Opinion issued March 26, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00576-CR ——————————— JUAN VILLANUEVA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas Trial Court Case No. 1732427
MEMORANDUM OPINION
Appellant Juan Villanueva pled guilty to the second-degree felony of sexual
assault of a child.1 A jury assessed his punishment at seventeen years’
confinement and a $10,000 fine.
1 See TEX. PENAL CODE § 22.011(a)(2), (f). In his sole issue on appeal, he argues the trial court denied him his right to
counsel by disallowing him to state during closing argument that, given his
conviction, he would have to register for life as a sex offender. Finding no
reversible error, we affirm.
Background
Villanueva and Mary2 engaged in a sexual relationship from May 2020
through June 2021. When they began the sexual relationship, Mary was fourteen
years old and Villanueva was twenty-seven years old.3 In July 2021, Mother came
home from work to find Villanueva in Mary’s bedroom. Mother called the police
and detained Villanueva until the police arrived. Villanueva was arrested and
indicted for sexual assault of a child. He pled guilty and elected to have the jury
assess punishment.
The Trial
A. The Witnesses
The State called three witnesses during the punishment phase of trial and
Villanueva called four witnesses. Villanueva testified on his own behalf.
2 Because she was a minor when the assaults occurred, we use pseudonyms to protect the identity of the complainant. We refer to the complainant as “Mary” and to her mother as “Mother.” 3 According to Mary, she met Villanueva when she was thirteen years old.
2 1. Mother
Mother testified that she and Villanueva were neighbors at the trailer park
where they lived. She became suspicious when she noticed that her daughter,
Mary, was having conversations with Villanueva. Because of Mother’s suspicions,
they moved, but Villanueva came to their new address to see Mary. Mother
testified that while she was at work, Villanueva took her three children and his
three children on outings without her permission. Mother tried to prevent
Villanueva from seeing Mary for “[a] little over two years.” Mother testified that
Villanueva sometimes took Mary out at night while Mother was sleeping.
According to Mother, she called the police, but nothing was done to stop
Villanueva’s visits. The police spoke to Villanueva, but he continued to see Mary.
Mother called the police “[m]any, many times. Almost once a day or at least once
a week,” but they did nothing until July 2021.
On July 20, 2021, Mother learned from her youngest daughter that
Villanueva was at her house. Mother testified, “I came home from work to my
residence and I blocked his exit. He was in [Mary’s] bedroom.” She called the
police and when they arrived about four hours later, Villanueva was still in the
bedroom. Mary was fifteen at the time.
During the two years that Mary was involved with Villanueva, Mother saw
“very drastic” changes in Mary. According to Mother, Mary “became very
3 aggressive and she wouldn’t allow me to counsel her in any way.” Mother testified
Mary has been in therapy since 2021, and “[s]ome of her fears went away.” But
she did not finish her therapy because “she got rebellious and she didn’t want to
take it anymore.” Mary was in therapy again at the time of trial. She was
diagnosed with depression, and she was prescribed medicine.
Mother testified that Villanueva’s assaults affected her family “[v]ery badly.
. . . It has affected us all.” There has been disobedience, aggression, and drug use
because of Villanueva’s relationship with Mary. Once Mary began to see
Villanueva, her attitude “changed completely.” Mother testified that Villanueva
gave drugs to Mary. At the time of trial, Mary had quit high school and Mother
did not know whether Mary would return to school.
2. Mary
Mary was seventeen when she testified. She testified she met Villanueva
through her brother when she was thirteen. Villanueva got her phone number and
they began to talk. Mary said Villanueva knew how old she was, and she knew he
was twenty-seven. They did not initially meet in person because Villanueva was
living with the mother of his children. Eventually their relationship evolved into
what she considered to be a boyfriend-girlfriend relationship. She testified that
Villanueva was her first boyfriend and that he told her she was his girlfriend, but
they did not go out on dates. Mary told her Mother about the relationship because
4 her Mother “pressed on it and I had to tell her.” According to Mary, she tried to
tell her Mother that Villanueva was just a friend, but Mother knew she was lying.
Mary testified that her relationship with Villanueva became physical while
she still lived in the trailer park. The first time she and Villanueva had sex was in
May 2020 in Villanueva’s trailer. He sent her a text that he needed help with his
daughter. Mary went to his trailer, but he was alone when she arrived. According
to Mary, Villanueva told her to take off her shirt and she said no, but he took it off
her anyway and they had sex. During their relationship, they had sex in various
places, mostly inside a car. There were several videos of them having sex.4
Villanueva told Mary “that it was gonna get ugly for him if [she] would say
something” about the relationship. Because of therapy, she changed her view on
the nature of their relationship. By the time Villanueva was arrested, they had
broken up.
Mary testified that she was going to re-enroll in high school and would be in
the eleventh grade. She withdrew the year before because she “had a lot of anxiety
and depression.” She attempted suicide three times since Villanueva’s arrest, most
recently three months before trial. She testified she is no longer interested in
therapy because “[n]one of those things is gonna help” her.
4 Villanueva confirmed in his testimony that there was at least one instance where a sexual encounter with Mary was recorded.
5 3. Deputy Investigator Albert Munoz
Deputy Investigator Munoz of the Harris County Sheriff’s Office
investigates child crimes. He was dispatched to Mary’s home on July 20, 2021.
When he arrived, Villanueva was in the back seat of a patrol car. Deputy
Investigator Munoz interviewed Mother, Mary, Villanueva, and Daisy, Mary’s
younger sister. Deputy Munoz recorded his interview with Villanueva. The jury
heard excerpts from the interview, including excerpts where Villanueva admitted
to having sex with Mary. According to Deputy Investigator Munoz, Villanueva
stated that he first had sex with Mary in May 2020, and that he last had sex with
her in June 2021.
4. Guadalupe Villanueva
Guadalupe is Villanueva’s older sister. She testified that Villanueva is a
“good father, attentive, a caretaker” to his three children.
5. Angela Villanueva
Angela is Villanueva’s younger sister, one of his five siblings. She testified
that Villanueva is a brick layer. She testified Villanueva is a father figure to all of
his siblings and that he is “always caring” for their mother. She has no
reservations about having Villanueva around her young children. She testified she
told Villanueva “[t]hat he should be careful with [Mary] because she was just
gonna hurt him.” She blames Mother in part for Villanueva’s legal problems.
6 6. Alma Garcia
Garcia is Villanueva’s ex-wife.5 She testified she was married to Villanueva
for more than ten years. They have three children, ages fourteen, thirteen, and
nine. She testified she was not present when Villanueva had sex with Mary.
Garcia testified Villanueva is “very patient” and “understanding” toward
their children and he is a good role model for their children. She testified she has
no concerns about Villanueva being around their young daughter.
7. Juan Villanueva
Villanueva testified that he and Mary had sex five to ten times between May
2020 and June 2021. He sometimes took her out to lunch or dinner. Although he
blames Mary “a little bit” for what happened, Villanueva testified that as an adult,
he takes the majority of the blame. He testified he was single when he met her.
He looked at his relationship with Mary as “exclusive.”
Villanueva and Mary met at the trailer park where they both lived.
According to Villanueva, Mary told him she was fourteen or fifteen years old, and
he was almost thirty years old.6 He did not initially feel a connection with Mary
but later—after possibly three months—he began to feel a connection and three
5 Garcia and Villanueva were common-law spouses. Garcia testified that they did not get a formal divorce. 6 Villanueva later conceded that Mary was thirteen when they met and first began to talk.
7 months after that, he developed feelings for her. He testified that their first sexual
experience occurred after Mary moved from the trailer park, about six months after
they met. Villanueva testified their relationship was more than just sex because he
“care[d] about her and I wanted to always be for her in anything and make sure she
does well.” He first told Mary to hold off on having sex with him until she was
eighteen. He knew it was illegal for them to have sex, but he was following his
emotions rather than his head. He was in love with her.
Villanueva testified that Mother never told him not to take her children on
outings and that she always knew where they were. According to Villanueva,
Mother had called the police about his relationship with Mary and he spoke with
the police months before he was arrested. After speaking with the police, he and
Mary continued to have sex. According to Villanueva, Mother knew he and Mary
were having sex7 and even after she called the police, Mother continued to allow
Villanueva to be around her children.
7 Villanueva’s testimony regarding Mother’s knowledge of the relationship was contradictory. He testified that sometimes he and Mary would have sex while Mother was home, but in his recorded statement to the police, he stated Mother did not know about the sex. He testified he told the police Mother did not know about the sex because he did not want to get Mother in trouble, given she had given her approval about the relationship the entire time. He also testified that Mother knew he and Mary were having sex and that while Mother originally approved, at some point she told him to stop.
8 Villanueva testified that on the day of his arrest, he and Mary were in her
bedroom with the door open when Mother came home and found him there.
Mother called the police.
When the police arrived, they asked Villanueva about his relationship with
Mary. Because he “wanted to end” the relationship, he admitted to having sex
with Mary. He testified he wanted to take responsibility for it. He wanted Mary to
understand he could not be around her because it was illegal. According to
Villanueva, he wanted Mary to understand “that I didn’t want to be boyfriend and
girlfriend no more. It was just because I seen that it was way too wrong and that—
but she would clearly wanted to keep going, keep going and keep going. And I’m
like no. You just wait until you’re 18 and then we’ll talk about it.” Villanueva
denied telling Mary not to tell anyone about their relationship. He testified he
believed the relationship was a positive experience for Mary.
B. The Jury Charge and Closing Argument
During the jury charge conference, Villanueva requested that the charge
include an instruction stating he is required to register as a sex offender. The State
objected, stating it was “adamantly opposed” to such an instruction because the
fact Villanueva has to register as a sex offender is “not a consideration for the
jury.” Shortly after, the following exchange took place:
Defense: . . . [Lifetime registration as a sex offender] is a consequence he’s gonna have to bear and so I
9 would suggest that the jury be informed of it. And I’d also—I’m requesting that I be allowed to mention that during my closing argument. It’s a collateral consequence of his conviction. Either probation or prison time.
...
State: Just in addition to it not being properly inside the charge, we would just ask that the court make, you know, any rulings in regards to any mention of [sex offender registration] as it’s not proper argument outside of punishment. I mean, in punishment at all.
Defense: I don’t understand how it can’t be proper since it’s a consequence of being convicted.
State: Regardless of what outcome of the punishment it is, and it’s not proper for any admonishment or any argument to the jury.
The Court: Okay. And usually those types of admonishments are for the benefit or the purposes of the person, so that they would understand what they are—what their responsibility [is] under the law. And I do believe that without any other guidance, it would be an improper inclusion into the jury charge. As you further—the State point to argument as well?
State: Yes, Your Honor.
The Court: So I’m going to withhold on the argument because there was a question, which was not objected to, about if anyone in your community or if you would object to anyone in your community having 10 certain sex offender—I’m not stating your question. But there was some question about how would you feel about someone in your community with the sex offender—a conviction or what have you.
Defense: And then I’m also asking for the—not so much in the jury charge, although I’d like that to be in the jury charge. I’m also asking for the flexibility to mention that during closing argument.
The Court: Right. I mean, which I was only speaking about closing argument. . . .
The trial court denied Villanueva’s request for a jury instruction on sex offender
registration.8
The following day, before closing argument began, Villanueva’s counsel
told the trial court he wanted to question Villanueva about the sex offender
registration and to refer to the registration requirement in closing argument:
Defense: First Matter. May I make inquiry of my client, since he’s going to be testifying? May I ask him about his understanding of the registration requirement.
The Court: Absolutely.
Defense: And second, is may I, in closing argument, mention it?
The Court: Mention that? 8 Villanueva does not complain on appeal about the omission of an instruction concerning his sex offender registration obligations from the jury charge.
11 Defense: That he has a lifetime registration requirement.
State: We object for the same reasons, Judge. It’s an improper jury argument, as well as it is not within the decision making of the jury. It is—it will be error for him to make any argument, as well as the relevancy as well, outside of it just being completely improper.
Defense: . . . [M]ay I mention his lifetime registration requirement during closing argument? Not asking the jury to consider that as a factor in punishment, just to mention that that is a consequence that he has to go through.
The Court: And the State says, says what?
State: It’s a factor in determining the severity of punishment and this, regardless of whether it’s community supervision or prison time, is not a factor. It’s for either one of those.
Defense: Judge, the State is making an argument that I wish I could make. The argument that I wish I could make, and I’m not asking for the Court’s permission to make this following argument, is that because he has to register for life, therefore he should receive probation or therefore he should receive a lower amount of prison time. And that’s not the statement I plan to make to the jury. The statement I plan to make to the jury is that he has to register for life as a reportable conviction. That’s the only statement I plan to make to the jury.
12 I’m not saying, well take this into consideration to give him less time, because I understand that would be improper. I’m not asking to do that. I’m just asking to say, has he been convicted. The answer’s yes. He pled guilty. That’s a reportable conviction. He has a lifetime sex offender registration requirement. Then I’ll go on with the rest of my argument to the jury. But that’s all I plan to say about lifetime sex offender registration.
The Court: I mean, ask the question then you all can place it. But I—if—I mean, I’m not really seeing a reason why to not allow that. I haven’t heard anything, but I’ll—let’s hear the question and then approach again.
Defense counsel was allowed to question Villanueva about his sex offender
registration obligations without objection from the State. Villanueva testified he
understood the jury could recommend probation or it could sentence him anywhere
from two to twenty years in prison with a fine of up to $10,000. Villanueva
acknowledged he understood that regardless of the punishment assessed, he had to
register as a sex offender for life:
Defense: Do you also understand that if the jury recommends probation or if the jury assesses prison time, that you have a lifetime sex offender registration requirement?
Villanueva: I clearly understand that.
There were no other questions or testimony about sex offender registration
requirements. 13 Near the end of defense counsel’s closing argument, the following occurred:
Defense: Now prison time versus probation. In either case, there’s one common factor. Lifetime sex offender registration.
State: I’ll object to improper argument, Your Honor.
The Court: And–
Defense: May I continue?
The Court: We’ll sustain and keep—continue.
The trial court did not instruct the jury to disregard defense counsel’s argument.
Defense counsel continued with the rest of his argument and concluded by asking
the jury to sentence Villanueva to ten years’ probation. The State requested that
the jury sentence Villanueva to prison time.
The jury assessed a sentence of seventeen years’ confinement in prison.
This appeal ensued.
Discussion
In one issue, Villanueva argues he was denied his right to counsel when the
trial court disallowed his counsel to state the “legal requirement that Villanueva
will be required to register for life as a sex offender.” He argues the trial court’s
decision to preclude his counsel from raising the issue during closing argument
was an abuse of discretion because his argument “was a correct statement of the
law.” Villanueva argues that despite the fact the jury assessed Villanueva less than
14 the maximum sentence allowed, harm is demonstrated because “there is a
reasonable probability the jury would have assessed an even lower sentence had it
been fully and fairly informed of [Villanueva’s] sex offender registration
requirements.”
A. Standard of Review
We review a trial court’s ruling on the State’s objections made during jury
arguments for abuse of discretion. Vasquez v. State, 484 S.W.3d 526, 531 (Tex.
App.—Houston [1st Dist.] 2016, no pet.) (citing 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.” Id. (citing Wilson v. State, 473 S.W.3d 889, 901–
02 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d)). “Counsel is entitled to
correctly argue the law, even if the law is not included in the jury charge.” Id.
(citing State v. Renteria, 977 S.W.2d 606, 608 (Tex. Crim. App. 1998)).9 Based on
precedent from the Court of Criminal Appeals, we have previously held it is a
denial of a defendant’s right to counsel if defense counsel is prohibited from
9 Villanueva contends a de novo standard of review also applies because “the objected to argument concerns whether a party misstated the law during the jury argument.” See Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (“We determine de novo whether a party misstated the law during jury argument.”). We disagree. The State did not identify the basis for its objection during closing argument and Villanueva does not point us to anything in the record where his sex offender registration requirement is referred to as a misstatement of the law.
15 making a jury argument he is entitled to make. Id. (citing Wilson, 473 S.W.3d at
901–02). Yet, neither party may utilize closing argument “as a vehicle to place
before the jury evidence that is outside the record.” Id.
B. Preservation of Error
The State contends Villanueva did not preserve error for his argument that
he was prohibited “from arguing the consequences of becoming a sex offender
[because] his argument was a correct statement of the law.” The State’s argument
is two-fold. It first argues that when the prosecutor objected to Villanueva’s
closing argument based on “improper argument,” Villanueva’s counsel merely
stated, “May I continue,” without further argument or support for its legal
contention. Thus, according to the State, Villanueva abandoned his argument or
failed to preserve it. Second, the State argues that even if Villanueva preserved
argument, it did so only for his argument on appeal that he should have been
allowed to state the fact he would have to register as a sex offender for life, but not
with respect to any argument he should have been allowed to discuss the
ramifications of becoming a sex offender. The State argues there is nothing “in the
record to indicate that trial counsel intended to argue anything of the sort.” Nor is
there an offer of proof reflecting what, if anything, Villanueva would have argued
“about the consequences of sex offender registration.”
16 Villanueva responds he adequately preserved error because the judge
“understood the purpose of discussing [the sex offender registration requirement]
in the punishment argument” based on defense counsel’s exchange with the court
during the charge conference and the following day before closing arguments. He
argues he was “prohibited from delivering” a closing statement that tracked the
language in Article 62 of the Texas Code of Criminal Procedure regarding sex
offender registration.
Texas Rule of Appellate Procedure 33.1 provides that a complaint is
preserved for appellate review if the record shows:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly . . . .
TEX. R. APP. P. 33.1(a). (Emphasis added.)
During his exchange with the trial court, Villanueva’s counsel told the trial
court judge that the “only statement [he] plan[ned] to make to the jury” during 17 closing argument was that Villanueva had “to register for life as a reportable
conviction.” Villanueva’s counsel stated:
The argument that I wish I could make, and I’m not asking for the Court’s permission to make this following argument, is that because he has to register for life, therefore he should receive probation or therefore he should receive a lower amount of prison time. And that’s not the statement I plan to make to the jury. The statement I plan to make to the jury is that he has to register for life as a reportable conviction. That’s the only statement I plan to make to the jury.
I’m not saying, well take this into consideration to give him less time, because I understand that would be improper. I’m not asking to do that. I’m just asking to say, has he been convicted. The answer’s yes. He pled guilty. That’s a reportable conviction. He has a lifetime sex offender registration requirement. Then I’ll go on with the rest of my argument to the jury. But that’s all I plan to say about lifetime sex offender registration.
(Emphasis added.) During closing argument, Villanueva’s counsel stated, “Now
prison time versus probation. In either case, there’s one common factor. Lifetime
sex offender registration.” The State objected based on “improper argument” and
the trial court sustained the objection. Thus, to the extent Villanueva argues on
appeal he was entitled to discuss the fact he was required to register as a sex
offender during his closing argument, we hold he preserved error. But with respect
to his argument that he was entitled to discuss the consequences flowing from such
registration, Villanueva never made that argument to the trial court. We thus hold
he did not preserve the issue for our review. As his counsel clarified to the trial
18 court, “the only statement [he] plan[ned] to make to the jury” was “that he has to
register for life.”
Villanueva does not point to any place in the record, and we have not found
any, where he made the trial court aware he intended to argue the ramifications of
his sex offender registration obligations. Nor did he make an offer of proof stating
what, if anything, he would have argued to the jury regarding any such
ramifications.10 “The issue of whether a trial court improperly denied a defendant
the right to make a closing argument in violation of the constitutional right to
counsel cannot be preserved for appellate review where the record does not fully
demonstrate to an appellate court what counsel would have argued but for an
objection.” Joiner v. State, No. 08-18-00118-CR, 2020 WL 4696625, at *16 (Tex.
App.—El Paso Aug. 13, 2020, pet. ref’d) (not designated for publication); see also
Price v. State, 870 S.W.2d 205, 209 (Tex. App.—Fort Worth 1994) (holding error
not preserved “[w]here the record does not fully demonstrate to the reviewing
10 Villanueva argues that the exchange between his defense counsel and the trial court concerning the jury charge informed the trial court of the degree to which he planned to discuss the sex offender registration requirement in closing argument. Defense counsel told the trial court that lifetime registration as a sex offender “is a consequence he’s gonna have to bear and so I would suggest that the jury be informed of it. And I’d also—I’m requesting that I be allowed to mention that during my closing argument.” We do not interpret defense counsel’s statement as advising the trial court that Villanueva sought anything other than to mention to the jury that Villanueva had to comply with the sex offender registration requirement. The specific details of the registration requirements were not discussed or contemplated by this exchange.
19 court what counsel would have argued but for an objection”), aff’d, 887 S.W.2d
949 (Tex. Crim. App. 1994); Frias v. State, No. 08-13-000325-CR, 2019 WL
101935, at *7 (Tex. App.—El Paso Jan. 4, 2019, pet. ref’d) (not designated for
publication) (“Where the record does not fully demonstrate to the court what
counsel would have argued but for an objection, and a party did not make an
objection to the trial court’s ruling, no demonstration of harmful error is made, and
the issue is not preserved for appellate review.”); Joiner, 2020 WL 4696625, at
*16 (“Although defense counsel . . . offered a thorough explanation of why he
believed that his argument was proper, counsel did not make a showing on the
record of what he would have argued but for the trial court’s ruling. For this
reason, this issue is not properly preserved for appellate review.”).
We thus hold that while Villanueva preserved his argument that the trial
court abused its discretion and denied him his right to counsel by disallowing him
to discuss the fact of his sex offender registration obligations during closing
argument, he did not preserve his argument on appeal concerning his right to
discuss the consequences or ramifications of his sex offender registration
requirements.
C. The Ruling
Villanueva argues the trial court abused its discretion and denied his right to
counsel by precluding him from stating during closing argument the “legal
20 requirement that Villanueva will be required to register for life as a sex offender,”
which Villanueva contends is a correct statement of the law. The State responds
that even assuming the trial court committed error, Villanueva was not harmed.
We start by deciding whether the trial court abused its discretion in
sustaining the State’s objection to Villanueva’s closing argument. Defense counsel
may not be precluded from making a closing argument he has a right to make.
McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989); see also Davis, 329
S.W.3d at 825 (“Although we have held that 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.”). Villanueva argues he was
entitled to tell the jury that in light of his conviction, he would have to register for
life as a sex offender because the statement is a correct statement of the law. He
cites to Chapter 62 of the Code of Criminal Procedure11 governing the registration
of sex offenders, and to our holding in Vasquez v. State, 484 S.W.3d 526 (Tex.
App.—Houston [1st Dist.] 2016, no pet.) for support.
In Vazquez, we held the trial court abused its discretion by not permitting
defense counsel to discuss the legal registration requirements for convicted sex
11 See TEX. CODE CRIM. PROC. art. 62.001(5)(A) (defining “reportable conviction or adjudication” to include conviction or adjudication for or based on sexual assault); 62.001(6)(A) (defining “sexually violent offense” to include “sexual assault”); 62.101(a)(1) (explaining that person with reportable conviction or adjudication for sexually violent offense has lifetime duty to register as sex offender).
21 offenders during closing arguments in the punishment phase.12 Id. at 531. The
defendant in Vasquez was convicted of sexual assault and sentenced to seventeen
years in prison. Id. at 528. Vasquez argued on appeal that the trial court abused its
discretion by preventing him during closing argument from “discussing the legal
registration requirements for convicted sex offenders[.]” Id.
During closing argument, Vasquez’s counsel attempted to describe the sex
offender registration requirements:
Defense: What does it mean to get convicted on a sexual assault case? What does it mean to [Vasquez] 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.
The 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—
The State: Objection, Your Honor, this is facts not in evidence.
The Court: Sustained.
12 We ultimately concluded, however, that the error was harmless. Vasquez v. State, 484 S.W.3d 526, 532 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“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.”)
22 Defense: Employers do not hire sex offenders.
The State: Objection, Your Honor, facts not in evidence.
Defense: Your Honor—
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 [the complainant’s] life will never be the same. I submit to you, ladies and gentlemen, neither will [Vasquez’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—
The State: Objection, Your Honor—
Defense: —the sentence you give him.
The State: —improper argument.
Id. at 530. Vasquez’s counsel concluded her closing argument “by asking the jury
to consider that Vasquez would have to register as a sex offender.” Id. The State
did not object to that comment. Id.
After closing argument, Vasquez’s counsel made an offer of proof regarding
her “intended closing argument:” 23 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.
Id. at 530–31. The State conceded the offer of proof was “legally accurate.” Id. at
531.
In concluding the trial court abused its discretion in disallowing Vazquez to
discuss the legal requirements for sex offender registration, we observed that
Vasquez’s status as a sex offender was “public record” and that “[a]s a correct and
relevant statement of the law, Vasquez’s argument should have been permitted.”
Id.13 We held that “[t]o the extent that Vasquez’s remarks in closing argument
discussed and applied the law applicable to convicted sex offenders, as his offer of
proof did, the trial court should have allowed them.” Id.
13 We held, however, that the trial court “properly excluded . . . counsel’s comments that sex offenders are less likely to be released on parole than other offenders because it was argument outside the record.” Vasquez, 484 S.W.3d at 531.
24 Like Vasquez, Villanueva tried to make a “correct and relevant statement of
the law” during his closing argument—that he would have to register as a sex
offender for life given his conviction. Id. Because defense counsel’s statement
was a correct statement of the law, we hold the trial court abused its discretion in
sustaining the State’s objection. See id; see also Lemos v. State, 130 S.W.3d 888,
892 (Tex. App.—El Paso 2004, no pet.). (holding trial court erred in preventing
defense counsel from arguing “legitimate inference” from evidence or lack thereof
of appellant’s blood-alcohol level at time of accident); cf. Renteria, 977 S.W.2d at
608 (“[T]here is no error in correctly arguing the law . . . .”).
We must now consider whether the error resulted in harm.
D. Harm
The parties differ as to which standard of harm applies. Villanueva argues
the constitutional standard contemplated by Texas Rule of Appellate Procedure
44.2(a) applies, while the State argues the non-constitutional standard identified in
Rule 44.2(b) is the correct standard.14 See TEX. R. APP. P. 44.2 (setting forth
14 The State’s position is premised on its argument that even if the trial court erred by sustaining its objection, Villanueva was not denied his right to counsel. The State challenges our holding in Vasquez v. State, and the holding of the El Paso Court of Appeals in Lemos v. State, that the “improper denial of jury argument that defense is entitled to make [denies the defendant of his] right to counsel.” See Vasquez v. State, 484 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (holding defendant was denied right to counsel when trial court disallowed jury argument regarding sex offender registration requirements, but finding error was harmless); Lemos v. State, 130 S.W.3d 888, 892 (Tex. App.—El Paso 2004, no pet.) (holding defendant was denied right to counsel when his counsel was 25 standards for constitutional and non-constitutional harm). We hold the stricter
constitutional error standard applies. See Vasquez, 484 S.W.3d at 532 (“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).”) (citations omitted); Wilson, 473
S.W.3d at 902 (“Denial of the right to counsel is an error of constitutional
magnitude.”) (citing U.S. CONST. amend. VI; TEX. CONST. art. I, § 10). Using that
standard, we must reverse “unless we determine beyond a reasonable doubt that the
error did not contribute” to Villanueva’s sentence. Lemos, 130 S.W.3d at 893.
The primary question is whether there is a “reasonable possibility” that the error
might have contributed to the conviction or punishment. See Wilson, 473 S.W.3d
at 902 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)); see
also TEX. R. APP. P. 44.2(a) (reversal is required “unless the court determines
beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.”).
In conducting our harmless error analysis, we do not focus on the propriety
of the outcome of trial, but instead “calculate as much as possible the probable
prevented from arguing defendant’s blood-alcohol level may have been rising, rather than falling, between time of collision and time of breath test). The State posits that Vazquez and Lemos “were incorrect about this proposition,” but it also acknowledges that the “relevant controlling authority from the Court of Criminal Appeals runs contrary, and [that] this Court is ultimately bound” by such controlling authority.
26 impact of the error on the jury in light of the existence of other evidence.”
Vasquez, 484 S.W.3d at 532 (quoting Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.
Crim. App. 2000)). We evaluate the record “in a neutral, impartial, and even-
handed manner, not in the light most favorable to the prosecution.” Id. (citing
Cantu v. State, 395 S.W.3d 202, 211 (Tex. App.—Houston [1st Dist.] 2012, pet.
ref’d)). 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.” Id. (citing Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim.
App. App. 2011)).15 “These factors are not exclusive, and other considerations
may inform our harm analysis.” Id. (citing Cantu, 395 S.W.3d at 211). In short, in
determining whether constitutional error is harmless, we “take into account any
and every circumstance apparent in the record that logically informs an appellate
determination whether beyond a reasonable doubt” the error “did not contribute to
the conviction or punishment.” Id. (internal quotation marks omitted).
Villanueva argues he was harmed because the trial court’s ruling prevented
the jury “from knowing and considering that the sex offender registration
requirements Villanueva was subject to would act as a further protection for the
community.” He contends he was not allowed to argue that “the legislature has
15 Not every factor applies to every constitutional harm analysis. Bailey v. State, No. 01-15-00215-CR, 2016 WL 921747, at *11 (Tex. App.—Houston [1st Dist.] Mar. 10, 2016, no pet.) (mem. op., not designated for publication) (citing Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011)).
27 laws that provide public safety” to counter the State’s argument that Villanueva
would be “dangerous” for the community. According to Villanueva, the jury was
left with “the false impression that the only way it could protect the community
was to sentence Villanueva to a lengthy prison term.” Villanueva argues there is
“reasonable doubt that had the jury been informed of the sex offender registration
requirements,” the jury would have assessed a lesser punishment.16
Villanueva’s harm analysis is premised in part on arguments he did not
preserve for appeal. Villanueva told the trial court that the “only statement [he]
plan[ned] to make to the jury” during closing argument was that he had “to register
for life as a reportable conviction.” As we have already held, Villanueva did not
preserve any issue concerning his ability to discuss the legal ramifications of his
sex offender registration obligations nor did he argue to the trial court or make any
offer of proof concerning any such consequences or concerns about public safety.
We thus limit our harm analysis to the trial court’s ruling on the State’s objection
to the statement Villanueva had to register for life as a sex offender.
16 Contrary to Villanueva’s contention, the State did not ask the jury to assess the maximum sentence. The State argued during closing arguments, “[T]his may be a maximum case in your mind. I will leave that up to you, I’m not gonna give you guys a number. But as far as the circumstances, of again multiple times, the age difference, this could very well a [sic] maximum case in your mind. I’ll leave that to you guys.” The State argued that the punishment be prison time rather than probation.
28 “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.”
Vasquez, 484 S.W.3d at 532–33.
The State argues Villanueva was not harmed by the trial court’s ruling on its
objection because the jury was not instructed to disregard his counsel’s statement
in closing argument that he would be required, regardless of the punishment
assessed, to register as a sex offender for life. It argues that absent an instruction
to disregard, “the jury was left to consider trial counsel’s argument.” We agree.
Villanueva’s counsel conveyed to the jury, both during his direct
examination of Villanueva and during closing argument, the substantive argument
that Villanueva would be subject to sex offender registration requirements,
regardless of any imposed sentence. The State did not object when defense
counsel asked Villanueva about his sex offender registration obligations, and even
though the trial court sustained the State’s objection to his defense counsel’s
closing argument, the trial court did not instruct the jury to disregard the statement.
The jury was thus left at liberty to consider the objected-to argument and
Villanueva’s unobjected testimony. See Wiltz v. State, 827 S.W.2d 372, 374 (Tex.
App.—Houston [1st Dist.] 1992) (holding trial court’s error in sustaining objection
to closing argument did not cause harm because “the trial court merely sustained
29 the State’s objection, and did not instruct the jury to disregard appellant’s counsel’s
argument”), rev’d on other grounds, 863 S.W.2d 463 (Tex. Crim. App. 1993);
Wilson, 473 S.W.3d at 902–03 (holding any error committed by trial court in
sustaining State’s objection during closing argument was harmless because
objection was made after argument and jury was not instructed to disregard); cf.
Thornton v. State, 425 S.W.3d 289, 305 n.82 (Tex. Crim. App. 2014) (observing
when appellant objected to leading question but did not ask trial court for
instruction to disregard response, “the jury would not have known to disregard the
testimony and would not have acted improperly in considering it as evidence
during its deliberation”).
The factors we discussed in Vasquez also point toward a finding of no harm.
See Vazquez, 484 S.W.3d at 532 (listing non-exclusive factors for constitutional
harm analysis). First, the nature of the error was the trial court’s ruling on the
State’s “improper argument” objection to defense counsel’s argument, but the non-
specific objection was made after defense counsel elicited testimony, without
objection, from Villanueva about the same matter, and after defense counsel had
already made the argument to the jury. Second, the error was not emphasized by
the State. See Whitehead v. State, 437 S.W.3d 547, 553 (Tex. App.–Texarkana
2014, pet. ref’d) (“Because the State did not emphasize the error or seek to benefit
from it, this factor weighs in favor of a finding that the error was not harmful.”).
30 Third, any collateral implications from the trial court’s ruling were negated by the
trial court’s failure to instruct the jury to disregard defense counsel’s argument,
leaving the jury at liberty to consider defense counsel’s comment and Villanueva’s
testimony. See Enos v. State, 909 S.W.2d 293, 296 (Tex. App.—Fort Worth 1995,
pet. dism’d) (noting collateral implication analysis “contemplates issues like the
. . . error’s impact on sentencing”). And last, given that Villanueva’s statement to
the jury during closing argument reflected the sum total of what he intended to
argue to the jury—as he made clear in his arguments to the court prior to his
argument—there is no reason to believe a jury would have assessed a lighter
sentence had the objection been overruled. The jury had already heard testimony
about Villanueva’s sex offender registration obligations and even then, still opted
to assess a seventeen-year prison sentence.
All four factors weigh in favor of a harmless error finding. See Vazquez,
484 S.W.3d at 532 (holding that because defense counsel conveyed to jury
substantive argument the defendant would be subject to sex offender registration,
defendant was not harmed by trial court’s ruling); Radilla-Esquivel v. State, No.
03-14-00544-CR, 2016 WL 4978565, at *14 (Tex. App.—Austin Sept. 16, 2016,
pet. ref’d) (mem. op., not designated for publication) (holding in constitutional
harm analysis that ruling sustaining State’s objection to jury argument was
31 harmless because trial court did not instruct jury to disregard argument after
objection and testimony was elicited regarding substance of same argument).
We overrule Villanueva’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy Justice
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
Do not publish. TEX. R. APP. P. 47.2(b).