Michael Ivison v. State

NUMBER 13-01-519-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI MICHAEL IVISON Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 148th District Court of Nueces County, Texas. O P I N I O N Before Chief Justice Valdez and Justices Yañez and Castillo Opinion by Justice Castillo Appellant, Michael Ivison, appeals from his conviction for burglary of a habitation with intent to commit theft,[1] enhanced by a repeat felony paragraph.[2] Appellant was sentenced by a jury to ten years imprisonment. Appellant raises two issues: 1) the trial court abused its discretion in allowing a witness to testify who was not on the witness list; and 2) the trial court erred in overruling defense counsel=s objection to the State=s improper jury argument which inserted a personal opinion. We affirm. FACTS On March 12, 2000, at approximately 10:15 at night, Robert Rice, Sheila Smith, and their three daughters, Tiffany, Amanda and Ashley, left their home to attend a neighbor=s birthday party. They returned at approximately 1:00 a.m. When Amanda entered her room, she noticed that things had been moved around and items destroyed. She went to her mother and told her that someone had been in the house. Smith called the police and the family began looking around to see if any items were taken. Nothing of value seemed to be gone but various rooms in the house were in a state of disarray with drawers opened, items moved and things scattered. Smith called the police a second time. Amanda, and a friend who was visiting her, walked into a back bathroom and noticed the shower curtain closed. Amanda thought this was unusual and opened it. Appellant was sitting in the bathtub. When Amanda opened the curtain, he jumped out and reached for the curtain, startling Amanda who ran screaming outside with her friend, her younger sister, Ashley and a telephone. Smith then looked in the bathroom, saw appellant, turned and told her husband that someone was in the bathroom, grabbed her daughter Tiffany, and ran outside where she called the police again. Rice rushed into the bathroom and asked, AWhat the . . . are you doing here?@ to which appellant replied, AI was waiting on you.@ Rice grabbed appellant by the throat, pinned him in the bathtub and held him until the police came. Later the police found a pillow case in the bathtub. The pillow case contained some lingerie and a dress belonging to Smith, clean and dirty undergarments belonging to the girls, and a photo album of the girls when they were infants. Rice and Smith both denied giving consent to appellant to enter their home. Rice said he had spoken to him only once before this incident, for about thirty seconds regarding some wood and a shower stall from a demolished trailer. According to Rice, appellant, while apparently under the influence of some intoxicating substance at the time, accused Rice of taking appellant=s wood and Rice explained he had bought the wood. Rice had wanted to buy the shower stall too, but appellant had already purchased it. This exchange had taken place about a year before appellant had entered Rice=s home. Smith denied knowing appellant before the incident but stated that after his arrest, he attempted to approach her when she was with her girls and would stare at her daughters. She told him repeatedly to leave her and her children alone. She would not let him speak on those occasions and so did not know if he was attempting to apologize. Tiffany Rice had seen appellant on one other occasion, some months prior to his entering her home. On that prior occasion, she and her sister Ashley asked two boys, Cody and Lonnie, if they could play football with them and appellant and they did. After they finished, she and her sister were going to go into their house when appellant asked Tiffany and Cody to go into his house to play a game. Tiffany declined the invitation, saying that her mother did not allow her to go into other people=s houses. Ruth Hein lived next door to the Rice family and, on the night of the offense sometime around nine o=clock, appellant had come to her door and asked her if she knew the people next door and when they would be home. She told him that she did not even know they were gone. He told her that he was going to go over and wait for them. Debra Shepherd was a friend of appellant=s girlfriend, Dora. On the night of the incident, Dora had an argument with appellant and called Shepherd at around 8:30 p.m., asking her to come over because Dora thought appellant was Aon some drugs,@ but he denied it, and she wanted Shepherd=s opinion. When Shepherd arrived, bringing her two children with her, appellant, who was Avery hyper@ and appeared to have been using drugs, went outside on the front porch with the children to play with the dog. Shepherd stayed inside with Dora, who had been drinking. Later the children came back inside, without appellant, whom the children reported had taken off walking down the street. Appellant testified at trial and gave his version of events. According to him, on the night of the incident, thinking his girlfriend Dora would be out late, he bought some methamphetamines and had used them. When his girlfriend, who had never been involved with drugs or the law, came home early and found him Ahigh@ on the drugs, she began screaming at him. He denied being Aon speed@ to her and so she called Debra Shepherd to come and give her opinion. After Shepherd arrived, appellant left and walked to the home of his neighbors, Robert Rice and Sheila Smith. Appellant explained that some time before, he bought a shower stall from a contractor who was tearing a house down; appellant planned to install the stall in his mother=s home where he lived. Rice had come by and said, AHey, I was going to buy that shower.@ Appellant offered to sell it to him and Rice said he did not have the money. Appellant kept the shower stall but it sat outside the garage for six months. Dora nagged him for several weeks to get rid of the stall because it was just there. The night of the incident, because of Dora=s yelling and threats, appellant decided to get out of the house and go to give the shower stall to Rice. Appellant stated that when he got to the door, he saw lights and cars but no one answered and the door swung open slightly. He opened the door, yelled, AIs there anybody home?@ and when he got no response, went to the next-door neighbor=s home and asked her if she knew where Rice and his family were. The neighbor did not know when they were going to be home and so he told her that he was going to wait for them. He then returned to Rice=s home and sat on the porch for approximately five minutes. Getting thirsty, he decided to enter the house for a drink of water. At the time, he was still under the influence of the methamphetamines. After his drink of water, he sat down in front of Rice=s television on his knees because there was no remote control. After a while, he rummaged through a closet in another room, looked at some records, and then went back to the television. Eventually, tired of kneeling, he took a pillowcase that was on some stacked laundry and filled it with some of the folded clothes to create a makeshift pillow, without looking at what he was putting in it. Sometime later he went to the bathroom, carrying the stuffed pillowcase with him. He heard the people coming in, panicked, and sat down on the pillowcase in the shower. He was discovered by a girl who ran out of the bathroom. Rice then came in the bathroom and appellant told him, AI=ve been waiting for you,@ but the man tackled him. Appellant tried to explain about the shower but Rice started choking him. Appellant pulled Rice=s arm off of him and then the police arrived. Appellant testified that he told the police the whole story and signed a written statement.[3] Appellant denied pulling out any drawers or going through the children=s bedrooms. He denied having the intent to commit a theft when he entered the Rice/Smith home and stated that he had tried numerous times to apologize for staying in their home for four hours, violating their home, and scaring their children. UNDISCLOSED WITNESS TESTIMONY In appellant=s first issue on appeal, he alleges that the trial court abused its discretion in allowing a witness to testify who was not on the witness list. Specifically, he claims the trial court erred in allowing Tiffany Rice, the daughter of Robert Rice and Sheila Smith, to testify of an extraneous incident in order to show appellant=s motive in entering the home. Procedural History On September 12, 2000, Appellant filed a motion for discovery which requested that the trial court order the prosecutor to provide a list of all witnesses which the State intended to call at trial. That request was granted.[4] Apparently, the name of Tiffany Rice did not appear on the list provided.[5] On the first day of trial, July 11, 2001, the defense made a motion in limine to exclude any evidence of extraneous acts of appellant related to child molestation or perversion. In response, the State announced its intention to call one of the Rice children to testify about a prior contact she had with appellant in which appellant invited the child, and another child who had been playing near his home, into the home for a drink in order to show appellant=s motive for stealing photographs and clothing of the children. Defense counsel objected that the proposed evidence was an extraneous offense offered to show character and so governed by rule of evidence 404(b), as well as rule 403.[6] The trial court disagreed that the incident was a Abad@ act and overruled appellant=s objection, but agreed that he would give defense counsel all the leeway he was entitled to in calling witnesses to rebut the Acharacter issue@ raised by the proposed evidence. The State never revealed the name of the witness at the hearing and appellant did not request it or any information about the witness. Shortly after this discussion, the judge called the witnesses forward to be sworn in. Among them was Tiffany Rice. Defense counsel made no objection to the swearing in of a witness who was not on the witness list, nor does the record indicate that he commented in any way, to the trial court or the prosecutor, about the swearing-in of Tiffany Rice as a witness. Later that day, prior to calling Tiffany, the prosecutor advised the judge and defense counsel that he intended to call her, reminding both of the issue discussed earlier about appellant inviting her into his home. The prosecutor stated that he would be offering the evidence in order to show motive and defense counsel argued that the State was trying to bring in irrelevant, A404(b)@[7] events. The trial judge responded that he believed the defense had Aopened the door@ by questioning the witnesses about the shower stall, to which the defense counsel answered, AOh, yes sir. I see what you mean.@ After the State reiterated that it was offering the testimony as evidence for appellant=s motive for entering the home in order to prove the required element of intent to commit theft, and noted that some of the items gathered by appellant were photographs and clothing of Tiffany, the judge ruled that he would allow the testimony. Defense counsel then asserted: Well, Your Honor, on another matter in this regard, I have had no notice up until now that Tiffany Rice was going to be a witness. We have a discovery order signed in this case that they are to produce witnesses to me. I have no notice that Tiffany Rice is going to be a witness. . . So I would object for failure to disclose. The prosecutor then argued he had not known what the defense was going to be and now had to address what had been brought up about the shower. The prosecutor claimed he had not known that appellant was going to question the proof of the element of intent to commit theft and so now the State needed to bring a witness to rebut appellant=s claims. Defense counsel disagreed with the prosecutor=s assertion that the State had no notice of the defense, explaining that he told the State from the beginning what appellant=s defense was. The judge then asked the prosecutor why he had not stated Tiffany as a potential witness since he knew about her Asince day one.@ The prosecutor responded that he did not know Asince day one@ about her[8] and again denied knowing what the defense was, at least as to the specifics of the shower. Defense counsel stated that he did not know what Tiffany was going to testify about but it had nothing to do with the burglary and was simply an attempt by the State to paint appellant as a Apervert.@ The court stated he would allow the testimony and would overrule appellant=s objection. Defense counsel asked the court for clarification, asking if the judge was overruling his objection regarding discovery and asking the witness to be excluded as a sanction for the failure to disclose. The judge replied that if the prosecutor did not know the testimony of the witness until the day before or that day, he had no obligation to disclose it to the defense. Defense counsel responded, AOkay, judge.@ The trial court went on to note that the State did have the duty to disclose now the substance of the witness=s testimony. The prosecutor responded that he had done so in the morning when he talked about the prior contact with appellant by the child. The judge then overruled the defense objections. Defense counsel responded, I=m gonna claim prejudice, and I am gonna claim lack of notice and I=m gonna ask for a continuance to prepare other witnesses to rebut what this young lady is gonna come in and say about my client, because my - - I got witnesses that is [sic] standing out in the hallway saying, I=ve seen this man with the children, all around the neighborhood, and he never gone [sic] nothing. He=s been B He can baby sit my kids anytime, I have young children, and nothing. So they are trying to throw a red herring in this case - - The judge responded, AI am here, and I=m listening . . . I am not trying to prevent you from defending your client. If you feel you must ask for a continuance, you do so, you know? . . . I am not preventing you from doing anything that you need to do to properly defendant [sic] your client. But first let=s see what this young lady is going to say.@ Defense counsel then responded, APerhaps we can get her in here and I can have a 404(b) hearing on this, because this is a 404(b) issue.@ The trial court denied the request, explaining that if there was a crime, he would allow a 404(b) hearing, but accepted the State=s argument that 404(b) did not apply because appellant=s inviting Tiffany into his home was not a crime. Defense counsel then asked if the trial court would allow the witness to first testify outside the presence of the jury, and the judge said, AOkay, I=ll allow it. Bring in the child. Sure. No problem.@ A hearing then took place, outside the jury=s presence, in which the State questioned Tiffany as to the evidence she would offer[9] and defense counsel cross-examined her. After the direct and cross-examination were complete, the trial court asked defense counsel if he had anything else before the jury came in. Counsel reurged his relevancy and 404(b) objections. Counsel made no reference to his discovery objections, did not reurge his request that the witness be excluded, and did not ask for a recess or continuance. The trial then continued and Tiffany testified. After the testimony of one more State=s witness, and three defense witnesses,[10] defense counsel requested a continuance Afor the rest of the afternoon@[11] because appellant was to be the next witness. When the judge responded ASo?,@ defense counsel stated that he needed time, because of the surprise testimony of Tiffany Rice, to go to the neighborhood and talk to some children and find out facts about appellant=s activity with children, specifically the children named in her testimony to find out if he did ask her into the house. Counsel noted that he had been prejudiced and surprised because he did not know about the witness and was asking only for a short continuance of an hour. The judge stated that he had the right to rebuttal witnesses and, after a short discussion, granted the request by recessing the case until 9:00 a.m. the next day. Standard of Review The standard of review for analyzing whether the trial court erred in allowing a witness who was not on a requested witness list to testify is abuse of discretion. Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. 1981). An abuse of discretion occurs when the trial court=s actions are unreasonable and arbitrary, without reference to any guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). So long as the trial court=s holding was within the zone of reasonable disagreement, the reviewing court should affirm. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Analysis Because of the discovery order signed in this case, all witnesses that were expected to testify at any stage of the trial should have been disclosed. See Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. 1981); Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977). In determining whether there has been an abuse of discretion in allowing a witness whose name does not appear on the State=s witness list to testify, we consider: 1) whether the prosecutor acted in bad faith; and 2) whether the defendant should have reasonably anticipated the witness=s testimony. Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000); Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993). However, in the present case, we do not reach the question of whether the prosecutor acted in bad faith[12] or whether the defendant should have reasonably anticipated the witness=s testimony[13] as we find that any claimed error was Amade harmless.@ Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994). The record reflects that, prior to Tiffany=s questioning outside of the presence of the jury, defense counsel made an objection as to lack of notice and failure to disclose. The trial court overruled the objection. Defense counsel then indicated that he would ask for a continuance, but did not actually do so. Instead, at counsel=s request, the witness was questioned outside of the presence of the jury. Following this questioning, appellant did not re-urge his objection as to lack of notice.[14] Nor did he indicate he needed more time, ask for a continuance, or ask for a recess. Had appellant needed more time to interview the witness at length outside of the courtroom, speak to other witnesses about this testimony, or in any other way investigate the claim the witness was making in order to be better prepared for cross-examination, he could have asked for a recess or a continuance prior to her testimony.[15] AHaving failed to do so, he >cannot now be heard to complain=@ of the lack of notice. Id. (citing Hubbard v. State, 496 S.W.2d 924, 926 (Tex. Crim. App. 1973)). Moreover, the trial court made efforts to remedy any harm that the appellant claimed he suffered due to the lack of notice. The trial court invited appellant to ask for a continuance; indicated it would allow appellant to put on any rebuttal evidence he needed; granted appellant the opportunity to question the witness outside of the presence of the jury; and granted the sole (one-hour) continuance that the defense requested. See Pinkerton v. State, 660 S.W.2d 58, 64-65 (Tex. Crim. App. 1983)(reviewing court considered trial court=s Astrenuous efforts@ to insure appellant not unfairly harmed by lack of notice of witness in determining whether abuse of discretion occurred.) We overrule appellant=s first issue. Improper Jury Argument Appellant=s second issue alleges that the trial court erred in overruling the appellant=s objection to an improper jury argument by the State. During the closing arguments, in the State=s Aopening@ argument, the State noted that the one contested element was that of intent to commit theft when appellant entered the habitation. The prosecutor stated he did not know how the defense intended to argue that issue but argued that, even if the jury believed appellant=s testimony that he had entered the home because he was thirsty, that was still sufficient evidence to prove intent to commit a theft because the water did not belong to him. The prosecutor began to say that there was evidence to argue that appellant intended to steal more than the water but opted to reserve further discussion of that until his closing argument. During defense argument, defense counsel stated that the crux of the case was the question of defendant=s intent in entering the home B whether appellant entered with the intent to commit a theft B and argued that although appellant admitted drinking some water, he had not entered with the intent to steal the water. Counsel then asserted that such an argument by the State was like the State saying it did not have enough evidence to convict him of stealing anything, but it could show he drank some water. Counsel concluded that the State was Aoverreaching@ and he anticipated the State would say that if the jury wanted to find appellant guilty of burglary, the jury would be able to do so, because appellant admitted to drinking water. Counsel emphasized that the jury had to consider appellant=s intent to commit a theft at the time he entered the home and the jury could not simply convict on the Atechnicality@ that appellant had admitted to drinking some water in the home. In its final closing argument, the State=s attorney stated, AI wanna first point out that I absolutely do not believe Mr. Ivison went in that home to get a drink, to commit a theft of water, but I only argue to you that B.A At that point, defense counsel objected to the comment as being improper jury argument as it expressed an opinion on the credibility of the witness. The objection was overruled and the trial court instructed the jury, AThis is - - this is not evidence by the way. Whatever both of the attorneys tell you is not evidence.@ The prosecutor concluded his thought with, AI just argue to you, even if, for some reason, you believe the defendant=s testimony, he=s guilty of burglary of a habitation.@ Appellant complains of the State=s remarks, AI wanna first point out that I absolutely do not believe Mr. Ivison went in that home to get a drink, to commit a theft of water, but I only argue to you that B.A Standards for Review It is well-established that proper jury argument is limited to: 1) summation of the evidence; 2) reasonable deduction from the evidence; 3) answers to argument of opposing counsel; or 4) a plea for law enforcement. Melton v. State, 713 S.W.2d 107, 114 (Tex. Crim. App. 1986); Flores v. State, 778 S.W.2d 526, 528 (Tex. App.BCorpus Christi 1989, no writ). However, even when arguments exceed the boundaries of these permissible areas, jury argument will not constitute reversible error, unless the arguments are manifestly improper, violative of a mandatory statute, or inject new, harmful facts into the case. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Furthermore, the remarks must have been a willful, calculated attempt by the State to deprive a defendant of a fair trial. Id. In most cases, an instruction to disregard will cure the error. Id. In reviewing a challenge to jury argument, the reviewing court looks at the context in which the challenged remarks appear. Jackson v. State, 17 S.W.3d 664, 675 (Tex. Crim. App. 2001); Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). A complained-of remark must be considered in the light of the entire argument, not as an isolated sentence taken out of context. Drew v. State, 743 S.W.2d 207, 220 (Tex. Crim. App. 1987). If a remark falls outside the bounds of proper jury argument, and constitutes reversible error by being manifestly improper, violative of a mandatory statute, or by injecting new, harmful facts into the case, the reviewing court must then determine whether such error was harmful. See Wilson v. State, 938 S.W.2d 57, 60-61 (Tex. 1996)(determining that prosecutor=s remarks were outside the record, manifestly improper, and prejudicial, and then conducting a harm analysis.) The court of criminal appeals has suggested that most improper jury arguments are not constitutional errors, but fall instead under Texas Rule of Appellate Procedure 44.2(b). Martinez v.State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2001)(commenting on holding in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)). Improper prosecutorial comments are non-constitutional errors and so reviewed under rule 44.2(b). Reed v. State, 991 S.W.2d 354, 364 (Tex. App.BCorpus Christi 1999, pet. ref=d). Under that standard, unless an error affects substantial rights, it must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error has 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). Conversely, substantial rights are not affected if, after reviewing the record as a whole, the reviewing court has fair assurance that the error did not influence the jury, or had only a slight effect. Motilla v. State, No. 598-01, 2002 Tex. Crim. App. LEXIS 137 at *6 (Tex. Crim. App. June 26, 2002). In reviewing the effect of the error upon the jury=s decision, the appellate court should consider everything in the record, including the presence of overwhelming evidence of guilt. Id. at *12. In improper argument cases, a determination of harm under the rule 44.2(b) standard involves balancing the following 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 judges); and 3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Martinez, 17 S.W.3d at 692-93; Mosley, 983 S.W.2d at 259. Accordingly, in the present case we will determine: 1) whether the challenged remark fell within the bounds of jury argument; 2) if not, whether it was manifestly improper or injected new, harmful facts into the case; and if so, whether 3) it was harmful. Wilson, 938 S.W.2d at 60-61. Analysis The general rule is that it is improper for a prosecutor to inject personal opinions into his statements to the jury. Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985). This is because it is improper for a prosecutor to infer that he has some special expertise or knowledge above that of the jury and impliedly invite the jury to rely on that expertise or knowledge in determining a contested fact issue, like the credibility of a witness. Id.; Buffington v. State, 801 S.W.2d 151, 157 (Tex. App.BSan Antonio 1990, pet. ref=d). It is the province of the jury, not the prosecutor, to determine the credibility of witnesses. Vasquez v. State, 819 S.W.2d 932, 936 (Tex. App.BCorpus Christi 1991, pet. ref=d). However, a prosecutor is permitted to argue his opinion about a case to the jury so long as it is based on the evidence in the record and does not constitute unsworn testimony. McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985)(argument AYou tell me, did not that boot make that print? If not, why not? Looks like it to me.@ was a reasonable deduction from the evidence); Ramos v. State, 419 S.W.2d 359, 368 (Tex. Crim. App. 1967)(argument ANow if you do not think that man was intoxicated, you go back there and say not guilty and I would have to say you were the stupidest - - A was the prosecutor=s opinion of the evidence and not unsworn testimony). This includes a prosecutor=s opinion about the credibility of a witness, even if that witness is the defendant. Barnes v. State, 70 S.W.3d 294, 308-09 (Tex. App.BFort Worth 2002, pet. ref=d). . The State argues that the remarks were made solely in response to defense counsel=s argument that the State would be attempting to overreach and ask the jury to find appellant guilty because of the theft of the water as well as the implication that the State could not prove any theft other than that of the water. The record supports this view of the argument. We find that the remarks were made in response to defendant=s arguments and did not exceed the bounds of the invitation.[16] See Lewis v. State, 676 S.W.2d 136, 142-43 (Tex. Crim. App. 1975)(where defense argued A[the State] knows that its case stinks to high heaven and they don=t want to search for the truth here,@ the State=s response that a prosecutor had a duty to seek justice, was not improper); Stone v. State, 583 S.W.2d 410, 416-17 (Tex. Crim. App. 1979)(where defense questioned why State had not called certain witnesses, it was not improper argument for the prosecutor to respond that she had not called them because she did not believe them); Jones v. State, 520 S.W.2d 755, 757 (Tex. Crim. App. 1975)(when defense referred to district attorney=s salary in closing arguments and suggested that the prosecutor suborned perjury, prosecutor=s responding argument that no one could pay him enough money to convict an innocent man was not improper.) Furthermore, the State argues, and we agree, that while the prosecutor did indicate his own personal opinion, he did not suggest any special knowledge or expertise or imply that the jury should rely on his opinion. See Johnson v. State, 698 S.W.2d at167. Indeed, the prosecutor acknowledged the jury=s responsibility to determine the credibility of appellant, albeit in a fashion that indicated his doubt as to that credibility. We do not find the remarks improper. Buffington, 801 S.W.2d at 157 (prosecutor=s statement that he Abelieved in what he did@ and Ain justice@ was not improper because prosecutor did not imply to the jury that they should rely on facts known to him and not to them). Moreover, even if the remarks did not fall within the limits of proper argument, and even if they could be considered manifestly improper or to have injected new and harmful facts before the jury and so be reversible error, analyzing the remarks under the Mosely factors, viewing them in the context of the entire trial and all the evidence presented as to guilt, these passing remarks, which were immediately followed by an instruction to the jury by the judge that the remarks were Anot evidence,@ were not harmful. Mosley, 983 S.W.2d at 259 (setting out factors for analysis of harm). We overrule appellant=s second issue. CONCLUSION Having overruled both of appellant=s issues on appeal, we affirm the judgment conviction. ERRLINDA CASTILLO Justice Do not publish. Tex. R. App. P. 47.3(b). Opinion delivered and filed this 30th day of August, 2002. [1] Tex. Pen. Code Ann. ' 30.02(a)(1)(Vernon Supp.2002). [2] Tex. Pen. Code Ann. ' 12.42(b) (Vernon 1994). [3] The police testified that no written statement was taken. [4] The order granting the request stated that the discovery was to be provided no later than October 19, 2000; however, the order itself was not signed until November 6, 2000. [5] No copy of the list appears in the record but the State does not contest appellant=s assertion that this name was not on the witness list. [6] Tex. R. Evid. 403, 404(b). [7] Tex. R. Evid. 404(b). [8] The prosecutor did not state when he came to know about the potential testimony or when he determined Tiffany was going to be a potential witness, and neither the defense nor the judge ever queried the prosecutor as to this fact. [9] Her testimony at this hearing was substantially similar to that offered at trial and detailed previously in this opinion. [10] One of the witnesses was a detective that had earlier testified for the State but was recalled by the defense. [11] It was then 4:00 p.m. [12] A finding of bad faith, moreover, would be problematic as the record in this case was not sufficiently developed for us to determine when the prosecutor became aware of Tiffany=s testimony or that she would be a witness in the case and therefore we do not know how long the delay was between the State=s determination that she would be a witness at trial and its notification to appellant of the same, much less whether that delay, if any, was unreasonable or indicated an intent to deceive. Absent a clear showing of bad faith demonstrating that the State willfully failed to timely supply notice of a witness, we will not find that a trial court abused its discretion in failing to exclude the witness=s testimony. See Hardin v. State, 20 S.W.3d 84, 89-90 (Tex. App.BTexarkana 2000, pet. ref=d); Pena v. State, 864 S.W.2d 147, 149 (Tex. App.BWaco 1993, no pet.). [13] We note, however, that Tiffany Rice was a family member present at the time of the discovery of the burglary and so the defense might have reasonably anticipated that she might be called. See Baker v. State, 797 S.W.2d 406, 409 (Tex. App.BFort Worth 1990, pet. ref=d)(where officer=s name appeared in offense report, defendant could have reasonably expected officer to be called). Furthermore, the record reflects some defense expectation of, or at least lack of surprise about, Tiffany appearing as a witness when counsel failed to claim lack of notice at the time of the hearing prior to trial or at the time of Tiffany=s swearing-in. Appellant=s emphasis throughout the record was not on his claimed lack of notice, which he raised once but did not pursue, but on his repeated and consistent 404(b) objections to her testimony. As to the 404(b) objection, we observe that the State was incorrect in its assertion to the trial court that conduct must be a bad act or misconduct in order for rule 404(b) to apply. Bishop v. State, 869 S.W.2d 342, 345 (Tex. Crim. App. 1993). However, the question of whether the trial court was incorrect in overruling defense counsel=s rule 404(b) objections to this testimony is not before us in this appeal. [14] As previously noted, the only objections raised after hearing her testimony were to as rule 404(b) and relevancy. [15] The sole request for continuance occurred after the defense had put on all of its witnesses except appellant. The defense requested a continuance of an hour, which the trial court granted. [16] A prosecutor may answer jury arguments by the defense as long as the response does not exceed the scope of the invitation. Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1988).