Opinion
No. 01-02-00210-CR.
Opinion issued May 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 361st District Court Brazos County, Texas, Trial Court Cause No. 28,691-361.
Panel consists of Justices TAFT, JENNINGS, and HANKS.
MEMORANDUM OPINION
Appellant, Eric Vaughn Schultze, and his co-defendants, Valin Thomas Klock and Scott Alan Zunker, were indicted for the first-degree felony offense of aggravated sexual assault. After appellant refused to enter a plea, the trial court entered a plea of not guilty on his behalf. A jury found appellant and his co-defendants guilty and assessed punishment of 30 years in prison for appellant, 22 years for Klock, and 15 years for Zunker. In seven points of error, appellant contends that his trial counsel was ineffective and that the trial court erred in (1) denying his request for a severance; (2) admitting a videotape of the death of appellant's roommate, John Hickman, at the punishment stage of trial; (3) excluding testimony about prison conditions; (4) allowing the State to argue about the crime's effect on the victim's parents; (5) refusing to instruct the jury, at the punishment stage, about the elements of the extraneous offenses; and (6) refusing to suppress a videotape of the sexual assault at the guilt stage of trial. We affirm.
Appellant's co-defendants also appealed their convictions. The Opinions for Klock v. State, 01-02-00265-CR and Zunker v. State, 01-02-00529-CR were issued simultaneously with appellant's Opinion.
See Tex. Pen. Code Ann. § 22.021(a)(2)(v) (Vernon Supp. 2004) (acts in concert with another toward same victim).
A trial court must enter a plea of not guilty on behalf of the defendant when he refuses to plead. Tex. Code Crim. Proc. Ann. art. 27.16(a) (Vernon 1989).
Background
On November 19, 2000, College Station Police Department Detective Chad Harkrider was called to investigate the alcohol-related death of John Hickman's at 3311 Bahia in College Station. When he arrived at the scene and discovered there were numerous people to interview, he contacted College Station Police Sergeant Chuck Fleeger for assistance. Appellant and Klock were two of the people interviewed in connection with Hickman's death. During the course of the investigation, Detective Harkrider received an anonymous tip that there was a videotape of Hickman made on the night that he died. On March 27, 2001, Jana French, a friend of Klock's, provided the College Station Police Department with a videotape that she had obtained from Klock. Fleeger watched the videotape and discovered that, in addition to depicting Hickman the night that he died, 18 minutes and 45 seconds of the tape showed three men sexually assaulting an unconscious female. Fleeger recognized appellant and Klock as two of the three assailants because he had recently interviewed them in connection with Hickman's death. He later determined the identities of the complainant and the third assailant, Zunker. The sexual assault began with Zunker and appellant entering a room where Klock was having sexual intercourse with the complainant, who appeared to be unconscious and physically unable to resist. Appellant, while manning the video camera said, "in her fucking cunt," and Zunker attempted to insert a baseball in the complainant's vagina. Zunker manned the video camera while appellant inserted the handle of a toilet plunger in the complainant's vagina. Appellant told Zunker, "Make sure you get this on tape." When the plunger handle was inserted in the complainant's vagina, she moaned and said, "Ow. Stop," and continued to struggle. The three men laughed throughout the entire sexual assault. At one point, Zunker lit a cigarette and burned the complainant's vagina with the lit cigarette. Zunker then, mockingly, said, "Ow. That's got to hurt," and he proceeded to flick ashes onto the complainant's buttocks. Zunker and Klock also inserted a screwdriver and other objects into the complainant's vagina. The men continued to laugh as they performed these various acts on the unconscious complainant, with appellant declaring, "this is fucking hilarious" at one point during the assaults. Police officers arrested appellant, Klock, and Zunker the day after Sergeant Fleeger received the videotape. Also on that day, police officers searched the house at 3311 Bahia and found a video camera and a camera bag that contained another videotape. This second videotape showed appellant urinating on an unconscious Hickman. During his investigation, Fleeger determined that the sexual assault occurred in July 2000, seven or eight months before the videotape was discovered.Motion to Suppress Evidence
In point of error seven, appellant contends that the trial court erred by denying his motion to suppress the sexual assault videotape "on the ground that Article 38.23 does not make stolen property inadmissible if a thief gives the property to the police." See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2003).Standard of Review
A trial court's ruling on a motion to suppress evidence will not be set aside unless there is an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). We will afford almost total deference to a trial court's determination of facts supported by the record, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Spight v. State, 76 S.W.3d 761, 765 (Tex. App.-Houston [1st Dist.] 2002, no pet.). The appellate courts may review de novo "mixed questions of law and fact" not falling within this category. Guzman, 955 S.W.2d at 89.Standing
Appellant filed a pretrial motion to suppress the videotape because "the videotape was taken from a home in which [appellant] had a privacy interest in violation of Article 38.23 V.A.C.C.P." Article 38.23 provides as follows:No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.Tex. Code Crim. Proc. Ann. art. 38.23(a). Appellant contends that Klock broke into the Bahia house and stole the videotape from appellant. In its order denying the motion to suppress the videotape, the trial court found that "there [was] sufficient evidence to show that [Klock] had permission to be on the Bahia premises until well after Spring Break." The trial court also found that, "there is no evidence in the record that Defendant Klock, even if he took the video without Defendant Schultze's consent, intended to deprive Schultze of ownership." The trial court did not state whether appellant had standing to complain of Klock's taking the videotape. However, failure to prove standing may be raised at any time, including for the first time on appeal. State v. Klima, 934 S.W.2d 109, 110-11 (Tex.Crim.App. 1996); Pennywell v. State, 84 S.W.3d 841, 843-44 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Standing is a question of law, which we review de novo. State v. Johnson, 896 S.W.2d 277, 285 (Tex. App.-Houston [1st Dist.] 1995), aff'd, 939 S.W.2d 586 (Tex.Crim.App. 1996). To have standing, or a reasonable expectation of privacy, a defendant must show: (1) that he had an actual, subjective expectation of privacy, exhibited by measures taken to protect the privacy of the property in question, and (2) that his subjective expectation of privacy is one that society is prepared to recognize as reasonable. See Jackson v. State, 745 S.W.2d 4, 7 (Tex.Crim. App. 1988). During the suppression hearing, appellant called Travis Blount to testify. Blount testified that he was appellant's cousin and lived with appellant at 3311 Bahia Street at the time of the assault. Blount testified that the video camera used to film the assault belonged to Taylor Jordan — it was not appellant's camera. Travis testified that when Jordan left the camera at the house, he left it in the case, and it was possible that there were some tapes left in the case. Travis never saw what brand of videotapes appellant bought; therefore, he could not comment on whether the videotape used to tape the assault was one of the tapes appellant bought or one that may have already been in Jordan's video case. Sergeant Fleeger testified during the suppression hearing that, after the police saw the videotape, they obtained a search warrant for the house on Bahia. When they executed the warrant, they found the video camera and case in the living room. They found an .8 mm videotape in the case. Through his investigation, Fleeger concluded that the video camera and bag did not belong to appellant. Appellant did not testify at the suppression hearing. The evidence elicited during the suppression hearing did not reveal who owned the videotape that contained the recording of the assault, where the videotape was usually kept, or from where the videotape was removed. There is no evidence in the record indicating what steps appellant took to protect the videotape. Nor is there any evidence that access to the videotapes was limited in any way. In fact, Blount testified that the occupants of the Bahia house frequently watched tapes they made with their friends. He testified that, after Klock moved out, Blount came home to find Klock, alone in the house, watching a videotape of Hickman's death. Appellant failed to present sufficient evidence during his suppression hearing to establish that he took any measures to protect the privacy of the property in question and, therefore, did not show he had a reasonable expectation of privacy in the videotape recovered from their home. See Jackson, 745 S.W.2d at 7. The evidence in the record does not establish that appellant had standing to have the videotape suppressed. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant's motion to suppress the videotape. We overrule point of error seven.
Ineffective Assistance of Counsel
In point of error one, appellant contends that his trial counsel was ineffective. The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 2064-69 (1984); see Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Appellant must show both that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) there is a reasonable probability that, but for counsel's error or omission, the result of the proceedings would have been different, i.e., sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687-96, 104 S.Ct. at 2064-69. Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex.Crim.App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson, 9 S.W.3d at 813. It is the defendant's burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). An appellate court will not find ineffectiveness based on speculation. Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd); Gamble, 916 S.W.2d at 93. Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002).Sole Defense
Appellant argues that his trial counsel failed to present his sole defense — that the videotape was illegally obtained and, thus, subject to suppression. See Tex. Code Crim. Proc. Ann. art. 38.23(a). Appellant contends that his trial counsel failed to ask the trial court to instruct the jury, under article 38.23(a), that they must disregard the videotape if they believed Klock obtained it illegally. He argues that this was his "sole defense before the jury, but counsel never presented it, thus guaranteeing a conviction, as shown by his three-page argument that gave jurors no reason whatever to vote not guilty." However, as noted above, appellant lacked standing to suppress the videotape. Because appellant was precluded from obtaining a 38.23(a) instruction to the jury regarding the videotape, his counsel's failure to ask for one was not deficient.Multiple Serious Errors
Appellant also argues that his trial counsel committed multiple serious errors that should diminish this Court's confidence in the outcome of the punishment hearing. Appellant cites six examples of alleged ineffectiveness of his counsel: (1) in opening argument during punishment, the prosecutor, without objection, accused appellant of having committed a "first-degree felony offense" of evading arrest, which is really a Class A misdemeanor; (2) trial counsel failed to elicit testimony regarding appellant's reasons for not calling for help earlier on the night that Hickman died; (3) trial counsel failed to object to the prosecutor's argument as being outside the record; (4) trial counsel failed to object to criticisms of appellant for exercising his constitutional rights; (5) trial counsel failed to object to a co-defendant's argument seeking a severe sentence for appellant; and (6) trial counsel failed to object to the prosecutor's arguments that were outside the record. First Degree Felony Offense Appellant argues that his trial counsel was ineffective for failing to object to the State's classification of evading arrest as a first degree felony offense. The statement in question was as follows:We're going to show you an incident that occurred with respect to Mr. Schultze, just a few months ago while he was on bond in this case, a first degree felony offense in which he led police on a hundred-mile-an-hour-plus chase, refusing to stop.(Emphasis added.) The aggravated sexual assault of the complainant was a first degree felony offense, and the record above indicates that the prosecutor was referring to this offense, not "evading arrest," as a first degree felony. Appellant's trial counsel was not ineffective in not objecting to this statement. Reason for Delayed Call for Help The trial court excluded, as hearsay, testimony from Amanda Toepperwein, appellant's friend, that appellant did not call for help earlier in the night of Hickman's death because Hickman was on bail for intoxication assault at the time of his death, and his intoxicated state was a clear violation of the conditions of his bond. Appellant argues that his trial counsel was ineffective in failing to introduce the testimony from other sources. Appellant argues that this testimony was vital to show his "concern, not disregard, for Hickman's welfare." Toepperwein was allowed to testify that, the night Hickman died, appellant was "scared," "worried," and "concerned" about Hickman. Hickman was "drunk" and "passed out all the time," so everyone thought this was "a normal night." She also testified that she called 9-1-1, but couldn't "get anything out" so she gave the phone to appellant who "took control of the situation from that moment on." The Toepperwein testimony that was allowed established that the occupants of the Bahia house "pranked" on each other frequently, and that appellant was concerned about Hickman, who was his friend. Furthermore, Detective Harkrider testified that appellant did not return from work until 3:30 a.m. on the morning of Hickman's death, and Hickman was alone and already passed out on the couch. This was only approximately 30 minutes before Toepperwein arrived and called 9-1-1. Accordingly, we cannot conclude, based on the record, that appellant's trial counsel's performance, in not introducing evidence that Hickman was on bond, was so deficient that he was not functioning as acceptable counsel. Argument Outside the Record Appellant contends that, during the punishment stage argument, Zunker's counsel accused appellant of stealing from his employer by letting Zunker, a fellow employee, eat and drink for free. Appellant suggests that this characterization was particularly harmful because it rebutted testimony from several witnesses that appellant was a dedicated, loyal, hardworking employee. However, the statement was actually made during Zunker's opening statement; prior to the presentation of punishment evidence; therefore, an objection as being "outside the record" would have been inappropriate, and counsel's failure to object to the remark was not deficient. Exercising Constitutional Right Appellant also contends that his trial counsel was ineffective for failing to object to an improper argument made by Zunker's attorney. Zunker's attorney compared Zunker, who had been in jail for 11 months before trial without posting bail, to appellant who, he declared, was "out running around" during this time. Appellant argues that it was improper for Zunker's counsel to disparage appellant for exercising "his Eighth Amendment constitutional right to be punished after being convicted, instead of before, like Zunker." During his opening statement prior to the presentation of punishment evidence, Zunker's attorney described Zunker as aimless and on the "wrong track" long before he met appellant. Zunker's attorney argued that, when Zunker was arrested and charged with a first degree felony, "there began to be the change in Scott Zunker." He had been in jail ever since because he could not post bail. "He hasn't been running around like the others." "So he's got to sit there. . . . He can't drink. . . . At first anger, depression — severe depression. Embarrassment." Zunker's trial counsel further explained that, once Zunker "dried out," he began to pursue his faith and "he even considers 11 months in jail now a blessing." The focus of Zunker's attorney's remarks was on Zunker's "change," not on appellant. From this record, we cannot conclude that appellant's trial counsel's performance, in not objecting to the above statement made by Zunker's attorney, was so deficient that he was not functioning as acceptable counsel. Zunker's Attack Appellant contends that Zunker's attorney, during his punishment argument, made a "nine-page attack" on appellant, ending with a suggestion of "a severe sentence for one person [appellant] and probation for another." He argues that his trial counsel was ineffective in failing to object that it was improper for Zunker's lawyer "to be arguing for a severe sentence for appellant." At the conclusion of Zunker's closing argument at the punishment stage, he stated:
I asked you in the jury selection phase if you could separate these people out and you-all promised me you could. You promised me then. I ask you to hold to that now.
Is it conceivable to you that you could give a severe sentence to one person and probation to another? Anybody have a problem doing that in a proper case? None of you raised your handThus, the record reveals that Zunker's counsel did not, in fact, argue for a "severe sentence for appellant," and his counsel's failure to object to the above statement was not deficient. Outside the Record Finally, appellant contends that his trial counsel was ineffective for failing to object when the prosecutor argued outside the record. In his closing argument, the prosecutor stated, "For Eric Schultze, you can watch that video of the night that John Hickman died and ask yourself: Does he deserve even more? John Hickman could have been saved that night." Permissible jury argument falls within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) pleas for law enforcement; and (4) response to opposing counsel. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim. App. 1992). Assuming, without deciding, that the prosecutor's closing remarks were not a reasonable deduction from the evidence, as the State contends they were, there are several reasons why the jury could have given appellant a more severe punishment than the other defendants, not the least of which are that he had more extraneous offenses than they did, his police statement indicates he refused to show any remorse for the sexual assault incident, and he was the only one of the defendants present in the two Hickman videotapes. Accordingly, appellant has failed to demonstrate that there is a reasonable probability that, but for his counsel's failure to object to the above statement, the results of the punishment proceeding would have been different.
Single Egregious Error
Appellant argues that a single egregious error by trial counsel can constitute ineffective assistance, and that no hearing on ineffectiveness or evidence of trial strategy is required. See Thompson, 9 S.W.3d at 813. Here, however, appellant has not presented any error egregious enough to constitute ineffective assistance of counsel. Accordingly, we hold that appellant has not met his burden to prove ineffective assistance of counsel by a preponderance of the evidence. We overrule point of error one.Severance
In point of error two, appellant argues that the trial court erred in denying appellant's motion for severance, especially at the punishment stage. Severance is not a matter of right, but rests within the sound discretion of the trial court. Peterson v. State, 961 S.W.2d 308, 310 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). To show an abuse of discretion, an appellant bears the heavy burden of showing clear prejudice. Id. A trial court must order a severance upon a timely motion and upon introduction of evidence that establishes either (1) that there is a previous admissible conviction against one defendant or (2) that a joint trial would be prejudicial to any defendant. Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981); Aguilar v. State, 26 S.W.3d 901, 903 (Tex.Crim.App. 2000). Specifically, article 36.09 provides that:Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.Tex. Code Crim. Proc. Ann. art. 36.09. Generally, when two defendants are jointly indicted for the same offense, they should be tried jointly. However, the trial court may order separate trials, at its discretion. Id. If a joint trial would prejudice either defendant, upon proper motion to sever, the trial court must sever the trial of the defendant whose joint trial could prejudice the other. Id. The mere allegation that prejudice will result is not evidence of, or a sufficient showing of prejudice, as required under article 36.09, particularly when the severance is discretionary with the trial court. Mulder v. State, 707 S.W.2d 908, 915 (Tex.Crim.App. 1986). If no evidence is offered in support of the motion to sever, the trial court does not err in overruling the motion. See Sanne v. State, 609 S.W.2d 762, 776 (Tex.Crim. App. 1980). On appeal, appellant clearly states that he did not argue for severance based on the State's evidence and argument, but because of Zunker's and Klock's evidence and argument. Appellant argues that the trial strategy employed by Zunker and Klock was to establish that appellant was the one with the camera. He was the "director" of these videos, and Zunker and Klock were merely following appellant's direction. Consequently, appellant was defending himself against three prosecutors — Zunker's attorney, Klock's attorney, and the district attorney. All three defendants sought severance during punishment. Zunker and Klock moved for severance when the State introduced the videotape of Hickman's death. The attorneys argued that the videotape was so prejudicial that an instruction to disregard as to their two clients would not sufficiently overcome the prejudicial effect. Zunker's attorney re-urged his request for a severance at the conclusion of lengthy testimony about an assault appellant committed. He complained that the testimony regarding the fight would never have been introduced had the cases been severed and that Zunker was harmed by the testimony. In his brief to this Court, appellant states that he renewed his motion for severance twice during the punishment stage. Appellant refers us to two places in the appellate record to support this statement. The first reference was made after Zunker testified, and Klock's and appellant's attorneys moved for severance because they believed Zunker's testifying, in a sense, commented on Klock's and appellant's ability to testify, but decision not to testify. The second reference again stated we would reurge the Motion for Severance based upon the testimony, the fact that Scott Zunker testified in the case and I anticipate that there will be — I anticipate that there will be closing arguments made by Zunker's attorney specifically on the issue of Defendant Zunker's waiving his Fifth Amendment right and taking the witness stand and being confronted, willing to confront himself by cross-examination based upon: A, the fact that Zunker did testify; and 2, anticipating closing arguments. This is a different basis for severance than appellant is raising on appeal — that he was forced to defend against three prosecutors. The Texas Rules of Appellate Procedure require that, in order for an issue to be preserved for appeal, there must be a timely objection, which specifically states the legal basis for the objection. Tex.R.App.P. 33.1(a). It follows, that an objection stating one legal basis may not be used to support a different legal theory on appeal. See Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977). Courts have routinely held that where a complaint on appeal does not comport with an objection made at trial, the error is not preserved on the complaint. Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App. 1996) ; Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995); Dunn v. State, 819 S.W.2d 510, 524-25 (Tex.Crim.App. 1991) (discussing the importance of specific objections required under Rule 52, predecessor to Rule 33.1). Here, appellant presents a different basis for severance on appeal than was raised in the trial court. An objection raised on appeal will not be considered if it varies from the objection made at trial. Coffey v. State, 796 S.W.2d 175, 179 (Tex.Crim. App. 1990). Because his complaint on appeal does not comport with his objections made at trial, appellant has failed to preserve the issue for review. Tex.R.App.P. 33.1. We overrule point of error two.
Erroneously Admitted/Excluded Evidence
In points of error three and four, appellant argues that the trial court erred in (1) admitting a videotape and other evidence of Hickman's death and evidence of appellant urinating on Hickman and (2) excluding Leroy Hall's testimony about prison conditions.Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Where the trial court's evidentiary ruling is within the "zone of reasonable disagreement," there is no abuse of discretion, and the reviewing court must uphold the trial court's ruling. Id. All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by the rules of evidence, or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 402. Evidence is relevant if it tends to make the existence of any consequential fact more or less probable than it is without the evidence. Tex. R. Evid. 401. After the defendant has been found guilty, evidence may be offered by the State and the defendant "as to any matter the court deems relevant to sentencing." Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2004). The erroneous admission or exclusion of evidence does not result in reversible error unless it affects a substantial right of the accused. See Tex.R.App.P. 44.2(b). Substantial rights are affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).John Hickman's Death
In point of error three, appellant contends that the trial court erred in admitting a videotape and other evidence of John Hickman's death and evidence that appellant urinated on Hickman on another occasion. Appellant videotaped Hickman shortly before Hickman died of an overdose of alcohol. The videotape shows that, while Hickman lay, unconscious, on a couch in the living room of the Bahia house, appellant and several other men, laughed at him, poured water on his head, and shaved his pubic hair with an electric razor. This recording was made on the same videotape on which the sexual assault had been recorded. Another videotape that was recovered, pursuant to a search warrant, showed appellant urinating on Hickman, while Hickman lay unconscious in bed. The two Hickman recordings were not filmed on the same night. Guilt Stage — Background Contextual Evidence Appellant argues that any reference to Hickman's death was inadmissible at the guilt stage because it was "background contextual evidence" rather than "same transaction" contextual evidence. The Court of Criminal Appeals has distinguished two types of background evidence admissible under rule 404(b): (1) evidence of other offenses connected with the primary offense, referred to as "same transaction contextual evidence" and (2) general background evidence, referred to as "background contextual evidence." Mayes v. State, 816 S.W.2d 79, 86-87 (Tex.Crim.App. 1991). Background contextual evidence is "proof of facts that do not bear directly on the purely legal issues, but merely fill in the background of the narrative and give it interest, color, and lifelikeness." Id. at 87. In other words, the evidence must be necessary to the jury's understanding of the instant offense because the circumstances of the offense would make little or no sense without the admission of the background contextual evidence. See id. In Mayes, the Court of Criminal Appeals held that it was error to admit background evidence when the testimony at issue constituted evidence of appellant's character. Id. at 88. Appellant contends that, because Hickman died more than four months after the sexual assault, evidence of Hickman's death constituted "background contextual" evidence and not "same transaction" evidence and was, therefore, inadmissible. Evidence of Hickman's death was not necessary to show how the police acquired the tape or how they identified appellant on it. Assuming, without deciding, that the admission of the evidence was improper, appellant has not shown that he was harmed by the admission of such evidence at the guilt stage or that the jury was improperly swayed by the admission in its determination of appellant's guilt. See King, 953 S.W.2d at 271. As appellant concedes in his brief to this Court, "the evidence of appellant's guilt, [the sexual assault video], was overwhelming." Punishment Stage — Unduly Prejudicial Appellant also argues that the videotape of Hickman's dying moments and the urination scene should have been excluded under Texas Rule of Evidence 403 at the punishment stage. A trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial. Henderson, 29 S.W.3d at 626. Trial courts may admit evidence deemed relevant to sentencing, including evidence of other crimes or bad acts. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). At the punishment hearing, relevant evidence is that which assists the fact finder in determining the appropriate sentence given the particular defendant in the circumstances presented. Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). This language grants wide latitude in the admission of evidence deemed relevant, including evidence arising after the offense. Contreras v. State, 59 S.W.3d 362, 365 (Tex. App.-Houston [1st Dist.] 2001, no pet.). Even relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. As used in rule 403, "unfair prejudice" means the undue tendency of the evidence to suggest a decision on an improper basis. See Rogers, 991 S.W.2d at 266. We will not disturb a trial court's determination regarding the admissibility of relevant evidence unless an abuse of discretion has been shown. See Green, 934 S.W.2d at 101-02. Appellant does not assert that the Hickman videotapes were irrelevant. He contends, however, that the probative value of the tapes was outweighed by their prejudicial effect.Waiver
Texas Rule of Evidence 403 must be specifically invoked in order to preserve error under that rule. Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1991); Tex.R.App.P. 33.1. Appellant refers us to four places in the record where he contends he made a specific 403 objection. The first reference involves argument relating to Zunker's motion in limine. Zunker attempted to prevent the officers from testifying that they recognized Zunker's voice on the sexual assault tape from previous encounters they had with Zunker. After the trial court overruled the motion in limine "to the extent of its broadness," Zunker's attorney responded, ". . . It's an extraneous offense, and it — the prejudicial nature of it outweighs the probative value." As the trial court confirmed, this objection was based on a concern that the officers would testify, "Yeah, we know the guy from before because of other investigations we've done." This objection did not pertain to the same concerns appellant is now raising on appeal. Therefore, Zunker's objection did not preserve this point of error. Next, appellant refers us to a portion of the record where he complained that the Hickman video contains hearsay. Counsel further urged the Court to engage in a 403 balancing test because of the inflammatory nature of the comments that are made. Specifically, there are, I believe, some racial overtones to the comments that are made by third parties in the room. I think there is also some other inflammatory statements particularly of the nature saying, "die, die" or something "I hope you die." I think that's what I heard. I would argue that the (sic) any probative relevant evidence that could be gathered by that portion of the video is substantially outweighed by the confusion of issues, the prejudicial effect; and I would ask the Court to — if it overrules my objections on hearsay and authentication basis that engage and rule on my 403 objection. This 403 objection specifically complains of comments on the videotape made by unidentified third parties. On appeal, appellant does not mention the comments of third parties. His point of error only addresses the prejudicial effect of the reference to, and videotape of, Hickman's death — concerns not addressed by this objection in the trial court. This objection does not preserve this point of error for review. Before the videotape depicting Hickman's death was offered at trial, appellant stated that "in addition to the objections lodged yesterday [listed in the preceding paragraph] particularly with regard to hearsay and Rule 403, which the Court has previously ruled upon, I'm also objecting under Rule 901 that the videotape has not been properly authenticated as to all voices on the videotape have not been identified." Finally, before the State offered the Hickman urination video, appellant stated, "in addition to the objections lodged yesterday [set forth in the preceding paragraph] outside the presence, I would also urge the failure of the State to give adequate notice of 37.07." These two passages simply remind the trial court that appellant previously objected to the prejudicial effect of the third-party comments. They do not raise additional 403 objections. Where a complaint on appeal does not comport with an objection made at trial, the error is not preserved on the complaint. Goff, 931 S.W.2d at 551. Because he did not object to the admission of the videotapes on the grounds urged on appeal, appellant has failed to preserve the issue for review. Tex.R.App.P. 33.1; see Montgomery, 810 S.W.2d at 389. We overrule point of error three.Leroy Hall's Testimony
In point of error four, appellant argues that the trial court erred during the punishment stage of trial in excluding Leroy Hall's testimony about prison conditions, which was essential to rebut the State's lengthy evidence about prison conditions. During the punishment stage, Zunker's attorney called Reginald Jenkins as a witness. Jenkins is a detention officer with the Brazos County Sheriff's Department, and he was previously employed as a prison guard at a maximum security prison. Jenkins testified that Zunker had been a "model inmate" during his more than 300 days of detention at the time of trial. Jenkins explained what a normal day is like for Zunker while in detention, and that, due to his conviction for aggravated sexual assault, he cannot be a prison trustee. Klock's attorney questioned Jenkins about the conditions in maximum security prisons. Jenkins testified that it was "very possible" that the defendants would be going to a maximum security prison, which holds murderers, major drug dealers, embezzlers, and forgers. He further testified that there is "rampant gang affiliation" in prison. On cross-examination, the State elicited more testimony regarding the conditions in prison. Jenkins testified that rigid laws regulate prisons to make sure they are safe. Prison units have job fairs and classes allowing the inmates to get degrees ranging from G.E.D.s to Ph.D.s, and law libraries that are "second to none." Prison units also have exercise weights, baseball diamonds, basketball courts, and horseshoes. Each prison unit has a minimum of two televisions in each dayroom, and inmates are allowed to see the National Basketball Association finals and the Super Bowl on television. On re-direct examination, appellant's attorney asked Jenkins if he felt it would be helpful to hear from someone who "was actually on the inside looking out." Jenkins responded, "possibly." Later, Zunker's attorney called Leroy Hall to testify about the time that he served in the Texas Department of Corrections from 1990-1997. The State objected that the testimony from Hall concerning prison conditions was irrelevant. Zunker's attorney responded that the State had "opened the door to the country club atmosphere," and the trial court originally agreed. When the State added that the witness was an expert who had not been properly designated, the trial court overruled that objection as well. After Zunker's attorney asked Hall a few more questions, the trial court began sustaining the State's "relevance" and "invading-the-province-of-the-jury" objections. The trial court then discussed its rulings outside the presence of the jury and reconsidered and sustained the State's relevance objection. The defendants' attorneys made a bill of exception, and, at the conclusion of the bill, the trial court clarified that Hall's testimony was inadmissible, and the court instructed the jury to disregard it. The trial court stated that it based its decision on 401, the relevance. I'm also basing my decision on the fact that I did not believe the door was opened by the State. Number three, I'm making my decision on the fact that . . . I still think 701 and 702 may apply and there should have been a notice given that this person was an expert witness. The Court of Criminal Appeals has explained that, under Texas Code of Criminal Procedure Annotated article 37.07 section 3(a), the admissibility of evidence at the punishment phase of a non-capital felony trial is a function of policy rather than relevancy. See Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim. App. 2000) ; Miller-El v. State, 782 S.W.2d 892, 895 (Tex.Crim.App. 1990). This is so because, by and large, there are no discreet factual issues at the punishment stage. Miller-El, 782 S.W.2d at 895-96. Thus, determining what is "relevant" in regard to punishment, under article 37.07 section 3(a), "should be a question of what is helpful to the jury in determining the appropriate sentence in a particular case." Mendiola, 21 S.W.3d at 285. In Schielack v. State, 992 S.W.2d 639 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd), when faced with the attempt to introduce similar evidence, the Fourteenth Court of Appeals held as follows:In the present case, the testimony which [Schielack] sought to introduce was neither [evidence of the circumstances of the offense itself or the defendant himself]. In fact, the testimony consisted of another person's experiences in prison. There is no evidence that [Schielack's] experience would be the same. As such, we believe that the trial court's decision to exclude this testimony was at least within the zone of reasonable disagreement; therefore, the trial court did not abuse its discretion.Id. at 642-43. Appellant argues that Schielack is not instructive because Hall's "testimony was not offered to show what Appellant's experiences would be." However, during the defendants' bill of exception, Hall testified, at length, about the consequences of being "fresh meat" in prison. After the recitation, Zunker's attorney and appellant's attorney asked Hall to comment as to whether each of the defendants would be treated as "fresh meat." Zunker's counsel asked Zunker to stand and then asked Hall, "What about a white male that's never been to prison before that's his size and weight. Is he going to be considered fresh meat or not?" Appellant's attorney then asked appellant to stand, and he asked Hall, "Are the things that you said pertaining to Mr. Zunker . . ., would that go for Mr. Schultze as well?" "Yes. It will go for anybody that goes into the system that's never been there before." Contrary to appellant's assertion on appeal, Hall's testimony was elicited specifically to educate the jury on what appellant's prison experiences would be. The trial court could have reasonably concluded that Hall's testimony would not have been helpful to the jury in determining the appropriate sentence in this case. Also, the trial court could have reasonably concluded that Hall's testimony went beyond the scope of any door opened by the State. Under the precedent of Mendiola, the trial court's decision to exclude the testimony of Hall was at least within the zone of reasonable disagreement. Accordingly, we hold that the trial court did not err in excluding Hall's testimony. Having held that the trial court did not err in excluding Hall's testimony, we need not determine whether Hall was a properly designated expert. We overrule point of error four.
Jury Argument
In point of error five, appellant contends that the trial court erred in allowing the State to argue about the sexual assault's effect on the victim's parents, who did not testify. The law provides for, and presumes, a fair trial, free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991). Proper jury argument must encompass one of the following general areas: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsels argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999); Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the entire record. Sandoval, 52 S.W.3d at 857. In most cases, if error occurs, an instruction to disregard will cure any error committed. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim. App. 1996). During closing argument at the punishment stage, the prosecutor argued:Imagine the embarrassment, the humiliation that [the complainant] has had to go through. Every time you think about the excuses the Defendants offered, think about [her], what she's going through, what her parents are going through, what her dad is thinking knowing that his little girl was violated in the worst way.Appellant argues that this statement was a direct violation of the trial court's ruling on a motion in limine "that the State's attorney not mention or state to the jury the probable testimony of any witness who is absent or unavailable and was not called to testify in this cause." The trial court overruled appellant's objection that the prosecutor's argument was outside the record. Appellant is correct that the complainant's parents did not testify; therefore, the argument was outside the record. Appellant concedes that "the error was nonconstitutional; thus, the standard of review is that in Tex.R.App.P. 44.2(b)." Without deciding that the trial court erred in overruling appellant's objections to the above argument, we address the issue of harm. Rule 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." Determining harm under that standard in improper argument cases requires balancing the following three factors: (1) severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction/punishment absent the misconduct. Tex.R.App.P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). In Martinez v. State, 17 S.W.3d 677 (Tex.Crim.App. 2000), the Court of Criminal Appeals was faced with a similar issue when it was asked to reverse a death penalty conviction in light of the following jury argument at the conclusion of the punishment stage of trial:
PROSECUTOR: And based on this evidence, this — this rates as one of the worst crimes, one of the worst killings not only in Brazoria County but the State of Texas.
DEFENSE COUNSEL: Objection, your honor. That's not in the record.
THE COURT: Stay in the record, counsel.
PROSECUTOR: The evidence shows you, these were execution killings. 26 to 28 bullets. The family of the murdered victims, the family — the victims themselves, they cry out to you, for the death penalty in this case. There's no more —
DEFENSE COUNSEL: Objection, your Honor. Not in the record, either. Absolutely no evidence of that.
THE COURT: Overruled.
PROSECUTOR: Justice in this case requires you, because we told you from day-one, what we wanted was a fair jury, a jury that would do justice in this case.Martinez, 17 S.W.3d at 692. The court concluded that the degree of misconduct, if any, was relatively mild in the present case. The prosecutor's comment that the victims and their families cry out for the death penalty appears to be intended as a plea for law enforcement. The jury was in a position to know that victims who are dead cannot presently cry out for the death penalty, and that, given the facts surrounding their deaths, no such cries were made before they died. Nor would the jurors be surprised to hear that the victims' families would be upset with appellant or that they would want retribution. And the prosecutor did not attempt, through this argument, to convey any specific facts about the effect of the victims' deaths upon their families. Instead, the prosecutor was pleading with the jury to give the death penalty because the record before the jury showed that the defendant deserved it. To the extent that the prosecutor conveyed facts outside the record, such facts had no tendency to adversely influence the jury against appellant beyond the influence exerted by a wholly legitimate plea for law enforcement. Id. at 693. Here, the prosecutor's comments were sufficiently analogous to those in Martinez for us to conclude that the degree of misconduct, if any, was relatively mild. Although the trial court did not make any attempt to cure the alleged misconduct, the certainty of a severe punishment, absent the alleged misconduct was high. Here, the jury had before it videotape evidence of appellant engaging in truly barbaric behavior — the sexual assault of an unconscious young woman — by inserting a toilet plunger handle in her vagina and suggesting that Klock and Zunker force a baseball in her vagina, while he manned the video camera. Appellant's misconduct was further emphasized by his laughter at the complainant during the assault even when her vagina was burned by a lit cigarette and a screwdriver was inserted in her vagina. During the assault, appellant declared that it was "fucking hilarious." Accordingly, we hold with fair assurance that the trial court's error, if any, in overruling appellant's objection to the above argument did not influence the jury and did not affect his substantial rights. We overrule point of error five.