Opinion
02-22-00286-CR
06-20-2024
Delaine Edward Jumper, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court No. 1751494R
Before Sudderth, C.J.; Kerr and Wallach, JJ.
MEMORANDUM OPINION
MIKE WALLACH, JUSTICE
Appellant Delaine Edward Jumper appeals from his convictions for continuous sexual abuse of a child (CSA) and indecency with a child, offenses that involved his adopted daughter. Jumper raises four issues on appeal: (1) the trial court improperly admitted testimony that he had also abused his other adopted daughter; (2) the trial court violated his Sixth Amendment rights by allowing his other daughter to invoke her constitutional right not to testify; (3) the prosecutor misled the jury in her closing argument; and (4) the prosecutor committed prosecutorial misconduct. We will overrule all four issues and affirm the trial court's judgments.
Background
Jumper and his wife Danell adopted Grace, Amy, and their two brothers from foster care. When Grace was nine, Danell broke her femur and became immobile. Danell died the next year from unrelated health issues.
Grace and Amy are pseudonyms, which we use to protect their identities. We also use pseudonyms for Danell's brother and his wife, through whom Grace and Amy could be identified. See Tex. R. App. P. 9.10(a)(3); Stephenson v. State, 673 S.W.3d 370, 375 n.1 (Tex. App.-Fort Worth 2023, pet. ref'd).
Grace was close to her mother and was deeply affected by her mother's death. Grace began experiencing mental health issues, and at some point, Grace began hearing a voice telling her to hurt herself. Her decline in mental health progressed to suicidal ideation and suicide attempts, which led to multiple hospitalizations. Grace's medical providers prescribed her Prozac and increased the dosage over time, but Grace's mental health did not improve. Later testing by a different medical provider, psychiatrist Dr. Vernon Johnson, revealed that Grace does not metabolize Prozac, resulting in the drug building up in her body. According to Dr. Johnson, a person who cannot metabolize the drug can have "very serious side effects," including experiencing hallucinations. Grace began suffering visual hallucinations, including once thinking she saw a clown at her window and sometimes thinking that someone was following her to and from school. When she brought up the issue with her family members, they "brushed [it] off."
After Grace's discharge from one of her hospitalizations, Jumper had her call her aunt Gillian, who is married to Danell's brother Aaron, to tell Gillian that she had just been discharged from a hospital and that she had attempted to hang herself. Grace was approximately eleven years old at the time, and this call was the first time that Gillian had heard about Grace's mental health struggles. Thereafter, Gillian became involved in Grace's care.
Gillian did not believe that Grace was getting better from her treatment. At Gillian's urging, Jumper transferred Grace's care to Cook Children's Medical Center. Her new providers had concerns about Grace's Prozac dosage and thus began reducing the dosage and trying other medications. On the advice of her providers, Grace was admitted to a residential treatment facility in Oklahoma. When the family visited Grace there, Grace would hug Gillian but would not approach Jumper to hug him. Grace was eventually released from the facility into Gillian and Aaron's care. The plan then was for Grace to eventually return to living with her siblings and Jumper.
Gillian set up appointments for Grace with Dr. Johnson and a therapist, and Grace also began having visits home with Jumper, her siblings, and Lolita, the family dog. Jumper was unhappy with Grace because she did not want to hug him or kiss him on the lips, and at some point, he told Grace in a phone call that she could not return home until she consented to that kind of physical contact. Gillian heard the phone call and described Jumper's demeanor as "adamant" and "insistent" that Grace not only hug him but kiss him on the lips. Gillian encouraged Grace to talk to her mental health practitioners about the issue, and after Grace told Dr. Johnson, he made a report to Child Protective Services (CPS). Dr. Johnson described Jumper's behavior as "coercion" and "a threat . . . [t]hat if she didn't hug and kiss him in the manner that he chose, then she would be kicked out of the family." Dr. Johnson characterized that behavior as emotional abuse.
Dr. Johnson's report led to a CPS investigator speaking to Grace, and during that interview, she made an outcry of sexual abuse against Jumper. That interview was followed by a forensic interview and an investigation that culminated in charges against Jumper for CSA, indecency with a child, and multiple lesser-included offenses. At trial, Grace, Dr. Johnson, and her therapist testified, as did Gillian, the doctor who performed a nonacute sexual abuse exam on Grace, the forensic interviewer, and the police officer who investigated the case.
Grace testified that Jumper had also committed sexual acts against Amy, and Grace's therapist testified about what Grace had told her regarding acts against her and Amy. Jumper objected to some of the therapist's testimony about abuse against Amy, but the trial court overruled the objections. The detective who investigated the case testified that CPS had interviewed Amy and that during the interview, Amy did not make an outcry. Amy did not testify, although Jumper attempted to call her as a witness; as discussed below, the trial court allowed Amy, then seventeen, to invoke her Fifth Amendment right not to testify because of a pending juvenile case against her for aggravated sexual assault of a child.
Grace's and Amy's two brothers were also facing accusations of sexual assault.
The jury found Jumper guilty of CSA and indecency with a child and assessed punishment at confinement for sixty-five years and ten years, respectively. The trial court sentenced him accordingly.
Discussion
I. Extraneous Offense Evidence
In his first issue, Jumper argues that the trial court abused its discretion by admitting evidence of extraneous sexual abuse against Amy as same-transaction contextual evidence. See Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993) (stating that bad acts evidence may be admitted when facts and circumstances of the charged offense "would make little or no sense" without the bad-acts evidence).
A. Standard of Review
An appellate court reviews a trial court's ruling on evidence admissibility for an abuse of discretion. Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021). Because the trial court "has the best view of the evidence," an appellate court will not disturb a trial court's ruling so long as it falls in the zone within which reasonable minds may differ. Id.
Generally, to complain on appeal about the admission of evidence, a party must have objected each time the objectionable evidence was offered. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.-Fort Worth 2012, no pet.). "Erroneously admitted evidence will not result in reversal when other evidence, or substantially similar evidence, was received without objection-either before or after the complained of ruling." Seidule v. State, 622 S.W.3d 480, 495 (Tex. App.-Houston [14th Dist.] 2021, no pet.) (citing Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010); and Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)); see also Schmidt v. State, 612 S.W.3d 359, 369 (Tex. App.-Houston [1st Dist.] 2019, pet. ref'd) (holding, in CSA case, that admission of therapist's notes about child's therapy was harmless when substantially same evidence was admitted through child's testimony).
B. The Testimony
Grace testified at trial about the abuse against her and relayed incidents of abuse that she had witnessed by Jumper against Amy. Grace's therapist also testified about Grace's disclosure that Jumper had abused her and Amy. The therapist first stated that Grace and Amy had shared a room and that Jumper would "come in the room and tuck them into bed," would take off Grace's clothes "and rub his penis against her vagina," and then "would go over to [Amy] and have her-," at which point Jumper objected, "[E]xtraneous. Also hearsay." The trial court overruled those objections. Jumper then objected, "Confrontation." The trial court did not respond, and the prosecutor told the therapist, "You can answer." The therapist stated that "[Jumper] would have her rub cream on his neck and then he would sexually abuse [Amy]." Jumper also objected "hearsay, [C]onfrontation" when the therapist was asked if Amy had shared with Grace a plan to make the abuse stop; the trial court overruled that objection. The therapist also testified that Grace had said that one day, she and her sister "hid under the bed and were going to run down to the neighbor's house who was a police officer," but they "didn't think that he would believe them, so [Grace] said that she told their brothers." Jumper did not separately object to that testimony but did ask for a limiting instruction regarding extraneous offense evidence. The trial court overruled the request after the prosecutor argued that the testimony was contextual evidence.
Jumper did not at any point make a Rule 403 objection to the extraneous offense testimony. See Tex. R. Evid. 403(b).
The therapist also testified-without objection-that Grace had told her that Jumper would comment to a cousin about Amy's breasts and would "grab [Amy's] boobs." The therapist further testified-without objection-that sometimes Jumper would send the girls' brothers to a friend's house and have Grace and Amy walk around naked and that Grace felt guilty for not speaking up sooner because if she had, maybe Amy would also have shared that she had been abused.
Jumper also did not object when Grace testified that Jumper would come into the room she shared with Amy and get into Amy's bottom bunk bed and that in a mirror she "could see him touching [Amy] and moving her around, and [she] could feel the bed moving" and hear Jumper grunting. He did not object when Grace testified that based on talking with Amy during that time, it seemed like Amy "was experiencing something similar to" what Jumper was doing to Grace. He did not object when Grace testified that more than once, Jumper "made [her] put [her] mouth on his penis" when Amy was in the room and that he did the same thing to Amy and that he would fondle Amy's breasts while they were in the car. Further, he did not object to Grace's testimony about what Amy had told her about how to make the abuse stop.
Grace testified that Amy told her that the abuse had stopped when Amy started her period, so Grace told Jumper that she had also begun menstruating, and she employed Amy's used sanitary pads to convince him.
C. Analysis
Jumper argues under this issue that the therapist's testimony was not admissible as contextual evidence and that its admission was prejudicial. As the State points out, however, the same or substantially similar evidence was admitted without objection during the therapist's testimony and Grace's testimony. Because Jumper did not object to other testimony, he did not preserve his complaint. See Ethington v. State, 819 S.W.2d 854, 859-60 (Tex. Crim. App. 1991); Redmond v. State, 629 S.W.3d 534, 547 (Tex. App.-Fort Worth 2021, pet. ref'd); Templin v. State, No. 02-17-00229-CR, 2019 WL 311145, at *3 (Tex. App.-Fort Worth Jan. 24, 2019, no pet.) (mem. op., not designated for publication). Further, even if his complaint had been preserved, the admission of the challenged evidence was rendered harmless by the admission of the same or substantially similar evidence. See Schmidt, 612 S.W.3d at 369; see also Leday, 983 S.W.2d at 718. We overrule Jumper's first issue.
II. Sixth Amendment Rights
Jumper's second issue also relates to the testimony about his alleged acts against Amy. The reporter's record includes testimony that Amy had never made an outcry of abuse by Jumper, but it contains no testimony or other evidence that she had affirmatively denied that any abuse occurred. Nevertheless, Jumper asserts that Amy had denied the abuse. He contends that, given that denial, the State's use of testimony about the abuse and her being allowed to invoke her Fifth Amendment right to not testify violated his Sixth Amendment rights to confrontation and to present a defense. Jumper argues that the trial court failed to make an inquiry into the reasonableness of Amy's assertion of her privilege against self-incrimination and that her assertion was not reasonable because although the State could "develop the non-incriminating fact [that Amy] had a pending charge, [the prosecutor] could not go into the specifics of the case."
The Sixth Amendment's right to present a defense is based on the Confrontation Clause, which guarantees defendants the right to be confronted with the witnesses against them, and the Compulsory Process Clause, which guarantees defendants the right to call witnesses. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313, 129 S.Ct. 2527, 2533-34 (2009); Fowler v. State, No. 08-23-00091-CR, 2024 WL 173611, at *3 (Tex. App.-El Paso Jan. 16, 2024, pet. ref'd) (mem. op., not designated for publication). We review a defendant's unsuccessful Confrontation Clause objections de novo. Jordan v. State, No. 02-19-00148-CR, 2020 WL 5666559, at *2 (Tex. App.-Fort Worth Sept. 24, 2020, no pet.) (mem. op., not designated for publication) (citing Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); and Wells v. State, 558 S.W.3d 661, 666-67 (Tex. App.-Fort Worth 2017, pet. ref'd)). A defendant's Compulsory Process Clause right, however, "is addressed to the trial court's discretion," Drew v. State, 743 S.W.2d 207, 225 n.11 (Tex. Crim. App. 1987), and we therefore review a trial court's ruling regarding the right for abuse of that discretion, Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.-Fort Worth 2006, pet. ref'd).
A. Jumper's Attempt to Call Amy
The State rested at the end of the second day of trial. On the morning of the third day, Jumper indicated that he wanted to call Amy as a witness. No record was made of when Jumper initially announced that he would be calling Amy as a witness or of the prosecutor's raising the issue of Amy's pending charge. Instead, the record related to the matter begins with the trial court's calling Amy to the bench, asking her to confirm that she had legal proceedings pending against her in juvenile court, and then telling her that the court would appoint an attorney for her "for the limited purpose of whether or not [she] want[ed] to testify, because it could open the door to something that [she] might be charged with in juvenile court." The court took a recess while Amy consulted with the appointed attorney. After about thirty minutes, Amy and her appointed attorney returned, and the appointed attorney informed the trial court that Amy had decided not to testify. The trial court then confirmed with Amy on the record that the attorney had talked to her about "everything [that] could happen if [she] testified" and that she did not wish to testify. After her confirmation, the trial court stated, "All right. Thank you. We'll let you do that."
Jumper's attorney briefly spoke with his client, and then the attorney, the prosecutor, and the trial court put on the record how the issue had been raised. First, Jumper objected that the State had preemptively raised the issue and had asked the trial court to appoint Amy an attorney to inform her of her Fifth Amendment right, acts that Jumper characterized as the State's forbidding Amy's testimony:
I guess just for record purposes, I'm going to, given just what happened, lodge a Sixth Amendment objection, right to present a defense. I think I was trying to call [Amy]. At that point the State moved to forbid her from testifying based on her facing charges and requesting that the [trial c]ourt appoint her a lawyer even though I think their records showed she already had a lawyer. And subsequently now I think [Amy], after talking with a lawyer that she just got, has decided not to testify. And so I would lodge a Sixth Amendment right to present a defense objection based on how that transpired, Your Honor. [Emphasis added.]
The prosecutor then explained how the issue had arisen, as well as her contention that Amy could be impeached with the pending charge:
The Defense announced that they planned to call the witness, [Amy], who . . . currently has a case pending in juvenile court where she is charged with the offense of aggravated sexual assault of a child. That case was filed in late October, and as soon as the State was made aware of that filing, the State literally e-mailed the Defense attorney and opened all available records [that] the State had so that the Defense would have all the same information the State did regarding all of the investigation that was conducted by the Fort Worth Police Department and the detective who eventually made the decision to detain her as a juvenile.
We merely advised the Court that because [Amy] is currently charged with an offense of aggravated sexual assault of a child, that if
she planned to take the stand, that she was entitled to have an attorney appointed to her to advise her of the risks that she would undertake in doing so.
Because she is currently charged with an offense, the State has an absolute right to impeach her with that particular-with those particular charges, and the State wanted to ensure that [Amy] was made aware of that before taking the stand. As-if it's not clear for the record, [Amy] is 17 years old and I believe it's important for her to have the advice of counsel.
[A prosecutor] called the juvenile prosecutor who is assigned to that case and discovered that [Amy] has an appointed attorney in juvenile. But in light of the fact that . . . [the attorney for the juvenile case] was not present in the courtroom, it's our understanding that the [trial c]ourt then elected to appoint another defense attorney to her case by the name of Alicia Cooper so that she would be able to advise [Amy] as to the benefits or consequences of testifying in this case.
I don't believe that the Defense has been-has been prevented from presenting a defense, as they've been able to cross-examine every witness the State has presented. And because the witness has elected not to testify and to plead the Fifth Amendment, that is her right to do so.
Trial in this case began on November 1, 2022.
The trial court then stated for the record that "it wasn't until about . . . 8:45 to 9 o'clock [that] morning that the [trial c]ourt, as well as all parties, actually got the name of who [Jumper] expected to call, at which time [the trial c]ourt was made aware that this witness did have a criminal case and charges filed against her in juvenile court." The court noted that the prosecutor had informed the court that Amy "could possibly be impeached" and thus the trial court "might want to appoint a lawyer to represent her before she testified," and the trial court "felt . . . it was important that someone be appointed." The court then recapped its appointing an attorney for Amy and her invocation of her Fifth Amendment right:
I talked with [Amy] first to ask if she even knew who the lawyer was that was appointed to her in juvenile court and she did not know the lawyer. . . .
The Court felt that it was important that [Amy] did understand her rights and the fact that she could be impeached if she's called as a witness. And as such, the Court appointed Ms. Alicia Cooper for the limited purpose of representing her to inform her of her rights and any consequences that she might face if she decided to testify.
[Amy], after talking with Ms. Cooper for approximately 30 to 35 minutes, informed the Court and it is on the record that she did not wish to testify in this case, which she has a right to do under her Fifth Amendment privilege. And the Court understands that and told her [that] she did not have to testify if she did not want to. And that seems to be the gist of everything that's gone on for the past hour or so this morning.
The trial court then confirmed that it had overruled Jumper's objection.
B. Analysis
1. No Coercion
Before we begin our analysis, it is important to note that the appellate record does not show that either the trial court or the prosecutor coerced or intimidated Amy to prevent her from testifying. See Cathey v. State, 992 S.W.2d 460, 464 (Tex. Crim. App. 1999) (discussing circumstances under which a defendant's due process rights are violated when a trial court or prosecutor coerces a witness not to testify); Carranza v. State, No. 04-93-00619-CR, 1996 WL 81937, at *5 (Tex. App.-San Antonio Feb. 28, 1996) (not designated for publication) (same), aff'd, 960 S.W.2d 76 (Tex. Crim. App. 1998); see also Donato v. State, No. 02-11-00313-CR, 2014 WL 1704115, at *8 (Tex. App.-Fort Worth Apr. 30, 2014, pet. ref'd) (mem. op., not designated for publication) (noting that warnings to a potential witness "cannot be emphasized to the point where they threaten and intimidate the witness into refusing to testify" and that a defendant's due process rights are violated if an admonition "likely precluded a witness from making a free and voluntary choice whether or not to testify . . . or changed the witness's testimony to coincide with the judge's or prosecutor's view of the facts" (citations omitted)). The record shows that the prosecutor brought the issue to the trial court's attention and that the trial court cautiously appointed Amy an attorney to ensure that she made an informed and voluntary decision about whether to testify. See Cathey, 992 S.W.2d at 464-65; Carranza, 1996 WL 81937, at *5 (evaluating statements made by prosecutor to witnesses about implications of their testimony and concluding that the prosecutor had not committed misconduct). The record does not show that the prosecutor spoke to Amy at all, and before appointing her an attorney, the trial court made only a vague statement to her that her testifying "could open the door to something that [she] might be charged with in juvenile court." Any specific warning about the possible consequences or risks of her testimony came from her appointed attorney rather than the prosecutor or the trial court.
We now turn to Jumper's complaints.
2. Confrontation Clause Arguments
Under the Confrontation Clause, testimonial out-of-court statements are not admissible against a defendant unless the witness appears at trial and is cross- examined or the witness is unavailable and the defense has already had an opportunity to cross-examine. Melendez-Diaz, 557 U.S. at 309, 129 S.Ct. at 2531; Adkins v. State, 418 S.W.3d 856, 861-62 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd) (explaining what makes a statement testimonial).
Ordinarily, the Confrontation Clause is not implicated when a defendant is denied the right to call a defense witness. Galindo v. State, No. 02-22-00151-CR, 2023 WL 2607752, at *3 (Tex. App.-Fort Worth Mar. 23, 2023, no pet.) (mem. op., not designated for publication); see Ellis v. State, 99 S.W.3d 783, 789 (Tex. App.- Houston [1st Dist.] 2003, pet. ref'd) ("Appellant has no constitutional guarantee to cross-examine and confront his own witness, since that witness is not 'against him.'"). However, in this case, Jumper is complaining not only that he was prevented from calling Amy as a defense witness but also that the State elicited Amy's out-of-court statements against him but did not call her as a witness and that he was thus deprived of the opportunity to cross-examine her.
Confrontation Clause complaints are subject to procedural default. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009). Jumper raised a Confrontation Clause objection when Grace's therapist testified about what Grace had told her regarding abusive acts against Amy. But as noted above, Jumper received a ruling for only one Confrontation Clause objection concerning testimony about Amy-his objection to the therapist's repeating what Grace had told her about how Amy said she had stopped the abuse. Further, even if the trial court ruled on any of his other objections, he did not object each time the therapist or Grace offered substantially similar testimony as the testimony to which Jumper had objected. Accordingly, he has not preserved this complaint. See Franklin v. State, No. 02-20-00159-CR, 2022 WL 803840, at *2 (Tex. App.-Fort Worth Mar. 17, 2022, no pet.) (mem. op., not designated for publication) (citing Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003), and holding appellant forfeited Confrontation Clause complaint about testimony's admission because he did not object when same information was admitted without objection through PSI report).
Moreover, to the extent that Jumper's complaint addresses the therapist's relaying what Grace had told her about behavior she had personally observed, there was no Confrontation Clause violation because Grace testified and was cross-examined by Jumper. See Adkins, 418 S.W.3d at 861. To the extent Jumper complains about the therapist's testifying as to anything Amy had said to Grace, such as how she was able to stop Jumper's abusive conduct toward her, Jumper does not explain how those statements were testimonial. See Tex. R. App. P. 38.1(i); Ford v. State, No. 08-11-00307-CR, 2014 WL 823409, at *4 (Tex. App.-El Paso Feb. 28, 2014, no pet.) (not designated for publication) ("Ford does not explain and cites no law supporting his proposition that the forms were testimonial, as they must have been for their admission to constitute a violation of his [C]onfrontation [C]lause rights."); see also Nash v. State, No. 02-22-00165-CR, 2023 WL 5615807, at *10 (Tex. App.-Fort Worth Aug. 31, 2023, no pet.) (mem. op., not designated for publication) (noting that "[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers" (citation omitted)); Walter v. State, 581 S.W.3d 957, 981 (Tex. App.-Eastland 2019, pet. ref'd) (discussing types of statements that are testimonial and types that are typically not). There is no indication in the record that those statements were made under circumstances that would lead an objective witness to reasonably believe that the statements would be available for use at a later trial. See Nash, 2023 WL 5615807, at *10.
Jumper's Confrontation Clause arguments are not preserved, inadequately briefed, or without merit. We therefore overrule this part of his second issue.
3. Compulsory Process Clause Arguments
Jumper's Compulsory Process Clause complaint is also unavailing. "By virtue of the Compulsory Process Clause, 'criminal defendants have the right to . . . put before a jury evidence that might influence the determination of guilt.'" In re State, 599 S.W.3d 577, 598 (Tex. App.-El Paso 2020, orig. proceeding) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 (1987)). The Compulsory Process Clause "is in plain terms the right to present . . . the defendant's version of the facts [in addition to] the prosecution's to the jury so it may decide where the truth lies." Coleman v. State, 966 S.W.2d 525, 527 (Tex. Crim. App. 1998) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923 (1967)). Jumper argues that based on this right, the trial court should have overruled Amy's assertion of her Fifth Amendment right and compelled her to testify.
The Fifth Amendment privilege against testifying "extends only to witnesses who have 'reasonable cause to apprehend danger from a direct answer.'" Walters v. State, 359 S.W.3d 212, 215 (Tex. Crim. App. 2011). "Trial courts are not to simply take the word of potential witnesses who claim to fear prosecution. . . . Rather, trial courts are required to inquire into the . . . reasonableness of that fear." Id. In appraising the claim, the trial court "'must be governed by [the court's] personal perceptions of the peculiarities of the case as by the facts actually in evidence'" Id. Jumper contends that Amy's fear of prosecution was not reasonable because the State could not ask Amy details about her pending charge, and he complains that the trial court failed to evaluate its reasonableness.
However, Jumper's objection was directed at the State's raising the Fifth Amendment on Amy's behalf and requesting appointment of an attorney to advise her, thereby, he claims, "forbid[ding]" Amy's testimony. Jumper did not argue in the trial court, as he does now on appeal, that the prosecutor could not go into the details of the pending charge against Amy to impeach her testimony. He did not object that the trial court had failed to inquire into the reasonableness of her fear of prosecution. See Navarro v. State, 863 S.W.2d 191, 203 (Tex. App.-Austin 1993, pet. ref'd) (stating that appellant had not preserved argument that witness had not properly invoked privilege against self-incrimination); cf. Weekley v. State, No. 01-18-00543-CR, 2020 WL 237932, at *5 (Tex. App.-Houston [1st Dist.] Jan. 16, 2020, no pet.) (mem. op., not designated for publication) (holding that because defendant did not object when trial court allowed witness to invoke right not to testify without fully inquiring into basis for invocation, defendant had forfeited argument that trial court violated Compulsory Process Clause right by not compelling witness to testify).
Even if the State could not have asked her about the details of the pending charge, she could have made herself vulnerable to a charge of perjury, either from her testimony at Jumper's trial if the State believed that she was lying about the offenses against her, or in the juvenile proceeding if she tried to allege abuse as a mitigating circumstance. The record does not reflect what the appointed attorney discussed with Amy and whether it was limited to possible impeachment or also included warnings about perjury. Had Jumper complained below that Amy's invocation of her Fifth Amendment right was unreasonable, the record might reflect the basis for the invocation.
Additionally, to assert a Compulsory Process Clause right, the defendant must make a showing to the trial court "that the witness's testimony would be both material and favorable to the defense." Coleman, 966 S.W.2d at 528; Emenhiser, 196 S.W.3d at 921. Similarly, to complain generally on appeal about the exclusion of evidence, the appellant must have made some sort of showing of what the excluded testimony would have been. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Absent that showing, nothing is presented for review on appeal. Id.
Jumper asserts that Amy had denied that Jumper had committed an offense against her, which we take as an argument that Amy would have testified along those lines had she been compelled to testify. He further asserts that Amy could have impeached Grace's testimony of abuse against her because she said that Amy had witnessed the alleged abuse. However, the record does not reflect that he ever informed the trial court of the substance of Amy's expected testimony, much less how that would be material, or even that she had denied any abuse against her. The court could speculate that Amy would have testified favorably for Jumper in some regard- based on an assumption that Jumper would not call her to be a witness against him- but speculation is not a showing on the record of what the excluded testimony would be. Accordingly, Jumper has not preserved his complaint. See Coleman, 966 S.W.2d at 528; see also Guidry, 9 S.W.3d at 153; Thompson v. State, No. 14-04-00592-CR, 2006 WL 89506, at *5 (Tex. App.-Houston [14th Dist.] Jan. 17, 2006, pet. ref'd) (mem. op., not designated for publication) (holding that because appellant had not informed trial court of substance of witness's expected testimony, appellant had not preserved complaint that prosecutor had coerced key witness by stating that State might re-file charges against the witness).
In his brief, Jumper cites to a part of the record to argue that the State knew that Amy had denied the abuse. But the testimony offered at that part of the record was simply that in a CPS interview, Amy had not made an outcry. The witness did not elaborate. A person's failure to make an outcry does not necessarily equate to a denial that abusive conduct occurred. On the other hand, the State's brief suggests that the discovery materials relating to the charge against Amy may contain denials by Amy. The substance of those materials was not discussed on the record. The record does not reflect whether the prosecutor had read the discovery documents by the time of trial, but if she had, and if those documents reflected Amy's denials, then the prosecutor would have been aware at trial that Amy had, at least at some point, affirmatively denied abuse against her. Had Jumper made an offer of proof about the substance of Amy's testimony, it is possible that Amy's previous denials, if they exist, and the prosecutor's knowledge about them would have been revealed.
4. Acts of the Prosecutor
In addition to complaining about the trial court's rulings, Jumper also complains under this issue about acts of the prosecutor, such as not offering Amy immunity, offering the extraneous offense evidence on a basis other than Code of Criminal Procedure Article 38.37, and offering testimony about the extraneous offenses "with the anticipation that it could not be impeached because of [Amy's] pending case." However, Jumper did not raise a Confrontation Clause or Compulsory Process Clause objection to any of the listed acts other than those that we have already discussed and addressed under this issue and his first issue. Jumper therefore did not preserve his complaints under this part of his issue.
We address further arguments related to the State's conduct under Jumper's third and fourth issues.
In summary, Jumper did not preserve his Sixth Amendment complaints, he did not adequately brief them, or they are without merit, and we therefore overrule his second issue.
III. The State's Closing Argument
Jumper argues in his third issue that the trial court abused its discretion by allowing the State to mislead the jury with false statements in closing argument. Jumper's argument is based on the prosecutor's statement in closing that she had not called Amy to testify because she did not want to force a child to testify "about something they're not willing to talk about." The prosecutor made that statement in response to Jumper's attorney's closing argument statements about the fact that Amy had not testified.
A. Standard of Review and Preserving Complaints
To be permissible, the State's jury argument generally must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel's argument; or (4) plea for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). Further, under the invited-argument rule, the State may argue outside the record in response to defense argument that went outside the record. Wilson v. State, 938 S.W.2d 57, 60-61 (Tex. Crim. App. 1996), abrogated in part on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). But a prosecutor may not stray beyond the scope of the invitation. Id. at 61.
Even if a jury argument exceeds the permissible bounds, we will not reverse a trial court's erroneously overruling a defense objection unless the error affected the defendant's substantial rights. Tex.R.App.P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000). In determining whether substantial rights were affected by the prosecutor's improper argument, we consider (1) the prejudicial effect of the prosecutor's remarks, (2) curative measures, and (3) the certainty of conviction absent the misconduct. Freeman, 340 S.W.3d at 728; see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (adopting standard).
To preserve error regarding a trial court's ruling on an objection to improper jury argument, the objecting party must receive an adverse ruling. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). The proper method of pursuing an objection until an adverse ruling has three steps: (1) object; (2) request an instruction to disregard; and (3) move for a mistrial. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002); Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. [Panel Op.] 1982). Even if the argument is egregious and an instruction to disregard would not have cured the harm, a defendant forfeits the complaint by failing to object on that basis. Hernandez v. State, 538 S.W.3d 619, 621-23 (Tex. Crim. App. 2018); Mathis, 67 S.W.3d at 926-27; see also Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004).
B. Closing Arguments
During closing, Jumper's attorney discussed the fact that Amy had not testified and how the jury should think about that fact:
[W]hy haven't you heard from [Amy]? They're not going to get up there and say that I didn't try to call her. She's a witness in this case. . . . They saw fit to have [Grace] talk about [Amy] being abused being in the same
room but yet she's not here. Okay? What happens, she has one or two interviews with CPS. No one ever talks to her. All right? Why is she not here? You can ask those questions.
. . . .
So, you have to think, is [Amy] not worthy of protection? If they really thought-saw fit to admit into court and tell you guys, oh, yeah, my client abused her too. Why does the investigation stop back in 2019 and they don't talk to her again? Why? Is she not victim enough? She's victim enough for you to mention her-for them to mention her in passing, but she's not victim enough to have him held accountable for that. Why? And you can wonder about that.
. . . .
If it's so horrific, so serious, and it feels that credible, they would have investigated even [Amy]'s case and they didn't. And you would have heard from [Amy]. And unfortunately-I wish you could hear from [Amy,] and I . . . wish you could see these documents where she absolutely denies that any of that stuff occurred. [Emphasis added.]
However, at no point during trial was there any testimony or other evidence presented indicating that there were "documents where [Amy] absolutely denie[d]" that Jumper had sexually abused her.
In response to Jumper's arguments, the prosecutor stated in her rebuttal, "As prosecutors, we take an oath not dissimilar to doctors, right? The doctors' oath is, hey, first, do no harm," and "[a]s a prosecutor in the Special Victims Unit, one of the things that we want to make sure we never do is put a child on the stand and force them to talk about something they're not willing to talk about. It's why we didn't call her." [Emphasis added.] Jumper objected, "That's a misstatement. That's misleading the jury. That is not why. . . ." In response, the trial court said, "Listen, don't get into that." The prosecutor then argued that Jumper had opened the door, to which the trial court replied, "Yeah, I understand. That's why I said, don't get into it. All right. Move on." The prosecutor then told the jury, "It's why we did not choose to call her. I'm never going to put a child on the stand and make them talk about something they're not ready to talk about. She's in a denial stage. I can't help you. I can't help that." [Emphasis added.] Jumper did not object to that part of the prosecutor's argument.
C. Analysis
Jumper argues that the trial court allowed the State to mislead the jury with false statements. Jumper raises three complaints about the prosecutor's argument. First, he complains that the prosecutor's argument interjected her belief that Amy was a victim who was simply not ready to outcry. Second, he points to the part of the prosecutor's statement that she took an oath to do no harm, which Jumper asserts was improper because it was untrue and "inject[ed] new and prejudicial facts." Third, Jumper complains that not only did the prosecutor lie about an oath to avoid harm, she misstated the reason why Amy did not testify, "mislead[ing] the jury to believe [that] the [S]tate wanted her to testify," when what really happened was that the prosecutor "precluded" her testimony. He makes this assertion-that the prosecutor precluded Amy's testimony-throughout his brief.
In response, the State argues that the prosecutor was entitled to respond to Jumper's argument that the prosecutors had deliberately concealed exculpatory evidence and that Jumper had "blatantly invited the jury to engage in speculation about the reasons for [Amy's] absence." The State further argues that it was Jumper who first misled the jury by stating that there were documents containing Amy's denials of any sexual assault, which was not based on the record. According to the State, because Amy was not forensically interviewed, the only documents to which Jumper's attorney could possibly have been referring were documents in the discovery materials relating to Amy's pending charge, and if that was the case, "the denial was likely [Amy's] self-serving denial of her own guilt, and the documents were the very ones defense counsel had successfully moved to be precluded from the State's case." The State's argument here refers to the fact that Jumper had requested before trial that the State not go into the pending charges against Amy and her brothers. The State had agreed to that request so long as Jumper did not "open the door in some way."
We assume for purposes of this opinion that the trial court clearly overruled Jumper's objection and that he therefore preserved his complaint. But see Norman v. State, No. 14-11-00433-CR, 2012 WL 4163498, at *17 (Tex. App.-Houston [14th Dist.] Sept. 20, 2012, pet. ref'd) (mem. op., not designated for publication) (holding that trial court's statement, "The jury will recall the evidence," was not a ruling on appellant's objection that the prosecutor had misstated evidence); Grayson v. State, 192 S.W.3d 790, 793 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (holding that trial court's stating "Let's proceed" in response to an objection was not a ruling). Nevertheless, Jumper's issue is unavailing.
Initially, the prosecutor did not refer to Amy at all in her closing argument. The prosecutor made the challenged comments in her rebuttal, after Jumper had discussed Amy in his closing argument and asserted that there were "these documents" in which Amy "absolutely denie[d] that any of that stuff occurred." That argument was not based on the trial evidence, and the State was entitled to respond to it. See Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008); see also Ripkowski v. State, 61 S.W.3d 378, 393 (Tex. Crim. App. 2001) ("A defendant cannot complain of improper prosecutorial argument if he invited the argument."). Because Jumper went outside the record, the prosecutor was also permitted to go outside the record "as long as the response [was] within the scope of the invitation." See Smith v. State, 483 S.W.3d 648, 657-58 (Tex. App.-Houston [14th Dist.] 2015, no pet.). However, the prosecutor could not "'stray beyond the scope of the invitation.'" See Brown, 270 S.W.3d at 572.
Here, like Jumper's argument, the prosecutor's response to the argument was not supported by the record in that the record does not reflect why the prosecutor chose not to call Amy. See Smith, 483 S.W.3d at 657-58. But even if the prosecutor went beyond the scope of Jumper's invitation, we agree with the State that Jumper has not presented reversible error. For multiple reasons, "[v]iewing the State's closing as a whole, we cannot conclude that there was a willful and calculated effort to deprive [Jumper] of a fair and impartial trial, and viewing the record as a whole, we cannot conclude that appellant was prejudiced by the remarks." See Brown, 270 S.W.3d at 573.
First, part of Jumper's argument was not preserved. When the prosecutor resumed her argument after the trial court instructed the parties to "[not] get into it," the prosecutor stated that she had not called Amy so as to not make her "talk about something [that she's] not ready to talk about." That is, the prosecutor repeated part of her previous argument, and Jumper did not again object. See George v. State, No. 05-18-00941-CR, 2019 WL 5781917, at *8 (Tex. App.-Dallas Nov. 6, 2019) (mem. op., not designated for publication) (stating that when a defendant objects to one instance of an improper argument but fails to object to other instances of the same or similar argument, the defendant forfeits the complaint), aff'd, 634 S.W.3d 929 (Tex. Crim. App. 2021). Further, although a prosecutor "may not inject personal opinion in statements to the jury," Williams v. State, 417 S.W.3d 162, 172 (Tex. App.-Houston [1st Dist.] 2013, pet. ref'd), Jumper did not assert that basis for an objection, see Tex. R. App. P. 33.1; Sartin v. State, 680 S.W.3d 663, 673 (Tex. App.-Beaumont 2023, no pet.) (holding that appellant did not preserve complaint about prosecutor injecting personal opinion into case). Thus, Jumper did not preserve his complaint that the prosecutor's statement conveyed her belief that Jumper had abused Amy. Relatedly, as to the prosecutor's assertion that she had taken an oath to do no harm, in the context in which the statement was made, it injected prejudicial facts only to the extent that it conveyed the prosecutor's opinion that Amy had been abused. Thus, Jumper did not preserve his complaint about that statement.
Second, regarding the reason for the prosecutor's not calling Amy as a witness, the prosecutor conceded that Amy was "in the denial stage." So although Jumper asserts that the prosecutor's misstatement about why Amy did not testify "misl[ed] the jury to believe [that] the [S]tate wanted [Amy] to testify" and "prejudiced the jury to believe [that] she was not denying the abuse," in fact the prosecutor tacitly supported what Jumper's attorney had said in his closing about Amy's denials and thereby implied that Amy would not have been a favorable witness for the State. See West v. State, No. 02-18-00109-CR, 2019 WL 3491937, at *2 (Tex. App.-Fort Worth Aug. 1, 2019, no pet.) (mem. op., not designated for publication) (noting that any possible prejudice from prosecutor's comment was "neutralized" by prosecutor's subsequent comment). Thus, both Jumper and the State agreed that Amy would deny the abuse, but they disagreed about why; Jumper asserted that it was because the abuse never happened, and the State argued that it was because Amy was not yet ready to make an outcry.
That Amy was in the denial stage had been alluded to by the therapist when she testified that Grace felt guilty for not speaking up sooner because if she had, maybe Amy would have shared that she had been abused.
Third, the record does not support Jumper's assertion that the prosecutor had precluded Amy's testimony. It was Amy, not the prosecutor, who chose to invoke her Fifth Amendment right, and it was the trial court, not the prosecutor, who allowed her to do that.
In summary, looking at the State's entire closing argument, the initial argument contained no mention of Amy, and the prosecutor made the challenged comment only in her rebuttal to Jumper's attorney's statement. The prosecutor then repeated essentially the same comment without objection, and Jumper did not object to her conveying her opinion to the jury. Then, after the prosecutor made her remark about Amy's being in denial, thereby conceding Jumper's assertion that Amy had denied the abuse, she moved on and did not dwell on the issue.
Further, looking at the record as a whole, the jury heard evidence supporting Jumper's guilt of the offenses against Grace, and it was those offenses for which the jury had to consider Jumper's guilt or innocence. Grace testified about the history of Jumper's sexual abuse and the mental toll it had taken on her. Grace disclosed the abuse to a CPS worker, as well as to her therapist, who testified. She also disclosed the abuse to a forensic interviewer, who testified, as did the police officer who investigated the case. Additionally, although Gillian did not testify about witnessing any abuse, she testified about hearing Jumper's attempt to coerce unwanted physical contact from Grace in a phone call when he told Grace that he would not allow her to return home unless she agreed to let him kiss her on the lips.
Given the evidence in the case, that the prosecutor repeated part of the challenged argument without another objection, that Jumper did not preserve some of his complaints, and that the prosecutor essentially conceded Amy's denial of any sexual abuse against her, the certainty of conviction could not have been affected by the prosecutor's comments in closing about taking an oath or about Amy's readiness to testify. Thus, although there were no curative measures taken by the trial court, reviewing the record as a whole, we cannot conclude that the prosecutor's argument contributed to Jumper's conviction. See id. at *4 (noting that "[i]nappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding" (quoting U.S. v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044 (1985))). Because Jumper's complaints are not preserved or do not present reversible error, we overrule Jumper's third issue.
IV. Prosecutorial Misconduct
Jumper argues in his fourth and final issue that "prosecutorial misconduct occurred when the State proffered an extraneous offense the 'victim' denied while purposely contravening confrontation, evading admissibility requirements, precluding impeachment, and lying to the jury." Under this issue, Jumper provides a laundry list of acts by the prosecutor that he contends were misconduct. All of these acts relate in some way to the admission of evidence of abuse against Amy.
A. Applicable Law
"Prosecutorial misconduct rises to a due-process violation when it is so significant that it deprives a defendant of a fair trial." Clark v. State, 365 S.W.3d 333, 338 (Tex. Crim. App. 2012). There is no established "general test for all types of prosecutorial misconduct." Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim. App. 1988). Instead, courts examine such claims on a case-by-case basis. Id. In Stahl, the Court of Criminal Appeals provided a non-exhaustive, non-mandatory list of three factors that "provide a starting point for identifying reversible conduct": (1) whether the defendant objected to the prosecutor's conduct; (2) whether the prosecutor's conduct was a deliberate violation of an express court order; and (3) whether the conduct was "so blatant as to border on being contumacious." Id. at 831 (noting that the prosecutor's improper conduct in the case "indicate[d] a desire to impermissibly sway the jury"); Del Carmen Hernandez v. State, 219 S.W.3d 6, 13-14 (Tex. App.-San Antonio 2006), aff'd, 273 S.W.3d 685 (Tex. Crim. App. 2008); Polk v. State, 170 S.W.3d 661, 667 (Tex. App.-Fort Worth 2005, pet. ref'd).
B. Analysis
Jumper did not raise a specific objection below to the prosecutor's "pervasive prosecutorial misconduct." See Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.- Houston [1st Dist.] 2004, pet. ref'd) (holding that appellant had not preserved complaint about prosecutorial misconduct because he did not object on that theory at trial); Calvert v. State, No. 02-18-00341-CR, 2020 WL 5241744, at *25 (Tex. App.- Fort Worth Sept. 3, 2020, pet. ref'd) (mem. op., not designated for publication); see also Clark v. State, No. 09-20-00083-CR, 2021 WL 5498115, at *7 (Tex. App.-Beaumont Nov. 24, 2021, no pet.) (mem. op., not designated for publication) ("Prosecutorial misconduct is generally an independent basis for objection that must be specifically urged [at trial] in order for error to be preserved." (quoting Taylor v. State, Nos. 09-16-00303-CR, 09-16-00307-CR, 2018 WL 2224126, at *6 (Tex. App.-Beaumont May 16, 2018, pet. ref'd) (mem. op., not designated for publication)). Further, under Compton v. State, we may not consider in our analysis of Jumper's issue any prosecutorial conduct for which Jumper did not preserve a complaint. 666 S.W.3d 685, 731 (Tex. Crim. App. 2023), cert. denied, 144 S.Ct. 916 (2024); see also Mateo v. State, No. 07-23-00282-CR, 2024 WL 714344, at *1 n.2 (Tex. App.-Amarillo Feb. 21, 2024, no pet.) (mem. op., not designated for publication) (recognizing recent directives regarding error preservation); cf. Hernandez, 538 S.W.3d at 623 (noting that "[e]ven incurably improper jury argument is forfeitable"). Thus, even if Jumper did not have to object on the specific basis of prosecutorial misconduct, if he did not otherwise preserve error about the prosecutor's actions, we will not consider those acts under this issue.
We recognize that certain types of unchallenged prosecutorial misconduct may be grounds for reversing a conviction because the defendant could not have known about the misconduct when it occurred, such as if the prosecutor knowingly used perjured testimony. Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim. App. 2005). Jumper does not allege that kind misconduct in this case.
For some acts, Jumper objected, but not on the basis that he raises on appeal. For example, he objected to the relevancy of testimony from the investigating detective that it was not uncommon for only one sibling in a family to outcry even if other siblings had been abused, but he did not object that the questioning was improper, as he now contends. For some of the conduct of which he complains, he did not preserve his complaint on any basis. For example, even to the extent that the trial court's allowing Amy to invoke her Fifth Amendment right could be considered an act of the prosecutor, Jumper did not preserve his complaint that Amy's invocation was not reasonable. He also failed to preserve his complaint about a number of other listed acts, such as the prosecutor's eliciting testimony about abuse against Amy (as discussed under his first issue) and not granting Amy immunity (an issue that he did not raise at trial). Additionally, for many of the challenged acts-such as the prosecutor's asserting that the extraneous offense evidence was admissible on a basis other than Article 38.37 and arguing that the evidence was contextual to avoid a limiting instruction-he does not explain in his brief how, considered individually, they constitute misconduct. See Tex. R. App. P. 38.1; Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009) (stating that although multiple errors may "cumulatively rise to the point where they become harmful," non-errors do not become error by their cumulative effect). Finally, some acts, such as informing the trial court about Amy's pending case and advising that she be appointed counsel, are not misconduct. See Davis v. State, 831 S.W.2d 426, 437 (Tex. App.-Austin 1992, pet. ref'd).
Considering the listed acts together, the real gist of Jumper's complaint is that the State, knowing that Amy had a pending charge against her, should not have offered testimony about extraneous offenses against Amy and then opened the door to Amy's invoking her Fifth Amendment right. Instead, the prosecutor should have opted either to not elicit testimony about offenses against Amy or to not alert the trial court of Amy's pending charge and the State's intent to impeach her with it.
We would agree that prosecutorial misconduct had occurred if the record showed that the State had coerced Amy into not testifying for the defense. That act would constitute misconduct even if the State had not elicited any testimony about offenses against Amy. See Cathey, 992 S.W.2d at 464-65; Donato, 2014 WL 1704115, at *8. However, in this case, the record shows nothing of the sort, as set out above. Although the State was not obligated to raise the issue of Amy's pending case with the trial court, it was not misconduct for the prosecutor to do so. See Hardy v. State, No. 01-89-00490-CR, 1990 WL 19094, at *4 (Tex. App.-Houston [1st Dist.] Mar. 1, 1990, pet. ref'd) (not designated for publication) (overruling defendant's due process complaint when prosecutor stated that witness's testimony could incriminate herself for perjury charge but witness's decision not to testify was "in response to the information that was provided by her own counsel, rather than from any statements that were made by the State"); cf. Davis, 831 S.W.2d at 437 (noting that it is not per se improper to advise a potential witness of penalties of perjury).
Jumper cites authority for the proposition that "[m]isconduct is shown by the [S]tate's submission of evidence as fact concerning a witness who denied the acts and whom they knew they were not going [to] proffer." However, the three cases cited by Jumper for this proposition are distinguishable and inapplicable. James v. State involved the prosecutor's refusal to disclose the name of the informant who had helped set up the offense for which the defendant was being prosecuted and who had played a prominent part in it. 493 S.W.2d 201, 202 (Tex. Crim. App. 1973). Aguilar v. State also involved the prosecutor's refusal to disclose an informant's name. 444 S.W.2d 935, 937 (Tex. Crim. App. 1969). White v State involved an allegation that a police officer had instructed a material defense witness, who was also a police informant, to leave the county and had given the witness money to do so. 517 S.W.2d 543, 544 (Tex. Crim. App. 1974). Jumper cites no authority that supports the proposition that a prosecutor commits misconduct by not calling as a witness a person known to the defense who might contradict the testimony of other witnesses. See Tex. R. App. P. 38.1.
Finally, citing Rogers v. State, Jumper argues that "when prosecutorial misconduct undermines the reliability of the fact-finding process such that a defendant is denied a fundamentally fair trial, reversal is required even [if] few objections were perfected." See 725 S.W.2d 350, 360-61 (Tex. App.-Houston [1st Dist.] 1987, no pet.). He contends that we should consider all of the prosecutor's acts, even those for which he has not preserved his complaint.
Rogers was decided before more recent cases from the Court of Criminal Appeals clarifying error preservation. See Proenza v. State, 541 S.W.3d 786, 795- 96 (Tex. Crim. App. 2017) (stating that there is no harm-based exception to error preservation rules); see also Compton, 666 S.W.3d at 731; Hernandez, 538 S.W.3d at 623. In Compton, the Court of Criminal Appeals held that even prosecutorial misconduct that rises to the level of a due process violation may be subject to procedural default. 666 S.W.3d at 731. The court declined to consider, either "separately or cumulatively," unchallenged instances of alleged misconduct. Id.; cf. Stokes v. State, No. 05-18-00571-CR, 2019 WL 2575054, at *1 (Tex. App.-Dallas June 24, 2019, pet. ref'd) (mem. op., not designated for publication) (noting, in case addressing cumulative error doctrine, that courts consider only errors that were preserved for appeal). Further, this court has held that to make a due-process, fair-trial argument on appeal-as Jumper does here-the appellant must have raised that specific objection below. See Mullinax v. State, No. 02-14-00237-CR, 2015 WL 3422531, at *1 (Tex. App.-Fort Worth May 28, 2015, pet. ref'd) (mem. op., not designated for publication) (citing Clark, 365 S.W.3d at 340). Additionally, we cannot find error by adding together multiple instances of non-error. Gamboa, 296 S.W.3d at 585.
However, we need not decide the extent, if any, to which the Rogers preservation exception survives Proenza and Compton because even if we apply Rogers, it is distinguishable. The exception set out in Rogers addresses "serious and continuing prosecutorial misconduct that undermines the reliability of the factfinding process" or "transforms the trial into a farce and mockery of justice." 725 S.W.2d at 359- 60 (italics removed). Rogers involved "many instances where the prosecutor appear[ed] to fabricate inflammatory facts and suggest them into evidence by [his] cross-examination" of the appellant and another defense witness and through side-bar comments. Id. at 360. The court of appeals held that considering the record as a whole, "impermissible prejudice permeate[d] the entire record" such that "even frequent instructions to disregard would not have sufficed to remove the prejudice. The misconduct was pronounced and persistent, with a probable cumulative effect upon the jury." Id. at 360-61 (emphasis in original); cf. Berger v. United States, 295 U.S. 78, 89, 55 S.Ct. 629, 633 (1935) (holding that prosecutor's misconduct was "pronounced and persistent, with a probable cumulative effect upon the jury [that could not] be disregarded as inconsequential"). From the record, the prosecutor's behavior in this case does not rise to that extreme level. See Rogers, 725 S.W.2d at 359-60.
Jumper's complaints about the behavior listed under this issue are not preserved, are not adequately briefed, or are not misconduct. Accordingly, we overrule his fourth issue.
Conclusion
Having overruled Jumper's issues, we affirm the trial court's judgments.