Aaron Amberson v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00298-CR
___________________________
AARON AMBERSON, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 16th District Court
Denton County, Texas
Trial Court No. F17-1973-16
Before Sudderth, C.J.; Meier and Gabriel, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
I. Introduction
In four issues, Appellant Aaron Amberson appeals his conviction for criminal
mischief for which he was sentenced to ten years’ confinement after pleading true to
the habitual-offender enhancement allegations. See Tex. Penal Code Ann. § 28.03
(West Supp. 2018). We affirm.
II. Background1
A 9-1-1 caller reported that someone driving an older model gray Ford
Expedition had attached a chain to that vehicle and had pulled a coin-dispensing
machine out of the wall of a car wash near Main Street in The Colony. After spotting
a vehicle matching that description parked at a Taco Bell not far from the car wash,
police entered the restaurant and arrested Amberson. They later discovered the coin
machine and chain inside Amberson’s Expedition. Evidence admitted at trial showed
that the owner of the car wash, Paul Hamilton, had received over $12,000 in insurance
proceeds to cover the required repairs, which totaled over $8,000.
1
Because Amberson challenges only the amount of pecuniary loss—not the
sufficiency of the evidence to support the remaining elements of his conviction for
criminal mischief—we omit a detailed factual background and set forth the pertinent
facts under each issue.
2
III. Lesser-Included-Offense Instruction
In his first issue, Amberson argues that the trial court erred by denying his
request for a jury instruction on the lesser-included offense of Class A misdemeanor
criminal mischief.
A. Standard of Review and Applicable Law
In our review of a jury charge, we first determine whether error occurred; if
error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.
App. 2012). We use a two-step analysis to determine whether an appellant was
entitled to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528
(Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App.),
cert. denied, 510 U.S. 919 (1993).
First, the lesser offense must come within article 37.09 of the code of criminal
procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006); Moore v. State, 969
S.W.2d 4, 8 (Tex. Crim. App. 1998). An offense is a lesser-included offense of
another offense, under article 37.09(1), if the indictment for the greater-inclusive
offense either (1) alleges all of the elements of the lesser-included offense or
(2) alleges elements plus facts (including descriptive averments, such as nonstatutory
manner and means, that are alleged for purposes of providing notice) from which all
of the elements of the lesser-included offense may be deduced. Ex parte Watson, 306
S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g).
Second, some evidence must exist in the record that would permit a jury to
3
rationally find that if the appellant is guilty, he is guilty only of the lesser offense.
Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005);
Rousseau, 855 S.W.2d at 672–73. The evidence must be evaluated in the context of the
entire record. Moore, 969 S.W.2d at 8. There must be some evidence from which a
rational jury could acquit the appellant of the greater offense while convicting him of
the lesser-included offense. Id. The court may not consider whether the evidence is
credible, controverted, or in conflict with other evidence. Id. Anything more than a
scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Hall,
225 S.W.3d at 536.
A person commits the offense of criminal mischief if, without the effective
consent of the owner, he intentionally or knowingly damages or destroys the tangible
property of the owner. Tex. Penal Code Ann. § 28.03(a)(1). If the property is
damaged (as opposed to destroyed)2 the amount of pecuniary loss is determined by
“the cost of repairing or restoring the damaged property within a reasonable time
after the damage occurred.” Holz v. State, 320 S.W.3d 344, 345 (Tex. Crim. App.
2010) (quoting Texas Penal Code section 28.06(b) and setting forth how to calculate
amount of pecuniary loss if property is damaged). The property owner’s testimony
regarding the payment from his insurance provider is sufficient to prove the cost of
2
Although the jury charge allowed the jury to convict Amberson if it found that
he “intentionally and knowingly damage[d] or destroy[ed] tangible property,” we
proceed solely under the theory of criminal mischief by damage.
4
repairs and, thereby, pecuniary loss. Campbell v. State, 426 S.W.3d 780, 785 (Tex. Crim.
App. 2014).
The amount of pecuniary loss suffered by the owner determines the degree of
the offense. See Tex. Penal Code Ann. § 28.03(b); Holz, 320 S.W.3d at 345. The
offense is a Class-A misdemeanor if the amount of pecuniary loss is $750 or more but
less than $2,500. Tex. Penal Code Ann. § 28.03(b)(3)(A). The offense is a state-jail
felony if the amount of pecuniary loss is $2,500 or more but less than $30,000. Id.
§ 28.03(b)(4)(A).
B. Analysis
The State concedes, and we agree, that misdemeanor criminal mischief was a
lesser-included offense of felony criminal mischief as alleged in the indictment. See id.
§ 28.03(b)(3), (4); Holz, 320 S.W.3d at 345, 347. Therefore, we focus our analysis on
whether a rational jury could have found Amberson guilty only of misdemeanor
criminal mischief.
Because the difference between misdemeanor criminal mischief and felony
criminal mischief is solely the amount of pecuniary loss, we examine the record to see
if there is any evidence to show that the pecuniary loss from the damage to the car
wash from the forcible removal of the coin machine was $750 or more but less than
$2,500. The record here contains no evidence from which a rational trier of fact
could have concluded that the pecuniary loss, if any, could only have been in an
amount of less than $2,500.
5
Hamilton testified without objection that he received a check from his
insurance provider for “a little over $12,000” and was told to take care of the repairs
himself. Amberson did not controvert Hamilton’s testimony, but he argues that
“there was only documentation of payment [i.e., cancelled checks] for a total of
$2,096.06 in this case.” While acknowledging that caselaw holds that the property
owner’s testimony is sufficient to prove pecuniary loss, see Campbell, 426 S.W.3d at 785
(holding that property owner’s unobjected-to testimony regarding insurance payment
was sufficient to prove cost of repairs), Amberson argues “that just means that
Hamilton’s testimony could provide the bare minimum level of proof required to
prove that particular element” and that a juror may lawfully require more than the
legal threshold of sufficient evidence to find guilt beyond a reasonable doubt. We
agree that a reasonable juror could have required this. However, that is not the
standard that we must apply.
It “is not enough that the jury may disbelieve crucial evidence pertaining to the
greater offense, but rather, there must be some evidence directly germane to the
lesser-included offense for the finder of fact to consider before an instruction on a
lesser-included offense is warranted.” Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim.
App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997), cert.
denied, 523 U.S. 1079 (1998)). “Meeting this threshold requires more than mere
speculation—it requires affirmative evidence that both raises the lesser-included
offense and rebuts or negates an element of the greater offense.” Cavazos v. State, 382
6
S.W.3d 377, 385 (Tex. Crim. App. 2012). The fact that the jury might have
disbelieved that the cost of repairs was $12,000 (as Hamilton testified he received in
insurance proceeds), that the jury might have disbelieved that the cost of repairs was
more than $7,500 (as shown by the invoices), or that the jury might have believed that
the cost of repairs was less than $2,500 (as evidenced through cancelled checks) is not
affirmative evidence that the total cost of repairs was limited to only the sum of the
cancelled checks. Cf. Coalwell v. State, No. 04-16-00358-CR, 2017 WL 4014707, at *5
(Tex. App.—San Antonio Sept. 13, 2017, no pet.) (mem. op., not designated for
publication) (concluding that facts in stalking case did not raise lesser-included offense
of harassment because although the jury might have believed that only a single
incident of harassment occurred, that was not affirmative evidence that the harassing
emails were sent not on multiple dates, but on only one date).
Because there is no affirmative evidence allowing a rational factfinder to find
that if Amberson was guilty, he was guilty only of criminal mischief of $750 or more
but less than $2,500, the trial court did not err by refusing to give an instruction on
the lesser-included offense of Class-A misdemeanor criminal mischief. See Rousseau,
855 S.W.2d at 675 (holding that appellant was not entitled to a charge on the lesser-
included offense because there was no evidence that if appellant was guilty, he was
guilty only of the lesser-included offense); cf. Benefield v. State, 389 S.W.3d 564, 574–77
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (holding that no evidence in the
record permitted a jury to rationally find that if appellant was guilty, she was guilty
7
only of the lesser-included offense of misdemeanor misapplication of fiduciary
property valued at less than $1,500). We therefore overrule Amberson’s first issue.
IV. Evidentiary Challenges
In his second issue, Amberson argues that the trial court reversibly erred by
admitting State’s Exhibits 21, 22, 23, 24, 25, 26, and 27—copies of documents
showing amounts spent on repairs to the car wash—over his hearsay objections. In
his third issue, Amberson argues that the trial court reversibly erred by admitting
State’s Exhibits 28, 29, and 30—copies of cancelled checks for repairs to the car
wash—over his best-evidence objection.
A. Standard of Review
We review a trial court’s evidentiary rulings under an abuse-of-discretion
standard. See Jenkins v. State, 493 S.W.3d 583, 607 (Tex. Crim. App. 2016). A trial
judge’s decision is an abuse of discretion only when it falls outside the zone of
reasonable disagreement. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.
2007). An evidentiary ruling will be upheld if it is correct on any theory of law
applicable to the case. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App.), cert.
denied, 549 U.S. 1024 (2006).
B. Applicable Law
Hearsay is an out-of-court statement that a party offers to prove the truth of
the matter asserted within the statement. Tex. R. Evid. 801(d). Hearsay is generally
8
inadmissible unless it falls within one of the enumerated exceptions. See generally Tex.
R. Evid. 802–804 (defining inadmissible hearsay and its exceptions).
Under the exception found in Texas Rule of Evidence 803(6), records of
regularly-conducted activity, more commonly known as business records, may be
admitted if the records were made at or near the time of the event, they were recorded
by someone with knowledge, and it was common practice to keep such a record in the
course of regularly conducted business. Tex. R. Evid. 803(6). This information is
established through the testimony of the custodian of the business record or other
qualified witnesses or through a business-records affidavit that complies with rule
902(10). Tex. R. Evid. 803(6)(D), 902(10).
Under the best-evidence rule, to prove the contents of a writing, a party is
required to tender the original. Tex. R. Evid. 1002. However, a photocopy of an
original is admissible to the same extent as the original unless its authenticity is
questioned or its admission would be unfair. Tex. R. Evid. 1001(d), 1003.
Error in the admission of evidence is generally considered nonconstitutional
error to which we apply rule 44.2(b), and we disregard the error if it did not affect the
appellant’s substantial rights. Tex. R. App. P. 44.2(b); see Solomon v. State, 49 S.W.3d
356, 365 (Tex. Crim. App. 2001). “A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury’s verdict.” King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not intervene if after
examining the whole record, including the character of the alleged error and how it
9
might be considered in connection with other evidence in the case, there is a fair
assurance that the error did not influence the jury or had but a slight effect. Motilla v.
State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Solomon, 49 S.W.3d at 365).
C. Relevant Portions of the Record
Both the State and Amberson questioned Hamilton outside the presence of the
jury regarding State’s Exhibits 21 through 30. With regard to State’s Exhibits 21
through 27—invoices and receipts (collectively, invoices) related to the repairs made
to the car wash, most of which contained handwritten notations regarding the date
and check number that Hamilton used to pay the invoices—Amberson questioned
Hamilton about whether he knew how the invoices were generated, whether he knew
what information was used to generate the invoices, and whether he knew the policies
or procedures that were in place to create the invoices. Hamilton answered that he
had no personal knowledge of how the invoices were generated. Amberson made a
hearsay objection to State’s Exhibits 21 through 27, arguing that the State did not
prove that Hamilton was the custodian of records for each of the documents.
Amberson explained, “[Hamilton] cannot testify that these entries were made at or
near the time by someone with personal knowledge. As he himself is not a part of
those companies. And so there is not an authentication[,] . . . [and] the business
records exception has not been met.” The trial court overruled Amberson’s
objection.
10
State’s Exhibits 28 through 30 reflect copies of three cancelled checks for
payments Hamilton made for some of the repairs to the car wash. Amberson
objected based on the best-evidence rule and argued, “I realize these are self-
authenticated commercial paper; however, that requires the original at that point in
time, which we do not have.” The trial court overruled Amberson’s objection.
D. Analysis
1. State’s Exhibits 28 through 30
With regard to State’s Exhibits 28 through 30, the copies of the cancelled
checks constitute duplicates and were therefore admissible, unless their authenticity
was challenged.3 See Tex. R. Evid. 1003. Amberson’s sole argument is that “[i]n
lodging a ‘best evidence’ objection, [he] raised a question as to the authenticity of the
original checks and alerted the trial court that it would be unfair to admit the
duplicates in lieu of the originals.” Amberson relies on the following statement from
Menefee v. State: “An objection that evidence is not the ‘best evidence’ asserts that a
copy or reproduction of a writing, recording, or photograph is inadequate and should
be replaced by the original.” 928 S.W.2d 274, 278 (Tex. App.—Tyler 1996, no pet.).
In Menefee, the appellant “objected to the admission of certified copies of prior
judgments because the certified copies were not the ‘best evidence’ of the judgments.”
3
As noted by the trial court when it ruled on the admissibility of the cancelled
checks, “given the business practices of banks today, I would guess this is as good as
it gets for an original check.”
11
Id. But the Menefee court summarily held, “This objection is without merit.” Id. We
reach the same conclusion. Because rule 1003 specifically allows for duplicates to be
admitted in the absence of an authenticity challenge,4 we hold that the trial court did
not err by overruling Amberson’s best evidence objection to State’s Exhibits 28
through 30. See Tex. R. Evid. 1003. We overrule Amberson’s third issue.
2. State’s Exhibits 21 through 27
As set forth above, the trial court treated State’s Exhibits 21 through 27 as
Hamilton’s business records. With regard to the custodial requirement inherent in the
business-records exception to the hearsay rule, rule 803(6) does not require that the
person authenticating the record be either the creator of the record or have personal
knowledge of the information recorded therein. See Desselles v. State, 934 S.W.2d 874,
876 (Tex. App.—Waco 1996, no pet.); Brooks v. State, 901 S.W.2d 742, 746 (Tex.
App.—Fort Worth 1995, pet. ref’d). Rather, the testifying witness need only have
knowledge of how the record was prepared. Desselles, 934 S.W.2d at 876; Brooks, 901
S.W.2d at 746. Hamilton disclaimed any personal knowledge of how the invoices
were created. As a result, the State did not establish that the invoices reflected in
State’s Exhibits 21 through 27 were made in the ordinary course of business, that they
were made at or near the time of the events they recorded, and that they were made
4
Amberson did not challenge the authenticity of the copies of the cancelled
checks in the trial court, but he instead specifically stated that the copies of the
cancelled checks were self-authenticated.
12
by a person with knowledge who was acting in the regular course of business. See
Tex. R. Evid. 803(6); Johnson v. State, No. 12-10-00277-CR, 2011 WL 3328687, at *3
(Tex. App.—Tyler July 13, 2011, pet. ref’d) (mem. op., not designated for publication)
(holding that trial court erred by admitting into evidence records for which
sponsoring witness was not the custodian). Because Hamilton was unable to prove
up the requirements for the invoices to constitute business records under rule 803(6),
we hold that the trial court erred by admitting State’s Exhibits 21 through 27 and
therefore proceed to a harm analysis.
Here, the error does not rise to the level of reversible error. Based on the
record before us, the challenged evidence could have had no more than a slight effect
on the jury’s decision. The jury had before it Hamilton’s unobjected-to testimony that
he had received a little over $12,000 from his insurance provider to cover the damage.
See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting that any
error with respect to admission of complained-of evidence was harmless in light of
“very similar evidence” admitted without objection), cert. denied, 562 U.S. 1142 (2011);
McNac v. State, 215 S.W.3d 420, 424–25 (Tex. Crim. App. 2007) (in harm analysis,
concluding that the “unchallenged evidence [was] essentially cumulative” of the
challenged evidence). Hamilton also testified without objection about each of the
invoices and the canceled checks. See Estrada, 313 S.W.3d at 302 n.29; McNac, 215
S.W.3d at 424–25.
13
The jury also had before it multiple photographs showing the damage to the
car wash, including the gaping hole in the brick wall where the coin machine had been
located before it was forcibly removed. The State thus did not have great need for
this particular evidence because it otherwise had presented sufficient evidence to
establish the pecuniary loss attributable to the criminal mischief. Based on our review
of the record, any error the trial court might have theoretically committed by
admitting State’s Exhibits 21 through 30 did not have a substantial and injurious
effect on the jury’s determination of Amberson’s guilt. See Tex. R. App. P. 44.2(b);
Greenwood v. State, 948 S.W.2d 542, 552–53 (Tex. App.—Fort Worth 1997, no pet.)
(holding that admission of document, which did not have proper business records
predicate established, was harmless because witness testified without objection to the
same fact contained in the document). We overrule Amberson’s second issue.
V. Closing Argument
In his fourth issue, Amberson argues that the trial court abused its discretion
and denied him his right to counsel by sustaining the State’s objection to his closing
argument:
And Mr. Hamilton testified a couple of times that he wasn’t allowed to
do the electrical work because he wasn’t permitted. And that on
commercial businesses, you have to be permitted. And yet he also did
some of the electrical work himself. So what is it? He also said the
electrical work, the conduit and stuff had to be replaced.
Mr. Mueller said all of this is original. None of that is new. None
of that was purchased recently. That’s all original.
14
[PROSECUTOR]: Objection, facts not in evidence.
THE COURT: Sustained.
A. Standard of Review and Applicable Law
We review a trial court’s ruling on an improper-jury-argument objection by the
State for an abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim.
App. 2010), cert. denied, 565 U.S. 830 (2011). Permissible jury argument falls into four
distinct categories: (1) summary of the evidence; (2) reasonable deductions from the
evidence; (3) response to opposing counsel’s argument; or (4) a plea for law
enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008), cert. denied,
556 U.S. 1211 (2009). An appellant is allowed to argue reasonable, good-faith
deductions from the evidence. Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App.),
cert. denied, 531 U.S. 850 (2000); Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App.),
cert. denied, 522 U.S. 994 (1997). This includes the appellant’s opinion about what the
evidence shows as long as the opinion is based on the record evidence and does not
constitute sworn testimony. See McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App.
1985), cert. denied, 479 U.S. 871 (1986). Improper denial of jury argument may
constitute denial of the right to counsel if the argument is one the appellant is entitled
to make. Davis, 329 S.W.3d at 825.
Denial of the right to counsel is an error of constitutional magnitude. See U.S.
Const. amend. VI; Tex. Const. art. I, § 10; see also Lemos v. State, 130 S.W.3d 888, 892–
93 (Tex. App.—El Paso 2004, no pet.) (“A criminal defendant’s constitutional rights
15
to counsel and to a jury trial encompass a right to have his theory of the case argued
vigorously to the jury.”). When an error is of constitutional magnitude, we must
evaluate harm under rule 44.2(a), which requires us to reverse unless we determine
beyond a reasonable doubt that the error did not contribute to appellant’s conviction.
See Tex. R. App. P. 44.2(a).
B. Relevant Testimony
During defense counsel’s cross-examination of Paul Mueller, who leased the
car wash from Hamilton, she asked him to identify Defendant’s Exhibit 1, which was
a photograph of Mueller standing next to the interior of the wall that was replaced at
the car wash. The trial court admitted Defendant’s Exhibit 1, and defense counsel
asked Mueller about the wiring depicted in the picture:
Q. (By [Defense Counsel]) I’m going to circle all of the conduit here.
All of the conduit that is in this picture is the original conduit -- or in the
circle, excuse me -- is the original conduit that was in that room prior to
the damage; is that correct?
A. Correct.
Q. And this electrical box is the same electrical box that was there prior
to the damage; is that correct?
A. Yes.
Q. And as well as the one next to it, correct?
A. Yes.
Prior to Mueller’s testimony, Hamilton had testified on direct that electrical
repairs were performed after the coin machine was forcibly removed from the car
16
wash. The State showed Hamilton State’s Exhibit 3, which depicted the exterior of
the same wall that was depicted in Defendant’s Exhibit 1. Hamilton testified that the
exterior wall contained the electric meter box but that the interior contained the
breaker boxes and additional wiring. When the State asked Hamilton, “So quite a bit
of electrical work on this wall, in addition to the masonry work?” Hamilton answered,
“Yes.” Later during Hamilton’s testimony, the State showed Hamilton State’s Exhibit
32, which depicted the exterior of the damaged wall after it was repaired, and asked,
“Is that a new meter box that I’m pointing to?” Hamilton responded, “Yes. The
actual other meter box was bent up pretty bad.”
On cross-examination, defense counsel questioned Hamilton about the
electrical repairs:
Q. And that all of the electrical conduit had to be replaced and repaired?
A. On the inside. Most of it -- some of it had to be replaced. Most of it
had to be repaired and replaced. All of the conduit on the outside was
replaced.
Q. Okay. And you said the electrical box had to be replaced, correct?
A. Define electrical box.
Q. We have the outside box?
A. The meter.
Q. Which is the meter, correct?
A. Yes.
17
Q. And then there was additional electrical work that had to be done for
the conduit and everything that was on the backside of the wall?
A. Yes.
C. Analysis
Amberson argues that “everything to which the State objected was proper
either as a summation of the evidence or a reasonable deduction from the evidence[.]”
Amberson further argues that “the trial court abused its discretion when it sustained
the State’s objection and violated [his] right to counsel by preventing his counsel from
making an argument she was entitled to make.”
Assuming without deciding that the trial court abused its discretion by
sustaining the State’s objection, we must determine whether the error was harmful.
Amberson argues that this court “should have a reasonable doubt about whether the
error contributed to [his] conviction” because “[t]he objected-to argument was part
and parcel to [his] broader argument that the State had not met its burden of proof on
the pecuniary-loss element.” Defense counsel argued during closing without
objection that
[the State] chose to charge him with this crime. Where is their proof?
And value, cost to repair, heck, the owner made three grand on
this case. Insurance gave him twelve grand, and he spent nine. Where is
the cost? You saw receipts, but you’ve not heard from a single person
that did the work in this case. You did not hear from the electrical
person. You did not hear from the brick mason that repaired the walls.
You have not heard from anybody that actually did the work in this case.
18
And the only evidence of payment that you’ve seen is two checks.
One for $1,900, which doesn’t match the receipt that he received. He
actually modified that himself and made it $1,900 versus $1,500 that was
originally on that receipt. And one for $196. There is a check for $400,
but as you’ve heard, that’s not part of the pecuniary loss in this case. So
where is the value? The State has to prove that beyond a reasonable
doubt to you.
From our review of defense counsel’s entire closing argument, we conclude that she
was allowed to make, and did make, the argument that the State had not proved the
pecuniary-loss element of felony criminal mischief—that the pecuniary loss was more
than $2,500 but less than $30,000—but the jury disagreed. As we held above,
Hamilton’s unobjected-to testimony regarding the insurance proceeds he received was
sufficient to prove the pecuniary-loss element of felony criminal mischief. See
Campbell, 426 S.W.3d at 785. Moreover, even excluding the $4,750 paid to electricians,
the total cost of the bricks, the masonry work, and the welding was more than $2,500.
We therefore conclude that any possible error in sustaining the State’s objection to
defense counsel’s closing argument was harmless beyond a reasonable doubt and did
not contribute to Amberson’s conviction. See Tex. R. App. P. 44.2(a); McGee v. State,
No. 05-12-01074-CR, 2014 WL 261060, at *9 (Tex. App.—Dallas Jan. 23, 2014, pet.
ref’d) (mem. op., not designated for publication) (holding harmless any error in
sustaining State’s objection to closing argument because appellant was allowed to
make desired argument without objection at another point during closing). We
overrule Amberson’s fourth issue.
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VI. Conclusion
Having overruled Amberson’s four issues, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 15, 2018
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