ELTON ROGER JOHNSON, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed November 26, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01269-CR
No. 05-06-01270-CR
............................
ELTON ROGER JOHNSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause Nos. F05-26602-UHY, F05-26605-UHY
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OPINION
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Francis
        Elton Roger Johnson, Jr. appeals two convictions for aggravated sexual assault. In two issues, appellant contends the trial court erred in overruling his objection to evidence of extraneous bad acts and in denying his motion for mistrial. We affirm.
        The evidence establishes appellant broke into ex-girlfriend S.M.'s home at 3:00 a.m. while she was away working an overnight shift. After breaking down the door, appellant encountered S.M.'s nineteen-year-old daughter, N.L., nine-year-old granddaughter, and five-year-old grandson. After determining that S.M. was not home, appellant retrieved a knife from the kitchen, announced his intent to commit suicide, and sexually assaulted N.L. at knife point. When N.L. resisted the assault, appellant beat, choked, and pushed her. At one point, N.L. was knocked unconscious after falling from the bed. During the course of the assault, appellant told N.L. that he would sexually assault the nine-year-old if N.L. did not have sex with him. Appellant also threatened to kill N.L. and the children. After finishing his assault, appellant apologized to N.L., informed her he had herpes, masturbated under a blanket, and dictated his suicide note for her to write.
        When S.M. returned from work, appellant sexually assaulted her while holding the knife in his hand and threatened to kill her and himself. Before leaving, appellant took money from S.M.'s purse and stole her car. Appellant was later arrested, in a different car, after leading police on a wild pursuit that ended with him crashing his car into a concrete pole. DNA testing on spermatozoa left by the complainants' assailant showed appellant could not be excluded as a contributor and high odds against a random person having a similar match.
        The jury convicted appellant of both offenses. During the punishment phase, the State proved appellant committed a prior aggravated sexual assault alleged in the indictment for enhancement purposes, as well as several other offenses. Appellant did not call any witnesses during the guilt/innocence phase of trial, but did call two character witnesses during the punishment phase. After hearing the evidence, the jury found the enhancement paragraph true and assessed mandatory life sentences in each case.
        In his first issue, appellant contends the trial court erred in overruling his objection to the admission of extraneous bad acts he allegedly committed. Specifically, appellant complains about the State's redirect examination of Garland police officer B. Coffey. On direct examination, Coffey, a patrol officer, related that he was the first officer to arrive at the complainants' residence after the assaults. When he arrived, Coffey found the front door of the house kicked in and the grandchildren and N.L. visibly upset.         On cross-examination, appellant asked Coffey if he knew appellant. Coffey stated that he did, and he admitted that appellant was not present at the crime scene when he arrived. After appellant passed the witness, the prosecutor asked Coffey how he knew appellant. At that point, appellant objected to the question. In a hearing held outside the jury's presence, Coffey explained that he knew appellant because over a six-month period, he had responded two or three times to calls complaining that appellant was knocking on S.M.'s door, harassing her, and entering her backyard. The trial court overruled appellant's objection and allowed Coffey to testify before the jury regarding his previous service calls involving appellant and S.M.
        In front of the jury, Coffey stated he knew appellant because “we have had previous calls in the past involving him and [S.M.].” Coffey described only one call, when appellant was allegedly in S.M.'s backyard banging on the back door. Coffey stated that he never saw appellant at S.M.'s residence, but contacted appellant at appellant's own residence one block away.
        Although the trial court did not divulge its reason for allowing the evidence, both parties infer the trial court was persuaded the extraneous offense evidence was admissible on the theory appellant “opened the door” to the introduction of the evidence by asking whether Coffey knew appellant. Appellant contends he asked whether Coffey knew him solely for the purpose of establishing appellant was not present at the time of the offense and the door was not opened wide enough to allow the State to establish how Coffey knew him. The State responds that appellant invited its inquiry by suggesting to the jury that there was some relationship between appellant and Coffey. The State contends the jury was entitled to know the nature of the suggested relationship. Moreover, the State contends, even if the evidence was admitted erroneously, appellant was not harmed by the evidence because the complainants had already testified in front of the jury about appellant's prior disturbances at the residence. We agree with the State.         We review the trial court's determination to admit evidence under an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement. Id. We will uphold the trial court's determination if it is correct on any theory of law applicable to the case. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004) (en banc).
        Otherwise inadmissible evidence may be admitted if the opposing party “opens the door” to the evidence. Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997) (en banc). When a party introduces evidence revealing a portion of some act, the opposing party may inquire into the whole subject matter and introduce evidence of any other act necessary to fully explain the evidence. See Tex. R. Evid. 107 (the rule of optional completeness); Wright v. State, 28 S.W.3d 526, 535-36 (Tex. Crim. App. 2000). When a defendant “opens the door” by introducing evidence that only partially details an incident, the State may introduce otherwise inadmissible evidence to complete the presentation of the incident to the jury. See Arebalo v. State, 143 S.W.3d 402, 407-08 (Tex. App.-Austin 2004, pet. ref'd).
        The defense could have established that appellant was not present when Coffey arrived without inquiring whether Coffey knew appellant. By asking Coffey if he knew appellant, but not elucidating how, the defense arguably created the false impression that appellant and Coffey enjoyed some sort of relationship. The jury could infer that appellant's relationship with a police officer indicates he is a law-abiding citizen. The trial court does not abuse its discretion in admitting otherwise inadmissible evidence for the purpose of correcting a false impression created by the questioning of a witness. See Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002) (en banc). In our judgment, a determination that appellant “opened the door” for the State to enlighten the jury regarding why and how Coffey knows him does not lie outside the zone of reasonable disagreement. Thus, the trial court did not abuse its discretion in admitting Coffey's testimony.
        Moreover, even if we assume the trial court abused its discretion in admitting the disputed testimony, the error is harmless. Erroneous admission of evidence is nonconstitutional error that will be disregarded unless it affected appellant's substantial rights. See Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The erroneous admission of evidence does not affect substantial rights if, after examining the record as a whole, we are fairly assured that the error either did not influence the jury or had but a slight effect. Motilla, 78 S.W.3d at 355.
        Both N.L. and S.M. testified, without objection, about appellant's previous bad acts at the residence. N.L. testified that after S.M. ended her relationship with appellant, he appeared numerous times at their door late at night or early in the morning, “[b]eating down the door or the back door or calling and trying to push his way into the house.” During cross-examination, N.L. testified that she “had to call the police on him before.” S.M. also described appellant as beating on the door late at night. Thus, the fact that appellant had created disturbances at the complainants' residence, resulting in calls for assistance to the police, was already in evidence before Coffey testified. An error in admitting inadmissible evidence is not reversible if the evidence was admitted elsewhere without objection. Mitchell v. State, 68 S.W.3d 640, 643-44 (Tex. Crim. App. 2002) (en banc).
        Furthermore, in evaluating the harmlessness of an error, we may factor in the presence of overwhelming evidence supporting the judgment. See Motilla, 78 S.W.3d at 357-58. Appellant does not challenge on appeal the sufficiency of the evidence. The complainants presented extensive, graphic testimony of appellant's commission of two brutal sexual assaults and other bad acts. Their identification of appellant, a man well-known to them, as their assailant, went largely unchallenged. In addition to the complainants' testimony, the State also introduced appellant's videotaped confession to police wherein he told police where he left S.M.'s car with the knife still inside, and DNA evidence linking him to the offenses. We conclude Coffey's testimony regarding relatively trivial extraneous acts did not harm appellant. See id. at 355. Accordingly, we overrule appellant's first issue.
        In his second issue, appellant contends the trial court erred in denying his motion for mistrial made after the State delivered improper and prejudicial argument. The State responds that the argument was a proper plea for law enforcement and did not harm appellant. Again, we agree with the State.
        Appellant complains about the following exchange during the State's final argument in the guilt/innocence phase of trial:
[The State]: Ladies and gentlemen, when we look on the news, read the newspaper in Dallas County, we see that Dallas is one of the most violent counties in our country. Each and every one of us says, when will they do something about this?
 
[Appellant]: Excuse me, Your Honor. Counsel is arguing outside the record, and it's an improper plea for law enforcement.
 
[The Court]: Sustained.
 
[Appellant]: I would ask the jury be instructed to disregard the last comment.
 
[The Court]: Ladies and gentlemen, if you will disregard the last statement made by [the prosecutor].
 
[Appellant]: Move for a mistrial, Your Honor.
 
[The Court]: Denied.
 
[The State]: Ladies and gentlemen, we all ask, when will they do something about the crime in our community?
 
[Appellant]: Again, Your Honor, object on the grounds of improper plea for law enforcement and arguing outside the record.
. . .
 
[The Court]: Sustained.
 
[Appellant]: I would ask the jury be instructed to disregard.
[The Court]: Ladies and gentlemen, please disregard the last statement made by [the prosecutor].
 
[Appellant]: Move for mistrial.
 
[The Court]: Denied.
 
After this exchange, the prosecutor made an additional plea for law enforcement that appellant does not contest on appeal.
        Appellant contends the State exceeded the bounds of a proper plea for law enforcement by asking the jury to consider in its deliberations crime information from news sources. Appellant asserts that the injection of this new information caused him “evident” harm, although he does not explain specifically how he believes he was harmed.
        Proper jury argument falls within four general areas: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to opposing counsel's argument, and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc). Arguments that exceed the permissible bounds of these approved areas do not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Id. The remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Id. In most instances, an instruction to disregard improper remarks cures the error. Id.
        The State's evident purpose in making the disputed remarks was to link the jury's verdict to crime control efforts in Dallas County. See Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990) (plea for law enforcement may include arguing the jury's verdict would deter crime). Arguments that refer generally to news accounts of crime are permissible pleas for law enforcement. See, e.g., Minafee v. State, 482 S.W.2d 273, 276 (Tex. Crim. App. 1972) (describing, as proper plea for law enforcement, argument that the jurors had read their newspapers and asked themselves when someone would do something about crime).
        Moreover, the State's brief, general reference to Dallas's high crime rate, even if improper, does not, in our judgment, rise to the level of extreme or manifestly improper argument or inject the type of harmful facts necessary for us to conclude the trial court erred in not granting a mistrial. By instructing the jury to disregard the State's challenged remarks, the trial court cured the alleged impropriety. See Wesbrook, 29 S.W.3d at 115. We overrule appellant's second issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
061269f.u05