David Mark Temple v. State

• Court: Court of Appeals of Texas
• Decided: December 21, 2010
• Docket: 14-08-00074-CR
• Status: Published

Opinion

Affirmed and Majority and Concurring Opinions filed December 21, 2010.

In The

Fourteenth Court of Appeals

NO. 14-08-00074-CR

DAVID MARK TEMPLE, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1008763

MAJORITY OPINION

Appellant, David Mark Temple, was convicted of the murder of his wife, Belinda Temple, and sentenced to life imprisonment.  Appellant challenges his conviction in eighty issues, which are grouped into the following categories:

(1) the evidence is legally and factually insufficient to support the jury’s verdict (issues one and two);

(2) appellant’s due-process rights were violated because of the State’s Brady violations (issues three and four);

(3) the trial court erred by allowing the prosecutor to cross-examine appellant regarding the veracity of other witnesses (issues five through fourteen);

(4) the trial court erred by allowing the prosecutor to inject unsupported and inflammatory facts during cross-examination of appellant (issues fifteen through twenty-four);

(5) the trial court erred by allowing the prosecutor to engage repeatedly in improper jury argument (issues twenty-five through sixty-seven); and

(6) the trial court erred by overruling numerous hearsay objections (issues sixty-eight through eighty). 

We affirm.

I.   Background

Appellant was raised in Katy by Kenneth and Maureen Temple.  Interstate 10 (“I-10”) runs east-to-west through Katy.  Kenneth and Maureen lived in a house north of I-10 and surrounded by fields in which appellant and his brothers, Darren and Kevin, hunted.  At the time of Belinda’s death, Kenneth and Maureen still lived in that house.

During the mid-1980s, appellant was a star linebacker on the Katy High School football team.  After high school, appellant played football at Stephen F. Austin State University (“SFA”) in Nacogdoches.  During college, appellant met and began dating Belinda.  While dating, appellant and Belinda acquired a Chow-mix dog they named Shaka.  Appellant and Belinda married in 1992 and spent the next two years earning post-graduate degrees from SFA and teaching and coaching in Livingston. 

In 1994, appellant and Belinda moved to Katy.  Appellant was employed as an assistant football coach at Alief Hastings High School, and Belinda taught at Katy High School.  They eventually bought a home south of I-10 in the Cimarron subdivision, an approximately fifteen-minute drive from Kenneth and Maureen’s home.  At the time of Belinda’s death, appellant and Belinda had a three-year old son, E.T., and Belinda was almost eight-months pregnant, expecting a girl. 

On Monday, January 11, 1999, Belinda was at work when she was informed E.T. was running a fever at daycare.  During lunch, Belinda retrieved E.T. and took him home.  At approximately 12:30 p.m., appellant arrived home to watch E.T., allowing Belinda to return to her school until around 3:30 p.m.  Between 3:30 and 3:45 p.m., Belinda arrived at Kenneth and Maureen’s home to retrieve soup.  She briefly spoke with Kenneth and then drove home.  Belinda arrived home sometime before 4:00 p.m.  Appellant claims that, after Belinda arrived home, he and E.T. left so that Belinda could rest.

According to appellant, he drove his blue, short-bed pickup truck to the small park in his neighborhood, Cimarron Park.  Appellant testified that shortly after arriving at the park, he and E.T. decided to go to a larger park, Peckham Park, several miles away, north of I-10.  Appellant claimed he stopped at a Brookshire Brothers grocery store north of I-10 where he purchased drinks and cat food.  Appellant and E.T. were videotaped entering the store at 4:32 and leaving at 4:38.  Appellant testified he then decided to go to Home Depot to look at shelving for the baby’s room.  Appellant and E.T. were videotaped entering Home Depot at 5:14 p.m. but were not videotaped exiting the store. 

Appellant and E.T. returned home and pulled into the garage.  The Temples’ garage was detached from their home and had a door leading into their backyard.  Appellant testified that he left E.T. in the garage, went into the backyard, and noticed the back door to the house was open, and the door’s window was broken.  According to appellant, he immediately grabbed E.T. and took him across the street to the home of Michael and Peggy Ruggiero.  Appellant banged on the door and yelled, “Mike, Mike, it’s me, David.  Let me in.”  Michael and Peggy opened the door, and appellant handed them E.T., told them his house had been burglarized, and asked them to call 911.  Appellant then ran back to his house with Michael following.  Appellant entered through the back gate and went into his house.  Michael stopped at the gate when confronted by Shaka, but saw appellant enter his house and the back door close behind him. 

Appellant testified that he went upstairs and found Belinda’s body in the closet of the master bathroom.  It is undisputed that Belinda was killed by a shotgun blast to the back of her head.  At 5:38 p.m., appellant called 911.  The 911 dispatcher instructed appellant to perform CPR on Belinda, but he responded, “I can’t.  Her head is just gone.”

While Michael was still holding the back gate to prevent Shaka from escaping, law-enforcement personnel began arriving at the Temple home.  Appellant exited his house through the back door and announced that Belinda was dead.  He then placed Shaka in the garage. 

More law-enforcement personnel arrived, and crime-scene investigators began processing the scene.  Appellant was placed in the back of a patrol car.  Kenneth and Maureen later arrived at the scene.  That night, appellant and his parents were questioned at a local substation by detectives with the Harris County Sheriff’s Office.  Appellant gave a written statement regarding his and Belinda’s activities that day.  Detective Charles Leithner questioned appellant about several apparent inconsistencies in his statement.  Appellant and his parents were informed that appellant was a suspect in Belinda’s murder.  Early the next morning, appellant left the substation and went to his parents’ home.  Appellant and E.T. resided with appellant’s parents until the summer of 2001, when he remarried.

In 2005, appellant was indicted for Belinda’s murder.[1]  In November 2007, a jury found appellant guilty as charged in the indictment and assessed punishment at life imprisonment.  The trial court denied appellant’s timely filed motion for new trial.

II.   Sufficiency of the Evidence

In his first and second issues, appellant argues the evidence is legally and factually insufficient to support his conviction.  While this appeal was pending, five judges on the Texas Court of Criminal Appeals held that only one standard should be used to evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt: legal sufficiency.  See Brooks v. State, --- S.W.3d ---, 2010 WL 3894613, at *1, *11 (Tex. Crim. App. Oct. 6, 2010) (plurality op.); id. at *22 (Cochran, J., concurring).  Accordingly, we will apply the legal-sufficiency standard when addressing appellant’s legal-sufficiency and factual-sufficiency arguments.  See Pomier v. State, --- S.W.3d ---, No. 14-09-00247-CR, 2010 WL 4132209, at *2 (Tex. App.—Houston [14th Dist.] Oct. 21, 2010, no pet. h.) (applying single standard of review required by Brooks).

A.   Applicable Law and Standard of Review

A person commits murder if he intentionally or knowingly causes the death of another person or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of another.  Tex. Penal Code Ann. § 19.02(b)(1), (2) (West 2003).  A person acts intentionally with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.  Id. § 6.03(a) (West 2003).  A person acts knowingly with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.  Id. § 6.03(b).  A person also acts knowingly if he is aware his conduct is reasonably certain to cause the result.  Id.

When reviewing sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Brooks, 2010 WL 3894613, at *5 (plurality opinion).  Following the admonitions of the Court of Criminal Appeals in Brooks, this court may not sit as a thirteenth juror and substitute its judgment for that of the fact finder by reevaluating the weight and credibility of the evidence.  Id. at *10, 13; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (expressing the jury may choose to believe or disbelieve any portion of the testimony).  We defer to the fact finder’s resolution of conflicting evidence unless the resolution is not rational.  See Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007).  Our duty as a reviewing court is to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 

Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  The Court of Criminal Appeals has affirmed murder convictions based solely on inferences raised by circumstantial evidence.  See, e.g., Clayton, 235 S.W.3d at 778–82; Guevara v. State, 152 S.W.3d 45, 49–52 (Tex. Crim. App. 2004); King v. State, 29 S.W.3d 556, 564–65 (Tex. Crim. App. 2000).  An inference is a conclusion reached by considering other facts and deducing a logical consequence from them.  Hooper, 214 S.W.3d at 16.  Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented.  Id.  A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.  Id.   Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction.  Id. at 13.

B.   Analysis

It is undisputed that sometime after 3:30 p.m. on January 11, 2009, Belinda was shot in the back of her head at close range by a 12-gauge shotgun loaded with double-ought buckshot that was likely privately reloaded.  This evidence inarguably supports a finding that someone intentionally and knowingly caused Belinda’s death.  We must examine the record to determine whether the evidence, viewed in the light most favorable to the verdict, is legally and factually sufficient to support a finding that appellant was the killer.

Appellant argues that the State’s case against him was premised solely on evidence of motive and opportunity and not on evidence actually supporting the elements of murder.  He correctly notes that motive is not an element of any crime.  See Russo v. State, 228 S.W.3d 779, 794 (Tex. App.—Austin 2007, pet. ref’d).  However, evidence of motive is generally admissible because it is relevant as a circumstance tending to prove guilt.  See id.; see also Clayton, 235 S.W.3d at 778–81; Guevara, 152 S.W.3d at 50; Harris v. State, 727 S.W.2d 537, 542 (Tex. Crim. App. 1987).

A substantial portion of the State’s case-in-chief consisted of the prosecutors’ attempt to establish that appellant was a controlling and emotionally abusive husband who was involved in an extra-marital affair and, thus, had a motive for killing Belinda.  As noted above, appellant was a football coach and teacher at Alief Hastings.  He and Belinda were friends with fellow Alief Hastings football coach Quinton Harlan and his wife, Tammy.  In the Fall of 1998, Alief Hastings coaches and teachers met every week for a “happy hour.”  Appellant testified that he attended four or five happy hours.  Quinton testified that he did not attend many of the happy hours and that appellant would chide him when he did not attend.  Quinton also testified that when he and appellant did socialize, appellant would think of stories for Quinton to tell his wife regarding his whereabouts.  According to Quinton, appellant said he was in control of his house, and told Quinton that he needed “to take control of [his] house and control of [his] wife.”  On cross-examination, Quinton explained that appellant was not joking when he told Quinton to take control of his marriage.  Quinton also testified that appellant could be volatile, had a controlling personality, and was meticulous in his planning. 

In 1998, appellant attended a high school reunion.  According to Quinton, appellant told him that he met a former girlfriend at the reunion and “[t]hey were on the couch and they kissed.  And I asked him if he had sex with her and he said, [‘]No, everything but that.[’]”  Tammy testified that Belinda was uncharacteristically submissive when she was in appellant’s presence.  Tammy and Quinton testified that appellant called Belinda “fat” in front of them.  Tammy explained that appellant made derogatory statements about the manner in which Belinda raised E.T. and kept the house and also called Belinda’s family “crazy, white trash, fat” and would say “he didn’t ever want her or [E.T.] around them.”  Additionally, Brenda Lucas, Belinda’s twin sister, testified that, from her perspective, appellant was controlling.  She also expressed that during her last visit to the Temple home, appellant made fun of Belinda’s “big butt.”  This evidence supports a logical inference that appellant did not respect Belinda.

At the beginning of the 1998-1999 school year, appellant and Quinton met Heather Scott, who was teaching English at Alief Hastings.  Both men began a flirtatious relationship with Heather and occasionally saw her after school.  Heather knew that appellant and Quinton were married.  Appellant testified that on two or three occasions, he drove Heather home from a happy hour and kissed her goodnight.  Appellant testified that he and Heather had sex twice in the Fall of 1998.  Heather’s roommate, Tara Hall, testified that appellant was affectionate and polite toward Heather and “seemed to really care about her.”  Further, appellant bought Heather a gold necklace for Christmas in 1999.  Quinton and Heather testified that they kissed each other but did not have sex. 

Quinton testified that, in November 1998, appellant invited Quinton to appellant’s house.  When Quinton arrived, appellant entered Quinton’s truck and they drove around the neighborhood.  According to Quinton, he and appellant discussed their intentions with Heather.  Appellant asked Quinton if he would leave his wife for Heather, to which Quinton responded, “No.”  When asked the same question, appellant responded, “I don’t know.”

In 1998, Heather invited appellant to a New Year’s Eve party at her townhouse.  Appellant attended the party and spent two nights with Heather, returning home January 2, 1999.  Heather testified that she and appellant had sex on January 1; appellant testified he does not remember having sex that day.  As an alibi, appellant told Belinda he was hunting. 

Heather initially told police investigators that, on January 5, 1999, she informed appellant she did not want their “relationship to continue the way it had been.”  In her second police statement, Heather stated that, on January 8, 1999, appellant told her, “I have totally fallen in love with you.”  Furthermore, before a grand jury in 1999, Heather testified that appellant told her he was falling in love with her, and she replied, “I feel the same way . . . .”  At trial, Heather testified that the police interviewers were extremely abrasive and coerced her to add this information to her second statement and phrased it in their own words.  She explained that when appellant told her that he loved her, it was playfully and “not an I-love-you-ah-ha-big moment.”  Appellant testified that he never told Heather he loved her.  Detective Tracy Shipley drafted Heather’s second police statement.  Detective Shipley agreed that Heather did not want to sign the statement because it included that appellant had stated he loved her, but that she “eventually got [Heather] to sign it.”  However, Detective Shipley denied that Heather signed “something she didn’t want to sign.”  Additionally, Heather testified that for appellant to use the phrase “I love you” would be significant.

Accordingly, viewing the foregoing in the light most favorable to the verdict, appellant was involved in a sexual relationship with Heather, was unsure if he was willing to leave Belinda for Heather, and told Heather he loved her less than a week before Belinda’s death.  This evidence, coupled with evidence regarding appellant’s treatment of Belinda, supports reasonable inferences that appellant was unhappy with his marriage and had a motive for killing Belinda.  However, “although evidence of an affair during marriage may provide a motive, an affair alone is not enough to connect that person to his or her spouse’s death.”  Smith v. State, 286 S.W.3d 412, 427 (Tex. App.—Corpus Christi 2008, pet. struck). 

There was also evidence supporting an inference that appellant could have been present when Belinda was murdered.  After appellant arrived home to care for E.T., Belinda returned to school for a meeting that lasted until between 3:20 p.m. and 3:30 p.m.  Phone records indicate that Belinda called home at 3:32 p.m.  Appellant’s father, Kenneth, testified that Belinda arrived at his home to retrieve soup Maureen had prepared and left at around 3:45 p.m.  The drive from appellant’s parents’ home to the Temples’ home ordinarily took around fifteen minutes.  In his statement to police, appellant indicated that Belinda arrived home at 3:45 p.m.  At trial, he testified that she arrived home closer to 4:00 p.m.  Several witnesses testified that Belinda was often tired and had swollen feet due to her pregnancy.  Appellant testified, “I told Belinda to rest, I would take [E.T.] to the park and we would be back in time for supper.”  Belinda had planned to meet with her girlfriends later that evening to play Bunco. 

Appellant testified he and E.T. drove his truck to nearby Cimarron Park; however, no evidence corroborates this testimony.  According to appellant, within minutes of arriving at Cimarron Park, he and E.T. decided to drive to Peckham Park, located north of I-10.  Appellant testified that he and E.T. then stopped at a Brookshire Brothers north of I-10 to purchase drinks.  At 4:32 p.m., appellant and E.T. were videotaped entering Brookshire Brothers.  Hence, at least thirty minutes elapsed between the time Belinda arrived home and the time appellant entered Brookshire Brothers.  A detective with the Harris County Sheriff’s Office testified that, in 1999, it was a twelve-minute drive from appellant’s home to Brookshire Brothers.  If the jury disbelieved that appellant took E.T. to Cimarron Park, there were eighteen unaccounted-for minutes between when Belinda arrived home and appellant entered Brookshire Brothers.  According to the medical examiner and appellant’s medical expert, there were too many unknown variables to determine the time of Belinda’s death.  The only certainty is that she was killed sometime after her school meeting ended between 3:20 and 3:30 p.m.

Notably, appellant presented evidence that a gun was fired in his neighborhood at a time when he was videotaped at Brookshire Brothers.   In January 1999, Alexander Roberts had three sons in elementary school.  The Roberts family shared a back fence with appellant.  On January 11, the Roberts brothers arrived home from school at around 3:57 p.m.  According to the eldest brother, fifteen minutes after arriving home, they began watching a movie.  Twenty–six minutes into the movie, the brothers heard what they believed was a gunshot.  According to their testimony, the time of the gunshot was around 4:38 p.m.—the same time that appellant was videotaped leaving Brookshire Brothers.  Although the Roberts brothers’ testimony supported appellant’s defense, the jury was free to disbelieve it and rationally could have done so because the Roberts brothers were children and no other witness testified that a gunshot was heard that day.  Accordingly, viewing the evidence in the light most favorable to the verdict, we conclude the evidence supports a reasonable inference that appellant could have been in his home when Belinda was murdered.

Evidence impeaching appellant’s stated purpose for driving north of I-10 on the afternoon of Belinda’s death was also a circumstance of his guilt.  Appellant maintained that, after leaving Brookshire Brothers, he drove directly to Home Depot to look at shelving for the baby’s room.  Appellant testified he drove eastward toward Home Depot.  Notwithstanding appellant’s testimony that traffic was congested that afternoon, several witnesses testified that the drive time from Brookshire Brothers to Home Depot was ten to fifteen minutes.  Appellant and E.T. were videotaped leaving Brookshire Brothers at 4:38 and videotaped entering Home Depot at 5:14 p.m.  Thus, there was a thirty-six-minute gap between when appellant left the Brookshire Brothers and entered Home Depot.  More significantly, Bernard Bindeman testified that between 4:50 and 5:00 p.m., he was in his truck stopped at the intersection of Morton Ranch Road (running east and west) and Katy Hockley Cutoff (running north and south) when he saw appellant in a blue pickup truck heading south on Katy Hockley Cutoff.  Appellant was heading from a location near to where his parents and other relatives lived and where he was raised.  This evidence, viewed in the light most favorable to the verdict, supports a reasonable inference that appellant lied to police concerning his purpose for driving north of I-10.  Lying to police is a circumstance of guilt.  See Guevara, 152 S.W.3d at 50.

There was also evidence supporting an inference that appellant lied when he said he placed E.T. in a car seat before they drove north of I-10.  Detective Holtke testified there was no child seat in appellant’s truck when he processed it.  Photographs taken of appellant’s truck did not show a car seat.  When asked at trial where the car seat was, appellant testified, “I have no idea.”  Appellant testified he always placed E.T. in his car seat when they drove together, and Quinton and Tammy testified that they never saw appellant put E.T. in his truck without using a car seat.  Evidence that appellant always used a car seat, but did not on the day of Belinda’s murder, supports a reasonable inference that appellant was in a hurry to drive away from his house.

Another circumstance of guilt was testimony and physical evidence that appellant’s house was “staged” to give the impression a burglary occurred.  Appellant testified that he noticed the window on his back door had been broken when he returned from Home Depot.  The television in appellant’s living room was lying sideways on the ground, and a buffet in the dining room had several drawers open.  Further, appellant’s mother later determined that several pieces of Belinda’s jewelry were missing, including two necklaces, two watches, and three sets of earrings.  Accordingly, appellant argued his house was burglarized sometime while he was at the park and stores.  However, Sergeant Dean Holtke, who was an investigator with the Harris County Sheriff’s Office at the time of the murder, testified that the burglary appeared to have been staged.

The back door of appellant’s house opened to a small foyer.  Directly beyond the foyer was a couch, and to the left of the foyer was a living room.  A wooden hutch was against the wall directly to the left of the door.  Officers found considerably more glass shards in the living room than in the foyer area and found none on the couch.  Sergeant Holtke testified this finding was consistent with the door being open when the glass was broken.  Detectives also did not see damage to the hutch or dents on the inside of the back door, which tended to discredit appellant’s theory that glass was thrown into the living room when the back door slammed into the hutch.[2]  Sergeant Holtke opined that the television was dragged off its stand and placed carefully on the ground because the stand had fresh scrapes and the television was still plugged into the wall.  The contents of the open drawers were undisturbed, and appellant’s jewelry was found on a tray in the master bedroom in plain view.  Appellant agreed that, to the best of his knowledge, the burglar “didn’t take one single thing that belonged to [him].”  Additionally, the jewelry Belinda was wearing was not taken.  Finally, the location and timing of the alleged burglary were suspicious: the Temples lived in a corner home, and the burglary allegedly occurred during the day at a time when persons typically return home from work and school.  See Routier v. State, 273 S.W.3d 241, 258 (Tex. Crim. App. 2008) (including in list of factors supporting “staging” that defendant’s “house would not have been an inviting target for a home invader”).  Accordingly, viewing the evidence in the light most favorable to the verdict, the jury could have concluded that the burglary was staged and, thus, believed that Belinda’s missing jewelry was not the result of a burglary.[3]

Next, evidence of appellant’s behavior following Belinda’s murder, when viewed in the light most favorable to the verdict, supports an inference of guilt.  See Guevara, 152 S.W.3d at 50; Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999) (relying on defendant’s suspicious behavior following murder as a circumstance of guilt).  First, law-enforcement personnel commented on appellant’s lack of emotion on the day of the murder.  Deputy Virginia Kathleen Johnson and her partner were the first law-enforcement personnel to arrive at appellant’s house.  According to Deputy Johnson, while she and her partner were standing outside the gate to appellant’s backyard, appellant exited through the back door of his house and said calmly, “My wife has been shot.  She’s dead.”  Deputy Johnson further testified that appellant did not appear to be upset and she did not see him cry.  Detective Charles Leithner testified that, when he interviewed appellant later that evening, appellant was “shaking and bouncing,” did not look the detective in the eyes, never cried, and was hesitant in his answers.  Additionally, Quinton testified that, a few weeks after Belinda’s funeral, he asked appellant if he would like to find the murderer, to which appellant responded, “[W]hat difference is it going to make.  It’s not going to bring her back.”  

Second, appellant resumed his relationship with Heather shortly after Belinda’s murder.  On January 13, appellant’s parents hosted a visitation at their house.  Quinton and Tammy attended the reception.  Quinton testified that, when he and appellant were alone, the first thing appellant asked was, “How’s Heather?” and “Is she doing okay?  How is she holding up?  Has she said anything?”  Quinton testified that appellant later called him and apologized that he and Heather had to “go through this” and asked him to tell Heather he was sorry.  Heather testified she received flowers from appellant on Valentine’s Day—a month after Belinda’s murder.  Tara also testified that appellant visited Heather several times that spring and he and Heather planted flowers on the patio.  Appellant’s neighbor, Natalie Scott, testified that she saw appellant at a steakhouse in September 1999 and he had his arm around a “thin, blonde-haired woman . . . in a red dress.”  Natalie explained that she attempted to talk to appellant, but he looked away.  Kenneth testified he learned six months after Belinda’s death that appellant was dating Heather.  Kevin and his wife testified that they were very upset when they learned appellant was dating Heather and did not speak to him for several months.  Appellant and Heather married in June 2001.

Third, appellant confronted Quinton and Tammy regarding their statements to the police and to a grand jury in April 1999.  After testifying before the grand jury, they received a telephone call from appellant.  When Tammy answered, appellant asked her what she had told the grand jury.  Tammy responded, “We’re not supposed to talk about this.”  When appellant posed the same question to Quinton, he responded, “I told the truth.”  Later, appellant asked Quinton what he was telling the grand jury and the police.  When Quinton answered, “I’m just telling them the truth,” appellant replied, “You know, you need to keep your mouth shut.”  Afterwards, Quinton was driving on I-10 when he noticed appellant following him.  When they came to a stop, appellant exited his truck, approached Quinton, and asked, “What are you saying to the police?”  Again, Quinton responded, “I’m just telling the truth,” and appellant ordered, “You keep your damn mouth shut.”  Similarly, appellant followed Tammy one evening when she was driving to her place of business.  When Tammy noticed appellant, she sped to the business, grabbed her gun, and ran inside.  Appellant pulled in front of the business but did not stop.  These three examples of appellant’s behavior following Belinda’s death are circumstances indicating guilt.

Appellant argues that no evidence supports a finding that he ever owned a 12-gauge shotgun, owned a reloader or reloaded double-ought shotgun shells, or handled a weapon on the day of the shooting.  At trial, appellant and his family testified regarding the shotguns they owned during the 1980s.  They were adamant Darren and Kevin owned 12-gauge shotguns but appellant owned only a 20-gauge shotgun.  Kevin testified that in 1983 or 1984, the barrel on appellant’s 20-gauge became clogged and split when it was fired, injuring appellant.  Kevin testified that he later sawed off the split barrel and eventually discarded the gun.

Clint Stockdick was Kevin’s best friend during the 1980s.  He testified that he began hunting with the Temples in 1984 or 1985, frequently hunted with Kevin, and hunted with appellant “[j]ust a couple of times.”  Clint testified that he never saw the Temples use 20-gauge shells, both Kevin and appellant used 12-gauge shotguns, Clint never saw either of them shoot a 20-gauge shotgun, and Kevin showed Clint a 12-gauge shotgun with a split barrel.  Additionally, Clint testified that the gun he saw Kevin use most frequently was a Mossberg 12-gauge shotgun; Kevin, however, testified that the Temples never owned a Mossberg shotgun.  Although this evidence did not tie appellant to a specific murder weapon, when viewed in the light most favorable to the verdict, it supported an inference appellant and his family were concealing information concerning their shotguns.  Concealing incriminating evidence is a circumstance of guilt.  See, e.g., Wells v. State, 578 S.W.2d 118, 119 (Tex. Crim. App. 1979); Tezino v. State, 765 S.W.2d 482, 485 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d).  Furthermore, although no evidence supported a finding that any member of the Temple family used double-ought buckshot or reloaded his own shotgun shells, the State need not connect appellant to a specific murder weapon or ammunition; a conviction may be based entirely on circumstantial evidence.  See Hooper, 214 S.W.3d at 13.

            In sum, viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally and factually sufficient to support beyond a reasonable doubt that appellant murdered Belinda.  See Brooks, 2010 WL 3894613, at *5 (plurality op.).  The evidence supports a finding that appellant had motive and opportunity to murder Belinda, lied about the reason he was driving north of I-10 on the afternoon of the murder and about placing E.T. in a car seat, had a questionable demeanor immediately following Belinda’s death, quickly resumed his relationship with Heather following Belinda’s death, confronted Quinton and Tammy regarding their statements to police and the grand jury, appellant’s house was “staged” to appear as if a burglary had occurred, and appellant and his family were untruthful regarding their shotguns.  “While each piece of evidence lacked strength in isolation, the consistency of the evidence and the reasonable inferences drawn therefrom, provide the girders to strengthen the evidence and support a rational jury’s finding the elements beyond a reasonable doubt.”  Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).  Accordingly, we overrule appellant’s first and second issues.

III.   Alleged Brady Violation

In his third issue, appellant contends his due-process rights under Brady v. Maryland, 373 U.S. 83 (1963), were violated because the State did not disclose exculpatory evidence regarding his next-door neighbor, teenager R.J.S., until after trial had begun.  Additionally, in issue four, appellant contends the trial court erred by denying his motion for continuance in which he sought a reasonable time to utilize the untimely disclosed Brady material.

A Brady complaint must be made as soon as its grounds become apparent or should be apparent.  See Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999); see also Tex. R. App. P. 33.1(a)(1).

Appellant asserted that he first learned of the undisclosed evidence regarding R.J.S. on October 22, 2007, a week into trial, when Detective Leithner testified and appellant was first allowed to review Detective Leithner’s police report.  However, appellant waited twenty-one days to file a motion for continuance—after the State rested and appellant had presented evidence for four days.  We hold that appellant did not complain regarding the State’s untimely disclosure as soon as grounds for an objection or complaint were apparent.  Consequently, appellant did not preserve his Brady complaint.  See Wilson, 7 S.W.3d at 146.

Nevertheless, even assuming appellant preserved his Brady complaint, we conclude he has not established reversible error.  Under Brady, a defendant must show (1) the State failed to disclose evidence, regardless of the prosecution’s good or bad faith, (2) the withheld evidence is favorable to the defendant, and (3) the evidence is material, i.e., there is a reasonable probability had the evidence been disclosed, the outcome of the trial would have been different.  Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002).  The defendant bears the burden of showing that, in light of all the evidence, it is reasonably probable the outcome of the trial would have been different had the prosecutor made a timely disclosure.  Id.  The mere possibility that an item of undisclosed information might have helped the defense or affected the outcome of the trial does not establish materiality in the constitutional sense.  Id. 

In January 1999, R.J.S. was a high school student who lived with his parents next door to the Temples.  In his motion for continuance, appellant complained that the State failed to timely disclose the following facts: (1) R.J.S. lied about skipping school on the day Belinda was murdered; (2) R.J.S. gave three conflicting statements to the police and failed three polygraphs; (3) R.J.S. and his friends were in appellant’s neighborhood around the time of the murder, had smoked marijuana that afternoon, and were looking for more marijuana; (4) R.J.S. saw appellant driving in the neighborhood sometime before 4:30; and (5) a 12-gauge shotgun containing a spent double-ought buckshot shell and belonging to R.J.S.’s father was found after the murder.  With the exception of R.J.S.’s polygraph failures, the remainder of these facts were presented to the jury.  During redirect-examination, defense counsel asked appellant whether he believed R.J.S. could have been involved in Belinda’s murder.  Through a methodical series of questions emphasizing the above facts, appellant answered affirmatively.  The State called R.J.S. as its sole rebuttal witness, and appellant thoroughly cross-examined him regarding these facts.  Further, during closing argument, appellant focused on R.J.S.’s alleged participation.  Therefore, the jury considered the aforementioned untimely disclosed facts.  Considering the heavy emphasis he placed on R.J.S. during trial, appellant has not established that there is a reasonable probability the outcome of the trial would have been different had the State disclosed these facts earlier.  See Shpikula v. State, 68 S.W.3d 212, 220 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“If the defendant received the material in time to put it to effective use at trial, his conviction should not be reversed simply because it was not disclosed as early as it might or should have been.”).  Accordingly, we overrule appellant’s third and fourth issues.

IV.   Evidentiary and Jury-Argument Rulings

            Appellant presents seventy-five issues in which he complains about the trial court’s rulings and the prosecutors’ alleged misconduct during the evidentiary and jury-argument phases of trial.  We first determine whether the court’s rulings were erroneous.  We then determine the cumulative effect of any errors on the jury’s verdict.  We begin with those issues pertaining to admission of evidence.

A.   Evidentiary Rulings

We review a trial court’s decision to admit evidence under an abuse-of-discretion standard.  Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006).  Under this standard, if the trial court’s ruling was within the zone of reasonable disagreement, we will not disturb the ruling.  Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

To preserve error for appellate review, a defendant must timely object to the error during trial.  See Tex. R. App. P. 33.1(a).  If the objection is overruled, the defendant has preserved error.  When the objection is sustained, and the defendant desires to preserve argument that the error incurably infected his right to a fair trial, he should request an instruction to disregard and move for a mistrial.  See Jackson v. State, 287 S.W.3d 346, 353–54 (Tex. App.—Houston [14th Dist.] 2009, no pet.).  Failure to request additional relief after an objection is sustained preserves nothing for review.  See Caron v. State, 162 S.W.3d 614, 617 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

Several issues pertain to the prosecutor’s cross-examination of appellant.  The parameters of cross-examination are within the trial court’s discretion, and its decision is not subject to reversal on appeal absent a clear abuse of discretion.  Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993).  A defendant who exercises his right to testify is subject to the same rules governing examination and cross-examination as any other witness.  Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992).  The scope of cross-examination is wide open, and once the defendant testifies at trial, he opens himself up to questioning by the prosecutor on any subject matter that is relevant.  Caron, 162 S.W.3d at 617.

1.   Questions Regarding Witness Veracity

            In issues five, seven, nine, eleven, and thirteen, appellant contends the trial court erred by allowing the prosecutor to question appellant regarding the veracity of other witnesses’ testimony.[4]  We first describe the testimony about which appellant was asked to comment.

Tammy testified she heard appellant call Belinda “fat,” criticize her clothing, house work, and how she raised E.T, and express that her family was “crazy, white trash, fat, and . . . he didn’t ever want her or [E.T.] around them.”  Quinton testified he heard appellant call Belinda fat and that appellant told him Belinda used to be an aerobics instructor and “looked good” but “[n]ow she’s fat.”  Tammy also testified she witnessed between twenty and thirty times Belinda’s routine when returning home and that Belinda would remove her shoes when she arrived home.

Brenda Lucas visited the Temples from December 27, 1998, until January 1, 1999.  Brenda testified that appellant “was making fun of Belinda’s big butt” during the first evening of the visit.  On December 30, Brenda and Belinda celebrated their thirtieth birthday.  Brenda testified she did not see appellant give Belinda a birthday gift.  Brenda further testified that, during her visits to the Temples’ home, she observed Belinda remove her shoes when she arrived home. 

Appellant vehemently denied ever calling Belinda “fat” or making derogatory statements about her family.  Appellant explained that he and Belinda jokingly referred to her “butt,” but “for no stretch of the imagination would I ever seriously call my wife fat ever, without a doubt.”  He testified that he gave Belinda perfume and pajamas for her birthday, as well as gifts for Christmas and their anniversary.  Finally, he testified that Belinda did not take her shoes off when she arrived home.

On the first day of appellant’s cross-examination, the prosecutor asked appellant whether Tammy “just made all that up” regarding his ridiculing Belinda’s weight.  The trial court overruled appellant’s objection to the form of the question, and appellant answered, “I know she made it up.”  Cross-examination continued the next day, and the following exchanges occurred:

[Prosecutor:]   So did Brenda try to mislead this jury when she told them that she never saw you give her sister a birthday present?

[Defense Counsel:]   Object to the form of the question.

[Court:]   That’s sustained.

[Prosecutor:]   Did Brenda lie?

[Defense Counsel:]   And I object to the form of the question.

[Court:]   That’s overruled.

[Defense Counsel:]   It’s asking one witness to comment on . . . the truth of the testimony of another.

[Prosecutor:]   Mr. Temple, did Brenda lie?

[Appellant:]   Yes ma’am, she did.

. . . .

[Prosecutor:]   Well, do you recall Quinton Harlan telling the truth and admitting to this jury that he went over to Heather’s house and kissed her? 

[Defense Counsel:]   I object to the form of the question, telling the truth and admitting to something.

[Prosecutor:]   Do you remember Quinton Harlan telling this jury that he went over to Heather’s house and kissed her?

[Appellant:]   I remember that, and Quinton told me that himself.  I knew that.

[Prosecutor:]   And so he told the truth?

[Defense Counsel:]   I object to the form of the question.

[Appellant:]   On that statement, yes, ma’am.

[Prosecutor:]   Are you saying he lied on other ones, Mr. Temple?

[Defense Counsel:]  I object to asking the witness to use the term “lied.”  There are many reasons for incorrect testimony.

[Prosecutor:]   Are you saying that Quinton Harlan lied on anything, Mr. Temple?

[Appellant:]   If you could ask me single-by-single, I could tell you which ones are truth and which ones are not.  Him kissing Heather, I know for a fact that that happened and he told me about it himself.

[Prosecutor:]   And the things that Tammy Harlan told this jury the names that you used to call your wife, making fun of her weight, making fun of how she looked, those things were the truth, weren’t they?

[Appellant:]   They were not.  I answered that question yesterday.

[Prosecutor:]   So Tammy Harlan lied about that?

[Defense counsel:]   I object to terming it a lie.

[Appellant:]   Tammy and Quinton both lied several times.

[Prosecutor:]   So we’ve got Tammy lying, Quinton lying, Brenda Lucas lying, right?

[Appellant:]   I would agree with that, yes.

[Prosecutor:]   And you had a wife who liked to take her shoes off the minute she hit the door anyway, didn’t you?

[Appellant:]   I would not agree with that.

[Prosecutor:]   So when Brenda Lucas and Tammy Harlan said that, they lied about that, too?

[Defense counsel:]   Excuse me.  I object to the form of the question.

[Court:]   And that’s overruled.

[Appellant:]   I don’t know if that’s what they think they saw . . . .  I’m not calling them a liar about that.  I know and spent every day with my wife.  I know that when she came in the door, she would not flip her shoes off.

It is well-settled that an attorney may not impeach one witness’s testimony with the testimony of other witnesses.  See Lopez v. State, 200 S.W.3d 246, 257 (Tex. App.—Houston [14 Dist.] 2006, pet. ref’d) (citing Ex parte McFarland, 163 S.W.3d 743, 755 n.37 (Tex. Crim. App. 2005)).  Thus, we hold that the trial court erred by overruling appellant’s objection to the prosecutor’s veracity questions and will consider this error in our harm analysis.

2.   Appellant’s Cross-Examination

            In issues fifteen through twenty-four, appellant contends the State asked him irrelevant and inflammatory questions in an attempt to demonize him in front of the jury.  Appellant argues that these questions abrogated his right to a fair trial.

            During cross-examination, the prosecutor asked appellant whether the reason the Harlans “stopped being you all’s best friends was because Tammy Harlan got tired of the way you were treating Belinda?”  The prosecutor also asked appellant how the second night of his high school reunion could have been a “wonderful night” when Tammy “had to tell Belinda afterwards ‘It’s okay, Belinda.  You’re a beautiful girl.  Don’t let all that bother you.’”  The trial court sustained appellant’s objection to these questions, but appellant did not request an instruction to disregard or move for a mistrial.  Thus, the trial court committed no error because it granted appellant all the relief he requested.  See Young, 137 S.W.3d at 69.  We overrule appellant’s fifteenth and sixteenth issues.

In issues seventeen and eighteen, appellant complains about the prosecutor’s questions regarding his unborn daughter.  On direct-examination, appellant testified that he loved his unborn daughter and “wanted her more than anything.”  On cross-examination, the prosecutor asked appellant whether he and Belinda argued regarding his not wanting a daughter.

[Prosecutor:]   And you all had many, many arguments about the fact that you didn’t want a baby daughter, didn’t you, Mr. Temple?

[Defense counsel:]   That’s a lie and I object to it and it’s improper.  There’s no evidence to support that.

[Prosecutor:]   Didn’t you have arguments about that, Mr. Temple?

[Appellant:]   Absolutely not.

[Prosecutor:]   Didn’t you argue about the fact that you were not excited about the idea of a baby daughter when Brenda Lucas was visiting at your house?

[Defense counsel:]   This is improper cross-examination, injecting facts.

[Appellant:]   I never argued with my wife about not wanting my daughter.  It was planned from the very beginning and the first day.

Appellant did not request that the jury be instructed to disregard the prosecutor’s initial question after the trial court sustained his objection and did not object when the prosecutor ignored the court’s ruling.  However, appellant preserved his complaint regarding the prosecutor’s question concerning appellant’s argument with Belinda when Brenda was visiting.

“[T]he prosecution cannot attempt to establish a theory of appellant’s action by questions alone, with no basis of fact.”  Hartman v. State, 507 S.W.2d 553, 556 (Tex. Crim. App. 1974); see also Keener v. State, 164 Tex. Crim. 439, 442, 300 S.W.2d 85, 87 (1957) (“[U]nless the questions are propounded in good faith, the attorneys for the State should refrain from attempting to establish their theory by [questions] alone.”).  Prior to appellant’s testimony, no evidence had been presented indicating that appellant did not want his daughter.  Nevertheless, the trial court had informed the parties: “I’m going to assume both of you lawyers are asking your questions in good faith until someone tells me otherwise.”  During the hearing on appellant’s motion for new trial, defense counsel questioned the prosecutor regarding her basis for these questions.[5]  The prosecutor testified that she received information from members of the Temple family and Belinda’s girlfriends that the Temples argued about their unborn daughter; the prosecutor was not asked whether Brenda was included in this group.  Consequently, we cannot discern from the record whether the prosecutor asked the subject question without a basis in fact.  See Hartman, 507 S.W.2d at 556; Keener, 300 S.W.2d at 87.[6]  We also note that appellant opened the door by testifying on direct-examination that he wanted his daughter “more than anything.”  Accordingly, we overrule appellant’s seventeenth and eighteenth issues.

In issue twenty,[7] appellant complains about the following question:

[Prosecutor:]   [Y]ou didn’t give a flip about the Lucases, did you?

[Defense counsel:]   I object to the form of the question and injecting unsworn testimony from the prosecutor.

After the objection was overruled, appellant did not answer, and the prosecutor posed a different question.  There was testimony that appellant called Belinda’s family (the Lucases) “crazy, white trash, fat, and . . . he didn’t ever want her or [E.T.] around them.”  Thus, there was an evidentiary basis for this question.  Furthermore, whether the form of this question was actually argumentative may have turned on the prosecutor’s tone and demeanor when she asked it.  Nevertheless, we will assume arguendo that the question was argumentative and consider its effects in our harm analysis.

In his twentieth and twenty-first issues, appellant complains that the following exchange abrogated his right to a fair trial, necessitating a mistrial:

[Prosecutor:]   Who have you ever told that Shaka was in the garage and that’s how the burglar got past him?

[Defense counsel:]   Is she asking what he said to me.  I want to know what she’s trying to --

[Prosecutor:]   Mr. Temple, you just said you have.  Well, who have you told?

[Appellant:]   I’ve told [Defense counsel].  It was not something that was dreamed up.

[Prosecutor:]   No, it’s just lied about.

[Defense counsel:]   Excuse me.  Now that’s -- Judge, you’ve got to stop that kind of stuff.

[Court:]   Members of the jury, remember your admonitions.  Step to your jury room for a moment, please.

(Outside presence of the jury)

[Court:]   All right.  Everyone be seated.  [Prosecutor], that last question was uncalled for.  We cannot have that type of conduct.

[Prosecutor:]   Yes, sir.  Could you please instruct the witness to answer my questions.

[Court:]   I will do that also.

[Defense counsel:]   Now --

[Court:]   Now just a minute, [Defense counsel].  Mr. Temple, I want you to listen to the questions that each lawyer asks you, answer the question, answer it directly.  Most of them can be answered yes or no.  You don’t volunteer any additional information, but listen to the questions and answer them.  Now, [Defense counsel].

[Defense counsel:]  Judge, that last question by [Prosecutor] cannot be attributed to lack of experience, it can’t be attributed to ignorance, it can’t be attributed to negligence.  She is one of the finest prosecutors in the state, and that was calculated, it’s improper, it goes beyond the record, it is highly inflammatory, and we object to it.

[Court:]   Well, your objection was sustained, and I will certainly admonish the jury that they can’t consider it in any way. 

[Defense counsel:]   Yes, sir. And I don’t think any admonishment -- with all due respect, I don’t think any admonishment can cure the harm.  What we have is a prosecutor, who holds the office of assistant district attorney, making a statement about a lie in front of this jury.  Now, the jury may put far more weight on that than it is due, far more than it deserves.  It deserves absolutely no weight at all. She can holler and scream in argument, but it is improper and clearly improper and she knows better to do that in a cross-examination; and, therefore, we move for a mistrial.

[Court:]   Okay.  And that’s denied, sir.

[Defense counsel:]   Do I need to do all that in front of the jury?

[Court:]   No. The record has you exactly -- your motion, and it can go up on appeal on that issue.  Bring me the jury and I will admonish them to totally disregard.

(Jury seated)

[Court:]   All right.  Everyone be seated.  Members of the jury, the last question by [the prosecutor] you will totally disregard and not consider it for any purpose whatsoever.

(emphasis added). 

Accordingly, the prosecutor accused appellant of being a liar, not indirectly through a question, but as a matter-of-fact assertion.  This action was clearly prosecutorial misconduct.  See Stein v. State, 492 S.W.2d 548, 551 (Tex. Crim. App. 1973) (explaining prosecutors should not make improper arguments or sidebar remarks because defendant should be convicted upon evidence presented, without attempts to inflame or prejudice the minds of the jurors).  The trial court sustained appellant’s objection and instructed the jury to disregard the comment, but denied appellant’s request for a mistrial.  We will consider in our harm analysis whether the court erred by denying mistrial. 

Appellant testified that, on January 13, 1999, he and his father and brothers convened a family meeting at appellant’s parents’ house, during which appellant informed his family that he had been unfaithful to Belinda.  In his twenty-third issue, appellant complains that the following questions were without factual basis:

 [Prosecutor:]   [W]as the real discussion in the family meeting about all those shotguns, Mr. Temple?

[Defense counsel:]   You know, that’s bad faith.  There’s no --

[Defense counsel:]   We object to it.  It’s injecting unsworn testimony from the prosecutor.

[Prosecutor:]   Judge, that’s a speaking objection.

[Prosecutor:]   We’ve got a Winchester, a Mossberg, a Savage and a Remington.  In your family meeting that you had with your brothers, with the Temple men, on January the 13th, did you all talk about those shotguns?

[Appellant:]   Absolutely not.  There was no reason to.

[Prosecutor:]   Did you all talk about the sawed-off shotgun?

[Appellant:]   There’s -- no.

Prior to these questions, nothing in the record reflected that the Temple men discussed shotguns at their January 13, 1999 meeting.  Instead, all evidence indicated the subject matter of the meeting concerned appellant’s unfaithfulness to Belinda.  However, appellant has not established that the questions were asked in bad faith without factual basis.  At the time the questions were posed, he did not request to take the prosecutor on voir dire.  Further, at the motion-for-new-trial hearing, the prosecutor was not asked if she had a factual basis for making this inquiry.  Hence, we cannot determine from the record whether the prosecutor asked the question in bad faith without a basis in fact.  See Keener, 300 S.W.2d at 87; Gailey, 671 S.W.2d at 124.  We overrule appellant’s twenty-third issue.

In issue twenty-four, appellant argues the trial court erred by denying his motion for mistrial after the prosecutor expressed that appellant’s entire family stopped speaking with him after the murder.  Kevin and Rebecca “Becky” Temple testified that there was a period following Belinda’s murder when they did not speak with appellant.  Later, the prosecutor posed the following question to appellant:

[Prosecutor:]   Why did your own family quit speaking to you?

[Defense counsel:]   Now, wait a minute.

[Prosecutor:]   You heard --

[Defense counsel:]   Please, Judge, please control her.

[Prosecutor:]   Judge--

[Court:]   Members of the jury, remember your admonitions.  Step to your jury room for a moment.

[Court:]   [Prosecutor], you’re going to have to refrain from continuing to ask legally objectionable questions.  You can ask that question, did you and your family stop speaking, and then go into the why, but you’re interjecting things into the case that just aren’t in evidence. 

[Prosecutor:]   Judge, Becky Temple testified that there came a time where she and her husband quit speaking to the defendant and Heather.  That’s in evidence.

[Court:]   Your question was the family.  If you want to talk about Becky Temple, you can do that, but your question said the family.

[Prosecutor:]   Yes, sir.

[Court:]   Bring me a jury.

[Defense counsel:]   I ask that the jury be instructed to disregard.

[Court:]   I will.

[Defense counsel:]   And because it was deliberate, we ask for a mistrial.

[Court:]   That’s denied.  Bring me a jury, please.

[Court:]:   Members of the jury, you will totally disregard the last question of the prosecutor and not consider it for any purpose whatsoever.

Thus, the trial court sustained appellant’s objection to the prosecutor’s overly broad reference to his entire family, instructed the jury to disregard the question, but denied appellant’s motion for mistrial.  We conclude the foregoing question was not so “clearly calculated to inflame the minds of the jury” that the instruction to disregard was futile.  Huffman v. State, 746 S.W.2d 212, 219 (Tex. Crim. App. 1988) (quoting Carter v. State, 614 S.W.2d 821, 824–25 (Tex. Crim. App. 1981)).  Although the prosecutor referred to matters outside the record when she asked appellant why his entire family, instead of just Kevin and Rebecca, stopped speaking to him following Belinda’s murder, the error was quickly remedied by the court’s instruction to disregard and we presume the jury followed the instruction.  See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).  Thus, we conclude the trial court did not abuse its discretion by denying appellant’s motion for mistrial.  See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).  We overrule appellant’s twenty-fourth issue.

3.   Hearsay-by-Inference Contentions

            We next consider issues sixty-eight through eighty, in which appellant contends the trial court erred by overruling his objections to certain “back-door” hearsay.[8]

“[W]here there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly.”  Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989).  Whether the disputed testimony violates the hearsay prohibition necessarily turns on how strongly the content of the out-of-court statement can be inferred from context.  Head v. State, 4 S.W.3d 258, 261–62 (Tex. Crim. App. 1999).

            In his sixty-ninth and seventy-first issues, appellant argues the trial court erred by allowing Detective Leithner to testify regarding statements made by Heather Scott.

[Prosecutor:]   When you were interviewing Heather Scott the day you took her first statement, did she have any other concerns about all of this that she voiced to you?  Yes or no?

[Defense counsel:]   Excuse me.  This calls for hearsay.

[Sgt. Leithner:]   Yes.

[Prosecutor:]   Did you try to reassure her?

[Prosecutor:]   What did you tell Heather Scott?

[Defense counsel:]   Well, that’s hearsay by implication.

[Sgt. Leithner:]   I told her that we were not going to disclose this information with her employers.

[Prosecutor:]   With who?

[Sgt. Leithner:]   Her employers.

[Prosecutor:]   At the school?

[Sgt. Leithner:]   Yes, ma’am.

[Prosecutor:]   Because she worked there?

[Sgt. Leithner:]   Because she worked at the same school that Coach Temple did.

Assuming the trial court erred by overruling appellant’s objection, we conclude that this testimony did not substantially affect the jury’s verdict; notwithstanding the accusations against appellant, the jury could have determined there were other obvious reasons why Heather would not want her employers to learn about her extra-marital relationship with appellant.  Thus, we overrule appellant’s sixty-ninth and seventy-first issues.

In his seventy-third issue, appellant complains about Tammy Harlan’s testimony:

[Prosecutor:]   Did you ever have discussions and conversations with Belinda about that difference or change [in her demeanor] you observed [when she was in the appellant’s presence]?

[Tammy Harlan:]   Yes.

[Prosecutor:]   Did you ever say anything to her about that?

[Tammy Harlan:]   Yes.

[Defense counsel:]   Again, I am going to object because this is obviously hearsay by implication.

[Prosecutor:]   You understand, because we have talked about this, you are not allowed to tell this jury anything Belinda ever said to you.  You understand that?

[Tammy Harlan:]   I do, yes, ma’am.

[Prosecutor:]   And you’re not going to try and slip that in in one of my questions or one of his, are you?

[Tammy Harlan:]   No, ma’am.

[Prosecutor:]   You understand the rules?

[Prosecutor:]   What did you say to Belinda in those discussions about the change in personality you saw in her from when she was with her husband versus when she was not?

[Defense counsel:]   And that necessarily implicates a response and we object to it.  It’s hearsay by implication. 

[Court:]  Overruled.

[Tammy Harlan:]   I would tell her to stand up to him and to tell him how she felt and don’t allow him to treat her that way.

The above exchange does not lead us to an inescapable conclusion that this question was asked in an effort to prove the truth of hearsay statements.  See Schaffer, 777 S.W.2d at 114.  Immediately before the question, Tammy testified that Belinda was uncharacteristically submissive when she was in appellant’s presence.  The trial court could have reasonably determined the purpose of this question was simply to inquire whether Tammy ever brought Belinda’s behavior change to her attention or offered her advice.  Furthermore, Tammy later testified that appellant ridiculed Belinda’s appearance, house work, and childrearing.  Tammy also expressed, “[W]e would be in the middle of a game and he would snap at her and say things to her and I would always say, [‘]Stand up.  Tell him -- stand up for yourself.[’]”  We conclude that this testimony rendered harmless any hearsay violation.  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 is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove.”).  We overrule appellant’s seventy-third issue.

            In issues seventy-five and seventy-seven, appellant complains about Tammy’s testimony regarding appellant’s class reunion.  First, the prosecutor asked Tammy whether she advised Belinda regarding the reunion:

[Prosecutor:]   I want to change gears with you just a little bit, Ms. Harlan. Do you recall in the summer of 1998 having a conversation with Belinda Temple about David Temple’s class reunion?

[Prosecutor:]   Did you give some advice to Belinda Temple in regards to the class reunion?

[Prosecutor:]   What did you tell Belinda?

[Defense counsel:]   That necessarily implies the other party’s conversation. It’s hearsay by implication.

[Tammy Harlan:]   I told her that yes, she was going to go to the reunion and that I would keep [E.T.] and that she needed to go get a dress and that she needed to be there.

The same evidence was earlier admitted without objection when Quinton testified that Belinda did not attend the first night of the reunion and appellant did not want her to attend the second night.  Hence, any error was rendered harmless.  See Anderson, 717 S.W.2d at 628.  We overrule appellant’s seventy-fifth issue.

            The Prosecutor then asked Tammy the following question: 

[Prosecutor:]   Tell the jury what you told Belinda after the high school reunion.

[Defense counsel:]   That will be hearsay by implication.

[Tammy Harlan:]   I told her that she was an incredible woman and beautiful and to not let what happened there --

[Defense counsel:]   Excuse me.

[Court:]   Now, that’s sustained.

The trial court sustained appellant’s objection, but appellant did not request an instruction to disregard or move for a mistrial.  Thus, the trial court committed no error because it granted appellant all the relief he requested.  See Young, 137 S.W.3d at 69.  We overrule appellant’s seventy-seventh issue.

In his seventy-ninth issue, appellant argues the prosecutor injected hearsay when she asked Rebecca Temple whether she remembered a period when appellant and Belinda discussed divorce.

[Prosecutor:]   Do you remember the time in 1998 when David and Belinda started talking about getting a divorce?

[Defense counsel:]   Well, that’s not true.  In the first place, it’s not true. 

[Prosecutor:]   Judge, he’s arguing.

[Defense counsel:]   In the second place, it calls for hearsay.

[Prosecutor:]   An objection is a one-word response to you, Your Honor.

[Court:]   Do you have an objection?

[Defense counsel:]   I do.  I object.

[Court:]   Okay.  What grounds?

[Defense counsel:]   I object because it’s injecting false statements into the record that there’s no basis for.  If it had been true, the only way she would know about it is hearsay.

[Prosecutor:]   Do you remember that, Ms. Temple?

[Rebecca Temple:]   Could you repeat the question?

[Prosecutor:]   Yes, ma’am.  Do you remember in 1998 when David and Belinda started speaking about getting a divorce?

[Rebecca Temple:]   No.

            The prosecutor asked Rebecca whether she remembered when appellant and Belinda discussed divorce, necessarily inquiring about Belinda’s statements; thus, the prosecutor sought an answer implying hearsay.  See Head, 4 S.W.3d 258.  Nevertheless, no hearsay was presented because Rebecca answered, “No.”  The prosecutor later asked appellant, without objection, whether he and Belinda ever “had discussions and arguments about getting divorced . . . .”  Appellant replied, “No ma’am, not at all.”  Finally, during jury argument, the State did not make any reference to discussions between appellant and Belinda regarding divorce.[9]  Accordingly, we conclude the prosecutor’s improper question was harmless.  We overrule appellant’s seventy-ninth issue.

B.   Jury Argument

            In his twenty-fifth through sixty-seventh issues, appellant argues that the trial court erred by overruling his objections to the State’s jury argument and the State engaged in prosecutorial misconduct during argument.  According to appellant, the improper argument included (1) injecting unsupported facts, (2) lessening the burden of proof, (3) commenting on witnesses’ credibility, and (4) accusing the Temple family of perjury.

The purpose of closing argument is to facilitate the jury’s analysis of evidence presented at trial to arrive at a just and reasonable conclusion based on the evidence alone and not on facts that were not admitted into evidence.  Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.] 1980).  The four permissible areas of jury argument are (1) summation of the evidence, (2) reasonable deductions drawn from the evidence, (3) answer to opposing counsel’s argument, and (4) a plea for law enforcement.  Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).  The State is allowed wide latitude in drawing inferences from the evidence as long as the inferences drawn are reasonable and offered in good faith.  Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997).  A prosecutor may argue her opinion concerning issues in the case so long as the opinion is based on the evidence in the record and does not constitute unsworn testimony.  McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985).

Even when a jury argument exceeds these approved areas, it will not constitute reversible error unless the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding.  Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).  When reviewing alleged error in allowing improper jury argument, the appellate court must analyze the statement in light of the entire argument and not on isolated sentences.  Delarue v. State, 102 S.W.3d 388, 405 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).  Error in allowing improper argument is generally non-constitutional error that must be disregarded unless it affects the defendant’s substantial rights.  See Tex. R. App. P. 44.2(b); Brown, 270 S.W.3d at 572.

To complain on appeal about an improper jury argument, a defendant must object at trial and pursue his objection to an adverse ruling.  Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Johnson v. State, 233 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2007, no pet.).  A defendant must object each time an improper argument is made, or he waives his complaint, regardless of how egregious the argument.  See Valdez v. State, 2 S.W.3d 518, 521–22 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); Wilson v. State, 179 S.W.3d 240, 249 (Tex. App.—Texarkana 2005, no pet.).  In examining challenges to jury argument, we consider a prosecutor’s remark in the context in which it appears.  Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). 

1.   Unsupported-Argument Contentions

            Appellant contends that the prosecutor persistently injected facts outside the record during argument in an attempt to vilify appellant.  In his twenty-sixth issue, appellant argues the trial court erred by overruling his objection to the prosecutor’s reference to certain inadmissible hearsay statements.[10]

[Prosecutor:]   And you got a small glimpse into their marriage.  You got a small glimpse, because, see, Belinda’s not here to tell you, is she?  And the rules of evidence prohibit Belinda’s girlfriends from telling you anything Belinda ever told them.  That’s the way --

[Defense counsel:]   Excuse me. That’s implying that there’s other evidence, and we object to it.  That the evidence is what it is.

[Prosecutor:]   That’s the way the rules work.

We agree with appellant that this argument improperly referred the jury to evidence outside the record, namely, that Belinda’s friends had information about appellant and Belinda’s marriage.  Argument that attempts to introduce matters not in the record is clearly improper.  See Berryhill v. State, 501 S.W.2d 86, 87 (Tex. Crim. App. 1973).  Argument inviting the jury to speculate about possible evidence that is not in the record is even more dangerous because “it leaves to the imagination of each juror whatever extraneous ‘facts’ may be needed to support the conviction.”  Id.  Here, “[t]he argument of the prosecutor entered the impermissible area of conveying to the jury that there was evidence of guilt other than that which was before the jury.”  Boyde v. State, 513 S.W.2d 588, 591 (Tex. Crim. App. 1974).  Accordingly, the trial court erred by overruling appellant’s objection, and we will consider this error in our harm analysis.

            In his twenty-seventh issue, appellant contends the prosecutor engaged in misconduct by arguing that appellant never took E.T. to the park on the day of the murder.  However, the following evidence supports a reasonable inference that appellant did not take E.T. to the park.

·        E.T. was retrieved from school around noon because he was sick with a fever, and appellant testified that he bathed E.T. shortly before Belinda arrived home. 

·        According to appellant, he and E.T. traveled in rapid succession from Cimarron Park to Brookshire Brothers to Home Depot and back to his house, but never went to Peckham Park.

·        Bernard Bindeman testified he saw appellant driving south from an area near appellant’s parents’ house, which was inconsistent with appellant’s testimony that he went directly to Home Depot after leaving Brookshire Brothers.

·        Officer Leithner testified, “So I basically just asked him if he can identify [the parks he went to] and he initially said Peckham County Park, I guess, but it wasn’t long, within seconds, he changed that and said, [‘]No, it was, I think, [Cimarron] Park,[’] which is a neighborhood park in his subdivision.” 

·        Detective Schmidt testified that officers went to both parks with a photograph of appellant’s truck, but nobody remembered seeing the truck on Monday. 

Accordingly, we conclude the State’s argument was reasonably deduced from the evidence.  We overrule appellant’s twenty-seventh issue.

            In his twenty-eighth and twenty-ninth issues, appellant contends the trial court erred by allowing the prosecutor to argue that appellant’s expert, Max Courtney, opined none of the recovered shotguns was the murder weapon.

 [Prosecutor:]   Max Courtney, their own expert, agrees that of the five shotguns that were recovered, not one of them had blood or tissue on the shotguns.  Not one. 

[Defense counsel:]   Wait a minute.  I object to that.  That’s not his testimony.  He didn’t examine the shotguns for that.

[Prosecutor:]   Dean Holtke testified only yesterday, the same thing, the shotguns, no blood, no tissue. There is no blood or tissue.  Max Courtney talked about one of the defense exhibits, the shell that was found in this weapon right here, and I had - - I said to him, “Is that shell consistent with the wadding we found?”  He said “No.”  He examined 37 separate shells related to all different types of cases, and I asked him “Did you find any shell, any of the waddings, any of the shells that you cut open that matched the wadding in this case?”  And he said “No. It did not.”  The fact is, their own expert has agreed that none of the weapons recovered come back to anything about a murder weapon.  Where is the murder weapon?

[Defense counsel:]   That’s not correct.

During the presentation of evidence, Courtney agreed that, “[i]n every single one of the shotguns that we’ve talked about for the last four-and-a-half weeks, there was no blood or no glass found in any of those shotguns.”  Thus, the prosecutor’s argument—that none of the shotguns stands out as the murder weapon—was based on the evidence.  We overrule appellant’s twenty-eighth and twenty-ninth issues. 

            In his thirtieth and thirty-first issues, appellant contends the trial court erred by allowing the prosecutor to argue that appellant’s family made a conscious decision to forgive him for murdering his wife.

[Prosecutor:]   The Temple family, what’s really going on here, you figured it out, if you use your common sense, like Craig said, that you never check at the door when you become a juror.  What’s going on here is that family has decided they have the right to grant absolution to this defendant.

[Defense counsel:]   Excuse me. That’s an assertion of fact not based on evidence.  We object to it.

[Court:]   That’s overruled, sir.

Immediately following the court’s ruling, the prosecutor explained what she meant by “grant absolution.”

[Prosecutor:]   That family has decided that in their mind they’re going to overlook, forgive, forget and deny that he executed his pregnant wife because he might be a good father to [E.T.], and they’re going to forget about it and they’re going to lie about it and they want you to do the same thing.  The problem with that is, it overlooks the truth and it denies justice to Belinda and [her unborn daughter].

Appellant did not object to this argument.  Nor did appellant object when the prosecutor argued, “And why did [the Temple family] deny everything?  You know why.  Because that family knows him and that family knows what happened” and “[the Temple family] had already committed to their lies and their story back [in April 1999, when they testified before the grand jury].”  Because appellant failed to object each time the prosecutor argued that the Temple family conspired to lie on his behalf, appellant has waived any error.  See Valdez, 2 S.W.3d at 521–22.  We overrule appellant’s thirtieth and thirty-first issues.       

            In his thirty-second and thirty-third issues, appellant contends the trial court erred by overruling his objection to the prosecutor’s argument that he hid the murder weapon.

[Prosecutor:]   You knew from the get-go in this case that there were going to be problems and you’ve heard all the problems.  Do we have the murder weapon?  No.  Did we ever try to hide that from you?  No.  Why don’t we have the murder weapon?  Because he got rid of it.

[Defense counsel:]   Now, that’s – that’s not a reasonable deduction from the evidence.  It is an assertion of fact.

[Defense counsel:]   It’s improper.

The following syllogism illustrates how this argument was reasonably deduced from the evidence: a) appellant killed Belinda by shooting her with a shotgun[11]; b) no shotgun was identified as the murder weapon; therefore, c) appellant “got rid of” the murder weapon.  We overrule appellant’s thirty-second and thirty-third issues.

            In his thirty-fourth and thirty-fifth issues, appellant contends the trial court erred by allowing the prosecutor to argue the jury should not underestimate appellant’s ability to have committed the murder.

[Prosecutor:]   [I]f you think David Temple is not capable of it, you underestimate him.

[Defense counsel:]   Object to that.  That’s beyond the record.

[Defense counsel:]   Assertion of fact.

[Defense counsel:]   And ask the jury to disregard the last statement.

[Court:]   The jury will disregard the last statement and not consider it for any purpose.

[Defense counsel:]   And that’s improper argument and we move for a mistrial.

[Court:]   That’s denied.

Arguing that appellant was capable of murdering his wife was not so “clearly calculated to inflame the minds of the jury . . . as to suggest the impermissibility of withdrawing the impression produced.”  See Huffman, 746 S.W.2d at 219 (quoting Carter, 614 S.W.2d at 824–25).  Accordingly, we presume the jury adhered to the trial court’s instruction, see Colburn, 966 S.W.2d at 520, and conclude the trial court did not abuse its discretion in denying appellant’s motion for mistrial.  See Archie, 221 S.W.3d at 699.  We overrule appellant’s thirty-fourth and thirty-fifth issues.

            In his thirty-sixth issue, appellant contends the prosecutor engaged in misconduct by speculating that Belinda did not want to spend every holiday with appellant’s family.  Appellant’s objection was sustained, and the trial court instructed the jury to disregard, but appellant did not move for a mistrial.  Thus, the trial court committed no error because it granted appellant all the relief he requested.  See Young, 137 S.W.3d at 69.  We overrule appellant’s thirty-sixth issue.

In his thirty-seventh and thirty-eighth issues, appellant contends the trial court erred by allowing the prosecutor to argue that appellant was the “stud” of Katy High School and SFA.

[Prosecutor:]   Mr. Temple told you he was difficult to discipline at a young age.  Using your common sense, you know he was the stud of Katy High School and he went on to be the stud of Stephen F. Austin University.

[Defense counsel:]   Excuse me.  I object to that language and to that assertion.  That’s not in the record.  We ask that she stay in the record.

Multiple witnesses testified that appellant was a standout football player both in high school and in college.  For example, when asked about appellant’s football career at SFA, appellant’s father testified, “He was a true asset to the team and received a lot of publicity.”  Accordingly, notwithstanding the colloquialism, arguing that appellant was the “stud” of high school and college was a reasonable deduction from the evidence.  We overrule appellant’s thirty-seventh and thirty-eighth issues.

            In issues thirty-nine through forty-two, appellant contends the trial court erred by overruling his objections to the prosecutor’s arguments that appellant treated Belinda poorly when others were not around.

[Prosecutor:]   And that second night when he took her to the reunion, what did Tammy Harlan tell you she told Belinda after that second night?  “It’s okay, Belinda. You’re a beautiful lady.  Don’t let it bother you.”  How do you think he treated Belinda when Tammy and Quinton weren’t around?

[Defense counsel:]   Now that’s an assertion of fact.  It’s not based on the evidence.  We object to that.

[Prosecutor:]   Why do you think Tammy Harlan, when they began out -- started out being best friends with David and Belinda grew to dislike David Temple so much?  He didn’t do anything to Tammy.  He didn’t do anything to Quinton. It was how he saw -- she saw how he treated Belinda.  Do you think Tammy Harlan got up there and made up that David Temple called the Lucases white trash?  And if he could call Belinda’s family white trash in front of Tammy and Quinton, what do you think he said about the Lucases to Belinda when they were home alone and what do you think that did to her self-esteem?  And, more importantly, what does that--

[Defense counsel:]   There’s no evidence of that.

[Prosecutor:]   What does that say about how he really felt about Belinda?

Rhetorical questions are generally within the scope of jury argument as long as they are based upon a reasonable deduction from the evidence.  See Wolfe v. State, 917 S.W.2d 270, 280 (Tex. Crim. App. 1996).  It was reasonable for the prosecutor to infer that if appellant derided Belinda and her family when others were present, he did so to a greater extent when he and Belinda were alone; Quinton testified that appellant boasted he was “in control” of his house.  Furthermore, the prosecutor’s statement that appellant’s comments affected Belinda’s self-esteem was also a reasonable deduction from the evidence; Tammy testified that when Belinda was in appellant’s presence she “was submissive and meek and wasn’t the person that she exhibited to be around me.”  We overrule appellant’s thirty-ninth through forty-second issues.

In his forty-third and forty-fourth issues, appellant contends the trial court erred by allowing the prosecutor to argue that appellant was under “a lot of pressure.”

[Prosecutor:]   Heather Scott also told you back at that time in her life she craved attention. Her words, not mine.  So where all do you think the sources of pressure were coming from on David Temple?  A little bit from Heather, a lot from Belinda, a new baby was coming, arguments in the household.  There was a lot of pressure on David Temple. 

[Defense counsel:]   Excuse me. That’s beyond the record.  There’s no evidence of that.

[Defense counsel:]   Ask that the jury disregard it.

[Court:]   The jury will disregard that last portion and not consider it for any purpose.

[Defense counsel:]   Judge, that’s the kind of assertion of fact that’s improper and we move for a mistrial.

[Defense counsel:]   Under Berger v. United States.

The argument that appellant was under “a lot of pressure” had evidentiary support; there was evidence appellant was struggling with an extra-marital relationship weeks before his daughter would be born and that he had told Quinton Harlan he was not sure if he was willing to leave his wife in order to continue this extra-marital relationship.  Furthermore, even if erroneous, this argument was not so egregious that it could not have been disregarded by the jury.  See Huffman, 746 S.W.2d at 219 (quoting Carter, 614 S.W.2d at 824–25).  Accordingly, the trial court did not abuse its discretion by denying appellant’s motion for mistrial.  See Archie, 221 S.W.3d at 699.  We overrule appellant’s forty-third and forty-fourth issues.

            Appellant next contends that the prosecutor engaged in misconduct by arguing that Shaka always barked and jumped against the fence whenever someone walked past appellant’s house.  However, several witnesses’ testimony supported this argument.  We overrule appellant’s forty-fifth issue.

In his forty-sixth through forty-ninth issues, appellant contends the trial court erred by allowing the prosecutor to argue that appellant failed to let Shaka in the house and closed the door behind him when he thought a burglar was in the house.

[Prosecutor:]   Why didn’t he take anything inside with him?  If he ran across to get help from Ruggiero and to drop [E.T.] off, why didn't he take anything in there with him?  Nothing from the garage, not Mike Ruggiero and not the dog.  The dog, who was their protective watch dog, who was there to protect, the one chance he had to do something, David Temple didn’t let him in the house.  The little things tell you the truth.

[Defense counsel:]   Excuse me. There’s no such evidence, Judge.  I object to that.

[Defense counsel:]   An assertion without basis of evidence.

 [Prosecutor:]   And why did David Temple close the door to the house if he thought a burglar might be inside?  Wouldn’t you leave the door wide open in case there’s somebody inside?  But David Temple shut the door.

[Defense counsel:]   No.  Judge, that’s not the evidence.

[Prosecutor:]   It is the evidence.

[Defense counsel:]   The evidence of Ruggiero--

We conclude that both of these arguments were reasonably deduced from the evidence.  It is undisputed that Shaka remained in the backyard when appellant entered his house.  Further, Mike Ruggiero testified that, although the back door could have shut because it “bounced off of something,” the door slammed shut and he did not hear the sound of glass breaking, shattering, or tinkling.  Thus, we overrule appellant’s forty-sixth through forty-ninth issues.

            In his fiftieth issue, appellant contends that the prosecutor engaged in misconduct by explaining why and how burglaries are committed.  Because appellant did not object on the basis of prosecutorial misconduct, he has not preserved these issues.  See Hajjar, 176 S.W.3d at 566.  Nevertheless, we would overrule this issue even if preserved.  The prosecutor merely made the following common-sense statements about burglaries: (1) persons commit burglaries to steal; (2) burglars act quickly so they do not “get caught”; and (3) burglars “take everything they possibly can that’s valuable.”  See Wright v. State, 178 S.W.3d 905, 932 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding that appeals to common knowledge during jury argument are not improper).  We overrule appellant’s fiftieth issue.

In his fifty-second issue, appellant contends the trial court erred by overruling his objection to the prosecutor’s argument that appellant removed his jewelry and washed his hands after killing Belinda.[12]

[Prosecutor:]   Why is that jewelry in that tray?  That jewelry is in that tray because when David Temple got finished firing that shotgun in the back of Belinda’s head, he had some blood on his hands and he washed his hands and he took all of his jewelry off.

[Defense counsel:]   There’s no evidence of that, Judge.

[Defense counsel:]   We object to that.  That’s pure assertion of fact.

The State presented evidence appellant’s jewelry was found in a tray, and damp towels were found in the bathroom.  However, this evidence, without more, did not support a reasonable inference that appellant washed Belinda’s blood from his hands; thus, the prosecutor’s argument was merely speculative.  We hold that the trial court erred by overruling appellant’s objection and will consider the effect of this error in our harm analysis.

Finally, in issues fifty-three and fifty-four, appellant contends the trial court erred by allowing the prosecutor to argue that E.T. was either in the backyard or garage when Belinda arrived home shortly before her murder.

[Prosecutor:]   But you do know that when she got home that day, [E.T.] was not in the house.  He was probably in the garage or in the backyard. And as soon as --

[Defense counsel:]   There’s no such evidence like that.

[Prosecutor:]   [E.T.] didn’t hear anything.

[Prosecutor:]   [E.T.] didn’t hear anything, Judge.

[Court:]   Overruled.

The prosecutor did not assert as fact that E.T. was in the garage or the backyard.  Instead, her point was that E.T. was not in the house at the time of the murder.  The State and appellant stipulated that the doctors who interviewed E.T. following the murder “found no evidence that [E.T.] had been a witness to the murder,” and this stipulation was presented to the jury.  It was therefore reasonable to argue that E.T. neither saw nor heard the fatal gunshot.  However, it was also reasonable to argue E.T. must have been nearby because no evidence indicated that E.T. was with someone other than Belinda or appellant from the time Belinda arrived home from school until appellant arrived home from Home Depot.  Consequently, the prosecutor did not stray from the record by arguing that E.T. was not in the house but probably in the backyard or garage at the time of Belinda’s murder.  We overrule appellant’s fifty-third and fifty-forth issues.

2.   Argument Regarding Burden of Proof

            In issues fifty-five through fifty-seven, appellant contends the following arguments from the State invited the jury to convict him on less than “beyond a reasonable doubt”:

[Prosecutor:]   When you all got picked to be put on this jury a month ago . . . . [, we] talked about the fact that problems come up with cold cases.  That’s why they become cold.

[Defense counsel:]   Excuse me.  I object to that.  That’s also improper argument.

[Defense counsel:]   Comparing other cases, Your Honor.

[Prosecutor:]   And your common sense tells you that if a case becomes cold, it’s not going to be a case with overwhelming evidence.  That’s pretty common sense and basic, and we agreed and you’re on this jury because you told me that you understand that there will never be a case where every single one of your questions is answered.  That would be impossible.

[Defense counsel:]   Excuse me.  That’s asking the jury to disregard the burden of proof being beyond a reasonable doubt.

[Prosecutor:]   What is the burden of proof?  What is beyond a reasonable doubt?  If you believe after hearing all this evidence for five weeks with your heart and your gut and your mind that David Temple is guilty of the murder of Belinda Temple, what more could we ask you to do?

[Defense counsel:]   Excuse me.  That lowers the burden of proof beyond a reasonable doubt.

First, the prosecutor’s statements that “cold cases” do not have overwhelming evidence of guilt and there are no cases where every question is answered were simply appeals to common sense.  See Wright, 178 S.W.3d at 932. 

Second, assuming the prosecutor’s statement that “beyond a reasonable doubt” should be determined by “your heart and your gut” was improper, the error was waived because the State had previously made substantially the same argument without objection.  See Greenwood v. State, 740 S.W.2d 857, 860 (Tex. App.—Dallas 1987, no pet.) (“There is no reversible error where the same . . . argument is presented elsewhere during trial without objection.”).  Accordingly, we overrule appellant’s fifty-fifth through fifty-seventh issues.

3.   Argument Regarding Witness Credibility

            In his fifty-eighth through sixty-third issues, appellant contends the trial court erred by allowing the State to vouch for its witnesses’ credibility during jury argument.  In issues fifty-eight and fifty-nine, appellant argues the prosecutor improperly bolstered Detective Holtke’s credibility by arguing he did not lie about the absence of a car seat in appellant’s truck.  However, appellant waived any error because he did not object to this argument.  See Tex. R. App. P. 33.1(a); Valdez, 2 S.W.3d at 521–22.  We overrule appellant’s fifty-eighth and fifty-ninth issues.

            In his sixtieth and sixty-first issues, appellant complains about the following:

[Prosecutor:]   [Y]ou need to appreciate that for nine years these men [law-enforcement personnel] sitting right here have known all those little details, all of them, for nine years, and for nine years these people right here have been waiting for a courtroom to be an open forum where all this evidence--

[Defense counsel:]   I object to the inflammatory argument.

[Defense counsel:]   And going outside the record, Your Honor.

[Court:]   That is overruled.

[Prosecutor:]   They’ve been waiting nine years to have a jury like you sitting in a box to finally be told all the little details of the truth, and that’s why I need to say them all to you all today.

We disagree that the prosecutor’s first statement was inflammatory.  It was undisputed that many detectives and officers from several branches of law enforcement had been investigating Belinda’s murder since 1999.  The prosecutor later argued without objection, “There is no such thing as a perfect investigation.  You already know that.  They already know that.  They tried their hardest for the last nine years in this case.”  Moreover, appellant waived any complaint regarding the prosecutor’s argument that the investigating officers wanted the jury to “be told all the little details of the truth” because he failed to object.  See Tex. R. App. P. 33.1(a); Valdez, 2 S.W.3d at 521–22.  We overrule appellant’s sixtieth and sixty-first issues.

In his sixty-second and sixty-third issues, appellant argues the prosecutor engaged in misconduct by improperly vouching for Clint Stockdick’s credibility.

[Prosecutor:]   What did Clint Stockdick tell you, circumstantial evidence that he is?  They never even had a 20-gauge.  There was never a yellow hull shot around the Temples.  They were all 12 gauges.  Clint Stockdick has more honor in his little finger than that family has in the whole mess of them.

[Defense counsel:]   Excuse me. I object to that.  That’s – that’s inflammatory.

Although Clint’s and the Temple family members’ testimony regarding shotguns contradicted at points, this argument was unnecessarily exaggerated.  Because great importance is placed on convicting the accused based on the evidence and not on emotion, we agree that the trial court erred in overruling appellant’s objection.  See Stein, 492 S.W.2d at 551–52.  We will consider the effects of this error in our harm analysis.

5.   Accusing Temple Family of Perjury

Finally, in his sixty-fourth and sixty-fifth issues, appellant contends the prosecutor engaged in inflammatory argument by asserting that the whole Temple family committed aggravated perjury.

[Prosecutor:]   Because no matter how much you try to deceive and manipulate and lie, nobody can do it perfectly.  That’s why circumstantial evidence, all the little things that go together and tell the story are what the truth is.  And when you have a family like the Temple family who pretend to be the paragon of Katy, Texas, and they get up here -- one, two, three, four, five of them -- and they make a mockery of the criminal justice system and they commit more aggravated perjury in this trial than this building has heard in a decade.

[Defense counsel:]   Excuse me, Judge.  That’s an inflammatory, improper argument.

We hold that the trial court erred by overruling appellant’s objection to the prosecutor’s argument.  Although there was evidence supporting an inference that the Temple family witnesses conspired to lie to protect appellant, arguing that the Temple family committed “more aggravated perjury in this trial than this building has heard in a decade” was a theatrical statement intended to inflame the jury.  “[We] reassert the critical importance of convicting an accused only upon that evidence presented, without attempting to inflame or prejudice the minds of the jurors.”  Id.; see also Elliott v. State, 117 Tex. Crim. 180, 182, 36 S.W.2d 513, 514 (1931) (“Complaint is made of some remarks of counsel for the state . . . that some of the witnesses for the appellant had perjured themselves, which remarks should have been withdrawn at the request of the appellant.”).  Thus, we will consider this error in our harm analysis.[13]

C.   Harm Analysis

Having determined that the trial court committed several errors, we now consider the cumulative effect of these errors.  See Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App. 1988); Martin v. State, 151 S.W.3d 236, 242 (Tex. App.—Texarkana 2004, pet. ref’d); Harris v. State, 56 S.W.3d 52, 59 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).  We will not consider the effect of any waived errors.  Cf. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (“[W]e are aware of no authority holding that non-errors may in their cumulative effect cause error.”).

1.   Standard of Review

We review the trial court’s erroneous evidentiary and jury-argument rulings for harm under rule 44.2(b) of the Texas Rules of Appellate Procedure.  Tex. R. App. P. 44.2(b).  We must disregard non-constitutional errors that do not affect a criminal defendant’s “substantial rights.”  Id.  We may not reverse for non-constitutional errors if, after examining the record as a whole, we have fair assurance that the errors did not have a substantial and injurious effect or influence in determining the jury’s verdict, or had but a slight effect.  Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).  Stated differently, if we have “a grave doubt” that the result was free from the substantial influence of the error, we must treat the error accordingly.  Burnett v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App. 2002) (citation omitted).  “Grave doubt” means that “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.”  Id. (citation omitted).

In assessing the likelihood that a jury’s decision was adversely affected by the errors, we consider everything in the record, including any testimony or physical evidence admitted, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence.  Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).  We may also consider statements made during voir dire, jury instructions, the State’s theory, any defensive theories, closing argument, and whether the State emphasized the errors.  Id. at 355–56.  We are also cognizant that a trial court’s overruling of a defendant’s objections puts a “stamp of approval” on the prosecutor’s improper cross-examination or jury argument, increasing the risk of harm.  See Lee v. State, 971 S.W.2d 130, 131 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).

2.   Analysis

As determined supra, the trial court erroneously allowed the prosecutor to ask appellant several improper questions and to make improper jury argument.  Although these errors were precipitated by overzealous prosecution, we conclude that, in light of the whole record, they did not have a substantial and injurious effect or influence in determining the jury’s verdict. 

We begin by considering the nature and amount of evidence presented by both sides.  There was no eyewitness, DNA, or other physical evidence directly connecting appellant to Belinda’s murder.  Nonetheless, despite the absence of direct evidence, the circumstantial evidence presented was not negligible. 

·        Appellant was involved in an extra-marital affair with Heather, had left his pregnant wife and son during the New Year’s holiday to spend two nights with Heather, and resumed his relationship with Heather a relatively short time after Belinda’s death, including sending Valentine’s Day flowers a month later.

·        There was evidence supporting a finding that appellant criticized Belinda’s weight, housekeeping, and childrearing, and that he detested Belinda’s family.

·        There was evidence supporting a finding that the burglary was staged.

·        There was evidence supporting a finding that the Temple family conspired to protect appellant, including concealing truth about the family’s shotguns and appellant’s affair.

·        Appellant’s explanation for his trip to Brookshire Brothers and then eastward to Home Depot was refuted by the length of time it took him to enter Home Depot after leaving Brookshire Brothers and Bernard Bindeman’s testimony that he saw appellant heading south from an area near appellant’s parents’ house. 

·        Appellant’s behavior and demeanor immediately following Belinda’s death.

·        Appellant’s untruthfulness regarding taking E.T. to a park and placing E.T. in a child seat.

·        Testimony from Quinton and Tammy that, following Belinda’s death, appellant aggressively confronted them regarding their statements to the police and grand jury, even following them in his truck.

When viewed in total, the circumstantial evidence supports a finding that appellant had a motive for killing Belinda and attempted to conceal facts by staging a burglary and lying.  We cannot conclude the prosecutor’s speculative argument that the tray holding appellant’s jewelry indicates he washed Belinda’s blood from his hands was significant enough to substantially affect the jury’s verdict.  Moreover, the prosecutor’s exaggerated question “[Y]ou didn’t give a flip about the Lucases, did you?” merely emphasized evidence already before the jury and did not affect whether the jury believed Tammy and Quinton (who testified that appellant derided Belinda and her family) or appellant’s family (who testified appellant never disparaged Belinda’s family).

Appellant contends the prosecutor injected harmful and unsupported evidence by arguing that Belinda’s girlfriends were prevented by rule from revealing what Belinda had told them about her marriage.  Appellant relies on Fant-Caughman v. State, in which the Amarillo Court of Appeals reversed the defendant’s aggravated sexual-assault conviction because of the prosecutor’s improper jury argument.  61 S.W.3d 25 (Tex. App.—Amarillo 2001, pet. ref’d).  We believe this case is distinguishable.  In Fant-Caughman, the complainant was a thirteen-year-old girl who was allegedly sexually-assaulted by the defendant.  Id. at 27.  The court of appeals concluded the prosecutor’s argument that “I could have been here with witnesses for several more days, because there are a lot of people who know about these allegations” had a substantial effect on the jury’s verdict.  Id. at 32.  Because the credibility of a minor who claims sexual assault is always a significant issue in such cases, allowing the prosecutor to inject this unsupported testimony, not subject to cross-examination, unfairly bolstered the victim’s outcry.  

Here, the question of whether appellant and Belinda had a strong marriage, although important, was quite different.  There was an undisputed fact that strongly inferred appellant and Belinda were having marital difficulties: appellant was involved in an extra-marital affair while Belinda was pregnant.  Additionally, Tammy and Quinton testified that appellant ridiculed Belinda, was controlling, and was unsure if he was willing to leave Belinda for Heather.  Moreover, most of the witnesses who testified that appellant and Belinda appeared to have a happy marriage were Temple family members or persons not as familiar with the Temples as the Harlans.  In light of this evidence, we hold that the prosecutor’s reference to information possibly possessed by Belinda’s girlfriends did not substantially affect whether the jury believed appellant and Belinda had marital problems.

We acknowledge there was some evidence supporting an inference that R.J.S. was involved in Belinda’s murder, most significantly that a 12-gauge H&R shotgun owned by R.J.S.’s father was recovered and contained a spent, reloaded double-ought buckshot shell (a shell was never recovered at the crime scene).  However, R.J.S. testified that, shortly before Belinda’s murder, he and several friends went to a field to shoot shotguns, and he brought the H&R shotgun and reloaded double-ought buckshot shells.  Based on this testimony, the jury could have dismissed the H&R shotgun as the murder weapon.  Further, the jury could have also concluded that the motive evidence relative to R.J.S. (Belinda confronted his parents several times regarding his non-attendance at school and pranking her house) paled in comparison to the motive evidence implicating appellant.  Moreover, the jury could directly evaluate the testimony of appellant and R.J.S. because both testified.  Succinctly, based on the evidence, the jury could have reasonably concluded R.J.S. was not the murderer.

We also recognize that, if the jury believed the three Roberts brothers’ testimony that they heard a shotgun blast around the time appellant was at Brookshire Brothers, it could have substantially affected whether the jury had a reasonable doubt regarding appellant’s culpability.  However, none of the errors substantially affected the credibility of the Roberts brothers’ testimony.

Admittedly, witness credibility was crucial because of the lack of direct evidence.  Several of the prosecutor’s improper questions and comments pertained to the truthfulness of appellant and his family.  The prosecutor was persistent in asking appellant to comment on witnesses’ veracity.  She also overzealously argued that the Temples were perjurers.  Further, the prosecutor called appellant a liar during cross-examination, after which the trial court instructed the jury to disregard the comment but denied appellant’s motion for a mistrial.   Nevertheless, considering these improprieties in light of the whole record, we conclude they did not substantially influence the jury or require a mistrial.

Appellant argues that “he was repeatedly asked to comment on the veracity of other witnesses[, giving the jury] a choice to believe Appellant or believe that he was a liar and therefore a murderer.”  He relies primarily on United States v. Geston, in which the Ninth Circuit Court of Appeals concluded that similar questioning was prosecutorial misconduct impacting the defendant’s due-process rights and resulting in reversible error because “witness credibility was paramount.”  299 F.3d 1130, 1137 (9th Cir. 2002).

Under Texas precedent, however, improper veracity questions are generally held harmless because they merely emphasize the obvious: that the defendant disagrees with the State’s witnesses’ factual assertions.  See, e.g., Streff v. State, 890 S.W.2d 815, 820–21 (Tex. App.—Eastland 1994, pet. ref’d) (holding error caused by State’s improper veracity question was harmless because there was contradicting testimony).  In Creech v. State, the Court of Criminal Appeals agreed that the prosecutor’s question regarding whether the arresting officer was lying was improper, but concluded that such error was harmless because “[w]hen the appellant said that the officer was lying, he was merely saying that his version of the affair was correct and that of the officer incorrect.  We see nothing in such answer which would tend to bring him into disrepute with the jury.”  168 Tex. Crim. 422, 424, 329 S.W.2d 290, 291 (1959); see also McKinney v. State, 491 S.W.2d 404, 408 (Tex. Crim. App. 1973) (concluding error caused by State’s improper veracity questions was not reversible); Mason v. State, 449 S.W.2d 47, 49 (Tex. Crim. App. 1970) (same); Ayala v. State, 171 Tex. Crim. 687, 689, 352 S.W.2d 955, 956 (1962) (same); Salcido v. State, 170 Tex. Crim. 572, 574, 342 S.W.2d 760, 761 (1961) (per curiam) (same).  By denying that he ever made derogatory statements regarding Belinda’s appearance or family, appellant necessarily implied that Tammy, Quinton, and Brenda were lying.  The prosecutor’s questions, albeit improper, served primarily to stress contradictions in the testimony.

Similarly, we conclude that the prosecutor’s inflammatory arguments that the Temple family committed “more aggravated perjury in this trial than this building has heard in a decade” and “Clint Stockdick has more honor in his little finger than [the Temple] family has in the whole mess of them,” did not substantially influence the jury.  The prosecutor aggressively cross-examined the Temple witnesses regarding inconsistencies between their trial and grand-jury testimonies.  For example, despite the meeting on January 13, 1999 at which appellant informed his family that he had been unfaithful to Belinda, at the April 1999 grand jury hearings, appellant’s brothers and mother denied knowledge of an affair.  At trial, appellant’s brothers explained that they did not lie to the grand jury because they believe “affair” means long-term unfaithfulness.  In fact, although they testified they were devastated by appellant’s revelations at the family meeting, appellant’s brothers testified that they were not sure what appellant’s unfaithfulness entailed, including whether he engaged in sexual infidelity.  These types of semantic prevarications, along with the Temple witnesses’ testimony that appellant had a wonderful marriage and never owned a 12-gauge shotgun despite evidence to the contrary, supported an inference that the Temples conspired to misrepresent the truth in order to protect appellant.

By arguing that members of the Temple family were aggravated perjurers, the prosecutor did not inject unsupported and harmful facts,[14] comment on appellant’s failure to testify,[15] or attack appellant over the shoulders of defense counsel,[16] but suggested a reasonable inference from the evidence, albeit in an inflammatory manner.  These statements were not pleas for the jurors to abandon objectivity and convict appellant based on their emotions.  See Torres v. State, 92 S.W.3d 911, 920 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (citing Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985)).  Furthermore, before making these statements, the prosecutor argued without objection:

[Y]ou heard no less than five Temples tell you the loving relationship.  The perfect marriage.  No problems.  Everything was just fine. . . .  The truth is in what was being said that is untrue.  It’s a false picture, a false light that’s being given to you.

The prosecutor later argued without objection:

[Prosecutor:]   That family has decided that in their mind they’re going to overlook, forgive, forget and deny that he executed his pregnant wife because he might be a good father to [E.T.], and they’re going to forget about it and they’re going to lie about it and they want you to do the same thing.  The problem with that is, it overlooks the truth and it denies justice to Belinda and [her unborn daughter].

[Prosecutor:]   And to the grand jury it wasn’t about little inconsistencies and it wasn’t about a time lapse of nine years. It was about a -- a deliberate, collaborative, conspiratorial lie the Temple family told, trying to say David Temple never had a 12-gauge shotgun, and the story they dreamed up to justify the only one he ever had was about the day he got hurt when mud got stuck in the barrel. They didn’t get their injuries consistent way back then to the grand jury, and it was only because of Clint Stockdick coming forward and talking about the reality of the shotguns in the Temple family that we know for sure that they’re liars.

Hence, the prosecutor made several proper arguments regarding the Temple family’s deceitfulness that were supported by the evidence.  Accordingly, it is unlikely the prosecutor’s inflammatory arguments substantially influenced the jury.

Finally, we consider whether the trial court erred by denying appellant’s motion for mistrial when the prosecutor commented, “No, it’s just lied about.”  The prosecutor uttered this statement after appellant testified that his assertion Shaka was in the garage at the time of the murder was “not something that was dreamed up.”  The trial court instructed the jury to disregard but denied appellant’s motion for mistrial.

A mistrial is the trial court’s remedy for improper conduct that is so prejudicial that expenditure of further time and expense would be wasteful and futile.  Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).  The standard of review for the denial of a motion for mistrial is abuse of discretion.  Archie, 221 S.W.3d at 699.  The reviewing court should uphold the trial court’s ruling if it was within the zone of reasonable disagreement.  Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)).[17]

Whether a mistrial should have been granted involves most, if not all, of the considerations that attend a harm analysis.  Id. at 700.  Therefore, a reviewing court balances the three factors first enunciated in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998): (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the trial judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).  Id.

We recognize a prosecutor’s sidebar comment that the defendant or a witness is a liar may be incurable error.  See Wright v. State, 112 Tex. Crim. 214, 215–16, 16 S.W.2d 126, 127 (1929) (reversing because, after defendant objected to prosecutor’s asking major defense witness if he had robbed a gas station, prosecutor responded, “I want to show that he is not only a liar but also a thief”); Roberts v. State, 107 Tex. Crim. 139, 146–48, 295 S.W. 609, 613 (1927) (op. on reh’g) (reversing, despite instruction to disregard and apology from prosecutor, because prosecutor called defendant a “damn liar” when defendant testified he had previously told the prosecutor that the victim had a gun, a conversation about which the prosecutor had personal knowledge); but see Seaton v. State, 564 S.W.2d 721, 724–25 (Tex. Crim. App. [Panel Op.] 1978) (affirming, despite prosecutor’s comment, “[T]hat is a lie and you know it,” in response to defense witness’s testimony that prosecutor was not present when witness’s statement was notarized, because instruction to disregard cured error and witness was not material), overruled on other grounds by Rucker v. State, 599 S.W.2d 581 (Tex. Crim. App. 1979).  In the present case, however, we do not believe the prosecutor’s statement incurably infected the jury.

We acknowledge that the prosecutor’s comment was highly improper; she stated as fact that appellant was lying about Shaka’s location at the time of the murder.  Further, the trial court’s instruction to disregard the prosecutor’s “last question” could have been made clearer, i.e., it was not a question, but a sidebar comment that necessitated appellant’s objection.  Nevertheless, immediately following the improper comment, defense counsel objected, “Excuse me.  Now that’s -- Judge, you’ve got to stop that kind of stuff,” and the jury was sent out of the room.  When the jury was brought back, the court gave its instruction.  Thus, it is reasonable to assume the jury understood that they were to disregard the prosecutor’s comment.

This case is distinguishable from Roberts, in which the prosecutor called the defendant a “damn liar” relative to an issue about which the prosecutor had personal knowledge and, thus, actually knew if the defendant was lying.  See Roberts, 295 S.W. at 613; see also Hanson v. State, 139 Tex. Crim. 233, 242, 139 S.W.2d 573, 578 (1940) (explaining that the harmfulness of the prosecutor’s statement in Roberts was that he actually had personal knowledge regarding whether the defendant was lying).  Instead, the prosecutor’s sidebar is more akin to the situation addressed in Williams v. State, 549 S.W.2d 183 (Tex. Crim. App. 1977).  In Williams, the complainant alleged defendant raped her at gun point.  Id. at 185.  During cross-examination, the prosecutor asked the defendant if he and the complainant “went the night together.”  Id. at 187.  When the defendant responded, “We have had a relationship together,” the prosecutor commented, “All right.  I can agree with that, at pistol point.”  Id. at 188.  The Court of Criminal Appeals held that the trial court’s instruction to disregard cured the improper sidebar remark.  Id.; see also Jones v. State, 504 S.W.2d 906, 907 (Tex. Crim. App. 1974) (holding instruction to disregard sufficient when prosecutor responded, “I suspect you have, with good cause,” after defendant testified he had been put in fear for his life many times).

We appreciate the prosecutor commented that appellant was lying about an important issue: whether Shaka was in the backyard when Belinda was murdered.  If the jury believed Shaka was in the backyard, the State’s “staged-burglary” theory would be greatly strengthened because Shaka would have made it very difficult for a burglar to access the back door.  As explained in footnote 3, there was no credible eyewitness testimony that Shaka was in the backyard at the time of the murder.  However, Detective Leithner testified that on the night of the murder, he asked appellant how a burglar could have avoided Shaka.  According to Detective Leithner, appellant did not answer but became more irritated.  This testimony supported an inference that appellant was deceitful regarding Shaka’s location at the time of Belinda’s murder.  During opening statement, the prosecutor stated that it seems unlikely a burglar could have “got past that dog” but did not express that appellant lied about the dog’s location.  In his opening statement, appellant explained that Shaka was in the garage.  During jury argument, the prosecutor argued without objection that appellant recently fabricated his assertion Shaka was in the garage at the time of the murder.  The prosecutor also argued the fact Shaka would have barked if a burglar had come into the backyard is “a circumstance [appellant] and his lying family cannot change.”  Hence, the issue regarding Shaka’s location was contested from the beginning to the end of trial, and the jury was well aware that the State disagreed with appellant’s account.  Accordingly, the trial court’s determination that its instruction to disregard sufficiently cured the prosecutor’s outburst was within the zone of reasonable disagreement.  Thus, the court did not abuse its discretion by denying appellant’s motion for mistrial.

In sum, we cannot conclude that the trial court’s errors had a substantial and injurious effect or influence on the jury’s verdict.  See Tex. R. App. P. 44.2(b).  We note that appellant cites several cases in which the Court of Criminal Appeals reversed a defendant’s conviction because of persistent prosecutorial misconduct.  See Stahl v. State, 749 S.W.2d 826 (Tex. Crim. App. 1988); McClure v. State, 544 S.W.2d 390 (Tex. Crim. App. 1977); Boyde v. State, 513 S.W.2d 588 (Tex. Crim. App. 1974).  In these cases, the prosecutors ignored trial court rulings, injected unsupported and harmful facts, and sought to inflame the jury against the accused.  See Stahl v. State, 749 S.W.2d 826, 831 (Tex. Crim. App. 1988) (reversing after victim’s mother exclaimed, “May he rest in hell.  May he burn in hell.  Oh, my baby,” when identifying a morgue photograph of victim because court determined prosecutor intended, and repeatedly referred to, the outburst); McClure, 544 S.W.2d at 393–94 (reversing after prosecutor contravened trial court’s rulings by persistently arguing punishment during guilt-innocence stage); Boyde, 513 S.W.2d at 591 (holding prosecutor’s course of repeatedly ignoring the court’s rulings was reversible error despite repeated jury instructions to disregard); see also, e.g., Cook v. State, 537 S.W.2d 258, 561 (Tex. Crim. App. 1976) (reversing because prosecutor went outside the record by arguing severed co-defendant will likely blame defendant in subsequent trial just as defendant blamed co-defendant in current case); Renn v. State , 495 S.W.2d 922, 924 (Tex. Crim. App. 1973) (reversing because prosecutor repeatedly called defendant epithets, despite twenty-six sustained objections to such remarks); Grant v. State, 738 S.W.2d 309, 311 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d) (reversing because prosecutor persistently contravened trial court’s rulings and jury charge by arguing defendant’s breath-test refusal was evidence of guilt).

We do not perceive the same type of relentless misconduct in the present case.  During the emotionally charged, four-week trial, the prosecutors occasionally exceeded proper questioning and argument when attacking the credibility of appellant and his family and also apparently disobeyed or ignored a few of the trial court’s rulings.  While we certainly condemn such tactics, in light of the whole record, we cannot conclude that these errors were so prejudicial, or so inflamed the jury, that appellant was deprived of his substantial rights or a fair trial.  See Tex. R. App. P. 44.2(b); Johnson v. State, 604 S.W.2d 128, 135 (Tex. Crim. App. 1980) (“A reading of the transcription of the court reporter’s notes does not disclose a willful and calculated effort on the part of the prosecution to deny appellant a fair and impartial trial.”).  Accordingly, we overrule appellant’s remaining issues.  We affirm the trial court’s judgment.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Panel consists of Justices Yates, Seymore, and Brown. (Seymore, J., concurring).

Publish — Tex. R. App. P. 47.2(b).

---

[1] In April 1999, a grand jury failed to indict appellant.

[2] Additionally, Michael Ruggiero testified that the back door shut after appellant ran into his house, but he does not remember hearing the sound of glass “tinkling.”

[3] We acknowledge that the State expended substantial effort to establish that appellant’s dog, Shaka, was in the backyard at the time Belinda was murdered.  This fact would support the State’s contention that the burglary was staged because Shaka was ferocious and would not have allowed a burglar to access the back door.  Appellant testified that he placed Shaka in the garage before leaving for the park.  Although several of the State’s witnesses testified they never saw the dog in appellant’s garage, photographs taken by police on the night of the murder clearly show a dog blanket and bowls in the garage on the left side of Belinda’s SUV.  Further, several witnesses testified they did not hear Shaka barking on the afternoon of Belinda’s murder, which is just as consistent with Shaka being in the garage as it is with no burglar entering the backyard.

Angela Vielma was the only witness who saw appellant enter the garage upon his return from Home Depot.  She testified that she did not see a dog in the garage.  Nevertheless, Vielma also testified she did not see another car in the garage and that, if there had been, she would not have been able to see what was on the other side of the car.  Because it is undisputed Belinda’s SUV was in the garage and Shaka’s blanket and bowls were on the other side of the SUV, no rational jury could credit Vielma’s testimony that there was no dog in the garage.  The only evidence arguably supporting a finding that Shaka was in the backyard came from Detective Leithner, who testified appellant was unresponsive and irritated when asked how a burglar could have avoided Shaka.  Nevertheless, the evidence is sufficient to support appellant’s conviction without a finding that Shaka was in the backyard.

[4] In issues six, eight, ten, twelve, and fourteen, appellant contends that the State’s questions relative to witness veracity abrogated his due-process rights.  When objecting to these questions, appellant did not object on the basis that the questions violated his due-process rights.  Thus, appellant has waived his due-process complaints.  See Tex. R. App. P. 33.1 (general rule is that party must make timely and specific objection at trial to preserve issue for appellate review); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (“[E]ven constitutional errors may be waived by failure to object at trial.”); Boulware v. State, 542 S.W.2d 677, 682 (Tex. Crim. App. 1976) (same).  Accordingly, we overrule appellant’s sixth, eighth, tenth, twelfth, and fourteenth issues.

[5] Perhaps the best way for defense counsel to preserve this type of issue would be to request to take the prosecutor on voir dire at the time the question is posed in order to reveal the factual basis for the question.  Cf. Cavender v. State, 547 S.W.2d 601, 603 (Tex. Crim. App. 1977) (explaining that trial court held hearing to determine good-faith basis for prosecutor’s question); Gailey v. State, 671 S.W.2d 123, 124 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d) (explaining that trial court held hearing outside jury’s presence after prosecutor asked question allegedly in bad faith).  The proper time to challenge the basis for a question is before or when the question is asked.

[6] In Cavender, 547 S.W.2d at 602–03, the prosecutor admitted that the factual basis for her questions stemmed from a string of hearsay statements.  The Court of Criminal Appeals held this factual basis was “bottomed on hearsay several times removed, far too tenuous to justify the question.”  Id.  Here, based on the prosecutor’s explanation at the new trial hearing, it is possible Belinda told Brenda she and appellant were arguing about their daughter.  We do not believe this information would be too tenuous a basis for the prosecutor’s question. 

[7] In his nineteenth issue, appellant contends this question abrogated his right to a fair trial.  Assuming he is arguing this question violated his due-process rights, we overrule issue nineteen; appellant did not object on the basis of due-process violation and it was not apparent from the context that appellant was objecting because this question abrogated his right to a fair trial.  See Tex. R. App. P. 33.1(a)(1)(A); Broxton, 909 S.W.2d at 918; Boulware, 542 S.W.2d at 682.

[8] In issues sixty-eight, seventy, seventy-two, seventy-four, seventy-six, seventy-eight, and eighty, appellant contends his due-process rights were abrogated by the hearsay statements.  However, appellant did not object at trial on the basis of violation of due process.  See Tex. R. App. P. 33.1; Broxton, 909 S.W.2d at 918; Boulware, 542 S.W.2d at 682.  Accordingly, we overrule these issues.

[9] We note the prosecutor admitted during the motion-for-new-trial hearing that her basis for this question was “someone told [her] Belinda said they had discussed divorce.”  Hence, this question was not without factual basis but was, as appellant suspected, based on hearsay.

[10] In his twenty-fifth issue, appellant contends the prosecutor committed misconduct by making this argument.  Because appellant did not object on the basis of prosecutorial misconduct, he has not preserved this issue.  See Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (recognizing prosecutorial misconduct is an independent basis for objection that must be specifically urged in order for error to be preserved).  We overrule issue twenty-five.

[11] At least the evidence, taken as a whole and viewed in the light most favorable to the verdict, is sufficient to support such a finding.

[12] In issue fifty-one, appellant contends the prosecutor committed misconduct by making this argument.  Because appellant did not object on the basis of prosecutorial misconduct, he has not preserved this issue.  See Hajjar, 176 S.W.3d at 566.  We overrule issue fifty-one.

[13] In issues sixty-six and sixty-seven, appellant complains that the prosecutor accused the family of conspiring to commit perjury; appellant did not object to this argument.  Despite appellant’s contention that an objection would have been futile because the trial court had just overruled the prosecutor’s argument that the Temple family committed aggravated perjury, we conclude he waived any error by failing to object.  See Valdez, 2 S.W.3d at 521–22.  Thus, we overrule issues sixty-six and sixty-seven.

[14] See Jackson v. State, 17 S.W.3d 664, 673–74 (Tex. Crim. App. 2000) (“To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case.” (emphasis added)).

[15] See Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001) (“Neither the trial judge nor the prosecutor can comment on the failure of an accused to testify.  Such a comment violates the privilege against self-incrimination and the freedom from being compelled to testify contained in the Fifth Amendment of the United States Constitution and Article I, § 10, of the Texas Constitution.” (citations omitted)).    

[16] See Davis v. State, --- S.W.3d ---, No. AP-74,393, 2010 WL 3766661, at *19 (Tex. Crim. App. Sept. 29, 2010) (“We have consistently held that argument that strikes at a defendant over the shoulders of defense counsel is improper.”); Cockrell, 933 S.W.2d at 101 (“For many years this Court has recognized prosecutor’s arguments which personally attack defense counsel are manifestly improper because they serve to inflame the minds of the jury to the accused’s prejudice.”).    

[17] We note that appellant contends the prosecutor’s outburst abrogated his right to a fair trial.  Presumably, appellant is arguing the prosecutor’s misconduct was so egregious that it violated his constitutional right to due process, and, thus, harm should be determined under a Rule 44.2(a) harmless-error analysis.  We need not decide whether this particular outburst was constitutional or non-constitutional error because the trial court sustained appellant’s objection and denied his motion for mistrial; the Court of Criminal Appeals recently explained that denials of a motion for mistrial are not subjected to a harm analysis but are reviewed for abuse of discretion.  See Archie, 221 S.W.3d at 699–700; id. at 701–02 (Keller, P.J., concurring).