                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-113-CR


CYNTHIA SUE HARDEE                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE

                                   ------------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                                I. Introduction

     In seven issues, Appellant Cynthia Sue Hardee appeals her convictions for

theft of property and misapplication of fiduciary property. We affirm.




     1
         … See Tex. R. App. P. 47.4.
                        II. Factual and Procedural History

      The friends and family of the complainant, Johnny Bryant, describe him

as “slow” and “trusting.” According to the State’s expert, forensic clinical

psychologist Jack Price, Johnny’s full scale IQ is 76, leading Price to classify

Johnny as “borderline intellectual functioning or borderline . . . mentally

retarded.”

      Johnny withdrew all of the money he had accumulated over thirty years

as a grocery store stocker from the store’s profit-sharing plan—$111,275.23

after taxes and the early withdrawal penalty.2 He contributed this money to

finance a business with Hardee.

      Hardee used $100,000 of the funds to purchase a certificate of deposit,

used the certificate of deposit to take out a $100,000 loan, and placed the

proceeds of the $100,000 loan into a joint checking account under her name

and Johnny’s, which she opened with $10,000 from the $111,275.23.3

      Johnny wrote no checks, but Hardee did. As recounted at trial, among

other things, Hardee used the funds in the checking account to pay bills for

herself and her friends; to pay for vision check-ups and new glasses; to treat



      2
          … Johnny originally had approximately $151,000 in the plan.
      3
      … $50 of the $111,275 was used to open a savings account and the
remaining $1,225 was taken out as cash.

                                        2
her daughter and niece and Johnny’s daughter to Build-A-Bear parties; to rent

furniture and a big-screen television for her home; to have her hair styled and

her dog groomed; to buy Christmas decorations for herself and her friends; to

buy musical instruments for her family and friends; to send money to her

brother’s prison account; and to tithe a large amount to her church.4 A partial

list of some of Hardee’s expenditures (less benefits received by Johnny),

according to the State’s forensic accountant’s testimony and exhibits at trial,

is as follows:

      •     Vehicles & Trailers:                $26,822.94

      •     Alpha Excavating:                   $15,206.00

      •     Crossroads Baptist Church:          $11,627.40

      •     Wal-Mart:                             $2,391.22

      •     The Music Center                      $1,855.52

      •     ABC Distributors:                     $1,344.15

      •     Doctor Visits:                        $1,087.59

      •     Brookshire’s:                          $994.35

      •     Credit Card Payment:                   $700.00

      •     Lifeway Christian Store:               $699.12



      4
      … The record reflects that she also sold her van to Johnny’s ex-wife and
used Johnny’s funds to purchase another car for herself.

                                       3
      •     Christie Wethington (scrapbooking):    $414.05

      •     Build-A-Bear                          $313.41

      •     Hair Cut:                              $45.00

      •     Hollywood Hounds:                      $35.64

      •     Blockbuster:                           $30.03

      •     Country Candles & Fans:                $29.73

      •     Azle Jr. High (Hardee’s daughter):     $20.00

      •     American Craft Mall:                   $14.33

      Johnny and Hardee never started a business. Within three months, the

funds were gone, 5 and Johnny appeared on his sister’s doorstep with two

garbage bags containing his possessions, homeless. The State charged Hardee

with theft of property valued at $20,000 or more but less than $100,000, and

with misapplication of fiduciary property valued at $20,000 or more but less

than $100,000.6    A jury found Hardee guilty on both counts and assessed




      5
      … Johnny withdrew his funds from the profit-sharing account in October
2002; the money was gone by January 13, 2003.
      6
       … See Tex. Penal Code Ann. §§ 31.03, 32.45 (Vernon Supp. 2008).
Both offenses are third-degree felonies. See id. §§ 31.03(e)(5), 32.45(c)(5).
A third-degree felony is punishable by a term of imprisonment of not more than
ten years or less than two years and a fine not to exceed $10,000. Id. § 12.34
(Vernon 2003).

                                      4
punishment at five years’ confinement on each count (to run concurrently) and

a $10,000 fine on each count. This appeal followed.

                       III. Legal and Factual Sufficiency

      In her first two issues, Hardee complains that the evidence is legally and

factually insufficient to support her convictions. Although Hardee purports to

challenge her conviction for misapplication of fiduciary property based on the

legal and factual sufficiency of the evidence on the intent element of that crime,

see Tex. Penal Code Ann. § 32.45(b), she has failed to adequately brief this

portion of her first two points.7 Therefore, we overrule this portion of her first

two points.

A. Standards of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.            Jackson v.




      7
       … That is, she has failed to provide any argument or legal authority to
support this portion of her first two points. See Tex. R. App. P. 38.1(i); Tong
v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S.
1053 (2001); Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998)
(op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

                                        5
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568

(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2008). Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1131 (2000).        Instead, we “determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all

the evidence when viewed in the light most favorable to the verdict.” Hooper

v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume

that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.




                                        6
      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.    Id.   We may not simply substitute our judgment for the

                                        7
factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain

v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record

clearly reveals that a different result is appropriate, we must defer to the jury’s

determination of the weight to be given contradictory testimonial evidence

because resolution of the conflict “often turns on an evaluation of credibility

and demeanor, and those jurors were in attendance when the testimony was

delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is

necessary to correct manifest injustice, we must give due deference to the

factfinder’s determinations, “particularly those determinations concerning the

weight and credibility of the evidence.” Id. at 9. Our deference in this regard

safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.

B. Effective Consent

      Theft occurs when a person “unlawfully appropriates property with intent

to deprive the owner of [the] property,” without the owner’s effective consent.

Tex. Penal Code Ann. § 31.03(a), (b)(1). Consent is not effective if it is given

“by a person who by reason of . . . mental disease or defect . . . is known by

the actor to be unable to make reasonable property dispositions.”               Id.

§ 31.01(3)(C).




                                        8
      Hardee argues that the evidence is not sufficient to show that Johnny

lacked the ability to give valid consent and to show that she was aware of his

inability, if any, to give valid consent.8

      Hardee first directs us to Johnny’s sister’s testimony for the proposition

that it appeared that Johnny consented to every withdrawal, and she claims

that, in the record, the State “acknowledges that [Hardee] obtained consent

from [Johnny] for all transactions.” Johnny’s sister testified as follows with

regard to a conversation she had with Hardee, with Johnny present, when she

learned about the expenditures:

      Q. And when you were asked about expenditures and stuff, when
      [Hardee] would tell you what they were on and such, Johnny was
      agreeing for the most part, wasn’t he?

      A. It might appear that way.

      Q. Well, he did, didn’t he?

      A. It might appear that way, that he was agreeing.

      Q. When she said that Johnny wanted this done, Johnny was
      saying, “Yeah, I remember that,” things of that nature; is that
      correct?



      8
       … Hardee also states as part of her factual sufficiency point that “[i]n
addition to the question of consent, the evidence in this case is also insufficient
to show that [Hardee] had the requisite intent to deprive [Johnny] of his
property.” However, Hardee has failed to brief this contention, so to the extent
that she has raised this as part of her first issue, we overrule it as inadequately
briefed. See Tex. R. App. P. 38.1(i).

                                         9
      A. He made all kinds of comments.

      Q. He made what?

      A. All kinds of comments.

      Q. Well, he never said, “[Hardee] took this money from me,” did
      he?

      A. On that particular day?

      Q. On that tape. 9 Anytime during that meeting.

      A. No.

But Johnny’s sister also testified that Johnny went through first grade twice,

had been a special education student, and could not read or do math problems,

and that it had taken their mother four years to teach Johnny to drive, even

when using the same route every day, which could have reasonably allowed the

jury to conclude that any consent Johnny gave was ineffective. And the other

portion of the record Hardee cites to support her proposition that the State

acknowledged that Hardee had consent from Johnny does not do so; instead,

it only establishes the following:   that Johnny finished high school with a

“[s]pecial education diploma”; that when his sister asked him about his plans

for businesses, “he just said that it was all being taken care of” and that she




      9
       … Johnny’s sister recorded the conversation on audiotape.           The
audiotape was not admitted into evidence.

                                      10
did not know about any specific businesses before the checks came to light;

and that Johnny had been married twice, had three children from those two

marriages, and was able to support them.10

      Hardee acknowledges that the State presented a number of witnesses

who testified that Johnny was “slow,” but she contends that the witnesses she

presented who had dealings with Johnny “never noticed any obvious mental

problems,” supporting her contention that the evidence is insufficient to prove

her awareness of his condition.11    Hardee refers to the testimony of John

Webster, the music minister of Crossroads Baptist Church, who testified that

Johnny did not seem any different to him from anyone else.12 But Webster also



      10
        … When asked whether Johnny knew how to pay enough money to
assist his ex-wives with his children, his sister replied, “He knew how to hand
somebody some money when they asked for it, if he had it.”
      11
       … She also relies on her own testimony that she had no business
experience prior to the partnership with Johnny, apparently to account for the
abysmal failure of their partnership.
      12
           … Webster testified,

      I believe that Johnny did know what he was doing. Johnny
      was—you know, every time you saw him when you go into
      Brookshires, he was always working. He was always doing things
      just like everybody else. He seemed to have the same type of
      lifestyle that the rest of us did. He worked, he had a family, he
      came to church, he learned, and he always had things to talk
      about, and he always had things that he wanted to do. And so I
      just considered him to be no different than anyone else.

                                      11
testified that he did not think Johnny ever joined the church, although he “did

attend there for a while.” 13 And he testified that when Johnny asked him to

attend a seminar on how to become a millionaire because Johnny did not want

to go to it alone, he told Johnny that he was not interested.

      Hardee also refers to the testimony of Ann Jensen, a Rent-A-Center

employee with a history of renting to Johnny. Jensen testified that she never

had any concerns about renting property to Johnny and that nothing ever

happened to make her think Johnny was incompetent. She acknowledged that

if she had thought he was incompetent, she could not have rented anything to

him. She stated that she had no reason to believe that he could not read the

rental contract, but she also stated that out of all of her customers, “maybe

two percent” read the contract and that she did not think Johnny read it

“[u]nless he took his copy and read it.”

      Hardee also refers to the State’s expert witness’s diagnosis of Johnny as

suffering “from a mild defect” to support her effective consent argument. But

the State’s expert witness testified that Johnny had a “moderate defect in

intelligence,” not a “mild” defect, and he testified that based on his evaluation



      13
        … Elsewhere, the record reflects that Hardee wrote an $11,000 check
to that church out of Johnny’s funds as tithing for “J&Cc Enterprises,” which
she testified stood for Johnny, Cynthia (Hardee), and Candace, Hardee’s
daughter.

                                       12
of Johnny, he concluded that Johnny “is defective or intellectually and

academically impaired,” and that “based on [his] testing and observations of

[Johnny], . . . he is not able to manage his own financial affairs.” He added

that Johnny is easily exploited by others “due to his intellectual defects,” that

Johnny is dependent on others and “needs and wants and seeks out assurance

and guidance from others, and he can be quite easily taken advantage of.”

      Hardee contends that the State’s evidence does not support an inference

that Johnny suffers from a defect that leaves him incapable of making a

reasonable disposition of his property, “much less that [she] was fully aware of

such a defect.” And she challenges the credibility of several of the State’s

witnesses: Sean Trotter, who received some of Johnny’s money; Sam Gilley,

who volunteered with Johnny for the Texas Girls Choir;14 and Carol Crumbaker,

an officer manager at the Brookshire’s where Johnny works.15

      However, it is the jury’s duty to evaluate the credibility and demeanor of

witnesses and to determine the weight and credibility of the evidence, not ours.


      14
         … Gilley testified that Johnny could not read the written instructions for
setting up the choir’s equipment and that his impression of Johnny was that he
was slow and “would have a problem with any kind of a complicated
transaction.” He also testified about Johnny’s trusting nature and stated, “I
think I could sell John the Brooklyn Bridge.”
      15
        … Crumbaker testified that she concluded that Johnny was “mentally
challenged” from her conversations with him and that it would not take very
long for anyone to come to this conclusion.

                                        13
See Johnson, 23 S.W.3d at 8–9. And after reviewing the record, we conclude

that even without the testimony of these witnesses, there was ample evidence

upon which the jury could have concluded that Johnny had a mental defect that

would prevent him from being able to make reasonable property dispositions

and that, beyond a reasonable doubt, Hardee was aware of it. See Tex. Penal

Code Ann. § 31.01(3)(C).

      First, in addition to the State’s expert witness’s testimony about Johnny’s

intellectual capacity and the testimony of Johnny’s sister, the jury also heard

Nell Dahl, one of Johnny’s childhood friends, testify that she has known Johnny

for fifty years, that he has been mentally challenged for as long as she has

known him, that he was “special” and different mentally (“back then, we said

mentally retarded”), that he did not read or write, and that it was obvious that

he was mentally challenged.

      Then, Alvie Lee Meredith, Johnny’s co-worker and roommate, also

testified that Johnny was “mentally challenged,” that he was a “very trusting”

person, and that he would be easily taken advantage of. He stated, “Johnny

is the type person, you rob him blind, he’ll help you do it.”     Meredith also

testified that while he was Johnny’s roommate, Hardee gave them a 32-inch

television when she replaced it with the big screen television that elsewhere the

record reveals she rented from Rent-A-Center and for which she made at least

                                       14
one payment using Johnny’s funds. He testified that he, Hardee, and Johnny

went to a furniture store and purchased a bed set for Meredith using Johnny’s

funds, that it was Hardee’s idea more than Johnny’s to do so, and that Hardee

got the new mattress out of the set and Meredith received her used one.

      Additionally, William Sharp, another of Johnny’s childhood friends,

testified that “you wouldn’t have to be around” Johnny for long to realize he

was slow. He further testified that it would be easy to pick up on Johnny’s

slowness “pretty quick” because of “his actions, the way he carried his self

[sic], his speech.” He also testified that he did not think, as to numerical issues

and financial transactions, that Johnny would be able to distinguish between

a hundred dollars and a thousand dollars, but that Johnny could do tasks

involving repetition.   Jack Allen, a former volunteer fireman, testified that

“[t]here’s no question” that Johnny was mentally challenged because he was

slow in thinking and reacting to situations. He stated, “You could talk to him

for just a few minutes, and you realized that he wasn’t as quick witted as what

we’d call normal people.”

      Finally, Hardee’s own testimony provided the jury the opportunity to

judge her credibility. She admitted that she signed every check and spent at

least $37,000 of Johnny’s money, but she testified that she did not intend to

steal from Johnny, and that she did not steal from him. She also testified that

                                        15
Johnny was the one who approached her about going into business and wanted

a 50/50 partnership; that she always had Johnny’s consent to write the checks

(alternatively also claiming that some of the money was a loan to her and that

Johnny told her that with a 50/50 partnership, she was to have half of the

money); and that she had no idea that Johnny was not capable of handling his

own money. She specifically testified that she believed Johnny was mentally

competent. The jury was entitled to disbelieve some or all of her testimony.

See Johnson, 23 S.W.3d at 8–9.

      Viewing the evidence from numerous witnesses regarding Johnny’s

mental deficiency in the light most favorable to the prosecution, without

reevaluating the weight and credibility of the evidence, we hold that the

evidence of ineffective consent is legally sufficient to uphold Hardee’s theft

conviction. Likewise, viewing the evidence in a neutral light, we cannot say

that the record clearly reveals that a different result is appropriate or is

necessary to correct a manifest injustice. Therefore, we hold that the evidence

is also factually sufficient to uphold Hardee’s theft conviction. We overrule

Hardee’s first two points.

                             IV. Closing Arguments

      In Hardee’s third through seventh points of error, she complains about

various aspects of the State’s closing arguments at the guilt-innocence and

                                      16
punishment phases of trial. We have reordered them based on the order in

which they appear in the record.

A. Standard of Review

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.

Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493

S.W.2d 230, 231 (Tex. Crim. App. 1973).

      Furthermore, if a jury argument exceeds the bounds of proper argument,

the trial court’s erroneous overruling of a defendant’s objection is not reversible

error unless it affected the appellant’s substantial rights.     Tex. R. App. P.

44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000);

Mosley, 983 S.W.2d at 259. In determining whether the appellant’s substantial

rights were affected, we consider (1) the severity of the misconduct (i.e., the

prejudicial effect of the prosecutor’s remarks), (2) curative measures, and (3)

the certainty of, depending on the phase of trial, either the conviction or the

punishment assessed absent the misconduct. Martinez, 17 S.W.3d at 692–93;

Mosley, 983 S.W.2d at 259. We apply the same considerations to whether the

trial court abused its discretion when the trial court sustains an objection and

                                        17
instructs the jury to disregard but denies a defendant’s motion for a mistrial.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).                   Only in

extreme circumstances, when the prejudice caused by the improper argument

is incurable, i.e., “so prejudicial that expenditure of further time and expense

would be wasteful and futile,” will a mistrial be required. Id.; see also Simpson

v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S.

905 (2004).

B. Guilt-Innocence Phase Objections

      1. Points 5 and 6: Mistrial and Enron Reference

      In Hardee’s fifth point, she complains that the trial court failed to grant

her motion for mistrial after the prosecution allegedly injected facts outside the

record to indicate that the prosecutor was an expert and that the jury should

follow his recommendations. In her sixth point, she complains that the “trial

court erred in overruling [her] objection to prosecutors comparing the present

case to the infamous Enron case in an attempt to paint [Hardee] with the same

prejudice attached to Enron.”

      During closing arguments, defense counsel told the jury that “[t]his case

is a civil case . . . . This is a civil suit that’s being prosecuted in a criminal case

. . . . She should be sued . . . . This thing should be sorted out in the civil

court because that’s exactly what this is.”         In response to the “civil suit”

                                          18
argument, the following exchange occurred during the State’s closing

argument:

     [PROSECUTOR]: . . . . Okay. Now, mentioned just a couple—oh,
     yeah. This is a civil case. He says this is a civil case. In all
     cases,—not all. In most cases where people get caught in what we
     call white collar crime or nonviolent crime—

     [DEFENSE]: Objection, Your Honor, in all cases, other cases. It’s
     clearly 401, 403, and 404. It’s also prior extraneous.

     THE COURT: Sustained.

     [DEFENSE]: Have an instruction the jury disregard that argument?

     THE COURT: Jury will disregard the last comment of counsel.

     [DEFENSE]: We move for [a] mistrial.

     THE COURT: Denied.

     [PROSECUTOR]: All right. I’ll mention to you that, shall we say,
     that’s an easy out for people who have been caught red-handed,
     with their hand in the cookie jar, say, oh, well, this is a civil case,
     let’s go to civil court, let’s don’t have any criminal penalties
     attached to Enron. No, it’s all civil. That’s a very common, very
     common thing.

     [DEFENSE]: Objection, Your Honor, same thing [i.e., 401, 403,
     404, and prior extraneous].

     THE COURT: Sustained.

     [DEFENSE]: Have an instruction jury disregard that.

     THE COURT: Jury will disregard the last comment of counsel.

     [DEFENSE]: And we move for a mistrial.

                                       19
      THE COURT: Denied. [Emphasis added.]

      When a trial court sustains an objection and instructs the jury to disregard

the State’s argument but denies a defendant’s motion for mistrial, the issue is

whether the trial court abused its discretion in denying the mistrial. Hawkins,

135 S.W.3d at 77. Its resolution depends on whether the court’s instruction

to disregard cured any prejudicial effect. Id. To determine whether the trial

court abused its discretion, we balance (1) the severity of the misconduct

(prejudicial effect), (2) curative measures, and (3) the certainty of conviction

absent the misconduct. Id.; Mosley, 983 S.W.2d at 259.

      In the fifth point, the prosecutor was responding to defense counsel’s

argument that Johnny should have sued Hardee and that civil court was more

appropriate under the circumstances. This was a permissible argument in that

it was an answer to the argument of opposing counsel.            See Felder, 848

S.W.2d at 94–95.       Hardee received an instruction to disregard, and an

instruction to disregard is presumed to cure the harm. Wesbrook v. State, 29

S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001).

It is presumed that the jury will follow a trial court’s instruction to disregard a

comment.     Id. at 116.    If the instruction cured any harm caused by the

improper argument, a reviewing court should find that the trial court did not err;

almost any improper argument may be cured by an instruction to disregard.

                                        20
Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App.), cert. denied, 516

U.S. 832 (1995); Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.—Fort

Worth 1997, pet. ref’d).     Only if the reviewing court determines that the

instruction was ineffective does the court go on to determine whether the error

was harmful. Tex. R. App. P. 44.2.

      Given the volume of testimony to support Johnny’s ineffective consent,

previously discussed above, and Hardee’s own admission that she spent at

least $37,000 of Johnny’s money, Hardee’s conviction was certain even absent

the misconduct, if any. Therefore, we hold that the instruction to disregard

cured any harm, and we overrule Hardee’s fifth point.

      Furthermore, as demonstrated above, the trial court did not overrule

Hardee’s objection to the statement about Enron; it sustained that objection.

Therefore, Hardee’s sixth point is without merit. Additionally, however, the trial

court granted her an instruction to the jury to disregard the comment, and the

comment was made in the same vein as the prosecutor’s earlier comments

about civil trials in response to defense counsel’s earlier argument. Because

this passing reference, in light of the evidence presented at trial and likelihood

of conviction, could not have led to Hardee’s conviction, we overrule Hardee’s

sixth point.




                                       21
     2. Point 4: Unsworn Testimony and Opinion Objections

     In Hardee’s fourth point of error, she complains of three statements made

by the State during the guilt-innocence phase closing argument:

           a. First Statements 16

     [PROSECUTOR]: . . . . But two weeks later, when she starts
     spending that money for a purpose other than going into business,
     she misapplied it. It’s contrary to an agreement. There doesn’t
     have to be a written agreement. Most people go into business and
     partnerships on a handshake.

     [DEFENSE]: Objection, Your Honor, as to what most people do.
     Again, he’s testifying outside the record.

     [PROSECUTOR]: Common, everyday knowledge, Your Honor.

     THE COURT: Overruled.

     [DEFENSE]: Note our exception.

     [PROSECUTOR]: Thank you. Now, it didn’t take long for him—for
     her to starting [sic] spending the money for her own personal
     benefit. Folks, give her the benefit of the doubt. Maybe she didn’t
     intend to steal it. I think she had the whole scheme.

     [DEFENSE]: Objection, Your Honor, as to what counsel thinks.

     [PROSECUTOR]: I think the evidence will show—I’ll rephrase. I
     think the evidence will show—

     [DEFENSE]: May I have a ruling on my objection, Your Honor?




     16
       … Hardee lists these as second of her three complained-of sections
under her fourth point.

                                     22
THE COURT: It’s overruled because he didn’t say anything.

[PROSECUTOR]: I think the evidence—

[DEFENSE]: Objection, Your Honor. He says—you know, it’s his
opinion.

[PROSECUTOR]: My opinion of the evidence, Your Honor.

[DEFENSE]: Opinion of the evidence—

THE COURT: Overruled as stated.

[PROSECUTOR]: Now, anything I tell you is what I believe the
evidence shows. Obviously your judgment is 12 times better than
mine, so you call it like you see it, and that’s the important part.
But—

[DEFENSE]: May I have a continuing objection to this, Your Honor?
I object to that last statement again. And could I have a continuing
objection on this line?

THE COURT: Overruled. And your objection is to—

[DEFENSE]: Any references to what his thought and his belief in
what the evidence shows—

THE COURT: That’s granted and overruled.

[DEFENSE]: Continuing objection is granted?

THE COURT: Yes, it’s granted. [Emphasis added.]




                                23
            b. Second Statement17

      [PROSECUTOR]: She’s smart enough to handle car deals, put titles
      together. She—let me tell you, the woman ain’t no dummy. She
      wants you to believe she is. She’s trying to scam you the same
      way she scammed Johnny. To make you think, oh, poor Cynthia,
      she doesn’t know what she’s doing. She sold cars. Now, when
      you sell cars, you got to go out on the lot. You’ve got to meet the
      people. You’ve got to talk to them. You’ve got to know what’s on
      the car.

      [DEFENSE]: Your Honor—

      [PROSECUTOR]: Everybody knows that.

      [DEFENSE]: Objection, Your Honor. There’s no evidence she ever
      sold cars. He’s testifying outside the record.

      THE COURT: Overruled. [Emphasis added.]

            c. Third Statement

      [PROSECUTOR]: . . . . Ladies and gentlemen, 75,239. That’s the
      number that has been calculated up through this account. I submit
      to you, ladies and gentlemen, even if she didn’t steal it, she darn
      sure didn’t apply it consistent with the agreement they had to go
      into business. So if she wants to say she didn’t steal it or I didn’t
      intend to steal it when I was at the bank, then, guess what, she
      formed an intent to misapply it later, and she misapplied it contrary
      to the agreement.

             A partner is a fiduciary. A commercial bailee is nothing more
      than somebody that keeps a property for hire like a parking lot or
      a warehouse or something, so that doesn’t really enter into it. It’s
      just in the law. So we don’t really have that issue. But what I’m



      17
        … Hardee lists this as first of her three complained-of sections under her
fourth point.

                                       24
      here to tell you, ladies and gentlemen, is whether you find her
      guilty of one count or you find her guilty of both counts, you can
      do either one, but I submit to you Cynthia Hardee took everything
      Johnny Bryant had earned or saved or worked for for 40 years.
      And if we don’t protect the weakest amongst our citizens, why do
      we have a system. People say why don’t they do something. You
      are now the they. And we appreciate your efforts. We will
      appreciate your verdict, whatever it is, but I submit to you the
      evidence justifies a guilty verdict on both counts. Thank you.
      [Emphasis added.]

      Hardee argues that the statements in italics above “violated [her] right to

the presumption of innocence and her right to a fair trial,” are harmful, and

require reversal of her convictions.

      Hardee’s initial objection was to the statement, “most people got into

business and partnerships on a handshake,” and not to the statement, “she

misapplied it. It’s contrary to an agreement.” That is, her original objection to

the first statement was that the prosecutor was testifying outside the record.

Because the complaint made on appeal must comport with the complaint made

in the trial court, she has forfeited this error, if any. Heidelberg v. State, 144

S.W.3d 535, 537 (Tex. Crim. App. 2004); Bell v. State, 938 S.W.2d 35, 54

(Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997); Rezac v. State,

782 S.W.2d 869, 870 (Tex. Crim. App. 1990). We overrule this portion of

Hardee’s fourth point.




                                       25
      Hardee then objected to the second statement in this section, “I think she

had the whole scheme,” and her objection to this statement was that the

prosecutor was expressing an opinion. However, “the prosecutor may argue

his opinions concerning issues in the case so long as the opinions are based on

the evidence in the record and not as constituting unsworn testimony.” Wolfe

v. State, 917 S.W.2d 270, 281 (Tex. Crim. App. 1996); see also Penry v.

State, 903 S.W.2d 715, 756 (Tex. Crim. App.), cert. denied, 516 U.S. 977

(1995); McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985), cert.

denied, 479 U.S. 871 (1986). With regard to the “whole scheme” statement,

the prosecutor was beginning to express an opinion that was not completed

due to the objection; however, having reviewed the record, we conclude that

the opinion reasonably appears to be based upon evidence contained within it.18

Hence no error occurred in overruling this objection, and we overrule this

portion of Hardee’s fourth point.

      The prosecutor’s next comment to which Hardee now objects was to the

effect that Hardee was scamming the jury the same as she scammed Johnny.



      18
        … That is, testimony about how Hardee used Johnny’s money and
Hardee’s own testimony, in which she alternatively claimed that she had
Johnny’s permission to use the money, that some of the money was a loan to
her, and that Johnny told her she was entitled to half of the money, could allow
the reasonable deduction that Hardee’s plan was to take advantage of Johnny
and to use his money for her own benefit.

                                      26
However, the record reflects that Hardee’s actual objection during closing

arguments was that the prosecutor was testifying outside the record again,

complaining that there was no evidence that Hardee ever sold cars. Therefore,

we overrule this portion of Hardee’s fourth point because her complaint on

appeal fails to comport with the error complained of at trial. Heidelberg, 144

S.W.3d at 537; Bell, 938 S.W.2d at 54; Rezac, 782 S.W.2d at 870.

      The final statement to which Hardee objects was to the effect that she

had formed an intent to misapply the money and had done so contrary to the

agreement between her and Johnny. However, the only objection that might

apply to this statement would be the running objection to opinion testimony or

testimony outside of the record that defense counsel secured earlier in the

prosecutor’s argument.     Because this statement clearly is a reasonable

deduction from the evidence as seen through the eyes of the State and does

not constitute the improper injection of a personal opinion or testimony outside

of the record, assuming that Hardee preserved this error, we overrule the

remainder of her fourth point.

C. Punishment Phase Objections

      1. Point 7: Restitution

      In Hardee’s seventh point, she complains that the trial court erred by

overruling her objection to a portion of the State’s closing argument regarding

                                      27
Hardee’s ability to pay back Johnny’s losses by injecting harmful, unsworn

testimony.

      Although Hardee argues that the statement regarding whether she could

pay Johnny back is “purely speculative,” the issue was raised during the

punishment trial.   During the punishment phase, Hardee’s counsel asked

witnesses: “Do you think that resources of the County would be better spent

helping her to get her life back together and pay restitution[?]” and “Do you

think she could live up to and do the conditions of probation, report, pay a fee

each month, pay restitution . . . [?]” [Emphasis added.] During closing

arguments, he told the jury that “[it] could . . . ameliorate some of that

punishment by recommending probation, doing certain things, whatever

condition the Judge wants to put on her, including pay restitution . . . ”; that

the court could set out a restitution plan; and that they should “[t]hink about

the restitution [Johnny] can get from her.” [Emphasis added.]

      During closing arguments, the State responded to the foregoing by telling

the jury:

      He said, well we can have a restitution plan, and we can maybe
      pay back. How much has been paid back in five years? 280
      bucks. You’ve heard them say she’s on disability. She can’t work.
      What are the chances realistically, folks, of Johnny Bryant ever
      getting paid back by Cynthia Hardee? I say they come under the
      heading of slim and none.



                                      28
      The jury had previously heard evidence that Hardee was unable to work

because of a disability, that Johnny’s money had partly been used to pay her

bills, that she was constantly behind on her bills including at the time of trial,

that she had returned a few items that could be sold and had refused to return

other items, and that it was Hardee’s husband who had given Johnny’s sister

$280.    Therefore, the State’s argument was permissible as a reasonable

deduction from the evidence, i.e., that Hardee would be unable to repay any

significant restitution, and as an answer to the argument of opposing counsel.

See Felder, 848 S.W.2d at 94–95. We overrule Hardee’s seventh point.

      2. Point 3: Community Expectations

      In Hardee’s third point of error, she complains that the trial court erred by

overruling her objection to the italicized portion of the following exchange:

      [PROSECUTOR]: . . . . But my question is, where does the
      conduct of a person who steals everything a mentally challenged
      person has and has ever accrued in a savings plan fall on that range
      of punishment [between stealing $75,000 from a large company
      such as General Motors, which might not notice it in its bottom
      line, and a “mom-and-pop” pizza place that could significantly
      impact its ability to do business]?      I submit to you a fair
      consideration of those facts would indicate that it’s obviously at
      the upper end. And here again, not because it’s [Hardee]. It could
      be anybody else. And we don’t want this to happen again. We
      want people to read in the media. We want people to hear about
      it on television. We want people to know.




                                       29
      [DEFENSE]:    Objection.   This is not a proper plea for law
      enforcement and arguing that they should consider community
      standards or actions or what’s in the paper, Your Honor.

      THE COURT: Overruled.

      [DEFENSE]: That’s improper. May I have a continuing objection on
      that?

      THE COURT: Granted. [Emphasis added.]

      Hardee argues that the State’s comments “constituted an improper plea

for law enforcement because the jurors were asked to consider community

standards when assessing punishment” and that the “extremely prejudicial

nature of this type of argument” requires our reversal of the jury verdict.

      Hardee asserts and the State acknowledges that it is improper for the

State to argue “that the community or any particular segment of the community

expects or demands either a guilty verdict or a particular punishment.” Borjan

v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990). Put another way, “a jury

argument referring to the expectations or demands of the community for a

particular result constitutes reversible error . . . .”   Bothwell v. State, 500

S.W.2d 128, 130 (Tex. Crim. App. 1973). In Cortez v. State, the court of

criminal appeals gives numerous examples of improper jury argument based on

community expectations and sums up the impropriety as follows: “[These]

above arguments have been disapproved by this Court because the effect of the



                                       30
language used was to ask the jury to convict or punish the defendant upon

public sentiment or desire rather than upon the evidence that the jury had

received.” 19 683 S.W.2d 419, 421 (Tex. Crim. App. 1984). The impropriety

is not in asking the jury to be the voice of the community but in asking the jury

to lend its ear to the community. Id. This impropriety is also distinguishable

from proper pleas for law enforcement, including the relationship between the

jury’s verdict and the deterrence of crime in general. Borjan, 787 S.W.2d at

55.

      The prosecutor’s argument in this case, basically that the State wanted

the community to hear about this verdict so that this behavior would not occur

again, is not an argument calling upon the jury for a punishment because the



      19
           … These examples include:

      The people of De Soto are asking the jury to convict this defendant.
      The people of this community expect you to put this man
      away . . . . I tell you, the people of Matagorda and Jackson
      counties are expecting you to do your duty in this case and assess
      the defendant’s punishment at death. . . .            Look at this
      courtroom—it is crowded with Polk County people, demanding the
      death penalty . . . . The people are present in this courtroom to
      see that this defendant gets punished . . . . The will and wish of
      every law abiding citizen of Commanche County wants a verdict of
      death . . . . The people of Nueces County expect you to put this
      man away . . . . The jury ought to convict the defendant because
      the people of Denison desire it.

Cortez, 683 S.W.2d at 421 (citations omitted).

                                       31
community demands it. It is closer to asking the jury to be the voice of the

community, rather than asking it to lend its ear, or to a proper plea for law

enforcement. Therefore, we hold that the trial court did not err by overruling

Hardee’s objection, and we overrule her third point.

                               V. Conclusion

      Having overruled all of Hardee’s points, we affirm the trial court’s

judgment.




                                          BOB MCCOY
                                          JUSTICE

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 18, 2009




                                     32
