Opinion
No. 01-02-00529-CR.
Opinion issued May 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 361st District Court, Brazos County, Texas, Trial Court Cause No. 28,688-361.
Panel consists of Justices TAFT, JENNINGS, and HANKS.
MEMORANDUM OPINION
Appellant, Scott Alan Zunker, and his co-defendants, Valin Thomas Klock and Eric Vaughn Schultze, were indicted for the first-degree felony offense of aggravated sexual assault of the same complainant. After appellant refused to enter a plea, the trial court entered a plea of not guilty on his behalf. A jury found appellant and his co-defendants guilty and assessed punishment of 15 years in prison for appellant, 22 years for Klock, and 30 years for Schultze. In seven points of error, appellant contends that the trial court erred in (1) denying appellant's request for a severance, (2) excluding evidence concerning prison conditions, (3) providing the jury with a general and ambiguous limiting instruction in the punishment charge, (4) denying appellant's motion for mistrial at punishment, and (5) allowing improper closing argument. We affirm.
Appellant's co-defendants also appealed their convictions. The Opinions for Klock v. State, 01-02-00265-CR and Schultze v. State, 01-02-00210-CR were issued simultaneously with appellant's Opinion.
See Tex. Pen. Code Ann. § 22.021(a)(2)(v) (Vernon Supp. 2004) (acts in concert with another toward same victim).
A trial court must enter a plea of not guilty on behalf of the defendant when he refuses to plead. Tex. Code Crim. Proc. Ann. art. 27.16(a) (Vernon 1989).
Background
On November 19, 2000, College Station Police Department Detective Chad Harkrider was called to investigate the alcohol-related death of John Hickman at 3311 Bahia in College Station. When he arrived at the scene and discovered there were numerous people to interview, he contacted College Station Police Sergeant Chuck Fleeger for assistance. Schultze and Klock were two of the people interviewed in connection with Hickman's death. During the course of the investigation, Detective Harkrider received an anonymous tip that there was a videotape of Hickman made on the night that he died. On March 27, 2001, Jana French, a friend of Klock's, provided the College Station Police Department with a videotape that she had obtained from Klock. Fleeger watched the videotape and discovered that, in addition to depicting Hickman the night that he died, 18 minutes and 45 seconds of the tape showed three men sexually assaulting an unconscious female. Fleeger recognized Schultze and Klock as two of the three assailants because he had recently interviewed them in connection with Hickman's death. He later determined the identities of the complainant and the third assailant, appellant. The sexual assault began with appellant and Schultze entering a room where Klock 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 appellant attempted to insert a baseball in the complainant's vagina. Appellant manned the video camera while Schultze inserted the handle of a toilet plunger in the complainant's vagina. Schultze told appellant, "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, appellant lit a cigarette and burned the complainant's vagina with the lit cigarette. Appellant then, mockingly, said, "Ow. That's got to hurt," and he proceeded to flick ashes onto the complainant's buttocks. Appellant and Klock also inserted a screwdriver and other objects into the complainant's vagina. The men continued to laugh as they performed these various acts on the unconscious complainant, with Schultze declaring, "this is fucking hilarious" at one point during the assaults. Police officers arrested appellant, Klock, and Schultze 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 points of error one and two, appellant argues that the trial court erred in denying appellant's motion for severance because (1) Klock had a prior admissible conviction and (2) a joint trial was so prejudicial to appellant that he was denied a fair trial 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. However, the trial court may order separate trials, at its discretion. Id. If a joint trial would prejudice either defendant, upon proper motion to sever, the trial court must sever the trial of the defendant whose joint trial could prejudice the other. Id. The mere allegation that prejudice will result is not evidence of, or a sufficient showing of prejudice, as required under article 36.09, particularly when the severance is discretionary with the trial 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, the trial court does not err in overruling the motion. See Sanne v. State, 609 S.W.2d 762, 776 (Tex.Crim. App. 1980).
Klock's Conviction
In point of error one, appellant contends that the trial court erred and violated article 36.09 when it denied appellant's motion for severance because severance was mandatory in that Klock had a prior admissible conviction and appellant did not. Appellant filed a pre-trial motion for severance, as well as a memorandum of law in support of his motion to sever. Neither of these pleadings mentioned Klock's conviction. Both documents emphasized the prejudice appellant would suffer from the Hickman videotapes, the potential for differing defenses between the co-defendants, and the differing levels of culpability. During the hearing on the motion to sever, appellant admitted into evidence his prior criminal history, as well as those of Klock and Schultze. Neither the exhibits nor their contents were ever discussed during the hearing. At the conclusion of the hearing, the trial court asked the State to submit a brief outlining its arguments opposing severance, and the trial court afforded the defendants an opportunity to respond. In his reply to the State's brief, appellant, for the first time, mentioned Klock's DWI conviction for driving while intoxicated. The totality of appellant's reply on this point was as follows: C. Prior Criminal Conviction The State alleges there was never any evidence presented during the severance hearing that any of the defendants have admissible prior convictions. The State's claim is false. During the severance hearing the Defendant offered the criminal histories of himself as well as his co-defendants. In this exhibit it clearly shows that Valin Klock was convicted for the offense of Driving While Intoxicated on September 22, 1998 in Comal County. In its order denying the severance, the trial court stated that the defendants moved for severance for several reasons including: the possibility of the introduction of separate video sequence, antagonistic defenses, differing levels of culpability, and implication through statements of co-defendants. Whereas, the State urged that the cases be tried together because a single trial would lessen the trauma to the victim, a single trial would reduce the chances of potentially disparate sentences, and judicial economy would be best served with one trial. The trial court found that "after a careful consideration of the evidence presented at the pretrial hearing, and the arguments presented by counsel, it is the opinion of the Court that defendants have failed to meet their `heavy burden' showing `clear prejudice.'" Because none of the defendants raised the "prior conviction" ground in his motion for severance, the trial court's order addressed only the prejudice factor, not the prior conviction factor. To preserve error for appeal, a defendant must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling. Tex.R.App.P. 33.1; see Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Here, appellant objected to a combined trial because of potential prejudice, not Klock's prior conviction; he did not make a specific enough objection because the trial court did not make a ruling based on prior convictions, and finally, appellant did not obtain an adverse ruling on the prior conviction issue. Appellant has not preserved error on the denial of severance based on Klock's prior conviction. We overrule point of error one.Joint Trial Too Prejudicial
In point of error two, appellant argues that the trial court abused its discretion in denying appellant's motion for severance because a joint trial was so prejudicial to appellant that he was denied a fair trial at punishment. Appellant was concerned that he would be prejudiced if he was forced to stand trial with Klock and Schultze, and appellant's attorney argued at the pre-trial severance hearing that appellant and Klock had shown remorse, but Schultze had not. Appellant's lawyer argued that appellant "might be punished or the bar might be raised on his punishment because of the arrogance and the statements that are made in the Schultze confession." Further, appellant's lawyer stated that he "viewed the Hickman death as being more inflammatory than the actual facts of this case. . . . The actions against Mr. Hickman, I fear, are going to rub off on my client and increase his punishment." Appellant presented evidence of the criminal history and bad acts of both Klock and Schultze. Appellant contended that the disparity between the criminal history and bad acts of appellant and that of Klock and Schultze was "significant." Appellant's only "blemish" was that he had previously received deferred adjudication community supervision for harassment of a neighbor. In contrast, Klock's history revealed convictions for (1) 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. 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, stole 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 been arrested for evading arrest after leading police on a 100 miles-per-hour chase. Appellant acknowledges that the trial court repeatedly instructed the jury not to consider the Hickman videotapes and Schultze's and Klock's various unadjudicated offenses as evidence against appellant. Despite having requested many of the instructions, appellant now argues that "it is reasonable to conclude that the greater the number of limiting instructions given to the jury the greater the likelihood of confusion and unfair prejudice." He asserts, as stated by the Dallas Court of Appeals, that there is a "limit to the number of times a skunk can be thrown into the jury box with instructions not to smell it." See Young v. State, 752 S.W.2d 137, 145 (Tex. App.-Dallas 1988, pet. ref'd). 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 Klock 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, Klock to 22 years in prison, and appellant to only 15 years, there is no indication that the jury was unable to follow the trial court's instructions. We hold that appellant has 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 two.Erroneously Excluded Evidence
In points of error three and four, appellant argues that the trial court erred during the punishment stage of the trial in excluding evidence concerning prison conditions because such evidence was relevant and admissible to rebut the false impression created by the State. We review a trial court's decision to admit or exclude evidence for 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. However, after the defendant has been found guilty, evidence may be offered by the State and the defendant "as to any matter the court deems relevant to sentencing." Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2004). The erroneous admission or exclusion of evidence does not result in reversible error unless it affects a substantial right of the accused. See Tex.R.App.P. 44.2(b). Substantial rights are affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). During the punishment stage, appellant'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 appellant 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 appellant while in detention, and that, due to his conviction for aggravated assault, he cannot be a prison trustee. Klock's attorney questioned Jenkins about the conditions in maximum security prisons. Jenkins testified that it was "very possible" that the defendants would be going to a maximum security prison, which holds murderers, major drug dealers, embezzlers, and forgers. He further testified that there is "rampant gang affiliation" in prison. On cross-examination, the State elicited more testimony regarding the conditions in prison. Jenkins testified that rigid laws regulate prisons to make sure they are safe. Prison units have job fairs and classes allowing inmates to get degrees ranging from G.E.D.s to Ph.D.s, and law libraries that are second to none. Prison units also have exercise weights, baseball diamonds, basketball courts, and horseshoes. Each prison unit has a minimum of two televisions in each dayroom, and inmates are allowed to see the National Basketball Association finals and the Super Bowl on television. On re-direct examination, 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, appellant'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. Appellant's attorney responded that the State had "opened the door to the country club atmosphere," and the trial court originally agreed. When the State added that the witness was an expert, who had not been properly designated, the trial court overruled that objection as well. After appellant'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 the rulings with the attorneys 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 (1) Hall's evidence was necessary to rebut a false impression left by the State about prison life, (2) Hall was not an expert, and (3) Hall's testimony was relevant because the State had "opened the door." The Court of Criminal Appeals has explained that, under 37.07 section 3(a), the admissibility of evidence at the punishment phase of a non-capital felony trial is a function of policy rather than relevancy. See Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim.App. 2000); Miller-El v. State, 782 S.W.2d 892, 895 (Tex.Crim.App. 1990). This is so because by and large there are no discreet factual issues at the punishment stage. Miller-El, 782 S.W.2d at 895-96. Thus, determining what is "relevant" in regard to punishment, under article 37.07 section 3(a), "should be a question of what is helpful to the jury in determining the appropriate sentence in a particular case." Mendiola, 21 S.W.3d at 285. In Schielack v. State, 992 S.W.2d 639 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd), when faced with the attempt to introduce similar evidence to that which was attempted 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 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 instructive than Schielack in this case. During the defendants' bill of exception, Hall testified, at length, about the consequences of being "fresh meat" in prison. After the recitation, appellant's attorney and Schultze's attorney asked Hall to comment as to whether each of the defendants would be treated as "fresh meat." Appellant's attorney asked appellant 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." Unlike in Najar, Hall's testimony was elicited specifically to educate the jury on what appellant's prison experiences would be. The trial court could have reasonably concluded that Hall's testimony would not have been helpful to the jury in determining the appropriate sentence in this case. Also, the trial court could have reasonably concluded that Hall's testimony went beyond the scope of any door opened by the State. Under the precedent of Mendiola, the trial court's decision to exclude the testimony of Hall was at least within the zone of reasonable disagreement. Accordingly, we hold that the trial court did not err in excluding his 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 points of error three and four.
Jury Instruction
In point of error five, appellant argues that he suffered egregious harm because a limiting instruction regarding the extraneous offenses of Schultze in the court's charge at punishment was so general and ambiguous that it failed to limit the jury's consideration of evidence in assessing punishment to Schultze as the person against whom the evidence was admitted. 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). 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). Here, the trial court's charge, at punishment, contained the following instruction:You are further instructed that any act or acts which have been introduced against any defendant in this case can only be used against that defendant in determining his punishment and can not be considered by you in determining the punishment of any other defendant.Appellant did not object to this instruction. Now, however, he complains that the instruction was so general and ambiguous that it failed to limit the jury's consideration of evidence in assessing punishment to Schultze as the person against whom the evidence was admitted. Appellant acknowledges, that, because he did not object to the instruction when given to the jury, he must establish that he suffered egregious harm due to the instruction. See Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994); Almanza, 686 S.W.2d at 171. Appellant contends that he suffered egregious harm because the jury instruction was too vague and general to prevent the jury from considering the Hickman videos against appellant when assessing punishment. Assuming, without deciding, that there was error in the instruction, appellant has failed to show that he did not receive a fair trial. See Almanza, 686 S.W.2d at 171 (holding that appellant must show erroneous charge caused egregious harm preventing fair and impartial trial). The jury saw the Hickman videos and heard testimony from several witnesses that appellant was not involved or present during the filming of either episode. Appellant has presented nothing to show that the jury considered the Hickman videos against him because of the absence of a more specific instruction. We overrule point of error five.
Jury Argument
In point of error six, appellant argues that the trial court erred in denying his motion for mistrial when the State argued to the jury at punishment that "they had watched their best friend die" because there was no evidence that appellant was even present at the time of Hickman's death. In point of error seven, appellant contends that the trial court erred during the punishment stage of trial in overruling appellant's objection to the State's closing argument about a matter outside the record. The law provides for, and presumes, a fair trial, free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991). Proper jury argument must encompass one of the following general areas: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsels argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999); Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the entire record. Sandoval, 52 S.W.3d at 857. In most cases, if error occurs, an instruction to disregard will cure any error committed. Shannon v. State, 942 S.W.2d 591, 598 (Tex.Crim. App. 1996).Motion for Mistrial
During closing argument at the punishment stage, the prosecutor 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 throughout the trial, 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). Once again, appellant has shown nothing to the contrary. We overrule point of error six.Outside the Record
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. 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.Appellant argues that this statement was a direct violation of the trial court's ruling on a motion in limine "that the State's attorney not mention or state to the jury the probable testimony of any witness who is absent or unavailable and was not called to testify in this cause." The trial court overruled appellant's objection that the prosecutor's argument was outside the record. Appellant is correct that the complainant's parents did not testify; therefore, the argument was outside the record. Appellant concedes that "arguments which are outside the permissible bounds of jury summation are not constitutional errors and thus are subject to the harm analysis established by Tex.R.App.P. 44.2(b)." Without deciding that the trial court erred in overruling appellant's objections to the above argument, we address the issue of harm. Rule 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." Determining harm under that standard in improper argument cases requires balancing the following three factors: (1) severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction/punishment absent the misconduct. Tex.R.App.P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). In Martinez v. State, 17 S.W.3d 677 (Tex.Crim.App. 2000), the Court of Criminal Appeals was faced with a similar issue when it was asked to reverse a death penalty conviction in light of the following jury argument at the conclusion of the punishment stage of trial:
PROSECUTOR: And based on this evidence, this — this rates as one of the worst crimes, one of the worst killings not only in Brazoria County but the State of Texas.
DEFENSE COUNSEL: Objection, your honor. That's not in the record.
THE COURT: Stay in the record, counsel.
PROSECUTOR: The evidence shows you, these were execution killings. 26 to 28 bullets. The family of the murdered victims, the family — the victims themselves, they cry out to you, for the death penalty in this case. There's no more —
DEFENSE COUNSEL: Objection, your Honor. Not in the record, either. Absolutely no evidence of that.
THE COURT: Overruled.
PROSECUTOR: Justice in this case requires you, because we told you from day-one, what we wanted was a fair jury, a jury that would do justice in this case.Martinez, 17 S.W.3d at 692. The court concluded that the degree of misconduct, if any, was relatively mild in the present case. The prosecutor's comment that the victims and their families cry out for the death penalty appears to be intended as a plea for law enforcement. The jury was in a position to know that victims who are dead cannot presently cry out for the death penalty, and that, given the facts surrounding their deaths, no such cries were made before they died. Nor would the jurors be surprised to hear that the victims' families would be upset with appellant or that they would want retribution. And the prosecutor did not attempt, through this argument, to convey any specific facts about the effect of the victims' deaths upon their families. Instead, the prosecutor was pleading with the jury to give the death penalty because the record before the jury showed that the defendant deserved it. To the extent that the prosecutor conveyed facts outside the record, such facts had no tendency to adversely influence the jury against appellant beyond the influence exerted by a wholly legitimate plea for law enforcement. Id. at 693. Here, the prosecutor's comments were sufficiently analogous to those in Martinez for us to conclude that the degree of misconduct, if any, was relatively mild. Although the trial court did not make any attempt to cure the alleged misconduct, the certainty of a severe punishment, absent the alleged misconduct was high. Here, the jury had before it videotape evidence of appellant engaging in truly barbaric behavior — the sexual assault of an unconscious young woman — by Schultze inserting a toilet plunger handle in her vagina and suggesting that Klock and appellant force a baseball in her vagina, while Schultze manned the video camera. Appellant burned the complainant's vagina with a lit cigarette and then, mockingly, said, "Ow. That's got to hurt," before he flicked ashes on the complainant's buttocks. The videotape also showed appellant and Klock inserting a screwdriver blade in 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." Accordingly, we hold with fair assurance that the trial court's error, if any, in overruling appellant's objection to the above argument did not influence the jury and did not affect his substantial rights. We overrule point of error seven.