Hammett, Jack Joseph v. State

Affirmed and Memorandum Opinion filed December 15, 2005 Affirmed and Memorandum Opinion filed December 15, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00769-CR ____________ JACK JOSEPH HAMMETT, Appellant V. THE STATE OF TEXAS, Appellee __________________________________________________________________ On Appeal from the 405th District Court Galveston County, Texas Trial Court Cause No. 02CR0620 __________________________________________________________________ M E M O R A N D U M   O P I N I O N A jury found appellant Jack Joseph Hammett guilty of manslaughter. Challenging his conviction, appellant brings eight issues alleging various errors during the voir dire process and the guilt/innocence phase of trial. We affirm. I. Factual and Procedural Background On December 5, 2001, Adam Roque (ARoque@) was driving a company delivery truck when he experienced a tire blowout. The blowout occurred while he was driving south on the inside lane of Interstate 45, near Highway 518 in League City, Texas. The disabled vehicle required a special wrecker due to its size and weight. Roque did not carry a mobile phone with him and was forced to leave his vehicle unattended while he went to seek assistance. Roque ran across the highway to a nearby place of business to call his employer. Roque=s employer directed him to stay with the disabled vehicle and wait for the wrecker to arrive. While Roque waited for the wrecker to arrive, he fell asleep in the vehicle. About two hours later, Jesse Hernandez, the wrecker manager, arrived to provide assistance. Hernandez also parked his vehicle on the inside shoulder of the highway. While Hernandez and Roque conversed on the inside shoulder of the highway, a silver Lincoln Continental driven by appellant, Jack Joseph Hammett, struck both Hernandez=s and Roque=s vehicles and a violent collision occurred. Roque was thrown several feet into the passing lane of the highway. However, Roque was able to stand up after being thrown and saw Hernandez lying in the road. Shortly thereafter, the police and emergency technicians arrived. Appellant was extricated from the Lincoln with the Ajaws of life.@ Both appellant and Roque were life-flighted to the hospital, while Hernandez was pronounced dead at the scene. After being charged with the offense of manslaughter, appellant pleaded not guilty. A jury found him guilty and after a separate punishment hearing, the trial court sentenced him to twenty years= confinement. Appellant filed a pro se application for writ of habeas corpus seeking relief to file an out-of-time appeal. This application for habeas relief was granted. Appellant filed a motion for new trial which was overruled by operation of law. Appellant now brings this appeal. II. Issues Presented Appellant asserts the following issues on appeal: (1) Did the trial court abuse its discretion by allowing voir dire questioning to continue even though there were two missing panel members and appellant had requested attachment of these missing members under articles 35.01 and 37.07 of the Texas Code of Criminal Procedure? (2) Did the trial court err by allowing the prosecutor to state law contrary to the indictment and inject new facts during voir dire, trial, and final argument? (3) Did the trial court err by allowing the prosecutor to claim he represented the Avictim@ and the Avictim=s@ family? (4) Did the trial court err by allowing the jury to be influenced by alleged emotional outbursts of the victim=s family members? (5) Did the trial court err by allowing the prosecutor to argue facts allegedly outside the record? (6) Did the trial court err by allowing alleged sidebar comments from the prosecutor? (7) Did the trial court err by allowing a police officer to testify regarding his opinion as to whether appellant committed manslaughter? (8) Does the cumulative effect of all of the errors stated in issues one through seven constitute reversible error? As explained more fully below, appellant waived several of his complaints and the remaining issues lack merit. III. Analysis A. Did the trial court abuse its discretion by failing to quash the jury panel or issue a writ of attachment under articles 35.01 and 37.07 of the Texas Code of Criminal Procedure for two jurors who failed to appear for voir dire? In his first issue, appellant contends that the trial court erred by failing to quash the jury panel or issue a writ of attachment under section 35.01 of the Texas Code of Criminal Procedure, for two jurors who failed to appeal for voir dire. The trial court found that the voir dire process would not be held up by these two jurors, overruled appellant=s motion to quash the panel, or alternatively attach the prospective jurors. We conclude that the trial court did not abuse its discretion. Article 35.01 provides: When a case is called for trial and the parties have announced ready for trial, the names of those summoned as jurors in the case shall be called. Those not present may be fined not exceeding fifty dollars. An attachment may issue on request of either party for any absent summoned juror, to have him brought forthwith before the court. A person who is summoned but not present, may upon an appearance, before the jury is qualified, be tried as to his qualifications and impaneled as a juror unless challenged, but no cause shall be unreasonably delayed on account of his absence. Tex. Code Crim. Proc. Ann. art. 35.01 (Vernon Supp. 2005). Whether the trial court errs by failing to quash the jury panel or attach the absent jurors is reviewed under an abuse-of-discretion standard. See Porter v. State, 623 S.W.2d 374, 377 (Tex. Crim. App. 1981) (holding that the trial court did not abuse its discretion in failing to attach the jurors under article 35.07 because the evidence presented failed to show that a person unauthorized by law excused the prospective jurors or that a person Awilfully summoned jurors with a view to securing a conviction or an acquittal@); Mendoza v. State, 552 S.W.2d 444, 447 (Tex. Crim. App. 1977) (stating that review of motion to quash jury panel is under an abuse of discretion standard);Dent v. State, 504 S.W.2d 455, 456 (Tex. Crim. App. 1974) (holding that trial court did not abuse its discretion in failing to hold a hearing on defendant=s motion to quash jury panel or writ of attachment as statute is directory, not mandatory.) Article 35.01, which provides for the attachment of absent jurors, is directory and not mandatory. See Moreno v. State, 587 S.W.2d 405, 407 (Tex. Crim. App. 1979); Dent, 504 S.W.2d at 456. Appellant must show both that he requested the attachment and that he was injured by the trial court=s failure to issue the attachment. See Dent, 504 S.W.2d at 457 (holding that because no injury was shown there was no reversible error); see also Jackson v. State, 745 S.W.2d 4, 17 (Tex. Crim. App. 1988) (holding that for the denial of an attachment to constitute reversible error, the defendant must establish that an injury occurred due to the trial court=s failure to grant his request for the attachments). Appellant failed to satisfy this burden of proof. Appellant was required to show that the denial of the attachment forced him to accept an objectionable juror on the jury. Here, the record does not show any identified juror whom appellant claimed was objectionable. See Jones v. State, 119 S.W.3d 766, 785 (Tex. Crim. App. 2003) (concluding that defendant failed to establish that he was forced to take an objectionable juror as a result of trial court=s denial of application for writs of attachment requiring appearance of prospective jurors, and thus denial of application did not constitute reversible error; and defendant did not at trial, or on appeal, point to any evidence to support his allegations that prospective jurors were challengeable for cause); Stephenson v. State, 494 S.W.2d 900, 906 (Tex. Crim. App. 1973) (holding that an Aobjectionable juror,@ for purposes of showing injury where defendant is allegedly forced to take an objectionable juror upon refusal of trial court to issue attachments for absent summoned jurors, means one against whom such cause for challenge exists as would likely affect his competency or his impartiality at the trial). At the end of voir dire, appellant did not make any further objection regarding the missing jurors nor did he identify any objectionable jurors, or even object to the seating of the jury. Thus, the record does not show injury to appellant resulting from the trial court=s rulings in this regard. See Hernandez v. State, 643 S.W.2d 397, 400 (Tex. Crim. App. 1982) (holding that record showed no injury to appellant resulting from the trial court=s overruling of his motion to attach absent venireman); Custard v. State, 812 S.W.2d 82, 87 (Tex. App.CHouston [1st Dist.] 1991, pet. ref=d) (holding that trial court=s denial of motion to attach did not constitute reversible error because the record did not show harm based on the trial court=s failure to grant the motion). We conclude that the trial court did not reversibly err by failing to grant appellant=s motion to quash the jury panel or issue a writ of attachment under section 35.01 of the Texas Code of Criminal Procedure, for the two jurors who failed to appeal for voir dire. Jackson, 745 S.W.2d at 17 (holding that trial court did not abuse its discretion by failing to grant the motion to quash or motion to attach because [appellant] failed to demonstrate harm by showing that he was forced to accept an objectionable juror.) Accordingly, we overrule appellant=s first issue. B. Did the trial court err by allowing the prosecutor to state law contrary to the indictment and inject new facts during voir dire, trial, and final argument? In his second issue, appellant argues that the trial court erred by allowing the prosecutor to state law contrary to the indictment and inject new facts during voir dire, trial, and final argument. More specifically, appellant states that the following comments made by the State were improper and harmful: (1) During voir dire, the prosecutor was explaining the difference between murder and manslaughter. The State stated, ANot that they didn=t have to have the intent to do anything. It=s just that their behavior was such that ordinary, standard, and prudent people would have deemed it reckless.@ (2) During voir dire, the State stated, AThe behavior of the individual was unreasonable prior to the time of this event even, though theBit was not something they intended to do, they can=t then come before you, can they, Mr. Johnson, and say it was an accident.@ (3) During voir dire, the State stated, AEven though I didn=t mean to cause the collision, I mean, that was not my intention, I didn=t mean to cause the collision, I didn=t mean that to happen . . . Some substantial unjustifiable risk.@ (4) During voir dire, the State, when discussing what the ordinary standard of care means, stated, AWe look at what other people are doing, and, hey, that seems to be pretty ordinary . . . That seems to be a deviation from the standard of care that ordinary people take, right?@ (5) During voir dire, in discussing the deviation from the ordinary standard of care versus a gross deviation from the ordinary standard of care, the State stated, ANow, running through every red light in Galveston on Broadway may be a grossCnot only is it a deviation, but some people may think, look, not only did you deviate, but it was you grossly deviated from the ordinary standard of care.@ (6) During its opening statement, the State stated, AYou=ll hear from six eyewitnesses, citizens just like you and I, who will tell you that the behavior they saw [appellant] engage in on December 5th of 2001, was a gross deviation from the ordinary standard of care.@ With certain exceptions not applicable here, to properly preserve an issue for appellate review, appellant must have made a timely request, objection, or motion, stating the specific grounds for the ruling he desired. See Martinez v. State, 867 S.W.2d 30, 35 (Tex. Crim. App. 1993). The objection must be made at the earliest possible opportunity and the complaint on appeal must correspond to the objection made at trial. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Appellant did not object to any of the above statements that form the basis for his second issue. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding that a defendant=s failure to object to a jury argument forfeits his right to complain about the argument on appeal); Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (stating that to preserve an objection for prosecutorial misconduct one must not only object but also request an instruction to disregard and move for a mistrial); Longoria v. State, 154 S.W.3d 747, 765 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (holding that defendant failed to preserve error as to comments made by the State during closing argument by failing to object to these comments during trial); Jenkins v. State, 870 S.W.2d 626, 629 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (stating that by failing to object to the prosecutor=s voir dire statements, appellant has presented nothing for review). Because appellant has not preserved error, we overrule his second issue. C. Did the trial court err by allowing the prosecutor to claim he represented the Avictim@ and the Avictim=s@ family? In his third issue, appellant contends that the trial court erred by allowing the prosecutor to make the following comment during voir dire: AI represent a victim, a human being who has been victimized.@ The prosecutor further identified himself as the victim=s and the victim=s family=s lawyer. The State contends that appellant did not preserve error as to this issue. We agree. Appellant did not make this objection at trial. See Draughon v. State, 831 S.W.2d 331 (Tex. Crim. App. 1992) (holding that defendant waived his complaint regarding the prosecutor=s comment that he represented a private interest by failing to object at trial). Because appellant failed to object at trial, he failed to preserve error. Accordingly, we overrule his third issue. D. Did the trial court err by allowing the jury to be influenced by alleged emotional outbursts of the victim=s family members? In his fourth issue, appellant argues that the trial court erred by allowing the jury to witness an emotional outburst by the decedent=s sister. The decedent=s sister ran out of the courtroom allegedly visibly upset during the testimony of Dr. Stephen Pustilnik, the forensic pathologist who performed the autopsy on the decedent. The State contends that appellant did not preserve error as to this issue. We agree. Appellant made no timely objection at trial, and did not receive an adverse ruling. The only objection made during Dr. Pustilnik=s testimony in regard to this issue occurred during the following exchange: [Defense counsel]: Judge, I have two requests. One would be that I would like to invoke the Rule at this time. I believe there are some witnesses who will testify todayBtomorrow in the courtroom. Secondly, and again, I certainly don=t want to be too callous about this. It=s a horrible case and it=s hard for the family to see this, but those kinds of displays of emotion in the courtroom over a protracted period of time are going to impact my client=s ability to get a fair trial in front of this jury, and I ask that if they can=t somewhat control their emotions, that they stay outside in the hallway. I don=t know how we do that, but I=m concerned coming back in, leaving. It emphasizes this case to the jury in a way that I simply can=t respond to without looking like a monster. Trial Court: Okay. [Defense counsel]: And I=m not saying the State intended that. Trial Court: Right. Okay, [Name of Prosecutor], you know the general instruction to go give the family and victims, let them know. [Prosecutor]: Sure, I=ll let them know. Trial Court: And it looks like they are trying to do the best they can to listen, that he asked them to leave when she started to cry, and it wasn=t a verbal or outward cry. Of course, the jury saw her crying. [Defense counsel]: Yes, sir. Trial Court: He also asked them to leave before he shows them State=s Exhibit 15, which is going to be hard for them to look at, but again, [Name of Prosecutor], if you can stress to them if they feel like they are going to get emotional, to please leave the courtroom. [Prosecutor]: I will, Your Honor. [Defense counsel]: Thank you, Judge. Again, I know that that=s hard to control. Everybody is pretty shaken by that. Trial Court: Do you have other witnesses in the courtroom? [Prosecutor]: No, sir. The only witness I had in the courtroom was Priscilla Alvardo, the sister. [Defense counsel]: Okay. And I don=t have a problem with her. I=ll excuse her. [Prosecutor]: That=s all. There are no other witnesses in the courtroom. And I wouldB Trial Court: Okay. [Prosecutor]: I would ask [Defense Counsel] to excuse Priscilla from the Rule. [Defense counsel]:: And I will excuse her. Trial Court: Okay. Very good . . . You may proceed. Except for certain exceptions not applicable here, to preserve error for appellate review, trial counsel must object and pursue his objection until counsel receives an adverse ruling. See Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). To reach the level of an adverse ruling, counsel must first object, and if the objection is sustained, he must follow that with a request for an instruction to disregard, and finally, if necessary, move for a mistrial. See Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). If trial counsel does not receive an adverse ruling, the error is not preserved for appellate review. See Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985). In Ramirez v. State, the Texas Court of Criminal Appeals held that an adverse ruling Amust be conclusory; that is, it must be clear from the record the trial judge in fact overruled the defendant=s objection or otherwise error is waived.@ 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). Here, there was no definitive adverse ruling against appellant. Indeed, appellant affirmatively stated that he did not have a problem with the decedent=s sister (Priscilla) remaining in the courtroom. Appellant failed to pursue his objection to an adverse ruling and thereby waived his complaint. We overrule his fourth issue. E. Did the trial court err by allowing the prosecutor to argue facts allegedly outside the record? In his fifth issue, appellant argues that the trial court erred by allowing the State to argue facts outside the record. Generally, appellant complains that the State was allowed to make references that linked appellant to the crime in a way that the evidence did not and could not prove. Appellant has four specific complaints within this issue, one of which occurred during examination of a witness, and the other three during the prosecutor=s final argument. First, appellant complains of the following testimony during re-direct examination of Adam Roque: Q: No one slammed in the back of you, did they, while you were sleeping in your truck waiting for JesseB A: No, sir. Q: - -for the entire hour and a half? A: No, sir. Q: And that was presumable [sic] because they were driving in their lanes of traffic? A: That=s correct. Q: And then along comes the defendant? At this point, appellant objected on the grounds that the question assumed facts not in evidence. The trial court overruled this objection. The question was never answered. Even if the trial court erred in overruling this objection, the record does not show that this would be reversible error. Under Rule 44.2(b), we are to disregard any error unless it affects appellant=s substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial, injurious effect or influence on the jury=s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In this case, there was a substantial amount of properly admitted testimony regarding appellant=s link to the silver Lincoln Continental. For instance, Detective Morton Grant testified that when he arrived on the scene appellant was still behind the wheel of the Lincoln. There was no evidence that anyone other than appellant had been driving the Lincoln at the time of the accident. In addition, there is properly admitted testimony that shows appellant had to be removed from the Lincoln with the Ajaws of life.@ Thus, we conclude that, even if the trial court erred in overruling appellant=s objection to the prosecutor=s statement, this error would not affect appellant=s substantial rights. See Tex. R. App. P. 44.2(b). Next, appellant complains about three statements by the prosecutor during closing argument. The first statement by the prosecutor is as follows: His defense, all of the sudden, is they didn=t prove it was my client, Jack Hammett, who was operating the silver Lincoln Town car at the time. This isn=t him. This isn=t him trapped in the bent-up wreckage of his vehicle. Appellant objected that there was no evidence that it was appellant=s vehicle. The trial court overruled this objection. We do not find any error with the trial court=s ruling on this objection. See Richards v. State, 912 S.W.2d 374 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d) (holding prosecutor=s statement regarding the complainant=s truthfulness was not an improper attempt to bolster his testimony; the statement could have reasonably been derived from the complainant=s answers before the jury). The second statement that drew an objection during closing argument is as follows: [Prosecutor]: You heard cars had to swerve. Can you imagine? It doesn=t take a leap of faith. You=re driving down I-45 with your family and all of the sudden in the rearview mirror, here he comes. [Defense Counsel]: Judge, I=m going to object. That=s not the evidence. It=s outside the record. Nobody identified him as the one doing the swerving. Trial Court: Again, ladies and gentlemen. You=re the judges of what was testified to and what was not testified to in the jury [sic] . [Prosecutor]: AOh, my God. What do I do? Where do I go? How do I get out of his way?@ What=s going through your mind? And then there he is. You=re trapped. There=s a car to your right and there=s an idiot to your leftC At this point, appellant objected that this argument was outside the record, and the trial court overruled his objection. The last statement in question is as follows: If you=re going to go back there and find this man not guilty because, well, geez, the State didn=t prove he was driving, that=s insane. I guess since that seems to be his only concern, he=s alreadyChe has no dispute to the fact that the driver of that silver Lincoln Continental [sic] was acting in a gross deviation from the ordinary standard of care. Appellant objected that this argument was outside the record, and appellant received an adverse ruling. We conclude that appellant properly preserved error as to these last two complaints. Presuming for the sake of argument that the trial court erred in overruling appellant=s objections to the last two comments, the record does not show reversible error. Under Rule 44.2(b), we are to disregard any error unless it affects appellant=s substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial, injurious effect or influence on the jury=s verdict. See King, 953 S.W.2d at 271. In making a determination under Rule 44.2(b), we consider three factors: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor=s remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting conviction). Mosley, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). We conclude that the comments made by the prosecutor (even combined) did not amount to severe misconduct. The prosecutor=s comments were summations or reasonable deductions of the testimony and evidence given at trial (including the testimony of Detective Grant) and therefore, these comments were not prejudicial. See Felder v. State, 848 S.W.2d 85, 94B95 (Tex. Crim. App. 1992). In this case, there was a substantial amount of properly admitted testimony regarding appellant=s link to the silver Lincoln Continental. As previously noted, Detective Morton Grant testified that when he arrived on the scene appellant was still behind the wheel of the Lincoln. There was no evidence that anyone other than appellant had been driving the Lincoln at the time of the accident. In addition, there is properly admitted testimony that shows appellant had to be removed from the Lincoln with the Ajaws of life.@ Moreover, even though no curative action was taken, given the mildness of the comment and the strength of the State=s case, we find that the error, if any, did not affect appellant=s substantial rights and therefore is harmless. Accordingly, we overrule appellant=s fifth issue. F. Did the trial court err by allowing alleged sidebar comments from the prosecutor? In his sixth issue, appellant contends the trial court erred by allowing the State to make several sidebar comments throughout the trial. Specifically, he points to the following comment made by the State while questioning the forensic pathologist: [Prosecutor]: . . . do you think that [sic] would constitute a gross deviation from the ordinary standard of care? [Defense Counsel]: Objection. Calls for legal conclusion. He=s not qualified to make that summation. Objection to improper predicate. [Prosecutor]: He=s just a person. He got into the whole accident issue. I=m going to try to see whether or not he would still refer to this as an accident the way [Defense Counsel] has attempted to make this jury believe he=s using the word Aaccident.@ [Defense Counsel]: I object to the sidebar, Judge. I=m going to object to the speaking objections. I ask that they be stricken from the record. Trial Court: Sustained. Appellant did not ask for any further relief. We conclude that appellant has not preserved error. To preserve error for appellate review, trial counsel is required to object and pursue his objection to an adverse ruling. See Tucker, 990 S.W.2d at 262. To reach the level of an adverse ruling, counsel first must object, and if the objection is sustained, he must follow that with a request for an instruction to disregard, and finally, if necessary, move for a mistrial. See Cook, 858 S.W.2d at 473. Without an adverse ruling, the defendant has been given all the relief requested at trial and he will not be heard to complain on appeal. Id. at 473. Accordingly, we overrule appellant=s sixth issue. G. Did the trial court err by allowing a police officer to testify regarding his opinion as to whether appellant committed manslaughter? In his seventh issue, appellant argues that the trial court erred by allowing Detective Grant to testify as to whether appellant committed manslaughter, an ultimate issue in the case. The State responds that appellant failed to preserve this issue for appellate review because his objection at trial does not comport with his objection on appeal. We disagree with the State. During re-direct examination of Detective Grant, the following exchange occurred: [Prosecutor]: And based uponChow he explained to you whether you knew how hard it was or how difficult it was to get to beyond a reasonable doubt, right, and whenever you know what that standard is, right? [Detective Grant]: Yes. [Prosecutor]: Based upon you interviewing the witness and what you saw at the crime scene, do you think in your opinion that not only did you have probable cause, but you have beyond a reasonable doubt that this man committed the offense of manslaughter? [Defense Counsel]: Judge, I=m going to object. That=s irrelevant. It calls for a legal conclusion. This witness hasn=t been qualified as a legal expert in this matter. He=s not an attorney. [Prosecutor]: [Defense Counsel] was the one who brought up the whole issue of standard of proof and do you know the difference between the two of them and what do you have to act upon? I=m developing that further with the detective, your Honor. Trial Court: Objection overruled. Appellant=s objection on appeal is similar in that he also argues that Detective Grant was not qualified as an expert on this issue. However, all of appellant=s references to legal authorities in support of this issue do not refer to testimony of expert witnesses. Appellant makes reference only to Texas Rule of Evidence 701 in his argument. This rule relates to lay witness testimony, not expert witness testimony. Whether an opinion meets the fundamental requirements of Rule 701 is within the sound discretion of the trial court and its decision regarding admissibility should be overturned only if there is an abuse of discretion. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992). Without reaching the issue of whether Detective Grant=s testimony was admissible lay witness testimony, we conclude that the trial court did not abuse its discretion in overruling appellant=s trial objection. During cross-examination, Detective Grant was questioned by appellant=s trial counsel as follows: Q: You would want to know all that before you made up your mind with respect to whether you had reason to believe something had happened that violated a law? That=s called probable cause, right? A: Right. Q: And that=s not beyond a reasonable doubt, is it? A: No. Q: It=s way below it, isn=t it? A: It=s not way below it. It=s just part of the case. Q: It=s not way below? Well, do you know the different standards of proof as we go up the scale? A: Yes. Q: So, you=re familiar with probable cause? A: Yes, sir. Q: Then you=re also familiar with civil case is [sic] preponderance of the evidence? A: Right. Q: That=s right here right next to it, going up. Clear and convincing evidence, you=re familiar with that. You do child abuse. [sic] That=s how you take somebody=s children away? A: Exactly. Q: Way over here, beyond a reasonable doubt, before you take someone=s liberty, right? You=re familiar with that. Okay, good. Now, so the decision you made, when you formed some opinion, whatever that opinion was about what had happened out there, that was down at the bottom of the scale. A little bit above reasonable suspicion, but a couple of links below on the chain beyond a reasonable doubt? A: Right. I got you. Appellant further tried to narrow Detective Grant=s opinions and findings as probable cause. Once appellant opened the door to this line of questioning, the State was fully justified in developing this testimony (in regard to the different standards of proof) during its re-direct examination. When defense counsel pursues a subject that ordinarily would be outside the realm of proper comment by the prosecutor, he opens the door and creates a right of reply for the State. Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1977); Gilbert v. State, 874 S.W.2d 290, 297 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). Once a matter is injected into the proceeding, evidence to fully explain the matter becomes relevant and admissible, even though the evidence might not otherwise be admissible. Id. Having opened the door, appellant is in no position to complain about this testimony. See Nelson v. State, 503 S.W.2d 543, 545 (Tex. Crim. App. 1974). Accordingly, we overrule appellant=s seventh issue. H. Does the cumulative effect of all of the errors stated in issues one through seven constitute reversible error? In his eighth issue, appellant argues that the cumulative effect of all errors asserted in issues one through seven constitute reversible error. In this case, however, we have examined appellant=s allegations of error individually and concluded each lacked merit. The cumulative effect of issues not found to be reversible error cannot constitute reversible error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (stating A[b]ut, we are aware of no authority holding that non‑errors may in their cumulative effect cause error@). Accordingly, we overrule appellant=s eighth issue. Having overruled all of appellant=s issues, we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed December 15, 2005. Panel consists of Chief Justice Hedges, and Justices Fowler and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).