Opinion issued January 14, 2016




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-15-00183-CR
                           ———————————
                         ROY VASQUEZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Case No. 1437421


                                 OPINION

      A jury found Roy Vasquez guilty of sexual assault and assessed his

punishment at 17 years’ confinement and a $10,000 fine. TEX. PENAL CODE ANN.

§ 22.011 (West 2011).     On appeal, he contends that the trial court erred in

prohibiting him from discussing the legal registration requirements for convicted
sex offenders in his closing argument in the punishment phase.                Finding no

reversible error, we affirm.1

                                       Background

        According to the complainant, early on a December morning in her home in

Houston, she awoke to find a stranger entering her bedroom. The stranger, later

identified as Vasquez, asked her for money. He took the complainant’s cell phone

from her nightstand. According to the complainant, he then grabbed her by the

hair, put a knife to her neck, and asked her to take her clothes off. Vasquez ripped

the complainant’s shirt off, pulled her pants down, and sexually assaulted her. The

complainant then covered herself with a blanket while Vasquez rifled through her

drawers looking for more valuables. While Vasquez searched, the house phone

rang.     The complainant answered, finding her boyfriend on the line.                The

complainant told her boyfriend that she couldn’t talk at the moment and that she’d

call him back. Shortly thereafter, the complainant’s boyfriend called again, asking

if something was wrong. Vasquez ordered the complainant not to cry and to speak

normally. The complainant reiterated that she couldn’t talk, and hung up again.




1
    We publish this opinion because there is a lack of published authority on the harm
       analysis issue presented here. See, e.g., Requeno-Portillo v. State, No. 01-10-
       00242-CR, 2011 WL 3820747, at *5 (Tex. App.—Houston [1st Dist.] Aug. 25,
       2011, pet. ref’d) (mem. op., not designated for publication); Rivas v. State, 02-08-
       00410-CR, 2011 WL 856930, at *3–4 (Tex. App.—Fort Worth Mar. 9, 2011, pet.
       ref’d) (mem. op., not designated for publication).

                                             2
Before leaving, Vasquez asked the complainant to take a shower, which she

refused to do.

      When she was sure that Vasquez was gone, the complainant ran out of the

house towards a nearby school, flagging down a passing car. The driver of the car

let the complainant use her phone to call 911. The complainant returned to her

house with the driver to await the police and EMS. When they arrived, the police

found that a kitchen window had been smashed from the outside and that the back

door had been forced open. EMS took the complainant to the hospital, where she

was evaluated. The examiner found superficial cuts to the complainant’s genitals

and abrasions consistent with her allegations that Vasquez had held a knife to her

neck. Shortly thereafter, the complainant visited the Houston Police Department,

where a forensic artist interviewed her and sketched her attacker.

      Without a suspect, however, the trail went cold until Vasquez’s DNA profile

appeared in the national DNA database and was found to match the assailant’s.

When Vasquez was subsequently arrested for an unrelated crime, he consented to

giving another DNA sample, which confirmed that his DNA was found on the

complainant after the assault. The complainant also identified Vasquez as the

assailant in a photo lineup.

      Vasquez gave a different account of the incident. Along with his sister,

Vasquez’s friend testified that Vasquez knew the complainant before the incident



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and that Vasquez and the complainant were dating. In his own trial testimony,

Vasquez confirmed that he had been dating the complainant.            Per Vasquez’s

account, the complainant called him early on the morning of the incident. He went

to the complainant’s house, where they had consensual sex. Shortly after they

finished, Vasquez and the complainant heard someone knocking at the door, whom

the complainant said was her boyfriend. Vasquez fled the complainant’s house.

      In rebuttal, the State called the complainant’s then-boyfriend. He denied

that he was at the complainant’s house at the time of the incident.

      The jury returned a guilty verdict as to sexual assault but acquitted the

defendant of aggravated sexual assault. See Thomas v. State, 444 S.W.3d 4, 8

(Tex. Crim. App. 2014) (“With respect to testimony of witnesses, the jury is the

sole judge of the credibility and weight to be attached thereto, and when the record

supports conflicting inferences, we presume that the jury resolved the conflicts in

favor of the verdict, and we defer to that determination.”). In the punishment

phase, Vasquez stipulated to his criminal history, which included one felony

conviction for auto theft and several misdemeanor convictions, including two for

assault on a family member and two for trespass of a habitation. He called his

mother and a friend to testify as character witnesses. Vasquez did not present

evidence concerning the implications of having to register as a sex offender.




                                          4
      During closing argument of the punishment phase, Vasquez’s counsel began

to describe the registration requirements that Vasquez would be subject to as a

convicted sex offender. The State objected, arguing that Vasquez was introducing

facts not in evidence. The disputed portion of Vasquez’s closing argument is as

follows:

            DEFENSE: What does it mean to get convicted on a
            sexual assault case? What does it mean to Roy even
            before you assess punishment in this case? It means a
            lifetime of registration as a sexual offender, basically
            until the day he dies. Every time he moves houses, he
            will be required to register – pre-register seven days
            before.

            STATE: Objection, Your Honor. This is all facts not in
            evidence.

            THE COURT:        Sustained.   Please stay within the
            evidence.

            DEFENSE: Sexual registration will also require –

            STATE: Objection, Your Honor, this is facts not in
            evidence.

            THE COURT: Sustained.

            DEFENSE: Employers do not hire sex offenders.

            STATE: Objection, Your Honor, facts not in evidence.

            DEFENSE: Your Honor –


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THE COURT: Overruled. I’ll allow it.

DEFENSE: Thank you, sir.

DEFENSE: He will not be employable. He will have to
find another way of making a living once he gets out of
jail.
      The prosecutors will argue that Natalie’s life will
never be the same. I submit to you, ladies and
gentlemen, neither will Roy’s. He will be labeled like a
sex offender and be treated as one as long as he lives.
Sex offenses are considered extremely serious offenses
by the parole board. In my experience, he will pretty
much have to serve out –

STATE: Objection, Your Honor –

DEFENSE: – the sentence you give him.

STATE: – improper argument.

THE COURT: Sustained.
      [Defense counsel], please stay within what the
evidence showed during the guilt/innocence and
punishment phase of the trial and any reasonable
inferences from those.

DEFENSE: It’s closing argument, Your Honor.

THE COURT: Yes, ma’am, it is closing argument. But
you can’t tell people things that are your personal opinion
or what is in your experience that has not been shown by
the evidence presented in this courtroom or that are



                            6
            reasonable inferences from those. Those are the rules. I
            didn’t make them, but I’m going to enforce them.

The State did not request an instruction to disregard the excluded remarks.

Vasquez’s counsel concluded her closing argument by asking the jury to consider

that Vasquez would have to register as a sex offender. The State did not object to

this remark. After closing arguments, Vasquez’s counsel made an offer of proof

regarding her intended closing argument:

            DEFENSE: Being a sex offender essentially means
            lifetime registration, basically until the day he dies.
            Every time he moves residences, he would be required to
            register. Before he moves – seven days before he moves
            and seven days after the move. If he were to go
            somewhere for two days in three months, he has to report
            to the authorities of that city and county as well. And
            failure to comply with the registration requirements is
            another felony. And depending on the circumstances of
            that particular case, the range of punishment can be
            anywhere between 180 days to 20 years in prison for
            each violation.

                   Once he registers, the police will automatically be
            provided with his sex offender status upon request when
            they run a check on his driver’s license or his license
            plate.

                   Additionally, the Texas Attorney General’s Office
            authorizes local governments to broadcast information
            about registration of sex offenders to local cable
            television because it’s public information. His name will
            also be on the Internet as a registered sex offender.


                                           7
                                       Discussion

         Vasquez contends that the trial court’s limitation of his counsel’s closing

argument during the punishment phase effectively denied him counsel. The State

concedes that Vasquez’s comments correctly stated the law, but argues that they

exceeded the scope of appropriate jury argument.

         We review the trial court’s ruling on the State’s objection to a defendant’s

jury argument for abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825

(Tex. Crim. App. 2010). The 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. Wilson v. State, No. 01-13-00917-CR, 2015 WL

5042107, at *10 (Tex. App.—Houston [1st Dist.] Aug. 25, 2015, pet. filed). A

defendant has the right to argue any theory supported by the evidence, and may

make all inferences from the evidence that are legal, fair, and legitimate. Id.;

Melendez v. State, 4 S.W.3d 437, 442 (Tex. App.—Houston [1st Dist.] 1999, no

pet.).

         Counsel is entitled to correctly argue the law, even if the law is not included

in the jury charge. State v. Renteria, 977 S.W.2d 606, 608 (Tex. Crim. App. 1998).

Prohibiting defense counsel from making a particular jury argument when counsel

is entitled to do so is a denial of the defendant’s right to counsel. Wilson, 2015 WL

5042107, at *10. However, neither the State nor the defense may use closing



                                            8
argument as a vehicle to place before the jury evidence that is outside the record.

See Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990).

      The State concedes, and our review confirms, that Vasquez’s offer of proof

was “legally accurate.” Vasquez was convicted of sexual assault. See TEX. PENAL

CODE ANN. § 22.011. As such, he is subject to registration as a sex offender. See

TEX. CODE CRIM. PROC. ANN. art. 62.001(6)(A) (West 2006 & Supp. 2015).

Vasquez must reregister and notify law enforcement whenever he moves. Id. arts.

62.051(a), -055(a). He may be sentenced to up to 20 years in prison for failure to

comply with the registration requirements. Id. art. 62.102(b); TEX. PENAL CODE

ANN. § 12.33 (West 2011). His status as a sex offender is public record, and may

be publicized through various channels. TEX. CODE CRIM. PROC. ANN. art. 62.005.

As a correct and relevant statement of the law, Vasquez’s argument should have

been permitted.

      The State contends, however, that the trial judge properly excluded

Vasquez’s argument because it would have introduced facts not present in the

record. It observes correctly that no evidence concerning sex offender registration

requirements was presented at trial. Vasquez’s offer of proof, however, is a

recitation of the consequences mandated by statute for his conviction. It contains

no new facts, nor does it rely on any facts not present in the record. To the extent

that Vasquez’s remarks in closing argument discussed and applied the law



                                         9
applicable to convicted sex offenders, as his offer of proof did, the trial court

should have allowed them.       Renteria, 977 S.W.2d at 608; Wilson, 2015 WL

5042107, at *10.

      The trial court properly excluded, however, counsel’s comments that sex

offenders are less likely to be released on parole than other offenders because it

was argument outside the record. Borjan, 787 S.W.2d at 57; Wilson, 2015 WL

5042107, at *10. Trial courts possess broad discretion to control the scope of

closing argument. Wilson, 2015 WL 5042107, at *10. This includes the authority

to exclude argument based on theories not supported by the evidence. Cf. id.;

Melendez, 4 S.W.3d at 442 (noting that the defense has the right to argue any

theory supported by the evidence or reasonable inferences from it). Thus, parties

may argue law not present in the jury charge to the extent that it is implicated by

the facts in evidence, and no further.

      Harm Analysis

      Because a trial court’s improper denial of a jury argument counsel is

permitted to make is a denial of the right to counsel, it is constitutional error,

subject to harm analysis under Rule of Appellate Procedure 44.2(a). TEX. R. APP.

P. 44.2(a); Wilson, 2015 WL 5042107, at *10; Lemos v. State, 130 S.W.3d 888,

892 (Tex. App.—El Paso 2004, no pet.). Under Rule 44.2(a), an appellate court

“must reverse a judgment of conviction or punishment unless the court determines



                                         10
beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.” TEX. R. APP. P. 44.2(a); Wilson, 2015 WL 5042107, at *10. In

applying the harmless error test, the primary question is whether there is a

“reasonable possibility” that the error might have contributed to the conviction or

punishment. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998);

Wilson, 2015 WL 5042107, at *10; see Johnson v. State, 660 S.W.2d 536, 538

(Tex. Crim. App. 1983) (noting that under predecessor to current constitutional

harmless error analysis, primary question was whether there is a reasonable

possibility that the error might have “contributed to the conviction or affected the

punishment assessed”).

      In conducting our harmless error analysis, we do not focus on the propriety

of the outcome of the trial, but instead “calculate as much as possible the probable

impact of the error on the jury in light of the existence of other evidence.”

Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). We must evaluate

the record in a neutral, impartial, and even-handed manner, not in the light most

favorable to the prosecution. Cantu v. State, 395 S.W.3d 202, 211 (Tex. Crim.

App. 2012). We consider the nature of the error, the extent to which it was

emphasized by the State, its collateral implications, and the weight a jury would

likely assign it. Cantu, 395 S.W.3d at 211; Snowden v. State, 353 S.W.3d 815, 822

(Tex. Crim. App. 2011). These factors are not exclusive, and other considerations



                                        11
may inform our harm analysis. Cantu, 395 S.W.3d at 211. “At bottom, an analysis

for whether a particular constitutional error is harmless should take into account

any and every circumstance apparent in the record that logically informs an

appellate determination whether ‘beyond a reasonable doubt [that particular] error

did not contribute to the conviction or punishment.’” Snowden, 353 S.W.3d at 822

(alteration in original) (quoting TEX. R. APP. P. 44.2(a)).

      Because Vasquez’s counsel conveyed to the jury the substantive argument

that Vasquez would be subject to sex offender registration requirements, we

conclude beyond a reasonable doubt that he was not harmed by the trial court’s

rulings. Vasquez’s counsel impressed on the jury that Vasquez would have to

register; that this was a punishment of serious gravity; and that sex offender

registration would make it difficult for Vasquez to find employment. Vasquez’s

counsel ended his closing argument by entreating the jury to consider the

registration requirements, and the State raised no objection. In evaluating whether

a defendant was harmed by the trial court’s exclusion of the defendant’s argument,

an appellate court may consider the extent to which the defendant communicated

his argument despite the trial court’s rulings. E.g., Wilson, 2015 WL 5042107, at

*10–11; Requeno-Portillo v. State, No. 01-10-00242-CR, 2011 WL 3820747, at *5

(Tex. App.—Houston [1st Dist.] Aug. 25, 2011, pet. ref’d) (mem. op., not

designated for publication); Rivas v. State, 02-08-00410-CR, 2011 WL 856930, at



                                          12
*3–4 (Tex. App.—Fort Worth Mar. 9, 2011, pet. ref’d) (mem. op., not designated

for publication). Vasquez conveyed the gravamen of his argument to the jury.

Thus, we hold that the trial court’s error in limiting discussion of the legal

consequences of sex offender registration was harmless. See Wilson, 2015 WL

5042107, at *10–11; Requeno-Portillo, 2011 WL 3820747, at *5; Rivas, 2011 WL

856930, at *3–4.

                                    Conclusion

      Finding no reversible error, we affirm the judgment of the trial court.




                                              Jane Bland
                                              Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Publish. TEX. R. APP. P. 47.2(b).




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