Christopher W. Cooley v. State

Opinion issued March 5, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-01016-CR

NO. 01-07-01018-CR

CHRISTOPHER COOLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause Nos. 1132548 & 1132549

MEMORANDUM OPINION

A jury convicted appellant, Christopher Cooley, of two felony offenses, as

follows: attempt to commit capital murder by employing another to commit capital

murder for remuneration, in trial court Cause No. 1132548, this Court's Cause No.

01-07-01016-CR; and solicitation of capital murder for remuneration, in trial court

Cause No. 1132549, this Court's Cause No. 01-07-01018-CR. (1) The jury assessed

appellant's punishment at 55 years' confinement in each case, to run concurrently.

Appellant presents three points of error. He challenges the sufficiency of the

evidence to support his convictions and claims that sidebar remarks and leading

questions by the prosecutor were prejudicial and that the trial court erred by

permitting leading questions by the prosecutor. We affirm.

Background

Charles Zubarik is the complaining witness and the intended victim of both

offenses. He and appellant were business partners who owned Genesis Aircraft

Support (Genesis), a company that provided unloading services for air freight. The

two men had met many years earlier while working for different air-freight

businesses, and they came to admire each other's talents. In 1997, Zubarik provided

appellant with a few thousand dollars to help him launch a new endeavor in Dallas.

They worked together on that venture and eventually created Genesis. Zubarik lived

and worked in Dallas, and appellant lived and worked in Houston.

In 2001, Zubarik invested $50,000 into Genesis. He acted as a "silent partner"

in the company until he was able to be more involved in management. Zubarik and

appellant ultimately agreed, verbally, that each would receive an annual salary of

$100,000. Appellant took a $150,000 salary, however. In addition, but unknown to

Zubarik, appellant paid his house loan out of Genesis funds. Each man also acquired

a $2 million insurance policy on the life of the other. (2)

Zubarik acknowledged at trial that appellant was more responsible for the

company's day-to-day operations, but he also claimed that appellant thwarted his

efforts to take on more responsibilities. As time progressed, the men's disagreements

about management of the company increased. Zubarik's particular concern was that

the company was not being run efficiently. Though it generated nearly eight million

dollars of revenue per year, the company was not profitable, and appellant would

often claim that cash-flow problems prevented paying Zubarik his monthly salary.

The evidence at trial showed that appellant's cash-flow problems resulted more

from his personal financial overreaching than from poor management of Genesis.

Appellant was married, and his wife required costly treatment on a weekly basis for

a rheumatoid arthritis condition. Though the father of four sons, aged five through

12, including one with a medical condition that required expensive treatment,

appellant engaged in an extramarital affair with at least one woman in another state.

Appellant also maintained a lake house and a boat, in addition to a house for his

family in Kingwood that had been appraised at $635,000. Zubarik did not know until

much later that an annual $60,000 of Genesis funds financed the house.

In early 2005, appellant approached a Genesis employee, Celso Castillo, and

asked whether Castillo "knew anybody that [sic] could do something bad." Castillo

initially dismissed the remark, but appellant contacted him again. This time,

appellant was more specific and stated that he wanted to hire someone to commit a

murder. Appellant offered Castillo $25,000, and Castillo recruited a fellow

employee, Jorge Argueta, for the task. Appellant provided information about the plot

to commit the murder, but identified the victim only as an "associate." Castillo

eventually learned that Zubarik was the intended target. Appellant wanted the murder

to take place in Dallas, but Castillo refused. Weeks later, another Genesis employee

drove from Chicago with the $25,000 payoff. He gave the money to appellant, who

gave it to Castillo, and they agreed to conduct the murder in Houston and formulated

a plan.

The plan was for Zubarik to come from Dallas to Houston for a dinner meeting

with appellant at a Kingwood restaurant. Zubarik would be killed after he left the

restaurant. Castillo was to remain in the restaurant parking lot and would contact

Argueta by telephone when Zubarik began to drive away in his gold Lexus RX300.

Appellant invited Zubarik to Houston on April 19, 2005 for the business dinner at a

Kingwood restaurant.

When Zubarik left the restaurant, appellant telephoned Castillo, who

telephoned Argueta, who was stationed in a car on a highway feeder along with

another individual. Castillo became frightened, however, and telephoned Argueta

again to call off the murder. Castillo instructed Argueta to claim that his gun had

malfunctioned.

Zubarik recalled at trial that the ostensible purpose of the April 19, 2005

meeting was to discuss a new business venture. But he and appellant neither

discussed nor decided any real business, though the dinner meeting lasted about 90

minutes. Zubarik remembered that appellant had insisted that Zubarik have dessert,

and that appellant had excused himself from the table before the meal ended. Zubarik

considered the meeting "a joke" and returned to his hotel.

A. Attempted Murder

The failed attempt angered appellant, who began to pressure Castillo to finish

the job. After more debate about where to conduct a similar crime, a plan similar to

the April 19 scheme emerged. This time appellant would meet Zubarik at a different

restaurant in the Kingwood area. This dinner meeting took place on May 2, 2005.

Appellant again insisted that Zubarik get dessert. "Trucking people" were also

present at the dinner meeting, but Zubarik recalled that, again, the meeting

accomplished nothing. After leaving the restaurant, Zubarik drove onto Beltway 8,

heading east. As planned, appellant contacted Castillo when Zubarik left the

restaurant. Castillo then used a two-way radio to communicate with Argueta, who

also had a two-way radio and was positioned in a car across the highway with a third

person.

As Zubarik drove along the highway, he suddenly found himself surrounded

by flying glass. Though startled, he recalled hearing two loud noises before feeling

sudden and acute pain in his right arm. With his arm was "just hanging there" and

the acute pain, Zubarik had to struggle to regain control of his vehicle. Yet, he

managed to accelerate and drive off the highway and into a Mobil station, where he

stumbled into the store area and collapsed. Photographs of Zubarik's vehicle showed

that the two shots were fired into the driver's side of his car, and photographs of the

car and the scene showed that he had lost considerable amounts of blood. In the

meantime, Argueta, who believed the murder had been accomplished, contacted

Castillo to tell him, "It's a done deal." Castillo contacted appellant and conveyed the

same message.

With the assistance of a bystander at the Mobil station, Zubarik was able to

telephone his wife at their home in Dallas and told her to contact appellant. Zubarik

could identify his location only as a gas station and did not know the address, but

appellant nonetheless arrived at the Mobil station just minutes later. Zubarik recalled

that appellant appeared very pale and feared that appellant might faint and collapse

on top of him. Emergency personnel summoned to the station transported Zubarik

to a hospital, where he was treated for severe injury to his right hand and blood loss.

Zubarik eventually required eight surgical treatments, in addition to continuing

treatment for a related staph infection. At the time of trial, Zubarik had only 55-60%

use of his hand.

Upset by the call about her husband, Zubarik's wife contacted a friend, who

immediately drove her from Dallas to Houston to see Zubarik. The two women went

to appellant's home and then followed him in his car as he drove to the hospital.

When they arrived at the hospital, appellant approached Zubarik's wife before she

could get out of her car. At trial, Zubarik's wife testified that appellant leaned into

the car to speak with her, warned her that the police would want to speak with her,

and told her "it would be better" if she did not mention insurance policies.

B. Solicitation of Capital Murder

Angered about the failed plan to kill Zubarik, appellant confronted Castillo and

issued an ultimatum to "Do what you got to do to make it right." Appellant suggested

that Zubarik be killed in the hospital. When Castillo refused, appellant prodded him

repeatedly for the next few months about carrying out the murder.

Zubarik told officers of the Harris County Sheriff's Department who were

investigating the incident that he did not see who had attacked him or the car from

which the shots came. He had no idea who his assailants might have been, though he

speculated a business controversy with an Illinois company could have prompted the

attempt on his life. Zubarik did question his two dinner meetings with appellant,

however, noting that they had not discussed any relevant business at either meeting.

Zubarik considered appellant a friend, had not had any recent "negative signals" from

him, and did not want to think of him as the perpetrator. The Harris County Sheriff's

Department investigated the scene of the shooting and also investigated the Illinois

company, but did not develop any leads.

About a year later, appellant contacted Castillo again about killing Zubarik, but

this time he increased the payoff to $30,000. Castillo contacted Argueta, who resisted

involvement at first, but later told Castillo that he had recruited "a homeboy" who

was willing to do the killing. Castillo did not immediately trust Argueta's recruit, but

nonetheless decided to proceed with the plan to use him as the hitman. Neither

Castillo nor Argueta realized that the recruit was working by then as an undercover

informant for the Houston Police Department (HPD).

Under the new plan, Zubarik would be murdered at a Genesis warehouse in

Dallas. After meeting with others to discuss the plot, a Genesis employee drove

Castillo and Argueta to Dallas in a Genesis company truck registered to appellant.

While in Dallas, they planned to meet yet another man who would supply money and

a gun to carry out the killing. After viewing the area and the plan for the murder,

Castillo, Argueta, and the undercover informant met at a Dallas restaurant, where they

received money and the gun to be used for the murder. Castillo and Argueta agreed

to alert the hit man when Zubarik was en route to the warehouse. Castillo and

Argueta then returned to Houston to develop an alibi. Undercover officers had audio-videotaped the restaurant meeting in Dallas.

HPD had been monitoring many meetings and communications through

surveillance and undercover officers in both Dallas and Houston. In one incident,

they watched Castillo meet with the undercover informant in Houston and learned

after that meeting about the plan for Castillo to meet in Dallas so that the hitman (the

undercover informant) could become familiar with the plan and location and learn

that Zubarik was the intended victim. HPD officers then approached Zubarik at his

home, outlined the plot to kill him, and told him that appellant would soon attempt

to lure him to the Dallas warehouse. Police officers stayed at Zubarik's home for a

number of days and provided him with equipment to record any communications with

appellant.

Appellant telephoned Zubarik five times about visiting the Dallas warehouse

as quickly as possible. Zubarik was able to record two of the conversations.

Appellant claimed that he had sent a package to the warehouse office and that the

package contained important documents about an IRS audit that required Zubarik's

signature or acknowledgment. (3) Zubarik managed to delay the trip to by claiming he

could not make the trip because of staph-infection complications with his arm injury.

Appellant persisted, however, and the package was eventually sent to the

Dallas warehouse. But, Zubarik never made the trip because police soon arrested

everyone involved in the plot. The package sent to the warehouse contained only a

CD; there were no documents. Zubarik later learned that appellant had purchased an

additional $2 million policy to insure Zubarik's life.

C. The Trial

At trial, Castillo testified about his role, appellant's role, and the role of the

other participants in committing the offenses. The evidence at trial included the

money, gun, and ammunition delivered at the restaurant meeting in Dallas and two

of the five recorded telephone conversations between appellant and Zubarik. When

appellant testified at trial, his marriage had ended, and Genesis was bankrupt.

Appellant claims that another Genesis employee had fabricated the plots with

Castillo, Argueta, and others and had framed appellant. The evidence established that

Castillo and Argueta confessed to participating in both offenses, and that the shooter,

Adrian Beltran, confessed to participating in the attempted murder on April 19, 2005,

in which Argueta was the driver. The trial court's charge to the jury for each case

instructed the jury that Castillo was an accomplice as a matter of law.

Accomplice-Witness Testimony

Appellant's first issue purports to challenge the legal and factual sufficiency

of the evidence to support his convictions. In support of his challenge, however, he

argues that the State did not sufficiently corroborate the testimony provided by the

accomplice-witnesses. Regarding his conviction for attempted solicitation of capital

murder for remuneration, appellant contends that the testimony of Castillo and the

informer lacked sufficient corroboration. For his attempted capital murder

conviction, appellant contends that Castillo's testimony lacked sufficient

corroboration. Appellant's contentions invoke two statutes whose terms govern

convictions when the State relies on accomplice-witness testimony. See Tex. Code

Crim. Proc. Ann. art. 38.14 (Vernon 2005) (general rule of accomplice-witness

testimony); Tex. Penal Code Ann. § 15.03 (b) (Vernon 2003) (accomplice-witness

rule for criminal solicitation cases).

A. Standard of Review

1. Statutory Sufficiency

Addressing the accomplice-witness rule of article 38.14, the Court of Criminal

Appeals described the rule as "a statutorily imposed review" that "is not derived from

federal or state constitutional principles that define the legal and factual sufficiency

standards." Druery v. State , 225 S.W.3d 491, 498 (Tex. Crim. App. 2007); see

Cathey v. State , 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999); Cao v. State , 183

S.W.3d 707, 710 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd) (citing Cathey ,

992 S.W.2d at 462-63 ); cf. , Long v. State , 245 S.W.3d 563, 569-70 (Tex.

App.--Houston [1st Dist.] 2007, no pet.); St. Julian v. State , 132 S.W.3d 512, 515-17

(Tex. App.--Houston [1st Dist.] 2004, pet. ref'd) (applying both statutory standards

and traditional sufficiency standards, given that appellants had challenged not only

sufficiency of non-accomplice testimony, but also sufficiency of evidence in general).

Appellant's challenges in this case focus on lack of corroboration of the

accomplice witnesses. In addition to his arguments under the statutory standards,

appellant asserts a conclusory challenge to the legal and factual sufficiency of the

evidence, but again focuses on the non-accomplice testimony and does not challenge

the evidence as a whole. Accordingly, we apply the sufficiency standard dictated by

the Legislature in enacting articles 38.14 of the Code of Criminal Procedure and

section 15.03 of the Penal Code. See Druery v. State , 225 S.W.3d at 498 .

2. "Corroboration" Statutes

Article 38.14 of the Code of Criminal Procedure provides that, "A conviction

cannot be had upon the testimony of an accomplice unless corroborated by other

evidence tending to connect the defendant with the offense committed; and the

corroboration is not sufficient if it merely shows the commission of the offense."

Tex. Code Crim. Proc. Ann. art. 38.14.

An additional statute governs testimony by an accomplice witness in a

criminal-solicitation case. (4)

Pursuant to section 15.03(b) of the Penal Code, "A person

may not be convicted of criminal solicitation on the uncorroborated testimony of the

person allegedly solicited, unless the solicitation is made under circumstances

strongly corroborative of both the solicitation itself and the actor's intent that the

other person act on the solicitation. Tex. Penal Code Ann. § 15.03 (b).

3. Review is the Same under Either Statute

In Richardson v. State , 700 S.W.2d 591, 594 (Tex. Crim. App. 1985), the Court

of Criminal Appeals rejected the petitioner's contention that the words "strongly

corroborative" in section 15.03(b) of the Penal Code imposed a more rigorous

standard for criminal-solicitation convictions than the standard imposed by the

general accomplice-witness statute, article 38.15 of the Code of Criminal Procedure.

See Claxton v. State , 124 S.W.3d 761, 765 (Tex. App.--Houston [1st Dist.] 2003, pet.

denied) (citing Richardson , 700 S.W.2d at 594 ). As Richardson explained, section

15.03(b) does not impose a more stringent standard than article 38.15, but is

"analogous" to it and "should be read in conjunction with it." Id. On construing the

two statutes together, the Court of Criminal Appeals interpreted the words "strongly

corroborative" in section 15.03(b) as merely re-emphasizing the need for "some

additional safeguard." Id. ; see Claxton , 124 S.W.3d at 765 . Section 15.03 provides

that additional safeguard by requiring that the requisite corroboration "go to both the

solicitation and the solicitor's intent." Id. (citing Practice Commentary to Tex.

Penal Code Ann. § 15.03 ).

For both offenses, therefore, we apply the well-settled standard of review,

which requires that evaluate the sufficiency of corroboration evidence under the

accomplice-witness rule by first eliminating testimony of the accomplice from

consideration and then examining the remainder of the record for non-accomplice

witness evidence that "tends to connect the accused with the commission of the

crime." Malone v. State , 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting

Solomon v. State , 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)); see Long , 245

S.W.3d at 568 . In criminal solicitation cases, this standard demands that the non-accomplice evidence tend to connect the accused, here appellant, with both the

solicitation and his intent. See Richardson , 700 S.W.2d at 594 ; Claxton , 124 S.W.3d

at 765 .

In applying this standard, we view the evidence in the light that most favors the

jury's verdict. Brown v. State , 270 S.W.3d 564, 567 (Tex. Crim. App. 2008) (citing

Gill v. State , 873 S.W.2d 45, 48 (Tex. Crim. App. 1994)); Claxton , 124 S.W.3d at

765 . We consider the combined weight of the non-accomplice evidence, even if that

evidence is entirely circumstantial. Claxton , 124 S.W.3d at 765 (citing Saunders v.

State , 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)). Corroborating evidence is

"incriminating" evidence that does not come from an accomplice witness. See

Claxton , 124 S.W.3d at 765 . Corroborating evidence that shows only that the offense

was committed is not sufficient. Tex. Code Crim. Proc. Ann. art. 38.14, 38.141(b);

Castillo v. State , 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). Yet, the

corroborating, i.e., non-accomplice, evidence need not be sufficient, by itself, to

establish that the accused is guilty beyond a reasonable doubt. Long , 245 S.W.3d at

568 (citing Castillo , 221 S.W.3d at 691 ). Likewise, the corroborating evidence need

not directly link the accused to the offense. Castillo , 221 S.W.3d at 691 .

Circumstances that appear insignificant may constitute sufficient evidence of

corroboration. Malone , 253 S.W.3d at 257 . Likewise, though "mere presence" is

insufficient corroboration, evidence that the accused was at or near the scene when

or about when it was committed may sufficiently tend to connect the accused to the

crime, provided the evidence is "coupled with other suspicious circumstances." Id.

Because each case must rest on its own facts, corroboration does not require

a set quantum of proof. Id. The single requirement is that "some" non-accomplice

evidence, on which rational jurors could properly rely, see id. , tends to connect the

accused to the commission of the offense, Long , 245 S.W.3d at 568 -69 (citing

Castillo , 221 S.W.3d at 691 ). For appellant's criminal-solicitation conviction, this

requirement applies to evidence of the solicitation itself and to evidence of the intent

of the accused that the person solicited act. See Richardson , 700 S.W.2d at 594 ;

Claxton , 124 S.W.3d at 765 .

B. Attempt to Commit Capital Murder by Employing Another

In challenging his conviction in Cause No. 01-07-01016-CR for the offense of

attempting to commit capital murder by employing another to commit murder for

remuneration, appellant contends that the jury relied solely on the testimony of the

accomplice witness Castillo, and that there is no evidence that corroborates Castillo's

testimony. We disagree.

The trial court's charge to the jury for this offense instructed the jury that

Castillo was an accomplice and tracked the corroboration requirements of article

38.14. Apart from Castillo's accomplice testimony, the jury heard evidence from

Zubarik, whom appellant summoned twice from Dallas to Houston within three

weeks for what appellant described as business meetings, but which Zubarik recalled

as meaningless, given that they neither discussed nor decided any business. Zubarik

dismissed, as a joke, the April 19 dinner with appellant, after which the plan to kill

him failed to go forward. Despite the lack of business discussion, the April 19 dinner

lasted 90 minutes, and Zubarik remembered that appellant insisted that Zubarik

remain to have dessert. Though circumstantial, this evidence had more significance

after the attempted murder on May 2, after an equally nonproductive meeting, during

which appellant again insisted that Zubarik remain to have dessert.

Zubarik also questioned the purpose of the May 2 dinner, after which the

attempted murder took place, because there was no attempt to accomplish any

business, despite the presence of other, "trucking" people with whom future business

was apparently contemplated. In addition, appellant excused himself from the group

during the dinner. After the attempt on his life, Zubarik also recalled that appellant

had appeared at the Mobil gas station within minutes, despite Zubarik's having

provided few details and no address about his location and despite appellant's trial

testimony that he had stopped at several stations looking for Zubarik's car. See

Malone , 253 S.W.3d at 251 (noting that proximity can corroborate when other

circumstances also present). Zubarik also recalled that appellant appeared so pale

that Zubarik feared appellant might faint and fall on him. There is also Zubarik's

wife's testimony that appellant had approached her, after escorting her and her friend

to the hospital where emergency personnel had transported Zubarik. While

cautioning her that police would want to interview her, appellant said that it would

be better that she not mention the million-dollar insurance policy that appellant

owned on her husband's life.

Considering the combined weight of the non-accomplice evidence, we hold

that the State met its burden to provide some evidence that tended to connect

appellant with the attempted murder of Zubarik on May 2, 2005, separate and apart

from Castillo's testimony, and therefore hold that sufficient evidence corroborates

Castillo's testimony, as required by article 38.14.

C. Criminal Solicitation , Cause No. 01-07-01018 - CR .

Appellant further contends that the jury relied solely on Castillo's accomplice-witness testimony in convicting him of solicitation of capital murder. Here, too,

appellant contends that the jury relied solely on the testimony of Castillo, and that the

State did not corroborate that testimony, as required by article 38.14 and section

15.03 the Penal Code. Again, we disagree. As stated above, corroborating evidence

for the offense of solicitation of capital murder had to connect appellant not only to

the solicitation itself, but also to his intent. E.g., Claxton , 124 S.W.3d at 765 .

Viewed in light that favors the jury's verdict, see Brown , 270 S.W.3d at 567 , the

evidence corroborates both elements.

Appellant annually spent an additional $20,000 of funds of the financially

troubled company to purchase an additional $2 million life-insurance policy on

Zubarik's life. But he never informed Zubarik about the extra policy. Appellant

discredits this evidence as common practice among businesses owners. But, this does

not explain why appellant never told Zubarik that he had acquired the new policy, or

why appellant cautioned Zubiarik's wife not to mention life insurance to the officers

investigating the April 19 attempted murder of her husband.

Appellant also dismisses his unproductive business dinners with Zubarik on

both April 19 and May 2, 2005 as evidence of corrobration. Beyond suggesting that

the colleague whom he blamed for the offenses might have overhead the

conversations arranging the dinner meetings with Zubarik and then told Castillo,

appellant could not explain how Castillo knew that Zubarik would be coming from

Dallas to Houston for the two dinner meetings with appellant.

Appellant's prompt appearance at the imprecisely identified gas station after

the attempted murder is circumstantial evidence that tends to show appellant was

informed of Zubariks' location at the time of the shooting by the shooter or someone

in contact with the shooter.

Appellant's repeated attempts to entice Zubarik to the Dallas warehouse further

corroborate Castillo's accomplice testimony, both as to appellant's intent to solicit

Zubarik's murder and as to the solicitation itself. Of the five telephone calls that

appellant made to Zubarik about the alleged need for Zubarik to be at the Dallas

warehouse to sign documents for an audit by the Internal Revenue Service, police

officers recorded two of those calls. It is apparent from the record that appellant

became very angry when Zubarik refused appellant's requests. As the record also

shows, despite appellant's references to a document or documents that required

Zubarik's signature, the package sent to the Dallas warehouse contained only a CD.

Finally, the truck used to transport both the persons who confessed to participating

in the offense and the gun and money that police recovered at the scene was

registered to appellant.

We hold that the State met its burden to provide some evidence, separate and

apart from Castillo's testimony, that tended to connect appellant with criminal

solicitation to murder Zubarik, both as to appellant's intent and as to the solicitation

itself. We therefore hold that sufficient evidence corroborates Castillo's accomplice-witness testimony.

We overrule appellant's first point of error.

Prosecutorial Misconduct through Leading and Badgering Questions

In his second and third points of error, appellant challenges questioning and

conduct by the prosecutor, as well as the trial court's exercise of its discretion in

ruling on appellant's objections. According to appellant, the prosecutor used leading

questions, made sidebar remarks, and badgered witnesses to the degree that his

conducted amounted to "prosecutorial misconduct [that] inflamed and prejudiced the

minds of the jury."

A. "Leading Questions"

A leading question either suggests the answer sought by the interrogator or puts

words into the mouth of the witness to be "echoed back" in reply. Mega Child Care,

Inc. v. Tex. Dep't of Protective & Reg. Servs. , 29 S.W.3d 303, 307 (Tex.

App.--Houston [14th Dist.] 2000, no pet.) (citing Myers v. State , 781 S.W.2d 730,

733 (Tex. App.--Fort Worth 1989, pet. ref'd)).

1. Standard of Review

Rule 611(c) proscribes leading questions on direct examination "except as may

be necessary to develop the testimony of the witness." Tex. R. Evid. 611(c); Mega

Child Care, Inc. , 29 S.W.3d at 307 (citing Tex. R. Evid. 611(c)). Rule 611 thus

continues well-settled law recognizing the "sound discretion" vested in trial courts

to permit leading questions. See Wyatt v. State , 23 S.W.3d 18, 28 (Tex. Crim. App.

2000); Mega Child Care, Inc. , 29 S.W.3d at 308 . To establish that the trial court

abused its discretion, appellant must demonstrate that the claimed leading questions

resulted in undue prejudice. See Wyatt , 23 S.W.3d at 28 . It is essential that appellant

have preserved error through a timely request that the trial court refused. See Young

v. State , 137 S.W.3d 65 , 69 & n.5 (Tex. Crim. App. 2004) (quoting text of Tex. R.

App. P. 33.1(a)). Even if we conclude that the trial court erred, this Court may not

reverse unless we conclude, from the record as a whole, that the error affected a

substantial right of the appellant. James v. State , 264 S.W.3d 215, 222 (Tex.

App.--Houston [1st Dist.] 2008, pet. ref'd) (citing Tex. R. App. P. 44.2(b)). Error

affects a substantial right of an accused when it had a substantial and injurious effect

or influence on the jury in determining its verdict. Id. (citing Johnson v. State , 43

S.W.3d 1, 3-4 (Tex. Crim. App. 2001)).

When the trial court has sustained an appellant's objection and has instructed

the jury to disregard, however, the instruction to disregard will generally cure any

error, because we presume that the jury complied with the instruction. See Bermudez

v. State , 504 S.W.2d 868, 871 (Tex. Crim. App. 1974). Finally, an erroneous

evidentiary ruling is harmless when other evidence on the same matter is admitted

without objection from appellant. James , 264 S.W.3d at 222 (citing Saldano v. State ,

232 S.W.3d 77, 102 (Tex. Crim. App. 2007); Leday v. State , 983 S.W.2d 713, 717-18

(Tex. Crim. App. 1998)).

C. Discussion

1. Questions that Appellant Claims the Jury Could Not Disregard

Appellant acknowledges that an instruction by the trial court to disregard will

cure most error that arises from a leading question. See Bermudez , 504 S.W.2d at

871 . Appellant contends, however, that two questions by the prosecutor exceeded the

bounds of that general rule and thus constitute exceptions to it that warrant reversal.

We disagree.

The first of these questions occurred when the prosecutor questioned Officer

F. Quinn, whom the undercover informant approached in November 2006 after he had

been conscripted to murder someone for a $2,000 down payment and $15,000 payoff.

Officer Quinn had just completed testimony in which he described the information

he obtained about Castillo through the undercover informant. Specifically, Quinn

learned that Castillo worked for Genesis, that the photograph on his driver's license

depicted him in his Genesis uniform, and that he lived in a working-class area, all of

which, Quinn testified, gave the informant's earlier information "a lot of credibility."

At that point, the prosecutor asked the following question:

Did it seem strange to you that someone who appeared to be a working

man, whose actual driver's license [showed him] in his uniform, lived

in a lower/middle class part of town, would have all this money to hire

someone to kill somebody?

When appellant objected on the grounds that the question was leading, the trial

court instructed the prosecutor not to lead. When Quinn replied nonetheless, "It

seemed a little strange," the trial court, prompted by appellant's counsel, instructed

Officer Quinn to wait for the next question. Appellant's counsel then asked that the

jury be instructed to disregard the inadvertent answer, and the trial court complied.

The prosecutor attempted, through two additional questions of Officer Quinn, to ask

whether he was concerned about what he learned about Castillo and what those

concerns were. The trial court sustained objections to both of these questions.

Appellant contends on appeal that the trial court's instruction to disregard did

not cure the harm from the prosecutor's "Did it seem strange . . ." question excerpted

above. Yet, appellant did not object to the next question the prosecutor posed to

Quinn, ". . . Are [sic] you concerned there is [sic] more people involved in this plot

than just Argueta and Castillo?" Likewise, appellant did not object to Quinn's

response, "Yes, sir." The prosecutor thus elicited, without objection, a response from

Officer Quinn that was similar to the response that the trial court had just instructed

the jury to disregard, but provided even more information than the answer that the

trial court had struck. Accordingly, any error arising from Officer Quinn's initial

answer or from the trial court's ruling is harmless. See James , 264 S.W.3d at 222 .

A similar analysis applies to the second question, also posed to Officer Quinn,

that appellant contends was so harmful that the trial court's instruction to disregard

failed to cure the resulting prejudice to appellant. The question occurred during the

prosecutor's redirect examination, after Quinn stated that he did not have enough

information to charge the undercover informant Wade, but that he would not have

hesitated to pursue indictments had there been sufficient information. The prosecutor

then asked Officer Quinn,

Counsel has indicated or asked you whether there is any physical

evidence linking his client to the April 19th or May 2nd evidence. Is

there one single shred of evidence linking Celso Castillo, George

Argueta or Adrian Beltran to either of those incidents? We're talking

about seven indictments there.

Officer Quinn replied that there was none and then replied "Yes, sir, they did," when

the prosecutor asked if they had confessed, and "No, sir." when the prosecutor asked,

"So, there is no physical evidence against them, either?" The next question by the

prosecutor resulted in incurable harm, according to appellant, even though Officer

Quinn did not reply. The question was, "They're [sic] conscience[s] compelled them

to confess?"

Here, again, the trial court sustained appellant's objection that the prosecutor's

question was leading and then instructed the jury to disregard the question. Here too,

however, appellant did not object to the following question by the prosecutor: "Well,

let me ask you this: Is playing on someone's conscience one of the techniques that

you and your people use in interviewing suspects?" Likewise, there was no objection

to Quinn's reply, in which he stated,

It is. And I think most people, when they get caught, they know it's

coming; so a lot of times their conscience does work on them and they

are ready. I think, deep down, they know one day it's coming and it's

going to catch up with them. They know.

The prosecutor thus posed, without any objection, a question that, in addition,

elicited a response from Officer Quinn, again without objection, that likely provided

more information than Quinn might have provided in response to the earlier question

that appellant contends was incurably harmful. Under these circumstances, the earlier

question that appellant challenges was rendered harmless. See James , 264 S.W.3d

at 222 .

2. Waived Complaints

Appellant also complains about questions by the prosecutor to which appellant

objected and the trial court sustained objections, but to which appellant concedes he

did not request that the jury be instructed to disregard. Appellant complains on

appeal that the prosecutor continued to use leading questions on direct examination

after having been previously admonished not to lead the State's witnesses.

Appellant's complaint encompasses eight questions posed by the prosecutor. The

prosecutor posed the questions to Quinn, Castillo, and Zubarik.

The "traditional and preferred procedure" for preservation of error requires that

the complaining party object when it is possible, to request an instruction to disregard

if the prejudicial event has occurred, and to move for a mistrial for error that an

instruction to disregard would not cure. Though this actual sequence is not essential,

"a timely, specific request that the trial court refuses" is essential. Young , 137 S.W.3d

at 69 & n.5 (quoting text of Tex. R. App. P. 33.1(a)).

Appellant defends not pursuing his objections to the eight questions he

enumerates to an adverse ruling on the grounds of not wanting to "sound redundant

and further frustrate an already frustrated jury by continuously asking for instructions

for the jury to disregard." In response, the State disputes that the questions qualified

as leading and argues that the substance of the questions either repeated or clarified

evidence already presented through other witnesses. See Newsome v. State , 829

S.W.2d 260, 270 (Tex. App.--Dallas 1992, pet. ref'd). The State alternatively

contends that appellant has not established that the prosecutor's questions inflamed

the jury or explained how the questions prejudiced appellant and, lastly, that appellant

did not preserve his complaint.

Though the record of this case reflects a highly contentious trial, the trial court

moved swiftly through objections by both sides and ruled promptly and efficiently.

The trial court's instructions to discontinue leading questions were likewise delivered

promptly and efficiently. We therefore conclude that appellant's failure to pursue his

complaints to an adverse ruling is dispositive, and we hold that appellant waived any

error. See Tex. R. App. P.33.1(a); Young , 137 S.W.3d at 69 .

3. Overruled Objections

Appellant next contends that the trial court abused its discretion by overruling

appellant's objections to six questions that appellant contends were impermissibly

leading. The prosecutor posed five of these questions to Castillo and the last question

to Officer Powell. Having reviewed the record in the context of these questions and

the trial court's ruling, we cannot say that the trial court abused its discretion. See

Wyatt , 23 S.W.3d at 28 . Though each of these questions elicited a "yes" or "no"

answer, none of the questions suggested an answer that the prosecutor expected or put

words into the mouth of the witness to be repeated in the reply. See Mega Child

Care, Inc. , 29 S.W.3d at 307 .

We overrule the portions of appellant's second and third points of error that

challenge questions by the prosecutor that appellant contends were impermissibly

leading.

Prosecutorial Misconduct

Appellant further contends, in his second point of error, that the cumulative

effect of sidebar remarks, badgering, and improper jury argument by the prosecutor

resulted in sufficient prejudice to warrant reversal.

A. Standard of Review

Claims of misconduct arising from inappropriate remarks by the prosecutor will

not constitute reversible error unless, in light of the record as a whole, the remarks or

arguments are extreme or manifestly improper, violate a mandatory statute, or inject

new facts harmful to the accused into the trial proceeding. See Wesbrook v. State , 29

S.W.3d 103, 115 (Tex. Crim. App. 2000). To rise to this level, we must be convinced

that the remarks represented a willful and calculated effort on the part of the State to

deprive appellant of a fair and impartial trial. Id. In most instances, an instruction

to the jury to disregard, which we may presume that the jury followed, will cure error

from an improper remark. Id. Only offensive or flagrant error will warrant reversal

when the trial court has instructed the jury to disregard. Id. at 116 .

B. Discussion

Again grouping his complaints, appellant complains of eight different remarks.

Six remarks involve questions by the prosecutor; the remaining two concern

comments by the prosecutor during jury argument.

1. Questions

At the beginning of his cross-examination of Officer P. Powell, the prosecutor

began his first question as follows: "I want to separate out what somebody says as

fact--." Appellant interrupted the question to object "to the side-bar." The trial court

sustained the objection, and instructed the prosecutor to "Just ask the questions."

When the prosecutor replied that he intended no side-bar, the trial court promptly

instructed the jury to disregard the prosecutor's response--without appellant's having

objected or requested that relief. There was no further discussion, and the prosecutor

proceeded to his next question. Given that the trial court swiftly instructed the jury

to disregard, on the court's own motion, we presume that the jury followed that

instruction. See Wesbrook , 29 S.W.3d at 116 . The prosecutor's remark did not rise

to the level that the jury was incapable of disregarding it.

Regarding the five remaining questions by the prosecutor, the trial court

sustained objections to sidebar remarks for three questions, but appellant accepted

that relief and did not pursue his objections to an adverse ruling. Accordingly,

appellant did not preserve any error that may have arisen from the remarks. See Tex.

R. App. P. 33.1(a). Regarding the remaining two questions, the trial court sustained

objections to the prosecutor's phrasing, after which the prosecutor chose different

words to ask the questions. Here, too, appellant did not preserve error because he did

not pursue his objection to an adverse ruling. See id. On reviewing the record, we

are not convinced that the prosecutor's remarks show a willful and calculated effort

on the part of the State to deprive appellant of a fair and impartial trial. See

Wesbrook , 29 S.W.3d at 115 ..

2. Jury Argument

Appellant next complains about two remarks by the prosecutor during rebuttal

arguments to the jury at the guilt-innocence stage of the trial. Appellant argues that

the prosecutor's remarks were so prejudicial that the trial court's instruction that the

jury disregard could not have cured the harm that arose from them.

Contested jury argument must be extreme or manifestly improper to constitute

reversible error. Sandoval v. State , 52 S.W.3d 851, 857 (Tex. App.--Houston [1st

Dist.] 2001, pet. ref'd). "In general, proper jury argument encompasses one of the

following: (1) summation of the evidence presented at trial; (2) reasonable

deductions drawn from that evidence; (3) answers to the opposing counsel's

argument; and (4) pleas for law enforcement." Id. ; Guidry v. State , 9 S.W.3d 133,

154 (Tex. Crim. App. 1999). In most cases, if error occurs, an instruction to disregard

will cure any error committed. Shannon v. State , 8942 S.W.2d 591 , 597 (Tex. Crim.

App. 1996); Cole v. State , 194 S.W.3d 538, 544 (Tex. App.--Houston [1st Dist]

2006, pet. ref'd).

Improper jury argument does not result in reversible error that warrants a

mistrial unless the trial court's instruction to disregard would not cure any resulting

harm. Lucero v. State , 246 S.W.3d 86, 101 (Tex. Crim. App. 2008). Harm from

improper jury argument is incurable if the argument (1) is extreme, improper, injects

new and harmful facts into the case, or violates a mandatory statutory provision and

(2) as a result, is so inflammatory that its prejudicial effect cannot reasonably be

cured by an instruction to disregard. Thompson v. State , 89 S.W.3d 843, 851 (Tex.

App.--Houston [1st Dist] 2002, no pet.) (citing Long v. State , 823 S.W.2d 259, 267

(Tex. Crim. App. 1991); Logan v. State , 698 S.W.2d 680, 682 (Tex. Crim. App.

1985)).

The remarks occurred just before the prosecutor concluded his argument. In

each instance, the prosecutor's final remark was a request that the jurors "trust" him.

In the first instance, the prosecutor argued,

Now, Gregulak is based in Chicago till he gets caught stealing, and the

defendant relocates him to Dallas. What connection does he have to the

three other plotters that he all of a sudden shows up at a Whataburger

with a gun and $15,000? What is the link? What is the link between

Gregulak and the other three? The link is right there. There is no other

link. He's the only plotter. Again, trust me.

(Emphasis added.) The trial court sustained appellant's objection, instructed the jury

to disregard, but denied appellant's request for a mistrial. Continuing his final

summation, first by discrediting appellant's defensive theory and then emphasizing

appellant's culpability through the telephone calls he made to Zubarik, the prosecutor

then stated,

. . . Is the defendant guilty? Of course he is. Folks, I ask you for no

more, but no less, than [Zubarik and his wife] deserve. They've been

waiting a long two years. I ask you for justice, for a swift and justified

verdict of guilty. Trust me.

(Emphasis added.) Once again, the trial court sustained appellant's objection,

instructed the jury to disregard, but denied appellant's request for a mistrial. (5)

In Thompson v. State , a panel of this Court concluded that the prosecutor's

request that jurors "trust" him was not a request for law enforcement, as the State

contended, but harmful error that affected the defendant's substantial rights and

required reversal for a new punishment hearing. 89 S.W.3d at 853 -54 (citing Tex. R.

App. P.44.2(a) (constitutional error standard)). We distinguish Thompson , in which

the prosecutor's remark occurred in the following context:

Ladies and gentlemen, there's something important that I cannot tell you

about concerning why you should not give [appellant] anything less than

ten years. There's a very important reason[,] but legally I'm not allowed

to tell you what it is[,] but it is very important. Trust me on this . If you

give [appellant] less than ten years, you will find out later what's going

to happen.

89 S.W.3d at 850 (emphasis added).

In Thompson , the prosecutor's argument asked the jury to speculate about a

"'very important'" matter; the jury had no idea what this important matter was, but was

nonetheless asked to "trust" the prosecutor that it existed and, for that reason, to assess

a minimum of ten years' punishment. Id. at 851 . This was not only egregiously

improper, but also rendered the jury's task of applying the law to the facts "especially

difficult." Id. at 854 .

In this case, by contrast, the prosecutor did not use the words "Trust me" to refer

to matters that were outside the record or unknown to the jurors; likewise, the

prosecutor did not ask the jurors to speculate about unknown matters. See id. at

851-52 . The words were not extreme or improper and did not inject new and harmful

facts or violate a mandatory statutory provision. See id. at 851 . On the record before

us, the words appear to be a rhetorical device repeated by the prosecutor to emphasize

the State's interpretation of the evidence developed at trial. To the extent that the

words, "Trust me," can be construed as the prosecutor's improperly attempting to

testify--by vouching to the truth through his arguments--by sustaining appellant's

objection and promptly instructing the jury to disregard, the trial court cured any

resulting harm. See Lucero , 246 S.W.3d at 101 . We therefore hold that the

prosecutor's "Trust me" remark was not so inflammatory that its prejudicial effect

required a mistrial. See id. ; Thompson , 89 S.W.3d at 851 .

We overrule the remaining portions of appellant's second point of error.

Conclusion

We affirm the judgments of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).

1. This Court has previously held that the trial court did not abuse its discretion by

setting appellant's bond. See Cooley v. State , 232 S.W.3d 228 (Tex. App.--Houston

[1st Dist.] 2007, no pet.).

2. The record reflects that the initial purpose of these policies was to provide cash to the

survivor to purchase the stock of the decedent from the survivor's spouse. At some

point, the policies featured in a proposed "buy-sell" plan proposed by appellant.

3. The request to Zubarik was not simply to "sign for a package," as appellant contends,

but to sign a document and to examine some financial information.

4. "A person commits the offense of criminal solicitation if, with intent that a capital

felony or felony in the first degree be committed, he requests, commands, or attempts

to induce another to engage in specific conduct that, under the circumstances

surrounding his conduct as the actor believes them to be, would constitute the felony

or make the other a party to its commission."

Tex. Penal Code Ann. § 15.03 (a) (Vernon 2003).

5. Appellant complains of two instances of the words "Trust me" by the prosecutor. But

the prosecutor had already used the words once before in final summation, when he

referred to appellant's infidelity, but assured the jurors, through the phrase, "Trust

me," that he meant only to show how desperate appellant had become as a result of

his financial difficulties. Appellant did not object to the words at that time.