HOLLIS AUGUSTUS SCOTT,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

    
COURT OF APPEALS
    
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00595-CR
 
HOLLIS AUGUSTUS SCOTT,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, ROWE AND OVARD
OPINION BY JUSTICE STEWART
JUNE 21, 1989
        Hollis Augustus Scott appeals from a conviction for murder for which the jury assessed punishment at confinement for life in the Texas Department of Corrections. On appeal, appellant raises seven points of error, alleging that the trial court erred in: 1) failing to grant appellant's motion to strike the jury panel; 2) denying appellant the right to a full voir dire examination of prospective jurors; 3) admitting evidence of an extraneous offense; 4) failing to grant a mistrial due to witnesses' comparing testimony in violation of the rule; 5) failing to grant a mistrial because of prosecutorial misconduct committed through improper jury argument at guilt/innocence phase; 6) failing to grant a mistrial because of prosecutorial misconduct committed through improper jury argument at the punishment phase; and 7) failing to grant a mistrial because of prosecutorial misconduct committed through improper and cumulatively erroneous jury argument at the punishment phase. We disagree. Accordingly, we affirm.
        On November 23, 1979, appellant, who is a black man, and another man went to a topless lounge. While there, appellant argued with Judy Beaty, a white woman, with whom appellant had lived for several months. Judy had moved out of appellant's apartment approximately two or three weeks previously. During the argument, appellant threatened to kill Judy. After appellant and his friend left the lounge, Judy went outside to see if her cab had arrived. Appellant shot Judy three times, then drove off. Appellant went to New York, where he remained unapprehended for several years.
        Appellant contends, in his first point, that the trial court erred in denying his motion to strike the jury panel, relying on Batson v. Kentucky, 476 U.S. 79 (1986). While the State's voir dire appears in the record, the defense attorney's voir dire was not recorded. After several jurors were questioned individually at the bench, there was an off-the-record discussion and a recess. The court then seated the jury, excused the rest of the panel, stated that he would administer the oath to the jury "tomorrow", admonished the jury, and recessed the court until the next day. When the court reconvened, the defense moved for a Batson hearing. At the close of the hearing, the court denied appellant's motion to quash the jury or "have a mistrial and pick another jury as soon as possible."
        The State argues that appellant has waived any error in the overruling of his Batson objection by failing to have his portion of the voir dire recorded. We agree. In reviewing the decision of the trial court rejecting a Batson objection, we must examine the entire record relevant to this objection; consequently, we must consider the voir dire proceedings as well as the transcription of the Batson hearing. See Keeton v. State, 749 S.W.2d 861, 863 n. 1 (Tex. Crim. App. 1988); Reed v. State, 751 S.W.2d 607 (Tex. App.--Dallas 1988, no pet.). We cannot review the entire record concerning appellant's Batson point in the absence of a transcription of the complete voir dire. Reed, 751 S.W.2d at 610. Because we do not have "the entire record" before us, appellant's first point of error is overruled.
        In his second point, appellant argues that the trial court abused its discretion in denying appellant the right to a full voir dire examination of prospective jurors. He contends that during voir dire, he was denied the opportunity to question three jurors at the bench. However, this part of the voir dire does not appear in the record. After voir dire was completed, appellant stated on the record that he had previously objected to the court's denial of his request. He argued to the court that, due to the denial, he was forced to use three peremptory strikes on those jurors that should have been challenged for cause. This does not preserve appellant's complaint because the actual objection made, and ruling thereon, is not in the record. Consequently, appellant has waived any error on this issue. We note, however, that it is well within a trial court's discretion to limit questioning on voir dire. Battie v. State, 551 S.W.2d 401, 404 (Tex. Crim. App. 1977), cert. denied, 434 U.S. 1041 (1978). Appellant's second point of error is overruled.
        In his third point, appellant argues that the trial court erred in admitting evidence of an extraneous offense through the testimony of Sergeant Herring and Michael Davis. We have carefully reviewed the record and it reveals the following facts relevant to this point of error. On April 27, 1988, ex-officer Irby testified for the State; he had been an investigator of Judy Beaty's murder in November, 1979. On re-cross examination by defense counsel, the following interchange occurred:
                BY DEFENSE COUNSEL:
        Q. Did you know Hollis Scott before this had happened?
 
        A. No.
 
        Q. Of your knowledge had he ever been charged with a crime before?
 
        A. I believe he had.
 
        Q. And do you recall what that crime was?
 
        A. Aggravated assault.
 
        Q. Was he charged with shooting somebody?
 
        A. Either shot them or hit them over the head with the pistol discharging in the process and I can't remember which it was.
 
        Q. And was he ever arrested for that?
 
        A. I do not know that.
 
 
        On April 28, 1988, the State called Officer Herring and established, without objection, that several days before her death, the deceased, Judy Beaty, had come to the officer's office and told him, "that she had been told some threats had been made on her life; that a guy was trying to kill her," and she named appellant as that person. In an unresponsive answer on cross-examination by defense counsel, Herring said that he "had already been assigned to a case that her name had been mentioned in" before the day that Judy Beaty came to his office. On re-direct examination, the State asked Herring what the case was that Beaty's name had been mentioned in. Defense counsel objected on the grounds of relevancy and hearsay. The State responded that defense counsel had opened it up the prior day.
        In a sub rosa hearing, Herring testified that Judy's name had been mentioned in an attempted murder case in which Michael Davis was the complainant and appellant was the alleged perpetrator. It was also established that the aggravated assault case testified to by Irby was the same case as the attempted murder case testified to by Herring, that is, the original charge of aggravated assault was later changed to attempted murder. The court also heard Michael Davis's testimony in the sub rosa hearing.
        The State argued that it was entitled to clarify that, although Judy's name was mentioned in a case that Herring had been assigned to, she was not the perpetrator in that case and to clear up, through Herring, any confusion in the jury's mind about whether the police were investigating her. The court ruled that the State could ask Herring if Judy was a suspect in the case he was investigating in November, 1979. The State also contended that Davis's testimony was admissible because defense counsel opened the door regarding the aggravated assault in his examination of Irby. The court ruled:
        I'll tell you as far as this pistol business and aggravated assault, that's going to be admitted into evidence because you opened the door questioning ex-investigator----yesterday. He thought it was some sort of automatic filed on for aggravated assault. They can get that in. . . .
The court further said to "put him [Herring] back on the stand and ask him if she [deceased] is a suspect and cut him off right there." The State then recalled Herring, and before the jury, the following transpired:
                BY THE PROSECUTOR:
        Q. Sergeant Herring, I believe where we left off we were talking about a case you were investigating back in '79 of attempted murder.
 
         Now, with regard to that case you were investigating, state for the jury whether or not Judy Beaty was any sort of subject or suspect in that case you were investigating?
 
        A. Her name had been brought up in it as to being threatened.
 
        Q. Sergeant, just tell us whether or not Judy Beaty was a suspect in the case?
 
        A. No, sir.
Defense counsel did not object to the prosecutor's naming the offense of attempted murder in his question, although his original objection on grounds of relevancy and hearsay was to prevent the State from getting this fact before the jury. Further, in the sub rosa hearing, he argued that he did not open the door or create a mis-impression with the jury in his examination of Irby because he never mentioned Judy Beaty's name to Irby.
        We conclude that the court allowed the State to further examine Herring because of Herring's prior testimony that Beaty's name had been mentioned in a case Herring was investigating, a fact brought out in defense counsel's examination of Herring. Further, defense counsel did not object to Herring's testimony on grounds that it would constitute admission of an extraneous offense. Thus, appellant waived any error related to Herring's testimony above based on admission of an extraneous offense. TEX. R. CRIM. EVID. 103 (a) (1).
        Regarding Michael Davis's testimony, appellant first introduced before the jury in his questioning of Irby the preceding day the extraneous offense of aggravated assault allegedly committed by appellant. The State contended in the sub rosa hearing that the defense had thus opened the door as to the aggravated assault and that it intended to call the complainant in that case, Michael Davis. As previously stated, the court heard Michael Davis's testimony in the sub rosa hearing. Appellant voiced no objection to the State's calling Michael Davis nor to the court's ruling above that "this pistol business and aggravated assault" would be admitted. When Davis testified before the jury to the details of the aggravated assault/attempted murder, appellant did not voice a single objection. He has therefore waived any possible error in the admittance of this testimony. TEX. R. CRIM. EVID. 103(a)(1); TEX. R. APP. P. 52 (a). Appellant's third point of error is overruled.
        Appellant argues in his fourth point that the trial court erred in failing to grant a mistrial due to witnesses' comparing testimony in violation of article 36.03 of the Texas Code of Criminal Procedure (the Rule) (now rule 613 of the Texas Rules of Criminal Evidence). After the Rule had been invoked, during the State's case-in-chief, and following a short recess, appellant informed the court that during the recess he overheard a State witness (Burkleo) discussing her testimony with two other witnesses. Appellant objected and requested a mistrial on the basis of a violation of article 36.03.
        The record shows that the defense attorney overheard Burkleo discussing "where the baby was and who had the baby." After the defense attorney reported what he had heard, the judge ordered all the witnesses brought into the court room. Burkleo denied she discussed her testimony with other witnesses. The judge then stated that he had heard Burkleo telling an observer in the courtroom what she had testified to. The observer was not a witness in the case. The court warned Burkleo not to violate the rule but denied appellant's motion for a mistrial.
        As conceded by appellant, not every violation of the Rule will result in error. Hougham v. State, 659 S.W.2d 410, 413 (Tex. Crim. App. 1983). "A violation of the Rule may not be relied upon for reversal of the case unless it is shown that the trial court abused its discretion in allowing the alleged violative testimony to be elicited at trial." Archer v. State, 703 S.W.2d 664, 666 (Tex. Crim. App. 1986). The ultimate test in determining whether the court has abused its discretion is whether the defendant has been harmed by the introduction of the violative testimony. Id. The Archer court suggested two criteria, 1) did the witness actually hear the testimony or confer with another witness without court permission; and 2) did the testimony of the witnesses coincide? Archer, 703 S.W.2d at 666-67; Aguilar v. State, 739 S.W.2d 357, 360 (Tex. Crim. App. 1987).
        We cannot determine from the record whether either of these criteria has been met. The observer stated she was not a witness and there is no indication that she ever testified since the record does not reveal her name. Further, Burkleo had finished testifying before the court overheard her discussing her testimony and before defense counsel overheard her conversation in the hall. Finally, there is nothing in the record to show that the two witnesses with whom defense counsel observed Burkleo conversing later testified. Ginger Miller's name was mentioned as possibly one of the women in the hall to whom Burkleo spoke, but she testified before the incident at issue. We cannot determine from this record whether the trial court abused its discretion in denying appellant's motion for a mistrial. Appellant has the burden of providing a sufficient record from which error can be discerned. TEX. R. APP. P. (50)(d). Appellant's fourth point is overruled.
        In his fifth point of error, appellant argues that the trial court erred in failing to grant a mistrial because of alleged error in jury argument in the guilt/innocence phase of trial. The prosecutor made the following statement in his jury argument during the guilt/innocence phase:
 
 
        So what did he do on the witness stand yesterday when you heard from him? Well, he had an opportunity in the course of all this testimony to listen to all the witnesses. So what did he do? He turned everything around for you. Why? To make your job a little more difficult. Because the defense attorney's job is to knit pick this case, lead you down some-- . . . .
The appellant objected to this, saying "that's not my job. My job is to find justice." The court sustained the objection. Appellant did not request an instruction to disregard or a mistrial. If no motion for instruction to disregard is made, error is not preserved. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985), cert. denied, U.S. , 106 S. Ct. 897 (1985). To preserve error, appellant must also make a motion for mistrial following a request for instruction to disregard each objectionable comment. Kennedy v. State, 520 S.W.2d 776, 778 (Tex. Crim. App. 1975). An appellant may not raise a claim of error when he received all the relief that he has requested. Duran v. State, 505 S.W.2d 863, 866 (Tex. Crim. App. 1974). Appellant's fifth point of error is overruled.
        Appellant argues in his sixth point of error that the trial court erred in failing to grant a mistrial because of alleged error in jury argument in the punishment phase of trial. The following occurred:
        BY THE PROSECUTOR
        
                If it please the Court. Ladies and gentlemen of the jury, I'll be the last lawyer that you're going to have an opportunity to hear from and I think that in fifteen years of addressing juries, I've said this before so I'll say it again, the first part of this trial was devoted solely to the protection of the rights of the defendant.
 
                Now, think about that. Everything that was done was designed to protect his rights. You see, the law protects the rights of the criminal and juries protect the rights of victoms [sic].
 
        DEFENSE COUNSEL:
 
                Judge, we're going to object to that. That's not the juries'[sic] function. The juries' [sic] function is to find justice not protect the victoms [sic] rights.
 
        THE COURT: Sustained.
 
        DEFENSE COUNSEL: Ask the jury to disregard.
 
        THE COURT: The jury is so instructed.
Appellant did not move for a mistrial. As a general rule, an instruction to disregard will cure any error. Anderson v. State, 633 S.W.2d 851, 855 (Tex. Crim. App. 1982). When the court instructed the jury to disregard the comment, appellant received all of the relief he requested, and no adverse ruling of the trial court is presented for review. Kennedy, 520 S.W.2d at 778.
        Appellant contends that the argument was manifestly improper and could not have been cured by an instruction to disregard. Proper areas of jury argument are 1) summation of the evidence, 2) reasonable deductions from the evidence, 3) answers to the argument of opposing counsel, and 4) pleas for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Even if the argument falls outside these areas, an appellate court should not reverse except in extreme cases where the language is manifestly improper, harmful and prejudicial. Mathews v. State, 635 S.W.2d 532, 539 (Tex. Crim. App. 1982). Appellant relies on cases involving arguments related to community expectations. The argument complained of here did not ask the jury to assess a punishment because the community wanted it. We disagree that the argument here is manifestly improper, harmful and prejudicial. Any error in the argument was cured by the instruction to disregard. Appellant's sixth point is overruled.
        In his seventh point of error, appellant again argues that the trial court erred in refusing to grant a mistrial based on statements made by the State during the jury argument at the punishment phase of trial. The following transpired during the punishment phase:
        Community effect of your verdict. You know, the twelve of you represent the law abiding people that live and reside and make their homes in Dallas County. Each one of you. You represent us, you represent yourselves, your loved ones, your family members, your neighbors. You speak for the community about the price tag that ought to be placed on this type of killing.
 
        And make no mistake about, the word will go out of this courthouse about what a proper penalty is. It will go out through us and through you. You'll be confronted by people that will ask you; tell me about the case that you heard as a juror. What happened? Tell me about it.
 
        And when you relive it and they ask you what kind of a sentence did you set, will you be able to hold your head up high? Will you? You have Judy Beaty in a grave with a tombstone. Years from now when you're asked about this, I want you to go back and formulate this mental image. I want you to think when asked about this about a tombstone and you think about what's written right across the top of it, death sentence. You see, that's what this man --
 
        MR. JARVIS: Judge, I'm going to object to --
 
        MR. GILLETT: --gave her.
 
        MR. JARVIS: Excuse me, Mr. Gillett. We're going to have to object to that as not in evidence at all. He's saying that in front of the jury without having it in evidence. It's inflammatory. It's improper.
The trial court sustained the objection, instructed the jury to disregard, but denied appellant's motion for mistrial.
        Any error was cured by the trial court sustaining the objection and the instruction to the jury to disregard the argument. Anderson, 633 S.W.2d at 855. The statements were not so manifestly improper that they were not cured by the instruction to disregard. Appellant's seventh point is overruled.
        Appellant contends (without a separate point of error) that he is entitled to reversal of his conviction because of "cumulative error." He points to numerous rulings of the court and comments of the prosecutor as proof of cumulative error. A claim of cumulative error does not comply with the requirement that briefs separately set out each error complained of, and will not be reviewed. See Love v. State, 533 S.W.2d 6, 12 (Tex. Crim. App. 1976) (citing article 40.09(9) of the Code of Criminal Procedure, now rule 74(d) of the Texas Rules of Appellate Procedure); Jones v. State, 685 S.W.2d 86, 89 (Tex. App.-- Beaumont 1984, no pet.); Price v. State, 626 S.W.2d 833, 836 (Tex. App.-- Corpus Christi 1981, no pet.). Appellant's contention is overruled. The judgment of the trial court is affirmed.
 
    
        
 
                                                          ANNETTE STEWART
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00595.F
 
 
File Date[01-02-89]
File Name[880595F]