ANDRES MATA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed March 26, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00504-CR
............................
ANDRES MATA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F04-01557-QI
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OPINION
Before Justices Wright, O'Neill, and Lang-Miers
Opinion By Justice Wright
        Andres Mata appeals his conviction for aggravated sexual assault. After the jury found appellant guilty, it assessed punishment at confinement for life. In nine issues, appellant generally contends the trial court erred in: (1) certain evidentiary rulings; (2) allowing certain jury argument; (3) failing to correct errors in the reporter's record; and (4) failing to appoint an expert to review the court reporter's backup tape. In a tenth issue, appellant contends he did not receive the effective assistance of counsel at trial. We overrule appellant's issues and affirm the trial court's judgment.
 
Background
        Courtney Ellis testified that she went out with friends and was returning home about 3:00 a.m. when she was attacked and sexually assaulted in the parking garage of her apartment complex. According to Ellis, she entered the parking garage and parked her car. As she was walking toward her apartment, appellant grabbed her around the neck, choked her, and threw her to the ground. After a struggle, appellant pulled her sweatpants down and sexually assaulted her. He then took her watch and ring and told her to stay on the ground. Appellant got into his car and drove away, again telling her to stay on the ground. When Ellis heard appellant drive down the ramp of the garage, she ran to her apartment, called her friend, and told her what had happened. Her friend's father called the police.
        A short time later, the police arrived at Ellis's apartment and took her to Parkland Hospital where a rape exam was performed. The doctor performing the rape exam collected vaginal specimens which were submitted to the forensic laboratory for further testing. Photographs were also taken which showed bruises and scrapes consistent with being strangled and thrown to the ground. Two or three days later, Ellis spoke with Detective Danny Muniz and gave him a description of appellant. A few months later, Ellis identified appellant in a photographic lineup. Thereafter, appellant was arrested. At that time, the police found Ellis's ring.
        Evelyn Ridgley testified she performed a DNA analysis on the vaginal smear collected from Ellis. She placed the DNA from the sperm cell into a DNA database. Kimberlee Allen, a DNA analyst for the Southwestern Institute of Forensic Sciences testified that the DNA profile from the vaginal smear matched a sample in the DNA database. Allen notified the Dallas Police Department, a buccal swab was obtained from appellant, and the match was then verified.
        After hearing this and other evidence, the jury convicted appellant of aggravated sexual assault. This appeal followed.
Cross-Examination
        In his first issue, appellant contends the trial court erred by limiting his cross-examination of Ellis. Specifically, appellant contends the trial court erred by refusing appellant the opportunity to cross-examine Ellis concerning a civil suit against appellant and the apartment complex in which Ellis lived. We agree.
        Prior to trial, the State filed a motion in limine seeking to exclude any mention of civil litigation in which Ellis was a party. Before the close of evidence, appellant requested the opportunity to introduce evidence of the lawsuit to show bias. The trial court stated it would “keep the motion in limine the way it is,” but allowed appellant to make a bill of exceptions. Counsel then stated, among other things, that Ellis had filed a civil lawsuit against appellant and the apartment complex where she lived and that evidence of the lawsuit would show a motive to “overdramatize to capitalize on the fact that she was raped at this apartment complex.”
        The Sixth Amendment to the United States Constitution guarantees a defendant the right to confront the witnesses against him. See U. S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 406 (1965). The trial court violates a defendant's right of confrontation when it limits appropriate cross- examination. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). A party should be allowed to show all facts that tend to demonstrate bias, interest, prejudice, or any other motive, mental state, or status of the witness that, fairly considered and construed, might even remotely tend to affect the witness's credibility. Hinojosa v. State, 788 S.W.2d 594, 600 (Tex. App.-Corpus Christi 1990, pet. ref'd). Evidence to show bias or interest of a witness covers a wide range and “encompasses all facts and circumstances, which when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping to establish one side of the cause only.” Carroll, 916 S.W.2d at 497 (quoting Jackson v. State, 482 S.W.2d 864, 868 (Tex. Crim. App. 1972)). Any motive that operates on the mind of a witness during testimony is material to the trial because of its effect on the witness's credibility. See Coleman v. State, 545 S.W.2d 831, 834 (Tex. Crim. App. 1977). Nevertheless, the scope of appropriate cross-examination is not unlimited. Carroll, 916 S.W.2d at 498. A trial court may limit the scope of cross-examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Carroll, 916 S.W.2d at 498.
        Cross-examination regarding a civil suit may be appropriate to show an interest or bias on the part of the witness. See Davis v. Alaska, 415 U.S. 308, 316 (1974); Carroll, 916 S.W.2d at 498; Shelby v. State, 819 S.W.2d 544, 550-51 (Tex. Crim. App. 1991); Blake v. State, 365 S.W.2d 795, 796 (Tex. Crim. App. 1963). Thus, when a witness has a pending civil suit against the defendant arising out of the same incident, evidence of the pending suit is admissible to show the pecuniary interest and bias of the witness. See Cox v. State, 523 S.W.2d 695, 700 (Tex. Crim. App.1975).
        Here, Ellis filed a civil lawsuit against appellant and the apartment complex where she lived regarding the incident at issue. Thus, Ellis had an economic motive to shade her testimony against appellant and appellant should have been able to cross-examine Ellis on the general nature of the lawsuit. See id. Such cross-examination would not have confused the issues, harmed or harassed Ellis, was not repetitive, and was more than marginally relevant to show bias. We conclude, therefore, that the trial court erred in failing to allow appellant to cross- examine Ellis regarding the civil suit against appellant and the apartment complex.
        Having concluded the trial court erred, we must reverse the judgment unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex. R. App. P. 44.2(a). When making such a determination, we must first assume that the damaging potential of the cross-examination was fully realized. See Van Arsdall, 475 U.S. at 684. With that assumption in mind, we review the entire record and consider the following factors: (1) the importance of the witness's testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and, (5) the overall strength of the prosecution's case. Id. Finally, we then determine whether the error was harmless beyond a reasonable doubt. Id.
        We will address each of these considerations in turn. Without question, Ellis's testimony was vital to the State's case. As the complaining witness, she was the only witness to testify directly about the charged crime. Thus, without her testimony the State could not have established the elements of the offense. And, because she was the only witness to testify directly about the sexual assault, her testimony was not cumulative. With respect to evidence corroborating Ellis's testimony, the record shows (1) the DNA analysis on the vaginal smear collected from Ellis matched a DNA sample from appellant; (2) Vickie Sheahan, a resident in the apartment complex saw appellant near the parking garage two hours before Ellis was assaulted; and (3) when appellant was arrested, he had the ring taken from Ellis during the assault. Other than Ellis's testimony regarding the civil lawsuit, the trial court did not limit the extent of appellant's cross-examination. Finally, the overall strength of the State's case was strong. After considering the relevant factors, we conclude the error was harmless beyond a reasonable doubt.
        We overrule appellant's first issue.
        
Improper Jury Argument
        In his second issue, appellant contends the trial court erred by excluding testimony regarding Ellis's civil lawsuit and then allowing the State to argue that Ellis had no motive to testify falsely because no such lawsuit had been filed. Specifically, appellant contends the trial court should not have overruled his objection to the following argument: “What in the world can possibly be her motivation to come frame him? Do you think he's got a lot of money? Do you think she's going to go after him in a civil suit [?]”
        The law provides for and presumes a fair trial free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). The purpose of closing argument is to facilitate the jury's proper analysis of the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted into evidence. See Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). Thus, in general, proper jury argument encompasses one of the following: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the entire record and consider the remarks within the context in which they appear. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988); Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd).
        The State contends the complained-of argument was proper because it was in response to appellant's closing argument, the tenor of which “was that [appellant] was the victim of a 'frame-up' wherein the State had either manufactured evidence, concealed evidence, or the witnesses lied. The defense also repeatedly attacked [Ellis's] veracity throughout its jury argument.” Although the prosecutor's argument was a response to appellant's defense, nevertheless, it was an intentional misstatement regarding evidence which the trial court improperly excluded at the State's request in violation of appellant's constitutional right of confrontation. As such, it was improper and we conclude the trial court erred by overruling appellant's objection.
        Erroneous rulings regarding improper comments during jury argument are non-constitutional or “other error” under rule of appellate procedure 44.2(b). See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.1998). Rule 44.2(b) requires us to examine error in relation to the entire proceeding to determine whether it had a “substantial and injurious effect or influence in determining the jury's verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.1997). In other words, a “criminal conviction should not be overturned for non-constitutional error if the appellate court, after reviewing the record as a whole, has assurance that the error did not influence the jury or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
        In Mosley, the court of criminal appeals identified the following three factors to analyze the harm associated with improper jury argument and to determine whether reversal is required: (1) the 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). Mosley, 983 S.W.2d at 259. Additionally, the emphasis placed on the improper comment and the cumulative effect of multiple improper comments are appropriate considerations in determining the injurious effect of the argument. See Reed v. State, 991 S.W.2d 354, 364 (Tex. App.-Corpus Christi 1999, pet. ref'd) (citing King v. State, 953 S.W.2d 266, 271-73 (Tex. Crim. App.1997), and Stahl v. State, 749 S.W.2d 826 (Tex. Crim. App.1988)).
        Stating that Ellis did not have a motive such as a civil lawsuit to “frame” appellant after the State actively sought to limit appellant's cross-examination about just such a lawsuit was improper. Nevertheless, under the facts and circumstances in this case, the magnitude of the prejudicial effect of the prosecutor's remarks was not great. With respect to the second factor, the trial court overruled appellant's objection, and thus no curative action was taken. And, once appellant objected, the State did not further emphasize the complained-of argument. Finally, as we have previously concluded, the overall strength of the State's case against appellant was strong. Ellis identified appellant as the man who assaulted her and her testimony was corroborated by (1) the DNA analysis on the vaginal smear that matched appellant's DNA; (2) a witness placing appellant near the crime scene two hours before Ellis was assaulted; and (3) appellant's possession of the ring take from Ellis during the assault. Although we do not in any way condone the State's conduct in this case, after reviewing the record as a whole, we are confident that the improper argument had but a slight effect, if any, on the jury's determination of guilt. Accordingly, we find the error to be harmless. We overrule appellant's second issue.
 
Victim Impact Evidence
        In his third issue, appellant contends the trial court erred by allowing testimony about Ellis's mental state following her sexual assault. Generally, such evidence is not admissible during the guilt- innocence phase of the trial. See Brown v. State, 757 S.W.2d 739, 740-41 (Tex. Crim. App. 1988); Wilson v. State, 15 S.W.3d 544, 554 (Tex. App.-Dallas 1999, pet. ref'd). However, when as here, an appellant raises the issue of consent, such evidence becomes relevant and admissible because it tends to show the complainant did not consent. See Brown, 757 S.W.2d at 740-41. Thus, we cannot conclude the trial court abused its discretion by allowing the complained-of testimony. We overrule appellant's third issue.
 
CODIS Database
        In his fourth and fifth issues, appellant contends the trial court erred by allowing Ridgley to testify that appellant's DNA profile was found in the CODIS database because (1) it lacked relevancy, (2) was improper extraneous offense evidence, and (3) was unduly prejudicial. After reviewing the record, we cannot agree.
        At trial, Ridgley testified that unknown DNA samples such as the one obtained from Ellis's vaginal smear are placed into “a DNA database called CODIS, which stands for combined DNA indexing system.” Ridgley explained that CODIS contains “profiles that we obtain from samples from crime scenes and also there are samples from known individuals.” She then agreed with the prosecutor that the database is “analogous to fingerprints, government employees, not just criminals get their fingerprints taken, and there's a database for those fingerprints.”
        Under these issues, appellant first contends that the presence of his DNA profile on CODIS was not relevant to any issue in the case. The State maintains the evidence was relevant to show how appellant became the focus of the police investigation. Police officers may testify to explain the course of an investigation and how the defendant became a suspect. Cf. Lee v. State, 29 S.W.3d 570, 577-78 (Tex. App.-Dallas 2000, no pet.) (police officer's testimony indicated his investigation of appellant began after interviewing witness was not hearsay); Short v. State, 995 S.W.2d 948, 954 (Tex. App.-Fort Worth 1999, pet. ref'd) (complained-of testimony admissible because it merely explained why police officer began his investigation). Thus, we agree with the State that the complained-of testimony was relevant.
        Appellant next contends the evidence about the presence of his DNA profile on CODIS should not have been admitted because it was improper extraneous offense evidence. According to appellant, “savvy jurors will establish the link that 'known individuals' are in effect known offenders, (i.e., previously convicted of committing similar offenses).” We are mindful of the potential harm from such relatively unnecessary evidence and we would agree with appellant were it not for Ridgley's testimony that CODIS is “analogous to fingerprints, government employees, not just criminals get their fingerprints taken, and there's a database for those fingerprints.” Under these circumstances, we cannot make the assumption the jurors in this case disregarded Ridgley's explanation of the database and concluded that appellant was a “known offender” rather than merely a “known individual” such as a government employee. We overrule appellant's fourth issue.         Finally, appellant contends that even if the complained-of evidence is relevant, its probative value was outweighed by the danger of unfair prejudice. Under Texas Rule of Evidence 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. “Unfair prejudice,” as the phrase is used in rule 403, refers to the undue tendency of evidence to suggest a decision on an improper basis. See Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). When reviewing the trial court's decision, we are to reverse the trial court's judgment “rarely and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1991). When making this determination, we consider the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).
        We will consider each of these factors in turn. Ridgley's testimony about appellant's DNA profile on CODIS was of limited probative value. Although relevant to show how the police focused their attention on appellant, the complained-of evidence was not necessary to show a fact of any consequence in proving appellant committed the charged offense. Certainly, testimony about the presence of appellant's DNA profile on CODIS had the potential to impress the jury in an irrational manner, however, as we previously concluded, Ridgley's testimony that CODIS was analogous to the fingerprint database which has fingerprints from both government employees and criminals prevents us from reaching such a conclusion in this case. The time the State used to develop the complained-of evidence was minimal and did not serve to distract the jury from the indicted offense. Finally, although the evidence was helpful to understanding why the police focused on appellant, it was not particularly helpful in establishing the State's case against appellant. After considering the relevant factors, we strongly question the State's need for including this evidence. Nevertheless, we cannot conclude the trial court clearly abused its discretion in determining that its probative value was not substantially outweighed by the danger of unfair prejudice. We overrule appellant's fifth issue.
 
Suggestive Lineup
        In his sixth issue, appellant contends his due process rights were violated by the suggestive pretrial identification procedure used when Sheahan identified appellant as the man she saw near the parking garage two hours before Ellis was assaulted. We need not determine whether the lineup was impermissibly suggestive, because even assuming it was, the in-court testimony of an identification witness is still admissible when the record clearly reveals the witness's prior observation of the defendant was sufficient to serve as an independent origin for the in-court identification. See Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983).
        Here, the record clearly demonstrates that Sheahan's identification of appellant was of an independent origin. Sheahan testified that when she looked out of her window she observed appellant and made eye contact with him. She looked away because his “eyes were piercing.” Sheahan testified unequivocally that her identification was based on her observation of appellant and that she could have identified appellant without ever having seen the photographic lineup. Under these circumstances, we conclude any impermissibly suggestive procedure did not give rise to a substantial likelihood of misidentification. Thus, we cannot conclude appellant's due process rights were violated. We overrule appellant's sixth issue.
 
Prosecution Report
        In his seventh issue, appellant contends the trial court erred by admitting the prosecution report into evidence under the rule of optional completeness. We agree.
        After Muniz testified about his investigation of the offense, defense counsel showed Muniz the prosecution report and stated the report gave the time of the offense as 4:20 a.m. Counsel then questioned Muniz about the time discrepancy between the prosecution report and the offense report. Thereafter, the State offered the narrative portion of the prosecution report into evidence under the rule of optional completeness, arguing it was admissible because defense counsel read the first line of the report to Muniz. Counsel objected, claiming he did not read from the page being offered into evidence and because he did not “believe a prosecution report has ever been admissible.”
        Initially, the State maintains appellant failed to preserve error for our review because appellant did not object on the grounds that the prosecution report “did not fall within the rule of optional completeness.” We recognize that a general or insufficiently specific objection does not preserve error for appeal. Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990). However, if the grounds for the objection are obvious to the court and opposing counsel, then error is preserved. See id; Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). Stated another way, what would normally be considered an inadequate objection may be sufficient to preserve error if the grounds were apparent from the context in the record. Long, 800 S.W.2d at 548. Here, appellant objected immediately after the State offered the prosecution report into evidence pursuant to the rule of optional completeness. In the context of this record, we conclude appellant adequately apprised the trial court of the basis of his complaint on appeal, i.e., that the prosecution report is not admissible pursuant to the rule of optional completeness. See id. Thus, we turn to the merits of appellant's complaint.   See Footnote 1 
        Rule 107 is designed to guard against the possibility of confusion, distortion, or false impression that could be created when only a portion of evidence is introduced. See Grunsfeld v. State, 813 S.W.2d 158, 163 (Tex. App.-Dallas 1991), aff'd, 843 S.W.2d 521 (Tex. Crim. App.1992). There are two threshold requirements for the application of the rule. First, some portion of the matter sought to be “completed” must have actually been introduced into evidence. See Washington v. State, 856 S.W.2d 184, 186 (Tex. Crim. App. 1993); Mendiola v. State, 61 S.W.3d 541, 545 (Tex. App.-San Antonio 2001, no pet.). Merely referring to a statement does not invoke the rule. See Grunsfeld, 813 S.W.2d 163; Goldberg v. State, 95 S.W.3d 345, 386-87 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Second, the party seeking to complete the matter must show that the remainder being offered under rule 107 is on the same subject and is necessary to fully understand or explain the matter. See Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004); Mendiola, 61 S.W.3d at 545.
        Here, the State contends the narrative portion of the prosecution report is admissible because defense counsel “opened the door” to the entire report by reading the first sentence of the report. Defense counsel's use of the report to cross-examine Muniz about the time discrepancy in the prosecution report and the offense report did not invoke rule 107. Appellant did not introduce any portion of the offense report and, other than questioning Muniz about the time of the offense, it was not read to the jury. Moreover, nothing other than the first sentence of the report has to do with the time of the offense, and thus it was not necessary to fully understand or explain the matter of the time discrepancy. Consequently, we conclude the trial court erred by admitting the narrative portion of the prosecution report into evidence.
        Nevertheless, we must disregard this non-constitutional error unless it affected one of appellant's “substantial rights.” See Tex. R. App. P. 44.2(b). An error affects an appellant's substantial right when it has a “substantial and injurious” effect or influence in determining the jury's verdict. Wilsonv State, 90 S.W.3d 391, 393 (Tex. App.-Dallas 12002, no pet.). Thus, despite the error in appellant's case, we must affirm his conviction if, after examining the record as a whole, we are left with the fair assurance that the error did not influence the jury or influenced the jury only slightly. See id.
        In conducting this analysis, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire if material to the appellant's claim. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing harm, we consider such factors as the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Motilla, 78 S.W.3d at 355; Morales, 32 S.W.3d at 867. Whether the error was compounded or emphasized also can be a factor. See e.g., Motilla, 78 S.W.3d at 356.
        In this case, the State presented overwhelming evidence supporting the jury's guilty verdict. Ellis identified appellant as the man who sexually assaulted her. Her testimony was corroborated by the DNA evidence, Sheahan's testimony placing appellant near the crime scene two hours before Ellis was assaulted, and by appellant's possession of the ring taken from Ellis during the assault. Although the prosecution report was erroneously admitted, much of the contents of the report were proven by other evidence introduced at trial. The exception of course, was the statement in the report that the DNA sample obtained during the rape exam was compared to the state database of convicted sexual offenders, resulting in a match with a previous DNA profile obtained from appellant. The State did not, however, emphasize this statement to the jury. Based on the forgoing, we cannot conclude the error in admitting the prosecution report had no effect, or only a slight effect, on the jury's verdict. We overrule appellant's seventh issue.
Reporter's Record
        In his ninth and tenth issues, appellant contends the trial court erred by failing to (1) order the reporter's record corrected, and (2) appoint an expert to examine the court reporter's backup audiotape. We disagree.
        Specifically, appellant alleges the State's argument that Ellis “was brave enough to take the stand and talk about how she was sexually assaulted, beat up during the assault, and feared imminent death. Unlike [appellant] who was not man enough to get on that stand and defend himself” was not included in the reporter's record. Prior to submission of this case, appellant complained the reporter's record was missing this portion of the State's argument and requested a hearing to determine the accuracy of the reporter's record. We abated the appeal, and ordered the trial court to conduct such a hearing.
        At the hearing, the court reporter testified she had reviewed her electronic stenographic notes and the backup audiotapes and she did not find the missing portion of the argument. Appellant, appellant's wife, and appellant's mother, all testified that the State had made the argument and trial counsel had failed to object. Both prosecutors in the case denied making the argument. Thereafter, the trial court determined that no portion of the State's argument had been omitted, and the existing record accurately reflects the proceedings. The trial court also denied appellant's motion requesting appointment of an expert witness to examine the back-up tapes.
        Rule of appellate procedure 34.6(e)(2) deals with inaccuracies in the reporter's record; it provides, in part: “If the parties cannot agree on whether or how to correct the reporter's record so that the text accurately discloses what occurred in the trial court and the exhibits are accurate, the trial court must-after notice and hearing-settle the dispute.” Tex. R. App. P. 34.6(e)(2). We review the factual components of a trial court's decision under an abuse of discretion standard; that is, we afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
        Here, the trial court held a hearing and found the reporter's record accurately reflected the proceedings in the cases. The court reporter testified that she reviewed her notes and the back-up tape and did not find the argument. Both prosecutors testified they made no such argument. Thus, although appellant, appellant's wife, and appellant's mother testified the prosecutor made the argument, the trial court as fact finder was free to determine their testimony was not credible. Because there is evidence supporting the trial court's fact findings that the reporter's record is accurate, we cannot conclude the record shows an abuse of discretion. We overrule appellant's ninth issue.
        In his tenth issue, appellant contends the trial court erred by failing to appoint an expert to examine the court reporter's backup audiotape. Again, we disagree.
        We review the trial court's failure to appoint an expert witness for an abuse of discretion. See Deason v. State, 84 S.W.3d 793, 796 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd)(citing Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998)). An indigent defendant has the right to have an expert appointed upon a preliminary showing that the matters that the expert will address will likely be significant factors at trial. Rey v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995) (citing Ake v. Oklahoma, 470 U.S. 68, 74, (1985)). In Ake, the Supreme Court determined that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake, 470 U.S. at 83. The court of criminal appeals has extended the reasoning in Ake to cases involving various types of experts. See, e.g., Rey, 897 S.W.2d at 338-39 (pathologist in capital murder case); McBride v. State, 838 S.W.2d 248, 252 (Tex. Crim. App. 1992) (chemist in controlled substance case). However, the defendant must make a “preliminary showing of a significant issue of fact on which the State would present expert testimony, and which the knowledge of a lay jury would not be expected to encompass.” Jackson v. State, 992 S.W.2d 469, 474 (Tex. Crim. App.1999).
        Here, the trial court conducted a hearing and heard testimony from the court reporter and the prosecutors' supporting a determination that the reporter's record is accurate. At the hearing, appellant questioned the court reporter about her custody of the back-up tape and her ability to determine if the tape had been altered or the recorder had malfunctioned. Appellant, his mother, and his sister testified that the reporter's record was not accurate because it omitted the alleged argument. Thus, the record reflects appellant was allowed to present testimony that the reporter's record was inaccurate. After reviewing the record, we cannot conclude the trial court abused its discretion by determining an expert was not necessary to present or explain this claim. See Deason, 84 S.W.3d at 797 (trial court did not abuse its discretion by denying request for funds for an expert on eyewitness identification). We overrule appellant's tenth issue.
        Accordingly, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
050504F.U05
 
Footnote 1 Having concluded appellant preserved his complaint for appeal, we need not address appellant's conditional eighth issue, contending trial counsel was ineffective by failing to preserve error regarding admission of the prosecution report. See Henderson v. State, 208 S.W.3d 593, 594 n.1 (Tex. App.-Austin 2006, pet. ref'd).