Burke, Elizabeth Jane v. State

Affirmed and Memorandum Opinion filed January 11, 2005

Affirmed and Memorandum Opinion filed January 11, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01046-CR

______________________

ELIZABETH JANE BURKE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177^th District Court

Harris County, Texas

Trial Court Cause No. 931,182

M E M O R A N D U M   O P I N I O N

Appellant, Elizabeth Jane Burke, was charged by indictment with both injury to a child and murder in the death of her child, Ian Noel.  A jury found her guilty of murder and assessed punishment at seventy-seven (77) years= confinement in the Texas Department of Criminal Justice, Institutional Division. In eight points of error, appellant contends the trial court erred by: (1) admitting unfavorable evidence; (2) forcing her to testify about the credibility of a State=s witness; (3) excluding favorable character evidence and rebuttal testimony; and (4) not granting her request for a mistrial.  We affirm.

The record reflects that, on October 13, 2002, appellant and her boyfriend, Eddie Noel, got into an altercation where appellant threatened to kill herself with a kitchen knife.  Despite the attempt to Aget his attention,@ Mr. Noel left and did not return until the following day when appellant called to inform him that their seven-week-old son, Ian, was not breathing.  The record further indicates that, upon finding the child unconscious, appellant ran to a nearby mobile home owned by a friend, Jennifer Nichols.  Another neighbor, Melissa Kelly Edwards, heard appellant=s screams and saw appellant toss Ian to Ms. Nichols. Immediately, Ms. Edwards and several others came to the child=s aide by starting CPR and placing an emergency call to 9-1-1. Several Pasadena police officers and chief of the Pasadena Fire Department responded to the call and arrived on the scene within a minute.  They took over the lifesaving efforts and began transporting the child to Bayshore Hospital.  They rendezvoused with an ambulance and transferred the child to paramedics for the remainder of the trip.  After all lifesaving efforts failed to revive Ian, he was pronounced dead at the hospital.

The day after Ian=s death, appellant went to thank Ms. Edwards for trying to save the child.  At that time, appellant admitted to Ms. Edwards that she had put a blanket over the child=s face because she was mad at the child=s father. Ms. Edwards disclosed this conversation to the Pasadena Police Department and agreed to get appellant to repeat her story.  Two days later, Ms. Edwards drove appellant to Dairy Queen where their conversation was monitored by Pasadena police officers and recorded by a device inside Ms. Edwards=s truck.  Appellant again admitted that she had covered Ian=s head with a blanket and then had placed him face down on his pillow.  She claimed to do so to Aget back at@ Mr. Noel.  Subsequent medical examination indicated a possible cause of Ian=s death was intentional suffocation.  After further investigation, appellant was arrested and charged.

Admission of State=s Evidence

In her first and second points of error, appellant contends the trial court erred in admitting testimony over her objection. Specifically, appellant contends the court should not have admitted testimony from a State=s witness who explained that appellant=s reaction was different from other mothers he has seen who learn that their child has been seriously injured.  Appellant also complains that she was forced to testify about whether or not the State=s Ajailhouse snitch@ was being truthful and that such testimony is prohibited under Ayala v. State, 352 S.W.2d 955 (Tex. Crim. App. 1962). However, appellant failed to preserve error on either of these points.

A party is required to object each time inadmissible evidence is introduced.  Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App.2003); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App.1991); see also Long v. State, 821 S.W.2d 216, 217 (Tex. App.CHouston [14th Dist.] 1991, no pet.).  Failure to timely object preserves nothing for review.  See Tex. R. App. P. 33.1; Martinez, 98 S.W.3d at 193; Ethington, 819 S.W.2d at 858; see also Long, 821 S.W.2d at 217.  Furthermore, A[i]t is well established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged.@  Leday v. State, 983 S.W.3d 713, 717 (Tex. Crim. App. 1998) (quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978)).    

Here, the State called Officer Buckaloo to testify at trial about appellant=s demeanor both at her home and at the hospital during the tragic event.  Buckaloo explained that he expected appellant to be hysterical but instead, she was calm and insincere, merely Apretending to cry.@  Appellant did not object to this testimony.  Buckaloo was then asked to compare appellant=s reaction to that of other mothers who had been told their child was hurt or dead. Appellant objected to this question on relevancy grounds and the court sustained the objection.  After the prosecutor rephrased the question, however, the court overruled appellant=s subsequent objection.  It is the answer to this question which appellant now claims was improperly admitted. 

Later in the trial, the State elicited similar testimony from other witnesses, to which defense counsel made no objection.  Namely, Officer Dudley, the first officer to arrive at appellant=s home, was questioned by the State=s attorney regarding appellant=s demeanor.  Dudley, like Buckaloo, stated that he expected to see a hysterical mother but instead, he saw Ano reaction@ from appellant.  More significantly, the State called Jerry Gardner, chief of the Pasadena Fire Department, to testify about appellant=s demeanor.  He explained that appellant seemed Avery calm@ and Arather blasé.@  When the State=s attorney asked if that was unusual, Gardner explained that it did seem unusual to him because, in his experience with the fire department, people in similar situations are typically Ahysterical, uncontrollable sometimes.@  No objections were made to either the question or Gardner=s answer.      

Here, the State introduced opinion testimony from several witnesses who directly observed appellant=s demeanor.^[1]  Both Buckaloo and Gardner compared appellant=s reaction to the typical reaction of mothers in similar, traumatic situations.  Appellant objected to Buckaloo=s testimony but did not challenge Gardener=s testimony.  Because Gardener=s testimony established the same facts, appellant cannot complain about the admission of Buckaloo=s statement.  Appellant failed to preserve error, if any.  See Leday, 983 S.W.2d at 717B18; Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986); see also Gonzales v. State, No. 03-01-00524-CR, 2002 WL 1987616, at * 6 (Tex. App.CAustin Aug. 30, 2002, pet. ref=d) (not designated for publication) (explaining that the defendant failed to preserve for review whether the trial court improperly admitted expert testimony where similar testimony was admitted through three other witnesses without objection).  Appellant=s first point of error is overruled.

Appellant contends, in her second point of error, that she was improperly forced to comment on the credibility of another witness, the State=s Ajailhouse snitch,@ in violation of Ayala v. State, 352 S.W.2d 955 (Tex. Crim. App. 1962).  However, she similarly failed to preserve this point of error for review.

Just prior to trial, appellant shared a holdover cell with another woman named Laura Mills.  While sharing the cell, appellant allegedly talked at length with Ms. Mills about the case pending against her.  Claiming to be distraught over what appellant told her, Ms. Mills asked to speak with the prosecutor in appellant=s case to convey what appellant said.  At trial, the State called Ms. Mills to testify about this conversation.  Ms. Mills took the stand and explained that appellant said she had been charged with killing her baby and that she did not know if she killed the child or whether a pillow or blanket was used to possibly smother the baby.  Appellant also allegedly said her husband was mad at her and was concerned that she was trying to hide something because, after the child=s death, appellant disposed of the baby=s blanket in a trash dumpster.^[2]  Ms. Mills further stated that appellant was laughing and smiling during the conversation, claiming the State had no case against her.  At the close of Ms. Mills=s testimony, the State rested.

Later in the trial, appellant took the stand in her defense.  On cross-examination, the State brought up Ms. Mills= testimony and asked if appellant, in fact, had spoken with Ms. Mills.  Appellant said she did talk to Ms. Mills, but claimed she did not talk about her case. She directly denied telling Ms. Mills anything about throwing an object in the dumpster, to which the State=s attorney asked appellant how Ms. Mills would have gotten that information.  Defense counsel objected, arguing that would require speculation.  The court ruled that appellant could answer the question if she knew.  Appellant continued to deny that she gave Ms. Mills details about her case, to which the State=s attorney asked if Ms. Mills had lied on the stand. Defense counsel again objected and the trial court again overruled the objection.  However, appellant did not directly answer the question, but rather, repeated her earlier denials that she talked about her case. 

A similar exchange took place minutes later and defense counsel again objected. Just as before, the trial court overruled the objection.  The State then asked appellant a series of questions involving specific statements made by Ms. Mills while on the stand.  Appellant continued to deny that she spoke with Ms. Mills about the case. Again, the State=s attorney asked A[a]re you telling this jury that [Ms. Mills] is lying?@  Finally, appellant said Ms. Mills would have to be lying.  This time, defense counsel did not object to either the question or the answer.

Because defense counsel did not object the final time appellant was asked if Ms. Mills was lying, appellant failed to preserve error on this point.  See Martinez, 98 S.W.3d at 193; Ethington, 819 S.W.2d at 858; see also Long, 821 S.W.2d at 217. Accordingly, appellant=s second point of error is overruled.^[3]

Exclusion of Defense Evidence

In points of error three and four, appellant complains that the trial court improperly excluded evidence necessary to her defense.  Specifically, appellant argues the court erred in refusing to allow evidence or testimony about each of the following: (1) her background living in foster homes as a teenager; (2) the effect of parenting classes she took while in a substance abuse treatment program; (3) appellant=s connection with her estranged husband and her relationship with Eddie Noel, Ian=s father; and (4) opinions from Mr. Noel and a neighbor regarding her parenting skills.  We will address each of these in turn.

Foster Homes

Appellant contends the trial court should have allowed her to testify that she lived in foster homes between the ages of thirteen and seventeen.  The State objected to this evidence as irrelevant, and appellant argued the evidence was relevant to establish her background and frame her as an individual who often uses defense mechanisms when dealing with people.  Despite appellant=s argument, the court refused to allow the testimony, explaining that defense counsel needed to ask questions only dealing with appellant=s adult life.  Appellant argues on appeal that the testimony about her childhood was intended to rebut the State=s evidence that she showed little to no emotion over her child=s death.  Appellant complains that the exclusion of her testimony on this point precluded her from being personalized in front of the jury and therefore, prejudiced her defense.

A trial court=s ruling on the admissibility of evidence is reviewed under an abuse of discretion standard.  See Montgomery v. State, 810 S.W.2d 37, 390 (Tex. Crim. App. 1990); Valdez v. State, 2 S.W.3d 518, 520 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  We will overturn the ruling only if it is so clearly wrong that it lies outside the zone of reasonable disagreement.  Montgomery, 810 S.W.2d at 391; Valdez, 2 S.W.3d at 520. 

While appellant=s childhood experiences in foster homes may have been admissible as having some relevance to her emotional development, it is equally plausible that this evidence had no relevance at trial.  Because the admissibility of this evidence falls within the zone of reasonable disagreement, the trial court did not abuse its discretion in excluding the evidence, and we refuse to overturn the court=s ruling.

Parenting Classes

Appellant also argues that the trial court erred in excluding evidence about parenting classes she took while in a drug abuse treatment program.  She contends this would have helped establish that she is a good mother who would not harm her children.  She points out that a defendant is entitled to introduce evidence of a pertinent character trait under Texas Rule of Evidence 404(a)(1) and suggests this evidence went to her character.

Defense counsel began to ask appellant about her prior offenses and why she was on probation. Appellant started to answer but the State objected Ain violation of the Rule.@^[4]  The following dialogue then took place at the bench:

[Mr. Moncriffe]:  I don=t want to violate anything, but she, as a result of that probation, was in SAFPE.  I think that=s relevant to some other things that B this is her adult life I want to talk about.  Was she current in SAFPE, what it taught her and their discipline in raising her children.

[Mrs. Magness]:  Judge, that is punishment evidence.  That=s not evidence that is relevant to any element of this indictment.

[The Court]:  You=re going to establish that she=s a drug user?

[Mr. Moncriffe]:  I=m trying to show you what the program did.

[The Court]:  We are not going to go into that.  If you start talking about SAFPE and B no.  No.

We first note the context in which the subject of appellant=s parenting classes was raised.  Defense counsel was trying to introduce testimony that appellant was placed in SAFPE, a substance abuse treatment program.  The trial court refused to allow this testimony to avoid a violation of Texas Rule of Evidence 404(b) and to protect appellant from having negative evidence about her character, namely that she was a drug-user, revealed by her attorney.  More important, we note the trial court did not state that defense counsel could not ask about the parenting classes.  The court merely refused to allow counsel to ask about appellant=s placement in SAFPE and it was counsel=s decision not to make further inquiry about the classes.

Even were we to find that the trial court did prohibit appellant from introducing testimony about her parenting classes, we fail to see the relevance to any pertinent character trait at issue.  While appellant properly states that Texas Rule of Evidence 404(a) entitles a criminal defendant to introduce evidence of a pertinent character trait, she fails to explain how a person=s mothering prowess is a pertinent character trait in a murder trial.  See Valdez v. State, 2 S.W.3d 518, 520B521 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). In Valdez, this court explained A[i]n a murder case, the accused=s reputation for peacefulness, or non-aggressive behavior, is the appropriate inquiry.@ 2 S.W.2d at 520.  Were we to agree with appellant=s argument in this case, we would have to believe the proposition that a character trait of Agood@ mothers, or well-trained mothers, is that they are less likely to murder their children and the converse character trait is true of Abad@ mothers or mothers without training, i.e., they are more likely to murder their children.  We fail to see how appellant=s parenting classes are relevant to a pertinent character trait in her murder trial.  Regardless, we do not believe this evidence is outside the bounds of reasonable disagreement and, as such, we do not believe the trial court abused its discretion in excluding the evidence.  See Valdez, 2 S.W.3d at 520.

Marriage/Separation

Appellant next complains that the trial court erred in excluding evidence about the separation from her husband and the relationship with Eddie Noel, Ian=s father.  The record reflects the following colloquy:

Q. [By Mr. Moncriffe, defense counsel]: Did you B let=s talk now about  what happened with your marriage.  Did you separate from him and come to Houston?  Explain to the jury how you B your connection, disconnection with your husband.  You came here, and you and Eddie hooked up again.  Tell the jury about that.

A. [Appellant]:  I had got placed in SAFPE and B

[Mrs. Magness, the State=s attorney]: I object.

[The Court]:  Sustained.

Q. When you deal with Eddie, tell me what your relationship B merely with Eddie, how did you establish your relationship with him when you came back here?

A. Well, I was in a halfway house.

[The Court]:  Approach.

(At the Bench)

[The Court]:  Are you trying to find out whether she got divorced from that first husband?

[Mr. Moncriffe]:  I=m trying to show B yeah, I=m just trying to disconnect her.

[The Court]:  Why don=t you just ask her if she got divorced?

[Mrs. Magness]:  I have a question.  Are we still talking about when she was 18 years old, or are we ever going to talk about when she is 27 (her age at the time of the offense)?  If this is an attempt to place her in the community, it seems to me that it seems too remote.

[The Court]:  You better move on.

The record indicates that thereafter defense counsel asked no more questions about appellant=s husband or how she became involved with Eddie Noel. However, appellant argues on appeal that she was precluded from putting forth this evidence.^[5]

To preserve error in the exclusion of evidence, the complaining party must actually offer the evidence or a summary of the evidence and secure an adverse ruling from the court.  Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1(a); Stewart v. State, 686 S.W.2d 118, 123 (Tex. Crim. App. 1984) (en banc) (explaining that A[a]bsent a showing of what [excluded] testimony would have been or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review).  A[I]t is incumbent upon the defendant to make an offer of proof to preserve any error in refusing to admit the evidence.@  Canto-Deport v. State, 751 S.W.2d 698, 700 (Tex. App.CHouston [1st Dist.] 1988, pet. ref=d).

After being overruled as to the admissibility of appellant=s placement in SAFPE, appellant=s counsel did not ask any more questions on the subject of appellant=s divorce or her relationships with her husband and Mr. Noel. Appellant cannot complain she was not permitted to admit evidence she never asked be introduced.  See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).  Furthermore, appellant did not make the required offer of proof showing what the testimony would be or what the excluded evidence would show.  As such, she has presented nothing for review.  See Lankston, 827 S.W.2d at 909; Stewart, 118 S.W.2d at 123.

Opinion Testimony

Appellant also contends the trial court erred by not allowing opinion testimony from Mr. Noel and Jennifer Nichols, a friend and former neighbor.  Appellant claims Mr. Noel=s and Ms. Nichol=s opinions were intended to help establish her character and that, as the defendant in a criminal case, she was entitled to offer evidence of a pertinent character trait under Texas Rule of Evidence 404(a).

At trial, appellant asked Mr. Noel a series of questions about who took on the responsibility of planning for Ian while appellant was pregnant.  When defense counsel asked A[w]hat type of mother was [appellant] to you,@ the State objected to the question=s relevance.  The court sustained the objection and defense counsel moved on with other questions about the care given to Ian.  Defense counsel did not attempt to reword the question or seek another method to establish what Mr. Noel=s answer would have been.

Later in the trial, Ms. Nichols was called as another defense witness.  She testified about her interaction with appellant and her personal knowledge of what occurred on the days surrounding Ian=s death.  Defense counsel asked Ms. Nichols several questions about the reaction of neighbors to Ian=s death and eventually asked if she would Aever suspect that [appellant] could have done something to her child?@  The court sustained an objection by the State, and defense counsel moved on with other questions about the reactions of neighbors and discussions that took place amongst them.  Again, defense counsel never returned to the question now complained of and did not make any additional effort to establish what Ms. Nichols= answer would be.

We again note that it is the defendant=s responsibility to make an offer of proof to preserve error in refusing to admit evidence.  Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1(a); Stewart, 686 S.W.2d at 123.  Here, defense counsel made no offer of proof to establish what either Mr. Noel=s or Ms. Nichols= testimony would be.  Therefore, appellant has failed to preserve error.  See Garza v. State, 846 S.W.2d 936, 939 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d) (holding that where there was no offer of proof and a witness=s answers are not apparent, no error is preserved in excluding the testimony).

Appellant=s third and fourth points of error are overruled.

Refusal to Grant a Mistrial

In her fifth point of error, appellant argues the trial court erred by refusing to grant her request for a mistrial based on an allegedly improper question by the State.  In her sixth point of error, appellant contends the court erred by denying her the opportunity to rebut the State=s allegedly improper question. 

During direct examination, appellant testified that she and her husband had separated and that there was a custody issue involving their three children.  On cross-examination, the State asked if the three children still lived with appellant at the time of the offense. Defense counsel objected to the question=s relevancy, but the court overruled the objection. Appellant answered the question by explaining that the three children did not live with her.  The State then asked, AThey had been placed in custody of your mother?@  To this question, defense counsel asked to approach the bench.  The court replied Asustained@^[6] and, upon request, instructed the jury to disregard the State=s question.  However, the court refused to grant defense counsel=s request for a mistrial. 

Denial of a motion for mistrial is reviewed under the abuse of discretion standard.  Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999).  A mistrial is required only when Athe question is >clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds.=@  Moore v. State, 882 S.W.2d 844, 847 (Tex. Crim. App. 1994) (quoting Gonzalez v. State, 685 S.W.2d 47, 49 (Tex. Crim. App. 1985)); Young Sun Lee v. State, 681 S.W.2d 656, 662 (Tex. App.CHouston [14th Dist.] 1984, pet. ref=d).  Asking an improper question will rarely require a mistrial.  Moore, 882 S.W.2d at 847. Furthermore, an instruction to disregard will cure error associated with an improper question and answer in most cases.  Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992).

Here, the court instructed the jury to disregard the State=s question about appellant=s children being placed in custody of her mother. Particularly where appellant first raised the issue of the custody of her other three children and it was clear from appellant=s own testimony that the children did not live with her, we cannot say the State=s question was clearly calculated to inflame the minds of the jurors nor can we say that it was of such a character as to suggest the impossibility of withdrawing the impression produced on the jurors= minds. Therefore, we hold the court=s instruction to disregard cured any error and the trial court did not abuse its discretion in denying appellant=s motion for a mistrial.  Appellant=s fifth point of error is overruled.

After the court denied appellant=s request for a mistrial, the State again asked if the children were living with appellant at the time of the offense and if appellant had told a detective in the case that they were living in Arkansas.  Appellant again stated that the children were not living with her and further explained that she had told the detective the children lived in Arkansas.

On redirect examination, in response to the State=s questions about the children=s involvement in appellant=s life, defense counsel asked appellant to explain how she visited them, paid child support, supplied clothing, and otherwise took responsibility for the children. Defense counsel then asked appellant to explain her statement that she Awas going to Arkansas anyway.@ Appellant stated, AArkansas and Texas kind of was in limbo about where the kids should go and where I should be.@  The State objected and, without ruling on the objection, the court ordered the attorneys to approach the bench. 

At the bench, the court reminded defense counsel that he had objected to the State=s question about appellant losing custody of the children and that a curative instruction had been given for the jury to disregard the question.  The State responded by stating that the children had been removed by Children=s Protective Services and warned that if defense counsel continued to open the door on the issue of custody, the State would disclose to the jury that the children were removed, due in part, to appellant=s negligent supervision.  The court admonished appellant, A[y]ou=d better not start,@ but also explained A[i]t is entirely up to you.@

It is not entirely clear what evidence appellant complains was improperly excluded. In her brief, she points to the portion of the record where both the court and the State suggested that defense counsel not delve into custody of the three children.  However, we have no way of knowing exactly what the testimony or evidence on this point would have been.  Defense counsel did not ask any further questions on the matter, but more important, failed to make the required offer of proof showing what the testimony or evidence would have established.  See Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1(a); Stewart v. State, 686 S.W.2d 118, 123 (Tex. Crim. App. 1984) (en banc).  Accordingly, we overrule appellant=s sixth point of error.

Jury Argument

In appellant=s seventh point of error she complains the trial court erred in not granting a mistrial based on allegedly improper jury argument by the State. Appellant argues a mistrial was warranted because the prosecutor said  AI know@ appellant killed her child. The record reflects that the following transpired at the close of the guilt/innocence stage of trial:

[Mr. Moncriffe]:  You know something that is really funny to me, too, if that tape says this, AI put a blanket over Ian=s head,@ then why is the State coming with 15 different B 14 different ways of finding her guilty?  Why don=t you just take that one B why don=t they just take that statement by itself and say AThat=s enough to find her guilty@? [sic] Why do they have to go with 14 ways of having it done?  Is it that they don=t believe the statement, too?

The State objected to this as improper argument and the court sustained the objection.  Then, during her closing argument, the prosecutor discussed the various possible causes of Ian=s death and proceeded by stating:

[Mrs. Magness]:  Now that leaves us with intentional suffocation.  Mr. Moncrifffe asked, Why does the State indict in multiple ways? The State indicts in multiple ways because I wasn=t there.  I don=t know exactly how she killed him, but I know she did.

[The trial court sustained defense counsel=s objection and instructed the jury to disregard the prosecutor=s opinion but denied counsel=s request for a mistrial.]

[Mrs. Magness continued]:         I believe Mr. Moncriffe=s suggested to you that perhaps I didn=t believe it.  Intentional suffocation, what does the evidence show you?

The State continued with its closing argument by reviewing and summarizing the evidence presented at trial.  Appellant contends on appeal that the prosecutor=s interjection of her opinion was improper jury argument and that the trial court erred by denying his mistrial request.

In response, the State argues that the contested statement,  AI don=t know how she killed him, but I know she did,@ was invited by defense counsel=s remarks and that it was a reasonable deduction from the evidence. In support of this argument, the State explains that defense counsel suggested it must not have believed that appellant smothered her child because why else would the State allege fourteen different theories of guilt.  The State points out that defense counsel even challenged whether the State believed appellant=s statement that she put a blanket over the child=s head.  As such, the State claims its argument at trial was an appropriate response.

Proper areas of jury argument include: (1) summation of the evidence; ( 2) reasonable deductions from the evidence; (3) response to the argument of opposing counsel; and (4) a plea for law enforcement.  Westbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).  In most instances, it is improper for counsel to give his or her personal opinion on an issue in the case, due to the danger that jurors could infer that the prosecutor=s opinion is based on outside information not available to the jury.  See Wyatt v. State 566 S.W.2d 597, 604 (Tex. Crim. App. 1978); Pace v. State, 986 S.W.2d 740, 745 (Tex. App.CEl Paso 1999, pet. ref=d).

Regardless of whether the State=s argument was improper in this case, we find the trial court cured any error. When the prosecutor improperly interjects personal opinion into her jury argument, an instruction to disregard will cure any error unless the argument is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on the jurors=s minds.  Castillo v. State, 939 S.W.2d 754, 761 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d); Pace, 986 S.W.2d at 746; Davis v. State, 684 S.W.2d 201, 205 (Tex. App.CHouston [1st Dist.] 1984, pet. ref=d). Because the prosecutor, at least arguably, was responding to defense counsel=s remarks,^[7] we cannot say that her comment was clearly calculated to inflame the juror=s minds.  Neither can we say that the comment left such an impression on the jury that it warrants reversal of the conviction.  See Pace, 986 S.W.2d at 746; Davis, 684 S.W.2d at 205.  Accordingly, we overrule appellant=s seventh point of error.     

Optional Completeness

In appellant=s final point of error, she argues the trial court erred in refusing to admit testimony from a defense witness about a written statement she provided to police.  Specifically, appellant claims that, because the State questioned the witness about the statement, she was entitled under Texas Rule of Evidence 107 to introduce the remainder of the written statement to clarify or explain it.

While police were investigating Ian=s death, they obtained a statement from appellant=s friend, Ms. Nichols.  At trial, the State briefly questioned Ms. Nichols on cross-examination about this statement.  Appellant then attempted, on redirect examination, to ask additional questions about the statement.  Because the statement was hearsay and was not admitted into evidence, the court explained that Ms. Nichols could answer the questions only if they were based on her personal knowledge.  Furthermore, the court prohibited the witness from reading directly from the statement.  Appellant proceeded to ask if the statement was a summary of what she had told police but ended the questioning with no further inquiry.  Appellant now complains on appeal that she should have been entitled to introduce the entire statement to rebut the State=s questions.

Under the rule of optional completeness, A[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.@  Tex. R. Evid. 107.  This rule is properly invoked where an opposing party reads part, but not all, of a statement into evidence.  See Araiza v. State,  929 S.W.2d 552, 555B56 (Tex. App.CSan Antonio 1996, pet. ref=d); see also Livingston v. State, 739 S.W.2d 311, 331B32 (Tex. Crim. App. 1987).  In that situation, the remainder of the statement Aon the same subject@ is admissible to Areduce the possibility of the fact finder receiving a false impression. . . .@ Roman v. State, 503 S.W.2d 252, 253 (Tex. Crim. App. 1974). However, mere reference to a statement and even a quotation from the statement does not invoke the rule.  Jernigan v. State, 589 S.W.2d 681, 694B95 (Tex. Crim. App. 1979); Pinkney v. State, 848 S.W.2d 363, 367 (Tex. App.CHouston [1st Dist.] 1993, no pet.).

Here, the State never sought to introduce Ms. Nichols= statement into evidence nor did the State directly read any portion of it to the jury. As such, Rule 107 was not properly invoked and the trial court did not err in excluding the otherwise hearsay statement.  See Araiza,  929 S.W.2d at 555B56.

Even if the exclusion of the statement were error, the error would be harmless because there was no Apossibility of the fact finder receiving a false impression from hearing the evidence of only a part@ of the statement.  See Gilmore v. State, 744 S.W.2d 630, 631 (Tex. App.CDallas 1987, pet. ref=d) (explaining the purpose of the rule).  Here, the portion of the statement asked about by the State did not produce a false impression about the evidence.  Furthermore, after reviewing the record as a whole, we find that there are Afair assurances@ that the error, if any, did not influence the jury.  See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (explaining that unless the error influenced the fact finder, it is harmless and does not require reversal).  Appellant=s final point of error is overruled.

The judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed January 11, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Opinion testimony about a person=s demeanor is generally admissible if based on facts actually perceived by the witness.  Fairow v. State, 943 S.W.2d 895, 897B900 (Tex. Crim. App. 1997).

^[2]  Appellant was actually referring to her boyfriend, Mr. Noel.

^[3]  In addition, appellant failed to preserve this point of error because her complaint on appeal is different from her objection at trial.  Appellant argues on appeal that the answer to these questions required her to improperly comment on the truthfulness of Ms. Mills=s testimony.  This argument was never raised at trial. Rather, appellant argued at trial that this evidence was irrelevant.  Therefore, because appellant=s complaint on appeal varies from her claim at trial, she failed to preserve error and presents nothing for our review.  See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (explaining that an objection at trial stating one legal theory may not be used to support a different legal theory on appeal); Coffey v. State, 796 S.W.2d 175, 179B80 (Tex. Crim. App. 1990); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

^[4]  Appellant notes in her appellate brief that no rule was specified by the State to support its objection and that the objection came late. However, appellant does not explain the relevance of these contentions to her appeal.  Regardless, a closer reading of the record indicates the State was objecting to the testimony as improper character evidence, noting that it was relevant for punishment purposes but not at the guilt/innocence stage of the trial.

^[5]  We note the State=s objection and the court=s instruction to approach were in response to appellant=s answers, not defense counsel=s questions.  It is apparent the court was trying to preclude appellant from introducing testimony about her placement in SAFPE. The court already had ruled that this evidence was inadmissible, likely in an effort to protect appellant from having negative evidence about her character, namely that she was a drug-user, admitted against her.  See discussion supra AParenting Classes.@  Therefore, when appellant started to answer her attorney=s questions with information about SAFPE, the court refused to allow those answers.  However, nothing suggests the court refused to allow further testimony on the subject of appellant=s relationships.

^[6]  This statement was likely in response to what the court believed was a forthcoming objection.

^[7]  Certainly, standing alone the prosecutor=s comment would be improper.  See Clayton v. State, 502  S.W.2d 755, 756 (Tex. Crim. App. 1973); Campos v. State, 946 S.W.2d 414, 415B16 (Tex. App.CHouston [14th Dist.] 1997, no pet.). However, it does appear the comment in this particular case was invited by defense counsel=s prior remarks. See Lewis v. State, 676 S.W.2d 136, 142B43 (Tex. Crim. App.1984); Bui v. State, 964 S.W.2d 335, 345B46 (Tex. App.CTexarkana 1998, pet. ref=d).