author: LAURA CARTER HIGLEY, Justice.

text:
    Patricia Ann RAY, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-01011-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 23, 2004.
    Discretionary Review Refused June 29, 2005.

      Shawna L. Reagin, Houston, TX, for Appellant.
    Dan McCrory, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Hárris County, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
   OPINION ON MOTION FOR REHEARING

LAURA CARTER HIGLEY, Justice.

On November 18, 2004, we issued an opinion affirming the trial court’s judgment. On December 6, 2004, appellant, Patricia Ann Ray, filed a motion for rehearing. We overrule appellant’s motion for rehearing and substitute this opinion for our previous opinion. Our November 18, 2004 judgment, affirming appellant’s conviction, remains unchanged.

Appellant was certified to stand trial as an adult for capital murder, found guilty by a jury, and given a mandatory life sentence. In two issues, appellant contends that the trial court erred in denying her motion to suppress and in admitting into evidence an excerpt from her co-defendant’s custodial statement.

We affirm.

Background

At around four a.m. on August 24, 2002, appellant, who was then 16 years old, and her fifteen-year-old boyfriend, Thomas Vargas, entered the home of eighty-one-year-old Veda Marie Sutton under the pretext of using Sutton’s telephone for an emergency. Soon after entering the home, Vargas violently attacked and killed Sutton. As appellant stood by, Vargas repeatedly hit Sutton with a piece of metal. Vargas then stabbed Sutton with a knife and an ice pick. The teenagers then took numerous items belonging to Sutton, set the house on fire, and drove away in Sutton’s car. Later in the morning, officers with the Alvin Community College Police Department arrested Vargas and appellant for unauthorized use of a motor vehicle and evading arrest. Because Sutton’s murder had occurred in Pearland, Detective H. Hunter of that city’s police department arrived at the scene of the teens’ arrest. After the officers from the two jurisdictions conferred to determine how the investigation would proceed, appellant and Vargas were transported to the Brazoria County Juvenile Detention Center. After arriving at the detention center at approximately 10:00 a.m., Detective Hunt tried, without success, to obtain from appellant a telephone number for her mother. Appellant did not provide the authorities with a number until 12:00 p.m. Efforts were then made to notify appellant’s mother of her daughter’s arrest and whereabouts. Although continuing attempts were made to call the mother, the authorities did not reach her until 4:30 p.m.

Between 1:42 p.m. and 2:33 p.m., appellant received the statutorily required warnings from a magistrate and gave a tape-recorded statement to police. Based on the Texas exclusionary rule, appellant filed a motion to suppress the taped statement. Appellant asserted, inter alia, that the statement was taken in contravention of the parental-notification requirements of Family Code section 52.02(b). In particular, appellant asserted that the officers “took little action to find one of [appellant’s] parents” before taking the statement. See Tex. Fam.Code Ann. § 52.02(b) (Vernon Supp.2004-2005). Following an evidentiary hearing, the trial court denied appellant’s motion to suppress. In support of its ruling, the court orally stated on the record that the requirements of the parental notification statute had been met.

MOTION TO SUPPRESS

In her first point of error, appellant contends that the trial court erred by denying her motion to suppress the taped statement.

Standard and Scope of Review

We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002).

Applying this standard, we afford deference to the trial court’s determination of the historical facts but decide de novo whether the trial court erred by misapplying the law to the facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). If no fact findings are filed, we presume that the trial court made implicit findings of fact that support its ruling, provided these facts are supported by the record. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000). We review de novo applieation-of-law-to-fact questions that do not turn on an evaluation of credibility and demeanor. See Guzman, 955 S.W.2d at 89.

In this case, whether the requirements of Family Code section 52.02(b) were satisfied is an application-of-law-to-fact question. See Vann v. State, 93 S.W.3d 182, 184 (Tex.App.-Houston [14th Dist.] 2002, pet. ref’d) (applying de novo review to question of compliance with 52.02(b)). In making this determination, we will view the evidence at the suppression hearing in the light most favorable to the trial court’s ruling and review de novo the trial court’s resolution of the question. See id.

Requirement of Prompt Notification

Family Code section 52.02(b) requires that a person taking a child into custody promptly give notice of the person’s action, and a statement of the reason for taking the child into custody, to the child’s parent, guardian, or custodian. Tex. Fam.Code Ann. § 52.02(b). When a juvenile defendant seeks to suppress a statement allegedly obtained in violation of section Family Code 52.02(b), the burden of proof is initially on the defendant to show a violation of that section. See Roquemore v. State, 60 S.W.3d 862, 869 (Tex.Crim.App.2001). If the defendant demonstrates such violation, then the burden shifts to the State to prove compliance with section 52.02(b). See id.

On appeal, appellant first contends that her mother was not “promptly” notified when she was taken into custody, and, for that reason, her confession should have been suppressed. The Court of Criminal Appeals has repeatedly recognized the necessity of strict compliance with the Family Code provisions governing the handling of juvenile defendants. See id. at 870 (citing Baptist Vie Le v. State, 993 S.W.2d 650, 655 (Tex.Crim.App.1999) and Comer v. State, 776 S.W.2d 191, 196 (Tex.Crim.App.1989)). Undoubtedly, this strict-eom-pliance requirement applies to section 52.02(b). See In re J.B.J., 86 S.W.3d 810, 815 (Tex.App.-Beaumont 2002, no pet.). However, strict compliance with this provision has never been interpreted by a court to mean that a statement cannot be taken from a juvenile until notification has been given to the parent or guardian; rather, courts have striven to determine whether the notification was given “promptly,” as the statute requires. See, e.g., id. Because the term “promptly” is not statutorily defined for purposes of section 52.02(b), courts have taken different approaches in determining whether parental notification was promptly given under the particular facts presented.

As recognized by the Fourteenth Court of Appeals, Texas appellate courts have considered the following factors in determining whether parental notification was “prompt”: (1) the length of time the juvenile had been in custody before the police notified a parent, guardian, or custodian; (2) whether notification occurred after the police obtained a statement; (3) the ease with which the police were ultimately able to contact the appropriate adult; and (4) what the police did during the period of delay. Vann, 93 S.W.3d at 185 (citing Gonzales v. State, 67 S.W.3d 910, 911 (Tex.Crim.App.2002); Hampton v. State, 36 S.W.3d 921, 924 (Tex.App.-El Paso 2001), rev’d, Hampton v. State, 86 S.W.3d 603 (Tex.Crim.App.2002); Hill v. State, 78 S.W.3d 374, 382-84 (Tex.App.-Tyler 2001, pet. ref’d); In re C.R., 995 S.W.2d 778, 783 (Tex.App.-Austin 1999, pet. denied)); cf. J.B.J., 86 S.W.3d at 815 (applying “totality of the circumstances” approach to determine whether parental notification was promptly given). We find the factors listed in Vann to be both pragmatic and definitive. And, as an amalgam of the considerations that other courts have used, this approach has a solid basis in Texas jurisprudence. Thus, we apply the four factors listed in Vann to the evidence presented in this case to determine whether the notification was promptly given.

(1) Length of Time Appellant was in Custody Before Notification

At the suppression hearing, Detective Hunt confirmed that appellant was arrested by the Alvin Community College Police “a little before 8 a.m.” Appellant’s mother was notified that her daughter was in custody at 4:30 p.m. Thus, approximately eight and one-half hours passed between the time appellant was taken into custody and her mother was notified.

(2) Whether Notification Occurred after the Police Obtained a Statement

Parental notification in this case occurred after the statement was taken.

(3) Ease with which Notification Was Ultimately Made

Detective Hunt testified that he and appellant arrived at the juvenile detention center at approximately 10:00 a.m. At that time, he asked appellant for her mother’s telephone number. The detective stated that he wanted to contact appellant’s mother to inform her of appellant’s “situation” and whereabouts. Detective Hunt was unable to obtain the number from appellant. He described her demeanor as “distraught” and stated that she was crying. Detective Hunt confirmed that he would have contacted appellant’s mother at that time if appellant had given him a telephone number.

Melissa Callaway, an employee of the Brazoria County Juvenile Probation Department, testified at the suppression hearing that she heard Detective Hunt ask appellant for her mother’s telephone number, but appellant did not provide him with the number. She described appellant’s demeanor as “very, very emotional.”

Callaway informed Detective Hunt that she had previously dealt with appellant at the detention center. Callaway told Detective Hunt that she had a rapport with appellant and believed that she could obtain the mother’s number. Detective Hunt turned custody of appellant over to Calla-way at 11:30 a.m., after Callaway told him that she would attempt to obtain the contact number from appellant.

In her brief, appellant points to evidence indicating that Detective Hunt knew she had previously been processed at the juvenile detention center and that a file existed that possibly contained a contact number for appellant’s mother. Appellant suggests that Detective Hunt should have made efforts to obtain these other files at the time of appellant’s arrest in this case. When cross-examined on this point, Detective Hunt explained the reason that he did not attempt to obtain these files was because they were not his files and the files would have contained “old information.”

Callaway testified that she had previously dealt with appellant in the juvenile system and believed that she could obtain the mother’s number from appellant. After speaking with appellant for 20 or 30 minutes, Callaway obtained the mother’s work and mobile telephone numbers from appellant. Callaway then telephoned appellant’s mother but was unable to reach her. When asked whether she had continued to call appellant’s mother until her shift ended, Callaway responded affirmatively. Callaway testified that her shift ended at 2:00 p.m. At that time, she gave the telephone numbers to a “Ms. Tyus” at the detention center, who ultimately reached appellant’s mother at 4:30 p.m.

(4) What Law Enforcement Officials Did During Period of Delay

The following is a time-line constructed from the evidence presented at the suppression hearing:

Shortly before 8:00 a.m. Appellant and Vargas taken into custody by Alvin Community College Police for unauthorized use of a motor vehicle and evading arrest
8:00 a.m. to 9:30 a.m. Appellant and Vargas remain at arrest scene; City of Pearland investigators arrive at arrest scene; Pearland and Alvin Community College police confer to determine how investigation should proceed
9:30 to 10:00 a.m. Appellant and Vargas transported to juvenile detention center
10:00 a.m. Appellant arrives at juvenile detention center
10:00 a.m. to 11:30 a.m. Detective Hunt tries to obtain mother’s telephone number from appellant; Detective Hunt books appellant and Vargas; authorities waiting for magistrate to arrive to give required warnings
11:30 a.m. Detective Hunt turns custody of appellant over to Callaway
11:30 a.m. to 12:00 p.m. Callaway speaks with appellant to obtain mother’s telephone number
Around 12:00 p.m. Callaway obtains mother’s work and mobile telephone numbers from appellant
12:00 p.m. to 2:00 p.m. Callaway telephones appellant’s mother but is unable to reach her; Callaway completes the booking process; Callaway’s shift ends at 2:00 p.m. and she gives mother’s telephone numbers to Tyus
1:42 p.m. to 2:33 p.m. Appellant receives warnings from magistrate and provides tape-recorded statement
4:30 p.m. Appellant’s mother contacted by Tyus

Analysis Under Vann Factors

The evidence presented relevant to the third and fourth factors weigh strongly in favor of the State’s position that the notification was “prompt.” Although the second, and arguably the first, factors weigh in favor of a conclusion that the notification was not prompt, they are not alone compelling enough either to refute that the notification was prompt or to neutralize the effect of the evidence presented in relation to the third and fourth factors. Moreover, when viewed in the context of the evidence relating to the third and fourth factors — rather than in isolation— the delay in notification highlighted by the first and second factors is explained; thus, the impact of the first and second factors is mitigated.

Of particular importance in this case is the evidence presented that demonstrates that the officers made diligent efforts to notify appellant’s mother. The evidence shows that for the first one-and-one half hours that appellant was in custody, she remained at the scene of her arrest because it was uncertain where appellant would be transported due to the conflicting jurisdiction of the law enforcement agencies involved. The evidence further shows that, once at the juvenile detention center, Detective Hunt made efforts to procure the mother’s telephone number from appellant, but through no fault of Detective Hunt, he could not obtain the number from her. The detective made clear in his testimony that he would have contacted the mother at that time if appellant had provided him with her number. Callaway confirmed that the detective tried to obtain the number from appellant. Detective Hunt offered a reasonable explanation why he did not attempt to obtain a telephone number that may have appeared in records from previous contacts that appellant had with the detention center.

The evidence further showed that, even though she had a rapport with appellant, it still took Callaway 20 to 30 minutes to obtain the mother’s telephone numbers from appellant. Callaway then attempted to reach the mother for the next two hours without success. Callaway gave the numbers to the person on the next shift, who ultimately reached appellant’s mother at 4:30 p.m.

Considering the factors enunciated in Vann, we conclude that the parental notification in this case was promptly given as required by section 52.02(b). We hold that the trial court properly denied appellant’s motion to suppress.

We overrule appellant’s first issue.

ADMISSION OF CO-DEFENDANT’S CUSTODIAL STATEMENT

In her second point of error, appellant complains that the trial court erred by allowing the State to read into evidence an excerpt from Vargas’s custodial, tape-recorded statement. In that excerpt, Vargas stated that he found a piece of wrought iron fence lying by Sutton’s front door. He confessed that he picked up the piece of iron, brought it in Sutton’s home, and hit her with it. Vargas stated that after he hit her, Sutton was “laying [sic] down” and begged him not to hit her again.

On appeal, appellant contends that the admission of the statement violated her right to confrontation under the Sixth Amendment Confrontation Clause of the United States Constitution and under article I, section 10 of the Texas Constitution.

State Constitutional Right to Confrontation

We begin our analysis by holding that appellant failed to preserve her article I, section 10 complaint. The basis for appellant’s objection at trial was a federal case construing the Sixth Amendment right to confrontation, not the article I, section 10 right found in the State constitution. Appellant never objected that the admission of her co-defendant’s statement violated her state constitutional right to confrontation. Accordingly, this sub-point was not preserved for our review. See Tex.R.App. P. 33.1(a); see also Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex.Crim.App.2004) (holding defendant failed to preserve for appellate review claim that State’s use of defendant’s post-ai'rest, pre-warning silence violated state constitution when defense failed to cite the state constitution, and record did not otherwise indicate that objection related to state constitutional rights).

Sixth Amendment Right to Confrontation

Since appellant was tried, the United States Supreme Court held that, without exception, testimonial statements of witnesses absent from trial are admissible over a Confrontation Clause objection only when (1) the declarant is unavailable and (2) the defendant has had a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). In this case, the State does not contest that Vargas’s statement, taken during custodial interrogation, was inadmissible under the newly crafted test enunciated in Crawford. Instead, the State contends that the admission of the statement was harmless error.

Because the Sixth Amendment right of confrontation is a fundamental right, and because a violation of that right constitutes constitutional error, we must reverse a trial court’s judgment when Confrontation Clause error is present unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex.R.App. P. 44.2(a) (requiring reversal of constitutional error unless appellate court determines beyond reasonable doubt that error did not contribute to conviction); see also Evans v. State, 534 S.W.2d 707, 711 (Tex.Crim.App.1976) (concluding that error of admitting co-defendant’s statement was not harmless beyond a reasonable doubt).

In making this determination, we do not focus on the propriety of the outcome of the trial. McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App.2001). Instead, our task is to “calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence.” Id. If there is a reasonable likelihood that the error materially affected the jury’s deliberations, then the error was not harmless beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000).

In this case, the State sought to convict appellant under two theories of capital murder: (1) as a party, with Vargas acting as principal and (2) as a conspirator under the law of parties. The jury was instructed regarding the State’s law of the parties’ theories. In addition, the jury was charged with determining whether the State had proven beyond a reasonable doubt that Vargas caused Sutton’s death by using a combination of the following manner and means: striking Sutton with a piece of metal, stabbing her with a knife,, and/or stabbing her with an ice pick. The trial court admitted the excerpt from Vargas’s statement for the purpose of showing that he hit Sutton with a piece of metal— one of the instrumentalities of the crime.

The excerpt from Vargas’s statement that was read to the jury imparted three pieces of information: (1) that Vargas brought a piece of iron into Sutton’s home and hit her with it; (2) that Sutton was lying on the floor after Vargas hit her; and (3) that Sutton begged Vargas not to hit her. again. Undoubtedly, Vargas’s statement constituted direct proof that he hit her with a “piece of metal.” However, as pointed out by the State, the statement was cumulative of appellant’s own trial testimony. Appellant testified that, when she saw Vargas enter Sutton’s home, he was carrying what appellant described as a “metal pole” or “iron rod.” Appellant testified that she witnessed Vargas repeatedly hit Sutton with the “metal pole.” Courts have held that the wrongful admission of cumulative evidence is considered harmless. See Sterling v. State, 800 S.W.2d 513, 520 (Tex.Crim.App.1990) (holding that admission of illegally obtained confession was harmless in light of second admissible confession containing substantially same facts); see also Franks v. State, 90 S.W.3d 771, 805-06 (Tex.App.-Fort Worth 2002, no pet.) (holding that because complained-of testimony was generally cumulative of other evidence introduced in case, no harm attached); Mack v. State, 928 S.W.2d 219, 225 (Tex.App.-Austin 1996, pet. ref’d) (holding error is not reversible “if other evidence at trial is admitted without objection and it proves the same fact or facts that the inadmissible evidence sought to prove”).

Moreover, at trial, appellant did not contest that Vargas killed Sutton. Rather, appellant’s theory of the case was that she assisted Vargas during the commission of the offenses because she was under duress. In fact, appellant gave detailed testimony about the brutality of Sutton’s murder at the hands of Vargas. She testified that she witnessed Vargas push his way into Sutton’s home and, without provocation, repeatedly beat Sutton with the metal pole, then stabbed her with a knife. Appellant stated that when she left Sutton’s house, she saw an ice pick sticking out of Sutton’s back. She then described how Vargas poured accelerants inside the house and set it on fire. Although the State was required to prove beyond a reasonable doubt the manner and means by which Vargas killed Sutton, the most powerful evidence that the State had in this regard was the live testimony of appellant, who witnessed the murder first-hand and gave a vivid description of Vargas’s actions.

Appellant also contends in her brief that “[t]he harm in admitting Vargas’s confession was exacerbated by the inclusion of the portion that described how the complainant was lying down when he hit her and was begging him not to hit her anymore.” The impact of this portion of the statement was also over-shadowed by appellant’s trial testimony. Appellant conveyed to the jury that after Vargas initially hit Sutton, she fell to the floor. Appellant told the jury that Vargas made Sutton get up and walk to the kitchen. Appellant testified that this was difficult for eighty-one-year-old Sutton. Once in the kitchen, Vargas continued to beat Sutton with the piece of metal. After the teenagers began searching the house for items to steal, appellant screamed, alerting Vargas that Sutton was still “moving.” Appellant testified that Vargas then stabbed Sutton with a knife.

The autopsy report and the testimony of the assistant medical examiner also mitigated the impact of Vargas statement. The medical evidence showed that Sutton had numerous skull fractures, brain hemorrhaging, multiple stab wounds and abrasions, and a broken arm. The medical evidence also showed that the ice pick Vargas used to stab Sutton had penetrated her heart. The autopsy photographs published to the jury also showed the brutality of Vargas’s actions. When asked whether Sutton likely “suffered a great deal before she died,” the assistant medical examiner responded affirmatively.

In light of the other evidence introduced at trial, the impact of admitting the excerpt from Vargas’s statement was minimal. We conclude that there is not a reasonable likelihood that the error of admitting the statement materially affected the jury’s deliberations. We hold that the error was harmless beyond a reasonable doubt. We overrule appellant’s second point of error.

CONCLUSION

We affirm the judgment of the trial court.

      . See Tex. Pen.Code Ann. §§ 8.07(c), 12.31(a) (Vernon 2003).

      . See Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp.2004-2005).

      . Tex. Pen.Code Ann. § 7.02(a)(2) (Vernon 2003).

      . Id. § 7.02(b).

      . Appellant also contends that "Vargas' confession also served to impeach Appellant's statement that Vargas had gotten a stick over by the tennis courts, which he apparently used to strike the complainant.” Such contention is without merit. Vargas’s statement did not address whether the couple had, or had not, gotten a "stick” from the tennis court near Sutton's home. More importantly, to the extent-that appellant’s statement could be construed to imply that the "stick” obtained from the tennis court was the instrument Vargas used to beat Sutton, such implication was refuted by appellant's own trial testimony that Vargas hit Sutton with a "metal pole” or "iron rod.”

      . Appellant claimed that she participated in the offense because she feared that Vargas would also kill her if she did not assist him. The jury received an instruction on the affirmative defense of duress, which it implicitly rejected.

      . Within the discussion of her second point of error, appellant contends in one sentence that the trial court failed to instruct the jury on the law regarding accomplice-witness corroboration with regard to Vargas’s statement. Appellant has provided no substantive legal argument or authority on this potential sub-point. Thus, it is waived for our review. See Tex.R.App. P. 38.1(h); Foster v. State, 101 S.W.3d 490, 499 (Tex.App.-Houston [1st Dist.] 2002, no pet.).


source: Caselaw Access Project

author: SHERRY RADACK, Chief Justice.

license: Public Domain

text:
    Abdullah M. HAJJAR, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00745-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 23, 2004.
    Discretionary Review Refused Sept. 14, 2005.

      Paul Nugent, Houston, TX, for Appellant.
    Julie Klibert, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

SHERRY RADACK, Chief Justice.

Abdullah Hajjar, appellant, pleaded not guilty to assault on a family member, his wife. The jury found him guilty and the trial court assessed punishment at one year community supervision, a $1,000 fine, and 10 days in jail as a condition of his community supervision. In five points of eiTor, appellant contends that (1) the trial court undermined appellant’s presumption of innocence, thereby denying his right to a fair trial and effective assistance of counsel at trial; (2) the trial court erred in allowing the State to identify an exhibit as a “booking photo”; (3) the trial court erred in admitting evidence that was of little or no probative value and unfairly prejudicial; (4) the trial court erred in permitting the State’s repeated use of inadmissible “backdoor” hearsay evidence; and (5) appellant was denied his right to a fair trial and effective assistance of counsel at trial. We affirm.

BACKGROUND

Around 11:30 p.m. on December 24, 2002, appellant left his wife, Rana, and then' two children at home to go pick up his mother in Houston. After he left the house, Rana took the children and drove somewhere. Appellant returned with his mother to an empty house. In the early morning hours of December 25, when Rana and their children pulled into the driveway, appellant was waiting for her.

According to Rana, when she refused to get out of the car, appellant pulled her out of the car by her hair and kicked her in the head and stomach while she was on the ground.

According to appellant’s mother, Rana refused to get out of the car. Appellant reached into the car to retrieve the keys and dragged Rana out of the car, where she threw herself on the ground, causing her injuries. While Rana was swinging at him, appellant apparently attempted to calm her down by hugging her. When she broke away from appellant, Rana ran toward a neighbor’s house screaming.

Anthony and Angela Burlingame, neighbors from across the street, heard a scream coming from outside their house and then, a few seconds later, a second scream, which Anthony characterized as a scream of terror. Once outside, they saw Rana running into their yard and appellant chasing her. As Rana reached the Burlin-games’ front porch, appellant yelled an expletive at Rana. Anthony asked appellant what was going on, but appellant turned around and walked back to his house in silence. Rana explained to Angela what had happened. Rana told her that she had been beaten by appellant and she wanted to call the police. Anthony noticed that Rana’s face was bleeding and that she had a knot on the top of her head, cuts on her elbows and hands, and scrapes on her knees.

While Rana spoke with Angela, Anthony went to appellant’s house to speak with him. Anthony informed appellant that, at Rana’s request, he had called the police. Appellant told Anthony that he had not hit Rana. Shortly thereafter, a number of police officers, responding to a family disturbance complaint, arrived at the scene. At Rana’s request, an EMS ambulance was called to the scene, but she was not transported to a hospital.

After conducting an investigation, appellant was arrested by the police officers. The officers took appellant to the police station and booked him. As part of that process, the police took a booking photograph of appellant.

RIGHT TO A FAIR TRIAL

In his first point of error, appellant asserts that the trial court erred in requesting that he indicate in front of the jury which witnesses he might call to testify at trial. Specifically, appellant contends the trial court’s request undermined the presumption of innocence to which appellant was entitled, thereby violating his rights to a fair trial and to effective assistance of counsel guaranteed to him by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.

Before either side delivered its opening statement, the State apparently invoked the rule. See Tex.R. Evid. 614; Tex.Code Crim. Proc. Ann. art 36.03 (Vernon Supp.2004-2005). When the trial court invokes “the rule,” it excludes witnesses from the courtroom pursuant to Rule 614, which provides in relevant part that “at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.” Tex.R. Evid. 614. The purpose of the rule is to prevent the testimony of one witness from influencing the testimony of another. Martinez v. State, 867 S.W.2d 30, 40 (Tex.Crim.App.1993); Phillips v. State, 64 S.W.3d 458, 459 (Tex.App.-Houston [1st Dist.] 2001, no pet.). The trial court wanted to determine which witnesses were to testify so the judge could swear them in and exclude those witnesses so that they could not hear the testimony of other witnesses. The trial court asked the attorneys on both sides to help him identify whom they intended to call as witnesses. Defense counsel stated that he was not sure whom he was going to call and, instead, requested that all witnesses subpoenaed by the State be sworn in as witnesses. The trial court rejected this suggestion and told defense counsel that he would only swear in and exclude from the courtroom those who, in good faith, were going to be called.

After the trial court swore in those whom the State affirmatively indicated it intended to call as witnesses, defense counsel repeated his request that all people under subpoena be sworn in, to which the trial court responded that he would swear in only those whom defense counsel intended to call or whom there was a chance defense counsel would call. Defense counsel responded that he did not have the burden of proof and that he could not tell whether or not he was going to call as witnesses any of those who were subpoenaed by the State. The trial court repeated its denial of defense counsel’s request, but defense counsel then interjected that he could not tell whether he would call them until he heard the evidence. At this point, the trial court sought confirmation that “there is a chance you may call them,” to which defense counsel answered in the affirmative. The subpoenaed witnesses were then duly sworn in. The defense did not subpoena any witnesses apart from those subpoenaed by the State.

After appellant entered his plea before the jury and after both sides presented their opening statements, defense counsel attempted to make a record, outside the jury’s presence, regarding the issue of swearing-in the subpoenaed witnesses. Defense counsel reiterated that he did not know whom he was going to call until he heard the evidence put on by the State, that he did not have the burden of proof, and that he objected to the manner in which the court “put [him] on the spot in front of the jury by repeated questions from the Court, ‘Are you going to call them. Are you going to say in good faith [that you might call them].’ ”

Appellant did not timely object to the trial court’s request for appellant to indicate whom he would put on the stand to testify on the basis of undermining appellant’s presumption of innocence. To preserve a complaint for appellate review, a defendant must object timely to the trial court. See Tex.R.App. P. 33.1; Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App.1996). However, an appellate court may “tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the [trial] court.” Tex R. Evid. 103(d); see Jasper v. State, 61 S.W.3d 413, 420 (Tex.Crim.App.2001); Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App.2000) (plurality op.). In Blue, a plurality of the Court of Criminal Appeals held that a trial court’s comments, “which tainted [the defendant’s] presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection.” Blue, 41 S.W.3d at 132; see Jasper, 61 S.W.3d at 421. Even if we were bound to follow the plurality opinion in Blue, a matter we do not decide, we conclude that appellant’s complaints here do not rise to the level of fundamental error. See Jasper, 61 S.W.3d at 421.

Interjections by a trial court that correct misstatements or misrepresentations of previously admitted testimony, or that clear up points of confusion, are not improper. See id. (“A trial judge has broad discretion in maintaining control and expediting the trial.”). Here, the trial court’s interjections sought to clear up a point of confusion about whether appellant might call any of the people on the subpoena list as witnesses. The interjections did not convey the court’s opinion about appellant’s guilt or innocence. The trial court did not violate appellant’s fundamental rights even if the trial court appeared irritated at appellant in refusing to, at first, indicate whom he intended to call as witnesses. See id. (holding that irritation by trial court at attorney does not translate to indication of court’s views about defendant’s guilt or innocence).

Accordingly, we overrule appellant’s first point of error.

Probative Value of Evidence

In his second and third points of error, appellant contends that the trial court erred in admitting into evidence State’s Exhibit 17 and in permitting the State to identify State’s Exhibit 17 as a “booking photo” of appellant. Specifically, appellant contends that the “booking” photograph of appellant, State’s Exhibit 17, was of little or no probative value concerning any disputed issue and was offered by the prosecution and classified as a “booking photo” by the State’s witness solely to prejudice the jury against appellant. The State argues that the evidence was properly admitted to rebut appellant’s claim of self-defense.

We review the trial court’s determination of admissibility under an abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App.1990); Roberts v. State, 29 S.W.3d 596, 600 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d).

Here, appellant objected that the photograph was irrelevant and that, even if relevant, was more prejudicial than proba-five. Tex.R. Evid. 402, 403. We must first determine, therefore, whether the evidence is relevant. Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R. Evid. 401. Appellant’s defense to the charges was that he acted in self-defense. The photograph was introduced to rebut this claim of self-defense by showing that there was no sign of injuries to the appellant. Although some of the testimony specified that Rana had hit appellant in areas not shown in the photograph, there was also testimony that Rana had hit appellant without specifying where. Based on these facts, the photograph was relevant.

Having determined that the evidence is relevant, we must determine whether the risk of unfair prejudice substantially outweighs the probative value. Tex.R. Evid. 403; Goldberg v. State, 95 S.W.3d 345, 366 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d). Relevant evidence may be excluded if its potentially prejudicial effect outweighs its probative value. Swarb v. State, 125 S.W.3d 672, 681 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d); Tex.R. Evid. 403. The reviewing court, using an abuse-of-discretion standard, should “do more than decide whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; the trial court’s determination must be reasonable in view of all relevant facts.” Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997) (citations omitted). A Rule 403 balancing test includes, but is not limited to, the following factors:

(1) how probative is the evidence;
(2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way;
(3) the time the proponent needs to develop the evidence; and
(4) the proponent’s need for the evidence.

Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App.2000).

The photograph, which was taken after appellant was charged at the police station on the night he committed the offense, was introduced by the State to rebut appellant’s defensive theory that he acted in self-defense after Rana attacked him. Appellant suggests numerous prejudicial inferences that the jury could possibly have drawn from the introduction of the photograph, including that extra steps were necessary to control him, that the police feared he might return to his home that night, that he was still in jail at the time of the trial, and that it might suggest that he had a prior criminal record. All of these suggested inferences focus on the fact that the jury became aware that appellant was booked; there is no objection to the content of the photograph. Appellant’s argument turns on whether, by being characterized as a booking photograph the picture was rendered unfairly prejudicial.

Since the evidence was presented to rebut a defensive theory of the appellant, the evidence was strongly probative. The photograph demonstrates appellant’s appearance only a few hours after the offense was committed. The photograph helps the jury by allowing them to see whether appellant sustained any injuries, instead of relying solely on the testimony of one officer who claimed he saw no sign of appellant’s injuries. The photograph does not have the potential to impress the jury in some irrational but indelible way because appellant concedes that “a juror could not possibly have known that the photograph had been taken [at the police station] by simply looking at the photograph.” Furthermore, the evidence was addressed for only a very brief period of time.

The mere classification of State’s Exhibit 17 as a “booking photo” is not itself unfairly prejudicial. Using the term “booking photo” to describe a photograph of a defendant in a criminal trial does not reveal any fact about a defendant that is not already known to the jury when they are first told by the trial judge that they will be sitting to determine the guilt or innocence of a people charged with a crime. A “booking” photograph reveals that a criminal defendant had his photograph taken at a jail when he was first booked after being charged with a crime. This is the only information the “booking” photograph of appellant revealed to the jury. As a juror in a criminal trial, one already knows that the defendant has gone through the process of being booked and charged with a crime. Therefore, the mere classification of a photograph that was taken at a jail as a “booking” photo does not reveal additional prejudicial facts about a defendant. Identifying State’s Exhibit 17 as a “booking photo” of appellant was not unfairly prejudicial.

Rule 403 favors the admission of relevant evidence and carries with it a presumption that probative evidence will be more probative than prejudicial. See Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App.1991). The alleged prejudice suggested by appellant does not overcome this presumption. The suggestions that the jury might believe that booking the appellant was an extraordinary step required to protect appellant’s wife are unsupported. Contrary to appellant’s suggestion, the jury could not have inferred from this evidence that appellant was still in jail at the time of trial because.it was referred to merely as a “booking” photograph, which implies a photograph taken as appellant was processed on the assault charges. Finally, appellant fails to explain how the “booking” photograph, describing his appearance on the night of his arrest for assaulting his wife, would suggest that he had a prior criminal history.

Having reviewed the record, we find the trial court acted reasonably when it admitted into evidence the photograph of appellant. Consequently, the trial court did not abuse its discretion in admitting this photograph.

Accordingly, appellant’s second and third points of error are overruled.

“Backdoor” Hearsay Evidence

In his fourth point of error, appellant contends that the trial court erred when it admitted evidence of statements appellant’s mother made to an investigating officer and statements appellant’s’ son made to appellant’s mother, regarding whether appellant’s son had acknowledged that he witnessed the offense. Moreover, appellant contends that the State’s use of improper “backdoor” hearsay evidence constituted purposeful pros-ecutorial misconduct.

We review the trial court’s decision to admit evidence under an abuse-of-discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g); Gurka v. State, 82 S.W.3d 416, 420 (Tex.App.-Austin 2002, pet. ref’d). As long as the trial court’s ruling was within the zone of reasonable disagreement, the appellate court will not reverse the ruling. Montgomery, 810 S.W.2d at 391.

Officer Katrib’s Testimony

Appellant complains of two separate instances of alleged backdoor hearsay evidence introduced at trial. Appellant first complains of the following testimony by Deputy Katrib on direct examination:

[State]: Okay. After you spoke with the mother, the defendant’s mother, did you speak with anyone else?
[Katrib]: Yes, ma’am, I did.
[State]: And who was that you spoke with?
[Katrib]: The grandmother had indicated and from-
[Defense]: Excuse me, I’m going to object.
[Court]: Don’t say what she said.
[Katrib]: Okay.
[Court]: Sustained.
[State]: I’ll continue, Judge.
[Court]: You need — let’s go ahead right now. Don’t say what anyone told you or what you learned by someone telling it to you.
[Katrib]: Okay.
[Court]: Unless you’re specifically asked and I rule on whether it’s going to be hearsay or not.
[Katrib]: Sure.
[Court]: Thank you.
[State]: Who was the other person that you spoke with?
[Katrib]: I spoke to the three-year-old son.
[State]: Okay. Prior to speaking with the three-year-old son, did you ask permission from anyone?
[Katrib]: Yes, ma’am, I did. I asked the grandmother for permission.
[State]: Okay. Did you later then talk to the son?
[Katrib]: Yes, ma’am, I did.
[State]: Okay. Now, did you determine through your investigation whether the child witnessed the offense?
[Katrib]: Yes, ma’am, I did.
[Defense]: Excuse me. Objection. It’s based on hearsay what the child said.
[Court]: Okay. Now so far you said, yes, you did determine whether or not he was. But anything further than that would be an answer based on hearsay. So, all we know so far is you determined one way or another whether or not he was a witness but not anything that’s going to be based on hearsay.
[State]: Through your investigation that night, where did you determine the children were during the assault?
[Court]: I just want to make sure you’re not-what your source is not being based on what someone told him. That’s going to be hearsay.
[State]: No, Judge, this is not based on what the mother or the son told him.
[Court]: Well, you’re going to have do— [Defense]: Judge—
[Court]: Excuse me, Mr. Nugent. You need to be clear as to the source of information; from his own personal knowledge, what he witnessed, and not what’s it based on. He can’t be generally what he learned from — generally from his investigation. That’s why it would be hearsay. Unless there’s a hearsay exception, then we’ll proceed then.

(emphasis added). After this instruction from the court, the State abandoned that line of questioning and moved on. After sustaining defense counsel’s first objection as to what the mother told Officer Katrib, the State moved on to ask questions regarding whether appellant’s son had witnessed the offense.

“Hearsay” is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). “Statement” is defined as “(1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.” Tex.R. Evid. 801(a). Hearsay is not admissible evidence unless excepted by the rules of evidence, a statute, or a rule promulgated pursuant to statutory authority. Tex.R. Evid. 802; Barnum v. State, 7 S.W.3d 782, 789 (Tex.App.-Amarillo 1999, pet. ref’d).

We find that Officer Katrib’s answer to the State’s question seeking to determine whether or not Katrib discovered, through his investigation, if appellant’s son had witnessed the offense was not inadmissible backdoor hearsay evidence. Katrib’s only response to the question indicated that he had discovered whether or not the child had witnessed the offense. Katrib’s testimony did not reveal whether or not the child witnessed the offense. The State never asked the follow-up question of what Katrib had discovered through his investigation. The only question asked by the State was whether or not he discovered if appellant’s son had witnessed the offense, not what that investigation revealed. Therefore, no hearsay evidence was directly or indirectly admitted because what the appellant’s son had revealed to Katrib was never introduced into evidence through the testimony of Katrib. See Schaffer, 721 S.W.2d 594, 597 (Tex.App.-Corpus Christi 1986), affirmed, 111 S.W.2d 111, 113 (explaining that it is “this form of question and answer” that presents the jury with information from unsworn, out-of-court sources that “should be called ‘backdoor’ hearsay and should be subject to the same rules and limitations as the more common form.”) (emphasis added).

Appellant’s Mother’s Testimony

Later, the State, again conducted a similar line of questioning during the cross-examination of appellant’s mother. Appellant complains of the following testimony:

[State]: Do you recall — the three-year-old son was out there
as well; isn’t that correct?
[Appellant’s mother]: Out where?
[State]: In the car when this happened?
[Appellant’s mother]: Yes.
[State]: Also, the three-year-old son was in the area when
the officer was present, right?
[Appellant’s mother]: Yes.
[State]: Do you recall the three-year-old son acknowledging that he saiv his dad and his mom—
[Defense]: Excuse me, Judge. I’m going to object to their attempt to cross-examine the grandma about statements the three-year-old allegedly made.
[Court]: Response?
[State]: I’m asking her if she saw what the officer saw.
[Court]: Probably not the right objection, if there is one.
[Defense]: It’s hearsay.
[Court]: Is it hearsay?
[State]: It’s an excited utterance, Your Honor, and I’m asking if she knows or if she saw it.
[Court]: You probably have to lay the predicate for excited utterance as far as the three-year-old for it to be excited utterance. Any other response? Otherwise, it would be hearsay at this point.
[State]: Okay.
[State]: Ma’am, what was the emotional state of the son during all of this?
[Appellant’s mother]: All this was terrifying and he was holding onto me.
[State]: Very emotional?
[Appellant’s mother]: Yes. I love him so much.
[State]: And do you recall the son acknowledging that he saw—
[Defense]: Excuse me, Judge. I’m going to object to hearsay. The prosecution has subpoenaed the little boy three times. They subpoenaed him to be here yesterday. If they want to call a three-year-old, that’s one thing, but to cross-examine grandma about statements that a three-year-old allegedly made, through hearsay, is improper and I object.
[Court]: Overruled.
[State]: And my response, also, would be, Your Honor, we’re not going to call a three-year-old to the stand. The three-year-old has already been through enough.

(emphasis added). After defense counsel’s last objection, the State dropped the line of questioning and moved on to another topic. Appellant’s mother never answered the question of whether she recalled her grandson’s acknowledging that he saw the offense being committed.

Because there was never a response from appellant’s mother to the State’s question regarding whether she recalled appellant’s son’s acknowledging that he had witnessed the offense, there is no statement of a witness as defined in Texas Rule of Evidence 801(a). See Tex.R. Evid. 801(a). Under the Texas Rules of Evidence, rule 801(a) provides that a “statement” is defined as “(1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.” Tex.R. Evid. 801(a). A “declarant” is “a person who makes a statement.” Tex.R. Evid. 801(b). “Hearsay” is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d). The witness on the stand, appellant’s mother, never answered the question and, therefore, her testimony could not directly or indirectly prove that she had been told by appellant’s son that he saw appellant commit the offense.

The Court of Criminal Appeals has stated that, even if an out-of-court statement itself is not introduced, the hearsay rule may apply if testimony allows the jury to ascertain the purport of the statement. Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Crim.App.1989); Gurka v. State, 82 S.W.3d 416, 420 (Tex.App.-Austin 2002, pet. ref’d). As in Schaffer v. State, the State attempted to indirectly elicit hearsay testimony from appellant’s mother when it asked her whether she recalled if appellant’s son, her grandson, acknowledged that he saw appellant hit his mother. See id. (holding that witness’ statement about not dropping charges against defendant was inadmissible hearsay because testimony indirectly proved that witness had been told that defendant was not an informer). Here, unlike in Schaffer, the State abandoned this line of questioning before the witness could introduce the hearsay testimony of appellant’s son. Schaffer is not applicable to this case because the trial court did not improperly allow the State to introduce hearsay testimony before the jury-

Accordingly, we overrule appellant’s fourth point of error.

Prosecutorial Misconduct

In his fifth point of error, appellant contends that he was denied a fair trial. Specifically, appellant complains that the cumulative effect of improper actions on the part of the trial court and of the prosecutor created a coercive atmosphere, which operated to violate his rights to a fair trial and effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

Every person accused of a crime is entitled to a fair trial. See Bethany v. State, 814 S.W.2d 455, 456 (Tex.App.-Houston [14th Dist.] 1991, writ ref’d); see e.g., Henley v. State, 576 S.W.2d 66, 69 (Tex.Crim.App.1978). As the Supreme Court and the Court of Criminal Appeals have noted, “the atmosphere essential to the preservation of a fair trial — the most fundamental of all freedoms-must be maintained at all costs.” Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965); Taylor v. State, 420 S.W.2d 601, 607 (Tex.Crim.App.1967). In this regard, it is the duty of both the trial court and the prosecutors to conduct themselves so as to ensure that an accused receives a fair trial. Bethany, 814 S.W.2d at 456; Tex.Code Crim. Proc. Ann. art. 2.03(b) (Vernon 1977). In addition, an accused is entitled to the assistance of an attorney who will play the critical role necessary in our adversarial system to ensure that the trial is fair. See Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984).

In an appeal of this nature, it is the fundamental purpose of an appellate court to ascertain whether or not the convicted defendant received a fair trial in the court below. See Ex parte Adams, 768 S.W.2d 281, 293 (Tex.Crim.App.1989); Bethany, 814 S.W.2d at 456. In making this determination, any indication of prejudice or opinion of guilt on the part of the trial judge requires close scrutiny of his actions. See Zima v. State, 553 S.W.2d 378, 380 (Tex.Crim.App.1977). Likewise, although the character of a prosecutor does not necessarily dictate the fairness of a trial, the conduct and discretion of the prosecutors in this case will be necessarily involved in our analysis. See Ex parte Adams, 768 S.W.2d at 293.

In support of this point of error, appellant delineates seven instances of judicial and prosecutorial misconduct, which he contends resulted in the deprivation of his constitutional rights. Appellant reiterates the alleged errors outlined in his first four points of error and includes two other alleged errors by the State, as well as a failure by the trial court to rule on a defense objection..

The proper method of preserving error in cases of prosecutorial misconduct is to (1) object on specific grounds, (2) request an instruction that the jury disregard the comment, and (3) move for a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex.Crim.App.1995); Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App.1993). Appellant made no objection on the basis of prosecutorial misconduct in the trial court to the- previously addressed alleged errors or the newly alleged errors. By failing to object on this theory at trial, appellant has preserved nothing for our review. See Perkins v. State, 902 S.W.2d 88, 96 (Tex.App.-El Paso 1995, writ ref’d).

Although appellant alleges that he was denied assistance of counsel at trial, he does not cite any specific instances of what trial counsel did that contributed to the allegedly coercive atmosphere created by the “cumulative effect of judicial and prosecutorial misconduct during the trial.” This Court is not required to sift through the record in search of support for appellant’s broad assertions of error. See Tex. R.App. P. 38.1(h); Lawton v. State, 913 S.W.2d 542, 554 (Tex.Crim.App.1995).

Appellant offers no argument, authority, or citation to the record to explain how his representation fell below the standard of prevailing professional norms by his trial counsel’s failure to object to the instances of judicial and prosecutorial misconduct alleged in this point of error. With respect to the references to appellant’s first four points of error, we have found no misconduct on the part of the trial court; and appellant has cited no authority from which we could conclude that appellant’s trial counsel’s conduct fell below a professional standard because his counsel failed to object to those alleged instances of prosecutorial misconduct.

An appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). We cannot speculate beyond the record provided; rather, a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. Young v. State, 991 S.W.2d 835, 837-38 (Tex.Crim.App.1999). The appellant must overcome the presumption that his trial counsel’s strategy was sound and affirmatively demonstrate the alleged ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003); Thompson, 9 S.W.3d at 813-14. Appellant has failed to carry his burden of proof.

We overrule appellant’s fifth point of error.

CONCLUSION

We affirm the judgment of the trial court.

      . Although the State’s invocation of the rule is not in the appellate record, the record does reflect the trial court's recognition that the rule had been invoked.

      . In Blue, the trial court informed the venire of the following: the defendant and the State were bargaining over how the defendant would plead; the defendant could not decide whether to plead; the defendant was delaying the trial; the judge wanted the defendant to plead guilty to save time; and the trial court felt obliged to apologize for the delay caused by the defendant. Blue, 41 S.W.3d at 130.

      . The following exchange occurred in front of the jury
      [State]: Let the record reflect I’m now showing you what’s been marked as State's Exhibit 17. Do you recognize this?
      [Witness]: Yes, ma’am, that's the defendant.
      [State:]: And what is it?
      [Witness]: It’s his picture—
      [Defense counsel]: Judge, I’m going to object to her testifying to what it is. Has that been introduced?
      [State]: I’m attempting.
      [Defense counsel]: Judge, I would object to her testifying to what it is before I’ve seen it, before it’s been introduced.
      [Court]: You can come — up or, first, otherwise, you can ask something that doesn’t identify what the subject photo is. You can say does this accurately—
      [State]: Without telling me what it is, do you recognize it?
      [Witness]: Yes.
      [State]: What is it?
      [Defense counsel]: Excuse me, Judge. She’s going to testify as to what the photo is before it’s been shown to me and before it’s been introduced in evidence?
      [State]: Judge, I’m trying to lay the predicate to get the photo admitted and the last step to admission for predicate of a photo is showing the Defense counsel.
      [Court]: The objection is overruled.
      [State]: What is it?
      [Witness]: It's the picture you take when you go get booked into jail.

      [State]: Booking photo?
      [Witness]: Booking photo.

      [State]: Does that picture accurately depict how the defendant appeared on December 25th of last year when you saw him?
      [Witness]: Correct.
      [State]: Do you think this would aid the jury in understanding this case?
      [Witness]: Uh-huh.
      [Defense counsel]: Objection, Your Honor.

      [Court]: What is the objection?
      [Defense counsel]: I would object. A booking photo has nothing to do with this case; and they are introducing it to prejudice my client and it has nothing to do with anything, the fact that he was booked. And the booking photo is irrelevant to whether or not the State can prove beyond a reasonable doubt the charge alleged. The booking photo has no probative value. It’s simply not relevant. It’s being offered to prejudice Mr. Hajjar.

      (emphasis added).

      . In his first four points of error, appellant contends that (1) the trial court undermined appellant's presumption of innocence, thereby denying his right to a fair trial and effective assistance of counsel at trial; (2) the trial court erred in allowing the State to identify an exhibit as a “booking photo”; (3) the trial court erred in admitting evidence that was of little or no probative value and unfairly prejudicial; and (4) the trial court erred in permitting the State’s repeated use of inadmissible "backdoor” hearsay evidence.

      . Aside from the four points of error, the additional errors of prosecutorial misconduct appellant alleges are (1) a reference outside-the-record by the State regarding Rana's passport during closing argument; (2) the State advising the court about an alleged extraneous offense during the punishment phase, which appellant had never been notified of despite filing a prior request for notice of extraneous offenses; and (3) the trial court's failure to make a ruling on an objection by appellant during closing argument.