COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-09-023-CR

JOEMAR JACKSON	APPELLANT

V.

THE STATE OF TEXAS	STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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MEMORANDUM OPINION
(footnote: 1)
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I.  Introduction

Appellant Joemar Jackson appeals his conviction for capital murder.  In six issues, Jackson argues that the trial court erred by denying his
Batson
 challenge, by overruling his objections to the State’s closing argument, by refusing to grant a mistrial based on inadmissible hearsay, by overruling his objection to later hearsay, and by not including an accomplice-witness instruction in the jury charge.  We will affirm.

II.  Factual and Procedural Background

 Eric Witt was a drug dealer in the Como area of Fort Worth.  He was at his home one evening with his friend Kretearria Porter when Jackson came over, purchased some drugs from Witt, and left.  Another man showed up to buy drugs after Jackson left.  As the man was leaving Witt’s house, two men carrying guns forced their way inside.  The first man carried a black gun, and the second man carried a silver gun; both men had bandanas covering their faces below their eyes.  The first man shot Witt in the hand as he was trying to shut the door on the men, and Witt fell to the ground.

One of the men ordered Porter to lay on the floor.  The man with the silver gun asked Witt, “E, where’s the dope at?”  Witt told him it was in a cracker box in the kitchen.  One of the men searched Witt’s pockets as he lay on the floor.  The man with the black gun stood over Witt and shot Witt in the back of the head as they were leaving.  The two men left, and the man who had just purchased drugs fled out the front door after them.  Witt died from the gunshot wound to his head.

Police eventually arrested James Phillips, Kenneth Francis, Nathaniel Baldwin, and Jackson in connection with Witt’s murder.  Francis admitted to participating in the robbery, and he told detectives that Jackson was the robber who shot Witt.  Phillips also admitted to participating in the robbery and told detectives that Jackson was the shooter.

At Jackson’s trial, Francis testified that Phillips, Baldwin, and Jackson had planned to rob Witt and that Francis’s role was to go to Witt’s house to buy drugs so that he could determine how many people were inside Witt’s house.  By the time Francis got to Witt’s house, Phillips and Jackson were already inside; Francis saw Witt and Porter laying on the floor, Phillips standing over Witt with a chrome gun, and Jackson in the kitchen with a black gun. Witt was pleading for them not to kill him and was saying, “It’s in the box. It’s in the box.”  Francis ran back to his car and heard a gunshot.  Sometime after the robbery, Francis saw Jackson and asked him why he had shot Witt. Jackson told him, “When I shot E, [Phillips] threw up.”  Francis testified that he had agreed to testify for the State in exchange for an eight-year sentence for conspiracy to commit robbery.

Phillips testified that on the day of Witt’s murder, Baldwin had showed up at his house and had told him, “Let’s go get this money.”  Phillips did not know exactly what he was talking about, but he knew that Baldwin was asking if he wanted to go rob someone.  Phillips got in the car with Baldwin, Jackson, and Francis and learned that they planned to rob Witt.  Phillips testified that Baldwin’s role in the robbery was “[j]ust getting the door open.”  According to Phillips, Baldwin approached Witt’s house first under the guise of purchasing drugs, and while Baldwin was inside, Jackson “bust[ed] up in there.”  Phillips said that he and Francis were still outside when they heard a gunshot.  Phillips went inside and saw that Witt had been shot in the hand.  Phillips started grabbing money and drugs.  He was carrying a chrome-plated revolver.  He testified that he ran to his mother’s house after the robbery and threw up at her house from running so hard.  Phillips explained that he had agreed to testify for the State in exchange for a twenty-five-year sentence for capital murder.

LaTonia Clark testified that Francis was her boyfriend when Witt was murdered.  On the night of Witt’s murder, Clark heard Phillips tell Francis that he wanted to rob Witt because he and Jackson had seen “a lot of money or drugs” at Witt’s house.  Later that night, Francis was taking a bath when he told Clark about the robbery.  He was crying, and he told Clark that Jackson had shot Witt in the back of the head and that Phillips had thrown up in Witt’s house.

Lee Hall testified that he lives in Como and knows Jackson, Phillips, Francis, and Baldwin.  After Witt’s murder, Hall overheard a conversation between Jackson and a man who lives next door to Hall’s grandmother. Jackson was talking about Phillips and said, “I hope the boy can hold water.  I ain’t never did no crime.  I ain’t never did no dirt with him.  I just hope he don’t snitch on me.”  Hall explained that when Jackson said he “ain’t never did no dirt with [Phillips],” Jackson meant that he had never committed a crime with Phillips.  Hall also overheard Jackson tell the man, “Man, I should have murked [Phillips],” which is a street term for murder.

Donald Coleman testified that he had a sexual relationship with Phillips at the time of Witt’s murder and that Phillips had told him that Phillips, Jackson, and Francis robbed “the dope man.”  Coleman testified that Phillips had told him that Jackson shot Witt during the robbery.

Marquies Amos testified that he knows Phillips, Francis, Baldwin, and Jackson and that he had known Witt.  Amos said that Phillips had told him that Jackson shot Witt during the robbery.  Amos also testified that Jackson confessed to him that he had shot Witt because, during the robbery, Phillips was calling Jackson by his name in front of Witt and because Witt was telling Jackson, “I know where y’all live.”  Amos agreed to testify for the State in exchange for a plea agreement with his brother regarding unrelated charges.

The jury convicted Jackson of capital murder.  Acknowledging that the State had waived the death penalty, the trial court sentenced Jackson to life in prison.

III.
Batson
 Challenge

In his first issue, Jackson argues that the trial court erred by overruling his
Batson
challenge regarding the State’s use of a peremptory strike on veniremember 3, who was African-American.  Jackson asserts that the State’s proffered race-neutral reason for striking veniremember 3 was a pretext for racial discrimination.  Jackson is African-American.

A.  Law on
Batson
Challenges

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits race-based jury selection.  U.S. Const. amend. XIV;
Batson v. Kentucky
, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986);
Jasper v. State
, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001);
see
Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 2006).  In the face of perceived purposeful discrimination, the defendant may request a
Batson
 hearing to address the challenge.
See
 Tex. Code Crim. Proc. Ann. art. 35.261(a).

Trial courts follow a three-step process when resolving
Batson
 challenges.
Snyder v. Louisiana
, 552 U.S. 472, 476, 128 S. Ct. 1203, 1207 (2008);
 Young v. State
, 283 S.W.3d 854, 866 (Tex. Crim. App.),
cert. denied
, 130 S. Ct. 1015 (2009).  First, the defense must make a prima facie case of racial discrimination.
Snyder
, 552 U.S. at 476, 128 S. Ct. at 1207;
 Watkins v. State
, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008),
 cert. denied
, 129 S. Ct. 92 (2008).  Second, if the prima facie showing has been made, the burden of production shifts to the State to articulate a race-neutral reason for its strike.
Snyder
, 552 U.S. at 476, 128 S. Ct. at 1207;
Watkins
, 245 S.W.3d at 447. Third, if the State tenders a race-neutral explanation, the trial court must then decide whether the defendant has proved purposeful racial discrimination.
Snyder
, 552 U.S. at 476, 128 S. Ct. at 1207;
Watkins
, 245 S.W.3d at 447.

The step-two explanation need only be race neutral on its face.
Purkett v. Elem
, 514 U.S. 765, 767–68, 115 S. Ct. 1769, 1771 (1995);
Watkins
, 245 S.W.3d at 447.  The ultimate plausibility of that race-neutral explanation is to be considered as part of the third step of the analysis, in which the trial court determines whether the defendant has satisfied his burden of persuasion to prove that the strike was indeed the product of the State’s purposeful discrimination.
 Purkett
, 514 U.S. at 768, 115 S. Ct. at 1771;
Watkins
, 245 S.W.3d at 447.  Throughout the challenge, the burden of persuasion remains with the defendant.
Purkett
, 514 U.S. at 768, 115 S. Ct. at 1771;
Ford v. State
, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999).  The defendant must prove by a preponderance of the evidence that the allegations of purposeful discrimination were true in fact and that the prosecutor’s reasons were merely a sham or pretext.
Watkins
, 245 S.W.3d at 451–52.

B.  Standard of Review

On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.
Snyder
, 552 U.S. at 477, 128 S. Ct. at 1207;
Watkins
, 245 S.W.3d at 448.  Appellate courts must give great deference to credibility and demeanor determinations made by the trial court in connection with a
Batson
inquiry.
Snyder
, 552 U.S. at 477, 128 S. Ct. at 1208.  The court of criminal appeals has explained our review of a
Batson
ruling as follows,

In assaying the record for clear error,
vel non
, the reviewing court should consider the entire record of voir dire; it need not limit itself to arguments or considerations that the parties specifically called to the trial court’s attention so long as those arguments or considerations are manifestly grounded in the appellate record.  But a reviewing court should examine a trial court’s conclusion that a facially race-neutral explanation for a peremptory challenge is genuine, rather than a pretext, with great deference, reversing only when that conclusion is, in view of the record as a whole, clearly erroneous.

Watkins
, 245 S.W.3d at 448 (citations omitted).

When determining whether a race-neutral explanation was a pretext for purposeful discrimination, we examine whether comparative evidence demonstrates disparate treatment of minority veniremembers.
See

Miller-El v. Dretke
, 545 U.S. 231, 241, 125 S. Ct. 2317, 2325 (2005).  If a prosecutor’s race-neutral reason for striking a minority veniremember applies equally to an otherwise similar non-minority veniremember whom the prosecutor does not challenge, this may be evidence that the race-neutral reason is a pretext for purposeful discrimination.
 See id.

We cannot, however, automatically impute disparate treatment in every case in which a reason for striking a minority veniremember also technically applies to a non-minority veniremember whom the prosecutor found acceptable.
See Cantu v. State
, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992),
cert. denied
, 509 U.S. 926 (1993).  The decision to strike a particular potential juror is not susceptible to rigid qualification.
Id.
  We must also look to the entire record to determine if, despite a similarity, there are any significant differences between the characteristics and responses of the veniremembers that would, under the facts of the case, justify the prosecutor treating them differently as potential members of the jury.
  See Miller-El
, 545 U.S. at 247, 125 S. Ct. at 2329.

In
Miller-El
, the Supreme Court “considered the combined impact of a number of factors in concluding that, by clear and convincing evidence, the prosecutors exercised two peremptory challenges on a racially discriminatory basis, notwithstanding the race-neutral explanations they offered at the
Batson
hearing.”
Watkins
, 245 S.W.3d at 448 (citing
Miller-El
, 545 U.S. at 266, 125 S. Ct. at 2317).  Those factors included (1) that the State had struck a higher percentage of African-Americans than non-African-Americans, (2) that the State’s reasons for striking African-American jurors appeared to apply equally to non-African-American jurors whom the State did not strike, (3) that the State had used jury shuffles in a manner that supported an inference of racial discrimination, (4) that the State had questioned African-American and non-African-American jurors differently and in a way designed to obtain answers justifying strikes of African-American jurors, and (5) that the county in which Miller-El was prosecuted had a formal policy of excluding minority jurors from service.
Miller-El
, 545 U.S. at 240–64, 125 S. Ct. at 2325–39;
see Watkins
, 245 S.W.3d at 448–49.

C.
Batson
Hearing

After the State exercised its strikes to the venire panel, Jackson’s trial counsel raised a
Batson
 challenge, arguing that the State had stricken the remaining three African-Americans from the venire panel.  Although the record does not demonstrate the race of the veniremembers, we glean from the parties’ arguments in the record and on appeal that five veniremembers were African-American; one was stricken for cause by agreement, one was stricken by Jackson because he was a Fort Worth police officer, and the remaining three—veniremembers 3, 4, and 14—were stricken by the State.
(footnote: 2)  The trial court asked for the State’s reasons for striking veniremembers 3, 4, and 14.

The State explained that it struck veniremember 3 because “she did not like the law of parties with regard to the non-shooter in a capital murder case, and that’s very possibly an issue in this case.”  The State explained that it struck veniremember 4 because she had written on her juror questionnaire that her brother is a drug dealer and because, during voir dire, she had agreed that the justice system is “sometimes” flawed and unfair and that she has felt isolated in the past.
(footnote: 3)  Finally, the State said it struck veniremember 14 because he had failed to disclose his prior arrest for credit card abuse and because he had stated in his jury questionnaire that he had several children but also that he was single.

The trial court found that the State had provided race-neutral reasons for striking veniremembers 3, 4, and 14, and it denied Jackson’s
Batson
challenge. 	On appeal, Jackson challenges only the trial court’s denial of his
Batson
 challenge regarding veniremember 3, claiming that the State did not strike another veniremember who was not African-American and who also expressed a similar opinion about the law of parties.  Jackson does not complain of the State’s peremptory strikes of veniremembers 4 and 14 other than to assert that those strikes show that the State exercised peremptory strikes disproportionally against African-American veniremembers.
(footnote: 4)

D.  Disproportionate Strikes Analysis

We initially note that the State used a disproportionate number of its peremptory strikes to exclude three of the four remaining African-American veniremembers the jury.  Of the thirty-two veniremembers within the strike zone, four, or 12.5%, were African-Americans.  The State used three, or 30%, of its ten peremptory challenges to strike 75% of the African-Americans on the venire panel.
See
Tex. Code Crim. Proc. Ann. art. 35.15(b) (providing for ten peremptory challenges in non-death penalty capital cases).  Thus, the State used a statistically-disproportionate number of strikes on African-American veniremembers.
See Watkins
, 245 S.W.3d at 451 (noting that use of 55% of peremptory strikes to exclude 88% of black veniremembers was clearly disproportionate);
Leadon v. State
, Nos. 01-08-00839-CR, 01-08-00840-CR, 2010 WL 143467, at *11 (Tex. App.—Houston [1st Dist.] Jan. 14, 2010, no pet. h.) (holding State’s use of 36.36% of strikes on 80% of black veniremembers was statistically disproportionate).

The disproportionality in the use of strikes may “support the appellant’s ultimate burden of persuasion that the State’s proffered race-neutral explanations are a sham.”
Watkins
, 245 S.W.3d at 452.  But, as the United States Supreme Court in
Miller-El
noted, a comparative analysis is “more powerful” than “bare statistics,” and thus, we consider the State’s proffered reason for striking veniremember 3.
See Miller-El
, 545 U.S. at 241, 125 S. Ct. at 2325.

E.  Comparative Juror Analysis of

Veniremember 3

During voir dire, as the State was questioning the venire panel about the law of parties, the following exchange took place between the State and veniremember 3:

[State]: Okay.  You think it would be unfair to charge Bill with capital murder if I’m the shooter at the bank, right?

[Veniremember 3]: Yes.

[State]: And just like I asked Mr. Hess the same question, would you have trouble following that part of the law if you’re on the jury?

[Veniremember 3]: No, I don’t have no trouble following.

[State]: But you disagree with it?

[Veniremember 3]: Yeah, I disagree with it, but I ain’t heard the case.

[State]: Okay.  Well, sure you haven’t heard the facts, and I’m just talking about the hypothetical I told you about, okay?

[Veniremember 3]: Uh-huh.

[State]: And that is the law.  Someone who’s not the shooter in a capital murder, they can certainly be charged and found guilty, under the law, of capital murder, okay?

So you’re—but you’re saying . . . you disagree with that law, right?

[Veniremember 3]: Yeah, I do.

[State]: So you would have trouble following it if you were on the jury, right?

[Veniremember 3]: Yeah, I guess I would.

[State]: Well, let me ask you—I’ve got to pin you down—would you or would you not?

[Veniremember 3]: I would.

Jackson argues that the State treated veniremember 3 differently than a non-African-American on the panel, veniremember 21, because she also indicated that she could not agree with the law of parties but was ultimately seated on the jury.  Jackson argues that the State “talked [veniremember 3] into saying she would have trouble” following the law but “had no trouble” accepting veniremember 21's assurance that she could follow the law.  But unlike veniremember 3, veniremember 21 never indicated that she did not agree with the law of parties.
(footnote: 5)  Thus, the State’s reason for striking veniremember 3 did not apply to veniremember 21, and we cannot say that the State’s persistent questioning of veniremember 3—after she had stated that she disagreed with the law of parties—was designed to evoke a certain response not elicited from veniremember 21.
See Watkins
, 245 S.W.3d at 449, 453–54 (citing
Miller-El
, 545 U.S. at 255–63, 125 S. Ct. at 2317).

Moreover, the State’s explanation for striking veniremember 3 went unchallenged during the
Batson
 hearing.  Once the State proffered its race-neutral reason for striking veniremember 3, Jackson bore the burden to convince the trial court that the State’s reason was not race-neutral.
See Ford
, 1 S.W.3d at 693;
see also Johnson v. State
, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002) (“[A] party’s failure to offer any real rebuttal to a proffered race neutral explanation can be fatal to his claim.”).  Jackson did not cross-examine the State about the strike or offer any rebuttal or impeachment evidence tending to show that the State’s reason was pretextual.
(footnote: 6)

For these reasons, we cannot say that the State’s reason for striking veniremember 3 applied equally to veniremember 21 or was pretextual.
See Watkins
, 245 S.W.3d at 453–54;
Leadon
, 2010 WL 143467, at *14–15.

F.  Remaining Strikes on African-Americans

We will also examine the State’s reasons for striking veniremembers 4 and 14 to determine whether those reasons provide evidence of the State’s discriminatory intent.
See Watkins
, 245 S.W.3d at 448–49 (citing
Miller-El
, 545 U.S. at 241–52, 125 S. Ct. at 2317).

The State said that it had struck veniremember 4 because her brother is a drug dealer, and her jury questionnaire shows that she in fact indicated that her brother had been arrested for selling drugs.  Having a family member who has been arrested or convicted is a race-neutral reason for striking a veniremember, and consequently, the State provided a race-neutral reason for striking veniremember 4.
See Simpson v. State
, 119 S.W.3d 262, 267–68 (Tex. Crim. App. 2003),
cert. denied
, 542 U.S. 905 (2004).

Jackson argues that the State did not strike other veniremembers who had family or close friends with prior convictions for driving while intoxicated, but drugs and dealing drugs were at issue in this case, not driving while intoxicated, and the State noted in its reasoning that Jackson’s case involved many drug dealers.
See Beasley v. State
, 838 S.W.2d 695, 700 (Tex. App.—Dallas 1992, pet. ref’d) (holding prosecutor’s reasons for striking potential jurors who had family members involved with drugs was race-neutral where appellant’s case was drug-related),
 cert. denied
, 114 S. Ct. 451 (1993).  The State also reasoned that it struck veniremember 4 because she believed that the justice system is flawed; specifically, veniremember 4 commented, “[P]eople have done some things and gotten off.”  Jackson argues on appeal that veniremember 4's statement was actually a bias in favor of the State, but “the State may legitimately strike prospective jurors who appear to be unfavorable to the defense in ways that call into question their impartiality.”
Johnson
, 68 S.W.3d at 650.  Thus, the trial court could have reasonably found that the State did not have a discriminatory intent when it struck veniremember 4.
See Snyder
, 552 U.S. at 477, 128 S. Ct. at 1207;
Watkins
, 245 S.W.3d at 448.

Regarding veniremember 14, Jackson admits that veniremember 14’s failure to disclose his prior criminal history “may well be a race neutral reason for striking him” but argues that the State’s second reason—that veniremember 14 has children but is single—is not an appropriate reason to strike him.  Regardless of the State’s second reason, failure to disclose information during voir dire and personal involvement with the criminal justice system are race-neutral reasons to challenge a potential juror.
See Perry v. State
, 770 S.W.2d 950, 952–53 (Tex. App.—Fort Worth 1989, no pet.);
see also Holman v. State
, 772 S.W.2d 530, 533 (Tex. App.—Beaumont 1989, no pet.) (dismissing appellant’s argument regarding one of State’s reasons to strike potential jurors because failure to reveal criminal histories was State’s “main or central reason” for exercising strikes).  Thus, the trial court could have reasonably found that the State did not have a discriminatory intent when it struck veniremember 14.
See Snyder
, 552 U.S. at 477, 128 S. Ct. at 1207;
Watkins
, 245 S.W.3d at 448.

G.  Trial Court Not Clearly Erroneous

Reviewing the record as a whole and applying, as we must, great deference to the trial court’s ruling, we cannot say that the trial court was clearly erroneous in overruling Jackson’s
Batson
challenge.
 See Watkins
, 245 S.W.3d at 448.  Although the statistical analysis demonstrates that the State used a disproportionate number of peremptory strikes on African-Americans, our comparative analysis of veniremember 3 demonstrates that the State’s reason for striking her was not pretexual, and our analysis of the State’s remaining strikes on African-American veniremembers does not demonstrate discriminatory intent.
See id.
at 448, 453–54.  Accordingly, we overrule Jackson’s first issue.

IV. Jury Argument

In his second and third issues, Jackson argues
that
the State twice commented on his failure to testify during its closing argument at the guilt-innocence stage of trial and that the trial court erred by overruling both of his objections to the comments.  Jackson claims that this error violated his state and federal constitutional rights against self-incrimination and article 38.08 of the code of criminal procedure.
See
U.S. Const. amend V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).

A.  The Complained-Of Comments

During its closing arguments, the State argued that Jackson’s alibi witnesses had lied on the witness stand.  The State then stated,

And [Jackson’s alibi witnesses] testified that [Jackson] was with them after [six] o’clock all night long.  That’s what the testimony was.

But the defendant didn’t know that we knew he went back to the scene, so he had to shift gears a little bit.  And now all of a sudden, he went back to the scene.  Yes, he admits he was there.  “I was there, but if I was there”—

Jackson objected that this was an improper comment on his failure to testify, to which the State replied, “Defense counsel, Your Honor, is who I’m referring to.”  The trial court overruled the objection.  The State continued, “This is what it comes down to.  You heard the testimony on Friday.  You know they were lying, okay?  And if he’s going to get them to come here and lie to you, it’s because he is guilty of the offense.”

Later in its closing argument, the State argued,

And their defense theory about Como turning [Jackson] in was shot out of the water on day two.  And now Friday afternoon to Monday morning, the alibi witnesses that we called up here were shot out of the water.  That is not true.

If he was going to lie to you about that, then he’s guilty of capital murder.

Jackson again objected that this was a comment on his failure to testify, and the trial court overruled his objection.

B. Law on Comment on Failure to Testify

A comment on an accused’s failure to testify violates the accused’s state and federal constitutional privileges against self-incrimination.
Moore v. State
, 849 S.W.2d 350, 351 (Tex. Crim. App. 1993);
Smith v. State
, 65 S.W.3d 332, 339 (Tex. App.—Waco 2001, no pet.).  In addition, the code of criminal procedure provides that a defendant’s failure to testify on his own behalf may not be held against him and that counsel may not allude to the defendant’s failure to testify.  Tex. Code Crim. Proc. Ann. art. 38.08.

To determine whether a comment violates a defendant’s right against self-incrimination or article 38.08
, we must decide whether the language used was manifestly intended or was of such a character that the jury naturally and necessarily would have considered it to be a comment on the defendant’s failure to testify.
 See Bustamante v. State
, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001);
Fuentes v. State
, 991 S.W.2d 267, 275 (Tex. Crim. App.),
cert. denied
, 528 U.S. 1026 (1999).  The offending language must be viewed from the jury’s standpoint, and the implication that the comment referred to the accused’s failure to testify must be clear.
Bustamante
, 48 S.W.3d at 765;
Swallow v. State
, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992).  A mere indirect or implied allusion to the defendant’s failure to testify does not violate the accused’s right to remain silent.
Wead v. State
, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004);
Patrick v. State
, 906 S.W.2d 481, 490–91 (Tex. Crim. App. 1995),
cert. denied
, 517 U.S. 1106 (1996).  A statement referencing evidence that can come only from the defendant is, however, a direct comment on the defendant’s failure to testify.
  Goff v. State
, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996),
cert. denied
, 520 U.S. 1171 (1997);
Madden v. State
, 799 S.W.2d 683, 700 (Tex. Crim. App. 1990),
cert. denied
, 499 U.S. 954 (1991).

C.  State Did Not Comment on Jackson’s Failure to Testify

In the instant case, a review of Jackson’s defensive theory and closing argument provides some insight into the complained-of comments made by the State in its closing argument.  At trial, Jackson called Brandi Hawkins and Andre Hawkins to testify on his behalf.  Brandi is the mother of Jackson’s girlfriend, and Andre is the brother of Jackson’s girlfriend.  Both testified that Jackson was at their house the entire evening of Witt’s murder and that Jackson had slept there that night.  On cross-examination, Brandi admitted that Jackson had sent her a handwritten affidavit to sign, stating that Jackson was at her house on the night of Witt’s murder.  In rebuttal, the State called two witnesses to testify that they had seen Jackson in the crowd of bystanders at Witt’s house after Witt’s murder, contradicting Brandi’s and Andre’s testimony.  During defense counsel’s closing argument, he addressed the State’s rebuttal and said that Brandi Hawkins’s testimony was discredited.  He argued,

But I’m not going to stand in front of you and argue that Joemar Jackson didn’t go to [Witt’s] house.  I believe he did.

But if he went to the house, his interest in this is no different than the interest of everybody else at the house about what happened.

When the State commented later in its closing argument that Jackson “admits he was there [at Witt’s house after the murder].  ‘I was there, but if I was there,’” the State was clearly addressing defense counsel’s closing argument, not any failure to testify on Jackson’s part.
(footnote: 7)
  The State’s comment was also addressing Jackson’s defensive theory and the impeachment of his alibi witnesses.   This same reasoning applies to the second complained-of argument—that Jackson had lied about his alibi defense.  The State was summarizing the evidence and addressing testimony from Jackson’s alibi witnesses and the fact that Jackson had written affidavits for them to sign, stating that he was with them on the night of Witt’s murder.
See Felder v. State
, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992) (noting that proper jury argument includes
summations of evidence
, reasonable deductions from evidence, and
answers to argument of opposing counsel)
,
cert. denied
, 510 U.S. 829 (1993).

Viewing the State’s comments from the jury’s standpoint,
we hold that the complained-of comments
did not naturally and necessarily refer to Jackson’s failure to testify; rather,
 they were proper comments on Jackson’s defensive theory and testimony from his alibi witnesses and were answers to defense counsel’s arguments.
See Bustamante
, 48 S.W.3d at 765;
 Smith
, 65 S.W.3d at 339 (holding that State’s comments were critiques of the amount of evidence defendant put forth on his defensive theory, not comments on failure to testify);
see also McKay v. State
, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985) (concluding prosecutor’s statement that “there is no evidence to that effect” and “there is no evidence of any phantom [killer]” was not improper reference to defendant’s failure to testify but was invited by counsel’s argument that someone else had committed the murder),
cert. denied
, 479 U.S. 871 (1986);
Edmond v. State
, 566 S.W.2d 609, 611 (Tex. Crim. App. [Panel Op.] 1978) (construing prosecutor’s closing argument as proper comment on appellant’s defensive theory).  The complained-of comments were not manifestly intended or of such a character that the jury naturally and necessarily would have considered them to be comments on Jackson’s failure to testify.
See Bustamante
, 48 S.W.3d at 765;
Fuentes
, 991 S.W.2d at 275.

D.  Alternatively, Any Error Was Harmless

Alternatively, even assuming the State’s arguments were comments on Jackson’s failure to testify, we conclude any error in the trial court’s overruling Jackson’s objections was harmless.
See
 Tex. R. App. P. 44.2(a);
see
Wimbrey v. State
, 106 S.W.3d 190, 192 (Tex. App.—Fort Worth 2003, pet. ref’d)
.  Under Texas Rule of Appellate Procedure 44.2(a), upon determining constitutional error exists, we should reverse unless we determine beyond a reasonable doubt that the error did not contribute to the defendant’s conviction or punishment.
Tex. R. App. P. 44.2(a).  Our primary inquiry is what effect the error had, or reasonably may have had, on the jury’s decision.
 Wimbrey
, 106 S.W.3d at 193.  “We consider the source and nature of the error, the extent that it was emphasized by the State, its probable collateral implications, the weight a juror would probably place on the error, and whether declaring it harmless would likely encourage the State to repeat it with impunity.”
Harris v. State
, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).

As we explained above, a review of the State’s entire argument, Jackson’s closing argument, and Jackson’s defensive theories reveals that the State was referring to testimony elicited from Jackson’s alibi witnesses and defense counsel’s closing argument.
Our neutral, impartial review of the record further demonstrates that the comment was a small part of the State’s argument and was not emphasized or mentioned again and that the jury likely did not attribute much, if any, weight to the error.
See id.
  Although the trial court overruled Jackson’s objections, the court read its charge to the jury prior to closing arguments.  The charge included an instruction not to consider Jackson’s failure to testify, and the jury is presumed to follow this instruction.
See

Colburn v. State
, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).

After carefully reviewing the record and performing the harm analysis required under rule 44.2(a), we alternatively hold that if the trial court erred by overruling Jackson’s objection to the State’s comments at issue, then beyond a reasonable doubt, such error did not contribute to Jackson’s conviction or punishment.
See
 Tex. R. App. P. 44.2(a).  We overrule Jackson’s second and third issues.

V.  Hearsay Statements

In his fourth and fifth issues, Jackson complains of hearsay statements made by Clark at trial.  We will address each of his complaints separately below.

A.  Clark’s Testimony

Clark testified that, on the night of Witt’s murder, she and Francis were in a car together, that she could tell something was wrong with him, and that she had asked Francis what had happened.  The State then asked Clark, “What did he tell you?”  Defense counsel raised a hearsay objection, and after a discussion off the record, defense counsel withdrew his objection.  Clark then testified, “He said, ‘I didn’t do it. [Jackson] did it.’”  Outside the jury’s presence, defense counsel explained that he had withdrawn the objection because the State had told him that Clark’s answer would be that Francis did not tell her anything.  The State agreed to withdraw the question.  When the jury returned, the trial court instructed it to disregard the State’s last question and Clark’s answer.  The trial court denied Jackson’s request for a mistrial.

The State then asked Clark about a conversation she had with Francis while he was taking a bath the night of Witt’s murder.  She testified, over Jackson’s running hearsay objection, that Francis had told her that after he, Phillips, Baldwin, and Jackson robbed Witt, Jackson shot Witt in the back of the head.  Clark explained that Francis was crying “[a] lot” while telling her about the robbery.

B.  Motion for Mistrial

In his fourth issue, Jackson argues that the trial court erred by refusing to grant a mistrial after Clark testified that Francis “said, ‘I didn’t do it. [Jackson] did it.’”

We review whether the trial court erred in denying a motion for mistrial under an abuse of discretion standard.
Ladd v. State
, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999),
cert. denied
, 529 U.S. 1070 (2000).  A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement.
Montgomery v. State
, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).  Absent an abuse of discretion, we do not reverse a trial court’s denial of a mistrial.
Ladd
, 3 S.W.3d at 567.

Granting a mistrial is an extreme remedy for curing prejudice that occurs during a trial.
 Ocon v. State
, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). A mistrial is required only when the improper evidence or testimony is “clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury.”
Hinojosa v. State
, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). A trial court should grant a mistrial only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant.
Bauder v. State
, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996),
overruled on other grounds by Ex parte Lewis
, 219 S.W.3d 335 (Tex. Crim. App. 2007).  Ordinarily, a prompt instruction to disregard will cure any prejudicial effect associated with improper testimony.
Ovalle v. State
, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).  A reviewing court should presume the jury followed the trial court’s instructions to disregard improper testimony.
Colburn
, 966 S.W.2d at 520.

In this case, by the time that Clark testified about what Francis had said in the car, the jury had already heard Francis testify that Jackson was the shooter and that Francis had told Clark what had happened, as well as Hall’s testimony that Jackson had admitted to shooting Witt.  Thus, the harm from Clark’s testimony was attenuated by the fact that the jury had already twice heard essentially the same evidence.
 See Anderson v. State
, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (“Inadmissible evidence can be rendered harmless if other evidence at trial . . . proves the same fact that the inadmissible evidence sought to prove.”);
Couchman v. State
, 3 S.W.3d 155, 160–61 (Tex. App.—Fort Worth 1999, pet. ref’d).  Moreover, in the absence of evidence to the contrary, we presume that the jury followed the trial court’s instructions to disregard Clark’s testimony.
See Colburn
, 966 S.W.2d at 520.  The testimony at issue was not so emotionally inflammatory that the trial court’s curative instruction did not prevent the jury from being unfairly prejudiced against Jackson.
See Bauder
, 921 S.W.2d at 698. Thus, we hold that the trial court did not abuse its discretion when it denied Jackson’s motion for mistrial, and we overrule Jackson’s fourth issue.
See Ladd
, 3 S.W.3d at 567;
Montgomery
, 810 S.W.2d at 391.

C.  Objection to Further Hearsay

In his fifth issue, Jackson argues that the trial court erred by overruling his hearsay objection after Clark testified that, while Francis was taking a bath, he had told her that Jackson had shot Witt.  The State argues that the statement was admissible as an excited utterance and that, alternatively, any error was harmless.

We need not decide whether this testimony was admissible as an excited utterance because, even assuming error, any error was harmless.  Erroneously admitted evidence is a violation of evidentiary rules and thus non-constitutional error.
See King v. State
, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  We apply rule 44.2(b) and disregard the alleged error if it did not affect Jackson’s substantial rights.  Tex. R. App. P. 44.2(b);
see Mosley v. State
, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g),
cert. denied
, 526 U.S. 1070 (1999);
Coggeshall v. State
, 961 S.W.2d 639, 642–43 (Tex. App.—Fort Worth 1998, pet. ref’d).  In applying the “harmless error” test, our primary question is whether there is a “reasonable possibility” that the error might have contributed to the conviction.
Mosley
, 983 S.W.2d at 259.

As we noted above, an error in the admission of a hearsay statement is harmless if other unobjected-to evidence is admitted at trial that proves the same fact.
  Mayes v. State
, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991);
 Anderson
, 717 S.W.2d at 628;
Franks v. State
, 90 S.W.3d 771, 805 (Tex. App.—Fort Worth 2002, no pet.);
 Matz v. State
, 21 S.W.3d 911, 912–13 (Tex. App.—Fort Worth 2000, pet. ref’d);
Couchman
, 3 S.W.3d at 160–61. Thus, Francis’s unobjected-to testimony that Jackson was the shooter and that Francis had told Clark what had happened, Phillips’s unobjected-to testimony that Jackson was the shooter, and Hall’s and Amos’s unobjected-to testimony that Jackson had admitted to being the shooter rendered harmless any error in admitting Clark’s testimony.
See
Tex. R. App. P. 44.2(b);
see Mosley
, 983 S.W.2d at 259.  We overrule Jackson’s fifth issue.

VI.  Jury Charge

In his sixth issue, Jackson argues that the trial court erred by failing to include an accomplice-witness instruction in the jury charge.  Jackson acknowledges that his defense counsel did not object to the exclusion of the accomplice-witness instruction, but he argues that he suffered egregious harm as a result of the trial court’s error.

A.  Standard of Review

Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State
, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994);
see Sakil v. State
, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).  Initially, we must determine whether error occurred.  If it did, we must then evaluate whether sufficient harm resulted from the error to require reversal.
Abdnor
, 871 S.W.2d
at 731–32.

If there is error in the court’s charge but the appellant did not preserve it at trial, we must decide whether the error was so egregious and created such harm that the appellant did not have a fair and impartial trial—in short, that “egregious harm” has occurred.
 Almanza v. State
, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);
 see
Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006);
Allen v. State
, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008);
Hutch v. State
, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).  Egregious harm is the type and level of harm that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.
Allen
, 253 S.W.3d at 264 & n.15;
 Olivas v. State
, 202 S.W.3d 137, 144, 149 (Tex. Crim. App. 2006)
;
Almanza
, 686 S.W.2d at 172.

In making an egregious harm determination, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”
Almanza
, 686 S.W.2d at 171;
see generally Hutch
, 922 S.W.2d at 172–74.  The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused.
Almanza
, 686 S.W.2d at 174.  Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis.
Ellison v. State
, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002);
Hutch
, 922 S.W.2d at 171.

B.  Accomplice-Witness Instruction

Article 38.14 of the code of criminal of procedure provides, “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”  Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).  A prosecution witness “who is indicted for a lesser included offense based upon alleged participation in commission of the greater offense is also an accomplice as a matter of law.”
Ex parte Zepeda
, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991).  If a prosecution witness is an accomplice as a matter of law, the trial court is under a duty to instruct the jury accordingly, and failure to do so is error.
Herron v. State
, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002).

The instruction does not require the jury to be skeptical of accomplice-witness testimony or to give less weight to such testimony than to other evidence.
Id.
  The instruction merely informs the jury that it cannot use the accomplice-witness testimony unless some non-accomplice evidence connects the defendant to the offense.
Id.

The test for sufficient corroboration is whether, after excluding the accomplice’s testimony, other evidence of an incriminating character tends to connect the defendant with the commission of the offense.
Burks v. State
, 876 S.W.2d 877, 887 (Tex. Crim. App. 1994),
cert. denied
, 513 U.S. 1114 (1995);
Munoz v. State
, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). Corroborating evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt; instead, the combined weight of the corroborating evidence need only tend to connect the defendant to the offense.
Cathey v. State
, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999),
cert. denied
, 528 U.S. 1082 (2000);
 McDuff v. State
, 939 S.W.2d 607, 613 (Tex. Crim. App.),
cert. denied
, 522 U.S. 844 (1997).  Additionally, the corroborative evidence may be circumstantial or direct, and the accomplice testimony need not be corroborated on every element of the offense.
Brosky v. State
, 915 S.W.2d 120, 138 (Tex. App.—Fort Worth, pet. ref’d),
cert. denied
, 519 U.S. 1020 (1996).

Non-accomplice evidence can render harmless a failure to submit an accomplice-witness instruction by fulfilling the purpose an accomplice-witness instruction is designed to serve.

Herron
, 86 S.W.3d at 632.  The omission of an accomplice-witness instruction is generally harmless under the egregious harm standard unless the corroborating non-accomplice evidence is “‘so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’”
Id.
(quoting
Saunders v. State
, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)).

C.  No Egregious Harm

Here, Jackson was indicted for and convicted of capital murder for killing Witt in the course of committing or attempting to commit robbery.
See
Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2009).  Francis testified that he had been charged with consipiracy to commit robbery for his participation in this crime, and Phillips testified that he had been charged with capital murder for his participation in the crime; consequently, they were accomplices as a matter of law, and the trial court erred by not including the accomplice-witness instruction in the jury charge.
See Zepeda
, 819 S.W.2d at 876.  We must consider whether Jackson suffered egregious harm as a result of this error.
See Herron
, 86 S.W.3d at 631.

The non-accomplice evidence in this case consisted of (1) Hall’s testimony that he had overheard Jackson telling a neighbor that he hoped Phillips could “hold water” and would not “snitch” on him and saying that he should have “murked” Phillips; (2) Coleman’s testimony that Phillips had told him about the robbery and that Jackson was the shooter; (3) Amos’s testimony that both Phillips and Jackson had told him that Jackson was the shooter; (4) Clark’s testimony that she had heard Phillips tell Francis that he and Jackson saw a lot of drugs and money at Witt’s house and wanted to rob Witt and that Francis had told her about the robbery and that Jackson shot Witt during the robbery; and (5) Porter’s and Witt’s cousin’s testimony that they had seen Jackson at the crime scene after Witt’s murder, contradicting the testimony of Jackson’s alibi witnesses.

Jackson argues that Clark’s and Coleman’s only knowledge of Jackson’s involvement in the crime came from his accomplices, Phillips and Francis. Jackson admits that Hall and Amos offered corroborating testimony, but he argues that they are “individuals of questionable veracity” and that Jackson’s alleged admissions to Hall and Amos were ambiguous.

Nevertheless, we cannot say that the corroborating (non-accomplice) evidence was not “so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.”
Herron
, 86 S.W.3d at 632 (quoting
Saunders
, 817 S.W.2d at 692).  The non-accomplice evidence need not prove all the elements of the alleged offense or directly link Jackson to the commission of the offense; rather, it is sufficient if it tends to connect him to the offense.
See Cathey
, 992 S.W.2d at 462;
Brosky
, 915 S.W.2d at 138.  After excluding the accomplice testimony, we find that the combined weight of the corroborating evidence—even absent Clark’s and Coleman’s testimony—sufficiently tends to connect Jackson to the robbery and Witt’s murder.
See Cathey
, 992 S.W.2d at 462;
Brosky
, 915 S.W.2d at 138.

Accordingly, we hold that the trial court’s error in failing to include an accomplice-witness instruction in the jury charge did not result in egregious harm to Jackson such that he did not have a fair and impartial trial.
 See
Tex. Code Crim. Proc. Ann. art. 36.19;
Allen
, 253 S.W.3d at 264;
Hutch
, 922 S.W.2d at 171;
Almanza
, 686 S.W.2d at 171.  We overrule Jackson’s sixth issue.

VII.  Conclusion

Having overruled Jackson’s six issues, we affirm the trial court’s judgment.

PER CURIAM

PANEL: WALKER, LIVINGSTON, and GARDNER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: April 15, 2010

FOOTNOTES
1:See
Tex. R. App. P. 47.4.

2:There is some dispute in the record about whether a fourth veniremember, who ultimately sat on the jury, was Hispanic or African-American.

3:The State noted its belief that one of Jackson’s defense theories at trial would be his isolation from the Como community.

4:Jackson’s attorney explained during oral argument that he was not challenging the State’s reasons for striking veniremembers 4 and 14, but he included in his brief an analysis of the State’s stated reasoning for striking them to show discriminatory intent in striking veniremember 3.

5:Jackson appears to argue that veniremember 21 raised her hand when the State asked the entire panel if anyone disagreed with the law of parties, but the record shows only that veniremembers 3, 13, 46, and 60 raised their hands.  Veniremembers 46 and 60 were not within the strike zone and did not sit on the jury.  The only other veniremember who expressed disagreement with the law of parties and who was within the strike zone was questioned extensively on his opinion, ultimately agreed that he could follow the law, but did not sit on the jury for reasons not revealed by the record.

6:When the trial court asked if defense counsel had any comment to the State’s proffered reasons, defense counsel responded only that he was concerned with the State’s reasoning for veniremember 4.

7:Jackson emphasizes the State’s use of the word “I,” but “[w]hat determines the impermissibility of a reference to the defendant’s failure to testify is not the use of ‘I’ or ‘he’ or ‘she’ or any other word, but rather the entirety of the prosecutor’s statements, taken in the context in which the words were used and heard by the jury.”
Cruz v. State
, 225 S.W.3d 546, 549 (Tex. Crim. App. 2007);
but see Cherry v. State
, 507 S.W.2d 549, 550 (Tex. Crim. App. 1974) (“[W]hen the word ‘I’ is used in reference to something the defendant might have testified to, but did not, it is illogical to think that the jury is not reminded of the defendant’s failure to testify.”)
.


107 Ariz. 283 (1971)
486 P.2d 181
Isabelle EDWARDS and Mason Edwards, her husband, Appellants,
v.
Edwin B. YOUNG and Edwin F. Young, Appellees.
No. 10260-PR.
Supreme Court of Arizona, In Banc.
June 24, 1971.
J. William Moore, Phoenix, for appellants.
Johnson & Tucker, Phoenix, for appellees.
STRUCKMEYER, Chief Justice.
Appellants Isabelle and Mason Edwards instituted suit against Edwin B. Young, a minor, and Edwin F. Young, his father, for injuries suffered by Isabelle as a result of an automobile accident allegedly caused *284 by the tortious conduct of the minor, Edwin B. Young. A jury trial resulted in a verdict for the Youngs, and after a motion for a new trial was denied, this appeal followed. The Court of Appeals dismissed the appeal and we accepted review to consider the question raised.
The problem centers around the proper interpretation of the Arizona Rules of Civil Procedure, 16 A.R.S. Rule 59(d) thereof requires that a motion for a new trial shall be filed not later than ten days after entry of judgment. Rule 73(b) requires that notice of appeal must be filed within sixty days from the judgment, but that the time for appeal is extended by a "timely" motion for a new trial. In that event, the sixty days runs from the entry of an order denying a motion for a new trial.
This sequence of events occurred:

  April 17, 1969  Judgment entered for appellees.
  April 22, 1969  Appellant's attorney received actual notice that judgment
                  had been entered.
  May 2, 1969     Motion for a new trial served and filed.
  June 3, 1969    Order entered denying a motion for a new trial.

Notice of appeal was filed on August 4, 1969, within sixty days of June 3rd, but not within sixty days of entry of judgment.
Appellant's counsel states that he was not in court on the 17th of April, the day judgment was rendered, and he did not learn of the judgment until five days later. He immediately called opposing counsel and the two agreed that appellant should then have the full ten days contemplated in Rule 59(d) in which to serve a motion for a new trial. The trial court accepted the motion as timely, and ruled on the merits. Appellant then filed his notice of appeal. The Court of Appeals refused to entertain the appeal on the merits, stating that it lacked jurisdiction because the motion for a new trial had not been "timely."
The instant case is one of first impression in Arizona. Because Arizona has substantially adopted the Federal Rules of Civil Procedure, we give great weight to the federal interpretations of the rules. Jenney v. Arizona Exp., Inc., 89 Ariz. 343, 362 P.2d 664; Harbel Oil Co. v. Steele, 80 Ariz. 368, 298 P.2d 789.
Appellant relies on federal interpretations, Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404, and Pierre v. Jordan, 333 F.2d 951 (9th Cir.), 8 F.R.2d 73a. 63, Case 1. Both concerned a lack of "timeliness" under Rule 59 and the subsequent appeals under Rule 73. Both appeals were allowed because of the "unique circumstances" existing. In Thompson, the petitioner relied on a statement of the district court that the motion was made "in ample time" and in Pierre, appellant was a layman acting in propria persona, whose ignorance of the federal rules was felt excusable.
Nonetheless, we do not think the appeal was timely. It is settled in Arizona that the perfecting of an appeal within the time prescribed is jurisdictional; and, hence, where the appeal is not timely filed, the appellate court acquires no jurisdiction other than to dismiss the attempted appeal. Patterson v. Patterson, 102 Ariz. 410 at 415, 432 P.2d 143; Murphey v. Gray, 84 Ariz. 299 at 307, 327 P.2d 751; Harbel Oil Co. v. Steele, supra, 80 Ariz. at 370, 298 P.2d 789; In re Gipson's Estate, 64 Ariz. 181 at 183, 167 P.2d 383; Burney v. Lee, 59 Ariz. 360, 129 P.2d 308.
There are, of course, two additional facts which were not present in the foregoing cases; first, the understanding of opposing counsel that appellant would have a full ten days after he received notice of the judgment within which to file the motion for a new trial, and that the trial court ruled upon the motion for a new trial. The majority in Thompson recognized the "obvious great hardship to a party." The four dissenting judges stated, "Rules of procedure are a necessary part *285 of an orderly system of justice. Their efficacy, however, depends upon the willingness of the courts to enforce them according to their terms."
Rule 6(b) of the Arizona Rules of Civil Procedure provides that the time under 59(d) may not be enlarged. It is a corollary of Federal Rule 6(b) and provides:
"6(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion:
* * * * * *
2. upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect, but it may not extend the time for taking any action under Rule * * * 59(d), * * *."
We are convinced that where, as here, the Rules of Civil Procedure specifically recognize that the time for filing of a motion for a new trial may not be enlarged, the efficacy of the rule depends upon the willingness of the courts to enforce it. We hold that the time may not be extended by agreement of counsel nor is jurisdiction thereby conferred upon the trial court to rule upon the merits of the motion.
Although this holding may create some hardship as in the instant case, the rule is clear and we take it as we find it. In general, opposing parties have their rights too, and one of them is to feel secure in the knowledge that they are finally freed from the burdens of a suit. They cannot do this as long as a case may be re-opened because of allegedly "unique circumstances" occurring after the time for appeal has passed.
The appeal is dismissed.
HAYS, V.C.J., and UDALL and LOCKWOOD, JJ., concur.
NOTE: Justice JAMES DUKE CAMERON did not participate in the determination of this matter.


710 A.2d 1067 (1998)
311 N.J. Super. 651
SCOTT D. LEIBLING, P.C., Plaintiff,
v.
MELLON PSFS (NJ) NATIONAL ASSOCIATION f/k/a Glendale National Bank of New Jersey and Fredy Winda Ramos, Defendants.
Superior Court of New Jersey, Law Division, Special Civil Part, Camden County.
Decided January 27, 1998.
Kevin D. Sheehan, Moorestown, for plaintiff.
Dean E. Weisgold, Philadelphia, PA, for defendant.
RAND, J.S.C.

FACTS
Mr. Scott D. Liebling, P.C. (hereinafter "Plaintiff") is an attorney at law. Plaintiff *1068 maintains an attorney trust account ("Account") at Mellon Bank (NJ) National Association ("Mellon"), formerly known as Glendale National Bank of New Jersey. Mellon uses a computerized system to process checks for payment.
Plaintiff represented, defendant, Fredy Winda Ramos ("Ramos") in a personal injury action which resulted in a settlement. On or about May 19, 1995, plaintiff issued Check No. 1031 in the amount of $8,483.06 to Ramos representing her net proceeds from the settlement. Mellon honored that check on May 26, 1995. On or about May 24, 1995, plaintiff mistakenly issued another check, Check No. 1043, to Ramos in the same amount of $8,483.06. Realizing his error, on or about May 30, 1995, Plaintiff called Ramos in Puerto Rico and advised her that the Check No. 1043 was issued by mistake and instructed her to destroy the check. Thereafter, Plaintiff called Mellon and ordered an oral stop payment on the check.
On December 21, 1996, some nineteen months after plaintiff issued the Check No. 1043, Ramos cashed the check from Puerto Rico.
Plaintiff filed this complaint against both Ramos and Mellon. Ramos was served and defaulted. Plaintiff's complaint against Mellon alleges breach of duty of good faith, negligence, breach of fiduciary duty, payment of a stale check, and breach of contract as a result of Mellon honoring the second check, Check No. 1043. A trial was held before Judge Rand on December 5, 1997. Thereafter, the parties submitted their legal positions to the court.

ARGUMENTS
Plaintiff argues that Mellon is liable for several reasons. First, plaintiff alleges that he had no knowledge of Mellon's policy regarding old "stale" checks. Plaintiff asserts that he did not receive a copy of either Mellon's or Glendale's procedures when he opened his account in 1991. In Mellon's policy statement, it states that "[w]e may pay any check or other item drawn on an account even though it is presented to us for payment more than six months after its date; an expired stop payment request was made regarding it ... we will not be liable for paying a check or other item under any of these circumstances." However, plaintiff claims that this statement is not relevant to the present case because he was unaware of Mellon's policy. Further, plaintiff states that the copy of Mellon's policy, which was introduced into evidence, could not have been provided to plaintiff at the time he opened the account because it was a November, 1997 revised copy.
Second, plaintiff relies on the New Jersey Study Comment to N.J.S.A. 12A:4-404 which reads:
A bank is under no obligation to a customer having a checking account to pay a check, other than a certified check, which is presented more than six months after its date, but it may charge its customer's account for a payment made thereafter in good faith.
The 1962 Comment thereto states "[a] `stale' check is one presented for payment an unusually long time after its date, and, at common law, it put the drawee on inquiry before making payment." However, the current Comment reads "[t]he time limit is set at six months because banking and commercial practice regards a check outstanding for longer than that period as stale, and a bank will normally not pay such a check without consulting the depositor" New Jersey Study Comment, pocket part, page 204 (1995), which is different language than that which was included in the original New Jersey Study Comment published in 1962. Therefore, plaintiff argues that Mellon did not act in good faith and comply with the commercial standard because it honored Check No. 1043, which was more than six months old, without consulting the plaintiff.
In contrast, defendant argues that Mellon acted in good faith by honoring the check. Specifically, defendant claims that it can not be held liable for the payment of the check because the oral stop payment order had long expired. Defendant asserts that had plaintiff wanted to ensure that payment was not made on that check, he could have reissued the stop payment order or closed the account.
*1069 In addition, defendant relies on out of state case law. Specifically, defendant cites Advanced Alloys, Inc. v. Sergeant Steel Corp., 72 Misc.2d 614, 340 N.Y.S.2d 266, 11 UCC Rep.Serv. 1230. In that case, a bank made payment on a check that was presented for payment fourteen months after its issuance and after the expiration of a stop payment order. The court stated that pursuant to § 1201(19) of the 1962 Uniform Commercial Code, the definition of good faith is "honesty in fact in the conduct or transactions concerned." The court determined that in the absence of any evidence that the bank did not act with honesty in fact, the payment was made in good faith and was not wrongful. Therefore, defendant argues that it acted in good faith when it honored the check in question.

ISSUE
Whether the defendant bank acted in good faith when it honored a check that was presented for payment nineteen months after it was issued and subsequent to the expiration of an oral stop payment order?

DISCUSSION
It is important to consider the relevant New Jersey statute sections before discussing what actions constitute "good faith." Under N.J.S.A. 12A:4-403(b):
[a] stop payment order is effective for six months, but it lapses after 14 calendar days if the original order was oral and was not confirmed in writing within that period. A stop payment order may be renewed for additional six-month periods by a writing given to the bank within a period during which the stop-payment order is effective.
In addition, N.J.S.A. 12A:4-404 states:
A bank is under no obligation to a customer having a checking account to pay a check, other than a certified check, which is presented more than six months after its date, but it may charge its customer's account for a payment made thereafter in good faith. (emphasis added.)
Thus, the issue in the present case turns on whether Mellon acted in good faith when it honored plaintiff's check. Good faith under N.J. Uniform Commercial Code has been defined in N.J.S.A. 12A:3-103(a)(4) as "honesty in fact and the observance of reasonable commercial standards of fair dealing." Since there is no New Jersey case law directly on point, it is necessary to consider alternate sources. One law review article by Florence Pfullmann Berkley, Computerized Check Processing and a Bank's Duty To Use Ordinary Care, 65 Tex. L.Rev. 1173 (May, 1987), addressed the present issue. Specifically, the article explained that "Article 4 of the Uniform Commercial Code imposes on all banks the responsibility to act in good faith and to exercise ordinary care. The drafters of the Code chose not to provide an explicit definition of `ordinary' care, stating only that the term is to be used `with its normal tort meaning and not in any special sense relating to bank collections'." Id. at 1195. In addition, the article suggested the appropriate standard of care in light of the widespread development of computerized check processing systems in banking industry. Specifically, the article explained a two-step analysis:
First, the court should determine whether the system is one in general banking usage not disapproved by the Code. If so, use of the system prima facie constitutes the exercise of ordinary care. The burden of proof then shifts to the party claiming that the bank has failed to use ordinary care to prove that selection or use of this system was unreasonable. If the system is so new that it is not yet in general use in the banking industry, the burden of proof would remain with the bank, and the analysis would involve determining whether the system is `reasonable under the circumstances.' Once a bank has proven its prima facie case, the second step in this analysis involves a determination by the court that the particular system is reasonable under the specific circumstances of the case. At this stage, the court can examine a number of factors, including whether the computer procedure is reasonably related to the particular banking task, whether any increased accuracy from the use of another procedure or system outweighs the costs of implementing such a system, and whether the computer *1070 system is state of the art. If the bank succeeds [in proving its initial burden], then the burden shifts to the opposing party to prove that the system, although one in general banking usage, was not a reasonable one under the circumstances.

[Id.]
The article explains that this analysis acknowledges that the Code was written before the era of computerized check processing.
In addition, the Third Circuit case of Hartford Accident & Indemnity Co. v. First Pennsylvania Bank, 859 F.2d 295 (1988), appears to be analogous to the present issue. In Hartford, an insurance company brought a subrogation action against a payor bank to recover on an altered check that the bank had paid. On April 17, 1984, the plaintiff placed a written stop-payment order on a certain check, and under applicable state law the stop payment order was good for six months. On December 26, 1984, two months after the stop payment order had expired, the bank honored the check. Before concluding that the payor bank had acted in good faith, the court analyzed the definition of "good faith". The court stated that "13 Pa.C.S.A. § 1201 defines good faith as `honesty in fact.' This definition must be viewed subjectively; a finding of bad faith must be predicated on a showing of dishonesty. Likewise, mere negligence does not preclude a finding of good faith." Id. at 297. (emphasis added). In holding that the bank had acted in good faith, the court stated:
[a]s a result of the expiration of the order, [the bank] cannot be said to have the actual knowledge that would deny it the status of a good faith payor .... The obligations which a bank incurs as a result of its customer's imposing a stop order on a check do not continue in perpetuity.... [The bank] was neither negligent nor reckless and certainly cannot be said to have been subjectively dishonest.... A finding of bad faith requires actual knowledge on the part of the payor. An objective inquiry into what the circumstances should have revealed to [the bank] is simply not germane to the analysis.

[Id. at 297-298.]
The out of state case law relied on by defendant further addresses the present issue. The case, RPM Pizza, Inc. v. Bank One Cambridge, 869 F.Supp. 517 (E.D.Mich. 1994), held that the bank was not liable for payment of a stale check where a stop payment order had expired and there was no evidence contesting the bank's good faith. In particular, the court found that "[g]ood faith definition is a subjective test, requiring an evaluation of the Bank's intent, rather than its diligence." Id. at 520.
In contrast, plaintiff's argument centers on the proposition that the bank's duty of good faith required it to inquire or consult with plaintiff before honoring a stale check that had a previous oral stop payment order on it. This argument was upheld in the Pre-Code case of Goldberg v. Manufacturers Trust Co., 199 Misc. 167, 102 N.Y.S.2d 144 (N.Y.Mun. Ct.1951). In that case, the bank was held liable to the drawer for payment of a 27 month old check even though a stop payment order had expired. The court predicated liability on the bank's payment of the check without inquiring into its own records which would have revealed the lapsed stop payment order and put the bank on notice. Similarly, in Charles Ragusa & Son v. Community State Bank, 360 So.2d 231, 234 (1978), the court concluded that "payment of a three year old stale check demonstrated the bank's lack of due care and prevented the bank from claiming the defense of good faith." The N.J. Study Comment to N.J.S.A. 12A:4-404 cites Redfield, The Law of Commercial Paper § 584, noting that the "practical way out of this dilemma is the simple expedient of making inquiry."
However, in the Uniform Commercial Code Treatise, "Hawkland § 4-404:01", Mr. Hawkland stated that the above cases are not consistent with the Uniform Commercial Code. Specifically, "[t]he duty [of inquiry] is inconsistent with the provisions of subsection 4-403(2) on the expiration of the `effectiveness' of stop orders. Such a duty is hardly practical today." Moreover:
[t]o require that a payor bank check the date of every check received via the collection process would unreasonably increase the cost of processing every check written *1071 today. To restate the suggested judicial analysis in the terms used by § 4-404, a stale check is paid in good faith whenever the usual practices of the general banking community require the payor to pay according to the terms of the item without having to examine it by hand and human eye. However, if the current standards or practices of check handling result in a visual inspection for any reason, a payor bank cannot pay a stale check in good faith without first consulting the depositor for his authorization to do so. (emphasis added).
Plaintiff counters that in order to interpret § 4-404, this Court should give total credence to the explanatory comments drafted many years before the most recent code § 4-404 revisions. Pursuant to § 4-404, the bank may charge the customer's account for a check presented more than six months after it is dated as long as the bank acts in good faith. N.J.S.A. § 12A:3-103(a)(4) defines good faith. The definition "honesty in fact and the observance of reasonable commercial standards of fair dealings" is a revision from the 1961 version of the Code. It interjects a subjective analysis into the concept of fair dealings. The Code Comment notes:
Although fair dealing is a broad term that must be defined in context it is clear that it is concerned with the fairness of the conduct rather than the care with which an act is performed. Failure to exercise ordinary care in conducting a transaction is an entirely different concept than failure to deal fairly in conducting the transaction. (emphasis added).
[See, Comment to N.J.S.A. § 12A:3-103, note 4 (1995) (Supp. p. 7).]
The Commercial Code was initially adopted in November, 1961 in New Jersey. In 1990, Articles III and IV of the Code were substantially revised relating to, among other thing, bank deposits and collections to become effective on June 1, 1995. The court is satisfied as pointed out by the defendant that those Amendments were enacted in order to address the effect of automated systems utilized by banks with the substantial increase in check usage after the original enactment of the Code. The Official Code Comment to the 1995 Amendments for § 12A:4-101, states as follows:
1. The great number of checks handled by banks and the country-wide nature of the bank collection process require uniformity in the law of bank collections. There is needed a uniform statement of the principal rules of the bank collection process with ample provision for flexibility to meet the needs of the large volume handled and the changing needs and conditions that are bound to come with the years. The Article meets that need.
2. ... An important goal of the 1990 revision of Article 4 is to promote the efficiency of the check collection process by making the provisions of Article 4 more compatible with the needs of an automated system and, by doing so, increase the speed and lower the cost of check collection for those who write and receive checks....
[Code Comment to N.J.S.A. § 12A:4-101 (1995) (Supp. p. 157).]
The 1995 Amendments to § 12A:4-404 New Jersey Study Comment include different language than that or which the plaintiff totally relied. The Plaintiff's reliance upon the 1962 Study Comment is misplaced and outdated. The more modern and up to date approach requires a rejection of the 1962 Study Comment upon which plaintiff's argument solely rests.
Thus, in determining whether the defendant bank in the present action acted in good faith, the above cited material must be analyzed and applied. First, it appears clear that the Uniform Commercial Code acknowledges that computerized check processing systems are common and accepted banking procedures in the United States. (see Florence Pfullmann Berkley, Computerized Check Processing and a Bank's Duty To Use Ordinary Care, 65 Tex. L.Rev. 1173 (May, 1987) and Hawkland Treatise § 4-404:01). Therefore, it can not be said that defendant bank acted in bad faith by using a computerized system when it honored plaintiff's "stale" check. Furthermore, it appears that the test for good faith is a subjective test. Thus, based on all of the foregoing material, *1072 as long as the defendant bank used an adequate computer system for processing checks (here there is no proof to the contrary), it appears to have acted in good faith even though it did not consult the Plaintiff before it honored the "stale" check that had an expired oral stop-payment order on it. As stated in Hartford, supra, the obligation of a bank to stop payment on a check does not continue in perpetuity once the stop payment order expires.
The bank's conduct was fair and in accordance with reasonable commercial standards. Accordingly, it appears that the defendant bank is not liable and should prevail. A finding of no liability is entered for the defendant bank.


Case: 19-1473   Document: 51     Page: 1   Filed: 02/05/2020

        NOTE: This disposition is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
                 ______________________

          PROMOS TECHNOLOGIES, INC.,
                   Appellant

                            v.

        SAMSUNG ELECTRONICS CO., LTD.,
                    Appellee
             ______________________

                       2019-1473
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2017-
 01416.
                  ______________________

                      JUDGMENT
                 ______________________

     CRAIG R. KAUFMAN, TechKnowledge Law Group LLP,
 Redwood City, CA, argued for appellant. Also represented
 by KEVIN CHRISTOPHER JONES.

    NAVEEN MODI, Paul Hastings LLP, Washington, DC,
 argued for appellee. Also represented by CHETAN BANSAL,
 STEPHEN BLAKE KINNAIRD, JOSEPH PALYS; PAUL
 ANDERSON, Houston, TX.
                  ______________________
Case: 19-1473     Document: 51   Page: 2   Filed: 02/05/2020

 THIS CAUSE having been heard and considered, it is

 ORDERED and ADJUDGED:

     PER CURIAM (MOORE, WALLACH, and STOLL, Circuit
 Judges).
                AFFIRMED. See Fed. Cir. R. 36.

                      ENTERED BY ORDER OF THE COURT

 February 5, 2020                 /s/ Peter R. Marksteiner
      Date                        Peter R. Marksteiner
                                  Clerk of Court