Court of Appeals of Texas, Dallas.

Benjamin Demille JOHNSON, Appellant,

v.

The STATE of Texas, Appellee.

No. 05-98-00045-CR.

|

July 5, 2001.

Before LAGARDE, O’NEILL, and FITZGERALD, JJ.

OPINION

LAGARDE.

*1 Benjamin Demille Johnson appeals his conviction, after a jury trial, of theft of property of the value of $20,000 or more but less than $100,000. The jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for sixteen years and a fine of $10,000. The trial court entered judgment in accordance with the jury’s verdicts on guilt and punishment.

Appellant brings twenty-one points of error on appeal. Appellant contends: (1) the evidence was legally and factually insufficient to support the judgment; (2) the trial court erred in refusing to consider his motion to quash; and (3) the trial court erred by denying him access to potential Brady material. Appellant also complains of various evidentiary rulings and portions of the State’s jury argument. For reasons that follow, we overrule appellant’s twenty-one points of error and affirm the trial court’s judgment.

Facts

For more than a decade, appellant was employed as the building superintendent for the Highland Park Presbyterian Church. Appellant supervised the church’s custodial staff and was responsible for overseeing the cleaning, maintenance, and repair of church property. Appellant was responsible for approving employee time sheets and vendor invoices. Each week, appellant would fill out the payroll sheet with the number of hours worked by each employee, sign and approve the hours, and submit the sheets to Devana Jackson, the church payroll clerk, for payment. Jackson would generate the checks based on the number of hours listed on the payroll sheets, obtain signatures on the checks from the church treasurers, and leave the signed checks for appellant to distribute. Appellant was also responsible for approving vendor invoices and submitting them to Jackson for payment. Jackson mailed some of these checks to the vendors directly, but held approximately ninety-five percent of the checks for appellant to pick up and distribute himself.

Jackson first began handling the church payroll in 1993. At that time, Jackson did not recognize two names on the payroll list, even though she had worked fifty to sixty hours a week at the church for nearly four years, and knew the other employees listed on the payroll. She did not recognize Frankie Lee Frederick or David Wayne Summers, but the payroll sheets indicated they were full-time employees who had earned overtime in addition to their weekly wages. She questioned appellant about Frederick and Summers. Appellant said they were his brother-in-law and stepson who worked at night and on the weekends. Jackson did not question appellant again, but, after the initial confrontation, Summers began emptying Jackson’s office trash can every evening.

Summers testified that, in 1993, appellant asked him to go by the church after work and empty Jackson’s trash can. Summers would stay at the church for about an hour each night during the school year, but did not stop by the church during the summer months. In exchange for this “work,” appellant gave Summers between $120 and $150 a month in cash. Summers had worked full-time for the church during the summer of 1988, but did not work full-time after 1988. Between 1991 and 1995, Summers would work for the church when he was in between jobs, but even then he did not work on a full-time basis. Summers was arrested a few weeks after appellant’s arrest. When he was arrested for these thefts, police investigators showed Summers a large number of checks made out to him by the church. Summers admitted knowing that the money he did receive from appellant was probably too high for the small amount of work he had done, but he did not know appellant was issuing additional checks in his name. In addition to giving a statement to police, Summers showed police which of those checks were actually received and endorsed by him and which checks did not include his actual signature. Out of 431 checks on which Summers’s name appeared as the endorser, only 76 of the checks were actually signed by Summers.

*2 In July 1993, Janet Shelton was in the process of applying for a school grant when she realized that appellant had charged income to her husband’s social security number. Even though her husband, Cody Shelton, had only helped out on projects at the church on two occasions, there were twenty-three checks made out to him for various projects. These checks reflected Cody Shelton’s name as endorser, but were not actually signed by him. Shelton did not give appellant permission to endorse the checks for him and the checks were for work Shelton did not do. Janet confronted appellant about the extra income charged to her husband’s social security number, but did not notify the church of these discrepancies until much later. But Brenda Smith, Frankie Lee Frederick’s ex-wife, did contact the church in 1994. She informed the church that Frederick had been receiving paychecks from the church for many years, even though he worked out-of-state as a truck driver and was not a full-time employee at the church. Smith learned that Frederick was on the church payroll when she tried to locate Frederick to collect past due child support payments. Frederick did not testify because he could not be served with process.

The evidence showed that during the time Frederick, Shelton, and Summers were all ostensibly working full-time at the church, they were actually working full-time for other companies. The church “paid” Frederick, Shelton, and Summers $68,998.77 for work done at times when they could not be working at the church because they were working at other full-time jobs. This aggregate amount did not include monies paid for time worked outside of the hours the men worked at other full-time jobs. Shelton received none of the money from the checks issued in his name. Those checks alone amounted to $18,384.60. The amount of money from those checks, plus the amount from the 355 checks made out to Summers but not received by him, totaled nearly $60,000.

In addition to this evidence, two former bank tellers from Nations Bank, Park Cities, testified that appellant often came into the bank alone and cashed checks made out to various church employees. Sometimes appellant would endorse the checks below the employee’s endorsement, and other times the tellers would cash the checks without requiring him to endorse the check. Appellant was a “known customer” at the bank, whereas Summers, Shelton, and Frederick were not “known customers.” The tellers usually placed a “known customer” designation on these checks, indicating that appellant cashed the checks. In 1995, the church began investigating appellant. During that investigation, Executive Minister Joseph H. Parker searched appellant’s office and desk. He found blank invoice forms, letterhead created from a vendor’s business card, and 1099 tax forms that had not been delivered to the appropriate vendor. Appellant was arrested in June 1995, and Summers was arrested a few weeks later. Following the arrests, the church hired attorney Ted Steinke to prepare an insurance claim for the church based on the losses caused by appellant’s thefts. The church ultimately received a $250,000 insurance settlement, the entire value of the policy.

Sufficiency of the Evidence

*3 In his first two points of error, appellant contends the evidence was legally and factually insufficient to support the judgment because the State failed to show a “sufficient nexus between appellant and the claimed total amount of money taken.” Specifically, appellant contends there was no evidence that appellant kept the money allegedly stolen from cashing checks or that he stole an amount greater than $20,000. We disagree.

1a. Legal Sufficiency

Appellate review of legal sufficiency is limited to determining whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In reviewing the sufficiency of the evidence, we consider all of the evidence, whether or not properly admitted. Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); see also Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App.1998). The fact finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996).

Under this indictment, the State was required to prove that appellant unlawfully appropriated money and bank account funds pursuant to one scheme and continuing course of conduct, with intent to deprive the owner, Joseph Parker, of the property and induced Parker’s consent by deception. The indictment defined “unlawful appropriation” as acquiring and exercising control over property other than real property. The aggregate value of the unlawfully appropriated property was described as $20,000 or more but less than $100,000.

The evidence was overwhelming that appellant falsified time sheets and vendor invoices, submitted them for payment, cashed the resulting checks, and kept the money. The evidence also supports a finding that the amount of money stolen was greater than $20,000. Summers testified that he did not receive the money from, and in fact was not aware of, the majority of the checks issued to him, ostensibly endorsed by him, and cashed by appellant. Shelton testified that he received none of the money from the checks issued to him, ostensibly endorsed by him, and cashed by appellant. The amount of money from those checks alone totaled $59,554.87, which was well above the required showing of $20,000. Moreover, the testimony of the Nations Bank tellers supported Summers’s and Shelton’s contentions that they did not receive money from those checks because appellant came into the bank alone when he cashed those checks, and his signature, or a known customer designation, was on each of those checks. Viewing the evidence in the light most favorable to the prosecution, the evidence is legally sufficient to support the judgment. We overrule appellant’s first point of error.

1b. Variance in State’s Proof

In appellant’s twentieth and twenty-first points of error, appellant contends the evidence is legally insufficient to support the conviction because Joseph Parker was not an owner or special owner for the entire period alleged in the indictment and there is no evidence that appellant appropriated “money or bank funds” as alleged in the indictment. These arguments lacks merit. Parker became the church’s executive minister in 1990, one year before the period alleged in the indictment. He was clearly an owner between 1991 and 1995, the period alleged in the indictment. Appellant also contends that, although Parker testified he had a greater right of possession to the church funds than appellant, the indictment alleged the stolen property was money and bank account funds, not church funds. This argument lacks merit. All the checks were drawn on the church’s bank account, which contained the church funds. Parker unequivocally testified that he had a greater right of possession to those funds as executive minister than did appellant.

*4 Appellant also contends the evidence does not prove all of the elements alleged in the indictment because the indictment did not allege that appellant induced the owner’s effective consent by promoting a scheme of presenting false employee time sheets and invoices. Appellant seems to argue that the evidence proves only that he falsified time sheets and invoices, not that he fraudulently appropriated money and bank funds. This argument lacks merit. The evidence clearly establishes that appellant presented falsified time sheets and invoices for payment and then cashed those checks himself. The evidence was legally sufficient to support the conviction and did not fatally vary from the allegations in the indictment. We overrule appellant’s twentieth and twenty-first points of error.

2. Factual Sufficiency

When reviewing the factual sufficiency of the evidence, we review all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim .App.1996). In conducting this analysis, our duty is to examine the jury’s weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury’s findings to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). Unless the record clearly reveals a different result is appropriate, we must defer to the jury’s determination concerning what weight to give contradictory testimony. Id. at 8. We reverse only if: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 11. A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997).

Viewing all of the evidence, we can not say the evidence is so weak, or the verdict so against the overwhelming weight of the evidence, as to be clearly wrong or unjust. On the contrary, the evidence overwhelmingly supports the verdict. Appellant did not testify and presented no evidence to contradict the State’s evidence. The evidence showed that appellant, as building superintendent, was responsible for approving all time sheets and vendor invoices. He falsified these time sheets and invoices, cashed checks made out to employees who did not work at the church for the amount of hours indicated on the time sheets, and kept the money for himself. Any evidence tending to contradict the State’s evidence goes simply to witness credibility. The jury heard the evidence, examined the exhibits, and reasonably concluded that appellant had indeed falsified church records, cashed checks derived from those false records, and kept the money for himself. We overrule appellant’s second point of error.

Jury Argument

1. Punishment Phase

*5 In his fourth point of error, appellant contends the trial court erred in overruling his objections that the State argued outside of the record during the punishment phase of trial. Specifically, appellant contends the State’s argument that appellant’s actions cause insurance rates to go up, thus harming “honest victims,” was improper because it was outside the record and harmful.

Permissible jury argument falls within one of four general areas: (1) summation of evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex .Crim.App.1997). Matters based on common knowledge are excepted from these rules and may be argued without express support in the record. Nenno v. State, 970 S.W.2d 549, 559 (Tex.Crim.App.1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999). The State contends the argument was both an acceptable plea for law enforcement and a matter based on common knowledge. We agree. The fact that insurance rates rise as more claims are paid is a matter of common knowledge. Moreover, the evidence showed that the church received a $250,000 recovery from its insurance carrier based on appellant’s theft. Thus, the argument was based on evidence in the record. The State’s argument emphasized the seriousness of appellant’s conduct and its impact on the church and society as a whole. This constitutes a proper plea for law enforcement. Accordingly, the trial court did not err by overruling appellant’s objection.

But even if the trial court erred in overruling appellant’s objections, such error was harmless. Erroneous rulings related to jury argument are generally treated as non-constitutional error within the purview of rule 44.2(b). Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App.2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070 (1999). Rule 44.2(b) requires any error that does not affect substantial rights to be disregarded. Tex.R.App.P. 44.2(b). 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 fair assurance that the error did not influence the jury or had but a slight effect.” Johnson, 967 S.W.2d at 417. The following three factors are used to analyze the harm associated with improper jury argument: (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 the conviction). Martinez, 17 S.W.3d at 692-93; Mosley, 983 S.W.2d at 259.

Here, the evidence overwhelmingly supported the punishment verdict and it is unlikely the jury overly relied on this small portion of the State’s jury argument in assessing punishment. The evidence showed that appellant had deceived and defrauded the church for years, and during the course of that fraud helped his friends and family by hiring them to do work at the church. The punishment evidence also showed that appellant received sexual favors in return for paying false invoices. This evidence supports the jury’s assessment of sixteen years confinement and a $10,000 fine. We overrule appellant’s third point of error.

2. Definition of Lesser-Included Offenses

*6 In his fifteenth and sixteenth points of error, appellant contends the trial court erred in allowing the State to argue that a lesser-included offense has a lesser punishment. Appellant contends this was harmful error because the jury was not supposed to consider punishment at the guilt/innocence phase of trial. During closing argument of the guilt/innocence phase of trial, the prosecutor, over appellant’s relevance objection, told the jury that “a lesser-included offense is an offense with less proof or less punishment.” Appellant appears to contend that this comment invited the jury to convict him of the greater offense merely because it carries a greater punishment. We disagree.

Though it is true that a plea to the jury to consider the amount of punishment, rather than the facts, in determining the offense for which an appellant should be convicted is manifestly improper, McClure v. State, 544 S.W.2d 390, 393 (Tex.Crim.App.1976), that is not what happened in this case. Here, the prosecutor defined the term “lesser-included offense” in the context of explaining how to read the charge. The prosecutor did not discuss the range of punishment for any of the lesser-included offenses and did not ask the jury to convict of the greater offense so appellant would receive a greater punishment. She simply defined the term “lesser-included offense,” explained how to read the charge, and then argued that the evidence in the case supported a conviction for the greater offense. This argument did not harm appellant and the trial court did not err in overruling appellant’s objections to it. See McCullen v. State, 659 S.W.2d 455, 459 (Tex.App.-Dallas 1983, no pet.) (holding that the trial court did not err in overruling the defendant’s objections to the prosecutor’s argument where the prosecutor did not ask the jury to convict because of different punishments and the argument was made in the course of explaining why the facts supported conviction for the greater offense). We overrule appellant’s fifteenth and sixteenth points of error.

Motion to Quash

In his fourth point of error, appellant contends the trial court erred in denying appellant’s motion to quash by refusing to consider the motion because it was untimely. Appellant filed his motion to quash on the day of trial. He contends the motion to quash was timely because at an earlier pre-trial conference the trial court granted appellant leave to file further pre-trial motions. This argument lacks merit. Article 1.14(b) of the code of criminal procedure clearly states that a defendant waives and forfeits his right to object to any defects, errors, or irregularities in the indictment or information unless he objects “before the date on which the trial on the merits commences.” Tex.Code Crim.Proc.Ann . art. 1.14(b) (Vernon Supp.2001) (emphasis added); see also State v. Turner, 898 S.W.2d 303, 306 (Tex.Crim.App.1995) (holding the defendant waived and forfeited his right to object to defects in the indictment because he waited until the day of trial to file his motion to quash), overruled on other grounds, Proctor v. State, 967 S.W.2d 840, 842 (Tex.Crim.App.1998). Here, appellant clearly waited until the day of trial to file his motion to quash. The fact that the trial court had previously granted appellant leave to file additional pre-trial motions does not make the motion to quash timely because a motion to quash must be filed in accordance with article 1.14(b) of the code of criminal procedure. Moreover, the trial court stated in its findings and recommendations¹ that when it granted appellant leave to file additional motions on or near the date of trial, it did not intend to convey, and did not believe it conveyed, the idea that a motion to quash would be entertained on or near the date of trial. Because appellant waited until the day of trial to file his motion to quash, he waived and forfeited his right to object to the indictment. We overrule appellant’s fourth point of error.

Punishment Evidence

1. Evidence of Sexual Escapade

*7 In his fifth through eighth points of error, appellant contends the trial court erred in allowing testimony about his sexual relationship with Monica Cox, a vendor who sold de-icing chemicals to the church. Specifically, appellant contends the testimony was irrelevant and unfairly prejudicial. During the punishment phase, William Shelton (“Shelton Sr.”) testified, over appellant’s relevance objection, that appellant showed him nude pictures of Cox. Bobby Maxwell testified, over appellant’s relevance, unfair prejudice, and hearsay objections, that Shelton Sr. told him that appellant submitted an invoice for a large order of de-icing chemicals, but did not actually buy that amount of chemicals. Instead, appellant bought a smaller amount, but paid Cox for the full amount billed. Then appellant met Cox in a hotel room and had sex with her. Shelton Sr. conceded that he thought the amount of de-ice ostensibly ordered seemed large and the money billed was probably not for that amount of chemicals. Although prejudicial, the State contends it is not unfairly prejudicial because the evidence goes to motive and the circumstances of the crime appellant committed. We agree.

A trial court’s evidentiary rulings are reviewed for an abuse of discretion. Prystash v. State, 3. S.W.3d 522, 527 (Tex.Crim.App .1999). A defendant’s character may be considered by the jury during the punishment phase of trial, as well as “any matter the court deems relevant to sentencing.” Tex.Code Crim.Proc.Ann. art. 37 .07, § 3(a) (Vernon Supp.2001). Rule 403 favors the admission of relevant evidence, but evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R.Evid. 403; Jones, 944 S.W.2d at 652. Here, the evidence that appellant submitted false invoices to the church and then used the money to pay a woman for sex is relevant to appellant’s motive and character. The probative value of this evidence is not substantially outweighed by the danger of unfair prejudice. We overrule appellant’s fifth through eighth points of error.

2. Miscellaneous Punishment Evidence

In his ninth through thirteenth points of error, appellant contends the trial court erred by admitting various pieces of punishment evidence over his objections. Specifically, appellant contends it was error to admit the following testimony: (1) that appellant told people he won a boat when an invoice found on his desk indicated he bought the boat; (2) that appellant visited Las Vegas once a year; (3) that appellant acted aggressively toward an employee; (4) that appellant drew workers’ compensation; and (5) that fraudulent invoicing increased when the church reduced appellant’s pension plan. Jackson, the church payroll clerk, supplied this testimony during the punishment phase of trial.

Jackson testified that appellant told her he won his boat, but after his arrest Jackson found a bill of sale for the boat in appellant’s desk. This indicated to Jackson that appellant had lied about winning the boat. This testimony was relevant to show appellant’s motive in perpetrating this scheme and was properly admitted over appellant’s relevancy objection. The fact that appellant visited Las Vegas once a year also shows appellant’s motive and was properly admitted over appellant’s relevancy objection. Jackson also testified that Eugene Venachanos, one of appellant’s employees, acted happier and more relaxed after appellant was arrested. According to Jackson, appellant had treated Venachanos as if he “couldn’t remember anything or couldn’t-didn’t know what he was talking about, about things they would be talking.” The trial court overruled appellant’s hearsay objection and did not rule on appellant’s earlier relevance objection to the question “how did the defendant treat Eugene?” By failing to obtain a ruling on his relevance objection, appellant waived his right to complain based on the relevance of the evidence. Tex.R.App.P. 33.1(a). The State also questioned Jackson about workers’ compensation benefits appellant allegedly received from the church. Jackson did not know when or if appellant received workers’ compensation benefits from the church, she only knew that appellant told her he was injured when he fell down the stairs at the church. No evidence was actually admitted that appellant drew workers’ compensation. Moreover, appellant did not object to Jackson’s testimony that appellant had been injured. Error, if any, is not preserved. Finally, Jackson testified there was an increase in the number of fraudulent invoices after appellant told her that his retirement plan had been cut in half. This evidence shows appellant’s motive for perpetrating this fraud and was properly admitted over appellant’s relevancy objection. Appellant does not tell us why any of this evidence was inadmissible or how its admission harmed him. Even if this testimony was improperly admitted, there is no evidence this testimony affected appellant’s substantial rights. As such, any error must be disregarded. See Tex.R.App.P. 44.2(b). Concluding there was no abuse of discretion, we hold the trial court did not err in admitting this evidence. Consequently, we overrule appellant’s ninth through thirteenth points of error.

Instructions to Disregard

*8 In his fourteenth point of error, appellant contends the trial court erred by not instructing the jury to disregard testimony after sustaining appellant’s objection to the testimony. The testimony at issue came from Janet Shelton, Cody Shelton’s wife, during the guilt/innocence phase of trial. She testified she had a confrontation with appellant in July 1993. Appellant was angry that the Sheltons did not speak to appellant while they were visiting Shelton’s father in the hospital. The prosecutor asked why she did not want to talk to appellant, and the following exchange occurred:

[SHELTON]: We have nothing to say to the man.

[STATE’S COUNSEL]: Why?

[SHELTON]: Because he has literally caused our life to be in an uproar.

[STATE’S COUNSEL]: How?

[SHELTON]: Well, he’s charged money to my husband’s social security. He’s literally caused him to lose his job at Tex-Pack. I ended up moving because I was scared at the time.

[DEFENSE COUNSEL]: Your Honor, I object to this being improper. Irrelevant.

[THE COURT]: Sustained.

[DEFENSE COUNSEL]: Ask the jury be instructed to disregard the previous answer by the witness.

[STATE’S COUNSEL]: As to which portion, Your Honor?

[THE COURT]: Well, that’s overruled. Untimely. Ask your next question.

Appellant contends the trial court’s failure to instruct the jury to disregard the testimony was harmful error, but does not indicate how he was harmed by this error. First, we conclude that the trial court did not err by refusing to instruct the jury to disregard the testimony because appellant’s objection and request for an instruction were untimely. An objection is timely if it comes at the earliest opportunity or as soon as the ground for the objection becomes apparent. Moore v. State, 999 S.W.2d 385, 403 (Tex.Crim . App.1999), cert. denied, 530 U.S. 1216 (2000). An objection made after the prosecutor has elicited the testimony comes too late. Angelo v. State, 977 S.W.2d 169, 177 (Tex.App.-Austin 1998, pet. ref’d). Here, appellant requested an instruction to disregard only the witness’s previous answer, not the previous line of questions and answers. Appellant knew from the previous questions that the State was attempting to elicit testimony from the witness concerning why she did not speak to appellant and how appellant had impacted the Sheltons’ life. As soon as the State asked the witness how appellant impacted the Sheltons’ lives, appellant should have objected. Because he waited until after the testimony was elicited, appellant’s objection was untimely. As such, it was not error for the trial court to refuse to give an instruction to disregard. Even assuming the trial court’s ruling was erroneous, such error was harmless.

Rule 44.2 governs what constitutes reversible error in criminal cases. See Tex.R.App.P. 44.2. Because this point involves an evidentiary matter concerning nonconstitutional error, rule 44.2(b) applies. Under rule 44.2(b), the court of appeals may reverse a conviction for a non-constitutional error only if it determines that the error affects a substantial right of the defendant. See Tex.R.App.P. 44.2(b). A substantial right is affected when the error 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) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect. Johnson, 967 S.W.2d at 417 (conviction reversed where no fair assurance that erroneous admission of witness statement and reference to extraneous murder may have influenced jury). Some of the factors reviewing courts look to in determining whether errors had a substantial and injurious effect or influence on the jury include the amount of evidence in the record supporting the jury’s verdict and the emphasis placed on the improper conduct. King, 953 S.W.2d at 271-73. Another factor worthy of consideration is the cumulative effect of multiple errors. Stahl v. State, 749 S.W.2d 826 (Tex.Crim.App.1988). In examining these factors, the appellate court evaluates whether the potential impact on the jury is more than slight. King, 953 S.W.2d at 271-73.

*9 Here, the evidence overwhelmingly supports the verdict and it is unlikely this small amount of testimony had a substantial and injurious effect or influence on the jury. This was one statement, from one witness, regarding her perceptions of how appellant’s actions affected her life. The trial court sustained the objection and instructed the jury in the charge not to consider any evidence rejected by the trial court. We must presume the jury followed these written instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998). Because this testimony was a small part of the large body of evidence supporting the conviction, we hold the trial court’s failure to instruct the jury to disregard the testimony was harmless. We overrule appellant’s fourteenth point of error.

Motion to Disqualify Ted Steinke

In his seventeenth point of error, appellant contends the trial court erred in overruling appellant’s motion to disqualify Ted Steinke as a witness. Appellant contends on appeal that Steinke should have been disqualified as a witness because his testimony was based on hearsay. Specifically, appellant contends Steinke’s testimony was based on evidence he gathered from other people, and was therefore inadmissible hearsay. However, at trial, appellant did not object to Steinke’s testimony on hearsay grounds. Appellant’s motion to disqualify Steinke as a witness states that Steinke should be disqualified pursuant to article 3.08 of the Texas Rules of Professional Conduct. Rule 3.08 addresses what steps a lawyer must take when he knows or believes he may be a witness in his client’s case. Appellant may not raise a hearsay objection for the first time on appeal. Tex.R.App.P. 33.1(a). Moreover, appellant failed to preserve error because his appellate complaint does not comport with his objection at trial. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995) (to preserve error for appellate review, complaint on appeal must comport with objection at trial, and an objection stating one legal theory may not be used to support a different legal theory on appeal). We overrule appellant’s seventeenth point of error.

Brady² Requests

1. Steinke’s Employment Contract

In his eighteenth point of error, appellant contends the trial court erred by denying him access to Steinke’s employment contract with the church. Specifically, appellant contends that because Steinke was called as a witness, his employment relationship with the church was “fair game for inquiry by the defense,” and the trial court’s denial of appellant’s request to inspect the employment contract “substantially affected Appellant’s right to a fair trial and unduly restricted his Sixth Amendment … right of confrontation.” According to appellant, the State used Steinke as an “offensive weapon” and then hid behind the work product doctrine to limit cross examination. These arguments lack merit.

Article 39.14 of the code of criminal procedure governs discovery of evidence in criminal cases. Tex.Code Crim.Proc.Ann. art. 39.14 (Vernon Supp.2001). The defendant does not have a general right to discover evidence in the State’s possession. Tex.Code Crim.Proc.Ann. art. 39.14 (Vernon Supp.2001). Independent of the constitutional right to exculpatory Brady material, a defendant is entitled to only limited discovery under article 39.14. Kinnamon v. State, 791 S.W.2d 84, 91 (Tex.Crim.App.1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App.1994). The defendant bears the burden under article 39.14 to show “good cause” for inspection of the sought after evidence. McBride v. State, 838 S.W.2d 248, 250 (Tex.Crim.App.1992). The trial court must allow discovery of evidence that is shown to be material to the defense of the accused. Id. A defendant “has a right to inspect evidence indispensable to the State’s case because that evidence is necessarily material to the defense of the accused.” Id. at 251. We will not disturb a trial judge’s decision under article 39.14 absent an abuse of discretion. Id. at 250.

*10 Appellant did not reveal in his brief or at trial how the evidence was “material to the defense” or “indispensable to the State’s case.” Appellant simply contends that because Steinke’s employment relationship with the church was an appropriate subject for cross-examination, he was entitled to discovery of Steinke’s contract with the church. We disagree. The employment contract was not indispensable to the State’s case or material to the defense. The church hired Steinke in 1995 to determine its losses from this theft and prepare an insurance claim. Steinke testified primarily as a summary witness and provided the court with various documents summarizing the voluminous documentation of the amount stolen by appellant. In particular, Steinke provided the court with a summary of the amount of money ostensibly paid to Fredericks, Summers, and Shelton for time allegedly worked at the church when they were actually working full-time elsewhere. Steinke compiled these voluminous documents during the investigation, used the information in his preparation of the church’s insurance claim, and created the summaries of the evidence for trial. The only bearing the employment contract would have on either parties’ case would have been to show that Steinke lied about the terms of his employment. Appellant was permitted to cross-examine Steinke about the terms of his employment. Moreover, the trial court inspected the contract in camera and assured appellant that he could see the contract if Steinke misrepresented its terms. Because appellant failed to meet his burden of showing good cause for inspection of the contract, and the trial court effectively protected appellant’s Sixth Amendment right to confrontation, we hold it was not error to deny appellant’s request to inspect the contract. We overrule appellant’s eighteenth point of error.

2. McCullough’s Records

In his nineteenth point of error, appellant contends his due process rights and Sixth Amendment right to confrontation were violated when the trial court denied his request that all of attorney Michael McCullough’s investigation notes be submitted for in camera review for exculpatory Brady material. The church hired McCullough to investigate the thefts. McCullough also helped prepare the case for prosecution. The State requested that the Rule³ be waived as to McCullough because the State needed McCullough, and his extensive knowledge of the church’s investigation and the State’s witnesses, to assist the State in presenting its case. The trial court waived the Rule as to McCullough and allowed him to remain in the courtroom as a representative of the victim. The State did not call McCullough as a witness, and he told the court that any information he did have would be privileged under the attorney-client privilege. Appellant asked for a bill of exception, arguing that if McCullough had discovered exculpatory evidence, that evidence would defeat his privilege. The trial court had previously ordered the State to turn over any exculpatory or impeaching Brady material to the defense. Moreover, the trial court specifically asked the State whether Steinke or McCullough had discovered any Brady material. The State assured the trial court and appellant’s trial counsel that it had turned over all the mitigating evidence found by the State and no exculpatory evidence had been discovered. The trial court then reiterated that the State had a continuing obligation to turn over any Brady material discovered throughout the trial. The trial court also asked McCullough directly if he had discovered any exculpatory evidence that had not yet been turned over and McCullough assured the trial court that he had not. The trial court ruled that McCullough could not be called as a witness by the State except as to any Brady material.

*11 Appellant then requested that a bill of exception be made regarding whether McCullough could be a witness for the defense. The trial court stated that McCullough would be allowed to remain in the courtroom, and appellant could make his bill of exception later that day. During that subsequent sub rosa hearing, appellant asked McCullough if he was present during interviews with any of the State’s witnesses. McCullough refused to answer on the basis of attorney-client privilege. Appellant then asked whether McCullough had notes from any meetings or interviews with the State’s witnesses. McCullough again refused to answer. The trial court agreed that the information sought by appellant was privileged under the attorney-client privilege or as work product. Appellant than asked McCullough to provide “his entire records” for an in camera inspection. Appellant asked the trial court to inspect McCullough’s records to determine if he had “any exculpatory evidence or any evidence to make him a witness in this case.” The trial court denied this request.

Appellant contends the trial court’s refusal to inspect McCullough’s records in camera violated his right to a fair trial and his Sixth Amendment right of confrontation. We disagree. Under Brady, a prosecutor has an affirmative duty to turn over to the accused all material, exculpatory evidence, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). The State’s suppression of exculpatory evidence violates due process if the evidence is material to either guilt or punishment, irrespective of the good or bad faith of the prosecution. Id. When suppression of exculpatory evidence is at issue, a defendant must show: (1) suppression by the prosecution after a defense request; and (2) the evidence was favorable and material. Moore v. Illinois, 408 U.S. 786, 794-95 (1972). To prove a violation of his due process rights, a defendant must show there is a reasonable probability that, had the State disclosed the evidence to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682 (1985).

Here, appellant has not shown that any exculpatory evidence was suppressed by the State, nor has appellant shown that if McCullough’s records had been inspected there was a reasonable chance exculpatory evidence would have been discovered and the results of the proceeding would have been different. Throughout trial, the trial court protected appellant’s due process and Sixth Amendment rights by reminding the State of its continuing obligation to turn over any Brady material. In fact, McCullough did come forward with potential Brady material following Summers’s testimony. McCullough told the trial court that while he was listening to Summers’s testimony, he realized that, during the investigation, Summers initially told McCullough that during the weeks the church time sheets indicated Summers had worked forty hours, he had actually worked about twenty hours. Later, Summers told McCullough that he really worked only about an hour a day, not twenty hours a week as he initially stated. Summers’s later statements to McCullough were consistent with his testimony at trial. Summers also testified that his testimony at trial was different from the story he initially told police. The trial court told appellant he could use the information as he wished and was free to question Summers about why he changed his story between his initial meeting with McCullough and trial. Because Summers testified he had changed his story with police investigators, this new evidence simply corroborated Summers’s own admission that he had changed his story several times. McCullough’s willingness to turn over this information as soon as he remembered it supports our conclusion that appellant has failed to prove any Brady material was suppressed. We overrule appellant’s nineteenth point of error.

*12 For the foregoing reasons, we overrule appellant’s twenty-one points of error and affirm the trial court’s judgment.

	Footnotes
1		This Court ordered the trial court to file findings on various issues regarding formal hearings conducted before trial. Within those findings and recommendations, the trial court stated “it did not intend and does not believe that it did in fact convey the idea that a motion to quash filed on or near the day of trial would be entertained.”
2		Brady v. Maryland, 373 U.S. 83 (1963) (requiring prosecution to divulge material evidence in its possession that is favorable to the accused, including impeachment evidence).
3		Tex.R.Evid. 614 (at the request of a party, the court shall order witnesses excluded from the courtroom so they cannot hear the testimony of the other witnesses).