                          NUMBER 13-12-00617-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG

AGAPITO FLORES,                                                       Appellant,

                                       v.

THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 105th District Court
                        of Kleberg County, Texas.


                     MEMORANDUM OPINION
          Before Justices Rodriguez, Benavides and Longoria
             Memorandum Opinion by Justice Benavides
      By two issues, appellant Agapito Flores appeals his conviction and subsequent

sentence of fifteen years’ imprisonment in the Texas Department of Criminal

Justice—Institutional Division, pursuant to his open plea of guilty to a charge of
aggravated assault, causing serious bodily injury to another,1 a second-degree felony.

See TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011). We affirm.

                                        I.        BACKGROUND

        The State charged Flores with aggravated assault, causing serious bodily injury to

his self-described “high school [friend]” or common law wife.                See id.     Flores made an

open plea of guilty to the trial court, upon the State’s agreement that his punishment be

capped at a maximum of sixteen years’ confinement and that the State would drop the

deadly weapon and assault against a family member enhancement paragraph.

        The trial court held hearings on guilt and punishment, found Flores guilty as

charged, and assessed Flores’s punishment at fifteen years’ imprisonment.                               The

sentence was to run concurrent with another unrelated criminal charge.                        This appeal

ensued.

                               II.      CONFRONTATION CLAUSE

        By his first issue, Flores asserts that the trial court violated his right to

confrontation under the Sixth Amendment based upon the following statement made by

the prosecutor during his punishment hearing:

        [STATE]:                             Just for the Court’s knowledge, Your Honor, I
                                             have with [sic] been in contact with the victim as
                                             I spoke with the victim several times this week
                                             to include this morning. This morning she
                                             decided she didn’t want to come and testify at
                                             the hearing. She was definitely okay with the
                                             16 years recommendation to the Court. And
                                             she—if the Court needs her to come in, of
                                             course, she is accessible.


        1
         The State initially indicted Flores for aggravated assault causing serious bodily injury to another,
enhanced by a deadly weapon finding against a family member. See TEX. PENAL CODE ANN. § 22.02(b)(1)
(West 2011). However, the State later abandoned the enhancement paragraphs at the open plea hearing.

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       THE COURT:                    Anything else?

       [DEFENSE COUNSEL]:            Just argument, Your Honor.

A.     Preservation of Error

       As a threshold matter, we must first determine whether Flores properly preserved

error for review.       See Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009)

(“Preservation of error is a systemic requirement that a first-level appellate court should

ordinarily review on its own motion.”).   Generally, error is preserved if the record shows

that (1) a specific complaint was made to the trial court by request, objection, or motion;

and (2) the trial court ruled on the complaint or refused to rule and the party objected to

the refusal.   See TEX. R. APP. P. 33.1(a). To be timely, an objection must be made as

soon as the basis for the objection becomes apparent. Lagrone v. State, 942 S.W.2d

602, 618 (Tex. Crim. App. 1997) (en banc).            Specifically, to preserve denial of a

right-to-confrontation error, one must specifically object based on the Confrontation

Clause.   See Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991) (en banc);

Acevedo v. State, 255 S.W.3d 162, 173 (Tex. App.—San Antonio 2008, pet. ref’d).

       Here, the record shows that Flores did not object to the complained-of statement

by the prosecutor on any grounds.      Accordingly, the issue is not properly preserved for

our review.    See TEX. R. APP. P. 33.1(a); Acevedo, 255 S.W.3d at 173.       Flores’s first

issue is overruled.

                 III.      TESTIMONY OF WITNESSES BY TELEPHONE

       By his second issue, Flores asserts that the trial court abused its discretion and

committed harmful error by denying Flores’s motion to allow family members to appear

telephonically as witnesses.


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A.     Standard of Review

       An appellate court may not disturb a trial court's evidentiary ruling absent an

abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).

In other words, as long as the trial court's decision was within the zone of reasonable

disagreement and was correct under any theory of law applicable to the case, it must be

upheld.   Id.   (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990)); see Calloway v. State, 743 S.W.2d 645, 651–52 (Tex. Crim. App. 1988). This is

so because “trial courts . . . are usually in the best position to make the call on whether

certain evidence should be admitted or excluded.” Winegarner, 235 S.W.3d at 790;

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

B.     Discussion

       Flores argues that the trial court’s ruling deprived him of his constitutional right to

a meaningful opportunity to present a complete defense.        See Crane v. Kentucky, 476

U.S. 683, 690 (1986).      We disagree. A trial court's inherent power includes broad

discretion over the conduct of its proceedings.       State ex rel. Rosenthal v. Poe, 98

S.W.3d 194, 199 (Tex. Crim. App. 2003). Here, the trial court exercised its discretion to

not allow Flores’s witnesses to testify by telephone and explained its reasoning behind

the denial:

       The—the Court doesn’t normally allow testimony over the telephone. I
       require people to come in, unless arrangements have been made
       beforehand or the Court is aware of the motions.

       We believe that the trial court properly exercised its discretion to control the

conduct of its proceedings, see id. (recognizing that “some limits” to this “broad

discretion” exist and are reserved for “extreme circumstances”), and the trial court’s


                                              4
decision to exclude Flores’s witnesses’ testimonies by telephone was within the zone of

reasonable disagreement.     See Winegarner, 235 S.W.3d at 790.

       Even assuming that the trial court erred by not allowing the witnesses to testify by

telephone, thereby denying Flores from presenting a “complete defense,” we conclude

that such error was harmless.    See TEX. R. APP. P. 44.2 (noting that constitutional errors

are reversible only if we determine beyond a reasonable doubt that the error contributed

to the conviction or punishment).       Without objection from the State, the trial court

permitted Flores’s trial counsel to orally summarize what the witnesses would have

testified to on the record, including that Flores’s daughters believed that Flores had a

drinking problem which caused his legal issues, including the present charge.     Because

the trial court permitted Flores’s counsel to make this summary on the record, and heard

Flores’s own testimony in which he admitted guilt and sought to take responsibility for his

actions, we cannot conclude beyond a reasonable doubt that the error contributed to the

punishment.    See id. We overrule Flores’s second issue.

                                  IV.     CONCLUSION

       We affirm the trial court’s judgment.



                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice


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

Delivered and filed the
8th day of August, 2013.



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