex.Cr.R. 135, 275 S.W.2d 108 (1954). Appellant argues that by her testimony Valerie Rencher established “(1) she was present at time of alleged murder; (2) she had blood on her clothing after the event; (3) that she knew her companions were going to ‘jump’ the man; (4) she was the first one to get into the deceased’s truck; (5) she would get no more than ten years in the pen if she cooperated in the investigation; (6) she was kept in detention until after she gave her testimony; (7) she was charged with the offense of capital murder of Timothy Michael Merka; (8) she did not leave the scene of the event when she had the opportunity; (9) she did not report the event when she had a chance.” Appellant also points out Elmore Green, Jr., testified Rencher was the one who initially stopped the deceased’s truck. The State responds that Rencher was 15 years old at the time, had gone with the appellant and his brother Danny Harris and James Manuel to see Danny’s girlfriend, whom they found was not at home. Their car wouldn’t start and they began walking down the road when the deceased drove down the road. The State argues that Rencher did not participate in the planning or promoting the offense, and did not know what was about to occur, and that mere presence at the scene does not an accomplice witness make. There was some dispute about whether Rencher knew the expression “drive” meant “jump on.” Apparently she suspected only shortly before the attack what was about to happen. She testified she entered the deceased’s truck out of fear for her life and after pleading with appellant to stop beating the deceased. She related the blood on her clothing was placed there when appellant, who was bloody, got in the truck and sat next to her. Further, the State notes that the fact that Rencher knew of the offense and did not immediately report it, did not, under the authorities earlier cited, make her an accomplice witness. There was conflict in the evidence as to who initially stopped the deceased’s vehicle. Rencher testified all four were walking down the middle of the road when the deceased’s vehicle was stopped by Danny Harris. Elmore Green, Jr., saw the three males and one female in the middle of the road and testified “they” flagged down the approaching truck, then he stated the female flagged down the truck, and later related “they” stopped the truck. The record does not show that Rencher was “charged” as an adult with the murder of the deceased Merka. There was a petition for discretionary waiver of juvenile jurisdiction filed in the Juvenile Court of Brazos County on December 28, 1978, alleging that Rencher had caused the death of Merka. This was a civil proceeding. She was ordered detained. On June 13, 1979 the petition was denied and the juvenile action dismissed in 1980. The instant trial commenced in June 1983. At one time there had been a discussion with Rencher’s attorney that if Rencher testified for the State and was certified for trial as an adult that the State would see that she didn’t get more than 10 years. She was not in detention at the time of the instant trial. Appellant thus contends Rencher was an accomplice witness as a matter of law and he was entitled to a proper charge, and the State contends Rencher did not participate in the offense. We conclude that the trial judge, under the circumstances, did not err in submitting to the jury the issue of accomplice witness as a fact question, which is a proper submission even when the evidence seems to preponderate in favor of the fact that the witness is an accomplice witness. Gonzales v. State, 441 S.W.2d 539 (Tex.Cr.App.1969); Allen v. State, 461 S.W.2d 622 (Tex.Cr.App.1970); Brown v. State, 640 S.W.2d 275 (Tex.Cr. App.1982). We further observe that in Danny Ray Harris v. State, 645 S.W.2d 447 (Tex.Cr. App.1983), the conviction of this appellant’s brother for murder of Merka was reversed. Rencher’s testimony was the same or similar as in appellant’s two trials. The trial court in Danny Harris’ trial refused to charge at all on the issue of Rencher being an accomplice witness. In reversing on that basis, this Court held that the court should have submitted to the jury the fact question of whether Rencher was an accomplice witness. This Court did not conclude there that Rencher was an accomplice witness as a matter of law. Nevertheless, appellant argues in another ground of error that the evidence is insufficient to support the conviction for capital murder because due to the lack of corroboration of the accomplice witness’ (Rencher’s) testimony. In Gonzales, supra, 441 S.W.2d at 541, it was stated: “It appears from these cases that where the court submits to the jury the fact question of whether a certain State witness is an accomplice witness when the evidence was such as to justify a charge that such witness was an accomplice as a matter of law and proper objection is reserved, the error does not require reversal unless the testimony of the witness is essential to the State’s case (a) because if the witness is in fact an accomplice, there is no evidence to corroborate his testimony, or (b) because, without testimony of the witness (whether he be an accomplice or not) there is insufficient evidence to support a conviction or (c) because it is the sole corroboration of the testimony of another accomplice witness.” See also Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977).” Appellant thus argues the charge given was error and that while in many cases the error would not be reversible error it is in his case under subsection (a) of Gonzales set out above. We will briefly review appellant’s contention. . “The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise it is not.” Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968) (Emphasis supplied.) See also Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971); Dillard v. State, 550 S.W.2d 45 (Tex.Cr.App.1977). In this writer’s original dissenting opinion in Paulus v. State, 633 S.W.2d 827, 837, 846 (Tex.Cr.App.1982), later adopted by the majority as the en banc opinion, it was stated after citing a number of authorities: “As earlier noted, all the facts and circumstances in evidence may be looked to as furnishing the corroboration necessary. The corroborative evidence may be circumstantial or direct. Apparently insignificant circumstances sometimes afford the most satisfactory evidence of guilt and corroboration of the accomplice witness’ testimony. It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt. The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses supplies the test. Each case must be considered on its own facts and circumstances and on its own merits.” Rencher made out a complete case by direct evidence against the appellant. Except for the requirements of Article 38.14, V.A.C.C.P., there could be no question of the sufficiency of the evidence to sustain the conviction. If, as appellant contends, Rencher was an accomplice witness, we would be required to apply the test set forth in Edwards, supra, and look to non-accomplice evidence. Article 38.14, supra, makes clear evidence merely showing the commission of an offense is not sufficient alone to corroborate an accomplice witness, but it is a factor to be considered along with other possible factors in determining whether there is sufficient independent evidence to corroborate the accomplice witness. Pau-lus, supra. The mere presence of the accused in company with the accomplice witness shortly before or after the time of the offense is not, in itself, sufficient corroboration of the testimony of the accomplice witness, however, when coupled with other circumstances may be sufficient. See Nelson v. State, 542 S.W.2d 175, 177 (Tex.Cr.App.1976); Cherb v. State, 472 S.W.2d 273 (Tex.Cr. App.1971). Avis Morgan placed appellant, Rencher and James Manuel known as “Dirty Red” together at the Harris home about 6:30 or 7 p.m. Later Elmore Green, Jr., saw three black males and one black female near his home, and near the scene of the offense later to be committed. He could not identify them but heard one referred to as “Dirty Red.” He knew Manuel was called “Dirty Red.” They apparently had car trouble and later Green saw them stop a white man who got out of his truck to assist them. Eight hours later he saw the body of the same white man in a ditch near the same scene. About an hour after the alleged offense appellant was identified as being one of three men who were in a U-Totem grocery store in Waller with a shotgun. The witness was the assistant manager of the store. Rencher had testified they drove to Waller and that the three men got out of the pickup and that they had the shotgun found in the deceased’s truck. The morning after the alleged offense human blood was found on appellant’s tennis shoes. Rencher had said blood had gotten on appellant’s tennis shoes. Three days after the alleged offense appellant was present when his brother, Danny, sold the shotgun in question. The pickup truck of the deceased was found three or four blocks from appellant’s home the next day after the offense. Other items belonging to the deceased were found in the wooded area behind the said home. There are other facts which could be discussed. We conclude that evidence independent of Rencher’s tends to connect appellant with the crime charged, and even if Rencher was an accomplice witness as a matter of law, as appellant claims, the evidence would be sufficient to corroborate Rencher’s testimony. Appellant’s ground of error is overruled. In another ground of error appellant contends the trial court erred in denying his pre-trial “motion to dismiss the prosecution and special plea of double jeopardy.” Appellant observes that on December 18, 1978 a “Request for Order of Immediate Custody” was filed with Juvenile Court of Brazos County charging Valerie Rencher with murder; that on December 28, 1978 a “Petition for Discretionary Waiver of Juvenile Jurisdiction” was filed with said juvenile court charging Rencher with the murder of Merka, the deceased in the instant case. Appellant contends that Rencher was so “charged” at the time of his first trial and that such juvenile charge was equivalent to being under indictment as an adult for the same offense. He argues that Rencher was therefore an accomplice witness as a matter of law at his first trial, that her testimony was not corroborated as required by Article 38.14, V.A.C.C.P., at such trial and he was entitled to have the second prosecution dismissed on the basis of double jeopardy. Appellant presented no authority in point to the trial court, nor presents any to this Court for the proposition that a pending juvenile proceedings (involving waiver of juvenile jurisdiction and certification of a juvenile for trial as an adult) is the equivalent to a pending indictment with regard to the accomplice witness rule. We need not determine this question for the purpose of this ground of error. The appellant made no showing to the trial court at the hearing on his pre-trial motion that, even if Rencher was an accomplice witness as a matter of law, there was no independent evidence to corroborate her testimony at appellant’s first trial. The instant trial occurred after the reversal of the first conviction and after a change of venue to another county. The trial judges were not the same. For the purpose of his pre-motion appellant did ask the second trial judge to consider or take judicial notice of the “statement of facts” from the first trial. He obtained no ruling on his request, and no such statement of facts were presented to the trial judge. The trial court's action in denying the said pre-trial motion was not error given the circumstances. Appellant places great emphasis upon a statement in our opinion reversing his first conviction: “The only evidence adduced at trial which connected appellant with the murder of the deceased was the testimony of Valerie Denise Rencher, appellant’s sixteen year old girlfriend.” Harris, 642 S.W.2d at 472. In such opinion the court was focusing upon the question of whether the trial court had unduly restricted the Harris’ constitutional rights to confront and cross-examine Rencher, the State’s material witness, whose testimony was the only direct testimony connecting Harris with the alleged murder. In reversing on that basis the Court did not hold that Rencher was an accomplice witness as a matter of law nor did it hold that there was no independent evidence to corroborate an accomplice witness. Appellant’s reliance upon the language in our earlier opinion is misplaced. Further, was earlier noted, in Danny Ray Harris v. State, 645 S.W.2d 447 (Tex.Cr.App.1983), the conviction of appellant’s brother for the murder of Merka was reversed. Rencher’s testimony there was similar as in appellant’s two trials. The trial court refused to charge at all on the issue of an accomplice witness. This Court reversed, holding that under the evidence the court should have submitted to the jury the fact question of whether Rencher was an accomplice witness. It was not concluded there that Rencher was an accomplice witness as a matter of law. Appellant’s ground of error is overruled. Appellant also complains the evidence is insufficient to support the conviction since the State failed to prove the corpus delecti. The corpus delecti of murder consists of two elements: First, the body of the deceased must be found and identified. Second, the death of the deceased must be shown to have been caused by the criminal act of another. Nathan v. State, 611 S.W.2d 69 (Tex.Cr.App.1981); Penny v. State, 691 S.W.2d 636 (Tex.Cr. App.1985). It is appellant’s argument here only that the body of the deceased was not sufficiently identified. Appellant argues the only direct evidence to connect him with the alleged capital murder was that of Valerie Rencher; that she never did identify the deceased except by stating he was white, heavy built, and not “real young or real old” and by describing the clothing he was wearing. Appellant notes she never identified a photograph of the deceased and did not refer to him by name. Appellant urges the record is silent as to any identification of the deceased at the time of the attack or subsequent thereto by anyone having personal knowledge of the event. The record does reflect that Elmore Green, Jr., identified Tim Merka’s photograph as the man he had seen on the night of December 11, 1978, drive onto Sandy Point Road in a pickup and whose body was found in a ditch the next morning. Sheriff Bobby Yeager testified he was on the scene the next morning (December 12th) and the body he found on Sandy Point Road was that of Merka whom he knew and that he recognized him when the body was turned over. He identified known photographs of Merka as the same body he found. There was no objection to such testimony. Dr. J.C. Lee, the medical examiner who performed the autopsy, testified that the body was identified to him by Sheriff Yeager and that there was a ring on one finger which had the name “Tim Merka” printed on the inside of the ring. There was no objection to this testimony. Cf. Boening v. State, 422 S.W.2d 469, 473 (Tex.Cr.App.1967). All the facts and circumstances in the case may be looked to in aid of and to determine the corpus delicti. Black v. State, 137 Tex.Cr.R. 173, 128 S.W.2d 406 (1939); O’Keefe v. State, 145 Tex.Cr.R. 349, 167 S.W.2d 1035 (1942). The corpus delecti may be proved by circumstantial as well as direct evidence. Saulter v. State, 151 Tex.Cr.R. 550, 209 S.W.2d 184 (1948); Simpson v. State, 163 Tex.Cr.R. 385, 291 S.W.2d 341 (1956); Tex. Jur.3rd, Vol. 18, Crim.Law, § 223, p. 346. See also Gonzales v. State, 681 S.W.2d 270 (Tex.App.-San Antonio 1984). The determination of the corpus delicti is not as limited as appellant urges. We conclude the evidence is sufficient to show the identify of the body as that of the deceased and as the man attacked. See Gomez v. State, 638 S.W.2d 133, 136 (Tex.App.-Corpus Christi 1982) pet. ref.d, which relies upon Clay v. State, 505 S.W.2d 882 (Tex.Cr.App.1974). See also Aubuchon v. State, 645 S.W.2d 869, 873 (Tex.App.-Ft. Worth 1983), which relies upon Estrada v. State, 422 S.W.2d 453, 455 (Tex.Cr.App.1968). The ground of error is overruled. For the reasons stated, the failure to overcome the presumption of harm in the jury separation the judgment of the trial court is reversed and the cause remanded. WHITE, J., dissents. . The indictment alleged in pertinent part that appellant on or about December 11, 1978 "did then and there unlawfully intentionally and knowingly cause the death of an individual, Timothy Michael Merka by striking him on the head with a hard metal object; and the said Curtis Paul Harris did then and there intentionally cause the death of said Timothy Michael Merka in the course of committing the offense of robbery of the said Timothy Michael Merka_” . The death penalty conviction of appellant’s brother, Danny Ray Harris for the same offense was reversed for trial error in the court’s charge. Danny Ray Harris v. State, 645 S.W.2d 447 (Tex.Cr.App.1983). . Article 35.23, V.A.C.C.P. (Jurors May Separate), reads: "The court may adjourn veniremen to any day of the term. When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury, after which the jury shall be kept together, and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged, unless by permission of the court with the consent of each party. Any person who makes known to the jury which party did not consent to separation shall be punished for contempt of court. If such jurors are kept overnight, facilities shall be provided for female jurors separate and apart from the facilities provided for male jurors. In misdemeanor cases the court may, at its discretion, permit the jurors to separate at any time before the verdict. In any case in which the jury is permitted to separate, the court shall first give the jurors proper instructions with regard to their conduct as jurors when so separated.” . The record does not show that the State was ever informed of any plan to have the jurors separate and move their vehicles. . She identified the shotgun in question as the same one she had seen that night, but at another point was unable to make a positive identification. . Article 77, V.A.P.C., 1925, provided in part: “An accessory is one who, knowing that an offense has been committed, conceals the offender, or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence...." . It is observed that at the hearing on the motion for new trial the appellant called juror Vittrup, who testified on direct examination that the jurors had considered the accomplice witness issue and found that Rencher was not an accomplice witness. . In fact, the Court wrote: “We cannot say the trial court erred in failing to instruct the jury that Valerie Rencher was an accomplice witness as a matter of law.” Harris, supra, 645 S.W.2d at 454. . Appellant cites Etheredge v. State, 542 S.W.2d 148 (Tex.Cr.App.1976), for the proposition that a witness is an accomplice witness as a matter of law where the witness has been indicted for the same offense for which the accused is on trial. See also McCloud v. State, 527 S.W.2d 885 (Tex.Cr.App.1975). . The court cannot take judicial notice by the testimony heard before him on another trial and enter judgment thereon. Scott v. Clark, 38 S.W.2d 382 (Tex.Civ.App.-Austin 1931); Entrekin v. Entreken, 398 S.W.2d 139 (Tex.Civ.App.-Houston 1966). See also Rounsavall v. State, 480 S.W.2d 696, 700 (Tex.Cr.App.1972) (dissenting opinion); 1 McCormick and Ray, Texas Practice, 2nd Ed., Evidence, § 152, 172. Even the so-called "judicial notice" rule in probation cases, Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), and its progeny, would have no application where different judges are involved.
MILLER, Judge, dissenting. I dissent to the majority’s conclusion that based upon the facts of this case, the jury separation requires reversal. Certainly under Art. 35.23, V.A.C.C.P., reversal of the case is required if, after the charge is given, the jury is allowed to separate without the defendant’s consent. See McDonald v. State, 597 S.W.2d 365 (Tex.Cr.App.1980), and cases cited in majority at p. 212. Also, the defendant has the burden to make sure that the record reflects that he did not consent to the separation. McDonald, supra, at 367, citing Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974). If the defendant does sustain his burden, then the State must show that the separation did not result in harm to the defendant. Skillern v. State, 559 S.W.2d 828 (Tex.Cr.App.1977). I cannot, however, accept the majority’s conclusion that the State failed to rebut the presumption of harm in this case, therefore mandating a reversal. As proper rebuttal evidence, the record contains statements by the trial court showing, as I read them, the following: 1. The trial judge accompanied the jurors as a group from the courthouse to the parking lot. 2. The trial court accompanied the jurors to each of their cars. 3. The trial court saw the jurors move their cars en masse from where they were parked to the courthouse. 4. The trial court was “positive that none of the jurors had access to any information or contact with other persons during this process.” Maj. at p. 211. These facts show that the jurors did not make any outside contacts while moving their cars in the presence and view of the trial court. The majority opinion, at p. 213, states that the record shows that the trial court “was not with all the jurors at all times during the separation and certainly not with juror Vittrup, who went to ‘his Dad’s.” With all due respect, the record does not support this holding. On the contrary, the trial court states that he “accompanied all of them” (jurors) to each of their cars. No exception was made to this statement regarding juror Vittrup, who’s car was parked “about a block from here [the court room]”. The record is devoid of the proximity of Vittrup’s “Dad’s” to the county parking lot. In the face of the trial judge’s statements, however, absent any refutation, we must assume that the trial court also accompanied him to his car. In sum, there is simply nothing in the record showing that the trial judge was not with any juror during the time the cars were moved. With the record viewed as it actually appears, there is no evidence that the jurors had any contact with other persons, nor that appellant was harmed in any way by the separation. Thus, the State, through the trial judge’s gratuitous statements, has met its burden of rebutting the presumption of harm. One brief pause must be made to separate the facts of this case from those presented in Skillem, supra, which at first glance may appear similar. In that case, the bailiff and another witness testified that they had not seen the jurors speak to anyone, but clearly stated they had not had the jurors in sight at all times during the separation. This Court held that the testimony of a person under these conditions merely to the effect that he did not see a juror speak to anyone in a situation where he did not see the juror at all times, standing alone, constituted no evidence that such speaking did not occur. Absent sufficient evidence, the State had failed to sufficiently rebut the presumption of harm. In the instant ease, the trial court did not state that he did not see anyone speak to the jurors. Rather, he testified that he was “positive” that none of the jurors had access to adverse information. Also, the trial court did not testify that he did not see some or one of the jurors at any time during the separation. Rather, he testified that he accompanied all of them during the entire separation. None of these statements were refuted. With these distinctions, Skillem, supra, is not strictly applicable to this case. Because the majority fails to correctly characterize the facts, I dissent to its treatment of this case. W.C. DAVIS, J., joins.
OPINION ON STATE’S MOTION FOR REHEARING MILLER, Judge. This is a request for rehearing of this Court’s opinion (See, page 207). On original submission, this Court held that reversible trial error occurred when the trial court permitted the jury to separate after the charge had been read. See Art. 35.23, V.A. C.C.P. We held that the provisions of Art. 35.23, id,., were mandatory, and a presumption of harm attached once appellant established in the record that he had not consented. We then reversed the conviction because the State had failed to rebut this presumption. In its motion for rehearing, the State contends that the record shows that the presumption of harm was rebutted. We will grant the State’s motion for rehearing, overrule that point of error concerning the jury separation issue, and address the remaining points of error not disposed of on original submission. We will affirm the conviction. With regard to appellant’s first point of error in which he contends that an impermissible jury separation occurred, we substitute the following for the discussion given in the original opinion. Article 35.23, supra, gives the trial court the discretion to permit the jurors to separate in a felony case until the charge has been given. Afterward, the jury “shall be kept together” until a verdict is rendered or the jury is discharged, or the separation is given by permission of the trial court with consent of the parties. According to Art. 35.23, supra, reversal of the case is required if, after the charge is given, the jury is allowed to separate without the defendant’s consent. See McDonald v. State, 597 S.W.2d 365 (Tex.Cr.App.1980), cert. denied 449 U.S. 1010,, 101 S.Ct. 564, 66 L.Ed.2d 467 (1980). See also Skillern v. State, 559 S.W.2d 828 (Tex.Cr.App.1977) and Rhynes v. State, 479 S.W.2d 70 (Tex.Cr.App.1972). The defendant has the burden to make sure that the record reflects that he did not consent to the separation. McDonald, supra, at 367, citing Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974). See also Taylor v. State, 636 S.W.2d 600 (Tex.App.1982). Once the defendant has established in the record that the separation took place without his consent, Art. 35.23, supra, raises a presumption of harm which the State must rebut. Taylor, id.; Reed v. State, 595 S.W.2d 856 (Tex.Cr.App.1980); Decker v. State, 570 S.W.2d 948 (Tex.Cr.App.1978); Trevino v. State, 565 S.W.2d 938 (Tex.Cr.App.1978); Skillern, supra; and Goodall v. State, 501 S.W.2d 342 (Tex.Cr.App.1973). In the instant case, appellant raised the issue of an invalid jury separation by his motion for mistrial during the trial on the merits. At the hearing on that motion, he showed that neither he nor his attorneys consented to the separation, nor were they given an opportunity to do so. Thus, on this record, appellant made the required showing under Art. 35.23, supra, and the burden shifted to the State to rebut the presumption of harm. As evidence to rebut this presumption of harm, the record reflects that the trial court judge narrated the following: 1. The trial judge accompanied the jurors as a group from the courthouse to the parking lot. 2. The trial court accompanied the jurors to each of their cars. 3. The trial court saw the jurors move their cars en masse from where they were parked to the courthouse. 4. The trial court was “positive that none of the jurors had access to any information or contact with other persons during this process.” These facts show that the jurors did not make any outside contacts while moving their cars in the presence and view of the trial court. Thus, under the facts of this case, there is no evidence that the jurors were out of sight of the trial judge, that the jurors had any contact with other persons, nor that appellant was harmed in any way by the separation. Austin v. State, 375 S.W.2d 308 (Tex.Cr.App.1964); Smith v. State, 124 Tex.Cr.R. 163, 60 S.W.2d 768 (1933). Thus, the State, through the trial judge’s “testimony,” has met its burden of rebutting the presumption of harm. Brief pause must be made to distinguish the facts of this case from those presented in Skillem, supra, which at first glance may appear similar. In that case, the bailiff and another witness testified that they had not seen the jurors speak to anyone, but clearly stated they had not had the jurors in sight at all times during the separation. This Court held that the testimony of a person under these conditions merely to the effect that he did not see a juror speak to anyone in a situation where he did not see the juror at all times, standing alone, constituted no evidence that such speaking did not occur. Absent sufficient evidence, the State had failed to sufficiently rebut the presumption of harm. In the instant case, the trial court did not state that he did not see anyone speak to the jurors. Rather, he “testified” that he was “positive” that none of the jurors had access to adverse information. Also, the trial court did not “testify” that he lost sight of some or one of the jurors at any time during the separation. Rather, he “testified” that he accompanied all of them during the entire separation. None of these statements were refuted. With these distinctions, Skillem, supra, is not strictly applicable to this case. We therefore find that the State, through the statements of the trial judge, met its burden of refuting the presumption of harm. Appellant’s first point of error is overruled. On original appeal, appellant brought eleven points of error. In our opinion on original submission, this Court sustained appellant’s first point of error, but overruled his points of error numbers two through six. We adhere to our original disposition of the latter points of error. Next, we will address the remaining five points of error. In appellant’s seventh and eighth points of error, he contends that the trial court erred by permitting evidence of an inadmissible extraneous offense to be placed before the jury. The record shows that the testimony of Valerie Rencher established that after the murder, appellant and the three others left the scene and drove to Waller. Danny Harris parked the truck, and the three men got out. James Manuel had the gun that was found in the deceased’s track. They left the engine running, and were gone for approximately five minutes. They came back, got into the truck, and left at a high rate of speed. After this testimony was elicited, appellant’s counsel objected on the basis that the facts constituted an inadmissible extraneous offense since: “It would take not only a blind man but a deaf man not to understand the implication of three people getting out of the truck with a shotgun, and being gone for five minutes, and coming back, driving back to Bryan ninety miles an hour. It’s clearly indicative of an extraneous offense.” Appellant’s eighth point of error concerns testimony elicited from Barbara Gilmore which appellant contends also contained reference to an inadmissible extraneous offense. The record shows that Gilmore was an assistant manager of a U-Totem convenience store located in Waller. On the night of the murder, December 11, 1978, three men came into the store, one of whom carried a shotgun. At trial, Gilmore identified the shotgun found in the deceased’s car as similar to the shotgun carried into the store. No additional facts were related, and Gilmore was excused from the stand. Later in the trial, the State recalled Gilmore. She identified appellant as one of the men who entered the store on December 11, 1978. When questioned as to her certainty of the identification, Gilmore stated that the men had been in the store approximately fifteen minutes, that on the night they entered the store, appellant had stood an arm’s length away from her, and that she would never forget his face. Initially, evidence of an extraneous offense must necessarily involve evidence of prior criminal conduct. McKay v. State, 707 S.W.2d 23 (Tex.Cr.App.1985). If the evidence fails to show that an offense was committed or that the defendant was connected to the offense, then evidence of an extraneous offense is not established. Id. See also Roach v. State, 586 S.W.2d 866 (Tex.Cr.App.1979), citing Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). In the case at bar, the testimony elicited from Rencher shows, at most, that Danny Harris committed the offense of driving at a speed in excess of the established speed limit. Since appellant was not operating the vehicle at the time, he was not connected with that particular offense. Thus, Rencher’s testimony contained no reference to an inadmissible extraneous offense. Gilmore’s testimony shows that at most, appellant accompanied two other men into the store, one of whom carried a shotgun. There was absolutely no mention of a robbery. Since appellant did not carry the shotgun, he was not connected with a specific offense. Thus, no inadmissible extraneous offense was introduced. In his brief, appellant contends that the preceding evidence leads to the inescapable conclusion that a robbery was committed. We note that while there was certainly no clear evidence that appellant robbed Gilmore after he and the others entered the store, the invitation for the jury to speculate as to the occurrence of a robbery is quite tempting. Even if we speculate, however, that the jury may have deduced from the preceding facts that a robbery had occurred, we find that admission of such an offense was supported by the record. Initially, evidence of an extraneous offense is admissible if the transaction is relevant to a material issue in the case, and also, if the relevancy value of the evidence outweighs its prejudicial effect. Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983). In the case before us, the testimony elicited from the two witnesses was relevant since it connected appellant, at a point very close in time to the commission of the offense, with the shotgun, which had been taken from the deceased’s truck, and with the other perpetrators of the offense. Also, no overt references were made to a robbery, that is, the State did not overkill and proffered only enough evidence to establish this relevancy. The trial court also gave extensive limiting instructions regarding extraneous offenses. In the case at bar, appellant and the other two men murdered the deceased, and were seen in the store with the deceased’s shotgun only two hours after the murder. We find that the probative value of the facts regarding appellant’s entry into the store was greater than any prejudicial effect. Thus, the trial court did not err by admitting the evidence. Appellant’s seventh and eighth points of error are overruled. In his ninth point of error, appellant contends that there was insufficient evidence to support the jury’s affirmative response to Special Issue Number 2, regarding whether appellant would constitute a continuing threat of violence to society. See Art. 37.071(b)(