 AFFIRMED; Opinion Filed November 15, 2012.



                                             /




                                                 In The
                                       nurt nf Apirahi
                           Fift1! Diitrirt of           rxa at 1a11ai
                                         No. 05-i 1-00309-CR


                                JOHN A. HERNANDEZ, Appellant

                                                   V.

                                THE STATE OF TEXAS, Appellec


                        On Appeal from the 265th Judicial District Court
                                     Dallas County, Texas
                             Trial Court Cause No. F09-25333-R


                                             OPINION
                            Before Justices Moseley, Fillmore, aixl Myers
                                     Opinion By Justice Myers

        Appellant was convicted of aggravated robbery with a deadly weapon and sentenced to forty-

five years in prison and a $10,000 fine. He contends the trial court denied him an opportunity to

present a complete defense. We affirm.

                                             DiscussioN

        in his only issue, appellant argues that, by erroneously overruling various defense objections

made during the voir dire and the State’s case-in-chief, the trial court denied him the right to present

a complete defense. The State responds that appellant’s constitutional complaint was not preserved

for appellate review and, alternatively, that the court did not violate appellant’s right to present a

complete defense.
                                        Preervatioii   of Error

          Proper preservation of error requires a party to make a timely and specific objection as soon

 as the basis fir the object ion becomes apparent, and the complaint on appeal must not vary from the

 trial court objection. See TEX. R. EVID. 103(a)(l); TEx. R. Arp. P. 33. l(a)( I )(A) Heidelbergv. State,

 14$ S.W.3d 535, 536 (Tex. Crim. App. 2004). An objection preserves only the specific               ground


 cited. See Moslev v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g); Johnson

 v, State, 803 S.W.2c1 272, 292 (Tcx. Crim. App. 1990) (“An objection stating one legal theory may

not   be used to support a different legal theory on appeal.”). Even claims of constitutional error may

be waived if not properly brought to the attention of the trial court. Broxton v. State, 909 S.W.2d

912, 918 (Tex. Crim. App. 1995).A defendant’s right to present a defense is the type of claim that

is forfeited if it is not specifically urged at trial. See Anderson v. State, 301 S.W.3d 276, 280 (Tex.

Crirn. App. 2009).

         A total of seven defense objections are at issue in this case, in which the complainant was

stabbed, beaten, and robbed near a Quick Trip convenience store. During the voir dire, appellant’s

counsel objected to “improper voir dire” by the prosecutor regarding the concept of reasonable

doubt, and that the State asked an improper “commitment question” concerning the definition of

“beyond a reasonable doubt.” Defense counsel also objected based on the “absolute right       ...   not to

testify” when the prosecutor asked prospective jurors if they could think of a reason why a defendant

might not want to testii’. During the State’s direct examination of a hostile witness, Angie De Los

Santos Trevino. appellant objected to admission of her handwritten statement to the Garland police

as a “recorded recollection” under rule 803(5) of the rules of evidence; objected that the prosecutor

was testifying; and objected that the prosecutor was being argumentative. Appellant also contends

the trial court erroneously overruled his objection that the prosecutor was improperly leading the
 complainant when the prosecutor asked him:           “And    then what happened. Was there anybody—was

 there anybody following you from the Quick Trip?’

           The record shows that appellant’s counsel stated the grounds for his various objections, but

 at no   point did he object to any of the alleged errors based on a violation of the constitutional right

 to   present a complete defense. The trial objections preserved error only as to the specific grounds

 stated. See Mosley, 983 S.W.2d at 265. Because appellant did not raise his argument at trial, he did

 not preserve the issue for our review. See TEx. it Aip. p. 33.1 (aX 1 )(A); Anderson, 301 S.W.3d at

 280; Broxton, 909 S.W.2d at 918; Hayes v. State, 124 S.W.3d 781, 786-87 (Tex. App.—Flouston

 [1st Dist.] 2003). aff’d, 161 S.W.3d 507 (Ta. Crim. App. 2005); Houston v. State, No. 05-11-

 00016-CR, 2012 WI 2511588, at * 1 (Ta. App.—DalIas July 2. 2012, no pet.) (not designated for

publication); Villasenor v. State, No. 05-I 0-00969-CR. 2011 WI 3435376, at *2 (Tex. App.—Dallas

Aug. 8,2011, no pet.) (man op., not designated for publication).

                          Denial ofthe Right to Present a Complete Defense

          But even ifwere to conclude appellant preserved his issue, his argument thIs on the merits.

A criminal defendant’s constitutional right to a meaningful opportunity to presenta complete defense

is grounded in the Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s

Compulsory Process and Confrontation Clauses. Anderson, 301 S.W.3d at 280 (citing Crane v.

Kentucky, 476 U.S. 683,690(1986)); see also U.S. CoNsr. amend. VI, XIV. “Erroneous evidentiary

rulings rarely rise to the level       of   denying the hmdsmental constitutional rights to present a
meaningful defense.” Potier v. State, 68 S.W.3d 657,663 (‘rex. Crim. App. 2002). A trial court’s

exclusion   of   evidence may   rise   to the level   of   a constitutional violation if the ruling excludes
otherwise relevant and reliable evidence which “forms such a vital portion ofthe case that exclusion

effectively precludes the defendant from presenting a defense.” Wiley i’. State, 74 S.W.3d 399,405




                                                      -3-
  1 cx. Corn. App. 200.?) (quotlnr Thtie,, ( S.W.3d at 665). the fact that a defendant was unable

 to present his case to the extent and in the form he desired does not rise to constitutional error if he

 was not prevented from presenting the substance of his defense to the jury.   Polic’r,   6X S.W.3d at 666.

         Appellant first argues the trial court abused its discretion by overruling three objections to

 the State’s voir dire examination, The defense’s first objection was made when, while discussing

 the concept of reasonable doubt with a prospective juror, the prosecutor stated. “Beyond a reasonable

 doubt is not the same thing as beyond a shadow of a doubt. Ms. Winn, what do you think about

 that?” Appellant objected to “improper voir dire on the subject,” and the trial court overruled the

objection. Appellant also objected when the prosecutor asked the jury panel if anyone felt the same

way as a panelist who said that a puzzle with missing pieces “resembles what’s on the front of the

box. But if the piece is missing, the picture is not complete.” Appellant’s counsel objected to the

prosecutors line ol questioning, arguing the question was “a commitment question to the beyond

a reasonable doubt definition.” The trial court overruled the objection because “[the prosecutor]

hasn’t said anything to tie into reasonable doubt.” The third objection challenged the following

question by the prosecutor:

        Does everyone recall that? That is an unalienable—inalienable right that we as
        citizens have. We don’t have to testify in criminal cases in which we are charged.
        Everybody feel comfortable with that’? Can anybody think of some reasons—let’s
        talk with Ms. Winn. Can you think of a reason why a person may not want to?

Defense counsel objected, “Your Honor, I object to that. It’s an absolute right that a person has not

to testify [sic].” The trial court overruled the objection.

        Appellant contends the trial court abused its discretion by overruling his first two voir dire

objections because the questions were improper commitment questions and/or a mischaracterization

of the State’s burden of proof. “Commitment questions are those that commit a prospective juror




                                                 -4-
 to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.”

 Standefèr v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). The challenged questions did not

 ask prospective jurors to commit regarding a conviction or to resolve or refrain from resolving any

 particular issues, and the State did not mischaracterize its burden ofproofregarding the allegations

 in the indictment. As for appellant’s argument that the third challenged question was an improper

 reference to his constitutional right not to testify, a comment that occurs before testimony in the case

 has closed “cannot be held to refer to a failure to testify which has not yet occurred.” Grcjffv. Slate,

 65 S.W.3d 730,737 (Tex. App.—Waco 2001. pet. ret’d). Thus, we cannot say the trial court abused

its discretion by overruling appellant’s voir dire objections.

        Turning to appellant’s contentions regarding the State’s direct examination ofAngie De Los

Santos Trevino, the testified that she did not want to testify and that the could not rememberwriting

a statement for the police. After Trevino testified that she did not remember writing a statement for

the police or recall the things that were said in the statement the State offered Trevino’s handwritten

statement to the Garland police as a recorded recollection under rule 803(5) of the Texas Rules of

Evidence. Appellant’s counsel objected that Trevino had not been afforded an opportunity to review

the statement to “see if it refreshes her memory before we ask it be admitted.” The prosecutor

responded, “Your Honor, she’sjust stated in front ofthejury that she doesn’t even remember writing

the statement and then she doesn’t remember the content” The trial court overruled the objection

and admitted the statement The trial court then granted the prosecutor’s request to treat Trevino as

a hostile witness.

       Appellant argues the trial court erroneously admitted the statement because the State failed

to lay a proper predicate under rule 803(5). Yet, even if we assume the trial court erred, the trial

court’s ruling does not rise to the level ofconstitutional error. Erroneous evidentiary rulings rarely




                                                 —5--
 rise to the level ofdenying fIrndamental constitutional rights, see Potter. 68 S.W.3d at 663, and there

 has been no showing that this occurred here. Nor can we say. based on the record and the arguments

 betbre us, that the admission of the statement influenced the jury or had more than a slight effect

 See Motilla   ‘   State. 78 S.W.3d 352, 355 rex. Crim. App. 2002).

        Appellant also claims the trial court abused its discretion by overruling his objections that

 the prosecutor was testifying and being argumentative during the direct examination of Trevino.

 According to the record, the prosecutor questioned Trevino about each of the lines in her written

 statement. When Trevino repeatedly responded that she did not recall the statements, the prosecutor

 asked her about speaking with the prosecutor and an investigator prior to triaL               Trevino
acknowledged that she had met with them. Appellant objected as follows:

        [PROSECUTOR:] Okay. Well let’s get back to the part about the stabbing. Do you
        remember saying tome “He mid me he didn’t stab him, hejust hit him with the bat”?

        [TREVINO:] No, I don’t recall.

        [PROSECUTOR:] You don’t remember telling me that last week?

        [TREV1NO:] Well I remember telling you a lot of things.

       [DEFENSE COUNSEL]: Your Honor, I’m sorry, I object to this line of questioning.
       if the prosecutor wants to testify she should be called to the stand.

The court overruled the objection. Thereafter, Trevino stated that she did not “know how much of

this I remember and what I don’t remember.” The prosecutor responded, “Thank you, you’ve

already said that Let me go through it again line by line, because we had this conversation and I

want to make sure ifyou’re changing your story today.” Appellant’s counsel objected, “Objection

argumentative, Your Honor.” The trial court overruled the objection.

       The rules of evidence vest the trial court with wide latitude in controlling the manner and

mode of interrogating witnesses and presenting evidence so as to (1) make the interrogation and



                                                -6-
 presentation effective for the ascertainment ofthe truth, (2) avoid needless consumption oftime, and

 (3) protect witnesses from harassment or undue embarrassment TEx. R. EyED. 611(a); Padlila v.

 State, 278 S.W.3d 98. 106 (Tex. App.—Texarkana 2009, pet. ref’d). Although the Suite called

 Trevino to the stand, the court granted the prosecutor permission to treat Trevino as a hostile witness.

 The prosecutor did not harass Trcvino or subject her to undue embarrassment, and appellant has not

 shown the court abused its discretion by overruling his objections.

        Appellant also alleges the trial court erroneously overruled his objection that the prosecutor

was improperly leading the complaining witness when the prosecutor asked the complainant: “And

then what happened. Was there anybody—was there anybody following you from the Quick Trip?”

        “Leading questions are questions that suggest the desired answer, instruct the witness how

to answer, or put words into the witness’s mouth to be echoed back.” Tinlin v. State, 983 S.W.2d

65.70 (Ta. App.—Fort Worth 1998. pet. rerd). A question is not leading merely because it can

be answered “yes” or “no.” Id. A question is impermissibly leading only when it suggests which

answer, “yes” or “no,” is desired. id. Rule 611(c) prohibits leading questions on direct examination

“except as may be necessary to develop the testimony of the witness.” TEx. It EyED. 611(c). The

nile contemplates that some leading questions are acceptable at the trial court’s discretion. ff5’att

v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000). To establish that a trial court abused its

discretion, an appellant must show the question resulted in undue prejudice. Id.

       We do not conclude the prosecutor’s question was a leading question. The prosecutor did

not suggest the desired answer, instruct the witness how to answer, or put words into her mouth. See

Tinlin, 983 S.W.2d at 70. Moreover, even ifit could be considered a leading question, appellant has

not shown the trial court abused its discretion to permit leading questions to develop the witness’s

testimony under the circumstances, or that the challenged question resulted in undue prejudice. See



                                                 —7—
 Tix. R. Evin. ôll: Huti, 23 SW3d at 2.

                                             (‘on cliision

         After carefully reviewing the record, we conclude appellant fluted to preserve error and that

he did not meet his burden of showing the trial court denied him an opportunity to present a

complete defense. Whether the court’s rulings are viewed in isolation or collectively, appellant has

not shown the exclusion of relevant and reliable evidence that tbrmed such a vital part of his case

that its exclusion effectively precluded him from presenting a defense. We overrule appellant’s

issue.

         We affirm the trial court’s judgment.




                                                        LANA MY RS
                                                        JUSTICE



Do Not Publish
TEx. R. API’. P. 47
I 10309F.U05




                                                 —8--
                               (!nitrt uf ppra15
                       iftI! Jtstrirt uf    xa it 1a11a
                                      JUDGMENT
JO! IN A. 1-fERNANDEZ. Appellant                   Appeal from the 265th Judicial District
                                                   Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-i 1-00309-CR          V.                    F09-25333-R).
                                                   Opinion delivered by Justice Myers, Justices
TI! Ii STATE OF TEXAS. Appellee                    Moseley and Fillmore participating.


       Based on the Court’s opinion of this date. the judgment of the trial court is AFFIRMED.




.ludment entered November 15. 2012.




                                                  LANA YERS
                                                  JUSTICE
