author: Justice Ross.

text:
    William Glenn BULINGTON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00135-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 5, 2005.
    Decided Nov. 1, 2005.

      Dwight Brannon, Gilmer, for appellant.
    Timothy J. Cariker, Asst. Dist. Atty., Gilmer, for appellee.

      Before MORRISS, C.J., ROSS and CARTER, JJ.

      . It is not clear whether Navarro requested an accomplice witness instruction, though from the context, it appears he did and the trial court refused. In the instant case, Bulington did not object to the trial court’s charge or request an instruction on the accomplice witness issue. We examine the evidence for egregious harm infra.

   OPINION

Opinion by

Justice Ross.

William Glenn Bulington, Jr., was convicted of capital murder (killing more than one person, same criminal episode) and sentenced to life imprisonment (the State did not seek the death penalty). Bulington appeals, contending in his first three points of error that the evidence is legally and factually insufficient to support his conviction, that the evidence is legally insufficient to corroborate the testimony of an accomplice witness, and that the trial court erred in failing to include in the jury charge an instruction on the necessity for corroboration of accomplice witness testimony. In his other three points of error, Bulington contends that the jury charge should have included an inverse murder instruction, that he received ineffective assistance of trial counsel, and that the rights of a third party were violated. For the reasons stated below, we overrule these contentions and affirm the judgment.

Background Facts

The evidence showed that, around Thanksgiving 2003, Bulington and Ruby Tate were living together at a motel when Tate became acquainted (as a prostitute) with John Reese. Reese invited Bulington and Tate to live with him in a house that he either owned or rented. Bulington was to do some repair work on the house, and Tate was to keep it clean and prepare the meals. Bulington and Tate apparently agreed to these terms and moved into the house with Reese. This house had a pond behind it. Tate testified that, on the weekend of December 13-14, 2003, Keith Crutcher and L.V. Johnson “showed up” at Reese’s house. On the evening of the 14th, they were all “doing drugs” and, at a time when they were all in the kitchen, Bulington and Reese went outside. Bul-ington returned and told Tate that Reese was leaving. Tate went outside to talk to Reese, and when she returned, she went to the kitchen sink. Crutcher and Johnson were still in the kitchen, but “[Bulington] was nowhere in sight.” As Tate was in the kitchen starting the dishwasher, she heard a shot and saw Johnson fall to the floor. Bulington was standing in the doorway less than ten feet away with a .22 rifle in his hands. Crutcher started to run, but Bulington shot him as he ran. Tate then saw Bulington shoot both men again as they lay on the floor. Bulington told Tate if she panicked, or did not help him clean up evidence of the murders, he would kill her also. Tate testified she did as she was told and helped Bulington load the bodies into the back of Crutcher’s blue Dodge pickup truck that was parked outside the house. She said Bulington continued to threaten to kill her if she ever said anything about the killings or if she did not help him. Bulington then backed the truck, with Tate’s assistance, to the pond behind the house. Bulington took the bodies out of the truck, and Tate helped him load them into a boat. Bulington then took the boat to the middle of the pond, where Tate observed Bulington tie ropes around the necks of the victims. The ropes were attached to what Tate described as “cinder” blocks. She then saw Bulington dump the bodies into the water. Tate testified that, after this, she and Bul-ington returned to the house, where she cleaned up everything. She said she picked up seven shell casings and gave them to Bulington, who put them in a beer can. Tate testified Bulington drove Crutcher’s truck for three or four days before he got rid of it. According to Tate, she and Bulington were planning to get married, and he had promised to give her a ring. She further testified that, at the time Bulington sold Crutcher’s truck, “just before Christmas,” they had no money, but Bulington gave her a diamond ring on Christmas.

In March 2004, a fisherman observed a body floating on the surface of the pond behind Reese’s house. When officers arrived the next day, they found two bodies in the pond, both with ropes around their necks tied to what was described as “hey-dite” blocks. During the ensuing investigation, Johnson’s blood was found on floor tiles at the house. A shopping discount card belonging to Crutcher was found at this same location. Investigator Roxanne Warren testified she found approximately six .22 shell casings in a beer can at the scene. Medical examiner Sheila Spots-wood, M.D., said she found a total of six bullet wounds in the two victims (four in Crutcher and two in Johnson), recovered fragments of a total of six bullets from the two bodies, and found no evidence of any other wounds or that any other bullets had passed through either body.

In an initial interview, Tate gave Warren three different accounts of what she knew about the killings. Tate testified she first told Warren that Reese killed the two men. She then testified she told Warren she did not know what happened because she was not present. Both Tate and Warren testified Tate finally told Warren the killings occurred as described above. Warren testified that, because of other known facts revealed by the investigation, she did not believe Tate’s first two accounts were credible. However, she believed the third version was “truthful.” Other relevant background facts of the case will be provided in the appropriate discussions below.

Sufficiency of the Evidence To Corroborate Accomplice

In his brief before this Court, Bulington presents his first three points of error together. They concern the sufficiency of the evidence to corroborate the testimony of an accomplice witness and the trial court’s failure to charge the jury on the necessity for such corroboration. Buling-ton contends Tate was an accomplice in the killings of Crutcher and Johnson.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This calls on the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In our review, we must evaluate all the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).

In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Crim.App.2004)).

Bulington’s first argument under these first three points is that, because there was insufficient corroboration of Tate’s testimony, there is insufficient evidence to establish the corpus delecti. The corpus delecti rule is a rule of evidentiary sufficiency stating, in summary, that an extrajudicial confession of wrongdoing, standing alone, is not enough to support a conviction. There must exist other evidence showing that a crime has been committed. Williams v. State, 958 S.W.2d 186, 190 (Tex.Crim.App.1997). It need not be sufficient by itself to prove the offense, but must merely render the commission of the offense more probable than it would otherwise be. Id.; Rocha v. State, 16 S.W.3d 1, 4-5 (Tex.Crim.App.2000). Where a defendant is convicted of capital murder, the underlying conduct that elevates the murder to capital murder must also be corroborated. Emery v. State, 881 S.W.2d 702, 705 (Tex.Crim.App.1994).

During the months following the deaths of Crutcher and Johnson, Bulington made inculpatory statements to three of the State’s witnesses. He told Phil Wheeler, a sometime employer, he had shot one of the victims twice, the other five times, and one was shot in the head. Wheeler characterized Bulington’s statements as “bragging.” Bulington showed a newspaper article about the murders to Wheeler and told him the article had something to do with Crutcher’s blue Dodge truck, which Wheeler saw Bulington driving. Wheeler heard Bulington trying to sell the truck to some of Wheeler’s customers. Bulington told Wheeler the truck came from the location of the murders.

Ryan Allen testified Bulington joked with him that, to get rid of a person, one stabs or shoots them and puts them in a pond or lake. Allen also said Bulington showed him a newspaper clipping of the story of the killings and laughed or smirked when telling Allen about it. Allen also saw Bulington driving a blue Dodge truck sometime around the end of 2003. Bulington told Allen he got the truck from someone who owed him money and who had left town. Allen testified Bulington sold this truck to Theresa Robertson, a long-time friend of Allen’s wife. Allen testified that, after news of the truck aired on television, Bulington told him to get rid of the truck.

Michael Harris testified that Bulington told Harris he had shot two persons and that Tate had helped clean up after the killings. Bulington told Harris he had considered shooting Tate also.

There was evidence, independent of Bul-ington’s statements to the above witnesses, that showed the commission of two murders. The two victims were found in the same pond, at the same time. One had been shot two times and the other four times; both were shot with a small caliber weapon. Both victims had “heydite” (“cinder”) blocks tied around their necks. Johnson’s blood and a shopping card registered to Crutcher were found at the house near where the bodies were discovered; Bulington had been living at that house. Bulington was in possession of Crutcher’s truck; Bulington tried to, and did, sell the truck, and was unable to produce a title to it. This evidence corroborates Bulington’s statements and renders more probable than not the commission of two murders during the same episode or transaction. See id. The evidence is legally and factually sufficient to establish the corpus delec-tó.

We now turn to Bulington’s contentions that there was insufficient evidence to corroborate Tate’s testimony and that the trial court erred in not instructing the jury on the need for corroboration of an accomplice witness. Article 38.14 provides as follows:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Tex.Code CRiM. Proo. Ann. art. 38.14 (Vernon 2005).

Corroboration of the accomplice witness testimony is a statutory requirement imposed by the Legislature, and the Texas Court of Criminal Appeals has declined to “impose legal and factual sufficiency standards upon a review of accomplice witness testimony under Article 38.14.” Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999).

The test for determining the sufficiency of the corroboration is to eliminate the accomplice witness testimony from consideration and then determine if there is any other incriminating evidence which “tends to connect”-the defendant with the crime. Meeks v. State, 135 S.W.3d 104, 112 (Tex.App.-Texarkana 2004, pet. ref'd) (citing Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997); Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988)). The nonaccomplice evidence does not need to prove all the elements of the alleged offense. Meeks, 135 S.W.3d at 112 (citing Hernandez, 939 S.W.2d at 176; Underwood v. State, 967 S.W.2d 925, 928 (TexApp.-Beaumont 1998, pet. ref'd)).

Tate was not an accomplice as a matter of law. An accomplice is one who participates with a defendant before, during, or after the commission of a crime and who acts with the required culpable mental state. Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App.2004). This participation must involve some affirmative act that promoted the commission of the offense with which the accused is charged; an accomplice as a matter of law is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser included offense. Id. Tate was arrested and charged with tampering with evidence, but not murder or capital murder. Tampering with evidence is not a lesser included offense of capital murder.

Bulington contends Tate was an accomplice as a matter of fact. If evidence presented by the. parties is conflicting, and it is not clear whether the witness is an accomplice, the trial court must instruct the jury to decide whether the witness was an accomplice. Id. An analogous situation was examined by the Austin Court of Appeals in Navarro v. State, 863 S.W.2d 191, 202 (Tex.App.-Austin 1993), pet. ref'd, 891 S.W.2d 648 (Tex.Crim.App.1994). There, as here, the purported accomplice witness was in the kitchen, with his back turned to the defendant, when he heard a shot fired. The witness assisted Navarro in burying the body and failed to report it. Navarro, 863 S.W.2d at 202. Key to the court’s analysis was the lack of evidence showing the witness knew that Navarro planned to kill the victim or commit any crime involving deadly force. Id. The court held the trial court did not err in refusing to instruct the jury to answer whether the witness was an accomplice as a matter of fact.

In the instant case, the only evidence that can be said to contradict Tate’s testimony was the testimony that she gave two other versions of events before the version to which she testified at trial. As discussed above, Warren testified that, when she first interviewed Tate, Tate offered two accounts concerning the killings, neither of which made sense to Warren in light of other things she had learned in her investigation. Tate finally gave a written statement that did not contradict an earlier statement given by Reese, the owner or tenant of the property where the bodies were found and of the house where Johnson’s blood was found. In a later interview, Tate gave Warren a note with specifics about the murder scene and Bul-ington’s threats to Tate after the bodies were discovered. Based on this note, and Tate’s earlier written statement, Warren and other authorities discovered additional evidence, including Johnson’s blood in the kitchen and the shell casings in a beer can.

There was no evidence contradicting Tate’s testimony. More importantly, there was no evidence Tate anticipated Buling-ton’s violent intentions, and there was no evidence Tate and Bulington shared a “common understanding ... that some offense would be committed and that deadly force was contemplated.” Herrick v. State, 825 S.W.2d 215, 217 (Tex.App.-Houston [1st Dist.] 1992, no pet.). Without evidence Tate knew of Bulington’s violent plans, or any contemplation that some crime was to be committed, the trial court was not obliged to instruct the jury on the issue of accomplice as a matter of fact.

Even if Tate could be found to have been an accomplice, there is sufficient evidence tending to connect Bulington to the murders. The two bodies were found at the same time, in the same place, both with ropes tied around their necks and connected to “heydite” (“cinder”) blocks. Both men died from multiple gunshot wounds, and the medical examiner testified Crutcher had been shot in the back. Johnson’s blood was found in the house on the property where the bodies were found. There was also some evidence that, around the time of the murders, Bulington was in possession of a .22 caliber rifle and ammunition for such weapon. Bulington was seen in possession of Crutcher’s truck by at least two witnesses. Bulington sold Crutcher’s truck to Robertson, who also saw Bulington in the truck before buying it. Robertson testified Bulington told her he could not produce a title to the truck. Bulington told three people he had committed the murders. Bulington told Wheeler he had shot one victim two times and the other five times. The medical examiner testified both victims had multiple gunshot wounds. And finally, six or seven .22 caliber casings were found at the crime scene.

Further, Bulington did not obr ject to the trial court’s charge. Any error in the omission of an accomplice witness instruction would, .therefore, be reversible only if it caused egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g); Splawn v. State, 160 S.W.3d 103, 107 (Tex.App.-Texarkana 2005, no pet.). In determining whether egregious harm occurred, we review the error in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, the argument of counsel, and all other relevant evidence revealed by the record as a whole. Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim.App.1997) (quoting Almanza, 686 S.W.2d at 171). Errors resulting in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (citing Almanza, 686 S.W.2d at 171); Washington v. State, 59 S.W.3d 260, 265 (Tex.App.-Texarkana 2001, pet. ref'd). There was sufficient evidence to corroborate Tate’s testimony. “Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is ‘so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’ ” Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App.2002) (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App.1991)). The corroborating evidence here is not “so unconvincing.” Bulington’s first three points of error are overruled.

Inverse Murder Instruction

. Bulington complains the trial court erred in not giving an inverse murder instruction in its charge to the jury. The charge contained a paragraph instructing the jury that, if it found Buling-ton killed Johnson but had a reasonable doubt he had killed Crutcher in the same criminal episode, the jury should acquit Bulington of capital murder and find him guilty of the lesser offense of murder. On appeal, Bulington contends the trial court should have included a paragraph instructing in the inverse: that, if the jury found Bulington had killed Crutcher but had a reasonable doubt as to whether Bulington had killed Johnson in the same criminal episode, it must acquit Bulington of capital murder and find him guilty of the lesser offense of murder.

Bulington did not lodge this objection to the trial court. In fact, Bulington objected to the State’s request for a charge on the lesser included offense of murder. Buling-ton was emphatic in his opposition to such lesser included charge. This was clearly a strategic decision on Bulington’s part. He argued to the trial court that both parties had conducted voir dire on the assumption that the only charged offense would be capital murder, with its particular range of punishment, and he specifically excepted to any opportunity for the jury to convict based on murder, rather than capital murder. Bulington cannot complain on appeal of denial of a defensive theory that he eschewed at trial. This point is overruled.

Ineffective Assistance of Counsel

Bulington contends that, because there was no accomplice witness instruction and no inverse murder instruction in the court’s charge to the jury, he received ineffective assistance of counsel.

It is the defendant’s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). To prevail on a claim of ineffective assistance of counsel, an appellant must show both 1) that counsel’s performance was so deficient it was outside the range of reasonable professional judgment and 2) that the appellant was prejudiced by this performance and there is a reasonable probability, one sufficient to undermine confidence in the outcome of the trial, that the result of the trial would have been different. Id. at 812. An appellant must demonstrate trial counsel’s ineffectiveness in light of the totality of the circumstances. Id. at 813. The appellant must overcome the presumption that the challenged action might be considered sound trial strategy. Id.

Bulington appears to concede there is no reversible error under this point. He concludes this section of his brief before this Court as follows: “Due to the length of trial, the number of witnesses, the number of exhibits, the complexity of this case, and the omission of only two instructions, with the inclusion of one being debatable, any analysis precludes relief under this point.” (Citations omitted.)

Nonetheless, because we have held that Tate was not an accomplice and that no accomplice witness instruction was required, and because, as a matter of “sound trial strategy,” Bulington objected at trial to the inclusion of any instruction on the lesser offense of murder, we conclude Bul-ington has not shown he received ineffective assistance of counsel. This point of error is overruled.

Deprivation of Tate’s Rights

Bulington contends that Tate’s rights “to remain silent, to receive correct Miranda warnings, and to not be badgered by law enforcement during interrogation” were violated by the manner in which the State procured her statements. Nonetheless, as Bulington’s own brief before this Court concedes, he does not have standing, under the circumstances of this case, to challenge a third party’s alleged deprivation of rights. See Busby v. State, 990 S.W.2d 263, 270 (Tex.Crim.App.1999). Bulington’s last point of error is overruled.

We affirm the judgment.

      . See Tex. Pen.Code Ann. § 19.03(a)(7) (Vernon Supp.2004-2005):
      (a) A person commits an offense if the person commits murder ... and:

      (7) the person murders more than one person:
      (A) during the same criminal transaction; or
      (B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct.

      . Johnson’s identity was apparently unknown at the time the indictment was returned; he is referred to as John Doe in the indictment, as well as in the court’s charge to the jury.

      . See also Fisher v. State, 851 S.W.2d 298, 304 (Tex.Crim.App.1993) (victim's body never found, but evidence such as Fisher's steam cleaning his carpet soon after victim's disappearance, discovery of ashes and burned bones near a friend's house that Fisher had recently visited, and recent traces of blood in the garbage disposal and drainpipe of Fisher’s house sufficient to corroborate his extrajudicial confession to murdering and mutilating his girlfriend); Gribble v. State, 808 S.W.2d 65, 72 (Tex.Crim.App.1990) (Gribble confessed to killing victim and showed police where body was concealed; discovery of victim in uninhabited area wearing only robe, combined with victim’s purse in lake and no signs of struggle at home, sufficiently corroborated defendant’s admission to kidnapping element of charged capital murder offense).

      . Compare Tex. Pen.Code Ann. § 37.09 (Vernon 2003) with Tex Pen.Code Ann. § 19.03 (Vernon Supp.2004-2005).

      . Bulington contends the trial court's failure to sua sponte give such an instruction was a comment on the weight of the evidence,, depriving him of due process. He offers no analysis or argument in support of this con-clusory statement. This point is inadequately briefed. See Tex.R.App. P. 38.1.

      . See Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex.1984) (party could not move trial court to render judgment on verdict for damages found by jury, then take an inconsistent position on appeal).

      . See also Saunders v. State, 913 S.W.2d 564, 570-72 (Tex.Crim.App.1995) (en banc) (failure to instruct on one lesser included offense does not per se engender some harm to defendant convicted of greater offense, where court instructs on different lesser included offense).

        . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: LESLIE BROCK YATES, Justice. RICHARD H. EDELMAN, Justice,

license: Public Domain

text:
    Danny Lee MIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00027-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 3, 2005.

      Allen C. Isbell, Houston, for appellant.
    Peyton Peebles, III, Houston, for appel-lee.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   MAJORITY OPINION

LESLIE BROCK YATES, Justice.

Appellant Danny Lee Mixon was convicted of murder and sentenced to life in prison. In two issues, appellant argues the trial court erred by: (1) allowing an attorney to testify during the guilt phase of trial in violation of the attorney-client privilege and (2) overruling appellant’s objections to improper jury argument during the punishment phase of trial. We affirm.

Background

Appellant took a hand gun from North-shore Video, the store where he worked, drove to a trailer where Connie Gomez and Dwayne Ramdhanny were finishing a meal, and knocked on the door. When Gomez and Ramdhanny opened the door, appellant fired a shot that hit Ramdhanny in the face after traveling through Gomez’s hand, which was outstretched because Gomez attempted to intervene. Ramdhanny retreated into the trailer, where appellant followed him and shot him several more times. Gomez ran to the bathroom, closed the door, and hid in the shower. Appellant stood at the bathroom door, fired the remaining bullets from the gun, and left the trailer. Ramdhanny’s injuries were fatal, but Gomez survived.

Attorney-Client Privilege

In his first issue, appellant argues the trial court .erroneously allowed an attorney, Peter Heckler, to pierce the attorney-client privilege during the guilt stage of trial by testifying that appellant asked him to conceal the murder weapon. Peter Heckler was the attorney of record for Northshore Video, where appellant worked, and the owner of the gun kept at the store. Heckler testified that appellant sought legal advice and possible representation following the murder. Heckler explained to appellant that if his gun was the murder weapon, he could not represent appellant. Heckler testified that appellant asked him not to turn the gun over to the police, which Heckler ultimately did. Pri- or to Heckler’s testimony before the jury, the court held a hearing outside the presence of the jury to “give some guidance to the lawyers trying the case as to what type of evidence will be admissible.” At that time, appellant argued Heckler’s testimony was a violation of the attorney-client privilege. The trial court stated appellant’s “objection [was] well taken,” but ruled the evidence was admissible. When Heckler testified before the jury, appellant failed to pursue his objection.

Initially, we address the State’s preservation argument. The State contends appellant failed to preserve error by not pursuing his objection before the jury. To properly preserve error for appellate review, the complaining party must make a timely, specific objection. Tex.R.App. P. 33.1(a). However, when the court hears and overrules objections to evidence outside the jury’s presence, those objections need not be repeated when the evidence is actually presented to the jury in order to preserve error. Tex.R. Evid. 103(a); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991). Therefore, by making an objection outside the presence of the jury, appellant preserved error.

Appellant contends his conversation with Heckler is protected by the attorney-client privilege. See Tex.R. Evid. 503. Invocation of the privilege depends on the existence of an attorney-client relationship, which has been defined as a contractual relationship where an attorney agrees to render professional services for a client. State v. Martinez, 116 S.W.3d 385, 392 (Tex.App.-El Paso 2003, no pet.); Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, 105 S.W.3d 244, 254 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). The relationship may be expressly created by contract, or it may be implied from the actions of the parties. Martinez, 116 S.W.3d at 392. Texas Rule of Evidence 503 protects confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. Tex.R. Evid. 503(b)(1); Huie v. DeShazo, 922 S.W.2d 920, 922 (Tex.1996).

Here, the evidence does not conclusively establish an attorney-client relationship between Heckler and appellant. While appellant sought representation from Heckler, Heckler testified that he told appellant he could not represent him if Heckler’s gun from the video store was used to commit the crime because Heckler could be called as a fact witness. After speaking with appellant over the telephone, Heckler went to the store, picked up the gun, and stored it in a safe place. Ultimately, Heckler turned the gun over to the police. Heckler also testified about a videotape security system in the store. He stated that appellant had asked him to destroy the video from the day of the murder. Heckler testified that the video that day could not be found. Heckler’s testimony does not support a finding that an attorney-client relationship existed. Because no relationship was established, the trial court did not abuse its discretion in admitting Heckler’s testimony. See Jackson v. State, 516 S.W.2d 167, 175 (Tex.Crim.App.1974) (when a fact issue is raised with regard to attorney-client privilege, it is within trial court’s discretion to determine whether attorney-client relationship existed). Appellant’s first issue is overruled.

Improper Jury Argument

In his second issue, appellant argues the trial court erred by overruling appellant’s objections to improper jury argument portraying appellant as a member of a racist group who committed a hate crime. Appellant complains of the following argument made by the prosecutor in the punishment phase:

THE STATE: But you can’t live in this world and not recognize that there are a group of people who are taking that label, “Southern good ol’ boys,” and flashing it over a big Confederate flag and meaning something, whatever they wanted that expression to mean.
DEFENSE COUNSEL: If it please the Court, this is not supported by any of the evidence. We object to the form of the argument, Your Honor.
THE COURT: Overruled.
THE STATE: You can say to yourself that it’s a coindence (sic) that the victim in this case was an African-American man. If the shooter comes over there with the shaved head and flag on his shoulder, you can think that’s a coincidence if you want to, but I submit to you it is no coincidence. What happens in this case is that that man was hanging out at the house behind that trailer and went over there and shot himself a black man and probably had an audience when he did it. Don’t you know all those other kids over there with the Southern boys’ tattoos and skinheads were standing over there cheering him on? Don’t you know they were? I have no doubt.
DEFENSE COUNSEL: If it please the Court, there’s no evidence to support any of that testimony at all. I object.
THE COURT: Overruled.

Appellant contends the State’s argument was improper because there was no evidence that (1) appellant behaved toward anyone in a racist manner or (2) appellant was cheered by an audience when the shooting occurred. Proper jury argument must fall into one of four general categories: (1) summation of the evidence, (2) reasonable deduction from the evidence, (8) answers to argument of opposing counsel, or (4) pleas for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App.1999). The prosecutor may draw all reasonable inferences from the facts in evidence that are “reasonable, fair, and legitimate.” Allridge v. State, 762 S.W.2d 146, 156 (Tex.Crim.App.1988). The purpose of closing argument is to assimilate the evidence to assist the fact-finder in drawing proper conclusions from the evidence. Gaddis v. State, 753 S.W.2d 396, 400 (Tex.Crim.App.1988). The jury is then free to accept or reject such conclusions and inferences. Id. Counsel is afforded virtually unlimited latitude in this regard as long as the argument is supported by the evidence and made in good faith. Porter v. State, 832 S.W.2d 383, 386 (Tex.App.-Houston [1st Dist.] 1992, no pet.). Conversely, a prosecutor may not use closing argument to get evidence before the jury that is outside the record and prejudicial to the accused. Everett v. State, 707 S.W.2d 638, 641 (Tex.Crim.App.1986).

The first statement by the prosecutor was a reasonable deduction from the evidence and an answer to opposing counsel’s argument. During the punishment phase of trial, appellant’s pastor, Mike Martin, testified that he had heard appellant described as a racist/skinhead type of person during the guilt/innocence phase of trial. Martin went on to express his opinion that appellant was not a racist. Following Martin’s testimony, the prosecutor requested that the jury be permitted to see appellant’s tattoo, which was described as a swastika. The record does not specifically state whether the jury saw the tattoo at that moment, but defense counsel’s argument leads to the conclusion that the jury saw the tattoo prior to the State’s argument. During his argument, defense counsel stated:

[B]y the way, the only thing we know about [appellant] — that is, brought to you from the witness stand or shown to you — is that he’s got the tattoo on his shoulder. Some of you might be offended by that type of tattoo. He says it’s from their tattoo shop. He testified about that his aunt’s tattoo shop. Loot [sic] of people are offended by tattoos, but that’s where we are.

A prosecuting attorney is entitled to call jurors’ attention to what the prosecutor and jurors were equally able to observe. Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App.1983). By calling the jury’s attention to appellant’s shaved head and his tattoo, the prosecutor made a reasonable deduction from the evidence.

The prosecutor’s argument was also a response to the defense attorney’s argument during the punishment phase that this was appellant’s first offense and that the jury should assess probation as his sentence for murder. Defense counsel argued that, based on appellant’s “background, the way he was raised up, the way he interacted with Mr. Martin and others,” appellant was a good candidate for probation. The prosecutor argued that appellant’s family sought mercy from the jury, but the jury could not ignore the “Southern Boys’ attitude” and give appellant probation. The prosecutor’s argument that appellant was a member of a group that engaged in hatred to the degree that he would tattoo a symbol of that group on his shoulder was a permissible answer to appellant’s argument that the jury should be lenient with punishment. See Rische v. State, 834 S.W.2d 942, 949 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (prosecutor’s argument that jury should consider defendant’s character was proper response to defendant’s plea for the jury to assess probation).

With regard to whether appellant was cheered by an audience, the evidence does not support the prosecutor’s argument. Although there was evidence that several people lived in the trailer from time to time and that some of those people were actually in the trailer when the shooting took place, there is no evidence that this audience was cheering appellant as he shot and killed Ramdhanny. Therefore, the trial court erred in overruling appellant’s objection to that portion of the prosecutor’s argument.

Having found error, we must determine whether the error warrants reversal. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998). A non-constitutional error does not require reversal of the judgment unless it affected substantial rights by having a substantial and injurious effect or influence in determining the jury’s verdict. Tex.R.App. P. 44.2(b); Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App.2005). Substantial rights are not affected if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury or had but a slight effect. Guevara v. State, 152 S.W.3d 45, 53 (Tex.Crim.App.2004). In assessing the likely effect of improper jury argument in the punishment phase, we consider: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the same punishment being assessed without the misconduct. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004).

There were no curative measures taken here because the trial court overruled appellant’s objection. Thus, the second factor weighs in appellant’s favor. The first and third factors, however, weigh against a finding of harm. The evidence showed that appellant chased Gomez and Ram-dhanny into the trailer, murdered Ram-dhanny in cold blood, and fired the gun at Gomez until he ran out of bullets. Appellant, at trial, attempted to blame an unknown person for the crime and stated that all the witnesses who testified against him, including Gomez, were not telling the truth. The prosecutor’s comment that others were cheering appellant while he was shooting the victims likely did not have much prejudicial effect on appellant’s punishment given the evidence against him. Therefore, the first factor does not weigh in favor of finding harm. Similarly, the third factor weighs in the State’s favor as it is unlikely the jury considered whether appellant was cheered by onlookers in punishing him for his conduct.

After balancing the appropriate factors, we find the argument that others were cheering appellant was harmless. Appellant’s second issue is overruled.

The judgment of the trial court is affirmed.

EDELMAN J., dissenting.

RICHARD H. EDELMAN, Justice,

dissenting.

I disagree with two aspects of the majority opinion. The first is its conclusion that the State’s punishment phase closing argument, describing appellant’s tattoo, was a reasonable deduction from the evidence:

But you can’t live in this world and not recognize that there are a group of people who are taking that label, “Southern good ol’ boys,” and flashing it over a big Confederate flag and meaning something, whatever they wanted that expression to mean....
You can say to yourself that it’s a coin-dence [sic] that the victim in this case was an African-American man. If the shooter comes over there with the shaved head and flag on his shoulder, you can think that’s a coincidence if you want to, but I submit to you it is no coincidence. What happens in this case is that that man was hanging out at that house behind that trailer and went over there and shot himself a black man and probably had an audience when he did it. Don’t you know all those other kids over there with the Southern boys’ tattoos and skinheads were standing over there cheering him on? Don’t you know they were? I have no doubt.

(emphasis added). Although this closing argument described appellant’s tattoo as being a flag on his shoulder and having the label, “Southern good ‘ol boys” over a big Confederate flag, the record contains no testimony, photo, exhibit, or any other evidence providing any image or description whatever of his tattoo’s appearance.

The majority opinion concludes that the argument was nevertheless a reasonable deduction of the evidence because the jury saw the tattoo. Whether the jury actually saw the tattoo is not clear from the record. However, even if they did, this court cannot see the tattoo, and we have no evidence showing or describing it with which to independently and objectively determine whether the State’s argument is a reasonable deduction from what the jury saw, if anything.

Despite this, the majority also relies on statements the prosecutor and defense counsel made during arguments as reflecting that the State’s argument was a reasonable deduction from the evidence. Apart from the fact that even the prosecutor’s own statements describing the tattoo were in fundamental conflict regarding its appearance, the obvious fallacies of this approach are that: (1) it uses argument to bootstrap the existence and content of information that was not in evidence with which to then determine the validity of other argument as if the information was in evidence; (2) it purports to perform a correct and meaningful appellate review of whether the argument was a reasonable deduction from any actual evidence while instead abandoning our responsibility to do so; and (3) it concludes, in effect, that “evidence” can exist for appellate purposes even though it is outside the record (and possibly non-existent), and (incredibly) that appeals courts may speculate on what such non-evidence might show, even without any actual basis from outside the record from which any such conclusion could reasonably be drawn.

I further disagree with the majority opinion in that, even if the evidence properly reflected that appellant had a swastika or Confederate flag tattoo (as well as a shaved head, which the evidence does reflect), there is no evidence that appellant ever behaved in a racially derogatory manner of any kind or otherwise that this murder was in any way racially motivated. It does not follow logically that, because a person has a shaved head and tattoo, he wants to kill African-Americans. Yet there is nothing else in our record to support a causal connection between the murder and a racist motive other than appellant’s appearance and the victim’s ethnicity. Therefore, rather than being a reasonable deduction from any evidence, the State’s argument of racial motivation was merely an invitation to use highly-charged emotional indignation, combined with stereotypical assumptions, as a substitute for actual evidence.

With regard to harm, appellant had no prior felony convictions, and the range of punishment was extremely wide, from community supervision to life imprisonment. The evidence showed that the murder was committed in a brutal and premeditated manner. However, depending on the perspectives of the jurors, the perceived motive for the murder (as between racial hatred and jealousy regarding a woman, which the evidence did support) could have had a material influence on the length of sentence imposed, particularly in that the sentencing verdict required a unanimous decision of the jury. The racial motivation contention was a central part of the State’s punishment argument, and, in addition to the portions of the punishment argument complained of, the prosecutor further emphasized:

But you all know what Danny Mixon did, and the rest of them will have to deal with that reality: the Southern boy’s attitude, this kind of South. I grew up in the South. I married a Southern boy. I come from a long line of good ‘ol boys and I’m trying to raise one.

In overruling appellant’s objections that this racial motivation was not supported by evidence, the trial court not only failed to take curative measures, it affirmatively compounded the error by telling the jury, in effect, that this motive was, in fact, supported by evidence. In light of these considerations, it would be purely speculative to conclude that the jury would have imposed the maximum life sentence without the error.

In conclusion, rather than serving our most vital function to preserve the integrity of the justice system, endorsing the State’s argument in this case invites abuse and, in turn, unjust decisions. I would therefore sustain appéllant’s second issue, reverse the judgment as to punishment, and remand that portion of the case to the trial court for further proceedings.

      . The prosecutor described appellant’s tattoo as a swastika in a bench conference outside the hearing of the jury; but the only testimony regarding appellant's tattoo sought, but failed, to show that it was a confederate flag, not a swastika; and the prosecutor stated during argument that it was a Confederate flag.

      . See, e.g., Jack v. State, 149 S.W.3d 119, 121 n. 1 (Tex.Crim.App.2004) (noting that an appellate court may not consider factual assertions that are outside the record).


author: Justice CARTER.

text:
    Jimmy Dee WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00100-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 19, 2005.
    Decided Nov. 3, 2005.

      Clifton L. “Scrappy” Holmes, L. Charles Van Cleef, Holmes and Moore, Longview, for appellant.
    Charles Parker, Asst. Dist. Atty., Sul-phur Springs, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Jimmy Dee Wilson was convicted of murder for killing Butch Monday, the husband of the woman with whom Wilson had been having an affair for at least five years. Wilson was sentenced to sixty years’ imprisonment. On appeal, he complains of various statements made by the State during closing arguments and the trial court’s rulings on Wilson’s objections to such statements; failure of the court to exclude witness testimony; the sufficiency of the evidence; the trial court’s charge to the jury; and the admission of evidence of bad acts or extraneous offenses. We affirm.

I. FACTUAL BACKGROUND

Wilson had been having an affair with Terri Monday for, in his estimation, seven years; in hers, five. Terri was experiencing problems with her husband, Butch, whom Terri said, “wasn’t there emotionally.” At first, Wilson and Terri tried to keep their affair secret from Butch, but within a year or two, he became aware of it; from that point, Wilson and Terri did not attempt to keep their relationship secret from Butch, and there were numerous instances of cross words and aggressive behavior between Wilson and Butch. Terri also testified that Wilson, on several occasions, talked about what their life would be like were Butch not “in the picture.” There was some evidence Wilson coveted Butch’s income-generating chicken houses. Terri also said Wilson wanted a job driving a truck for Terri’s father’s company.

On August 25, 2003, Terri was at Wilson’s home in Hopkins County. As he had many times in the past, Butch arrived and parked his truck in front of Wilson’s house, and Terri went out to talk to Butch. Butch had been drinking beer (his autopsy showed a blood alcohol content of 0.12). Although Terri testified explicitly that Butch had never struck her or been physically abusive, on this date, Butch grabbed her, threw her to the ground, kicked her, slapped her, called her a whore, and pushed her, and Terri struck her eye on the mirror of her car.

Observing this, Wilson made a 9-1-1 call to local law enforcement. He had made calls to report Butch as trespassing on previous occasions. According to Wilson, he stood in front of a window watching Butch assault Terri. Wilson said he feared for his safety and that of Terri, and held a shotgun. Terri testified that, despite Butch’s pushing and kicking her, and abusive language toward her, she did not fear for her safety. Butch, still outside Wilson’s house, approached a window to Wilson’s bedroom, through which Wilson was watching Butch. Wilson testified Butch came to the window and slapped the window or frame, and shouted “Boo.” Wilson claimed the shotgun accidentally discharged when Butch startled him. Butch was found on the ground beneath the window in a large pool of blood. Wilson’s shotgun discharged through the window and screen, and caused a fatal wound in Butch’s neck.

II. STATE’S ARGUMENT — REQUIREMENTS OF SUDDEN PASSION

In Wilson’s first point of error, he complains the trial court erred in failing to sustain an objection Wilson made to the State’s closing argument at the punishment stage of Wilson’s trial. Wilson claims that, because of such alleged error, the State was able to misstate the law on the issue of sudden passion. Wilson also claims this purported misstatement by the State was contrary to the law set forth in the trial court’s charge. Regarding his claimed punishment defense of sudden passion, the jury was required to find, by a preponderance of the evidence, whether Wilson killed Butch while under a “passion directly caused by and arising out of provocation” from Butch or another acting with him, and said passion arose “at the time of the offense and [was] not solely the result of former provocation.” See Tex. Pen. Code Ann. § 19.02(a)(2) (Vernon 2003).

During the State’s closing argument at punishment, the State drew objections by saying that, in considering the issue of whether Wilson had acted under “sudden passion,” such a finding must be based on intentional or knowing acts, and not merely accidental.

In Wilson’s brief, after providing background information on the availability of the sudden passion issue as mitigation at the punishment phase, he asserts, “[t]he argument was incorrect and a statement of law contrary to the court’s charge which is recognized as error.” Wilson provides no authority or analysis for this point.

Wilson appears to complain the State misstated the law and the court’s charge by arguing that any finding of sudden passion had to be found by the jury to be intentional or knowing, and could not be accidental. As the Texas Court of Criminal Appeals has stated, with “sudden passion as a punishment issue, the defendant’s intent to kill has already been affirmatively resolved by the jury and is no longer relevant. Since the defendant killed intentionally, the issue at punishment is whether he did so in sudden passion.” Trevino v. State, 100 S.W.3d 232, 240 (Tex.Crim.App.2003).

The portion of the court’s charge relative to this issue contained the definitions of “adequate cause” and “sudden passion” provided in the Texas Penal Code.

As in Trevino, when Wilson was convicted of murder, the issue of his intent to kill Butch was finally resolved. The jury, having already found the defendant acted intentionally and knowingly, that issue was resolved and, therefore, it was irrelevant at the punishment stage. Id. However, there was no objection the argument was irrelevant. The objection was “that is a misstatement of the law ... and that there is nothing in the charge that requires an intentional and knowing act when acting in sudden passion.” During the proceeding, the State correctly stated that sudden passion is only submitted to a jury “because there’s a finding that it was intentional and knowing.” The jury had resolved the matter of intent at the guilt/innocence phase; there was no matter of intent before it during the punishment phase.

Even if the argument was irrelevant and if a proper objection had accompanied the argument, it could not be harmful to Wilson because the issue of Wilson’s acting intentionally and knowingly was already established. See id.; see also Tex. R.App. P. 44.2.

III. STATE’S ARGUMENT ASKING JURY TO SEND A MESSAGE

Wilson complains about the State’s plea, in closing argument at punishment, that the jury send a message to the community. Prosecutorial jury argument is permissible if it falls within one of the following categories: (1) summation of the evidence; (2) reasonable deduction drawn from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App.1996); Albiar v. State, 739 S.W.2d 360, 362 (Tex.Crim.App.1987).

It is proper for a prosecutor to ask the jury to send a message that the community will not tolerate violence. McGee v. State, 774 S.W.2d 229, 240 (Tex.Crim.App.1989). However, a prosecutor may not make an appeal based on unproven sentiments of the community. See Pennington v. State, 171 Tex.Crim. 130, 345 S.W.2d 527, 528-29 (1961). A prosecutorial argument is improper if it induces the jury to reach a particular verdict based on the demands, desires, or expectations of the community. Cortez v. State, 683 S.W.2d 419, 421 (Tex.Crim.App.1984). (“Now, the only punishment that you can assess that would be any satisfaction at all to the people of this county would be life” held to be improper argument). As the Cortez court said, an argument from the State is acceptable if it asks “the jury to be the voice of the community,” but not if it asks “the jury to lend its ear to the community.” Id.

Wilson complains of the following argument by the State’s attorney: “You [twelve] get to decide, here in Hopkins County, what happens when you kill somebody under these circumstances.” The State, following Wilson’s overruled objection, stated, “Of course you’re going to send a message,” and then finally, “And we cannot forget the community as a whole, even though they want you to.”

The State’s argument was not improper. Wilson had been convicted, and the issue before the jury at the time of the complained-of arguments was punishment. As stated above, a plea for law enforcement may include an argument to send a message that violations of law will be punished appropriately. The State asked the jury to send a message on behalf of the members of Hopkins County, stating how violent criminals would be punished in that community. The State was not asking the jury to “lend its ear. to the community,” but rather to be the voice of the community. See Cortez, 683 S.W.2d at 421. Finding no merit to this point, we overrule it.

IV. FAILURE TO EXCLUDE WITNESSES

Wilson complains that the State’s two punishment witnesses had been in the courtroom during the guilVinnocence phase, and despite the trial court’s implementation of Tex.R. Evid. 614 at the start of trial, these two witnesses were allowed to testify during the punishment phase.

The sequestration rule is no longer discretionary with the trial court. Moore v. State, 882 S.W.2d 844, 848 (Tex.Crim.App.1994). However, if error is shown, it is a violation of an evidentiary rule, is nonconstitutional, and will be disregarded unless it affected the appellant’s substantial right. Tex.R.App. P. 44.2(b).

Shirley Ballard, Terri’s mother, testified for the State at punishment. She testified favorably about Butch’s character and the difficulties and pain his death had brought into Ballard’s life. Morgan Warren, daughter of Butch and Terri, was the other punishment witness for the State. She testified Butch was a good father and provider. Wilson was also allowed to proffer testimony from a witness who had sat through the guilVinnocence phase: his thirteen-year-old daughter, who said that, the day before her testimony, a cousin had died; and combined with her father’s conviction, she had endured two tragedies in the past day. The child told the jury she needed her father.

Article 36.03 of the Texas Code of Criminal Procedure provides that a trial court may exclude a close relative of the deceased victim from the courtroom only if the court determines that the testimony of the witness would be materially affected if the witness hears other testimony at trial. Tex.Code Crim. Proc. Ann. art. 36.03 (Vernon Supp.2005). Warren was the daughter of the deceased and qualified as a “close relative of a deceased victim.” The trial court was without authority to exclude Warren unless the court determined her testimony would be materially affected if she heard the other testimony at the trial. Id. No such showing was presented to the trial court.

Ballard was the mother-in-law of the deceased. Traditionally, determining harm or prejudice by the witness’ violation of Tex.R. Evid. 614 is based on whether the witness’ presence during other testimony resulted in harm to the defendant. Webb v. State, 766 S.W.2d 236, 240 (Tex.Crim.App.1989); Guerra v. State, 771 S.W.2d 453, 474-75 (Tex.Crim.App.1988). Injury to the defendant is shown when two criteria are met: (a) whether the witness actually conferred with or heard testimony of other witnesses, and (b) whether the witness’ testimony contradicted testimony of a witness from the opposing side or corroborated testimony of a witness with whom he or she had conferred or heard. Webb, 766 S.W.2d at 240.

Wilson complains that the two State’s punishment witnesses testified to Butch’s “lack of violent tendencies, hardworking nature, and several other facts that were part of the guilt-innocence testimony. Further, they were allowed to testify about victim-impact.”

Wilson provides no evidence Ballard conferred with other witnesses. Nor does he offer evidence, and we can find none, that Ballard’s brief testimony contradicted any testimony offered by Wilson. While it can be said that, to an extent, Ballard’s testimony was a favorable characterization of Butch and corroborated the testimony of Terri, there is no evidence any of this actually harmed Wilson. It has been held that there will seldom be harmful error where a witness who remained in the courtroom during guilt/innocence testifies at punishment. Upton v. State, 894 S.W.2d 426, 428 (Tex.App.-Amarillo 1995, pet. ref'd). Even if Ballard should have been excluded from hearing the testimony of the other witnesses, we find any such violation of Tex.R. Evid. 614 did not affect Wilson’s substantial rights and should be disregarded. See Russell v. State, 155 S.W.3d 176, 181 (Tex.Crim.App.2005). This point is overruled.

V. STATE’S GUILT/INNOCENCE ARGUMENT-MENTIONING PUNISHMENT

Wilson claims the State made an improper statement during its rebuttal argument at the close of the guilt/innocence phase of the trial. At the end of its final closing argument, the State said, “Find him guilty. He is guilty. And we’ll determine what his punishment ought to be later.” Wilson objected; the trial court instructed the jury to disregard the State’s comment, and then denied Wilson’s request for a mistrial.

First, we point out that, in the State’s first portion of its argument, the State ended its argument with “the Defendant is guilty of murder. And we’ll deal with what ought to happen about that later on.” Wilson did not object to this argument, which is very similar to the one complained of—it requests the jury to find the defendant guilty and suggests another process will.occur afterward to determine “what ought to happen about that later on.” To preserve a complaint about improper jury argument, a defendant must object each time the impermissible argument is made, or the complaint is waived. See Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991).

However, even if the State’s remark was improper, the jury was instructed by the trial court to disregard it. We have previously discussed in this opinion the four permissible areas of jury argument. Should the argument be found to have been improper, we examine for harm, balancing three factors: 1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s argument); 2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the court); and 3) the certainty of conviction absent the misconduct (strength of the evidence supporting the conviction). See Tex.R.App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998). We will examine these factors.

(1) The severity of the misconduct. Wilson cites cases stating that punishment should not be discussed until the punishment hearing, including Garcia v. State, 887 S.W.2d 862, 877 (Tex.Crim.App.1994). In Garcia, the defense attorney told the jury that, if it convicted the defendant, “they want you to kill him.” In McClure v. State, 544 S.W.2d 390, 391 (Tex.Crim.App.1976), the State advised the jury, “You know the most you can get for involuntary manslaughter is twenty years” and in Bruton v. State, 921 S.W.2d 531, 535 (Tex.App.-Fort Worth 1996, pet. ref'd), the attorney argued that “aggravated robbery is a first degree felony. Robbery is a second degree felony.” Courts have found such arguments improper because they encourage' the jury to convict on the basis of the amount of punishment rather than on the facts supporting guilt. Id. at 536. None of the egregious conduct in the cited cases is present. We conclude that the brief mention of punishment was not severe misconduct in this instance.

(2) Measures adopted to cure the misconduct. Here, the trial court promptly sustained the objection and instructed the jury to disregard the statement and not consider it for any purpose. The jury is presumed to follow instructions, and the efficacy of the trial court’s instruction to disregard is likewise presumed. See Livingston v. State, 739 S.W.2d 311 (Tex.Crim.App.1987); Carter v. State, 614 S.W.2d 821 (Tex.Crim.App. [Panel Op.] 1981) (an instruction to disregard normally cures error, except in extreme cases where it appears that the evidence 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 the jurors’ minds).

(3). Certainty of the conviction without the misconduct. We address the legal and factual sufficiency of the evidence in another point and have determined there is ample evidence to convict. There was no dispute Wilson shot and killed Monday. The evidence discussed in the sufficiency points shows that the State’s case was strong. This brief reference by the State to the issue of punishment was a small, unnecessary particle of refuse in a sea of incriminating evidence.

We overrule this point of error.

VI. SUFFICIENCY OF THE EVIDENCE

Wilson claims the evidence was legally and factually insufficient to support his conviction.

A. Legal Sufficiency

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This calls on the reviewing court to view the relevant evidence in the light most favorable' to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).

Wilson did not deny shooting Butch with a firearm and causing his death. At trial, Wilson raised self-defense as a defensive theory. There was substantial evidence contrary to this position. About a month before the shooting, Wilson told a police officer who was responding to a trespass by Butch on Wilson’s property, that Wilson would kill Butch the next time he came on Wilson’s property and that the officer should bring a body bag. Investigator Jim Wright with the Hopkins County Sheriffs Office testified that the scene indicated a shot was fired in a downward direction from Wilson’s house out a window and that the measurements did not “add up” with Wilson’s explanation he had had the rifle on his hip. Wright said the gun would have had to have been held at a higher angle, held at the shoulder, to travel through the window and hit Butch where he was shot. Wilson told Wright at the scene both doors to the house were locked during the episode. Butch presented no immediate threat to Wilson, according to Wright; Butch, approximately 236 pounds, would have had to have climbed through a window to get to Wilson. The medical examiner testified the shot went downward, front to back, and in a slightly left to right direction. Texas Ranger Philip Kemp also said Wilson told him he had the gun with the stock held by his hip; Kemp said this positioning of the rifle was not consistent with the scene — the condition of the window screen, the broken window glass, and the window. Terri testified she had heard Wilson say he would kill Butch more than twenty times; on ten occasions, Wilson told her that, if Butch was not in the picture, she would not have to divorce or share her half of the community property; Wilson could put his horses on her land; and he could get a job with her father’s trucking business. Terri said that, on numerous occasions, Butch would come to Wilson’s door; Wilson “always” got his shotgun and told Terri if Butch came in the house, he would shoot Butch; Terri said Wilson did not appear to be afraid of Butch. On a prior occasion, Wilson went to Butch’s chicken house, where Wilson brandished or displayed a pistol and told Butch that, if Wilson could not have Terri, no one would. On another occasion, when Terri was at Wilson’s house, Butch knocked on the door and asked both Terri and Wilson to come out and talk. Wilson got the shotgun and pointed it at the door, and Terri stood at the door to prevent Wilson from shooting. Wilson got mad at Terri and told her that, if Butch would have come through the door, “[Wilson] could have shot him, and it would have been over.”

A rational trier of fact could have found all the essential elements of the crime of murder beyond a reasonable doubt. We deny the legal sufficiency point of error.

B. Factual Sufficiency

In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Crim.App.2004)).

Wilson’s argument is that “the only evidence before the jury was that Appellant was afraid for himself and Mrs. Monday’s fives, and that Mr. Monday caused the circumstances that resulted in his death.” However, there was evidence that Butch harassed Wilson, that Wilson had made threats to and about Butch and that Wilson coveted Butch’s property and wanted to work for Terri’s father. Wilson testified that he was afraid of Butch; that he felt Butch had seriously or was about to seriously hurt Terri; and that, on one occasion, Wilson had spoken to Butch with a .40 Glock pistol on Wilson’s lap, which he denied pointing at Butch. Wilson maintained that, when Butch approached Wilson’s window, Butch slapped the window and said, “Boo,” which scared Wilson, and the shotgun accidentally went off. All óf the evidence discussed above is sufficient for a rational jury to find that Wilson intended to kill Butch; and the evidence was neither too weak to support the finding of guilt beyond a reasonable doubt, nor was there evidence contrary to the verdict so strong as to preclude the beyond-a-reasonable-doubt standard having been met. The evidence is factually sufficient to support Wilson’s conviction. We overrule this point.

VII. ADEQUACY OF COURT’S CHARGE ON APPARENT DANGER

Wilson claims the trial court erred in failing to instruct the jury on the doctrine of apparent danger. Wilson made written requests for jury charge instructions, one of which would have contained language that a person “has a right to defend his life and person from apparent danger.... ” The trial court refused this proposed language; the charge given the jury included an instruction on self-defense and contained definitions of “reasonable belief,” “deadly force,” and an instruction on when a person is justified in using deadly force.

In Valentine v. State, 587 S.W.2d 399, 401 (Tex.Crim.App. [Panel Op.] 1979), the Texas Court of Criminal Appeals held that the concept of apparent danger was properly presented to the jury where the charge instructed that the defendant’s conduct would be justified if he reasonably believed that the deceased was using or attempting to use unlawful deadly force against the defendant at the time of the shooting. Id. The court also defined the term “reasonable belief.” In Valentine, the Texas Court of Criminal Appeals held that, by defining the term “reasonable belief’ as it did, the court instructed the jury that a reasonable apprehension of danger, whether it be actual or apparent, is all that is required before one is entitled to exercise the right' of self-defense against his or her adversary. Id.

The jury was adequately charged in the applicable law and was able to consider the conduct of both Wilson and Butch. This point is overruled.

VIII. EXTRANEOUS OFFENSES/BAD ACTS

Wilson complains of the admission of testimony or evidence concerning the following bad acts: that he committed telephone harassment; sold his prescription Vicodin to Terri; carried a handgun in histruck; “flipped off’ children; and fraudulently received worker’s compensation benefits, though able to work.

A. Telephone Harassment

After the first question concerning the subject of telephone harassment was asked, a hearing was held outside the presence of the jury and the trial court sustained Wilson’s objection to that line of questioning, and instructed the jury to disregard the previous question on the subject. The jury is presumed to have followed the trial court’s instructions. Livingston, 739 S.W.2d 311; Carter, 614 S.W.2d 821. Wilson did not request a mistrial. He has thus failed to preserve error as to this matter.

B. Drug Sales

During the State’s direct examination of Terri, the State asked why, at the time of Butch’s death, she had been considering leaving him for Wilson. Terri answered, “Jimmy was selling me Vicodin for about three years.” Wilson lodged no objection, and the State did not pursue the subject; rather, the State turned its line of questioning to the nature of the relationship between Terri and Wilson. During Wilson’s case-in-chief, he presented a medical doctor who testified about Wilson’s colon surgery and resultant physical fragility regarding any direct blow to his abdomen, which could lead to such consequential injuries as a ruptured small intestine, bleeding, or injury to his spleen. On cross-examination, the State questioned this physician about a patient who was prescribed Vicodin as pain medication and then sold that medication to another person. The trial court sustained Wilson’s objections to this line of testimony. In the State’s rebuttal case, Terri again testified, at length, about her dependence on Vico-din, which she contended was encouraged and fostered by Wilson continuing to give or sell her the pain medication.

In his brief, Wilson asserts the State failed to respond to Wilson’s timely request for notification of bad acts or crimes the State would attempt to adduce in its case-in-chief. From our review of the record, the State does not appear to have supplied any formal notice of such evidence. However, Wilson made no objection to Terri’s mention of Vicodin sales, and the State did not pursue that topic in its case-in-chief. The State did not specifically ask Terri about drug sales from Wilson and did not seek to expand this issue, injected by Terri, in front of the jury until cross-examination of Wilson’s witness, during the defense’s case-in-chief and the State’s rebuttal case. A defendant is only entitled to pretrial notice of extraneous offenses or bad acts which the State would offer in its case-in-chief, not any the State may adduce in cross-examination of defense witnesses, or in the State’s rebuttal case. Jaubert v. State, 74 S.W.3d 1, 4 (Tex.Crim.App.2002).

The trial court sustained Wilson’s objections to the State’s implications, cross-examining Wilson’s medical doctor, that Wilson sold his pain medication. However, in the State’s case in rebuttal, the trial court, over Wilson’s running objection, allowed the State to question Terri extensively about Wilson giving, then selling, her his prescription pain medication, Vicodin. Terri testified she grew ehemi-eally dependent on the pills, sometimes taking as many as five a day. She testified that sometimes Wilson would fill a prescription and she would immediately buy all of the pills from him. She testified that, on other occasions, Wilson would only sell her three or four pills at a time, in order to make her come see him more often. When she told him she wanted to go to a rehabilitation facility to end her dependence, Wilson began giving, rather than selling, her the pills.

Wilson complains on appeal, as he did before the trial court, that this testimony constitutes evidence of bad acts whose prejudicial value substantially outweighs any probative value the evidence might have. See Tex.R. Evid. 403, 404(b). Trial courts are required to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 392 (Tex.Crim.App.1990) (op. on reh’g). In making this determination, the trial court should “consider the inherent tendency that some evidence may have to encourage resolution of material issues on an inappropriate basis and should balance carefully against it the host of factors affecting probativeness, including relative weight of the evidence and the degree to which its proponent might be disadvantaged without it.” Fuller v. State, 829 S.W.2d 191, 206 (Tex.Crim.App.1992).

A trial court’s decision in balancing these factors is reviewed under the abuse of discretion standard and is disturbed on appeal only when the trial court’s decision falls outside the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391-92.

Here, there was significant danger of Wilson being prejudiced by testimony he sold drugs to Terri and used these drugs to manipulate and control her. The evidence has great potential to impress the jury in some irrational but nevertheless indelible way. See Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App.2000). The State’s proffered reasons to the trial court for the admission of this line of testimony were a) that Wilson’s injuries to his back were not as severe as he had asserted in his testimony and b) that Terri was unable to resist Wilson and therefore cease her relationship with him, where he prompted her to become dependent on a prescription medication, then continued to supply her with that medication.

We find that any probative value in this line of testimony, allegedly to impeach a defensive theory, is substantially outweighed by the likely prejudicial effect. The extent of any back pain suffered by Wilson was not a fact of consequence and did not bear directly on the issue of whether he shot Butch intentionally, in self-defense, or accidentally. Likewise, the extent of any manipulation or control exerted by Wilson over Terri was not directly relevant to the ultimate issues of the trial, and the prejudicial value of this testimony substantially outweighs any probative value. Further, this evidence was not necessary for the State to prove or disprove a fact of consequence. We find it was error to allow the State to pursue this line of testimony.

We now turn to a harm analysis. In our review of nonconstitutional error, we are to disregard errors, defects, irregularities or variances that do not affect substantial rights of the accused. Tex.R.App. P. 44.2(b). A “substantial right” is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. Tex.R.App. P. 44 .2(b); King v. State, 953 S.W.2d 266 (Tex.Crim.App.1997). If, on the record as a whole, it appears the error “did not influence the jury, or had but a slight effect,” we must conclude that the error was not harmful and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

In order to properly conduct a harm analysis under Rule 44.2(b), we review the error as a type of “Other Errors,” and we must disregard the error unless it “affect[ed] [appellant’s] substantial rights.” Tex.R.App. P. 44.2(b). For claims of non-constitutional error, the Texas Court of Criminal Appeals has held that “a conviction should not be overturned unless, after examining the record as a whole, a court concludes that an error may have had ‘substantial influence’ on the outcome of the proceeding.” Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002). In other words, if we have “a grave doubt” that the result was free from the substantial influence of the error, then we must reverse. Id. The court has explained that “grave doubt” means that “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” Id. at 637-38 (citing O’Neal v. McAninch, 513 U.S. 432, 433-36, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)). Thus, “in cases of grave doubt as to harmlessness the petitioner must win.” Burnett, 88 S.W.3d at 638.

In considering harm, we must review the entire record to determine whether the error had more than a slight influence on the verdict. See King, 953 S.W.2d at 271 (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557, (1946)); Reeves v. State, 969 S.W.2d 471, 491 (Tex.App.-Waco 1998, pet. ref'd). If the court finds that the error did have more than a slight influence on the verdict, it must be concluded that the error affected the defendant’s substantial rights in such a way as to require a new trial. Reeves, 969 S.W.2d at 491. If the court has grave doubts about the error’s effect on the outcome, the case must be remanded for a new trial. Id. Otherwise, the court should disregard the error. Lopez v. State, 990 S.W.2d 770, 778 (Tex.App.-Austin 1999, no pet.); Reeves, 969 S.W.2d at 491.

We have previously summarized the evidence in this case. Wilson never denied shooting Butch; the only issue was whether Wilson shot him in self-defense, defense of a third person, or if the shooting was accidental. The jury was presented with testimony about the scene of the crime and the analysis of whether the scene coincided with Wilson’s statements that the shotgun discharged accidentally. Wilson testified, and the jury was able to judge his credibility and demeanor. Considering the entire record before us, we cannot say we have grave doubts.about the harmfulness .of this error on Wilson’s substantial rights. The ultimate issue of this case was whether the jury believed Wilson’s defenses of accident, self-defense, and defense of a third person. We find the error in admitting evidence of Wilson selling and giving prescription pain medication to Terri did not have a substantial influence on the outcome of the trial, and accordingly overrule this point of error.

C. Treatment of Terri’s Children

Terri testified Wilson would “cuss” and “flip ... off’ her children. A discussion at the bench followed; Wilson’s attorney said that, “if we’re going to get into prior bad acts — ... then we’ve got to object to that, Your Honor.” The State’s theory (at trial and on appeal) was that interaction between Wilson and the vie-tim’s family was inseparable from conduct between Wilson and the victim, and thus admissible under Tex.Code Crim. PROC. Ann. art. 38.36 (Vernon 2005). The trial court sustained Wilson’s objection and instructed the attorneys, “No, we shouldn’t get into that at this point, whatsoever. Okay.” The general rule for presenting a complaint for appellate review is a showing in the record (1) that the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of the complaint and (2) that the trial court ruled adversely (or refused to rule, despite objection). Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App.1999). To reach the level of an adverse ruling, if the objection is sustained, counsel must then ask for an instruction to disregard. If the instruction is given, counsel must then move for a mistrial. Nethery v. State, 692 S.W.2d 686, 701 (Tex.Crim.App.1985). It appears from the record the trial court sustained Wilson’s objection, and Wilson did not ask for an instruction to disregard or for a mistrial. Wilson has not preserved this complaint.

D. Carrying a Handgun

Regarding Wilson’s complaint that the trial court admitted evidence Wilson carried a handgun, we assume he refers to Terri’s testimony, related to her by Wilson, that on one occasion Wilson went to Butch’s chicken houses, brandished a pistol, and told Butch that, if Wilson could not have Terri, no one would. Wilson posed no objection to this testimony. Further, such conduct would clearly fall in the purview of Tex.Code CRIM. Proc. Ann. art. 38.36. No error is shown.

E. Worker’s Compensation Benefits

Wilson complains about the State eliciting testimony suggesting Wilson received workers compensation benefits from an injury in an oil field, yet continued to work as a truck driver or breaking horses. Wilson made no objections to this fine of testimony. No error was preserved.

Having found no merit in Wilson’s points of error, we affirm the trial court’s judgment.

      . “At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause.” Tex. Pen.Code Ann. § 19.02(d) (Vernon 2003).

      . See Tex. Pen.Code Ann. § 19.02(a) (Vernon 2003).

      . Mere reference to "the community” does not constitute an improper appeal to community expectations. Rodriguez v. State, 90 S.W.3d 340, 365 (Tex.App.-El Paso 2001, pet. ref’d). Other examples of arguments held proper: Goocher v. State, 633 S.W.2d 860, 864 (Tex.Crim.App. [Panel Op.] 1982) ("I am asking you to enforce it. I’m asking you to do what needs to be done to send these type of people a message to tell them we're not tolerating this type of behavior in our county.”); Barcenes v. State, 940 S.W.2d 739, 749 (Tex.App.-San Antonio 1997, pet. ref'd) ("You know, you’re here because you have been chosen by the community to make the decision, and that’s it.... [D]on’t send a message to the community that you're going to believe — .”); Caballero v. State, 919 S.W.2d 919, 924 (Tex.App.-Houston [14th Dist.] 1996, pet. ref d) ("Jurors are sick and tired of this. Jurors are tired of crime because jurors such as yourself are members of the community you represent. You represent the community.”).

      . Article 36.03(d)(1) of the Texas Code of Criminal Procedure defines "close relative of a deceased victim” as specified in Article 56.01. Tex.Code Crim. Proc. Ann. art. 56.01(a) (Vernon 2005). The child of the deceased victim is included in the definition.

      . Here, the trial court instructed that,, if the jury found Wilson was justified in using deadly force against Butch and a reasonable person would not have retreated; and when and to the degree Wilson reasonably believed the deadly force was immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force, then the jury should find him not guilty. A similar instruction was given to the jury concerning Wilson’s reasonable belief that, if the jury found he was justified in using deadly force to protect a third person from deadly force, then the jury should find him not guilty.

      . "Reasonable belief” was defined in Valentine as "a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.” Valentine, 587 S.W.2d at 401. In the instant case, the trial court defined "reasonable belief” as "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor,”

      . While the State might argue Wilson has waived this objection by failing to object when Terri first testified about the Vicodin under direct examination by the State in its case-in-chief (see Ethington, 819 S.W.2d at 858 (objecting party must continue to object each time inadmissible evidence is offered), that comment was arguably unanticipated by the State, as evidenced by the immediate change to a different topic. More importantly, while the State quickly abandoned the topic in its case-in-chief, twelve pages of testimony were spent in rebuttal delving into details of Wilson’s provision of the pills to Terri and her substantial dependency on them. This much more expansive coverage of this topic was clearly preserved by Wilson’s running objection.

      . "(a) In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.” Tex.Code Crim. Proc. Ann. art. 38.36.


author: JOHNSON, Judge.

text:
    Tiffanie EDWARDS, Appellant, v. Amanda CARLISLE; Shelter Insurance Companies; Wayne Lindle; and Becky Lindle, Appellees.
    No. 2003-CA-001366-MR.
    Court of Appeals of Kentucky.
    June 25, 2004.
    Discretionary Review Denied by Supreme Court Dec. 14, 2005.
    Kenneth L. Sales, Paul J. Kelley, Louisville, KY, for appellant.
    W. Mitchell Deep Jr., Henderson, KY, for appellee Shelter Insurance Companies.

      Before GUIDUGLI, JOHNSON and MINTON, Judges.
   OPINION

JOHNSON, Judge.

Tiffanie Edwards has appealed from an order of the Jefferson Circuit Court entered on June 19, 2003, which granted Shelter Insurance Companies’ motion for summary judgment, after determining that Edwards was not entitled to coverage under the underinsured motorist (UIM) provision of the policy issued by Shelter to Wayne and Becky Lindle, the parents of Edwards. Having concluded that there is no genuine issue as to any material fact, and that as a matter of law Edwards is not entitled to UIM benefits, we affirm.

On October 15, 1997, Edwards was driving southbound on Interstate-65 near Louisville, Kentucky, in a 1995 Ford Mustang. Although Edwards regularly used the vehicle, it was owned by her parents, Wayne and Becky Lindle. As an apparent act of horseplay, Amanda Carlisle, Edwards’s passenger, grabbed the steering wheel of the vehicle Edwards was driving. Carlisle’s actions caused the vehicle to go out of control and to strike the median wall of the interstate. As a result of this accident, Edwards sustained two fractured ankles and a fractured patella. At the time of the accident, Shelter provided insurance coverage on the 1995 Ford Mustang in a policy issued to Wayne and Becky Lindle. Carlisle was insured under a policy issued by Geico Insurance Company.

On October 5, 1999, Edwards filed a complaint against Carlisle in the Jefferson Circuit Court, seeking compensatory and punitive damages. On January 7, 2000, Shelter filed an intervening complaint for declaratory judgment, seeking a determination that Wayne and Becky Lindle, Edwards, and Carlisle were not entitled to coverage under the policy Shelter had issued to the Lindles. On February 21, 2000, the trial court entered an order dismissing Edwards’s claims against Carlisle based on a settlement that included Geico’s payment of its policy limits of $25,000.00 to Edwards.

On May 24, 2002, Shelter filed a motion for summary judgment, arguing that pursuant to the express terms of the policy issued to the Lindles, Edwards was not entitled to UIM benefits. On June 19, 2003, the trial court granted Shelter’s motion for summary judgment. This appeal followed.

Our standard of review of a summary judgment is well-settled. We must determine whether the trial eourt erred by concluding that there was no genuine issue as to any material fact and that the movant was entitled to a judgment as a matter of law. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In Paintsville Hospital Co. v. Rose, our Supreme Court stated that for summary judgment to be proper, the moving party must show that the adverse party cannot prevail under any circumstances. The Court has also held that “the proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.” Since factual findings are not at issue, we need not defer to the trial court. “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor” [citation omitted]. Finally, “a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.”

Edwards claims that the trial court erred by determining that she was not entitled to UIM benefits under the policy purchased by her parents from Shelter. We disagree and hold that pursuant to the express terms of the insurance policy in question, Edwards is not entitled to UIM benefits.

The construction and interpretation of an insurance policy is a question of law which is subject to de novo review on appeal. A court must give clear and unambiguous terms in an insurance policy their plain and ordinary meaning. In the case sub judice, the UIM endorsement at issue provided in pertinent part as follows:

COVERAGE E-l — UNDERINSURED MOTORISTS (DAMAGES FOR BODILY INJURY)
We will pay damages for bodily injury which an insured or the insured’s legal representative is legally entitled to recover from the owner or operator of an underinsured motor vehicle. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the underinsured motor vehicle [emphases added].
ADDITIONAL DEFINITIONS
As used in this Coverage E-l,
(3) Underinsured motor vehicle means:
(a) a motor vehicle the ownership, maintenance or use of which is insured or bonded for bodily injury liability at the time of the accident; and
(b) the limits of liability that apply from such vehicle to the insured’s damages are less than a judgment recovered against a liable party for damages on account of bodily injury due to a motor vehicle accident.
But underinsured motor vehicle does not mean a motor vehicle:
(a) owned by or furnished or available for the regular use of you or a relative[.]

Further, the term “you” is defined as “the insured named in the Declarations and spouse,” and the term “relative” is defined as “a person related to you by blood ... who is a resident of and actually living in your household ...” [emphases omitted].

In the case at bar, it is undisputed that (1) Wayne and Becky Lindle were the named “insureds” on the policy in question; (2) that the Lindles owned the 1995 Ford Mustang; (3) that Edwards is the Lindles’s daughter and was living in their household at the time of the accident; and (4)that Edwards regularly used the 1995 Ford Mustang. Thus, pursuant to the express terms of the policy in question, the 1995 Ford Mustang did not fall within the definition of an “underinsured motor vehicle.” Accordingly, Edwards is not entitled to UIM benefits under the policy issued by Shelter to Wayne and Becky Lindle.

Our interpretation is consistent with KRS 304.39-320(2), which requires insurers to “make available upon request” underinsured motorist coverage for their customers:

Every insurer shall make available upon request to its insureds underin-sured motorist coverage, whereby subject to the terms and conditions of such coverage not inconsistent with this section the insurance company agrees to pay its own insured for such uncompensated damages as he may recover on account of injury due to a motor vehicle accident because the judgment recovered against the owner of the other vehicle exceeds the liability policy limits thereon, to the extent of the underinsurance policy limits on the vehicle of the party recovering [emphases added].

The statute clearly contemplates that the underinsured motorist “will be operating a different vehicle than the vehicle providing UIM coverage for the injured claimant.”

In support of her argument that she is entitled to UIM benefits under Shelter’s policy, Edwards claims that the 1995 Ford Mustang was “overtaken and controlled by Carlisle in causing the accident.” Hence, Edwards contends that Carlisle became an underinsured motorist and that the 1995 Ford Mustang became the “underinsured motor vehicle” with respect to the issue of UIM coverage. We reject this interpretation of Shelter’s coverage because it would have the effect of ignoring the clear and unambiguous policy language which excludes the 1995 Ford Mustang from the definition of an “underinsured motor vehicle.” Accordingly, even if Carlisle were to be deemed the “operator” of the Lindles’s vehicle at the time of the accident, Edwards would still not be entitled to UIM benefits since the 1995 Ford Mustang did not meet the definition of an “underin-sured motor vehicle” pursuant to the express terms of Shelter’s policy.

Finally, Edwards claims that she is entitled to UIM benefits under the doctrine of reasonable expectations. Specifically, Edwards argues that the UIM provision “is ambiguous in that it does not clearly define what constitutes an underin-sured vehicle.” According to Edwards, under the circumstances of this accident, she had a reasonable expectation that Shelter would provide UIM benefits pursuant to the policy issued to Wayne and Becky Lindle. We disagree.

In Simon v. Continental Insurance Co., our Supreme Court discussed the doctrine of reasonable expectations:

The nature of the doctrine of reasonable expectations is summarized in R.H. Longs The Law of Liability Insurance, 5.10B, which states, in pertinent part:
The gist of the doctrine is that the insured is entitled to all the coverage he may reasonably expect to be provided under the policy. Only an unequivocally conspicuous, plain and clear manifestation of the company’s intent to exclude coverage will defeat that expectation.
The doctrine of reasonable expectations is used in conjunction with the principle that ambiguities should be resolved against the drafter in order to circumvent the technical, legalistic and complex contract terms which limit benefits to the insured.

In the instant case, we hold that the exclusionary language at issue is unambiguous so that Edwards could not have reasonably expected to recover UIM benefits as a result of the accident in question. The policy issued to the Lindles by Shelter clearly stated that UIM benefits are only available for bodily injury “caused by [an] accident [ ] arising] out of the ownership, maintenance or use of the underinsured motor vehicle.” In addition, the policy provides that an underinsured motor vehicle does not include a vehicle “owned by or furnished or available for the regular use of you or a relative.” As we discussed previously, it is not disputed that (1) Wayne and Becky Lindle owned the 1995 Ford Mustang; (2) that the 1995 Ford Mustang was available for Edwards’s regular use; and (3) that Edwards met the definition of a “relative.” Thus, since the language at issue is clear and unambiguous, the doctrine of reasonable expectations does not apply. Accordingly, Edwards is not entitled to UIM benefits under the policy issued by Shelter to the Lindles, and the trial court did not err by granting Shelter’s motion for summary judgment.

Based on the foregoing, the order of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

      . Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).

      . Kentucky Rules of Civil Procedure (CR) 56.03.

      . Ky., 683 S.W.2d 255, 256 (1985).

      . Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991).

      . Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d 378, 381 (1992).

      . Steelvest, 807 S.W.2d at 480.

      . Id. at 482. See also Philipps, Kentucky Practice, CR 56.03, p. 321 (5th ed.1995).

      . Cinelli v. Ward, Ky.App., 997 S.W.2d 474, 476 (1998).

      . Nationwide Mutual Insurance Co. v. Nolan, Ky., 10 S.W.3d 129, 131 (1999).

      . The words in bold appear in bold in the insurance policy and indicate terms that are specifically defined elsewhere in the policy.

      . Motorists Mutual Insurance Co. v. Glass, Ky., 996 S.W.2d 437, 449 (1999).

      . Ky., 724 S.W.2d 210, 212-13 (1986).

      . "[Y]ou” is defined as "the insured named in the Declarations and spouse,” i.e., Wayne and Becky Lindle.