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.
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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
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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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