



Opinion issued January 13, 2005


 









In The
Court of Appeals
For The
First District of Texas
 

 
 
NOS. 01-02-00265-CR
          01-04-00506-CR
____________
 
VALIN THOMAS KLOCK, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
 
On Appeal from the 361st District Court
Brazos County, Texas
Trial Court Cause No. 28,685-361 (Counts 1 and 2)
 

 
 
 
OPINION ON MOTION FOR REHEARING
          We withdraw our Opinion of May 13, 2004 and issue the following Opinion
in its stead.  We deny appellant’s motion for rehearing.
          Appellant, Valin Thomas Klock, and his co-defendants,
 Eric Vaughn Schultze
and Scott Alan Zunker, were indicted for the first-degree felony of aggravated sexual
assault.
 The jury assessed punishments of 22 years in prison for appellant, 30 years
for Schultze, and 15 years for Zunker.  The jury also found appellant guilty of sexual
assault
 and sentenced him to a concurrent term of 10 years in prison on the second
count.  
          In seven points of error, appellant contends that the trial court erred in (1)
denying appellant’s 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
evidence concerning prison conditions; (4) denying his request to instruct the jury,
at the punishment stage, about the elements of an extraneous offenses; (5) denying
appellant’s motion for mistrial; and (6) overruling appellant’s objection during the
State’s final argument during punishment.  We affirm. 
 
Factual and Procedural Background
          On November 19, 2000, College Station Police Department Detective Chad
Harkrider was called to investigate the alcohol-related death of John Hickman at 3311
Bahia in College Station.  When he arrived at the scene and discovered that there
were numerous people to interview, Harkrider contacted College Station Police
Department Sergeant Chuck Fleeger for assistance.  Appellant and Schultze 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 appellant, provided the College
Station Police Department with a videotape that she had obtained from appellant. 
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
Schultze 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 Schultze entering a room where
appellant was having sexual intercourse with the complainant, who appeared to be
unconscious and physically unable to resist.  Schultze, 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 Schultze inserted the
handle of a toilet plunger in the complainant’s vagina.  Schultze 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 appellant 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 Schultze declaring, “this is
fucking hilarious” at one point during the assaults.    
          Police Officers arrested appellant, Schultze, 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 Schultze 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.
Severance
          In point of error one, appellant contends that the trial court, in violation of
article 36.09, erred in denying appellant’s severance during the punishment stage of
trial.  Appellant filed a pre-trial motion seeking severance, and he renewed his request
for severance at punishment.

          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.  Dickerson v. State, 87 S.W.3d 632, 639 (Tex. App.—San
Antonio 2002, no pet.).  However, the trial court may order separate trials, at its
discretion.  Tex. Code Crim. Proc. Ann. art. 36.09.  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 judge.  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, a trial
court does not err in overruling the motion.  See Sanne v. State, 609 S.W.2d 762, 776
(Tex. Crim. App. 1980).
          Appellant asserts that the mandatory provision of article 36.09, requiring a
severance if one defendant has a prior conviction, exists to protect a co-defendant
without a prior conviction from having a jury consider his guilt or innocence without
regard to a co-defendant’s prior conviction.  Appellant argues, with no legal support,
that “this same protection should exist with equal force to a defendant who wants
jurors to consider his punishment without regard to a co-defendant’s prior
unadjudicated felony arrests.”    
          Appellant argues that he was prejudiced because he was forced to “sit next to
Eric Schultze as jurors heard a litany of unadjudicated extraneous offenses offered
against Schultze day after day.”  The jury saw a videotape Schultze made of Hickman
shortly before he died of an overdose of alcohol and hydrocodone/Vicodin.  The
videotape showed that, while Hickman lay unconscious on a couch in the living room
of the Bahia house, Schultze and several other men, laughed at him, poured water on
his head, and shaved his pubic hair with an electric razor.  Another videotape that was
recovered, pursuant to a search warrant, depicted Schultze urinating on Hickman
while Hickman lay unconscious in bed.  The two Hickman recordings were not filmed
on the same night.
          Appellant acknowledges that the trial court repeatedly instructed the jury not
to consider the Hickman videotapes and Schultze’s various unadjudicated offenses
as evidence against appellant.  In response to the repeated instructions to disregard,
appellant asserts, as stated by the Dallas Court of Appeals, “There ought to be a limit
to the number of times a skunk can be thrown into the jury box with instructions not
to smell it.”  Young v. State, 752 S.W.2d 137, 145 (Tex. App.—Dallas, 1988 pet.
ref’d). 
          Appellant concedes, however, that he is not an “angel,” but he contends that
his criminal history “paled in comparison to Schultze’s.”  With respect to Schultze,
the State presented the Hickman videotapes, in addition to evidence that Schultze had
previously harassed his neighbors, damaged a neighbor’s yard, had stolen a painting
from the wall of a restaurant, had a pending felony aggravated assault charge
stemming from a fight with his ex-girlfriend’s boyfriend, and had been arrested for
evading arrest after leading police on a 100 miles-per-hour chase.  However,
appellant’s criminal history consists of convictions for (1) driving while intoxicated -
DWI, (2) DWI-second, (3) assault-bodily injury, (4) possession of marihuana, (5)
possession of controlled substance, (6) possession of drug paraphernalia, (7) driving
while license suspended, (8) reckless damage or destruction of property, (9)
disorderly conduct–noise, and (10) and (11) two failures to appear.   
          During its opening statement at punishment, the State informed the jury that the
Hickman videos were “offered to show you something about Eric Schultze.” 
Sergeant Fleeger testified that neither appellant nor Zunker was present on the
Hickman videos.  The record is replete with instructions from the trial court
informing the jury not to consider the evidence presented against the other defendants
when deciding appellant’s punishment.  Where the jury sentenced Schultze to 30
years in prison, appellant to 22 years in prison, and Zunker to 15 years, there is no
indication that the jury was unable to follow the trial court’s instructions. 
           Assuming that article 36.09 applies to the punishment stage of trial, we hold
that appellant failed to meet his heavy burden of showing that the trial court abused
its discretion when it found that appellant did not show clear prejudice would result
from a joint trial.  See Peterson, 961 S.W.2d at 310. 
          We overrule point of error one.
Erroneously Admitted/Excluded Evidence
          In points of error two and three, appellant contends that the trial court erred in
admitting a videotape of John Hickman’s death over appellant’s objection that it was
inadmissible pursuant to Texas Rules of Evidence 401 and 403.  In point of error
four, appellant contends that the trial court erred in excluding evidence of 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. 2004-2005).     
          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);
Alexander v. State, 137 S.W.3d 127, 130 (Tex. App.—Houston [1st Dist.] 2004, pet.
ref’d).  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
          As noted above, Schultze videotaped Hickman shortly before he died of an
overdose of alcohol and hydrocodone/Vicodin.  The videotape shows that, while
Hickman lay unconscious on a couch in the living room of the Bahia house, Schultze
and several other men laughed at him, poured water on his head, and shaved his pubic
hair with an electric razor.  Another videotape that was recovered, pursuant to a
search warrant, depicted Schultze urinating on Hickman while Hickman lay
unconscious in bed.  The two Hickman recordings were not filmed on the same night.
          Before the opening statements in the punishment stage, the trial court
instructed the jurors that, “In assessing the evidence you hear in this phase of the trial,
you may consider any act or acts solely against that party or parties who engaged in
the act or acts.  You may not consider any such act or acts against any Defendant who
was not engaged in that act or acts.”  
          Appellant directs us to the State’s opening statement where the jurors were told
We’re going to show you a segment, again, from that first videotape. 
You heard about the death of John Hickman.  That death occurred at
3311 Bahia on the couch.  It was tape-recorded.  It was on that
videotape.  We’re going to show that videotape this afternoon.  And it
will not be pleasant.  John Hickman lies dying on the couch from a drug
and alcohol overdose.  Manning the camera was Eric Schultze.  The man
lying on that couch dying clearly needed medical attention.  I’ll just let
you watch that videotape, and you’ll see.
 
I’ll show you another videotape likely tomorrow morning. 
Further conduct on the part of Eric Schultze.  Those two tapes are
offered to show you something about Eric Schultze.

(Emphasis added.)  Appellant’s attorney objected that the videotape was not relevant
to appellant’s case.  Schultze’s attorney objected that the videotape was prejudicial
because there were some unidentified individuals on the tape that were making
offensive statements off camera, and Zunker’s attorney sought a severance because
he was concerned that the tape would prejudice Zunker despite the trial court’s
instruction. All of the objections and requests were overruled.  In closing argument
of the punishment phase, the State asked the jury, “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.”
          Based on the state of the record, appellant argues that the trial court abused its
discretion in overruling appellant’s relevance objection because appellant was not on
the Hickman videotapes and had nothing to do with the events shown on them. 
Appellant further argues that, if the videotapes were relevant, their probative value
was outweighed by their prejudicial effect.
          As appellant acknowledges, the trial court repeatedly instructed the jury to
disregard any act or acts introduced against another defendant when determining its
punishment for appellant.  This instruction, in essence, notified the jury that the
Hickman videotapes could only be used to evaluate punishment for Schultze.  The
individualized sentences—22 years for appellant, 15 years for Zunker, and 30 years
for Schultze—indicate that the jury followed the trial court’s instructions.  Appellant
has presented nothing to show that the jury considered the Hickman videos against
him. 
          We overrule points of error two and three.
Leroy Hall’s Testimony 
          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 assault,
he cannot be a prison trustee.  
          Appellant’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 also has a minimum of two televisions in each dayroom,
and the inmates are allowed to see the National Basketball Association finals and the
Super Bowl on television.  On re-direct examination, Schultze’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 as such, 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.

On appeal, appellant contends that Hall’s evidence was (1) a matter of optional
completeness, (2) relevant to rebut Jenkins’s false impression, and (3) lay person
testimony, not expert testimony. 
          The Court of Criminal Appeals has explained that, under 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 discrete 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 to that which was attempted to be introduced here, 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 it pre-dates two
Court of Criminal Appeals cases that addressed relevancy—Mendiola and Sunbury. 
Furthermore, appellant states that Schielack was distinguished by the Waco Court of
Appeals in Najar v. State, 74 S.W.3d 82 (Tex. App.—Waco 2002, no pet.).
          In Najar, Warden Botkin did not give testimony in the form of an opinion, lay
or expert.  See id. at 86 (citing Tex. R. Evid. 701, 702).  She was never asked to
express an opinion.  Id.  Thus, she was a fact witness whose testimony was
challenged solely on the basis of its relevancy.  Id.  Najar stated that Schielack:
is distinguishable from the present case because Botkin testified that
inmates similarly-situated to Najar—same offense, no history of
violence or aggression, no behavioral problems while
incarcerated—would be placed into “minimum custody” and be
immediately eligible for all appropriate prison programs; prison
overcrowding is not an obstacle to expeditious placement into programs. 
Therefore, the warden’s testimony was not merely speculative as to
Najar.  Furthermore, Schielack did not hold that evidence about prison
conditions is per se irrelevant; Schielack stands only for the principle
that its relevancy depends on the facts and circumstances of the case.

Id. at 87.  We agree with Najar’s characterization of the holding in Schielack.  We do
not, however, agree that Najar is more on point to this case. 
          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 Schultze’s attorney asked Hall to comment about 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?”  Schultze’s attorney then
asked Schultze to stand, and he asked Hall, “Are the things that you said pertaining
to Mr. Zunker . . ., would that go for Mr. Schultze as well?”  Hall responded, “Yes. 
It will go for anybody that goes into the system that’s never been there before.” 
Hall’s testimony was describing prison life as he had observed it several years before,
rather than present prison life that was described by the warden in Najar.  
          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 Instruction
          In point of error five, appellant argues that the trial court erred in denying
appellant’s requested jury instruction setting out each of the elements of all of the
unadjudicated offenses introduced by the State in the punishment stage of trial.
  The
State introduced evidence that appellant had previously committed the following
offenses: DWI, DWI-second, assault-bodily injury, possession of marihuana,
possession of controlled substances, possession of drug paraphernalia, driving while
license suspended, reckless damage or destruction of property, disorderly
conduct–noise, and two failures to appear.
          When a complaint is raised on appeal regarding error in the trial court’s charge
to the jury, a reviewing court must determine whether the charge was erroneous, and,
if so, whether the error was harmful to the defendant.  See Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1984).  The State may offer evidence of
extraneous offenses during the punishment phase of the trial. Tex. Code Crim. Proc.
Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2004-2005).  The trial court, as it did here,
must charge the jury that it can only consider such evidence if it finds beyond a
reasonable doubt that the defendant committed the offenses.  See Huizar v. State, 12
S.W.3d 479, 483-84 (Tex. Crim. App. 2000).  There is, however, no requirement in
our law that all of the statutory elements of an offense must be proven before a prior
unadjudicated extraneous offense may be admitted at the punishment phase of trial. 
Spence v. State, 795 S.W.2d 743, 759 (Tex. Crim. App. 1990).  Because Spence does
not require the State to prove all the elements in an extraneous offense in the
punishment stage, it is unnecessary for the trial court to submit an instruction that
includes the elements of such extraneous offenses. 
          We overrule point of error five.
 
Jury Argument
          In point of error six, appellant contends that the trial court erred in denying his
motion for mistrial after the State argued in its final argument in the punishment stage
of trial that appellant watched his best friend die.  In point of error seven, appellant
contends that the trial court erred in overruling appellant’s objection after the State
argued matters outside the record during its final argument in the punishment stage
of trial.
          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 generally 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).
 
Motion for Mistrial
          During closing argument at the punishment stage, the State stated that “These
three Defendants need to be held accountable for the total and continued disregard
for life and for the law.  They had chances.  They’ve been in trouble before.  They
watched their best friend die of a drug and alcohol overdose.”  The trial court
sustained appellant’s objection and instructed the jury to disregard the last statement,
but denied the motion for mistrial.
          At almost every mention of the Hickman videotapes, the trial court instructed
the jury that the evidence introduced against one party cannot be considered against
any other party.  The jury saw the Hickman videotapes and heard testimony
describing who was present during the filming of the videotapes. 
          We presume the instruction was sufficient to cure any harm.  See Gardner v.
State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987); Pineda v. State, 2 S.W.3d 1, 11
(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). 
          We overrule point of error six.
Outside Record
          In point of error seven, appellant asserts that the trial court erred in overruling
appellant’s objection after the State argued matters outside the record during its final
argument in the punishment stage of trial.
          During closing argument at the punishment stage, the State 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.

The trial court overruled appellant’s objection that the prosecutor’s argument was
outside the record.  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 complainant’s parents did not testify; therefore, the argument was outside
the record, and the trial court erred in overruling appellant’s objection.  The error was
nonconstitutional; thus, the standard of review is that in Texas Rule of Appellate
Procedure 44.2(b).  Rule 44.2(b) provides that a nonconstitutional error “that does not
affect substantial rights must be disregarded.”  Tex. R. App. P. 44.2(b).  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.  Id.;
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
 
          Severity of the Misconduct 
          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 (emphasis added).  Here, like in Martinez, the prosecutor’s comments did
not attempt to convey specific facts about the effect of the complainant’s assault upon
her family so much as it was conveying matters the jury would not be surprised to
hear because they are obvious or common knowledge.  Accordingly, we conclude that
the degree of misconduct was minimal.
          Curative Measures
          The trial court did not make any attempt to cure the misconduct.
          Certainty of Punishment Absent the Misconduct
          Appellant was found guilty of the first-degree felony offense of aggravated
sexual assault—an offense punishable by imprisonment for life or for a term of not
more than 99 years or less than 5 years.
 See Tex. Pen. Code Ann. § 12.32 (Vernon
2003).  If a jury sentences an individual to less than 10 years, it may recommend to
the trial court that the imposition of the sentence be suspended and that the defendant
be placed on community supervision.  Tex. Code Crim. Proc. Ann. art 42.12, § 4(a),
(d)(1) (Vernon Supp. 2004-2005).  Here, the jury assessed punishment at 22 years in
prison.  To evaluate the “certainty of the punishment absent the misconduct,” we must
examine all the evidence presented during punishment.
                    State’s Witnesses
          The jury saw the videotape of Hickman taken shortly before his death. 
Sergeant Fleeger testified that neither Zunker nor appellant was present in the
Hickman video.  Fleeger authenticated a municipal court complaint filed against
appellant on November 19, 2000 charging him with reckless damage or destruction
stemming from an incident at the police station when appellant found out that
Hickman had died.  Appellant and Hickman were very good friends.  Fleeger took
appellant’s statement at the police station at 8 a.m. the morning of Hickman’s death,
and Fleeger testified that appellant was very intoxicated.  Fleeger and Detective
Harkrider both testified that appellant, Schultze, and Zunker were not peaceful, law-abiding citizens, and that they have bad reputations in the community. 
          Austin Police Department Officer J. D. Floyd testified that, on April 21, 2001,
while on duty, he saw appellant, who was driving the opposite direction, driving 70
miles per hour (mph) in a 55 mph zone.  He turned around and followed appellant and
saw him switch places with the passenger in the car.  The “driver” said that he had
switched places because his friend’s driver’s license had been suspended.  Floyd
spoke with appellant and discovered that appellant was concealing a marihuana
cigarette in the waistband of his shorts.  He arrested appellant for possession of
marihuana and driving with a suspended license.  Floyd testified that appellant’s
license was suspended because of an earlier DWI conviction.   
          Bryce Pflughaupt testified that, on December 9, 2000, Schultze approached him
at a bar and said, “It’s my birthday.  Tonight I’m going to kick somebody’s ass.” 
Schultze approached him a second time and said, “I’ll kill you, mother fucker.” 
Pflughaupt testified that the manager of the bar asked appellant, Schultze, and a
couple of other people who were with them, to leave.  When Pflughaupt left the bar
an hour and one half later, appellant and his friends were waiting for him.  Schultze
hit him and knocked him to the ground.  Appellant kicked him and prevented him
from getting up.  The jury was shown photographs of Pflughaupt taken at the
emergency room after the fight.  Pflaughaupt described his injuries to the jury.  He
said that his “nose was pretty puffy . . . . [His] eyes swollen shut. [His] lip down on
my teeth from that cut.  Bruised.  Pretty banged up pretty bad.”  He testified that his
wrist was broken, and it required surgery and rehabilitation as a result of the fight
initiated by Schultze. 
          Stephen Rogers testified that he was walking behind Pflughaupt on December
9, 2000 when a group of guys circled Pflughaupt and “basically just beat the crap out
of him.”  The circle of guys would not let anyone in to break up the fight. He did not
see who the people were who were fighting Pflughaupt.
          Bryan Police Department Officer Gabriel Alvarez testified that, at 1:10 a.m. on
January 13, 2001, he stopped appellant for spinning his wheels, accelerating, and
“roaring” his engine.  Officer Alvarez testified that spinning your tires and exhibition
of acceleration is a violation.  Alvarez spoke with appellant, who was driving the car,
and suspected that appellant was DWI.  After performing a series of sobriety tests,
Alvarez arrested appellant for DWI.  
          The State also introduced municipal court complaints from Brazos County for
October 20, 2000—disorderly conduct-noise-residence; January 9, 2001—failure to
appear for disorderly conduct complaint; May 9, 2001—failure to appear for October
disorderly conduct complaint; and May 9, 2001—failure to appear for January failure
to appear complaint. 
                    Defense Witnesses
          Zachary Kent, who is “very good friends” with Schultze, testified that
Pflughaupt was the aggressor in the fight with Schultze.  He confirmed that appellant
and his friends were thrown out of the bar the night of the fight.  Kent testified that
he saw appellant try to stop Pflughaupt from fighting more.  Kent left the scene of the
fight because the manager said that “the cops were coming.”  
          Marilyn Mills, appellant’s aunt, testified that, while he was a child, appellant
lived with her for seven years.  She testified that appellant was “not a priority” to his
parents and was in and out of social services because of parental neglect.  Mills
testified that appellant was a “very loving person” who “has a need to be wanted.”  
She saw the sexual assault video and her evaluation was that it appeared that
appellant was being “egged on” in the video.  Mills believed that appellant should get
probation.  On cross-examination, Mills acknowledged that appellant sexually
assaulted an unconscious woman on the videotape and that being raised in a broken
home is no excuse for such conduct.  She admitted that, during the course of the trial,
she had learned that, at the time of this sexual assault trial, appellant was on bond
supervision for three offenses—aggravated sexual assault, sexual assault, and DWI. 
She also admitted that she had just learned that appellant had been arrested for
possession of marihuana and driving with a suspended license.  She testified that she
did not know until trial that, as a condition of his bond on the DWI, appellant was
required to keep a guardian enter-lock device in his car.  She did not know that, in
violation of his bond supervision, appellant had removed the device from his car.  
          Ashley Averitt testified that she and appellant had gone on several dates, and
he was always “nothing but a good person” to her.  She has been intoxicated around
him, and he never acted inappropriately.  She believed appellant should get probation. 
On cross-examination, Averitt admitted that she did not know that appellant violated
his bond supervision when he went dancing with her at a bar.  She did not know that
he had tested positive for marihuana. 
          Jeanne Marie Birdwell testified that she dated appellant for one month while
they were both students at Mary Hardin Baylor.  She described him as very caring and
having a “big heart.”  She testified that he was “a follower” and “never started
anything.”  She said that appellant “knows that he made a mistake and that guilt alone
is enough punishment.”  Birdwell watched the sexual assault videotape and admitted
that she expected it to “be rougher and more forceful.”  On cross-examination, she
agreed that, because the complainant was unconscious, there was little need for
“force.”  She also conceded that the complainant reacted in pain; therefore, the assault
must have been “pretty rough.”  Birdwell was unaware that, in April 1998, appellant
was convicted for DWI.  She was also unaware that, while he was on probation for
that DWI, appellant violated his probation by drinking again as a minor in possession. 
Finally, she was also unaware of appellant’s subsequent DWI conviction. 
          Jeff Shinn, appellant’s college roommate, testified that appellant’s father was
“really tough on him,” and he was a “follower” and “had a hard time saying ‘no.’” 
He believed that appellant should get probation because he was “embarrassed” by
what he had done.  On cross-examination, Shinn admitted that, not in “a thousand
lifetimes” would he do something like he saw appellant do on the videotape.  Shinn
testified that, had he been there, he “would have known it was wrong, but [he] would
have been laughing, giggling, kind-of-type thing.”  No one asked Shinn any questions
after that admission.
          Connie Sympson, appellant’s aunt, testified that appellant’s mother was an
alcoholic and his father used drugs and alcohol.  Appellant, who was required to wear
an ankle monitor, lived with Sympson while he was out on bond for this sexual
assault.  She testified that “he wants to be a productive person in society” and he
should get probation because he is not a bad person.  On cross-examination, Sympson
discovered that appellant had violated his bond on numerous occasions while under
her control.  Sympson agreed with the prosecutor’s statement, “facing a serious first
degree felony, probably the most important event in his life, and he still couldn’t
conform his conduct to just a simple condition of bond.  Is that a true statement?” 
She acknowledged that appellant did not take the initiative to seek help for his
alcohol problems. 
          Larry Hill, appellant’s high school football coach, testified that appellant was
a “follower.”  He was not impressionable, but did have a desire to please.  Hill agreed
that being a follower is no excuse for criminal conduct.
          James Ezelle, Jr., Schultze’s psychiatric expert, agreed that, if a person grew
up with both rejection and abandonment by his parents, he wold have a strong need
for the group and a compromised ability to stand up to the group. 
          Aslynn Min Jares, appellant’s former girlfriend, testified that appellant “treated
[her] with kid gloves almost at all times.”  Acceptance is “very, very important” to
appellant, and it did not surprise her to hear that he did not stand up to his friends. 
She was, however, “very, very surprised” to hear about the sexual assault charges. 
Jares believed that appellant had the “least involvement” in the offense, but the case
was “still very shocking.”       
                    Rebuttal Witnesses
          On rebuttal, Betty Meier, appellant’s probation officer, testified that she began
supervising appellant in March 2001 for DWI.  She supervised him again for this
felony aggravated sexual assault and a pending assault charge.  On her first office
visit with him in March 2001, appellant lied to her.  Knowing that a condition of his
bond was that he could not drive without the ignition enter-lock device, appellant told
Meier that he was not driving.  After he left her office, Meier watched appellant get
into a car and drive it from her office.  One month later, appellant was arrested for
driving with a suspended license and marihuana possession.  Appellant failed to
report either arrest to Meier.  Meier testified that appellant violated the conditions of
his bond by (1) committing an offense and (2) not reporting the offense to her. 
Appellant’s urine tested positive for marihuana, and he violated his curfew several
times.  He violated his bond conditions by going dancing at a bar and by smoking
marihuana.  Meier testified that appellant repeatedly lied to her.  He lied when he told
her that he was not driving.  He lied when he told her that he was not involved in this
sexual assault case.  Appellant asked if he could move to California, and Meier said
that she was originally considering granting him permission.  Then, she learned about
the marihuana and driving with license suspended arrests, and she reconsidered. 
When she told him that he could not move, appellant told her “My attorney told me
to lie to you about this arrest; and that’s the reason I didn’t tell you about it.”  Finally,
he removed the enter-lock system from his car without permission.
  When asked if
appellant should be considered for probation, Meier responded
Based on the numerous violations that he had while on bond – he
was on bond for a very serious offense and it doesn’t appear to me that
that had much effect on him because he continued to violate the law.  He
continued to violate the conditions of bond while on bond supervision.
 
So based on the fact that he was on bond supervision, continued
to violate the law, based on the fact that he continued to lie to me on
several occasions while on bond supervision, I don’t feel that he can be
trusted.  I also have concerns about the safety of the community if he is
released into the community. 

          Finally, Sergeant Fleeger testified again and stated that, “based on the
heinousness of the crime” and his “knowledge . . . [of] arrests of the Defendants
before and after their arrests for this case,” he did not believe the defendants deserved
probation.  He acknowledged that he had never recommended probation as a witness,
but believed that sometimes it is appropriate.
          Here, the jury heard testimony from nine of appellant’s witnesses.  They all
testified that appellant came from a troubled home, but was a good guy and a
follower.  In addition, the jury saw videotape evidence of appellant engaging in truly
barbaric behavior—the sexual assault of an unconscious young woman—by Schultze
inserting a toilet plunger handle in her vagina and his suggesting that appellant and
Zunker force a baseball in her vagina, while Schultze manned the video camera.  The
videotape also showed Zunker burning the complainant’s vagina with a lit cigarette
and appellant and Zunker inserting a screwdriver blade into the complainant’s vagina. 
Appellant’s misconduct was further emphasized by his laughter at the complainant
during the assault, while Schultze declared that this was “fucking hilarious.”  They
heard testimony from several policemen who testified that the defendants were not
law-abiding citizens, and they heard from appellant’s bond supervisor who outlined
numerous ways in which appellant had violated the terms of his bond while trial was
pending in this first degree felony case.
          Taking all of the evidence into consideration, and in light of our holding that
the argument did not constitute severe misconduct, we hold with fair assurance that
the trial court’s error 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 seven.
Conclusion
          We affirm the judgment.
                                                                        George C. Hanks, Jr.
                                                                        Justice

Panel consists of Justices Taft, Jennings, and Hanks.

Justice Jennings dissenting.

Publish.  Tex. R. App. P. 47.2(b).
