Marvin Lee WILSON Classification: Murderer Characteristics: Kidnapping - Retaliation Number of victims: 1 Date of murder: November 10, 1992 Date of birth: January 5, 1958 Victim profile: Jerry Robert Williams, 21 (police drug informant) Method of murder: Shooting Location: Jefferson County, Texas, USA Status: Sentenced to death on May 9, 1994. Executed by lethal injection in Texas on August 7, 2012 photo gallery

Summary:



Wilson and Andrews were arrested for Possession of Cocaine based upon the testimony of an informant, Jerry Robert Williams. Wilson told a friend he was going to "get" the snitch. Five days later, Wilson confronted Williams in the parking lot of a grocery store. According to eyewitnesses, Wilson stood over Williams and beat him, saying "What do you want to be a snitch for? Do you know what we do to a snitch? Do you want to die right here?" Williams managed to run away from Wilson and made it across the street to a field, where Wilson and Andrews caught up to him. Wilson and Andrews forced Williams into the car and gunshots were heard. His nude body was discovered the next morning. The autopsy showed that he died from close range gunshots to the head and neck. Eyewitnesses to the beating testified at Wilson's trial. Andrews was sentenced to life imprisonment. Wilson's final appeals focused upon his alleged mental retardation. IQ tests were administered throughout his life. In the first test, given at school when he was 13, he scored 73. The next test was given by Texas Department of Criminal Justice when Wilson was 29, when he scored 75. Wilson took three more IQ tests as part of the evidentiary hearing. His scores in those were 61, 75, and 79. Citations:



Wilson v. State , 938 S.W.2d 57 (Tex.Cr.App. 1996). (Direct Appeal - Reversed)

Wilson v. State , 7 S.W.2d 136 (Tex.Cr.App. 1999). (Direct Appeal - Affirmed)

Wilson v. Cockrell , 70 Fed.Appx. 219 (5th Cir. 2003). (Habeas)

Wilson v. Thaler , 450 Fed.Appx. 369 (5th Cir. 2011). (State Habeas - Retardation) Final/Special Meal:



Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit. Final/Last Words:



Wilson told his family he loved them. "Give mom a hug for me and tell her that I love her. Take me home, Jesus. Take me home, Lord. I ain't left yet, must be a miracle. I am a miracle. Y’all do understand that I came here a sinner and leaving a saint?" Wilson said he was ready and the lethal dose began. ClarkProsecutor.org Texas Department of Criminal Justice Wilson, Marvin Lee

Date of Birth: 1/5/58

DR#: 999098

Date Received: 5/9/94

Education: 11 years

Occupation: Construction

Date of Offense: 11/10/92

County of Offense: Jefferson

Native County: Jefferson

Race: Black

Gender: Male

Hair Color: Black

Eye Color: Brown

Height: 5' 9"

Weight: 218 Prior Prison Record: 12/16/91: Orange County, aggravated Robbery, 8 years.

5/22/87: Jefferson County, Robbery, 20 years. Summary of incident: Convicted in the shooting death of 21 year old Jerry Robert Williams. Wilson abducted and shot Williams following a physical confrontation between the two in the 1500 block of Verone in Beaumont. Co-Defendants: Andrew Lewis Texas Attorney General Friday, August 3, 2012 Media advisory: Marvin L. Wilson scheduled for execution AUSTIN – Pursuant to a court order by the 252nd District Court in Jefferson County, Marvin Lee Wilson is scheduled for execution after 6 p.m. on August 7, 2012. In 1994, a Jefferson County jury found Wilson guilty of murdering Jerry Williams during the course of a kidnapping. FACTS OF THE CASE The U.S. Court of Appeals for the Fifth Circuit, citing the Texas Court of Criminal Appeal’s description of the facts, described the murder of Jerry Williams as follows: On November 4, 1992, Officer Robert Roberts and other police officers entered [Wilson’s] apartment pursuant to a search warrant. Jerry Williams was the confidential informant whose information enabled Roberts to obtain the warrant. Williams entered and left the apartment minutes before the police went in. [Wilson], Vincent Webb, and a juvenile female were present in the apartment. Over 24 grams of cocaine were found, and appellant and Webb were arrested for possession of a controlled substance. Appellant was subsequently released on bond, but Webb remained in jail. Sometime after the incident, [Wilson] told Terry Lewis that someone had “snitched” on [Wilson], that the “snitch” was never going to have the chance to “have someone else busted,” and that appellant “was going to get him.” On November 9, 1992, several observers saw an incident take place in the parking lot in front of Mike’s Grocery. Vanessa Zeno and Denise Ware were together in the parking lot. Caroline Robinson and her daughter Coretta Robinson were inside the store. Julius Lavergne was outside the store, but came in at some point to relay information to Caroline. The doors to Mike’s Grocery were made of clear glass, and Coretta stood by the door and watched. Zeno, Ware, Coretta, and Lavergne watched the events unfold while Caroline called the police. These witnesses testified consistently although some witnesses noticed details not noticed by others. In the parking lot, [Wilson] stood over Williams and beat him. [Wilson] asked Williams, “What do you want to be a snitch for? Do you know what we do to a snitch? Do you want to die right here?” In response, Williams begged for his life. Andrew Lewis, Terry’s husband, was pumping gasoline in his car at the time. Williams ran away from [Wilson] and across the street to a field. [Wilson] pursued Williams and caught him. Andrew drove the car to the field. While Williams struggled against them, [Wilson] and Andrew forced Williams into the car. At some point during this incident, either in front of Mike’s Grocery, across the street, or at both places, Andrew participated in hitting Williams and [Wilson] asked Andrew: “Where’s the gun?” [Wilson] told Andrew to get the gun and said that he ([Wilson]) wanted to kill Williams. They drove toward the Mobil refinery. Zeno and Ware drove back to their apartments, which were close by, and when they arrived, they heard what sounded like gunshots from the direction of the Mobil plant. PROCEDURAL HISTORY Direct Appeal On December 18, 1992, a Jefferson County grand jury indicted Wilson for murdering Jerry Williams.

On April 28, 1994, a Jefferson County jury found Wilson guilty of murdering Jerry Williams.

After the jury recommended capital punishment, the court sentenced Wilson to death by lethal injection.

On December 11, 1996, the Texas Court of Criminal Appeals reversed Wilson’s conviction and remanded for a new trial.

On February 28, 1998, Wilson was again found guilty of murdering Jerry Williams by a Jefferson County jury.

After the jury recommended capital punishment, the court sentenced Wilson to death by lethal injection.

On December 8, 1999, the Texas Court of Criminal Appeals affirmed Wilson’s conviction and sentence.

On March 7, 2000, Wilson’s conviction and sentence became final when the time for filing a petition for writ of certiorari to the United States Supreme Court expired. Habeas Proceedings On December 27, 1999, Wilson sought to challenge his conviction and sentence by seeking an application for a state writ of habeas corpus with the state trial court.

The trial court detailed findings of fact and conclusions of law recommending that Wilson’s application be denied.

On October 11, 2000, the Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied habeas relief.

On October 11, 2001, Wilson filed a federal petition for a writ of habeas corpus with the District Court for the Eastern District of Texas.

On July 11, 2002, the district court issued an order dismissing Wilson’s petition for a writ of habeas corpus.

On September 6, 2002, the district court denied Wilson’s request for a Certificate of Appealability (COA).

On July 17, 2003, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s denial of relief and COA.

On June 19, 2003, Wilson filed a second or successive state writ of habeas corpus raising a claim of mental retardation under Atkins v. Virginia.

On November 10, 2003, the Fifth Circuit Court denied Wilson’s motion for authorization to file a second federal writ without prejudice.

In July 2004, the state trial court, Judge Gist, took judicial notice of the first hearing and conducted a second evidentiary hearing on the Atkins claim. On August 31, 2004, the state trial court recommended that relief be denied on Wilson’s second state writ.

On November 10, 2004, the Texas Court of Criminal Appeals adopted the district courts findings and conclusions and denied habeas relief.

On December 14, 2004, the Fifth Circuit Court returned Wilson’s motion for reinstatement in light of its prior ruling.

On December 15, 2004, the district court dismissed Wilson’s successive writ for lack of authorization.

On December 22, 2004, Wilson renamed and resubmitted his motion for reinstatement to the Fifth Circuit Court.

On December 13, 2005, the Fifth Circuit Court held that Wilson’s successive petition was untimely.

On January 9, 2006, Wilson petitioned the Fifth Circuit Court for rehearing en banc.

On March 10, 2006, the Fifth Circuit Court withdrew its original opinion and substituted a new one which equitably tolled the statute of limitations.

On July 30, 2006, Wilson timely filed an amended successive federal writ in the district court.

On March 31, 2009, the district court denied Wilson’s successive motion for habeas relief on the merits.

On July 7, 2009, the district court granted Wilson’s application for a COA.

On March 30, 2010, Wilson filed a motion for post-judgment relief in the district court.

On January 4, 2011, the district court denied post-judgment relief.

On November 16, 2011, the Fifth Circuit Court affirmed the findings of the district court denying Wilson habeas relief.

On December 19, 2011, Wilson filed a petition for en banc rehearing in the Fifth Circuit Court.

On February 23, 2012 the Fifth Circuit Court ordered that Wilson’s petition for en banc rehearing was mooted, and denied it as a petition for panel rehearing.

On February 29, 2012 Wilson filed a motion for leave to file a document supplementing his petition.

On April 19, 2012 the Fifth Circuit Court issued the mandate and denied Wilson’s motion for leave in light of the revised opinion.

On April 30, 2012 the U.S. Supreme Court granted Wilson’s motion to extend time for the filing of his certiorari petition.

On July 19, 2012 Wilson timely filed his certiorari petition in the U.S. Supreme Court. Texas executes man despite concerns over IQ By Allan Turner - Chron.com Wednesday, August 8, 2012 Marvin Wilson, the two-time armed robber who fatally beat and shot a Beaumont police informer he thought responsible for his arrest on a drug charge, was executed Tuesday at the state's Huntsville death house. Wilson's case, in which his lawyers argued he was mentally retarded, fueled global outrage among anti-death penalty activists. Passions rose to such a pitch that even the intellectually challenged protagonist of John Steinbeck's 1937 novella "Of Mice and Men" indirectly was sucked into the fray. Wilson's lawyers unsuccessfully argued that an IQ test on which the killer scored 61 - nine points below the standard for competency - should have saved him from execution under a 2002 U.S. Supreme Court ruling barring execution of the mentally retarded. The high court struck down Wilson's final appeal less than two hours before he was escorted to the death chamber. His attorney, Lee Kovarsky, called the ruling a "shocking failure." "It is outrageous that the state of Texas continues to utilize unscientific guidelines to determine which citizens with intellectual disability are exempt from execution. (The guidelines) are not scientific tools, they are the decayed remainder of an uninformed stereotype that has been widely discredited by the nation's leading groups on intellectual disability …" Wilson, 54, was pronounced dead at 6:27 p.m., 14 minutes after his lethal injection began. Before the lethal dose was administered, Wilson smiled and raised his head from the death-chamber gurney, nodding to his three sisters and son as they watched through a window a few feet away. He told them he loved them and asked that they give his mother "a big hug." "Y'all do understand that I came here a sinner and leaving a saint," he said. "Take me home Jesus, take me home Lord, take me home Lord!" Ignores victim's family Wilson urged his son not to cry, told his family he would see them again, and then told the warden standing next to him that he was ready. He didn't acknowledge his victim's father, two brothers and an uncle who were watching through an adjacent window. As the lethal drug took effect, Wilson quickly went to sleep. He briefly snored before his breathing became noticeably shallow, then stopped. Wilson was convicted of the 1992 murder of Beaumont police informant Jerry Williams. Wilson was free on bail at the time of the killing after his arrest on a cocaine charge. Witnesses testified that Wilson and an accomplice, Andrew Lewis, beat Williams, then abducted him. Residents near the crime scene reported they later heard a gunshot. Williams' body, badly beaten and bearing a gunshot wound and attired only in socks, was found beside a nearby road. Wilson was arrested the next day as he reported to his parole officer. At the time of the killing, he had been on parole after serving four years of a 20-year armed robbery sentence, his second such offense. Lewis is serving a life sentence for his role in the crime. His wife testified that Wilson had confessed the murder to her. Steinbeck allusion Kovarsky said his client had the language and math skills of a pupil in elementary school. Prosecutors countered that Wilson only once produced an IQ score indicative of mental retardation. While lawyers for the killer awaited the U.S. Supreme Court's final decision in the case, debate raged online. The most unlikely indirect participant was Lennie Small, the childlike figure in John Steinbeck's turbulent tale of ranch life. In 2004, the Texas Court of Criminal Appeals, in a 21-page effort to establish guidelines for determining mental retardation in capital cases, alluded to Small as a character most Texans would be unlikely to execute. "But," the court reasoned, "does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?" The court ruling identified factors other than IQ that could be used to determine a killer's competency. In 2002, the U.S. Supreme Court held that executing mentally retarded killers is unconstitutional, but left the states free to define the condition. Thomas Steinbeck, novelist, journalist and son of the Pulitzer- and Nobel Prize-winning author, blasted the court for its "spurious" use of his father's fictional character as a "benchmark to identify whether a defendant with intellectual disability should live or die. … Lennie was never intended to be used to diagnose a medical condition like intellectual disability." Death 'no punishment' In a statement released by a representative of Wilson's lawyers, Steinbeck said he was "deeply troubled" by the scheduled execution. In a later interview, however, he conceded that his primary objection was the court's use of Lennie in its 2004 ruling. "My father didn't have problems with the death penalty if it was warranted," he said. "I think it's worthless because it doesn't deliver the kind of punishment I want. I want him in prison for the rest of his bloody life; to wake up every day and see the situation around him. That's punishment. Death is no punishment. It's a light way out." In Steinbeck's novel, Small's friend and traveling companion, George Milton, shoots him in the head. The killing occurs as a mob forms to seek vengeance against Small, who inadvertently killed a ranch foreman's wife. Texas executes man despite his low IQ claims By Cody Stark - ItemOnline.com August 7, 2012 HUNTSVILLE — A Jefferson County man, whose attorneys hoped a mental impairment claim would spare him from execution, was put to death Tuesday night after the U.S. Supreme Court denied his appeal. Marvin Wilson, 54, who was sentenced to death for the 1992 murder of 21-year-old Jerry Williams in Beaumont, was pronounced dead at 6:27 p.m., 14 minutes after the lethal dose was administered. Attorneys for Wilson filed an appeal with the Supreme Court before Tuesday’s execution stating that Wilson did not qualify for the death penalty because he scored a 61 on an IQ test in 2004, which is nine points below the generally accepted minimum competency standard of 70. Attorneys for the state argued that Wilson’s claim was based on a single test that may have been faulty and that his mental impairment claim wasn’t supported by other tests and assessments of him over the years. The Supreme Court denied Wilson’s request for a stay of execution less than two hours before his lethal injection began. The warden asked Wilson if he had a final statement to make before the execution was carried out and Wilson told his family he loved them. He also said that he was going “home.” “Y’all do understand that I came here a sinner and leaving a saint,” Wilson said. “Take me home Jesus. Take me home Lord.” Wilson said he was ready and the lethal dose began. His breathing became labored and he lost consciousness. Wilson was the seventh inmate to be executed in Texas this year and the second since the state switched to a one-drug method. Wilson was convicted of murdering Williams in November 1992, several days after police seized 24 grams of cocaine from Wilson’s apartment and arrested him. Witnesses testified that Wilson and another man, Andrew Lewis, beat Williams outside of a convenience store in Beaumont. Wilson, who was free on bond, accused Williams of snitching on him about the drugs, they said. Witnesses said the Wilson and Lewis, who received a life sentence for his role in the murder, then abducted Williams, and neighborhood residents said they heard a gunshot a short time later. Williams was found dead on the side of a road the next day, wearing only socks. He had been severely beaten and shot in the head and neck at close range. Wilson was arrested the next day when he reported to his parole officer on a robbery conviction for which he served less than four years of a 20-year prison sentence. It was the second time he had been sent to prison for robbery. In Wilson’s Supreme Court appeal, lead defense attorney Lee Kovarsky said Wilson’s language and math skills “never progressed beyond an elementary school level,” that he reads and writes below a second-grade level and that he was unable to manage his finances, pay bills or hold down a job. The Supreme Court issued a ruling in 2002 outlawing the execution of the mentally impaired, but left it to states to determine what constitutes mental impairment. Kovarsky argued that Texas is trying to skirt the ban by altering the generally accepted definitions of mental impairment to the point where gaining relief for an inmate is “virtually unobtainable.” “That neither the courts nor state officials have stopped this execution is not only a shocking failure of a once-promising constitutional commitment, it is also a reminder that, as a society, we haven’t come quite that far in understanding how so many of those around us live with intellectual disabilities,” Kovarsky said shortly after the court refused to stop Wilson’s execution. State attorneys say the court left it to states to develop appropriate standards for enforcing the ban and that Texas chose to incorporate a number of factors besides an inmate’s IQ, including the inmate’s adaptive behavior and functioning. Edward Marshall, a Texas assistant attorney general, said records show Wilson habitually gave less than full effort and “was manipulative and deceitful when it suited his interest,” and that the state considered his ability to show personal independence and social responsibility in making its determinations. “Considering Wilson’s drug-dealing, street-gambler, criminal lifestyle since an early age, he was obviously competent at managing money, and not having a 9-to-5 job is no critical failure,” Marshall said. “Wilson created schemes using a decoy to screen his thefts, hustled for jobs in the community, and orchestrated the execution of the snitch, demonstrating inventiveness, drive and leadership." Marvin Wilson Execution: Texas Puts Man With 61 IQ To Death HuffingtonPost.com August 7, 2012 NEW YORK -- Texas authorities executed Marvin Wilson, a 54-year-old death row inmate, on Tuesday night after his attorneys failed to convince state and federal courts that he was mentally retarded and ineligible for the death penalty under a 2002 Supreme Court ruling. Wilson was declared dead at 6:27 p.m. local time. He cried out to his gathered family members as he expired, Texas officials said. "Give mom a hug for me and tell her that I love her," Wilson said. "Take me home, Jesus. Take me home, Lord," he continued. "I ain't left yet, must be a miracle. I am a miracle." The Supreme Court late in the afternoon rejected without comment a last-ditch appeal by Wilson's lawyers, clearing the way for his death by lethal injection. The appeal cited a 2004 psychological exam that pegged Wilson's IQ at just 61. The Texas benchmark for mental retardation is an IQ of about 70 or less. "We are gravely disappointed and profoundly saddened that the United States Supreme Court has refused to intervene," said Lee Kovarsky, Wilson's attorney and a law professor at the University of Maryland. Wilson was convicted in 1994 in the shooting death of Jerry Williams, 21, who had identified him to police as a drug dealer. His accomplice in the crime, Terry Lewis, was given life in prison with the possibility of parole, after Lewis's wife testified that Wilson confessed to pulling the trigger. No forensic evidence or eyewitness testimony established the identity of the shooter. Wilson maintained that he did not commit the murder, but his defense ultimately hinged on convincing state or federal courts that his diminished mental capacity should exempt him from execution. School records showed Wilson fared poorly in school, earning Ds and Fs in special education classes, and failing 7th grade. Family members testified that Wilson was called "dummy" and "retard" by other children when he was a boy, and struggled with basic tasks that include tying his shoes, counting money and mowing the lawn. Texas and federal courts, however, rejected Wilson's claim that he was mentally retarded, siding with prosecutors who argued that his actions showed him to be a street-savvy criminal. Prosecutors also declared that other intelligence tests showed Wilson's IQ was in the low- to mid-70s. "Wilson created schemes using a decoy to screen his thefts, hustled for jobs in the community, and orchestrated the execution of the snitch, demonstrating inventiveness, drive and leadership," Edward Marshall, a Texas assistant attorney general, said in a statement. In 2002, the Supreme Court prohibited the execution of the mentally retarded, declaring it cruel and unusual punishment forbidden under the Constitution's 8th Amendment. Those with diminished mental capacity, the court ruled, are less culpable for their crimes than those with normal intellects. The reasoning was nearly identical to the legal argument the court embraced in forbidding the execution of juvenile offenders. The court left it up to the states to determine who qualified as mentally retarded. In response, the Texas Court for Criminal Appeals, the top state court, cited in a ruling the child-like character "Lennie," from John Steinbeck's classic novel "Of Mice and Men," as its standard of what type of offender should be exempt from execution. "Most Texas citizens would agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution," the court found. Those with more advanced intellects should face execution, regardless of psychological tests indicating mental deficits, the ruling said. The Texas standard has been used repeatedly to justify the execution of those who by clinical benchmarks would typically be judged to suffer from mild mental retardation. Those standards applied to Wilson, who exhibited serious mental deficits beginning in childhood, family members said. According to his sister, Wilson sucked his thumb into his 20s. His cousin, Beverly Walters, said Wilson was constantly teased about his intelligence as a boy. "The other kids in school would always call Marvin dummy," Walters said in 2003. On Tuesday, the use of Steinbeck's character to support the execution of those with less profound mental deficits was criticized harshly by the author's son. "Prior to reading about Mr. Wilson's case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication …. as a benchmark to identify whether defendants with intellectual disability should live or die," Thomas Steinbeck said in a statement. "I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way," Steinbeck said. Wilson is the seventh person put to death in 2012 by Texas, which has nine more inmates scheduled to die by lethal injection before the end of the year. Texas executes low-IQ inmate after Supreme Court refuses to intervene Reuters.com Aug 7, 2012 (Reuters) - Texas executed a mentally retarded convicted murderer on Tuesday after the U.S. Supreme Court refused to intervene a decade after it banned executions of such people as cruel and unusual punishment. Marvin Wilson, 54, was convicted of the November 1992 murder of a 21-year-old police drug informant, Jerry Robert Williams, and was sentenced to death in April 1994. Wilson had challenged his execution as unconstitutional under a 2002 Supreme Court ruling that banned executing mentally retarded people but gave states some discretion in deciding who qualified for protection. "The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is denied," the court said in an order earlier on Tuesday evening. Justice Antonin Scalia handles emergency appeals from the 5th U.S. Circuit Court of Appeals, which oversees Texas. Wilson was pronounced dead at 6:27 p.m. local time, according to Jason Clark, a spokesman for the Texas Department of Criminal Justice. "Y'all do understand that I came here a sinner and leaving a saint," Wilson said as part of his final statement, according to Clark. "Take me home, Jesus, take me home, Lord, take me home, Lord." Wilson's IQ had been measured as low as 61, below the 70 level sometimes used to delineate mental retardation. Texas argued that the test pegging Wilson's IQ at 61 was conducted by an inexperienced intern, and that several other tests showed an IQ above 70. The state also said it had discretion under the 2002 Atkins v. Virginia ruling to consider seven factors in determining whether someone like Wilson should be executed, including his ability to lead, his ability to lie, and whether family and friends thought he was mentally retarded. Lawyers for Wilson countered that this allowed the state to effectively ignore the Atkins ruling by unreasonably applying "non-clinical" factors to disqualify Wilson from its protections. Texas is the only state to use such a test, Wilson's lawyer, Lee Kovarsky said. "Whatever was in his past, the Marvin I knew was a simple man who loved his family and his god," Kovarsky said in an email on Tuesday. "I hope that, at the very least, something like this occasions some serious reflection on what it means to be culpable. As a society, we do a decent job of sorting right from wrong, but, when we calibrate blame, it's like we're blindfolded and throwing darts," he added. In a separate death penalty case on appeal to the Supreme Court, Chester v. Thaler, the American Association on Intellectual and Developmental Disabilities said Texas' test relies on false stereotypes and would count only the most severely incapacitated people as mentally retarded. Texas has conducted roughly three out of every eight executions since 1976, when the Supreme Court allowed the practice to resume after a four-year hiatus, according to the Death Penalty Information Center. Wilson was the seventh inmate executed in Texas this year and the 25th executed in the United States this year, according to the information center. Marvin Lee Wilson ProDeathPenalty.com On November 4, 1992, Officer Robert Roberts and other police officers entered Marvin Lee Wilson's Beaumont, Texas apartment pursuant to a search warrant. Jerry Williams was a confidential informant whose information enabled Roberts to obtain the warrant. Williams entered and left the apartment minutes before the police went in. Wilson, 34 years old at the time, Vincent "Gun" Webb, and a juvenile female were present in the apartment. Over 24 grams of cocaine were found, and Wilson and Webb were arrested for possession of a controlled substance. Wilson was subsequently released on bond, but Webb remained in jail. Sometime after the incident, Wilson told Terry Lewis that someone had “snitched” on Wilson, that the “snitch” was never going to have the chance to “to have someone else busted,” and that Wilson “was going to get him.” On November 9, 1992, several observers saw an incident take place in the parking lot in front of Mike's Grocery. Two women were together in the parking lot. Another woman and her daughter were inside the store. A man was outside the store, but came in at some point to relay information to one of the women. The doors to Mike's Grocery were made of clear glass, and one of the women stood by the door and watched the events outside. While the witnesses watched the events unfold, another called the police. These witnesses testified consistently although some witnesses noticed details not noticed by others. In the parking lot, Wilson stood over Williams and beat him. Wilson asked Williams, “What do you want to be a snitch for? Do you know what we do to a snitch? Do you want to die right here?” In response, Williams begged for his life. Andrew Lewis, Terry's husband, was pumping gasoline in his car at the time. Williams ran away from Wilson and across the street to a field. Wilson pursued Williams and caught him. Andrew drove the car to the field. While Williams struggled against them, Wilson and Andrew forced Williams into the car. At some point during this incident, either in front of Mike's Grocery, across the street, or at both places, Andrew participated in hitting Williams and Wilson asked Andrew: “Where's the gun?” Wilson told Andrew to get the gun and said that he (Wilson) wanted to kill Williams. They drove toward a Mobil refinery. Two of the witnesses drove back to their apartments, which were close by, and when they arrived, they heard what sounded like gunshots from the direction of the Mobil plant. Sometime after the incident, Wilson told his wife, in the presence of Terry Lewis and her husband, “Baby, you remember the n*****r?I told you I was going to get? I did it. I don't know if he dead or what, but I left him there to die.” When Terry looked back at her husband, Wilson stated, “Don't be mad at Andrew because Andrew did not do it. I did it.” On November 10, 1992, a bus driver noticed Williams' dead body on the side of a road. The autopsy report concluded that Williams died from close range gunshot wounds to the head and neck. Having known Wilson for 16 years, Zeno identified Wilson. Some of the witnesses recognized Jerry Williams but did not know Wilson or Andrew. One witness subsequently identified Andrew in a photo line-up. At that time, the witness told law enforcement authorities that the man he identified in the photo was the “helper,” rather than the primary actor. The other man, who the witness described as having a “gerry curl,” made the threats and conducted most of the beating of Williams. Under defense cross-examination at trial, the witness testified that the man in the photo (i.e. Andrew Lewis) was the man with the gerry curl and hence, the primary actor. But, upon redirect examination, the witness testified that his earlier testimony was in error, and that the man in the photo was not the one with the gerry curl. This contradiction led to questioning that explored an incident involving the witness, defense counsel, and Wilson. At one time, defense counsel and Wilson interviewed this witness together, while the man was in jail for an unrelated offense. No representatives of the district attorney's office were present. Wilson asked the witness for his father's name, and Wilson asked if the man had a new baby. These questions made the witness feel scared and intimidated, and he wondered how Wilson could have known about his new baby. Wilson had been convicted of committing two aggravated robberies in 1981. He receive a sentence of 8 years and was released on mandatory supervision less than 3 years later. In one of those aggravated robberies, he pointed a shotgun at the clerk of a convenience store. He was also convicted of robbery in 1987. For that crime he was sentenced to 20 years in prison and was paroled just over 3 years later, on January 31, 1991. Wilson v. State , 938 S.W.2d 57 (Tex.Cr.App. 1996) (Direct Appeal - Reversed) Defendant was convicted upon jury verdict in the District Court, Jefferson County, Leonard J. Giblin, J., of capital murder and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Baird, J., held that prosecutor's closing argument, that he had taken oath to see that justice is done but that defense counsel was under no such oath, was not invited and constituted reversible error. Reversed and remanded. McCormick, P.J., White and Keller, JJ., dissented. Mansfield, J., filed dissenting opinion. BAIRD, Judge. Appellant was convicted of capital murder. Tex. Penal Code Ann. § 19.03(a)(3). The jury answered the punishment issues of Tex.Code Crim. Proc. Ann. art. 37.071 in such a manner that the trial judge sentenced appellant to death. Appeal to this Court is automatic. Id., at § 2(h). As appellant does not challenge the sufficiency of the evidence, we will set forth only the facts necessary to resolve appellant's second point of error. We will reverse. I. The second point of error contends the State, during its closing arguments at the guilt/innocence stage of trial, improperly struck at appellant over the shoulders of his trial counsel. Appellant complains of the following jury argument: STATE: Ladies and gentlemen, it is not my job to wish the kind of case that I put on for you. I bring you the evidence that has been produced that indicates this man's guilt. What I wish in this case is immaterial. May be material to this man (indicating appellant). The only thing that I wish is that justice is done in this case. I have taken a very sacred oath, in my opinion, to see that justice is done in every case I prosecute. It is your duty—and in the last paragraph of this charge you can see—to see that justice is done in this case. [Defense Counsel] has no such oath, and what he wishes is that you turn a guilty man free. That's what he wishes, and he can wish that because he doesn't have the obligation to see that justice is done in this case. DEFENSE: Your Honor, I want to object. That's striking at the defendant over the shoulders of his attorney. TRIAL JUDGE: Overruled. DEFENSE: I'd ask the Court to instruct the jury that I have just as sacred an oath to see that justice is done. TRIAL JUDGE: You do take an oath; but it does not have the wording that he's talking about, Counsel. STATE: His oath is to represent the interest of his client to his utmost within the bounds of the law. He's done that. But, see, it's not important to seek truth and justice under his oath. It is under mine. DEFENSE: Your Honor, I must object. That's a mischaracterization of my oath. My oath does not say that I'm not supposed to be looking for truth and justice. TRIAL JUDGE: Overruled. The State contends these comments were invited by defense counsel. The prosecutor, during closing argument, stated: STATE: Is it [defense counsel's] duty to come into this courtroom and call me Hitler? He did that. That's incredible. He basically said—he basically called the State of Texas Hitler. You remember the word. Wow. The State's remarks about Hitler refer to the following exchange which occurred during cross-examination of a defense witness: STATE: You don't remember who you were standing there with listening to talk about—listening to the talk that was going on? DEFENSE: Your Honor, I'm going to object to him continuing to misassert her testimony. She has on three occasions denied listening to anything, and he continues to say she did. And, just like Adolph Hitler, if you say it long enough, people start thinking that's what was said. TRIAL JUDGE: Overruled. And that side bar remark will not be tolerated. II. Jury argument must be confined to four permissible areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Cr.App.1980); and, Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Cr.App.1973). Appellate courts should not hesitate to reverse when it appears the State has departed from one of these areas in argument and has engaged in conduct calculated to deny the accused a fair and impartial trial. Johnson v. State, 604 S.W.2d 128, 135 (Tex.Cr.App.1980). The test to determine whether an improper argument constitutes reversible error is whether: (1) the argument is violative of a statute or; (2) it injects a new and harmful fact into the case; or (3) it is manifestly improper, harmful and prejudicial to the rights of the accused. Thompson v. State, 480 S.W.2d 624, 630 (Tex.Cr.App.1972); Briddle v. State, 742 S.W.2d 379, 389–390 (Tex.Cr.App.1987) (quoting Todd v. State, 598 S.W.2d 286, 297 (Tex.Cr.App.1980)). A. For many years this Court has recognized prosecutors' arguments which attack defense counsel are manifestly improper because they serve to inflame the minds of the jury to the accused's prejudice. In Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App.1975), the prosecutor made an argument identical to that complained of in the instant case. The prosecutor stated: ... [the other prosecutor] and I have taken a solemn oath to God to seek justice. You judge whether or not we have done it. No such oath bears on either one of these attorneys [defense counsel]. Lewis, 529 S.W.2d at 534. Even though the trial judge sustained defense counsel's objection to the argument the prosecutor continued: All right. I would ask you to believe this: If, assuming this man is guilty, do they (defense counsel) want the truth in here before you? Id. We held: “the effect of this argument was to instruct the jury that only the prosecutors seek to uphold truth and justice, whereas defense counsel have a license to use any means at their command to mislead the jury.” Id. This type of argument strikes at the defendant over the shoulders of counsel and, when not invited by the actions of defense counsel, is reversible error. Id. Similarly, in Bell v. State, 614 S.W.2d 122 (Tex.Cr.App.1981), the prosecutor argued the defense counsel's duty was to obtain an acquittal at any means. The State argued: Defense counsel is a criminal defense lawyer. He doesn't have the same duty I do. He represents the criminal. His duty is to see that his client gets off even if it means putting on witnesses who are lying. Bell, 614 S.W.2d at 123. Defense counsel's objection was sustained and his motion for mistrial overruled. We held the argument was improper and the trial judge's instruction to disregard was not sufficient to remove the prejudice it created. Id. In Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972), we held the State's jury argument prejudiced the rights of the accused, and required a reversal. The prosecutor argued: STATE: Our client doesn't sit here at the counsel table with us and our client is not here to confer with us, we represent you folks. We represent the people here in this County. That's who our employer is and suffice it to say Ladies and Gentlemen I am grateful and I shall be eternally grateful that you are the people that are my employers and not the likes of him and that I am not representing this sort of thing. Rest assured I am very happy about that. I am grateful that I don't have to make my living that way. DEFENSE: We object to that Your Honor. He represents ... STATE: He opened the door Your Honor. I believe I'm entitled to answer his argument. TRIAL JUDGE: The jury heard it. STATE: I will reiterate I'm very grateful I don't have to make my living representing a man who first set up the robbery.... Bray, 478 S.W.2d at 89–90.FN1 This Court found the prosecutor's highly improper argument was not invited by defense counsel. We concluded that no instruction would have sufficed to correct the error and remove the prejudice. We stated: FN1. In Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974), the prosecutor made a similar improper argument claiming he would never represent a criminal defendant. We held such personal arguments prejudicial, and designed to improperly inflame the minds of the jurors against the rights of the defendant and reversed. Boyde, 513 S.W.2d at 593. Trial judges should assume the responsibility of preventing this type of argument. A rebuke by the trial judge in the presence of the jury may do more to end the practice of intemperate and improper argument than repeated admonitions or even reversals by this Court. Bray, 478 S.W.2d at 90. In light of these cases, “[i]t is axiomatic that the State may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith and insincerity.” Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Cr.App.1984). In the instant case no evidence was presented to show the oath taken by the prosecutor. Therefore, the argument injected a new fact into the case. Berryhill v. State, 501 S.W.2d 86, 87 (Tex.Cr.App.1973). The prosecutor's statements were akin to those we found objectionable in both Lewis and Bell. In sum, the argument was outside the record, manifestly improper, harmful and prejudicial to the rights of the accused. III. We must now decide whether the improper argument was invited by defense counsel. The invited argument rule permits prosecutorial argument outside the record in response to defense argument which goes outside the record. Johnson v. State, 611 S.W.2d 649, 650 (Tex.Cr.App.1981); and, Franks v. State, 574 S.W.2d 124, 126 (Tex.Cr.App.1978). In the instant case, appellant centered his defense around the flaws in the State's case. To this end, defense counsel argued: I don't want anybody to think—and I sure hope nobody holds it against the appellant because I'm a zealous attorney. I represent my people the best I know how to do. I pour my heart, my soul, and my guts into it. And I sure hope I don't offend anybody on his behalf. And by putting a witness on the stand this morning I wasn't trying to call the prosecutor anything bad or impugn his character in any way. I want you to know that. Sometimes in the heat of battle people get the wrong impression. I was not trying to impugn the prosecutor or say that he had hidden this hair from us. Because I don't believe that with the prosecutor. I really and truly don't. But I do—wanted you to know since the impression might have been left that we, quote, “didn't ask for it,” unquote, that you at least be aware of the fact that we were told it had either been lost or misplaced or wasn't in existence. As you can see from that very tiny piece of evidence, very tiny, it wouldn't surprise anybody to have lost it; but we didn't know it until last Friday. And I thought it's important that you know that, and I sure thought it was important that you not be left with the impression that we knew it was up there and didn't do anything with it. Defense counsel did not cast aspersions upon the prosecutor. In fact, he did the opposite by apologizing for any hint of impropriety the jury may have gleaned from an earlier witness regarding this evidence. Defense counsel pursued this argument so as not to leave the jury the impression the defense did not “ask for” this evidence. The entirety of the defense argument consists of an attack on the evidence and upon evidence the State failed to present or explain to the jury. This is the very heart and soul of a defense counsel's obligation to his client. The defense argument was not an attack on the prosecutor. Defense counsel's side bar remark mentioning Hitler was remedied when the trial judge overruled the objection and stated that the side bar remark would not be tolerated. At that point it was incumbent on the State to seek more relief if the State thought it was necessary to remedy the side bar remark. After receiving a favorable ruling and all of the relief it felt necessary, the State cannot now contend the argument was invited. A prosecutor may not stray beyond the scope of the invitation. Johnson, 611 S.W.2d at 650; and, Kincaid v. State, 534 S.W.2d 340, 342 (Tex.Cr.App.1976). In other words, defense counsel's reference to Hitler during the testimonial portion of the trial did not give the State carte blanche to strike at the defendant over the shoulder of his counsel later at the closing argument phase of the trial. Fuentes, 664 S.W.2d at 336. IV. Having determined the improper argument was not invited, we must conduct a harm analysis under Tex.R.App.Proc. 81(b)(2). The applicable legal standard of review is whether, in light of the record as a whole, there is a reasonable possibility the improper argument might have contributed to appellant's conviction. Denton v. State, 920 S.W.2d 311 (Tex.Cr.App.1996)(citing and quoting Orona v. State, 791 S.W.2d 125, 128 (Tex.Cr.App.1990)). In applying this standard of review we do not look for overwhelming evidence of guilt because it is improper for an appellate court to substitute its judgment for that of the factfinder Harris v. State, 790 S.W.2d 568, 585 (Tex.Cr.App.1989). Instead, we focus on the error and its possible impact. Id., 790 S.W.2d at 586–588. “If the error was of a magnitude that it disrupted the [factfinder's] orderly evaluation of the evidence, no matter how overwhelming it might have been, then the conviction is tainted.” Id., 790 S.W.2d at 588. To perform a harmless error analysis an appellate court should consider the following factors: 1) the source of the error; 2) the nature of the error; 3) whether the error was emphasized and its probable collateral implications; 4) the weight a juror would probably place upon the error; and 5) whether declaring the error harmless encouraged the State to repeat it with impunity. Orona, 791 S.W.2d at 130. Though no one factor is dispositive, the existence and severity of these factors are indicative of the harm caused by the State's improper argument. In the instant case it is evident the prosecutor was intent upon informing the jury of the distinction he perceived between the oath of a prosecutor and the oath of a defense attorney. It is equally evident that the prosecutor sought to emphasize that such a distinction involved an obligation to “seek truth and justice.” Thus the source of the error was the State and the nature of the error is grounded in one of the basic tenets of criminal law, due process. For whenever a trial lacks truth or fairness, due process is implicated. See generally, In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); Brown v. State, 921 S.W.2d 227, 230 (Tex.Cr.App.1996) (Keller, J., concurring); Flores v. State, 904 S.W.2d 129, 132 (Tex.Cr.App.1995) (Overstreet, J., dissenting); and, Ex parte Brandley, 781 S.W.2d 886 (Tex.Cr.App.1989). Moreover, in Boyde v. State, 513 S.W.2d 588, 592 (Tex.Cr.App.1974), and Gomez v. State, 704 S.W.2d 770 (Tex.Cr.App.1985), we noted the general public does not understand the concept that defense attorneys are under an ethical obligation to represent the accused regardless of their personal opinion as to the guilt of the accused. Id., 704 S.W.2d at 771. In Boyde we stated: This general misunderstanding by the public serves to contribute to the prejudicial effect of an argument by a prosecutor which strikes at a member of the bar for representing a person accused of crime. Boyde, 513 S.W.2d at 592. See also, Bray, 478 S.W.2d at 89. As to the third factor, the State re-emphasized the argument after defense counsel objected, and thus compounded the prejudicial effect upon the jury. See, Bray, 478 S.W.2d at 90; and, Boyde, 513 S.W.2d at 592. The State's continuation of the argument distinguishes the instant case from Orona where the State did not advance the improper argument. In Orona we noted that had the State continued with the improper argument, a reversal might have been necessary. Id., 791 S.W.2d at 130. We now turn to the fourth factor, the weight a juror would probably place upon the error. In the instant case, the trial judge twice overruled defense counsel's objection to the State's improper arguments, and by doing so further aggravated the harm. “[A] trial court, by overruling an objection to an improper argument, puts ‘the stamp of judicial approval’ on the improper argument, thus magnifying the possibility for harm.” Good v. State, 723 S.W.2d 734, 738 (Tex.Cr.App.1986); and, Burke v. State, 652 S.W.2d 788, 790 (Tex.Cr.App.1983). Thus, the first four Orona factors militate toward a finding of harm. The final factor for consideration requires the Court to consider the probable effect of holding the State's improper argument harmless. In Summers v. State, 147 Tex.Crim. 519, 182 S.W.2d 720, 721 (1944), this Court reversed on the basis of an improper argument made by the prosecutor in which he argued prejudicial facts which were not a rational deduction from the evidence. We held: ... We fail to understand just why a prosecuting attorney would depart from the well established rules requiring that arguments be based upon evidence legally introduced in the case.... Just what the purpose of the Assistant District Attorney was other than to inflame the minds of the jury and prejudice them against the appellant, we are unable to understand. By this argument the prosecuting attorney was striking at the appellant over the shoulders of his counsel in an endeavor to inflame the minds of the jury to his prejudice. The accused is entitled to a fair trial without reference to outside influence. Summers, 182 S.W.2d at 721–722. Today, more than fifty years later, we are still unable to understand why a prosecutor would depart from the well established rules for proper jury argument. From the cases cited in part II. of this opinion, it is clear that the type of argument presented here has never been permitted. In light of the other Orona factors militating against finding the error harmless, declaring this error harmless would have the result of encouraging the State to make improper jury arguments with impunity. Therefore, when the record as a whole is considered, all five of the Orona factors militate toward a finding of harm in the instant case. Id., 791 S.W.2d at 130.FN2 Appellant's second point of error is sustained. The judgment of the trial court is reversed and the case is remanded to that court. FN2. In concluding the error was harmless, the dissent relies primarily upon the strength of the State's case. Such an analysis is contrary to Orona where we stated: “It is the effect of the error and not the existence of overwhelming evidence or the lack thereof that dictates our judgment.” Id., 791 S.W.2d at 130 (emphasis added). In essence, the dissenter merely restates his argument from Denton, 920 S.W.2d at 313 (Mansfield, J., concurring). Continuing this argument, the dissenter notes that the State's case at the punishment phase was strong. Post, at ––––. However, the strength of the State's case at that phase is wholly immaterial to the instant issue because the improper argument occurred at the guilt-innocence phase. Judgment of trial court reversed and remanded. McCORMICK, P.J., WHITE and KELLER, JJ., dissent. MANSFIELD, Judge, dissents. I disagree strongly with the majority's disposition of appellant's second point of error. Therefore, I respectfully dissent. I would affirm the judgment of the trial court. In his second point of error, appellant contends that the trial court erred in overruling his objection to improper prosecutorial jury argument at the guilt/innocence stage. Appellant argues that the prosecutor “accus[ed] [defense] counsel of acting in bad faith and insincerity in representing [him], which [was] manifestly improper.” The record reflects that, at the time for closing arguments at the guilt/innocence stage, the State waived its opening but reserved the right to close. Appellant's counsel then made his closing argument, during which he accused the State of general incompetence in its evidence-gathering, of being “very sloppy” with “the facts,” and of being “very subject to making a mistake.” The prosecutor, apparently irritated, then began his closing argument, the relevant portion of which was as follows: THE STATE: Ladies and gentlemen, it is not my job to wish the kind of case that I put on [for] you. I bring you the evidence that has been produced that indicates this man's guilt. What I wish in this case is immaterial. May be material to this man [indicating toward the defendant]. The only thing that I wish is that justice is done in this case. I have taken a very sacred oath, in my opinion, to see that justice is done in every case I prosecute. It is your duty ... to see that justice is done in this case. [Defense counsel] has no such oath, and what he wishes is that you turn a guilty man free. That's what he wishes, and he can wish that because he doesn't have the obligation to see that justice is done in this case. DEFENSE COUNSEL: Your Honor, I want to object. That's striking at the defendant over the shoulders of his attorney. THE COURT: Overruled. DEFENSE COUNSEL: I'd ask the Court to instruct the jury that I have just as sacred an oath to see that justice is done. THE COURT: You do take an oath, but it does not have the wording that he's talking about, Counsel. THE STATE: His oath is to represent the interest of his client to his utmost within the bounds of the law. He's done that. But, see, it's not important to seek truth and justice under his oath. It is mine. DEFENSE COUNSEL: Your Honor, I must object. That's a mischaracterization of my oath. My oath does not say that I'm not supposed to be looking for truth and justice. THE COURT: Overruled. I do not concede that the prosecutor's argument presented reversible error. But, although I agree with the majority that the trial court erred in overruling appellant's objection to the prosecutor's argument, we need not reverse the judgment of the trial court if we “determin[e] beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Tex.R.App. Proc. 81(b)(2). The purpose of Rule 81(b)(2) is, quite sensibly, to avoid setting aside convictions and punishments “for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967) (discussing identical federal harmless error test). Under the rule, the duty of the appellate court is to determine whether there is a reasonable likelihood that the error, either alone or in context, contributed to the finding of guilt or to the assessment of punishment. Harris v. State, 790 S.W.2d 568, 585 (Tex.Crim.App.1989). In other words, the appellate court must determine whether the trial was an essentially fair one, in which there was little, if any, chance that the conviction and punishment were based on the error that occurred. Id. at 588. This determination is necessarily “one of judgment.” Id. at 585. In carrying out this task, our primary focus should be on the probable impact of the error on the minds of average jurors. Castillo v. State, 810 S.W.2d 180, 185 (Tex.Crim.App.1990). The strength of the State's case, FN1 the extent (if any) to which the error was emphasized, and the extent (if any) to which the error placed the defendant in a poorer light are all factors that may be logically relevant to consider in the assessment of the error's impact on the jury. Moreno v. State, 858 S.W.2d 453, 466 (Tex.Crim.App.1993); Castillo v. State, 810 S.W.2d at 185; Harris v. State, 790 S.W.2d at 587. In any given case, other factors may also be logically relevant. Finally, we have also held that the “source” of the error, the prosecutor's subjective intent with respect to the error, and the possibility that declaring the error harmless would encourage the State to repeat it, are also relevant factors to consider, despite the lack of a textual basis in Rule 81(b)(2) for such factors. Harris v. State, 790 S.W.2d at 587–588. See Higginbotham v. State, 807 S.W.2d 732, 739 (Tex.Crim.App.1991) (Clinton, J., concurring). FN1. The majority has completely ignored the strength of the State's evidence, although that is the single most important factor in determining an error's impact on the minds of average jurors. “The major consideration in applying the analysis of Harris v. State [790 S.W.2d 568 (Tex.Crim.App.1989) ] is generally whether the amount and nature of the untainted evidence permits a confident inference that the error did not influence the trier of fact.” G. Dix & R. Dawson, Texas Criminal Practice and Procedure § 43.441 at 349 (1995). Turning to the facts of the instant case, I have no difficulty concluding beyond a reasonable doubt that the prosecutor's argument did not contribute to appellant's conviction or punishment. My conclusion is based on several obvious factors. First, the State's case during the guilt/innocence stage was strong, if not actually overwhelming. Two witnesses positively identified appellant as one of the individuals who beat and kidnapped the victim from the parking lot of a Beaumont convenience store on November 9, 1992. One of those witnesses also testified that appellant told the victim that he was going to kill him.FN2 Finally, a third witness testified that she knew appellant and that he confessed to her sometime shortly after the victim's body was found. FN2. The victim's body was found on the early morning of November 10, 1992, about two blocks from the same convenience store. An autopsy confirmed that the causes of death were gunshot wounds to the victim's head and neck. Second, the State's case at the punishment stage was also strong. The State's evidence established that appellant had been convicted previously, in Texas courts, of robbery (once) and aggravated robbery (twice). In addition, five witnesses testified that appellant had a bad reputation for being peaceable and law-abiding. Third, the prosecutor's statements that defense counsel “wished for a guilty man to go free” and had “no obligation to see that justice was done,” although inappropriate and unfortunate, did not place appellant in a poorer light in the context of the evidence presented at trial. Fourth, the prosecutor's statements were quickly followed by his admission that defense counsel had represented appellant “within the bounds of the law.” The prosecutor did not allege or imply that defense counsel had suborned perjury or had otherwise engaged in illegal tactics. Thus, the prosecutor's statements did not amount to an impermissible attack on the defense's case, to the extent that reversible error was committed. Fifth, the prosecutor's statements were not repeated or emphasized elsewhere in his lengthy closing argument. Sixth, the trial court's overruling of appellant's objection, although erroneous, is not in itself dispositive in a harmless error analysis. See Orona v. State, 791 S.W.2d 125, 128–130 (Tex.Crim.App.1990). Seventh, I discern nothing in the record that would indicate that the prosecutor was deliberately attempting to taint the trial process. Rather, it seems only that the prosecutor was attempting to respond to the arguments of opposing counsel. For that same reason, I doubt that holding the prosecutor's argument harmless would encourage the State to repeat such an argument with impunity in the future. In summary, I conclude beyond a reasonable doubt that the prosecutor's argument, though error, was not the type of error that, either alone or in context, mandates reversal under Rule 81(b)(2). There is little, if any, likelihood that the prosecutor's argument changed the result of the trial. Accordingly, I dissent. Wilson v. State , 7 S.W.2d 136 (Tex.Cr.App. 1999) (Direct Appeal - Affirmed) Defendant was convicted in the District Court, Jefferson County, 1. Leonard J. Giblin, J., of capital murder and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, 938 S.W.2d 57, reversed and remanded. Upon remand, defendant was again convicted in the District Court, Jefferson County, of capital murder and sentenced to death. Defendant appealed. The Court of Criminal Appeals, Keller, J., held that: (1) murder conviction was supported by sufficient evidence; (2) sufficient evidence supported finding of defendant's future dangerousness, for sentencing purposes; (3) state's delayed disclosure of exculpatory evidence did not prejudice defendant; and (4) prosecution's statements in closing argument were not improper. Affirmed. KELLER, J., delivered the unanimous opinion of the Court. In a trial beginning in January 1998, appellant was convicted of capital murder for the kidnapping and murder of Jerry Williams. Tex. Penal Code Ann. § 19.03(a)(2).FN1 Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 § 2(g). FN2 Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises fourteen points of error. We will affirm. FN1. The statute provides: “A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and ... the person intentionally commits the murder in the course of committing or attempting to commit kidnapping....” FN2. Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure. I. SUFFICIENCY OF THE EVIDENCE A. Guilt In point of error four, appellant complains about the trial court's refusal to grant his motion for an instructed verdict of acquittal. In point of error five, appellant complains that the evidence is legally and factually insufficient to support his conviction. The evidence showed the following: On November 4, 1992, Officer Robert Roberts and other police officers entered appellant's apartment pursuant to a search warrant. Jerry Williams was the confidential informant whose information enabled Roberts to obtain the warrant. Williams entered and left the apartment minutes before the police went in. Appellant, Vincent Webb, FN3 and a juvenile female were present in the apartment. Over 24 grams of cocaine were found, and appellant and Webb were arrested for possession of a controlled substance. Appellant was subsequently released on bond, but Webb remained in jail. Sometime after the incident, appellant told Terry Lewis that someone had “snitched” on appellant, that the “snitch” was never going to have the chance to “to have someone else busted,” and that appellant “was going to get him.” FN3. Webb was sometimes known as “Gun.” On November 9, 1992, several observers saw an incident take place in the parking lot in front of Mike's Grocery. Vanessa Zeno and Denise Ware were together in the parking lot. Caroline Robinson and her daughter Coretta Robinson were inside the store. Julius Lavergne was outside the store, but came in at some point to relay information to Caroline. The doors to Mike's Grocery were made of clear glass, and Coretta stood by the door and watched. Zeno, Ware, Coretta, and Lavergne watched the events unfold while Caroline called the police. These witnesses testified consistently although some witnesses noticed details not noticed by others. In the parking lot, appellant stood over Williams and beat him. Appellant asked Williams, “What do you want to be a snitch for? Do you know what we do to a snitch? Do you want to die right here?” In response, Williams begged for his life. Andrew Lewis, Terry's husband, was pumping gasoline in his car at the time. Williams ran away from appellant and across the street to a field.FN4 FN4. Zeno characterized the location as a parking lot. The other witnesses characterized it as a field. Appellant pursued Williams and caught him. Andrew drove the car to the field. While Williams struggled against them, appellant and Andrew forced Williams into the car. At some point during this incident, either in front of Mike's Grocery, across the street, or at both places, Andrew participated in hitting Williams and appellant asked Andrew: “Where's the gun?” Appellant told Andrew to get the gun and said that he (appellant) wanted to kill Williams.FN5 They drove toward a Mobil refinery. Zeno and Ware drove back to their apartments, which were close by, and when they arrived, they heard what sounded like gunshots from the direction of the Mobil plant. FN6 FN5. Some of the witnesses could not determine which man said, “Where's the gun?”—leaving open the possibility that Andrew may have made that statement. FN6. Zeno testified that it was also possible that the sounds could have been produced by manufacturing processes at the Mobil plant. Sometime after the incident, appellant told his wife, in the presence of Terry Lewis and her husband, “Baby, you remember the nigger FN7 I told you I was going to get? I did it. I don't know if he dead or what, but I left him there to die.” When Terry looked back at her husband, appellant stated, “Don't be mad at Andrew because Andrew did not do it. I did it.” On November 10, 1992, a bus driver noticed Williams' dead body on the side of a road. The autopsy report concluded that Williams died from close range gunshot wounds to the head and neck. Having known appellant for 16 years, Zeno identified appellant. Lavergne and Coretta recognized Williams but did not know appellant or Andrew. Lavergne subsequently identified Andrew in a photo line-up. At that time, Lavergne told law enforcement authorities that the man he identified in the photo was the “helper,” rather than the primary actor. The other man, who Lavergne described as having a “gerry curl,” made the threats and conducted most of the beating of Williams. Under defense cross-examination at trial, Lavergne testified that the man in the photo (i.e. Andrew Lewis) was the man with the gerry curl and hence, the primary actor. But, upon redirect examination, Lavergne testified that his earlier testimony was in error, and that the man in the photo was not the one with the gerry curl. This contradiction led to questioning that explored an incident involving Lavergne, defense counsel, and appellant. At one time, defense counsel and appellant interviewed Lavergne together, while Lavergne was in jail for an offense unrelated to the present case. No representatives of the district attorney's office were present. Appellant asked Lavergne for his father's name, and appellant asked if Lavergne had a new baby. These questions made Lavergne feel scared and intimidated, and he wondered how appellant could have known about Lavergne's new baby. In evaluating legal sufficiency, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our review of the record shows ample evidence to support the conviction. Williams was the informant who caused appellant to be arrested for cocaine. Appellant could have inferred from Williams' presence at his apartment immediately before the police arrived that Williams had indeed “snitched” on appellant. That sequence of events established a motive for the murder. Appellant's statements to Terry Lewis and his later statements to Williams show that appellant intended to act upon that motive and kill Williams. Appellant assaulted and kidnapped Williams in front of several eyewitnesses, and later, appellant bragged that he had left the “snitch” to die. The latter statement could have been reasonably interpreted as an admission that appellant had in fact fulfilled his earlier threats to kill the victim. The short time frame in which these events occurred—a matter of several days—also supports the inference that these events were connected. And appellant's references to Lavergne's father and new baby reasonably could have been interpreted as a veiled attempt to influence Lavergne's testimony. Such an attempt to tamper with a witness is evidence of “consciousness of guilt.” See Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App.1996)(opinion on rehearing). Appellant contends that the only evidence supporting a finding of guilt was inadmissible hearsay testimony that was repudiated by in-court testimony. However, all evidence admitted at trial—including improperly admitted evidence—is considered in a legal sufficiency review. Dewberry v. State, 4 S.W.3d 735, 740–41 (Tex.Crim.App.1999); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App.1998). Appellant does not explain what evidence he considers to be hearsay or why such evidence should be considered so weak that it would be insufficient to support a conviction under Jackson. Nor does he explain what testimony repudiates the hearsay testimony. And, while we have found the record to contain a number of out-of-court statements that support the verdict, most of those statements were made by appellant, and thus qualify as party-opponent admissions, which are not hearsay. Tex.R.Crim. Evid. 801(e)(2)(A). Likewise, eyewitness testimony concerning appellant's acts of beating and abducting Williams are not hearsay nor is the testimony concerning gunshot sounds. Appellant also claims that the evidence is insufficient because it fails to exclude every outstanding reasonable hypothesis other than guilt. We have rejected the reasonable hypothesis construct as a measure of legal sufficiency. Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App.1991). In determining whether the evidence is factually sufficient to support the conviction, we must view all of the evidence, without the prism of “in the light most favorable to the prosecution,” and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Although the existence of alternative reasonable hypotheses may be relevant to, but are not determinative in, a factual review, appellant cites no alternative hypotheses in his brief. And we perceive no reasonable hypotheses that would exculpate him. Only two possible hypotheses are present from the record. One is that Webb killed Williams or secured someone other than appellant to do so. Being present in the same drug bust with appellant, Webb possessed a similar motive to harm Williams. And Williams had said to a police officer, “Gun's after me. I need to get out of here.” But, the evidence established that Webb was in jail at the time of the murder. Besides a common motive and William's statement about “Gun,” no evidence in any way implicated Webb in the murder. By contrast, appellant is strongly linked to the murder by his admissions and the kidnapping incident. The only other hypothesis is that Andrew acted alone or as the primary actor in killing Williams. There is no evidence that Andrew acted alone, and there is very little evidence that Andrew was the primary actor. FN8 Most of the evidence points solidly to appellant as the primary actor who carried out the murder. And appellant does not point to, nor do we perceive, any other evidence of significant value exculpating appellant from the murder. The record fails to show that appellant's conviction was against the overwhelming weight of the evidence. The evidence is legally and factually sufficient to support appellant's conviction. Points of error four and five are overruled. FN8. Even if Andrew were the primary actor, appellant could still be guilty as a party. See Texas Penal Code § 7.02(a)(2). B. Future dangerousness In point of error six, appellant contends that the evidence is legally insufficient to support the jury's affirmative answer to the future dangerousness special issue.FN9 We utilize the Jackson standard for reviewing the legal sufficiency in this context: we view the evidence in the light most favorable to the jury's finding and ask whether any rational trier of fact could have found beyond a reasonable doubt that there was a probability that appellant would commit further acts of violence that would constitute a continuing threat to society. Brooks v. State, 990 S.W.2d 278, 284 (Tex.Crim.App.1999). Factors relevant to determining whether the evidence supports a finding of future dangerousness include but are not limited to: (1) the circumstances of the capital offense, including the defendant's state of mind and whether he was working alone or with other parties; (2) the calculated nature of the defendant's acts; (3) the forethought and deliberateness exhibited by the crime's execution; (4) the existence of a prior criminal record, and the severity of the prior crimes; (5) the defendant's age and personal circumstances at the time of the offense; (6) whether the defendant was acting under duress or the domination of another at the time of the commission of the offense; (7) psychiatric evidence; and (8) character evidence. Id. (citing Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987)). Although these factors are all relevant, the circumstances of the offense “can be among the most revealing evidence of future dangerousness and alone may be sufficient to support an affirmative answer to that special issue.” Bell v. State, 938 S.W.2d 35, 41 (Tex.Crim.App.1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997). FN9. That issue asks: “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Article 37.071, § 2(b)(1). A rational jury could find that the circumstances of the crime indicate that appellant would commit future violent criminal acts. The murder in this case was a retaliatory act, committed against a person who exposed appellant's criminal activity. Appellant had been previously arrested twice for possession of cocaine: in April and November 1992. The presence of other individuals in appellant's home along with cocaine in November suggests the probability that appellant was a drug dealer. His act of killing Williams showed appellant's willingness to kill to further his criminal enterprise. FN10 Moreover, appellant's statements to Terry Lewis about “getting a snitch” showed that the crime was a product of forethought and deliberation. And appellant appeared to be the primary actor, rather than someone who was acting under the domination of another. Further, the boldness of appellant's conduct—kidnapping the victim during the daylight hours in front of several witnesses—shows a personality that is especially unlikely to be deterred by the threat of legal sanction. FN10. Even if appellant were simply a drug user, however, his actions evinced a willingness to kill to enable his illegal activity to continue. Appellant's background and character also indicate that he would probably be a future danger to society. Appellant was convicted of committing two aggravated robberies in 1981. In one of those aggravated robberies, he pointed a shotgun at the clerk of a convenience store. He was convicted of robbery in 1987. Several law enforcement agents who were familiar with appellant's reputation and character testified that appellant's reputation for being a peaceable and law abiding citizen was bad and that their opinion also was that his character was bad. David Froman, a Beaumont police officer, called appellant “a lawless person.” Charles Little, who worked for the Jefferson County Sheriff's Department, stated that appellant was a “very violent person.” And, appellant's statement after the murder, “Baby, you remember the nigger I told you I was going to get? I did it. I don't know if he dead or what, but I left him there to die,” indicates a lack of contrition for the offense. Also, appellant cannot claim his violence to be a passing part of his youth. He was thirty-four years old when he killed Williams. The evidence was legally sufficient to support the jury's finding of future dangerousness. Point of error six is overruled. II. GUILT / INNOCENCE A. Extraneous offense In point of error seven, appellant contends that the trial court erred in admitting an extraneous offense without a proper and timely limiting instruction. In point of error eight, he complains that the trial court erred in admitting the extraneous offense without applying the appropriate Rule 403 balancing test. The offense in question is appellant's November 4th arrest for possession of cocaine. At a pretrial hearing, appellant moved to suppress the cocaine-related evidence on the ground that the evidence was illegally obtained. After the trial court denied that motion, the parties and the trial court discussed the impact of Texas Rules of Evidence 404(b) and 403. The trial court stated that he believed, based upon the evidence at appellant's previous trial, that the extraneous offense would be admissible but reserved final judgment on the Rule 403 issue in case the events at trial required a different ruling: What the Court's going to do, because I recall a lot of the previous trial, based on what the evidence was in the previous trial, the Court's going to grant the State's request that this be admitted for the purpose of motive, but recognizing also that during the second trial it may not develop the same way. I want to have the chance to say it's more prejudicial than it is probative. But barring that, I'm going to admit it as of now; but I may change my ruling as the case develops during the trial. In response, the defense attorney stated “in light of that and in anticipation of an adverse ruling, we would ask for a limiting instruction when the time is appropriate.” The trial court responded, “Okay. And I request the State to approach the bench to advise the Court that he intends to put on that evidence, give the Court an opportunity to change its ruling and to grant the defense request that it not be admitted during the guilt/innocence phase.” During trial, a hearing was held outside the presence of the jury to determine whether the evidence was admissible. Defense counsel reurged his objections under Rules 404(b) and 403 but did not request a limiting instruction at that time. The defense attorney included, within his objections, a request for the trial court to conduct a balancing test. After hearing all of the defense objections, the trial court stated: “Court's going to overrule the defense objection and allow the extraneous offense of November the 4th to be admitted for the purposes of identity, motive, and intent.” In the presence of the jury, appellant renewed his objections to the extraneous offense but did not request a limiting instruction. The trial court again overruled appellant's objections. A limiting instruction was included in the jury charge. Appellant has procedurally defaulted any claim with respect to a limiting instruction. The only time appellant ever requested a limiting instruction was at the pretrial hearing. The trial court did not appear to make a final ruling at that hearing. The trial court appeared to reserve the Rule 403 question, making a request for a limiting instruction premature. Appellant's counsel himself stated that he “anticipated” an adverse ruling, implying that such had not yet occurred. And the trial court required the State to approach the bench before delving into the subject matter. The trial court's action appears to be in the nature of a ruling on a motion in limine, which does not preserve error. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex.Crim.App.), cert. denied, 513 U.S. 1060, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994). Moreover, even if the trial court's ruling were interpreted as a final ruling upon the admissibility of the evidence, appellant did not obtain an adverse ruling upon his request for a limiting instruction. The trial court answered appellant's request with “okay,” which was either no ruling or a favorable ruling. Even if the trial court's response were interpreted as a favorable ruling, appellant was required to object when the circumstances appeared to show that the trial court's ruling was not being enforced. See Moore v. State, slip op. at 14 (Tex.Crim.App. April 21, 1999)(failure of court reporter to record bench conferences after trial court had granted motion to have bench conferences recorded). Further, appellant's request was not specific enough as to time; he simply asked for an instruction “when the time is appropriate” without indicating what he believed the appropriate time to be. The trial court did include a limiting instruction in the jury charge, which is one appropriate time for the instruction. Appellant did not express a clear desire for an instruction to be given contemporaneously with the admission of the evidence. Complaints must be alleged “with sufficient specificity to make the trial court aware of the complaint.” Tex.R.App. P. 33.1(a)(1)(A). As for appellant's allegation that the trial court failed to engage in a Rule 403 balancing test, the record does not show that the trial court failed to conduct such a balancing test. The trial court's discussion of the issue at the pretrial hearing indicates that the trial court had conducted a balancing test and determined that the evidence would be admissible if the presentation of the evidence did not deviate materially from what had occurred at appellant's previous trial. At trial, in the hearing outside the jury's presence, the trial court overruled appellant's objection but did not expressly rule upon appellant's request for a balancing test. Appellant did not ask the trial court to conduct a balancing test on the record, and appellant cannot exclude the possibility that the trial court conducted the balancing test in his mind. Moreover, the extraneous offense evidence was so clearly admissible that we cannot perceive reversible error stemming from any failure to engage in a balancing test. Points of error seven and eight are overruled. B. Expert testimony In points of error nine and ten, appellant complains about the trial court's actions surrounding the admission of expert testimony from Steve Thrower, an investigator with the Jefferson County Criminal District Attorney's office. Appellant contends that the trial court failed to conduct a proper gatekeeping analysis and that the evidence was inadmissible under Texas Rule of Criminal Evidence 702. Appellant's only objection regarding these matters occurred in the following colloquy: Q. Now, based on your training and experience, investigator, did you reach a conclusion as to the time that the victim in this case was shot? A. Yes— [DEFENSE COUNSEL]: (Interrupting) Your Honor, I'm going to object to this. I'd like to take this subject under voir dire to determine if he is qualified to determine time, also have possibly a 705 hearing. In response to defense counsel's request, the trial court convened a hearing outside the presence of the jury. Both the defense and the State elicited testimony from Thrower during this hearing. At the conclusion of the hearing, the trial court stated that he would allow the testimony. Appellant made no objections to the scope of the hearing or the manner in which it was conducted. Nor did appellant raise any objection to Thrower's qualification as an expert witness. Having failed to apprise the trial court of the claims he currently advances on appeal, appellant has procedurally defaulted those claims. Tex.R.App. P. 33.1(a)(1)(A). Points of error nine and ten are overruled. C. Exculpatory evidence In points of error eleven and twelve, appellant contends that the trial court erred in failing to grant a continuance or a mistrial due to the State's tardy disclosure of exculpatory evidence. On February 18, 1998, at the conclusion of jury selection and five days before trial testimony began, the State disclosed that Williams had told Officer Clay Woodward that “Gun” was after him. According to the State's letter disclosing that fact, the State had believed that “Gun” referred to appellant and had been unaware that “Gun” was Webb's street name until the State interviewed Webb that day. At trial, Webb testified that his street name was in fact “Gun.” Woodward testified at trial that Williams related that “Gun” was after him. Woodward further testified that he asked Williams, “Who is Gun?” Williams replied, “You know, Big Merv, Marv, the guy you-all busted.” The November 4, 1992 search warrant specified that the police expected to find “A black male known to Affiant as Gun. A black male known to affiant as Marvin Lee Wilson DOB 1/5/58. Described as 5'10”, 175 # , and person or persons whose idetities (sic) are unknown to Affiant.” The defense had previously been aware of the search warrant and had also known that Webb was arrested along with appellant in the drug raid occurring on November 4. During the State's rebuttal portion of the guilt-innocence phase of the trial, the trial court conducted its hearing on the qualification of Thrower as an expert witness (see also part B above). During this hearing, defense counsel received several documents that were relied upon by Thrower in forming his opinions. One of those documents was a report by investigator C.D. Ashworth that was made on November 11, 1992. The report identified Webb as “Gun”: “The one on the floor in the living room was identified as Vincent Dwayne Webb, aka-Gun and the one in the kitchen was identified as Marvin Lee Wilson.” Based upon this information, defense counsel asked for a mistrial or a continuance. Defense counsel asserted that the defense team had been conducting an exculpatory evidence investigation since the State's disclosure on February 18, 1998 but needed more time to follow leads. The following colloquy ensued: THE COURT: But Mr. Gun was here to testify. [DEFENSE COUNSEL]: He did, Your Honor. THE COURT: I don't understand what more would you need for a continuance. [DEFENSE COUNSEL]: Well, his friends, his other gang members, his other associations, things like that. After further discussion, the trial court denied appellant's motions for mistrial and continuance. Appellant now claims that the State's tardy disclosure violated his due process right to the disclosure of exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, appellant has procedurally defaulted his claim. To preserve error, a complaint must be made to the trial court in a timely fashion. Tex.R.App. P. 33.1(a)(1). To be timely, a complaint must be made as soon as the grounds for complaint is apparent or should be apparent. Hollins v. State, 805 S.W.2d 475, 477 (Tex.Crim.App.1991). That subsequent events may cause a ground for complaint to become more apparent does not render timely an otherwise untimely complaint. Id. The State disclosed five days before the beginning of trial testimony the pertinent evidence, which consisted of: (1) Williams' statement about “Gun” being after him and (2) that Webb's street name was “Gun.” Appellant was alerted at that time of the need to investigate Webb's friends and associates, and defense counsel stated that such an investigation was in fact begun after the State's disclosure. But appellant did not request a continuance before testimony began, nor did he request a continuance before he rested his case-in-chief. The only new information learned by appellant during the State's rebuttal was that the State first possessed evidence indicating that Webb was known as “Gun” much earlier than the State had represented in its February 18 letter. Such new information about when the State knew what it knew did not have any tendency to produce leads that had before been unknown to the defense team. Appellant acted untimely by waiting to request a continuance until after jeopardy had attached and both sides had rested their cases-in-chief. Moreover, even if we considered appellant's complaint to be timely, his claim would fail. To prevail on his Brady claim, appellant must show that the State's tardy disclosure prejudiced him. Little v. State, 991 S.W.2d 864, 867 (Tex.Crim.App.1999). To show prejudice, appellant must show a reasonable probability that, had the evidence been disclosed to the defense earlier, the result of the proceeding would have been different. Id. at 866. For two reasons, appellant does not satisfy that showing. First, appellant had long been aware of other evidence that Webb possessed a motive to murder Williams. Webb was arrested along with appellant in the November 4, 1992 cocaine bust in which Williams was the confidential informant. And the arrest warrant appears to identify two men, “Gun” and appellant.FN11 Knowing in 1992 that Webb had a motive for murder, appellant had ample time to conduct an investigation. Second, appellant failed to identify at trial what witnesses, other than Webb, would be called (presumably because he did not know). And appellant does not now explain, or point to anywhere in the record that explains, what witnesses he might have called had his attorneys been given further time to investigate. And appellant has not shown any reason to believe that additional witnesses exist. Points of error eleven and twelve are overruled. FN11. Because no descriptive characteristics are given for “Gun” while appellant's name, height, and weight are given after “Gun” is mentioned, a possible interpretation of the language in the warrant could be that appellant's name and description were intended to describe the person known as “Gun.” However, parallel language in the warrant tends to discredit that interpretation: both “Gun” and appellant were introduced as “A black male known to affiant as ....“—indicating that two people were in fact being described. D. Jury argument In points of error thirteen and fourteen, appellant contends that the prosecutor engaged in an argument that improperly struck at appellant over the shoulders of counsel and that argued matters outside the record. The complained-of argument, along with appellant's objections and the trial court's rulings, is set out as follows: So, we go to Skunk No. 4. We go to—and it was not a skunk I expected. It was not a detour that I expected. And that detour was Julius Lavergne. And let me tell you, Julius Lavergne and the way that you, unfortunately, got the evidence that Julius Lavergne had to give you, it was truly unfortunate. To get the best information, ladies and gentlemen, from this witness stand is to try to get the case—try to get the case tried in a timely manner and don't fool with the witnesses. Don't— [DEFENSE COUNSEL]: (Interrupting) Your Honor, I'm going to object to counsel's comment, “fool with the witness,” as striking at the defendant over counsel's shoulder. THE COURT: Sustain the objection. [DEFENSE COUNSEL]: Would ask the jury be instructed to disregard counsel's comment. THE COURT: Jury disregard the comment about the defense lawyers fooling with the witnesses. [DEFENSE COUNSEL]: And we'd move for a mistrial. THE COURT: Mistrial denied. [PROSECUTOR continues]: You know, I have the same obligation to try to bring you good, credible witnesses. I have that obligation. And I cannot perform a showup like the kind—the evidence that you heard in this trial about Julius Lavergne being shown—this man being shown July Lavergne in the jail and bring that evidence to you. I couldn't do that. I couldn't. Picture this scenario. You got a guy sitting in jail, a Julius Lavergne, a young man, kid, who knows what he knows. I don't think he's bright. You folks may think he is. I think he's courageous, but he probably wasn't too courageous when he gets pulled out of that cell by these defense lawyers and he gets brought face-to-face with a person that he had previously testified in another— [DEFENSE COUNSEL]: (Interrupting) Your Honor, we're going to object to counsel's line of questioning here as referring to matters outside this record. THE COURT: He's not questioning right now. You're saying he's questioning. I don't understand your objection. [DEFENSE COUNSEL]: Well, he's stating testimony that is outside the record. THE COURT: Sustain the objection that part. [DEFENSE COUNSEL]: I'd ask the jury be instructed to disregard counsel's comment. THE COURT: Jury disregard the comment—which part is outside the record? [DEFENSE COUNSEL]: Where he was saying there was some kind of—brought out, showed things, contradicting testimony. THE COURT: I'll sustain the objection, to be safe. [DEFENSE COUNSEL]: Ask the jury to be instructed to disregard counsel's argument. THE COURT: Jury disregard the argument that the defense counsel related to. [DEFENSE COUNSEL]: And move for a mistrial. THE COURT: Mistrial denied. Four permissible areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to the argument of opposing counsel; and (4) pleas for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim.App.1996). We have held consistently that arguments attacking defense counsel are improper because they unfairly inflame the jury against the accused. Id. at 59–60 (discussing cases). But the present case is distinguishable from those cases because the prosecution's argument was based upon the testimony of a witness. Lavergne testified that defense counsel told him that appellant was not the primary actor in the kidnapping incident. Lavergne also testified that he was brought into a face-to-face meeting with the defendant and his attorneys. During this meeting, Lavergne was asked whether appellant was the man with the gerry curl or whether that man was the one in the photograph (Andrew Lewis). The evidence of appellant and his attorneys' involvement was relevant to show why Lavergne initially testified that the man in the photograph was the primary actor and why Lavergne later changed his testimony to say that appellant was the primary actor. The complained-of arguments were summations of the evidence and reasonable deductions from the evidence. Contrary to appellant's contention in point of error fourteen, the arguments were not outside the record. Contrast id. at 60 (attacks upon defense counsel were based upon matters outside the record). In the present case, the witness changed his testimony and indicated that he had been influenced by defense counsels' conduct. The State was entitled to discuss those events to explain why Lavergne changed his testimony. Moreover, the testimony showed that appellant participated in some of the conduct involved. To the extent that appellant participated in the conduct, references to defense counsels' participation did not constitute an unfair strike at the defendant. Further, even if the prosecutor's comments were improper, the trial court's instructions to disregard cured any error. Where arguments that strike over the shoulders of defense counsel are not particularly egregious, an instruction to disregard will generally cure the error. Dinkins v. State, 894 S.W.2d 330, 357(Tex.Crim.App.1995), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59. III. PUNISHMENT In points of error one and two, appellant contends that the death penalty scheme violates the United States and Texas constitutions by failing to require that a jury be informed that a person sentenced to life in a capital case would not be eligible for parole for thirty-five years. In point of error three, appellant contends that the trial court erred in denying appellant's request that the jury be instructed that a person sentenced to life in a capital case would not be eligible for parole for thirty-five years. We have held consistently that the United States and Texas constitutions do not require that a jury in a capital case be given such information. Jones v. State, 982 S.W.2d 386, 394 (Tex.Crim.App.1998)(citing Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.)(plurality op.), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995) and progeny). Points of error one through three are overruled. The judgment of the trial court is affirmed. Wilson v. Cockrell , 70 Fed.Appx. 219 (5th Cir. 2003) (Habeas) Following affirmance of his capital murder conviction, 1. 7 S.W.3d 136, the United States District Court for the Eastern District of Texas dismissed defendant's federal habeas corpus petition. Upon defendant's application for a certificate of appealability (COA), the Court of Appeals held that: (1) defendant failed to make a substantial showing of a Batson violation, and (2) defendant failed to make a substantial showing that his trial counsel provided ineffective assistance. Application denied. PER CURIAM. Petitioner-Appellant Marvin Lee Wilson, a Texas death row inmate, is before us seeking a certificate of appealability (COA) to contest the district court's grant of summary judgment dismissing his federal habeas corpus petition filed pursuant to 28 U.S.C. § 2254. We deny COA. I FACTS AND PROCEEDINGS Wilson was convicted and sentenced to death for the murder of Jerry Williams during the course of a kidnaping. See Wilson v. State, 938 S.W.2d 57, 58 (Tex.Crim.App.1996). On direct appeal, the Texas Court of Criminal Appeals (CCA) reversed because of improper jury arguments by the prosecutor and remanded for a new trial. Id. at 58-62. Following remand, Wilson was retried and was again convicted and sentenced to death. Wilson v. State, 7 S.W.3d 136, 139 (Tex.Crim.App.1999). The discrete facts of Wilson's crime as reflected by the evidence were summarized by the state appellate court on direct appeal. Id. at 139-41. Wilson's conviction and sentence were affirmed on direct appeal, id. at 141-48, and he filed a state habeas application, which the CCA denied on the basis of the trial court's findings. After exhausting his state remedies, Wilson filed the instant § 2254 petition in which he argued that (1) the trial court erred in failing to instruct the jury that if he were sentenced to life in prison, he would not be eligible for parole until he had served 35 years; (2) the statutory definition of kidnaping contained in the Texas capital murder statute is unconstitutional and overly broad; (3) the prosecutor exercised peremptory strikes in a raci