Harris v. State

790 S.W.2d 568, 1989 Tex. Crim. App. LEXIS 151, 1989 WL 69709

• Court: Court of Criminal Appeals of Texas
• Decided: June 28, 1989
• Docket: 69366
• Status: Published

Opinions

OPINION

DUNCAN, Judge.

The appellant was convicted of capital murder pursuant to V.T.C.A. Penal Code, § 19.03(a)(b), and punishment was assessed at death under Article 37.071(e), V.A.C. C.P., after the jury answered affirmatively the questions submitted by the trial court at the punishment phase of the trial. This is the second time this Court has reviewed a death sentence imposed on the appellant for this offense. See Harris v. State, 645 S.W.2d 447 (Tex.Cr.App.1983).

Since the facts in this case have not changed, we will take the liberty of adopting the comprehensive factual recitation as set out in the appellant’s previous appeal, Harris v. State, id,., at 454.¹ To do otherwise would unnecessarily and reduntantly lengthen this opinion.

Briefly, however, the appellant, his code-fendant, James Charles Manuel, and appellant’s brother Curtis Paul Harris, were all indicted for the capital murder of Timothy Merka. Valerie Rencher, who was a juvenile at the time of the offense and the apparent girlfriend of Curtis Paul Harris, although present at the time of the offense, was never formally charged by indictment. Further, as a result of a plea agreement, she testified for the State against the appellant at both of his trials.²

The appellant’s first point of error is based on the trial court’s refusal to grant a new trial after it was discovered. that a portion of the record had been lost. In his second point of error, the appellant claims that the trial court did not have the jurisdiction to take remedial measures in an effort to correct the defect in the record. Since both points of error are so interrelated they will be disposed of simultaneously. On June 15, 1984, a pretrial hearing was conducted by the trial court. Apparently because the regular court reporter was unavailable, Brazos County authorities arranged for an independent court reporter to report the hearing. The record demonstrates that the appellant’s attorney requested that the court reporter take notes of the hearing. Later, and in a timely manner, appellant’s counsel requested in his Designation of the Record that the notes of the pretrial hearing be made a part of the record. Sometime after the Designation of the Record had been filed, the appellant and the State were advised that the notes of the pretrial hearing were lost.

Appellant’s counsel then filed his Objection to the Record specifically identifying the deficiency in the record and requested a hearing on his Objection to the Record and “after [the] hearing enter such orders as may be appropriate to cause the record to speak the truth....”

Two hearings were held to examine the appellant’s Objection to the Record; however, only the second hearing is consequential. At that hearing, one of the appellant’s trial attorney’s conceded no witnesses appeared at the pretrial hearing and that the only matters that transpired at the pretrial hearing was “we heard all the motions;” “[t]here were rulings by the court;” and “[t]here were agreements that were dictated into the record between the counsel as to what would be provided and what wouldn’t.” Further, the witness agreed with the prosecutor that the court made docket entries reflecting his rulings on the motions and in “almost every case ...” the court’s rulings were noted on the motions themselves. At the conclusion of the hearing on the Objection to the Record, the State tendered to the court “a rough draft which has a list of all the, I believe, twenty-six motions that were heard on that day.” The court ordered that the tendered document (which was not introduced into evidence and thus not a part of this record) be formalized and returned to the court.

On January 16, 1987, the trial court conducted a hearing to consider supplementing the record with a document that identifies the pretrial motions heard by the court on June 15, 1984, and the court’s ruling on the motions. At this hearing the trial court, over the appellant’s request for a “mistrial” (new trial), ordered that the record be supplemented with the document that recounted the pretrial hearing and concluded that including that document in the record the record in the appeal was complete.

Prior to examining the substance of the appellant’s claim it is imperative to examine whether the Rules of Appellate Procedure are applicable to the appeal of this conviction. As noted at the outset of the opinion, this is the appellant’s second time before this Court for the same offense; thus, this ease has been around for a long time. This time the appellant was convicted and assessed the death penalty on July 29, 1984. Therefore, the appellant’s appeal proceeded in accordance with the procedures dictated by Article 44.01, et seq., V.A.C.C.P. Specifically, when the matter of the objectionable record surfaced the appellant’s counsel responded pursuant to the procedures required under Article 44.09(7), supra. That is, on July 22, 1986, he filed his Objection to the Record and requested a hearing thereon. On August 1, 1986, the court held its first hearing on the appellant’s Objection to the Record. Thus, the process of responding to the appellant’s complaint about the record proceeded in accordance with the then still applicable procedures mandated in the Code of Criminal Procedure.

On September 1, 1986, the Texas Rules of Appellate Procedure became effective pursuant to an order of this Court adopting such rules dated December 18, 1985. On September 22, 1986, this Court, recognizing that confusion existed as to the applicability of the rules to appeals that were in the process of being perfected, issued an Order Implementing the Texas Rules of Appellate Procedure in Criminal Cases. In relevant part this Order provided as follows:

It is Ordered by the Court of Criminal Appeals that as to posttrial, appellate and review procedures and steps completed or required to have been completed prior to September 1, 1986, the procedural provisions then in effect shall govern.

It is further Ordered that all procedural matters and requirements as to post-trial, appellate and review procedures and steps completed or required to have been completed on or after September 1, 1986, shall be governed by the procedural requirements of the Texas Rules of Appellate Procedure in criminal cases, regardless of when notice of appeal was given.

As previously noted, the appellant’s appeal was initiated pursuant to the procedures then required by the Code of Criminal Procedure. Specifically, relevant to this point of error, notice that the record had been completed was given to the appellant on July 8, 1986. The appellant objected to the record on July 22, 1986 and, as previously noted, the initial hearing on his objection was held on August 1, 1986. Under then Article 40.09(7), V.A.C.C.P., once notice that the record was complete a defendant had fifteen days to file his Objections to the Record. Thus, the appellant had to file his Objections to the Record by July 23,1986. He properly and timely filed the objection on July 22, 1986. Thus, the time period necessary for the appellant to preserve his Objection to the Record and his preservation of the objection were dates prior to September 1, 1986. Since the appellate procedures appropriate to preserve his Objection to the Record were “completed or required to have been completed prior to September 1, 1986 ...,” then the appellate procedures noted in Chapter 40, V.A.C. C.P., were applicable to this appeal.

We certainly recognize that other proceedings, necessary to perfect this appeal, occurred after September 1, 1986. It would be absurd, however, to require an appeal to be perfected under one standard and then arbitrarily apply another standard. Therefore, as to this appeal, we find that the provisions of the Code of Criminal Procedure rather than the Rules of Appellate Procedure are applicable.

Dispensing with this preliminary procedural matter, the appellant claims that the loss of the notes of the pretrial hearing dooms his conviction. The appellant relies principally upon Dunn v. State, 733 S.W.2d 212 (Tex.Cr.App.1987). In Dunn, id., the Court stated:

It has long been the rule in this State that “[w]hen an appellant, through no fault of his own or his counsel’s, is deprived of a part of the statement of facts which he diligently requested, the appellate court cannot affirm the conviction. Austell v. State, 638 S.W.2d 888, 890 (Tex.Cr.App.1982). See also Gamble v. State, 590 S.W.2d 507 (Tex.Cr.App.1979); Timmons, supra, at 512; Pierson v. State, 147 Tex.Cr.R. 15, 177 S.W.2d 975, 976 (1944); Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081, 1085 (1941) (Opinion on motion for rehearing); and now also Tex.R.App.Pro.RuIes 210(a) and 50(e). Further, this rule has been applied whether all or only a portion of the statement of facts was omitted. See Austell, supra (voir dire examination); Gamble, supra (final arguments during guilt and punishment before the jury); and, Hartgraves v. State, 374 S.W.2d 888, 890 (Tex.Cr.App.1964) (hearing on motion for new trial).

[T]he burden is on appellant to establish that he ha[s] been deprived of his statement of facts, [citations omitted] To be entitled to a reversal of judgment of conviction where the statement of facts is not filed, an appellant must show due diligence in requesting it and that failure to file or to have the statement of facts timely filed is not in any way due to negligence, laches, or other fault of the appellant or his counsel, [citations omitted] Indeed, the circumstances in such cases should be viewed from the appellant’s standpoint, [citations omitted] and any reasonable doubt is resolved in favor of the appellant. Timmons [v. State], supra, [586 S.W.2d 509] at 512 [1979]. See also Gamble, supra, at 508.

Based on the above quotation it would appear conclusive that once an appellant demonstrates that he requested the court reporter to take notes of the trial or any part thereof, that the court reporter was requested to transcribe the notes and include such transcription in the record on appeal and the court reporter’s failure to. do so was appropriately objected to, then a conviction must be reversed.

However, Dunn v. State, id., and the cases cited therein are substantively and procedurally distinguishable from the present case. In Dunn, id., the missing portions of the record consisted of the evi-dentiary hearing on thirty-seven pretrial motions, a part of the voir dire of a prospective juror and the entire testimony of a witness at the punishment stage of the trial.

In the cases cited in Dunn, id., the missing portions of the record were either the entire statement of facts, the final argument, or an essential portion of the trial. In the case at bar, the missing portion of the record is a transcription of the notes of a pretrial hearing that are not essential or even applicable to a resolution of this appeal.

The other aspect of this case which renders Dunn, id., and the precedents it cites inapplicable is that the trial court was able to substitute for the missing notes a “supplemental transcript” that details the essence of the pretrial hearing. Specifically, the supplemental transcript identifies the appellant’s pretrial motions that were filed and the court’s rulings on the motions.

Article 40.09(7), V.A.C.C.P., authorizes the trial judge, when confronted with an objection, after a hearing, to “enter such orders as may be appropriate to cause the record to speak the truth....” Id. In fact, this is the relief the appellant requested in his written Objection to the Record.

In addition to Article 40.09(7), supra, Article 44.11, V.A.C.C.P., provided as follows:

In cases where the record or any portion thereof is lost or destroyed it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the ... Court of Criminal Appeals.

Recourse to this statute was not utilized in Dunn, id., or in any case cited in Dunn, id. In the present case, however, the court substituted for the notes a written statement reflecting the pretrial proceeding.

In James v. State, 138 S.W. 408 (Tex.Cr.App.1911), following his conviction for unlawfully carrying a pistol, the defendant filed a motion in arrest of judgment claiming that no information had been filed. Controverting the defendant’s motion, the State asserted that an information had been filed, provided the court with five affidavits attesting that an information had been filed and lost, and requested permission to enter into the record a substitute information. The trial court entered an order substituting the information. The Court of Criminal Appeals, citing Article 470, Code Cr.Pro. 1895, a predecessor statute to Article 44.11, supra, concluded that the trial judge had the authority to make such a substitution.

Some twenty-three years later, utilizing a statute that succeeded Art. 470, Code Cr. Pro. 1895, Art. 828, Code Cr.Pro. 1925, this Court again approved of a similar substitution. In Fine v. State, 125 Tex.Crim. 337, 68 S.W.2d 192 (App.1934), the Court observed that “[t]he charge of the court included in the original transcript contains no affirmative instruction to acquit appellant if the jury entertained a reasonable doubt as to whether ...,” id., at 194, the defendant was guilty. When confronted with an objection to the record that identified this deficiency, the trial court, after a hearing, concluded that such a charge had been given to the jury and that it had been lost and substituted a similar charge in the record as a supplemental transcript.

At that time Art. 828, supra, provided in part that “after notice of appeal has been given, the record or any portion thereof, is lost or destroyed, it may be substituted in the lower court, if said court be then in session....” Id. Relying upon this statute the Court of Criminal Appeals concluded that the statute expressly “authorize[s] the substitution of a record notwithstanding the loss occurred after the trial began and prior to the giving of notice of appeal.” Id., at 195. Further, and significantly, the Court also stated:

Appellant’s next contention is that the charge as substituted must be in the exact language of the lost charge. We think this position is untenable. In the absence of copies of the record, it would, in most cases, be impossible to substitute the record in its exact language. We think the law requires no more than that the charge be substantially the same as the instruction shown to be lost.

Id.

The Court concluded that the charge in the record was substantially the same as that given the jury and accordingly affirmed the appellant’s conviction.

Much more recently, in Broussard v. State, 471 S.W.2d 48 (Tex.Cr.App.1971), the Court again approved the substitution of a lost portion of a record. After the defendant had been convicted and punishment assessed, the State pointed out to the trial court that the original indictment had been lost. In response, the trial court issued an order declaring that the original indictment had been lost or misplaced and ordered that another be substituted for it in the record. The only difference between the two indictments, according to the court’s order, was that the substituted indictment did not contain the signature of the grand jury foreman. On appeal, the defendant in Brous-sard contended that the appellate record did not contain either “an indictment nor a legally substituted copy of the indict-ment_” Id., at 49.

Recognizing the applicability of both Article 40.09(7), supra, and Article 44.11, supra, this Court rejected the appellant’s contention that the record was incomplete. The Court stated: “[ujnder 44.11, the trial court may make substitutions for lost or destroyed documents, and under 40.09, Sec. 7, his findings, if supported by evidence at the hearing, are final.” Id., at 50.

In the present case, after two hearings, the trial court approved a supplemental transcript that details the matters that were examined and resolved at the pretrial hearing. The appellant does not dispute the factual validity of the supplemental transcript. Since the trial court has the responsibility of making “the record ... speak the truth_,” Article 40.09(7), supra. Article 44.11, supra, consistently allows the trial court to make a substitution for a lost portion of the record to accomplish such responsibility. In this case, the trial judge properly utilized the procedures available to him. Accordingly, appellant’s points of error one and two are denied.

Appellant next challenges the sufficiency of the evidence to support the jury’s affirmative findings under Article 37.-071(b)(1) and (b)(2), V.A.C.C.P.³ In determining the sufficiency of the evidence as to the first special issue dealing specifically with the appellant’s conduct and whether his conduct was committed deliberately and with a reasonable expectation that the deceased or another would die, we apply the standard set out in Santana v. State, 714 S.W.2d 1, 7 (Tex.Cr.App.1986):

[T]he evidence must be reviewed in the light most favorable to the verdict to determine whether a rational trier of fact could have found the elements of Article 37.071(b)(1), Y.A.C.C.P., to have been proved beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465 (Tex.Cr. App.1983). Then we must determine whether the same evidence supports an inference other than that appellant’s conduct contributed to causing the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result. If it does, a trier of fact could not reasonably find ‘yes’ on special issue number one, and the punishment must be reformed to life imprisonment. Green v. State, 682 S.W.2d 271, 288 (Tex. Cr.App.1984).

Being aware that we look solely to the evidence reflecting the appellant’s conduct without considering the law of parties, Nichols v. State, 754 S.W.2d 185 (Tex.Cr.App.1988), and viewing this evidence in the light most favorable to the jury’s verdict, we find the evidence was sufficient to establish beyond a reasonable doubt that the appellant’s conduct contributed to causing the death of the deceased, Timothy Merka, and was committed by the appellant deliberately with the reasonable expectation that the deceased’s death would result. In making its decision the jury was entitled to consider all of the evidence submitted during the guilt-innocence phase of the trial. Santana v. State, supra, at 8; Green v. State, supra at 287; O’Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979); Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978). Although the testimony reveals that appellant’s brother was the individual who actually struck the blows that proved to be terminal for Merka, evidence of appellant’s participation and his responsibility for the murder is clear and supports the jury’s finding of appellant’s individual “deliberateness” beyond a reasonable doubt.

The evidence shows that on the evening of December 11, 1978, driving a vehicle apparently stolen by his codefendant, James Charles Manuel, appellant and Manuel picked up appellant’s brother, Curtis Paul Harris and his girlfriend, Valerie Rencher. The foursome then drove from Bryan to Sandy Point Road, in an attempt to locate appellant’s girlfriend. Just prior to reaching their destination, the appellant’s vehicle ran off the road, struck a sign post, and crashed into a fence. Following the wreck the parties continued their search for Harris’ girlfriend. They failed to locate Harris’ girlfriend. At some point the appellant’s car stalled and would not start. Appellant, Manuel and Harris then launched into a crazed attack upon the vehicle cursing it, ripping the interior, breaking a window, and inflicting various other damage on it.

Apparently hearing the parties’ concentrated attack on their uncooperative car, a man came out onto the porch of a nearby house. Appellant requested the use of battery booster cables, but the man did not have any at that location. Appellant then commented to the others, “Twelve miles is a long way to walk,”⁴ and they began to walk along Sandy Point Road. When they later saw the lights of an approaching pickup truck appellant said he was going to ask the driver for a boost. Appellant then stood in the road in front of the on-coming pickup truck and flagged down the driver, requesting help to get their crippled vehicle started. Tim Merka stopped, and to comply with their request, positioned his truck nose-to-nose with the appellant’s vehicle in order to properly use the battery booster cables.

Becoming frustrated after watching appellant and his friends unsuccessfully trying to start the car for about 20 to 30 minutes, the deceased suggested that the foursome get assistance from someone else down the road. It was at this point that the appellant devised the plan to murder Merka in order to steal his pickup truck for the ride back to Bryan. According to Valerie Rencher, the appellant approached co-defendant, James Manuel, and discussed something with him. She then heard Manuel reply, “Man, my arm is still out of place.” Rencher then overheard appellant whisper to his brother, “We’re going to drive this man.”⁵ While the deceased was unhooking his booster cables from the two vehicles, appellant approached him, pushed the deceased in the chest, and when Merka fell on his back appellant sat on his chest and pinned his arms down by holding his wrists. Curtis Paul Harris then approached, holding what appeared to be a jack, and while the deceased was apparently begging for his life, hit the deceased repeatedly in the head until they concluded that he was dead. The pockets of the deceased were then ransacked, his wallet taken and the pickup truck stolen as the four headed back to Bryan and the Harris residence. On the ride back to Bryan, appellant in a cavalier manner told Rencher, “if it was the man time to die, it was just the man time to die [sic].”

Notwithstanding that the appellant was not the one who physically dealt the blows to the victim, he knowingly and actively participated in the vicious attack. In addition, the evidence dictates the conclusion, that the appellant was indeed the instigator. For example, appellant not only approached Manuel to enlist his services in the attack, but when that was unsuccessful he was able to encourage his brother to assist. Further, he pushed Merka to the ground and pinned him there while his brother administered an exceptionally brutal beating, even after the victim plead for his life, telling appellant and his cohorts to take what they wanted but just spare him his life. After the beating had concluded, the appellant, once inside the Merka vehicle, demonstrated that he desired the death of his victim by the callous and cruel comment to the effect that it was just Merka’s time to die. Surely, under these circumstances appellant’s conduct not only intentionally caused the death of Merka, but “from beginning to end evince[d] ‘deliberateness’ under article 37.071(b)(1).” Green, id., at 289. This point of error is overruled.

Appellant’s challenge to the sufficiency of the evidence to support the jury’s affirmative answer to special issue number two is also without merit. As we have said on numerous occasions “[i]n some cases the circumstances of the offense can alone sustain an affirmative answer to the second issue, Art. 37.071(b)(2).” Green, id., at 289; O’Bryan, supra; Duffy, supra. The circumstances of this case warrants such a finding. As previously noted, the appellant willingly participated in the offense with the evidence demonstrating that he planned the robbery with the intent to kill Merka in order to avoid having to walk back to Bryan. In fact, his entire attitude before, after and during the offense showed complete contempt for the sanctity of human life. In addition, the State at the punishment phase offered evidence that appellant had been previously convicted of a felony offense and that his reputation for being a law-abiding and peaceable citizen was bad. Coupled with the unadjudicated offenses introduced into evidence, the State effectively substantiated that appellant consistently engaged in a pattern of violent conduct that posed a danger to society. The evidence, viewed in a light most favorable to the verdict, is therefore sufficient for the jury to have found that there is a probability that appellant would commit acts of violence that would constitute a continuing threat to society. Accordingly, this point of error is overruled.

Appellant next contends that the trial court committed reversible error when it failed to instruct the jury at the guilt-innocence stage of the proceedings that Valerie Rencher was an accomplice as a matter of law. Rather, the jury was submitted an instruction requiring them to determine whether Rencher was an accomplice as a matter of fact.⁶ Appellant both timely objected to the charge and submitted a special requested instruction which were overruled by the trial court.

As noted, the trial court instructed the jury to decide the fact question as to whether Rencher was an accomplice, but the appellant claims that the evidence demonstrated that she was an accomplice as a matter of law; therefore, according to the appellant, the jury should not have been given the opportunity of making this determination. In the appellant’s first appeal, Harris v. State, supra, we reversed the appellant’s conviction when we concluded that the trial court erred in failing to submit to the jury the question of whether Rencher was an accomplice, but that the evidence did not show that Rencher was indicted for the murder for which appellant was on trial, so as to make her an accomplice as a matter of law. Harris v. State, supra, at 454. “Under the doctrine of ‘the law of the case,’ where determinations as to questions of law have already been made on a prior appeal to a court of the last resort, those determinations will be held to govern the case throughout all of its subsequent stages, including a retrial and a subsequent appeal.”⁷ Granviel v. State, 723 S.W.2d 141, 147 (Tex.Cr.App.1986). See Ware v. State, 736 S.W.2d 700 (Tex.Cr.App.1987); Ex parte Calvin, 689 S.W.2d 460 (Tex.Cr.App.1985); Willis v. State, 479 S.W.2d 303 (Tex.Cr.App.1972). This issue having been previously decided adversely to him, appellant’s point of error is overruled. Harris v. State, supra, at 454.

In a matter related to the previous point of error, the appellant had requested that a special issue be submitted to the jury asking them to answer whether or not they found Rencher an accomplice, this request was also denied by the trial court.⁸ Appellant’s claim that the court’s ruling was in error is without merit. Not only did the accomplice witness instruction properly and adequately protect appellant, but Article 37.07, § 1(a), Y.A.C.C.P., provides that “[T]he verdict in every criminal action shall be general.” Thus, as was stated in Stewart v. State, 686 S.W.2d 118, 124 (Tex.Cr.-App.1984), “[ojther than the provisions in Article 37.071, V.A.C.C.P., Texas jurisprudence has no authority allowing the submission of special issues to a jury in a criminal case.” This is not to say that a special issue could never be constitutionally necessary despite the statutory prohibition of Article 37.07, § 1(a), supra. In this case, however, the trial court was correct in denying appellant’s request.

In appellant’s next four related points of error, it is his contention that the trial court impermissibly granted the State’s challenge for cause and excused venirepersons Mojie Burgoyne, Thomas Edwin Lawler, Aubrey Jean Cleveland, and Jeanne Marie Smith in violation of the requirements as set out in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1981); Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

The Supreme Court made it clear in Wainwright v. Witt, supra, “that the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment,” is “whether the juror’s view would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions [as given by the trial court] and oath.’ ” Wainwright v. Witt, id., at 424, 105 S.Ct. at 852. See also Ex parte Williams, 748 S.W.2d 461 (Tex.Cr.App.1988); Ex parte Hughes, 728 S.W.2d 372 (Tex.Cr.App.1987). Relative to the four prospective jurors in this cause we find no need to detail or quote the voir dire of each venireperson as it would only unduly and unnecessarily add to the length of this opinion without contributing to the jurisprudence of this State.

It is sufficient to observe that as to each venireperson the trial court, prosecutor, and the defense attorney thoroughly explained the statutory scheme envisioned by Article 37.071, supra, and each venireper-son acknowledged an understanding of the process. In essence, the four venireper-sons responding to the queries posited that they, under no circumstances, could cast an affirmative vote to both special issues which may be submitted to them at the punishment phase of the trial so as to trigger the automatic assessment of the death penalty by the trial court. Further, they stated that if necessary they would consciously distort their answers to the special issues in order to prevent the imposition of the death penalty. The record clearly demonstrates that as to Mojie A. Burgoyne, Thomas Edwin Lawler, Aubrey Jean Cleveland and Jeanne Marie Smith, a constitutionally acceptable basis existed to support the trial court’s conclusion that the venireperson’s conscientious scruples towards the death penalty would affect them “to such a degree and to such an extent that [their] performance as a juror would be . substantially impaired.” Ex parte Williams, supra, at 464. Accordingly, these points of error are overruled.

Appellant next claims that the trial court erred when it sustained the State’s challenge for cause as to venireperson Karen Leah Lockhart, after she unequivocally stated in response to a hypothetical question that if an accused was convicted of the lesser included offensé of murder, she could not consider probation at the punishment phase of the trial. Defense counsel interposed the objection that Lockhart’s view did not express a total and unequivocal inability to consider the minimum punishment for the lesser included offense of murder and that he should be given the opportunity to rehabilitate the prospective juror. In response, the trial court allowed the defense to continue questioning Lock-hart with Lockhart reiterating her previous position. At the conclusion of his voir dire examination, the appellant did not lodge any additional objections.

In his appellate brief, for the first time, appellant claims that Lockhart’s exclusion denied him a jury which was fair and impartial on the subject of the death penalty, and tenuously attempts to assert the proposition that he was entitled to a juror who could not consider the minimum range of punishment. We need not reach the merits of appellant’s contention. It is sufficient to point out that appellant’s objection to the trial court’s action in sustaining the State’s challenge for cause is totally different from the point of error he presents to this Court for the first time. The appellant’s point of error simply does not comport with his trial objection and hence he did not preserve for appeal the issue which he now seeks us to review. We therefore overrule his tenth point of error. See Garcia v. State, 626 S.W.2d 46, 56 (Tex.Cr.App.1981).

In point of error number eleven, the appellant contends that the trial court erred in failing to sustain his challenge for cause as to venireperson Edna L. Thornton. Converse to the usual mode of voir dire proceedings, the appellant sought to challenge Thornton on the basis of Article 35.16(c)(2), supra, in that she stated in no uncertain terms that the State should have a greater burden of proof than that of beyond a reasonable doubt in a capital case.⁹ Appellant’s argument is that he was entitled to have a juror capable of applying the appropriate burden of proof at all phases of the trial.

In Payton v. State, 572 S.W.2d 677 (Tex.Cr.App.1978), this Court summarized the requirements necessary to preserve error due to the trial court’s denial of a defense challenge for cause of a prospective juror:

[W]hen the issue concerns denial of a challenge for cause or exclusion of a qualified venireman, only the examination of the individual venireman need be in the record. The harm may be shown in the denial of challenge for cause by showing exhaustion of the defendant’s peremptory challenges, denial of a request for additional peremptory challenges, and the seating of a juror upon whom the defendant would have exercised peremptory challenge....

Id., at 680.

Thus, in order to warrant a reversal by this Court for the trial court’s erroneous denial of an appellant’s valid challenge for cause it must be demonstrated that:

1. The voir dire of the individual venire-person was recorded and transcribed.

2. The appellant at trial asserted a clear and specific challenge for cause clearly articulating the grounds therefore.

3. After the challenge for cause is denied by the trial court, appellant uses a peremptory challenge on that juror.

4. All peremptory challenges are exhausted.

5. When all peremptory challenges have been exhausted, appellant makes a request for additional peremptory challenges.

6. Finally, the defendant must assert that an objectionable juror sat on the case. The appellant should point out to the trial court that he is being forced to try the case with a juror seated whom he would have exercised a peremptory challenge had he had one.

In this case, although appellant in his brief maintains that all of the peremptory challenges to which he was entitled under Article 35.15(a), V.A.C.C.P., were exhausted, the record indicates to the contrary. Reviewing the entire voir dire,¹⁰ the record unequivocally demonstrates that after the selection of the first twelve jurors and prior to the selection of the alternate juror, appellant had not exhausted all of his fifteen peremptory challenges. In fact, during the process of selecting the one alternate juror, appellant made an attempt to exercise one of his remaining peremptory challenges which the trial court correctly prevented him from doing in accordance with the dictates of Article 35.15(d).¹¹ Failing to exhaust all of his peremptory challenges, appellant did not comply with the fourth step necessary to preserve error. Moreover and understandably, the appellant neither claimed in the trial court nor before this Court that he was compelled to try this case with a jury composed of at least one individual who he would have struck with a peremptory challenge had one been available to him. That being the case, any error which may have been committed by the trial court in denying appellant’s challenge for cause was not properly preserved for review. Accordingly, appellant’s eleventh point of error is overruled.

In points of error twelve and thirteen, appellant alleges that the trial court committed reversible error in failing to sustain his challenges for cause as to venireper-sons Judith Lewis and Linda Smith. Appellant claims that venireperson Lewis demonstrated a bias toward the law applicable to the case when she stated she could not consider probation if the accused was convicted of the lesser offense of murder. Smith, according to the appellant, indicated that if the appellant was convicted of the lesser included offense of murder she would require him to present evidence before she could consider probation. The appellant expended a peremptory challenge as to each prospective juror. As previously noted, the appellant was infirm in preserving this error as it was not asserted that he was forced to accept an objectionable juror. Consequently, these points of error are therefore overruled.

In appellant’s fourteenth point of error he complains that the trial court failed to comply with the requirements of Article 35.17(2), V.A.C.C.P., and this constitutes reversible error. Article 35.17(2), supra, provides as follows:

In a capital felony case, the court shall propound to the entire panel of prospective jurors questions concerning principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court.

Appellant is correct in his assertion that the trial court failed to comply with the statute’s dictates; however, we find under the circumstances of this case that the error was harmless under Rule 81(b)(2), Tex.R.App.Pro.12 It is evident from the record that each prospective juror who ultimately served as a juror was questioned by either the trial court, prosecutor, and defense attorney as to the matters encompassed by the statute. Further, it is clear that each juror understood these principles. In addition, the. trial court properly charged the jury on the standard and burden of proof, the presumption of innocence, and on the prohibition of using the return of an indictment as a circumstance of guilt against the accused. Furthermore, the record is totally devoid of any evidence which would indicate that any juror seated in this case could not or did not comprehend the basic principles of law identified in Article 35.17, supra. Granted, it is statutorily required that the trial court propound the questions and instruct the jurors on the law prior to individual voir dire. Nevertheless, we cannot conceive of any way the trial court’s omission could have contributed to the appellant’s conviction or punishment and determine beyond a reasonable doubt that it did not. Rule 81(b)(2), Tex.R.App.Pro,¹³

In appellant’s next four points of error he seeks a reversal because the State introduced into evidence at the guilt-innocence stage of the trial two extraneous offenses over his timely objections. The first extraneous matter concerned the testimony of Sally Looper, the substance of which was that James Manuel, a codefendant, had stolen a vehicle from one Cornelio Cisneros on the night of the Merka murder. The CiSne-ro vehicle was ultimately identified as the one driven by the appellant, damaged and abandoned on Sandy Point Road by the appellant and his companions. The trial court allowed the introduction of the Loop-er testimony notwithstanding the fact that she was unable to identify the appellant as a participant in the theft of the vehicle. The second extraneous incident deals with the testimony of Barbara Gilmore King, who related on the night of the Merka murder three black men robbed her in a convenience store in Waller, Texas, where she was employed as a night clerk. The evidence indicates that this incident took place sometime after the Merka robbery and murder and, although King could not identify the appellant as a participant in the robbery, somewhat incredibly she was able to state that the shotgun which had previously been identified as one belonging to Merka was the very one used by one of the culprits to execute the robbery.¹⁴

The State counters that both extraneous offenses were admissible as “res gestae” of the offense to show the context in which the criminal act occurred citing Woolls v. State, 665 S.W.2d 455, 471 (Tex.Cr.App.1983). We disagree. As to the Looper testimony, it fails to meet the first basic prerequisite necessary to warrant the introduction of an extraneous offense. Simply stated, there was no clear showing that the appellant participated in the extraneous transaction offered by the State through the testimony of Sally Looper. As was stated in Phillips v. State, 659 S.W.2d 415 (Tex.Cr.App.1983):

In Albrecht v. State, supra, it was held that a relationship between evidence of the extraneous transaction and the evidence necessary to prove that the accused committed the crime for which he stands charged must be shown. In Tomlinson v. State, 422 S.W.2d 474 (Tex.Cr.App.1968), and again in Thompson v. State, 615 S.W.2d 760 (Tex.Cr.App.1981), the rule was explained clearly: even though evidence of an extraneous offense may be relevant to the instant proceeding, such evidence should not be admitted unless the commission of the other crime is clearly proved and the accused is shown to be the perpetrator.

Id., at 418.

In the instant case, the State not only failed to establish that the appellant had knowledge that the Cisnero’s vehicle was stolen by Manuel, but that he in any way was a perpetrator of the extraneous offense. This evidence was therefore irrelevant and inadmissible and the trial court committed error by allowing it to be introduced.

The evidence of the Waller robbery poses a more difficult question, yet we reach the same conclusion. The State insists that this extraneous transaction was admissible to demonstrate the context of appellant’s criminal act. This theory of admissibility was succinctly explained by this Court in Archer v. State, 607 S.W.2d 539 (Tex.Cr.App.1980):

Where an offense is one continuous transaction, or another offense is part of the case on trial or blended or closely interwoven, proof of all such facts is proper. Welch v. State, 543 S.W.2d 378, Tex.Cr.App.; Johnson v. State, 510 S.W.2d 944, Tex.Cr.App. Such an extraneous offense is admissible to show the context in which the criminal act occurred; this has been termed the ‘res gestae,’ under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. Albrecht v. State, 486 S.W.2d 97, Tex.Cr.App.

Id,, at 542.

The essence of this exception to the rule against the introduction of extraneous transactions is that these extraneous offenses are so tightly linked with the principle offense that their introduction enables the jury to view the charged offense in its proper setting. Mann v. State, 718 S.W.2d 741 (Tex.Cr.App.1986). In other words, the extraneous offense establishes the context of the offense. Integral to this exception, however, is the prerequisite that the extraneous transaction and the offense on trial must be so "blended or closely interwoven” that they constitute “one continuous episode.” Moreno v. State, 721 S.W.2d 295, 301 (Tex.Cr.App.1986); Archer v. State, supra; Mitchell v. State, 650 S.W.2d 801, 811 (Tex.Cr.App.1983).

This case is unlike the factual scenario of Moreno, supra, wherein the defendant killed his brother and sister-in-law, Juan and Ester Garza, and during his flight from that crime he killed a State trooper and took several witnesses hostage. On trial for the trooper’s murder, this Court sanctioned the State’s proof of the extraneous events which occurred half an hour prior to the shooting of the officer and the subsequent events in his continued effort to evade capture. Other than the Garza murders, all of the extraneous events which were admitted into evidence occurred during the escape or flight from the Garza murders and thus were so closely interwoven as to amount to one continuous transaction or episode making it appropriate that the State show to the jury the entire context of the defendant’s conduct. Scrutiny of the instant case reveals that the Waller robbery was completely disassociated from the Merka murder and robbery. Although, according to Rencher, the Merka vehicle was indeed driven to the Waller U-Totem, the State failed to establish a sufficient link between this robbery and the instant offense. The Merka murder and robbery was complete when this extraneous act occurred, and no evidence was admitted showing that the robbery was utilized to evade capture. We can see no acceptable connection between this offense and the Waller offense. The Waller robbery was a separate and independent offense committed for pure profit, and could not aid the jury in understanding the factual context of appellant’s other violent, nonsensical conduct. Therefore, the trial court erred in allowing the introduction of the evidence.

Now, we must determine whether the introduction of these two extraneous offenses resulted in reversible error under Rule 81(b)(2), Tex.R.App.Pro. In Mallory v. State, 752 S.W.2d 566 (Tex.Cr.App.1988), we recognized that Rule 81(b)(2) was the rhetorical and semantic equivalent of the harmless error standard announced by the Supreme Court for constitutional errors in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).¹⁵ We went on to observe that the rule is a ternary standard of review in which reversal of a conviction is mandated unless the appellate court concludes beyond a reasonable doubt that the error did not contribute to the conviction or the punishment assessed.

Although Rule 81(b)(2) has been cited innumerable times by this Court as well as the courts of appeals, beyond simply repeating the language of the rule in conclusory terms, we have failed to articulate a coherent standard for determining when an error is harmless. In other words, the harmless error rule is expressed in conclusory terms that implicate subjective concerns. What is absent from the rule is the objective standards that must be explored to reach a legally correct resolution. In this regard it must be emphasized that the function of an appellate court’s harmless error analysis is not to determine how the appellate court would have decided the facts, but to determine to what extent, if any, an error contributed to the conviction or the punishment. The language of the rule dictates that a reviewing court’s responsibility transcends determining whether the conviction was correct.

In performing a harmless error analysis the easiest and consequently the most convenient approach one could employ is to determine whether the correct result was achieved despite the error.¹⁶ Or, notwithstanding the error, in light of all the admissible evidence was the fact finder’s determination of guilt clearly correct? Stated another way, was there overwhelming evidence of guilt that was not tarnished by the error? This approach is incorrect because the language of the rule focuses upon the error and not the remaining evidence. Thus, it logically follows that the inherent difficulty with such an equation is that in applying only that standard the appellate court necessarily envisages what result it would have reached as a trier of fact, thereby effectively substituting itself for the trial court or the jury.

This was made clear four decades ago in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). In Kotteakos the Supreme Court initially reviewed the historical purpose of the harmless error rule and then acknowledged the obvious: beyond all of the formalistic rhetoric the application of any harmless error rule is basically one of judgment. The Court commented that a harmless error review is not an easy task “because the discrimination it requires is one of judgment transcending confinement by formal or precise rule.” Id., at 761, 66 S.Ct. at 1246. The Supreme Court cautioned that “it is not the appellate court’s function to determine guilt or innocence ... [N]or is it to speculate upon probable reconviction and decide according to how the speculation comes out.” Id., at 763, 66 S.Ct. at 1247. Thus, it is not quite so simple or appropriate to inquire: would the appellant have been convicted in any event?

However, it is absurd to suggest that an appellate court can insulate itself from the reality of the record; thus, it is virtually impossible for the Court to ignore its subjective evaluation of the result below. Consistent with this observation, the Court in Kotteakos further commented:

But this does not mean that the appellate court can escape altogether taking account of the outcome. To weigh the error’s effect against the entire setting of the record without relation to the verdict or judgment would be almost to work in a vacuum.

Id., at 764, 66 S.Ct. at 1247.

This view was repeated in Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), when the Supreme Court stated:

We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. To decide this question, it is necessary to review the facts of the case and the evidence adduced at trial.

Id., at 88, 84 S.Ct. at 231.

As noted, Rule 81(b)(2) mandates that the appellate court focus upon the error and determine whether it contributed to the conviction or the punishment. Irrespective of the focus of the inquiry, it is impossible to gauge the significance of the error apart from the remaining properly admitted evidence. This approach obviously implicates a review of the evidence, but the concern is solely to trace the impact of the error. The untainted evidence is not to be weighed in its own right, nor is it to be examined to see if it is cumulative with the tainted evidence; it is to be considered only to uncover the potentially damaging ramification of the error. In other words, the impact of the error cannot be properly evaluated without examining its interaction with the other evidence.

It is important to note that in the context of a harmless error analysis the other evidence is the entire record. Unlike the dictates of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in resolving the issue of the harmfulness of an error an appellate court is obligated to examine the entire record in a neutral, impartial and even-handed manner and not “in the light most favorable to the prosecution....” Id., at 319, 99 S.Ct. at 2789. See Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989). A review of the evidence in this manner is necessary because, for example, an error can be harmful when it has the effect of disparaging a defense, whereas if there is no defense the error could have been harmless.

The United States Supreme Court has been as evasive as this Court when it comes to establishing any coherent standards to judge harmless error. As noted, in Kotteakos v. United States, supra, and Fahy v. Connecticut, supra, the Court condemned the overwhelming evidence standard. In Chapman v. California, supra, the Court, citing Fahy v. Connecticut, supra, clearly rejected a “correct result” test, particularly if the correct result was to be measured simply by the sufficiency of the evidence to sustain a conviction. However, in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), the Court arguably departed from its condemnation of the correct result test when it found that improperly admitted confessions were cumulative of other evidence and the untainted evidence against the defendant was overwhelming. This approach continued in Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) and Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). In both cases the Supreme Court again claimed that the errors were harmless, despite Chapman, by noting that there was overwhelming evidence of guilt. Recently, in Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), in extending the harmless error rule to a violation of one’s Sixth Amendment right to cross-examine a witness, the Supreme Court, at least implicitly, applied an overwhelming evidence standard to the error. Similarly, in Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the Court cited the overwhelming evidence of guilt in determining that improper jury instructions that incorrectly shift the burden of proof to the defendant was an error subject to a harmless error analysis.

For some inexplicable reason this trend seems to have ended with Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). In Satterwhite the Supreme Court agreed with this Court that an Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), error is subject to the harmless error rule. However, in reversing the defendant’s death sentence the Supreme Court disagreed with this Court’s conclusion that Dr. Grigson’s tainted testimony was harmless beyond a reasonable doubt. Without citing any case dealing with harmless error, except Chapman v. California, supra, the Supreme Court noting the substantial evidence to support the death penalty instead focused upon the impact of Dr. Grigson’s testimony and its possible effect upon the jury. The Supreme Court, dispensing with the overwhelming evidence test, at least for the time being, stated:

The question, however, is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ Chapman, 386 U.S., at 24, 87 S.Ct., at 828.

Id., 108 S.Ct. at 1798.

The difficulty in reconciling the various cases applying the harmless error rule, from Chapman, supra, to Van Arsdall, supra, does not arise from a changing standard of review, but from changes in the Court’s personnel and the relative emphasis that individual justices have placed on relevant considerations of the extent of harm. Such changes should not serve to cast doubt on the process of harmless error analysis. Instead, they are a natural reflection of an inherently subjective process.

[T]he discrimination it [harmless error analysis] requires is one of judgment transcending confinement by formula or precise rule. That faculty cannot ever be wholly imprisoned in words, much less upon such a criterion as what are only technical, what substantial rights; and what really affects the latter hurtfully. Judgment, the play of impression and conviction along with intelligence, varies with judges and also with circumstance. What may be technical for one is substantial for another; what minor and unimportant in one setting crucial in another.

Kotteakos, supra, at 761, 66 S.Ct. at 1246. Thus, the most this Court can do in guiding future harmless error analysis is to state a general formulation of what 81(b)(2) requires, set out general considerations which may be relevant, and trust individual judges to use these observations in their personal calculus.

What can be resolved from all of this rather confusing and at times conflicting authority is that an appellate court should not determine the harmfulness of an error simply by examining whether there exists overwhelming evidence to support the defendant’s guilt. The impropriety of this standard is:

a court that makes a finding of harmlessness under the overwhelming evidence test is not finding that the ... [error] did not in fact affect the verdict.

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The court’s affirmance simply indicates its opinion that the untainted evidence is so overwhelming that if the jury had been compelled to rely on it alone, it would have convicted. In so holding, the court is not passing upon what the jury did; it is not determining the propriety of the evidence on which the jury relied. Because it is ruling instead upon what the jury would do if forced to rely on different evidence, it is substituting itself for the jury as factfinder.

Field, “Assessing the Harmfulness of Federal Constitutional Error — A Process in Need of a Rationale,” 125 Univ. of Penn. L.R. 15, 35 (1976)

Rather, the appellate court should calculate as much as possible the probable impact of the error on the jury in light of the existence of the other evidence. As a practical matter, this is a distinction without a difference. In both instances the presence of overwhelming evidence of guilt plays a determinative role in resolving the issue. Nevertheless, in making the analysis the predominant concern must be the error. If the court rules that an error is harmless it is in essence asserting that the nature of the error is such that it could not have affected the jury, so the jury must have relied on overwhelming evidence of guilt in the first place. If overwhelming evidence dissipates the error’s effect upon the jury’s function in determining the facts so that it did not contribute to the verdict then the error is harmless. Otherwise, it is not.

In summary, a reviewing court in applying the harmless error rule should not focus upon the propriety of the outcome of the trial. Instead, an appellate court should be concerned with the integrity of the process leading to the conviction. Consequently, the court should examine the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, and its probable collateral implications. Further, the court should consider how much weight a juror would probably place upon the error. In addition, the Court must also determine whether declaring the error harmless would encourage the State to repeat it with impunity. In summary, the reviewing court should focus not on the weight of the other evidence of guilt, but rather on whether the error at issue might possibly have prejudiced the jurors’ decision-making; it should ask not whether the jury reached the correct result, but rather whether the jurors were able properly to apply law to facts in order to reach a verdict. Consequently, the reviewing court must focus upon the process and not on the result. In other words, a reviewing court must always examine whether the trial was an essentially fair one. If the error was of a magnitude that it disrupted the juror’s orderly evaluation of the evidence, no matter how overwhelming it might have been, then the conviction is tainted. Again, it is the effect of the error and not the other evidence that must dictate the reviewing court’s judgment.

General considerations having been set out, we are left only to provide a skeleton on which to place them. A procedure for reaching this determination should: first, isolate the error and all its effects, using the considerations set out above and any other considerations suggested by the facts of an individual case; and second, ask whether a rational trier of fact might have reached a different result if the error and its effects had not resulted.

Applying these standards to this case and recognizing that overwhelming evidence can be a factor to be considered, we conclude beyond a reasonable doubt that the introduction of the two extraneous offenses, albeit erroneous, did not contribute to the appellant’s conviction or punishment.¹⁷ In addition to the accomplice testimony of Valerie Rencher, the State was able to show that not only was the Merka vehicle found in close proximity to the appellant’s residence but several items belonging to Merka were hidden in an area one hundred yards from his home. Appellant was further connected to the homicide by having sold the shotgun belonging to Merka to an individual in the appellant’s neighborhood.

In reviewing the record it is apparent that the State was not attempting to taint the trial process in offering as evidence the extraneous offenses. Further, the State made only passing reference to the robbery in its final argument and made no comment about the car being stolen. In addition, the robbery offense occurred after the appellant killed the deceased so it is not likely that the jury would have considered the latter offense as persuasive evidence that he committed the former. If the sequence of events had been the opposite then an opposite result might be necessary. Be that as it may, the probable impact of this error on the jury was minimal, if any.

Appellant raises two concomitant points of error connected with the extraneous offenses. First, appellant contends that the trial court erred when it failed to grant the appellant’s motion for mistrial as a result of Looper’s testimony on direct examination when she testified that the codefendant, James Manuel, had stolen the Cisnero’s vehicle. Appellant interposed the objection that such testimony was opinion and hearsay. The trial court sustained the objection and instructed the jury to disregard. Therefore, any error in the testimony of Looper was cured by the trial court’s immediate action in sustaining the objections and instructing the jury to disregard. See, e.g., Thompson v. State, 612 S.W.2d 925 (Tex.Cr.App.1981); Thomas v. State, 578 S.W.2d 691 (Tex.Cr.App.1979); Mistrot v. State, 471 S.W.2d 831 (Tex.Cr.App.1971); White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969).

As to Barbara King’s testimony, appellant complains that it should have been suppressed as the in-court identification was based upon an impermissibly suggestive line-up. This contention is without merit as we have previously determined the harmless nature of the testimony in its entirety. In addition, the record is abundantly clear that King’s identification of appellant was totally independent of any pretrial identification procedures which may have occurred. Turner v. State, 614 S.W.2d 144, 145 (Tex.Cr.App.1981); Jackson v. State, 657 S.W.2d 123, 130 (Tex.Cr.App.1983); Thompson v. State, 480 S.W.2d (Tex.Cr.App.1972). Accordingly, this point of error is overruled.

In his next point of error, appellant contends the trial court erred in not declaring a mistrial because of the testimony of Avis Morgan. According to Morgan, approximately two days after the instant offense he was at the home of co-defendant James Manuel. The appellant was also there sitting on a bed reading the newspaper. Being aware of their commission of the offense, Morgan testified that he told them, “that they were wrong for what they did.” The appellant lodged a hearsay objection, which was sustained by the trial court with an instruction to the jury to disregard. Appellant’s motion for mistrial was overruled. Without going into the merits of appellant’s objection, the error, if any, in the admission of any improper testimony of Avis Morgan was cured by the trial court’s prompt action in sustaining the objection and instructing the jury to disregard. Thompson v. State, 612 S.W.2d 925 (Tex.Cr.App.1981). Further, this is not an instance where it could be said that the evidence was clearly calculated to inflame the minds of the jury and thus be incurable by the court’s curative instruction. Thompson, id,., at 928. The error, if any, was therefore cured by the trial court sustaining the objection and in properly instructing the jury. This point of error is overruled.

At the punishment phase of appellant’s trial, the State offered the testimony of two witnesses who were the victims of an aggravated robbery committed by the appellant on July 10, 1978. As his last point of error, appellant asserts that it was error to allow the introduction of such unadjudicated offenses. Such contention is totally without merit. Article 37.071(a), V.A.C.C.P., provides that “evidence may be presented as to any matter that the court deems relevant to sentence” during the punishment phase of a capital murder trial. On numerous occasions this Court has held that this includes evidence of unadjudicated extraneous offenses. Santana v. State, 714 S.W.2d 1, 10 (Tex.Cr.App.1986); Smith v. State, 683 S.W.2d 393, 405 (Tex.Cr.App.1984); Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr.App.1982). Without engaging in an elaborate discussion of the authorities, we overrule this point of error.

Accordingly, the judgment of the trial court is affirmed.

BERCHELMANN, J., concurs.

1 . If new or additional facts were developed at appellant’s subsequent trial which is the basis of this review, we will so note when necessary.

2 . The essential portions of the plea agreement between the prosecution and Rencher provided that in the event she was convicted for any offense arising out of the transaction which was the basis of the indictment of the others in this cause she would not be assessed a punishment greater than 10 years in the Texas Department of Corrections.

3 . Article 37.071, V.A.C.C.P., provides in relevant part:

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(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury.

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;

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The state must prove each issue submitted beyond a reasonable doubt, and the jury shall return a special verdict of ‘yes’ or ‘no’ on each issue submitted.

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(e) If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death.

4 . Referring to the origin of the destination, Bryan, Texas, where all members of the foursome resided.

5 . Rencher explained, that the phase, "drive this man,” meant rob the person.

6 . The trial court instructed the jury as follows:

You are further instructed that a conviction cannot be had upon the testimony of an accomplice unless the jury first believes that the accomplice’s evidence is true and that it shows that the defendant is guilty of the offense charged him, and even then you cannot convict unless the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission.

Now, if you believe from the evidence that the witness, Valerie Denise Rencher, was an accomplice, or you have a reasonable doubt whether she was or not, as the term ‘accomplice’ is defined in the foregoing instructions, you are further instructed that you cannot find the defendant, DANNY RAY HARRIS, guilty of the offense charged against him upon Valerie Denise Rencher’s testimony unless you first believe that said testimony is true, and that it shows the defendant is guilty as charged in the indictment and even then you cannot convict the defendant unless you further believe that there is other evidence in the case outside of the evidence of the said Valerie Denise Rencher tending to show first, that the defendant, DANNY RAY HARRIS, at the time Curtis Harris struck the deceased on the head with a hard metal object, if he did, was acting together with Curtis Harris, if he did, and was in the course of committing the offense of robbery of Timothy Michael Mer-ka, and second, that DANNY RAY HARRIS, acting together with Curtis Harris, if he did, at the time Curtis Harris struck the deceased on the head with a hard metal object, if he did, had the specific intent to kill Timothy Michael Merka, and even then, before you can convict the defendant, DANNY RAY HARRIS, you must believe from all the evidence, beyond a reasonable doubt, that the defendant, DANNY RAY HARRIS, is guilty of the offense charged.

7 . We observe that in the case sub judice no evidence was introduced to show that from the time appellant’s first trial ended until the commencement of the second, Valerie Rencher had been indicted as a codefendant. See Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975); Hendricks v. State, 508 S.W.2d 633 (Tex.Cr.App. 1974); Allen v. State, 461 S.W.2d 622 (Tex.Cr. App.1970); Gonzales v. State, 441 S.W.2d 539 (Tex.Cr.App.1969).

8 . Appellant submitted a special request that the jury at the guilt or innocence phase be instructed as follows:

Do you find from the evidence, beyond a reasonable doubt, that the witness Valerie Denise Rencher was not an accomplice as defined above if any offense was committed?

Answer "we do" or "we do not”

Answer: _

9 . The relevant portion of Article 35.16 provides:

(c) A challenge for cause may be made by the defense for any of the following reasons:

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2. That he [venireperson] has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which he is being prosecuted or as a mitigation thereof or of the punishment therefor.

10 . It is only appropriate to observe that this record, when it was received and filed in this Court, was, to be kind, simply a mess. For example, the volumes of the statement of facts were not numbered properly, some volumes were apparently missing, and there was not even a list of the jurors that heard the case. It was only after the record was returned to the trial court that steps were taken to correct the problem. Trial courts, the State and the defense bar should note that this Court is not favorably disposed to correct errors in the preparation of the record.

11 .Article 35.15(d), supra, reads:

The State and the defendant shall each be entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impaneled and to peremptory challenges if three or four alternate jurors are to be impaneled. The additional peremptory challenges provided by this subsection may be used against an alternate juror only, and the other peremptory challenges allowed by law may not be used against an alternate juror. [Emphasis added]

12 . Rule 81(b)(2), Tex.R.App.Pro., provides:

(2) Criminal Cases. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

13 . We also observe that appellant did not object or make a request that the court comply with Article 35.17(2), supra.

14 . Over a timely interposed objection, Valerie Rencher also testified that after the murder, she, appellant, Curtis Paul Harris, and James Manuel drove to a U-Totem in Waller, Texas, where the three men got out of the pickup truck with the Merka shotgun and returned to the truck after the expiration of five minutes. She stated she had no knowledge as to what happened inside the store.

15 . In his well known The Riddle of Harmless Error Roger Traynor observes that the source of the harmless error rule were statutes enacted in England and later in the United States. The essential purpose of the statutes were "to obviate reversals when an error did not deprive a party of rules or procedures essential to a fair trial.” See Traynor, The Riddle of Harmless Error (Ohio State University Press: Columbus, Ohio, 1970) p. 14.

16 . This is commonly referred to as the “overwhelming evidence” test. Under this test one "does not look to the tainted evidence, but to the untainted evidence, and asks whether it alone compels a verdict of guilty.” Field, "Assessing the Harmfulness of Federal Constitutional Error — A Process in Need of a Rationale,” 125 Univ. of Penn.L.R. 15 (1976).

17 . We observe that the unadjudicated robbery offense would have been properly admissible at the punishment phase of this trial pursuant to Article 37.071(b)(2), V.A.C.C.P.