                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00190-CR



        FERNANDO SOTELO RUIZ, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 276th District Court
               Morris County, Texas
             Trial Court No. 11494-CR




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                           MEMORANDUM OPINION
           Fernando Sotelo Ruiz was convicted of sexual assault of a child, 1 sentenced to twenty

years’ imprisonment, and ordered to pay a $10,000.00 fine.

           On appeal, Ruiz claims that the trial court erred when it precluded him from discussing,

during his closing argument, a DNA report generated by a forensic analyst that was not admitted

into evidence during trial. Because the trial court did not abuse its discretion in sustaining the

State’s objection to Ruiz’s argument about the DNA report, we overrule Ruiz’s point of error and

affirm the trial court’s judgment.

I.         Factual and Procedural Background

           Ruiz was indicted and arrested for sexual assault of a child stemming from an incident that

allegedly occurred in February 2015 in Hughes Springs. Ruiz pled not guilty to the charges, and

the case proceeded to trial in September 2019.

           At trial, the State presented testimony from Chelsy Wingate, a forensic scientist for the

Texas Department of Public Safety Crime Laboratory. Wingate testified that a DNA sample

obtained during the investigation contained a mixture of DNA from Ruiz and the child-

complainant. 2 Ruiz did not object to this testimony. Even so, when the State later offered

Wingate’s report as evidence, Ruiz objected that “the orderly chain of custody” of the DNA

evidence that Wingate examined had not been shown. The State withdrew its proffer of the report.




1
    See TEX. PENAL CODE ANN. § 22.011 (Supp.).
2
 Wingate testified that the sample was a “mixture profile” that was “573 quadrillion times more likely . . . [to have
come] from the victim and the suspect[, Ruiz,] than if the DNA came from the victim and one unrelated unknown
individual.” Ruiz could not “be excluded as a possible contributor to the profile.”
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       During his closing argument, Ruiz discussed Wingate’s testimony and report as follows:

       Now it comes to the DNA. She came, she testified that she tested the DNA and
       what her report was. This is the key part of the thing. This is what they gave me,
       my copy of it, what they were offering into evidence. I objected because it . . . .
       reflects different things, they collected different things.

The State objected on the ground that Ruiz was arguing about evidence not submitted to the jury.

In response, Ruiz told the trial court he wanted to argue that “they wouldn’t let the report in because

there was a problem with the chain of custody.” The trial court sustained the State’s objection.

Ruiz neither objected nor made an offer of proof and continued with his closing argument.

II.    The Trial Court Did Not Err by Restricting Ruiz’s Closing Argument

       On appeal, Ruiz argues that the trial court erred by restricting his closing argument, thereby

abridging his right to effective counsel. We disagree.

       A.      Standard of Review

       A trial court’s ruling on the State’s objection to a defendant’s jury argument is reviewed

for an abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004).

“[P]roper jury argument generally falls within one of four general areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing

counsel; and (4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.

App. 2008).

       B.      Analysis

       Ruiz is correct that a trial court’s limitation of an accused’s closing argument “may

constitute a denial of the right to counsel.” McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App.


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1989). 3 “Although . . . [the] improper denial of a jury argument may constitute a denial of the

right to counsel, this holding assumes that the jury argument is one the defendant is entitled to

make.” Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010) (citing McGee, 774 S.W.2d

at 239 (Tex. Crim. App. 1989)). That said, the trial court does not abuse its discretion in sustaining

an objection to an argument that is not supported by the evidence. See Wesbrook v. State, 29

S.W.3d 103, 115 (Tex. Crim. App. 2000). “Attorneys for both [sides] . . . must confine their

arguments to the record.” Johnson v. State, 698 S.W.2d 154, 166 (Tex. Crim. App. 1985),

superseded on other grounds by Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991).

“[R]eference to facts that are neither in evidence nor inferable from the evidence is improper.” Id.

“The purpose of closing argument is to facilitate the jury in properly analyzing the evidence

presented at trial so that it may ‘arrive at a just and reasonable conclusion based on the evidence

alone, and not on any fact not admitted in evidence.’” Campbell v. State, 610 S.W.2d 754, 756

(Tex. Crim. App. [Panel Op.] 1980) (quoting Stearn v. State, 487 S.W.2d 734, 736 (Tex. Crim.

App. 1972) (quoting Pena v. State, 129 S.W.2d 667, 669 (Tex. Crim. App. 1939))).

         Ruiz relies on Arnold v. State, 68 S.W.3d 93 (Tex. App.—Dallas 2001, pet. ref’d), as

authority for the contention that limiting closing argument can amount to a Sixth Amendment

violation. There, Arnold was accused of tampering with a witness for allegedly assisting one of

his employees in evading a subpoena to testify at another individual’s criminal trial. Id. at 95–96.

“[Arnold] paid [his employee]’s travel and living expenses to leave Dallas and instructed her not


3
  McGee complained of the trial court precluding his arguments (1) that “[t]here is very little reliability in a
circumstantial evidence case,” (2) that “courts have required this higher burden of the State” in circumstantial evidence
cases, and (3) that the State “must prove to [the jury] to a moral certainty that [its] case is true and correct, if [it]
want[s] to put [the defendant] to death.” McGee, 774 S.W.2d at 237–38.
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to inform anyone of her location. When the [other person’s trial] was over, [Arnold] called [his

employee] and wired her money to return to Dallas.” Id. at 96. During closing arguments, the

trial court “prevented [Arnold] from arguing to the jury that the State failed to prove, as an element

of its case, that a subpoena had been issued at the time [Arnold] coerced or paid [his employee] to

leave Dallas.” Id. at 102. The Dallas Court of Appeals found that “the existence of legal process

was not an element of the case the State was required to prove,” and hence, “the trial court’s

limitation of [Arnold]’s closing argument did not deny [Arnold] effective assistance of counsel.”

Id.

        Here, Ruiz attempted to argue about a DNA report that was not in evidence. Moreover,

the DNA report was not in evidence because Ruiz successfully objected to its admission. Although

Ruiz claimed that he was trying to talk about “part of the trial” at the time the State objected, the

argument he was trying to make was not a summation of the evidence. Nor was it a reasonable

deduction from the evidence or an answer to argument of opposing counsel. Thus, the trial court

did not abuse its discretion in sustaining the State’s objection to Ruiz’s argument about the DNA

report. See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010).

        Because Ruiz was not entitled to his desired argument, the trial court’s limitation did not

rise to the denial of counsel. See id.; McGee, 774 S.W.2d at 239. We, therefore, overrule Ruiz’s

point of error.




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III.   Conclusion

       We affirm the trial court’s judgment.




                                               Scott E. Stevens
                                               Justice

Date Submitted:       March 20, 2020
Date Decided:         April 9, 2020

Do Not Publish




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