author: HOLCOMB, J.,

text:
    Eusebio LOREDO, Appellant, v. The STATE of Texas.
    No. 1075-03.
    Court of Criminal Appeals of Texas.
    April 7, 2004.
    Rehearing Denied June 16, 2004.

      Stan Schwieger, Waco, for appellant.
    Christy Barber, Asst. Dist. Atty., Waco, Matthew Paul, State’s Attorney, Austin, for state.
   OPINION

HOLCOMB, J.,

delivered the opinion of the Court,

in which KELLER, P.J., KEASLER, HERVEY, WOMACK, COCHRAN, PRICE, JJ.,

join.

We granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in addressing the merits of appellant’s claim regarding one of appellant’s challenges for cause. Appellant stood mute in the face of the court stating erroneous facts as the basis for the denial and requesting correction if necessary before denying appellant’s request for an additional peremptory strike.

During voir dire, the court examined the venire panel on the range of punishment, including asking whether the members could consider probation in an aggravated sexual assault. Not one of the members responded that he or she could not consider probation.

The State then also examined the panel on the range of punishment and specifically asked whether there was anyone who could not consider probation for this type of offense regardless of what the facts were. Again, no one responded. The State told them their silence was taken to mean they could consider'the entire range of punishment.

When defense counsel questioned the venire panel and questioned individual members regarding their ability to consider probation for the charged offense, this exchange occurred with venire member Band:

Defense: Do you feel that probation is appropriate in some situations that involve aggravated sexual assault of a child? ...
Band: Do I think that?
Defense: Probation could be appropriate in some situations?
Band: I would rather have to consider the situation because personally I feel that sexual perpetrators are very hard to rehabilitate.
Defense: Well, then I guess the next question I have to ask you is — and I will tell you the law says that you really ought not to be a juror on a particular case if you automatically rule out one of the punishment objectives. And my question is in your mind do you feel realistically that you have ruled out probation as a punishment option?
Band: If he is convicted of this aggravated sexual assault?
Defense: Yes, ma’am.
Band: Yes.
Defense: Okay. And so, considering that would not be an option if you were on a jury and found somebody guilty of that?
Band: Yes.

After defense counsel concluded his voir dire, the court called four venire members into chambers for individual examination. Band was not among them. Of another member who had said probation would not be an option, the trial court said, ‘You guys tell me if it makes any sense to bring [him] in when he can’t consider probation. You are going to challenge him.”

At the conclusion of these examinations, the State asked whether the Court was going to give the State an opportunity to rehabilitate five prospective jurors, including Band, who had not been called into chambers. Each had told the State by their silence, when asked who could not consider probation, that they could consider probation, and each had then told the defense attorney that they could not. The Court said “No. Because when we go back and forth the other way, it is going to be the other way. It is who talked last.”

Defense counsel challenged for cause, “for inability to consider probation,” four of the five prospective jurors the State had named in requesting an opportunity to rehabilitate, including Band. The trial court granted three of the challenges, but denied defendant’s challenge regarding Band, without further discussion. After the challenges for cause were concluded and the State and Defense made their peremptory strikes, this exchange occurred:

Defense: Your Honor, the defendant at this time would move the Court for an additional peremptory challenge. We are required to use a strike on [Band] who we had moved to strike for cause and that motion was denied. And we have at least one additional strike we would like to make.
Court: My recollection of Mrs. Band is that while she did tell you at one time that probation would not be a possible punishment in her mind that when I asked her a question she recanted and said that she could. Does anybody disagree with that? Or have I screwed the numbers up again?
Prosecutor: She did say something about probation being an appropriate consideration.
Court: And I recognize that she did not say that in response to you. So the ruling is the same. Your request for additional peremptory is denied.

Appellant did not express doubt or disagreement with the court’s statement of the facts on which the court was basing its decision to deny the additional peremptory strike. Appellant responded by naming which prospective juror the defense would have stricken had the court granted the additional peremptory strike, noting that the particular venire member was slated to serve on the jury.

On appeal, appellant challenged the trial court’s denial of his challenge for cause regarding venire member Band.

In reversing the trial court, the Court of Appeals concluded that appellant had preserved error because he (1) exercised a peremptory challenge on a venire member whom the trial court should have excused for cause; (2) exhausted his peremptory challenges; (3) was denied an additional peremptory challenge; and (4) identified an objectionable venire member who sat on the jury whom he would have struck otherwise. Loredo v. State, 107 S.W.3d 36 (Tex.App.Waco 2003). In a dissent, Justice Gray argued, inter alia, that the trial court must be made aware of a complaint at a time and in a manner that it can be corrected. See Tex.R.App. Proc. 33.1. Thus the issue was not preserved because the trial court gave appellant ample opportunity to correct its erroneous assessment of the juror appellant sought to challenge. Instead, appellant stood silent. Loredo, 107 S.W.3d at 39.

The record, excluding the trial court’s statement that Band had been rehabilitated, supports appellant’s claim that venire member Band should have been struck for cause because of her inability to consider the full range of punishment. The record also indicates that if the trial court had been informed he was wrong about Band having been rehabilitated, that the trial court would have granted the challenge for cause as it did with the other three venire members that the court excused for cause for the same reason. If the facts were as the trial court stated them, the trial court’s ruling may not have been erroneous, as the juror would have been vacillating.

The Court of Appeals’ majority was correct that appellant fulfilled the steps set out in Johnson v. State, 43 S.W.3d 1, 5-7 (Tex.Crim.App.2001), for preservation of error regarding denial of a challenge for cause. However, in limiting its preservation analysis to the procedures required by Johnson, the Court of Appeals ignored a fundamental principle of error preservation: that the trial court must be made aware of a complaint at a time and in a manner so that it can be corrected. See Tex.R.App. P. 33.1.

Preservation of error is not merely a technical procedural matter by which appellate courts seek to overrule points of error in a cursory manner. Fairness to all parties requires a party to advance his complaints at a time when there is an opportunity to respond or cure them. See generally Young v. State, 826 S.W.2d 141, 149 (Tex.Crim.App.1991)(Campbell, J., dissenting).

The Court of Appeals disregarded the fact that the trial court’s ruling was based not on the record but on the judge’s erroneous recollection, which was stated on the record explicitly for the parties to correct, if necessary. Viewing the record on appeal, the Court of Appeals was able to see that such correction was necessary, but, without recognizing counsel’s burden to draw the trial court’s attention to the error so that the trial court may have the opportunity to make an error free ruling, the Court of Appeals ignores the appellant’s failure to make such correction. The defense attorney said nothing to east doubt on the trial court’s recollection of events. Nor did the defense attorney respond to the prosecutor’s statement that Band had said that she could consider probation, which, in so far as it referred to her silence in response to the trial court’s and the prosecutor’s questions whether there was anyone who could not consider probation, was not only inaccurate, but applied equally to those other venire members the trial court had excused for cause because they could not consider probation.

The trial court had no obligation to grant appellant’s request for additional peremptory strikes unless appellant first showed his challenge for cause should have been granted.

Just as in Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App.1999), where the defendant failed to correct a factually incorrect statement made by the prosecutor during a Batson challenge, the defendant failed to correct the trial court’s erroneous statement and therefore failed to meet his burden to show the trial court that his challenge for cause should have been granted. The trial court believed the challenged juror had been rehabilitated. The trial court was mistaken, but appellant failed to dispute the court’s recollection even when invited to do so. Thus, appellant’s silence resulted in his failure to inform the trial court of his complaint at a time and in a manner that it could be corrected, in violation of the basic requirements of Texas Rule of Appellate Procedure 33.1.

For the reasons given, the judgment of the Court of Appeals is reversed and the cause is remanded to that court so that it may address appellant’s remaining points of error.

MEYERS, J., concurs.

JOHNSON, J., dissents.

      . The record does not show that the court ever questioned Band individually. The issue of probation came up only once during the trial court's questioning of the four venire members in chambers. After being questioned regarding her personal experience with sexual assault, one venire member changed her answer about whether she could consider probation, saying she had not spoken up when the Prosecutor asked if there was anyone who could not consider probation because she did not want to talk about it in front of the group. That venire member was excused.

      . Two venire members were mistakenly called into chambers for further questioning because, in its note taking, the Court had written down the wrong venire numbers. The mistake was discovered and the correct venire members were questioned.


source: Caselaw Access Project

author: PRICE, J.,

license: Public Domain

text:
    Ex Parte Dominique Jerome GREEN, Applicant.
    No. 45,219-02.
    Court of Criminal Appeals of Texas.
    Oct. 21, 2004.
    Michael B. Charlton, Houston, for Appellant.
    Jack Roady, Asst. District Attorney, Houston, Matthew Paul, State’s Atty., Austin, for State.
    PRICE, J., filed a statement dissenting to the dismissal of the Motion for Extraordinary Relief.
   Appeal from the 262nd District Court, Harris County; Mike Anderson, Judge.

Motion for Extraordinary Relief dismissed.

PRICE, J.,

dissenting.

STATEMENT

A Harris County jury convicted the applicant on the basis of evidence processed at the Houston Police Department crime lab. The reliability of the crime lab and the evidence processed there has been called into serious question. Houston Police Chief Harold Hurtt has said, “I think it would be very prudent for us as a system, a criminal justice system, to delay further executions until we’ve had an opportunity to re-examine evidence that played a particular role in the conviction of an individual that was sentenced to death.” The Houston Police Chief does not have confidence in the reliability of the evidence used in cases such as the applicant’s.

In his application for original habeas corpus relief, the applicant notes that serious concerns have been raised about the firearms identification unit of the HPD crime lab. The applicant’s conviction was based on firearms identification evidence. Until these concerns have been addressed, I would not execute any defendant whose conviction was had on the basis of evidence processed at the HPD crime lab.

Because a death sentence cannot be reversed once earned out, I would grant a stay of execution in this case until the evidence used to convict the applicant can be independently verified. I suggest that there be a moratorium on all executions in cases where convictions were had based on evidence from the HPD crime lab until the reliability of the evidence has been verified.

Because a majority of the Court votes otherwise, I respectfully dissent.


text:
    Ex Parte Dominique Jerome GREEN, Applicant.
    No. WR-45219-03.
    Court of Criminal Appeals of Texas.
    Oct. 26, 2004.
    Michael B. Charlton, Houston, for Appellant.
    Jack Roady, Asst. District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   Appeal from the 262nd District Court, Harris County; Mike Anderson, Judge.

PRICE, J.,

filed a statement dissenting to the dismissal of the writ application.

STATEMENT

I continue to believe that the Court should stay the execution in this case because of the problems with the Houston Police Department Crime Lab. I write again because I disagree with the Court’s conclusion that the applicant has not met the requirements of Code of Criminal Procedure Article 11.071, Section 5.

Section 5 permits the Court to consider the merits of a subsequent application for writ of habeas corpus if the factual basis for the claim was unavailable when the applicant filed his initial application. Section 5(e) says that the “a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.”

The applicant’s initial application was denied May 31, 2000. The problems with the Houston Police Department Crime Lab did not come to light until late in 2002. The applicant has met the requirements of Section 5. Once a defendant has met the requirements of Section 5, we should remand to the convicting court for findings of fact and conclusions of law.

I would grant the stay of execution and remand the case for findings. Because a majority of the Court votes otherwise, I respectfully dissent.

JOHNSON, J., filed a statement dissenting to the dismissal of the writ apphcation, in which PRICE, J., joined.

STATEMENT

During deliberations at applicant’s trial, at least one juror considered the effects of parole on the sentence. Jury instructions always include an instruction that this is not to be done. This juror submitted an affidavit that states that she beheved at the time that applicant could or would be paroled in as few as five years if the jury did not assess a sentence of death. She also speculated during deliberations that this was true.

The truth is that, at the time of applicant’s trial, the minimum time for parole eligibility for capital murder was thirty-five years and has since been increased to forty years. At the time of his trial, juries were not advised of minimum eligibility times. That has also changed, and juries are now advised of the forty-year minimum. That does not avail for this applicant. We cannot know if that speculation affected the decision of the jury, but we do know that specific instructions were ignored.

The state argues that under Rule of Evidence 606(b), a juror may not impeach the verdict or the deliberations of a jury. While the impulse that produced that rule may be good, the prohibition sometimes results in improper conduct in the jury room that impermissibly affects the verdict. Here it was improper speculation about parole. In another case, it may be a juror using personal experience, unrelated to the case at bar, to influence the vote of other jurors, such as a juror who has been burglarized talking about the sense of violation that such victims feel and urging conviction or severe punishment based not on the burglary, but on the juror’s own emotional distress in response to a different burglary. We should not invade the jury room for little purpose, but due process demands that there be a way to address blatant misconduct. Rule 606(b) bars any examination of the process. A trial cannot be fair if jury deliberations are tainted.

It is said that applicant could have raised this point in his previous writ. Given Rule 606(b), even if he clearly established that it was newly discovered evidence, he could not raise it. The inability to challenge jury misconduct is a violation of applicant’s right to due process and a fair trial. I respectfully dissent.

      . See Ex parte Green, 159 S.W.3d 924 (Tex.Crim.App. 2004) (Price, J., dissenting).

      . Tex.Code Crim. Proc. Art. 11.071, § 5(a)(1).

      . Tex.Code Crim. Proc. Art. 11.071, § 6(b).


author: PER CURIAM.

text:
    Ex parte Brandy DEL BRIGGS, Applicant.
    No. WR-60515-01.
    Court of Criminal Appeals of Texas.
    Nov. 17, 2004.

      Charles H. Portz, Houston, for Appellant.
    Harris County District Attorney’s Office, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   ORDER

PER CURIAM.

Briggs has filed a motion asking this Court to set bond during the pendency of her application for a writ of habeas corpus. Article 11.65 provides in relevant part:

On making proposed findings of fact and conclusions of law jointly stipulated to by the applicant and the state, or on approving proposed findings of fact and conclusions of law made by an attorney or magistrate appointed by the court to perform that duty and jointly stipulated to by the applicant and the state, the convicting court may order the release of the applicant on bond, subject to conditions imposed by the convicting court, until the applicant is denied relief,.remanded to custody, or ordered released.

Because the convicting court is the proper forum for the relief she seeks, any motion seeking that relief must be filed there. Applicant’s motion is denied.

      . TEX. CODE CRIM. PROC., Art. 11.65(b)(emphasis added).


text:
    Noel Betancort RAMON, Appellant, v. The STATE of Texas.
    No. PD-2030-03.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 15, 2004.

      Adam L. Kobs, San Antonio, for Appellant.
    Lucy Cavazos, Asst. DA, Kerrville, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

JOHNSON, J., delivered the unanimous opinion of the Court.

During appellant’s trial for aggravated sexual assault, the trial court allowed the prosecutor to take the stand and testify about a collateral matter, over defense objection. The defense was not permitted to cross-examine the prosecutor, and after a sidebar discussion, the trial court sustained the defense motion to strike the prosecutor’s testimony. The court instructed the jury to disregard the prosecutor’s testimony, but denied the defense request for a mistrial. The prosecutor continued to prosecute the case and made reference to the subject of her testimony during closing arguments. The jury convicted appellant of one count of aggravated sexual assault. Tex. Pen.Code § 22.021. The trial court assessed appellant’s sentence, enhanced by prior felony convictions, at life imprisonment.

On appeal, appellant argued that the trial court should have granted a mistrial based on the prosecutor’s actions, claiming that they deprived him of a fair trial. However, the court of appeals upheld the judgment of the trial court, holding that the prosecutor’s testimony did not affect appellant’s substantial rights, and that the trial court therefore did not abuse its discretion in denying the motion for a mistrial. Ramon v. State, No. 04-02-00219-CR, 2003 Tex.App. LEXIS 7892, 2003 WL 22082410 (Tex.App.-San Antonio, September 10, 2003)(not designated for publication).

We granted review to determine whether the court of appeals erred in finding no harmful error. The question is not one of harm per se, however, but rather whether the court of appeals erred in finding that the trial court did not abuse its discretion when it denied the motion for a mistrial. As we recently noted, “the question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004). Therefore, as we did in Hawkins, we will address the issue by applying the test articulated in Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

Mosley involved prosecutorial misconduct in the form of improper jury argument, but the holding is equally applicable to the prosecutor’s testimony in this case. In determining whether the argument warranted a mistrial, the Mosley Court balanced three factors:

(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks),. (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).

Id. at 259.

In this case, the prosecutor’s request to testify was triggered by the admission of a telephone message that she had left with Dr. Chad Hainley, the state’s DNA expert. The record indicates that Dr. Hainley called the prosecutor to ask whether the state would be sending any samples of other individuals’ DNA for comparison purposes. In response, the prosecutor called Dr. Hainley’s office, and left a message that was recorded in Dr. Hainley’s office as “Noel Ramon case. The grandson and his roommate had access to the home, but they only care about suspect’s DNA.”

The defense introduced the message, apparently to show that the state had focused its investigation on the defendant and ignored evidence that potentially inculpated others. The prosecutor argued that she needed to testify in order to correct a “false impression” left by the defense’s introduction of the message. She argued that, at the time of the message, she understood that appellant’s defense at trial was to be that he was not present at the scene of the crime, and therefore that the state was concerned only with defeating his claim by showing the presence of his DNA. This was the substance of her testimony, which the court eventually instructed the jury to disregard.

Later in the trial, the state recalled Dr. Hainley to rebut the testimony of the defense DNA expert. On cross-examination, when asked whether he had tried to obtain any “standards” other than the defendant’s in this case, Dr. Hainley explained that he had contacted the prosecutor to see if other DNA samples would be submitted. During her closing argument, the prosecutor said: “With regard [sic] Chad Hainley called me because he was concerned, Chad Hainley called me to see if we were going to submit any other samples, not because he was concerned.”

In its opinion, one judge writing and two judges concurring in the judgment, the court of appeals ruled that the trial court did not abuse its discretion when it denied appellant’s motion for mistrial because appellant had failed to show how the prosecutor’s remarks prejudiced his case. In her concurring opinion, Justice Stone chastised the prosecutor for her unprofessional behavior.

I believe that permitting the prosecutor to testify was error, and as to the prosecutor, a violation of Rule 3.08(a) of the Texas Disciplinary Rules of Professional Conduct. See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a), reprinted in TEX. GOV’T. CODE ANN., tit. 2, subtit. G, app. A (Vernon 1998). The circumstances giving rise to the prosecutor’s request to testify did not, in my opinion, present “extraordinary circumstances or ... compelling reasons.” See Riddle v. Cockrell, 288 F.3d 713, 721 (5th Cir.2002) (holding that a prosecutor should be allowed to testify only in extraordinary circumstances). If the State perceived the introduction of Exhibit 11 as impeachment of the DPS laboratory analysis or the prosecutor’s motive, the State could have easily discredited the attempted impeachment through its questioning of the State’s forensic expert. Taking the “highly unusual and potentially prejudicial” route of allowing the sole prosecutor to take the witness stand was simply unnecessary.

Ramon v. State, 2003 Tex.App. LEXIS 7892 at *10-11, 2003 WL 22082410 at *1, (Stone, J., concurring in judgment).

In his petition for discretionary review, appellant argues that, in light of this Court’s recent decision in Gonzalez v. State, 117 S.W.3d 831 (Tex.Crim.App.2003), he has met his burden of showing that the prosecutor’s testimony prejudiced his case. In Gonzalez, the defense counsel was disqualified before trial began because he was expected to testify to a contested matter bearing directly on the defendant’s guilt. The appellant in Gonzalez argued that the trial court’s decision to disqualify his attorney interfered with his constitutionally guaranteed right to the counsel of his choosing. Id. at 836-37. However, this Court looked to United States Supreme Court precedent, and found that “the presumption in favor of petitioner’s counsel of choice may be overcome not only by a demonstration of actual conflict but by a showing of serious potential for conflict.” Id. at 844, citing Wheat v. United States, 486 U.S. 153, 163-64, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). This Court found that the record supported the trial court’s decision to disqualify defense counsel:

If counsel were to have testified, the State would have been prejudiced not only by the undue weight jurors might have attach [sic] to counsel’s testimony, but also by the confusion that would most likely have resulted during argument regarding whether counsel was summarizing evidence or further testifying as to personal knowledge.... The State would have been prejudiced by the inability to clarify counsel’s testimony and impeach, counsel’s credibility.

Gonzalez, 117 S.W.3d at 840.

Appellant here argues that the same dangers that the Gonzalez court described in finding potential prejudice produced a presumption of actual prejudice to his case when the prosecutor testified, and then continued to prosecute the case. Furthermore, appellant asserts that by referring to the subject of her testimony during closing arguments, the prosecutor improperly argued her own credibility to the jury.

We find the situation in Gonzalez distinguishable. In that case, the trial court made its finding and the defense attorney was disqualified before the trial began, thereby averting the situation that is before us in this case. The appellate court in Gonzalez was called upon to review the trial court’s determination that the potential for conflict necessitated the disqualification of counsel. According proper deference to the finding of the trial court, the court of appeals upheld that finding.

In this case, the trial court first ruled that the prosecutor could testify. Then, after the prosecutor testified about the telephone message but refused to allow herself to be cross-examined, the trial court instructed the jury to disregard the testimony, but overruled the defense motion for a mistrial. Therefore, the court of appeals in this case was called upon to review the trial court’s failure to declare a mistrial, using an abuse of discretion standard. The court of appeals was unable to find that the trial court abused its discretion.

We agree that the prosecutor’s behavior was improper.

“The concepts of due process and fundamental fairness require a separation between the State’s advocates and its witnesses. The prosecutor who tries a case should not testify as a witness in regard to a contested matter absent a showing that his testimony is necessary. Such necessity generally involves a showing that the testimony is important to the State’s case or required to rebut the defendant’s case and that the need for the testimony could not reasonably have been anticipated.... A prosecutor who tries the case must take reasonable precautions to prevent himself from becoming entangled in the trial as a witness .... If, during the middle of trial, the prosecutor’s testimony becomes necessary, and the prosecutor does not withdraw from participation, he should never argue his credibility to the jury.... A prosecutor’s failure to follow the above principles seriously jeopardizes a defendant’s right to a fair trial.... This conclusion is grounded upon the ‘recognition of the power and influence [the prosecutor] exerts’ in a criminal prosecution....’ Moreover, in addition to the danger that the prosecutor’s position may artificially enhance the credibility of his testimony, the prosecutor’s participation in closing arguments after the testimony may generate confusion among the jury about whether the prosecutor is speaking as an advocate or as a witness.”

Brown v. State, 921 S.W.2d 227, 231 (Tex.Crim.App.1996)(Keller, J., concurring) (citations omitted).

However, as the court of appeals below found, the subject matter of the prosecutor’s testimony in this case was not of great consequence to the outcome of the case.

In regard to the second Mosley factor, we find that the trial court’s instruction to disregard was sufficient to cure the error in allowing the prosecutor to testify in this case. The prosecutor’s reference to Dr. Hainley during closing argument could be interpreted as a reference to Dr. Hainley’s testimony when he was recalled, rather than to the prosecutor’s own testimony. It is a well-accepted principle that the admission of improper evidence will not require reversal if the same facts are proved by “other and proper” testimony. Alvarez v. State, 511 S.W.2d 493, 498 (Tex.Crim.App.1974).

Finally, the third factor in the Mosley balancing test requires us to determine the likelihood that appellant would have been convicted absent the misconduct. The evidence against appellant included eyewitness identification placing him at the scene of the crime. While the victim, who was elderly and appeared to have problems with her memory, could not identify him by the time of trial, the eyewitness, who knew appellant well, testified that he had seen appellant leaving the victim’s bedroom, fastening his pants, immediately after the assault allegedly occurred. The victim told the eyewitness that appellant had just sexually assaulted her, and the eyewitness called the police.

DNA evidence placed appellant’s sperm on one of the victim’s bed sheets, and his palm prints were found on the victim’s headboard. While the prosecutor’s testimony related to the fact that there were numerous stains on the victim’s sheets that did not contain appellant’s DNA, this fact by itself is not particularly exculpatory. The state’s reasons for not going to the trouble to determine the sources of the other stains are not necessarily relevant to the question of who assaulted the victim. In this case, the fact that appellant’s sperm was present on the victim’s sheets was sufficient to place him at the scene, supporting the eyewitness’ statement.

Given the strength of the evidence against appellant, the court’s instruction to the jury to disregard the prosecutor’s testimony, and the tangential nature of that testimony, we do not find an abuse of discretion in the trial court’s failure to declare a mistrial. Therefore, we affirm the judgment of the court of appeals.

      . "The court of appeals erred in finding no harmful error where the sole prosecutor called herself as a fact witness to testify to a material issue in front of the jury, objected to being cross examined, resumed her advocate role in the trial and then argued her credibility to the jury.”

      . We further note that the same prosecutor’s actions were at issue in another recent case before this Court. Flores v. State, 90 S.W.3d 875 (Tex.App.-San Antonio, 2002). In that instance, the prosecutor called defense counsel as a witness, arguing, as she did in this case, that it was necessary to correct a "false impression” left by the defense. The court of appeals found the error harmless, but noted that an issue of " 'false impressions’ left by defense counsel's questioning of witnesses is best addressed by skillful re-direct or re-cross examination by the State, not by calling defense counsel as a witness.” Id. at 884.