# Hughes v. State

> Court of Criminal Appeals of Texas · June 23, 1993 · 878 S.W.2d 142

URL: https://www.frixlaw.com/law-library/cases/9768401

## Case

- **Full name:** Preston HUGHES, III, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 23, 1993
- **Citations:** 878 S.W.2d 142; 1992 WL 360550
- **Precedential status:** Published
- **Opinion:** On rehearing by Meyers
- **Judges:** Campbell, Meyers, Baird, Mecormick, White, Overstreet, Clinton
- **Cited by:** 226 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768401

## How later opinions describe it (automated extraction)

- holding that where an appellate court fails to address systemic requirements on original submission such as issue of whether error has been preserved or forfeited by the parties, the parties may call to the court's attention such failure in a motion for rehearing
- holding that a motion for rehearing regarding a preservation of error issue was an appropriate vehicle to force "appellate courts to observe their systemic requirements"
- holding that trial court's instruction was sufficient to cure any harm caused by police officer's reference to appellant having a parole officer
- holding that jury instruction to disregard reference to the appellant=s parole status was sufficient to cure the unresponsive answer

## Opinion text

OPINION ON STATE’S MOTION FOR REHEARING
MEYERS, Judge.
On original submission we granted appellant relief and reversed his conviction based on the trial court’s denial of a challenge for cause for prospective juror Faulkner. This Court has now granted the States’s second ground in their motion for rehearing. The State argues for the first time that “any error from the denial of the challenge for cause was cured because the trial judge did grant appellant one additional peremptory strike.” Consequently, appellant now insists on rehearing that it would be unfair to allow the State to raise this new argument in their motion for rehearing. Because we will allow the State’s argument, we overrule appellant’s objection and their remaining points of error and affirm the judgment of the trial court.
I.
Today, we are asked to assess the role of appellate courts in direct review cases. Specifically, we must determine what must be argued to an appellate court and what that court must review independently in reaching the merits of the arguments of the parties. Rule 74 of the Texas Rules of Appellate Procedure governs the preparation and filing of briefs in direct appeals to this Court. See Tex.R.App.P. 210(b). We have previously held there are times when, “as justice requires” or “in the interest of justice,” an appellate court may consider a supplemental brief or a motion for rehearing to decide an issue not presented in the original briefs. See Boyle v. State, 820 S.W.2d 122, 141 (Tex.Crim.App.1991) (opinion on rehearing), cert. denied, — U.S. -, 112 S.Ct. 1297 , 117 L.Ed.2d 520 (1992); Rochelle v. State, 791 S.W.2d 121 (Tex.Crim.App.1990).
Where an appellate court fails to address issues of whether error has been preserved or forfeited by the parties, the parties may call to the court’s attention such failure in a motion for rehearing. This notice gives appellate courts opportunity to examine an issue possibly overlooked, thus promoting efficiency in our legal system. Just as a trial judge has certain independent duties to perform at a trial, when she fails to perform any of those duties the parties may object. Likewise, the parties in an appellate setting may object, through a motion for rehearing, to an appellate court’s failure to address systemic requirements on original submission. This objection after the fact is not unfair to one party or the other, but rather it maintains the essential integrity of our system by forcing appellate courts to observe their systemic requirements. In these instances and in the interest of justice, the decision to grant the State’s motion for rehearing is left within the sound discretion of our Court. See, Boyle, 820 S.W.2d at 141 . Accordingly, the State’s second ground in its motion for rehearing is granted to determine whether appellant preserved error in objecting to a venireperson based on a trial court’s denial of a challenge for cause.
II.
On original submission we reversed appellant’s conviction based on the trial court’s denial of a challenge for cause for prospective juror Faulkner. However on rehearing, the State argues that because the trial court reinstated one peremptory strike, appellant has failed to preserve error. In order to preserve error for a trial court’s denial of an appellant’s valid challenge for cause it must be demonstrated on the record that appellant asserted a clear and specific challenge for cause clearly articulating grounds therefor, that he used a peremptory challenge on that juror, that all his peremptory challenges were exhausted, that his request for additional strikes is denied, and that an objectional juror sat on the case. Harris v. State, 790 S.W.2d 568, 581 (Tex.Crim.App.1989); Felder v. State, 758 S.W.2d 760 (Tex.Crim.App.1988); Payton v. State, 572 S.W.2d 677 (Tex.Crim.App.1978).
*152 In appellant’s case, the trial court reinstated one peremptory strike. 1 Where a trial court reinstates peremptory strikes, to show harm, the party complaining on appeal must show that one additional juror sat on the case than the number of reinstated peremptory strikes. Martinez v. State, 768 S.W.2d 413, 415 (Tex.Crim.App.1988); Bell v. State, 724 S.W.2d 780, 795 (Tex.Crim.App.1986). In this case, to show harm, appellant must show the trial court impermissibly denied his challenge for cause for two prospective jurors. That is, it is not sufficient for appellant merely to show that the trial court incorrectly denied his challenge for cause to prospective juror Faulkner, but rather appellant must show the trial court incorrectly denied his challenge for cause as to a second juror. Therefore we must further address appellant’s complaint as to the propriety of the trial court’s action concerning a second prospective juror.
In point of error five, appellant argues that the trial court erred in failing to exclude prospective juror Ignacio Nunez for cause since Nunez was biased against appellant in violation of Article 35.16(a)(9). 2 Appellant bases his claim of bias upon the fact that Nunez had been a member of the Houston Police Department for the past nine years. As evidence of Nunez’s bias, appellant directs our attention to the following exchange between appellant’s trial counsel and Nunez:
DEFENSE COUNSEL: Assume that the body of evidence that would lead somebody to a logical conclusion that a person was guilty of a capital murder was based essentially on the credibility of police officers who took a written statement from the defendant. Do you really believe that you could ever disregard the policeman’s testimony that it was voluntary, regardless of the other facts, and throw out that confession and find the defendant not guilty?
NUNEZ: I believe that would be kind of hard to do.
DEFENSE COUNSEL: I understand. That’s why I’m asking, as the judge said, we’re not interested — we want your attitudes.
NUNEZ: Okay. Could it be thrown out, you say?
DEFENSE COUNSEL: Thrown out, find the defendant not guilty? Even though you believed that the confession was not voluntary but that it was true and the person was, in fact, really guilty of what he was charged with?
NUNEZ: No, sir, I don’t think so.
DEFENSE COUNSEL: I understand that that would be tough, but your answer is that you could not do that?
NUNEZ: No, sir.
Based upon this exchange, appellant also argues that Nunez was excludable under Article 35.16(c)(2). 3 The State argues in response that the remainder of Nunez’s testimony reveals that he was not biased against appellant, but was confused by the question from appellant’s attorney.
Concerning appellant’s challenge to Nunez, this Court faced an analogous situation in Phillips v. State, 701 S.W.2d 875 (Tex.Crim.App.1985), overruled on other grounds, Hernandez v. State, 757 S.W.2d 744, 752 (Tex. *153 Crim.App.1988). In Phillips , we noted that had the challenged juror “clearly and consistently stated that he could not disregard an illegally obtained confession, he would have been subject to a challenge for cause.” Phillips, 701 S.W.2d at 888 . When the law had been clearly explained to the juror, however, he indicated that he would follow the law and disregard the confession. Id. Since the entire voir dire revealed that the juror was not biased, the trial court had committed no error in refusing to exclude him for cause. Id.
Likewise, the record of the entire voir dire of Nunez supports the trial court’s refusal to excuse Nunez. In response to a question from the trial judge concerning whether he could follow the law and disregard an involuntary confession, Nunez answered, “Yes, sir.” Nunez testified that appellant’s attorney had “just explained it a little different[ly]. I didn’t understand it, really.” Nunez admitted that he “just got confused on that there.” In response to clarified questions from appellant’s attorney, Nunez unequivocally stated that he would disregard an involuntary confession and find a person not guilty of capital murder even if he knew the person had committed the crime. 4 On this record, we conclude that the trial court committed no abuse of discretion in refusing to grant appellant’s challenge for cause regarding Nunez.
Because appellant fails to demonstrate that the trial court incorrectly overruled appellant’s strike for cause of two prospective jurors, appellant’s fourth and fifth points of error are overruled. The trial court committed no abuse of discretion in overruling appellant’s challenge for cause regarding Nunez, and the reinstatement of one peremptory strike cured any error as to prospective juror Faulkner. We now continue with appellant’s remaining points of error on appeal.
II.
Appellant’s points of error one, two, and three are interrelated. In point of error one, appellant argues that his confessions should have been suppressed because they were the product of an illegal warrantless arrest. In point of error two, appellant argues that certain physical evidence retrieved from his apartment should have been suppressed because it too was the product of an illegal warrantless arrest. In point of error three, appellant argues that the trial court erred in failing to grant his motions to suppress because his warrantless arrest was not supported by probable cause.
Appellant argues in points of error one and two that the State failed to justify his arrest according to the requirements of Articles 14.01 through 14.04 of the Code of Criminal Procedure. We will not address the substance of appellant’s arguments concerning the cited provisions of the code because the record reveals that those arguments were not made to the trial court. Neither of appellant’s pretrial motions mentions the articles of the code now cited on appeal, nor do they mention any substantive argument based on Articles 14.01 through 14.04. The statement of facts likewise contains no mention of those code provisions. If the objection urged on appeal differs from that, urged at trial, nothing is presented for review. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990). Therefore, we overrule appellant’s points of error one and two.
Concerning appellant’s point of error three, however, his pretrial motion did allege that his arrest was not supported by probable cause. Therefore, we will address the question of whether the police had probable cause to arrest when appellant was arrested at 4:30 a.m. on September 27,1988. According to appellant, the information “possessed [by the police] was insufficient to warrant a reasonable man to believe that Appellant had committed an offense.” The State argues *154 that appellant’s arrest was supported by probable cause.
Probable cause exists “when the facts and circumstances within an officer’s personal knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that, more likely than not,” a particular suspect has committed an offense. Castillo v. State, 818 S.W.2d 803 , 805 n. 4 (Tex.Crim.App.1991). A probable cause issue, however, cannot be analyzed with mathematical precision according to some generalized formula because the issue, by its very nature, presents “a quintessential example of the necessity for case-by-case determination based upon the facts and circumstances .shown.” Woodward v. State, 668 S.W.2d 337, 345 (Tex.Crim.App.1982). In determining whether probable cause exists, we are concerned with “the factual and practical considerations of eveiyday life on which reasonable and prudent men, not legal technicians, act.” Id., quoting Brinegar v. United States, 338 U.S. 160, 175 (1949).
Appellant was not arrested until 4:30 a.m. on September 27, some two hours after he voluntarily accompanied the police to the police station. 5 At the time of the arrest, the police knew that S_ C_ claimed to have been sexually assaulted and stabbed by someone she knew as “Preston.” The empty field in which S_ C_⅛ and M_ T_⅛ bodies were found bordered the parking lot of the apartment complex, only 100 yards from where appellant resided. Appellant was the only person living in that complex who was named Preston. At the police station, the police learned that appellant had a prior sexual assault on his record and that appellant knew S_C_On this record, we conclude that the State made at least a minimal showing that the facts and circumstances known to the police were sufficient to warrant a reasonably prudent person in the belief that appellant had murdered S_C_, at the very least. Therefore, we overrule appellant’s point of error three.
In point of error six, appellant argues that the trial court erred in denying his motion for mistrial, made during the guilt phase, concerning a witness’ comment. The prosecutor asked the witness, police officer Theresa Ross, if she knew whom appellant had called from the interview room following his interrogation. Ross testified that she did not know precisely whom appellant had called, but that appellant had told her that he had called “his boss and his parole officer.” Appellant objected, and the trial court struck the comment from the record and instructed the jury to disregard it. Appellant argues that the comment was prejudicial to him because he has never been on parole and the comment “obviously implied that Appellant had at least one prior felony conviction.” In response, the State argues that the instruction to disregard cured any error.
The general rule is that a trial judge’s instruction to disregard will be sufficient to cure any unresponsive answer. Williams v. State, 643 S.W.2d 136, 138 (Tex.Crim.App.1983). As Ross could have answered simply that she did not know whom appellant had called, her answer was unresponsive. Also, the reference to “parole” was undoubtedly inadmissible. The reference, however, was not embellished in any way and “was not so inflammatory as to undermine the efficacy of the trial court’s instruction to disregard it.” Gardner v. State, 730 S.W.2d 675, 697 (Tex.Crim.App.1987). We overrule appellant’s point of error six.
In point of error seven, appellant complains of the trial court’s admission in evidence of three photographs of the bodies of S_ C_and M_T_which were taken while the bodies were on an autopsy table. Appellant argues that the photographs should not have been admitted because the State failed to lay the proper predicate for admissibility. Appellant’s complaint is that the identifying witness, Dr. Robert Jordan, could not “possibly testify that he [knew the pictures] fairly and accurately reflected] what [was] shown in them.” The *155 State argues that the proper predicate was laid under Texas Rule of Criminal Evidence 901. Additionally, the State argues that since previous testimony was elicited from two investigating officers concerning the wounds inflicted on S_C_and M___ T_, there was no error in admitting pictures that depicted those wounds.
Police officers Don Hamilton and Vincent Cook testified and described the wounds which are depicted in the pictures, without objection from appellant. “An objection to photographic evidence is waived if the same information contained in the photographs is conveyed to the jury in some other form.” Havard v. State, 800 S.W.2d 195, 205 (Tex.Crim.App.1989). Appellant waived any objection by failing to object to the testimony which conveyed the same information to the jury.
Also, Dr. Robert Jordan, an assistant medical examiner for the Harris County Medical Examiner’s Office, verified the pictures. A witness who verifies a photograph need not have been the actual photographer, nor even have been present when the photograph was taken. DeLuna v. State, 711 S.W.2d 44, 46 (Tex.Crim.App.1986). There was no error in the trial court’s admission of the photographs. We overrule appellant’s point of error seven.
In point of error nine, appellant argues that the trial court erred in refusing to grant his motions for mistrial made during the punishment phase. The motions were based upon questions from the prosecutor and “the exhibiting of inadmissible matter before the jury.” The “inadmissible matter” appellant refers to is State’s exhibit 50, a copy of a sworn complaint filed by one C_ H_ dated January 25, 1985, made out against appellant for a rape incident that occurred in Buffalo, New York.
The prosecutor asked T_H_, another alleged sexual assault victim of appellant, “T_, did you find out after Preston raped you that he raped a girl in New York?” (i.e., C_ H_) The prosecutor also asked T_ H_, “Did you find out anything about Preston after he assaulted you?” 6 A third question from the prosecutor inquired of T_H_, “What did your mother say when she found out this man had gone out and raped another girl?” The trial court sustained each of appellant’s objections to these questions and instructed the jury to disregard the initial question.
Later, appellant took the witness stand, and the prosecutor proceeded to question him about the rape allegations contained in exhibit 50. The prosecutor asserted that appellant had moved from New York to Houston “because in 1983, C_H_, a 16-year-old girl in New York swore out a complaint that you raped her at knifepoint.” Appellant’s attorney objected, to which appellant responded, “Don’t object. That was my ex-girlfriend. We went together.” A short time later, the prosecutor was saying “I’ll ask you to explain why she swore in a sworn affidavit she claimed you grabbed her at knifepoint when she was — ,” when appellant’s attorney objected. Appellant asserted, however, that he “would like to discuss this.”
At that point the trial judge held a hearing outside of the jury’s presence. The trial judge sustained appellant’s objections and instructed the jury to “disregard the last question of the proseeutor[,] ... the defendant’s uncounseled response to the same[, and] ... any references to any documents that are not in evidence ...” Additionally, the trial judge prohibited the State from placing exhibit 50 before the jury.
Upon further cross-examination, the prosecutor asked appellant, “It’s a fact you left Buffalo, New York, because you were arrested and charged with first degree rape; isn’t that true?” After appellant’s attorney responded, “Object to that,” the trial court overruled the objection. Appellant subsequently admitted that he had been arrested and charged with first degree rape in 1983 in New York. Appellant’s attorney lodged no objection to this answer.
Appellant claims that this record shows that the “express desire on the part of the State [was] to inflame the minds of the jurors on the issue of future dangerousness.” Based upon these errors, appellant “requests *156 that the judgment be reformed to reflect life imprisonment.” The State argues that any errors were cured by the trial court’s instructions and that appellant waived any other errors by both failing to object and by voluntarily testifying.
An instruction to disregard normally cures error concerning improper remarks and the admission of evidence. Stoker, 788 S.W.2d at 13; Woods v. State, 653 S.W.2d 1, 5 (Tex.Crim.App.1982). The trial judge expressly instructed the jury to disregard any references to any documents not in evidence, the prosecutor’s questions, and even appellant’s uncounseled responses. Any error concerning these matters was cured by the court’s explicit instructions.
Concerning appellant’s arguments about his own responses and his attorney’s general objection, we conclude that appellant’s arguments are without merit. “[W]hen a defendant offers the same testimony as that objected to, or the same evidence is introduced from another source, without objection, the defendant is not in position to complain on appeal.” Stoker, 788 S.W.2d at 13. Appellant voluntarily discussed the rape allegations stemming from the incident in New York. Therefore, we conclude that appellant is not in a position to complain on appeal and overrule appellant’s point of error nine.
In point of error twelve, appellant complains of the trial court’s admission in evidence of State’s exhibits 47 and 51 during the punishment phase of the trial. State’s exhibits 47 and 51 are documents pertaining to appellant’s ten-year deferred adjudication term for aggravated assault against T_ H._Appellant argues that when he entered his plea in that case, he was not properly admonished according to the requirements of Article 26.13. 7 Appellant’s conviction for aggravated assault was reversed by this Court in Hughes v. State, 833 S.W.2d 137 (Tex.Crim.App.1992). However, the admission of these exhibits was harmless. See Tex.R.App.P. 81(b)(2).
In this case, the State not only admitted the judgment, but they also called T_ H_to the stand. She testified that one afternoon in the summer between her eighth and ninth grade school years appellant came over to her mother’s apartment. She answered the door, and spoke to appellant, whom she knew through his cousin. As she was preparing to go to the beach that afternoon and had to change clothes, she said goodbye and began shut the door. Appellant put his foot in the door and barged inside. T_ H_then recounted the details of how appellant raped her. Appellant was subsequently arrested for aggravated sexual assault.
Between the time of his release on the sexual assault charge and his trial, appellant allegedly approached the victim, threatened her if she testified, and when she turned to run, fired a gun at her. Appellant took the stand in this cause and testified that neither the rape nor the assault ever took place. Most of the testimony concerning this issue involved not the assault charge but rather the question of whether appellant raped T_H_, as well as another rape charge in the State of New York. The admission of the two convictions tend to corroborate T H_⅛ version of the story. However, the incremental harm of the admission of appellant’s deferred adjudication for the aggravated assault is negligible when compared to the admission of appellant’s deferred adjudication for aggravated sexual assault with a child. If the jury believed T_H-was credible and believed her story and if that belief was the result of the deferred adjudication, there is no incremental change in that belief based on the presence or absence of the second deferred adjudication documents. *157 Accordingly, the admission of appellant’s judgment for aggravated assault is harmless beyond a reasonable doubt in this instance, and appellant’s twelfth point of error is reversed. See Tex.R.App.P. 81(b)(2).
Appellant’s points of error ten and eleven both concern jury argument by the prosecution. Since appellant’s brief combines points ten and eleven for discussion, we will address them in combination. During closing argument on punishment, the prosecutor said “I suggest to you that the testimony of T_H_alone is enough to put the needle in this man’s arm. And for that little girl to be brought down here and for [appellant’s attorneys] to put her on trial again is not right.” The trial court overruled appellant’s objection to the final comment. Shortly thereafter, the prosecutor said “They [appellant’s attorneys] have done nothing wrong. They’re trying to protect their client. It’s their job. It doesn’t mean it’s the right thing to do.” The trial court sustained appellant’s objection to the final comment and instructed the jury to “disregard the last remark of the prosecutor and not consider it for any purpose whatsoever.” Appellant’s motion for mistrial, however, was overruled. 8
In his tenth point of error, appellant complains of the trial court’s act of overruling his initial objection. In his eleventh point of error, appellant complains of the trial court’s refusal to grant his motion for mistrial. The substance of appellant’s argument is that the prosecutor’s comments were so prejudicial that an instruction to disregard could not cure the harm they caused. Additionally, appellant argues that the trial court’s overruling of his initial objection compounded the error by functioning as “a license for the second, more direct, comment.” The State responds that both comments were cured, the initial remark by the prosecutor’s apology 9 and the latter remark by the court’s instruction.
To be proper, jury argument must constitute either (1) a summation of the evi-
*158 dence, or (2) a reasonable deduction from the evidence, or (3) a response to an opponent’s argument, or (4) a plea for law enforcement. Gomez v. State, 704 S.W.2d 770, 771 (Tex.Crim.App.1985). While we agree that the prosecutor’s arguments were not totally proper, we disagree with appellant’s contention that a reformation of his sentence is required. This argument is unlike that made in Gomez , where the prosecutor implied that the defense attorney was willing to suborn perjury. 10 Id. at 772 . In the instant case, the trial court certainly erred in overruling appellant’s initial objection. The second comment, however, came almost immediately after the initial remark. Even though the trial judge told the jury to disregard only the “last remark,” we read the record to indicate that the trial judge realized his error and promptly instructed the jury to disregard the prosecutor’s argument. Appellant admits that the second remark was even “more direct.” 11 We conclude that any error associated with the overruling of appellant’s objection to the initial remark was cured by the prompt instruction to disregard the second remark and, accordingly, overrule appellant’s points of error ten and eleven.
The judgment of the trial court is AFFIRMED. Appellant is permitted to file a motion for rehearing in this cause.
CLINTON, J., concurs in the result.
. Appellant argues in the motion for rehearing that the additional peremptory strike was granted for an identifiable venireperson. However, we disagree. The record indicates appellant’s attorney identified five prospective jurors who were believed to have been improperly ruled upon by the trial court and requested five additional preemptory strikes. The trial court granted one additional preemptory strike but nothing indicates whether, if at all, it was granted for an identifiable prospective juror.
. Article 35.16(a)(9) in pertinent part provides:
(a) ... A challenge for cause may be made by either the state or the defense for any of the following reasons:
* * * * * *
9. That he has a bias or prejudice in favor of or against the defendant;
. Article 35.16, in pertinent part provides:
(c) A challenge for cause may be made by the defense for any of the following reasons:
:}: sjs -h ‘ ⅛ 4- *
(2) That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.
. The relevant testimony from the record reads:
NUNEZ: I would throw it [the involuntary confession] out.
[[Image here]]
DEFENSE COUNSEL: And find that person that you knew is [sic] guilty of capital murder not guilty?
NUNEZ: Yes, sir.
. The trial judge entered findings of fact that appellant was not placed under arrest until 4:30 a.m. and that appellant’s confessions were voluntary. Appellant's brief contains no challenge to these findings.
. This question concerned the sexual assault on C_H_that occurred in Buffalo, New York.
. Article 26.13 provides in pertinent part:
(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
(1) the range of the punishment attached to the offense;
⅜ ⅜: * * * ⅜
(b) No plea of guilty or of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
(c)In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.
. During the closing arguments by the State, Defense Counsel argued appellant did not present a future danger, and that in fact he could be rehabilitated. In response the State recalled the testimony of T_H_The following is the complete exchange between the prosecution, defense and trial court:
PROSECUTOR: ... Then he came down here to Houston, and lo and behold, God forbid, poor little old Preston, another dirty girl gets him and sets him up, another 13-year-old vixen entices him into the house. He didn’t do it. There was another guy over there. I know the girl but I didn’t do it.
But what about this new incident down here? You heard [T_H_]'s testimony? I almost cried because I had to put her up here and make her relive the testimony again. It was me that called her up the day before her prom to tell her stoiy again and it hurts to do that. But you have to hear that because that little girl was raped in her momma’s bedroom and this man made her take a Bible our and swear on it, "I’ll be your girlfriend.” What kind of person does that? The kind of person who will never do an act of violence against a woman or anybody else?
I suggest to you that the testimony of [T_ H_] alone is enough to put the needle in this man’s arm. And for that little girl to be brought down here and for [defense counsel] to put her on trial again is not right.
DEFENSE COUNSEL: Objection. He put her on the stand, Your Honor. I object to him raising the issue that we've done something wrong by protecting our client's rights, by asking a few simple questions on cross examination of the witness he put on the stand. I object to it.
PROSECUTOR: I apologize. I don’t want to insinuate—
DEFENSE COUNSEL: I don’t want his apology-
PROSECUTOR: I’m not saying [defense counsel] has done anything wrong.
DEFENSE COUNSEL: I object, Mr. Prosecutor. I have made an objection.
THE COURT: The objection will be overruled.
PROSECUTOR: They have done nothing wrong. They’re trying to protect their client. It’s their job. It doesn't mean it’s the right thing to do.
DEFENSE COUNSEL: I object to him striking at my client over the shoulders of counsel by accusing us of doing something that ain’t the right thing to do which was clearly within the rules, would have been malpractice if we hadn't done it. I request the jury be instructed to disregard counsel’s remarks.
THE COURT: The objection will be sustained. Jury will disregard the last remark of the prosecutor and not consider it for any purpose whatsoever.
DEFENSE COUNSEL: I would move for further relief, Your Honor.
THE COURT: That will be denied.
. The State cites, and we are aware of, no authority for the proposition that an apology from the prosecutor cures any type of error.
. The dissenting opinion claims, citing our 'special concern' for jury argument in Gomez , that the "State’s argument improperly struck at appellant over the shoulders of his counsel and the trial judge by overruling appellant’s objection.” On the contrary, we remain fully cognizant of that concern but conclude that Gomez is not dispositive of this case. In Gomez , the trial judge sustained the appellant's objection to the prosecutor’s initial argument that appellant's counsel was paid “to manufacture evidence.” 704 S.W.2d at 771 . However, when the prosecutor further elaborated upon that argument by stating that appellant’s counsel was paid "to get this defendant off the hook,” the trial judge overruled appellant's objection. Id. Thus, the trial court left the jury with the final impression that such argument, that appellant’s attorney would suborn perjury, was proper. In this case, the trial judge left the jury with the final impression that the argument was improper.
. The dissenting opinion makes much of the first and second objections by defense counsel, and states the "second” objection which was sustained by the trial court was only for the last argument of the Prosecutor. However, when we view the entire voir dire and exchange between the trial court and trial attorneys, it is not quite that clear. The exchange by the parties indicates the defense attorney believed the prosecutor was arguing defense counsel put T_H_on the stand. (However, the prosecutor had only minutes before said the opposite). He objected and in between all the arguments, the prosecutor attempted to make it clear that he had in fact called the witness. The trial court overruled defense counsel’s objection, apparently believing it was clear who called the witness. Then when the prosecutor continued in his argument concerning defense counsel's behavior, the trial court sustained defense counsel’s objection and instructed the jury to disregard the prosecutor's argument. From the record it appears the trial court's initial ruling concerned who put the girl on the stand, and the second ruling and instruction concerned defense counsel’s cross-examination of the girl.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768401. Public record. Not legal advice.