Opinion issued March 21, 2013




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00202-CR
                           ———————————
                 DARRYL DEWAYNE HARPER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 248th District Court
                           Harris County, Texas
                       Trial Court Case No. 1297713



                         MEMORANDUM OPINION

      A jury found appellant, Darryl Dewayne Harper, guilty of the offense of

aggravated assault 1 and assessed his punishment at confinement for forty years. In


1
      See TEX. PENAL CODE ANN. § 22.02 (Vernon 2011).
two issues, appellant contends that the trial court erred in allowing him “the right

to present a defense” and “injecting itself into closing argument.”

      We affirm.

                                    Background

      Frank Murchinson, the complainant, testified that on February 21, 2011, he

drove his car to the house of Deanne Foster, who he started dating in January 2011.

As he approached Foster’s house on Tiffany Drive, he noticed a burgundy-colored

car parked nearby that he did not recognize. The complainant then parked his car

in Foster’s driveway and waited to see if anyone exited the burgundy-colored car.

Eventually, he exited his car, heard two gunshots, and was shot once in the leg.

The complainant looked up from the ground and saw appellant, Foster’s ex-

boyfriend, pointing a gun at him and firing it. The complainant crawled under his

car until appellant left. He was transported to a hospital, where he lapsed into a

coma for approximately one month. When he awoke, the complainant learned that

he had been shot five times in his stomach and twice in his leg. Several of

appellant’s brothers later contacted him and told him not to testify against

appellant.

      Houston Police Department (“HPD”) Officer T. Wyatt testified that on

February 21, 2011, he received a dispatch to report to a “shooting in progress” at a

house on Tiffany Drive. When Wyatt arrived at Foster’s house, the complainant

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was being placed in an ambulance with a gunshot wound. Wyatt spoke with Foster

and Sandra Purnell, who was on her way to visit one of Foster’s neighbors, and

both women identified appellant as a suspect in the shooting. Wyatt found bullet

casings in Foster’s front yard and driveway and several bullets lodged in a Jeep

parked in front of the house. He also recovered a set of keys, which Foster told

him belonged to appellant, and a black glove. Wyatt was unable to speak with the

complainant about the incident because he had lapsed into a coma.

      HPD Officer C. Liu, who was assigned to investigate the shooting, testified

that he spoke with Foster and learned that the complainant had lapsed into a coma.

Foster told Liu that she saw two people, appellant and Jowama Chambers, running

away from her house after the shooting. Liu interviewed appellant, who said that

he had been at a Foodarama grocery store at the time of the shooting. Liu visited

the Foodarama, which was 0.4 miles from Foster’s house, and watched a store

surveillance tape indicating that appellant had entered the store at 8:54 p.m. Liu

noted that the shooting was first reported at 8:08 p.m. and Foster, the complainant,

and Purnell all identified appellant as the shooter from a photographic array.

      Foster testified that she first met appellant in 2006, they started dating in

May 2008, and they had a daughter together. After appellant started physically

abusing Foster, she ended their relationship in May 2009. In January 2011, Foster

started dating the complainant, and soon thereafter appellant sent her texts reading,

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“How could you do this to me? How do you mess with a kid?” On February 21,

2011, she was painting her son’s bedroom when she heard gunshots in her front

yard. Foster opened her front door to see that the complainant had been shot and

appellant and one other person running away. After appellant entered a burgundy-

colored car and “sped off” away from her house, Foster heard two more gunshots

come from the burgundy-colored car. Foster noted that she had been expecting the

complainant to come to her house that night. She also identified for the jury the

keys found in her front yard as belonging to appellant.         After the shooting,

appellant wrote her several letters, claiming that “someone else had actually did the

crime” and requesting that Foster not testify.

      Purnell testified that on February 21, 2011, she was driving her car to a

friend’s house when she heard a “commotion” to the left of her car. She heard

someone say, “We got you now,” followed by several gunshots. Purnell then

pulled her car over into a driveway and turned to see appellant, who was carrying a

gun, and another young male run and enter a burgundy-colored car.

      Christina Davis, appellant’s sister-in-law, testified that on February 21,

2011, she was at the house of appellant’s mother with appellant and other family

members. She noted that at approximately 6:30 or 6:40 p.m., appellant drove to

the Foodarama “down the street” along with his daughter, nieces, and nephews.

He returned approximately 30 minutes later and started cooking dinner. After

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dinner, Davis, appellant, and appellant’s girlfriend watched the television program

Basketball Wives. At some point, Davis fell asleep, and when she woke up at

approximately 2:00 a.m., appellant and his girlfriend had gone to his bedroom.

      Glenda Lott, a girlfriend of one of appellant’s brothers, also testified that on

February 21, 2011, she visited the house of appellant’s mother. Appellant left to

go to a grocery store. Lott watched Basketball Wives until approximately 2:00

a.m., and, during that time, appellant watched television in his room with his

girlfriend. On cross-examination, Lott stated that she watched Basketball Wives on

“regular TV” and not a recording of it. The State then showed Lott an issue of a

TV Guide, and Lott testified that the TV Guide did not list Basketball Wives as

broadcast on the night on February 21, 2011.

                               Evidentiary Rulings

      In his first issue, appellant argues that the trial court denied him the right to

present a defense, in violation of the Sixth Amendment of the United States

Constitution, because it “specifically allow[ed] the prosecutor to impeach the alibi

witnesses with a television schedule” and did not allow him “to respond.”

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App.

2006). Therefore, we will not reverse a trial court’s ruling as long as it is within

the “zone of reasonable disagreement.” See id.

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      The Sixth Amendment guarantees a defendant “a meaningful opportunity to

present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct.

2142, 2146 (1984) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct.

2528, 2530 (1984)). There are two distinct situations in which rulings excluding a

defendant’s evidence “might rise to the level of a constitutional violation: (1) a

state evidentiary rule which categorically and arbitrarily prohibits the defendant

from offering otherwise relevant, reliable evidence which is vital to his defense;

and (2) a trial court’s clearly erroneous ruling excluding otherwise relevant,

reliable evidence which ‘forms such a vital portion of the case that exclusion

effectively precludes the defendant from presenting a defense.’” Wiley v. State, 74

S.W.3d 399, 405 (Tex. Crim. App. 2002) (quoting Potier v. State, 68 S.W.3d 657,

659–62, 665 (Tex. Crim. App. 2002)).               “Exclusions of evidence are

unconstitutional only if they ‘significantly undermine fundamental elements of the

accused’s defense.’” Potier, 68 S.W.3d at 666 (quoting United States v. Scheffer,

523 U.S. 303, 315, 118 S. Ct. 1261, 1267–68 (1998)). The exclusion of evidence

is not prejudicial if the defendant “was not prevented from presenting the

substance of his defense to the jury.” Id. (quoting United States v. Willie, 941 F.2d

1384, 1398–99 (10th Cir. 1991)).

      During its cross-examination of Lott, the State asked the trial court to take

judicial notice of information in an issue of TV Guide. The trial court refused to

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take judicial notice of the information, but allowed the State to present it to Lott

“as if it were an offense report” and “talk to her about what was scheduled to

appear.” The State then presented the TV Guide to Lott in the following exchange:

      [STATE]:     Now, this is the schedule for what date?

      [LOTT]:      The 21st.

      [STATE]:     Of?

      [LOTT]:      February 2011.

      [STATE]:     And this being VH1, Basketball Wives was not scheduled
                   to play on that night, was it?

      [LOTT]:      Uh-huh. I don’t see it.

On re-direct examination, appellant attempted to rehabilitate Lott’s testimony by

noting that she stayed up until 2:30 a.m. and asking whether Basketball Wives

might have come on television after midnight on the next day. However, the State

objected to the question as calling for “speculation,” and the trial court sustained

the objection.

      To the extent that appellant complains that the trial court erred in allowing

the State to present the TV Guide to Lott, he did not object to its admission or to

the State’s line of questioning in the trial court. Likewise, to the extent that

appellant complains that the trial court erred in sustaining the State’s objections to

his own line of questioning, he did not argue to the trial court that its ruling

violated his Sixth Amendment right to present a defense. To preserve error, a
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defendant must timely object and obtain a ruling. See TEX. R. APP. P. 33.1(a).

Accordingly, we hold that appellant has not preserved this complaint for review.

See Reyna v. State, 168 S.W.3d 173, 176–79 (Tex. Crim. App. 2005) (stating that

failure to present argument to trial court in support of admission of excluded

evidence waived argument on appeal); Broxton v. State, 909 S.W.2d 912, 918

(Tex. Crim. App. 1995) (holding that defendant’s failure to argue in trial court that

he was denied right to present defense waived argument on appeal); Fernandez v.

State, No. 14-09-00369-CR, 2010 WL 1486971, at *7 (Tex. App.—Houston [14th

Dist.] Apr. 15, 2010, no pet.) (holding that defendant waived argument that trial

court violated Sixth Amendment in excluding his evidence by failing to make

argument in trial court).

      We overrule appellant’s first issue.

                                Closing Argument

      In his second issue, appellant argues that the trial court denied him the right

to present a defense, in violation of the Sixth Amendment, because it injected itself

into the closing argument and prevented him from “responding to the harmful

contents of the TV Guide.”

      Generally, permissible jury argument concerns (1) a summation of the

evidence; (2) reasonable deductions from the evidence; (3) answering argument of

opposing counsel; or (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d

                                         8
103, 115 (Tex. Crim. App. 2000) (en banc). A trial court has broad discretion in

controlling the scope of closing argument, but it may not prevent defense counsel

from making a point essential to the defense. Lemos v. State, 130 S.W.3d 888, 892

(Tex. App.—El Paso 2004, no pet.); see Herring v. New York, 422 U.S. 853, 862–

64, 95 S. Ct. 2550, 2555–56 (1975). All inferences from the evidence that are

reasonable, fair, and legitimate may be argued by the defense. Melendez v. State, 4

S.W.3d 437, 442 (Tex. App.—Houston [1st Dist.] 1999, no pet.), overruled on

other grounds, Small v. State, 23 S.W.3d 549 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d). However, a trial court has the duty to sustain objections to

argument when the argument violates some rule or statute. See Bray v. State, 478

S.W.2d 89, 90 (Tex. Crim. App. 1972); Eckert v. State, 672 S.W.2d 600, 603 (Tex.

App.—Austin 1984, pet. ref’d).

      Specifically, appellant complains of the following exchange, made by his

counsel during closing argument:

      [APPELLANT’S COUNSEL]:                Now, the prosecution would
                                            have you believe that they’re a
                                            bunch of liars because they said
                                            that they watched Basketball
                                            Wives and they bring you
                                            schedules which say, Yeah,
                                            there’s no Basketball Wives on
                                            the 21st.

      [TRIAL COURT]:                        Those are not in evidence,
                                            counsel.

                                        9
[STATE]:                      Objection, arguing facts not in
                              evidence.

[TRIAL COURT]:                You can continue, but you’re
                              holding something that’s not in
                              evidence.

[APPELLANT’S COUNSEL]:        Well, you know, Basketball
                              Wives was running from – up to
                              10:30. They never showed you
                              –

[STATE]:                      Objection to arguing facts not
                              in evidence.

[TRIAL COURT]:                That’s sustained.

[APPELLANT’S COUNSEL]:        We have to ask ourselves: Did
                              they give you the full picture?
                              These girls are watching TV
                              until 2:00 o’clock in the
                              morning.       There’s shows
                              continuously coming on. No
                              one said that they were
                              watching Basketball Wives at
                              exactly 6:30 when that guy was
                              making dinner. No. They said
                              that they remember watching
                              Basketball Wives. That show
                              was on that night.        They
                              remembered that at some point,
                              they watched the show. It does
                              come on. It comes on late at
                              night when they were up until
                              2:00 o’clock in the morning.

[STATE]:                      Objection, arguing facts not in
                              evidence.



                         10
      [TRIAL COURT]:                          Excuse me, counsel. Sustained.
                                              Arguing facts not in evidence.

      [STATE]:                                Your Honor, I’m going to ask
                                              that the jury disregard the
                                              comment.

      [TRIAL COURT]:                          The jury is instructed         to
                                              disregard the last comment.

      Interjections by a trial court that correct misstatements or misrepresentations

of previously admitted testimony, or that clear up points of confusion, are not

improper. See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001);

Watson v. State, 176 S.W.3d 413, 418 (Tex. App.—Houston [1st Dist.] 2004, no

pet.). Here, the trial court’s comments and rulings regarding the closing argument

of appellant’s trial counsel served to clarify to the jury that the TV Guide was not

admitted into evidence. Again, appellant did not move to admit the TV Guide into

evidence himself or object to the State using the TV Guide during trial. The trial

court could have reasonably concluded that the assertion by defense counsel that

Basketball Wives came on “late at night until 2:00 o’clock in the morning” may

have been interpreted by the jury as information contained in the TV Guide. We

cannot conclude that the trial court violated appellant’s fundamental rights in either

its comments or its rulings regarding closing argument. See Watson, 176 S.W.3d

at 418.   Accordingly, we hold that the trial court did not err in making its




                                         11
comments or sustaining the State’s objections about the TV Guide during

appellant’s closing argument.

      We overrule appellant’s second issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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