## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 17

- 00298

- CR

___________________________

On Appeal from the 16th District Court Denton County, Texas Trial Court No. F17

- 1973

- 16

Before Suddert h, C.J.; Meier and Gab riel, JJ. Memorandum Opinion by Chief Justice Sudderth 

### A ARON 

### A MBERSON 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. Introduction In four issues, Appellant Aaron Amberson appeals his conviction for criminal mischief for which he was sentenced to ten years’ confinement aft er pleading true to
the habitual

- offender enhancement allegations

. See Tex. Penal Co de Ann. § 28.03 (West Supp. 2018 ). We affirm. II. Background 1
A 9

- 1

- 1 caller reported that someone driving an older model gray Ford Expedition had attached a chain to t hat vehicle and had pull ed a coin

- dispensing
machine out of the wall of a car was h near Main Street in The Colony

. After spotting a vehicle matching that description parked at a Taco Bell not far from the car wash , p olice entered the restaurant and arrest ed Amberson

. They later discovered the coin
machine and chain inside Amberson’s Expedition

. Evidence admitted at trial showed
that the owner of the car wash , Paul Hamilton, had received over $12,000 in insurance proceeds to cover the required repairs , wh ich totaled over $8,000

.

1 Because Amberson challenge s only the amount of pecuniary loss

— not t he sufficiency of the evidence to support the remaining elements of his conviction for cri minal mischief

— we omit a detailed factual background and set forth the pertinent facts under each issue.3 III. Lesser

- Included

- Offense Instruction In his first issue, Amberson argues that the trial court erred by denying his request for a jury instruction on the lesser

- included offense of Class A misdemeanor
criminal mischief.
A. Standard of Review and Applicable Law In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). We use a two

- step analysis to deter mine whether an appellant was
entitled to a lesser

- included offense instruction. Hall v. State , 225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau v. State , 855 S.W.2d 666, 672

– 73 (Tex. Crim. App.),
cert. denied , 510 U.S. 919 (1993). First, the lesser offense must come within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). An offense is a lesser

- included offense of another offense, under articl e 37.09(1), if the indictment for the greater

- inclusive
offense either (1) alleges all of the elements of the lesser

- included offense or (2) alleges elements plus facts (including descriptive averments, such as nonstatutory manner and means, that are alleg ed for purposes of providing notice) from which all
of the elements of the lesser

- included offense may be deduced. Ex parte Watson , 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g). Second, some evidence must exist in the record that would perm it a jury to4

rationally find that if the appellant is guilty, he is guilty only of the lesser offense.
Hall , 225 S.W.3d at 536; Salinas v. State , 163 S.W.3d 734, 741 (Tex. Crim. App. 2005);
Rousseau , 855 S.W.2d at 672

– 73. The evidence must be evaluated i n the context of the
entire record. Moore , 969 S.W.2d at 8. There must be some evidence from which a rational jury could acquit the appellant of the greater offense while convicting him of
the lesser

- included offense. Id. The court may not consider whe ther the evidence is credible, controverted, or in conflict with other evidence. Id. Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Hall , 225 S.W.3d at 536. A person commits the offense of crimina l mischief if, without the effective consent of the owner, he intentionally or knowingly damages or destroys the tangible property of the owner. Tex. Penal Code Ann. § 28.03(a)(1). If the property is damaged (as opposed to destroyed) 2 the amount of pecun iary loss is determined by “the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred. ” Holz v. State , 320 S.W.3d 344, 345 (Tex. Crim. App. 2010) (quoting Texas Penal Code section 28.06(b) and setting forth how to calculate amount of pecuniary loss if property is damaged)

. The property owner’s testimony regarding the payment from his insurance provider is sufficient to prove the cost of

2 Although the jury charge allowed the jury to convict Amberson if it fou nd that he “intentionally and knowingly damage[d] or destroy[ed] tangible prope rty ,” we proceed solely under the theory of criminal mischief by damage.5

repairs and, thereby , pecuniary loss. Campbell v. State , 426 S.W.3d 78 0, 785 (Tex. Crim. App. 2014).
T he amount of pecuniary loss suffered by the owner determines the degree of
the offense. See Tex. Penal Code Ann. § 28.03(b); Holz , 320 S.W.3d at 345. The
offense is a Class

- A misdemeanor if t he amount of pecuniary loss is $750 or more but less than $2,500 . Tex. Penal Code Ann. § 28.03(b) (3)(A). The offense is a state

- jail felony if t h e amount of pecuniary loss is $2, 50 0 or more but less than $30 , 0 00

. Id. § 28.03(b)(4)(A).
B . Analysis
The State concedes , and we agree, that misdemeanor criminal mischief was a lesser

- included offense of felony criminal mischief as alleged in the indictment

. Se e id. § 28.03(b)(3), (4); Holz

, 320 S.W.3d at 345, 347. Therefore, we focus our analysis on
whether a rat ional jury could have fo und Amberson guilty only of misdemeanor
criminal mischief

. Because the difference between misdemeanor criminal mischief and felony
criminal mischief is solely the amount of pecuniary loss, we examine the record to see if there is any evidence to show tha t the pecuniary loss from the damage to the car
wash from the forcible removal of the coin machine was $750 or more but less than $2,500

. The record here contains no evidence from which a rational trier of fact could have concluded that the pecuniary loss , if any, could only have been in an
amount of less than $2,500.6

Hamilton testified without objection that he received a check from his
insurance provider for “a little over $12,000 ” and was told to take care of the repairs
himself. Amberson did not con trovert Hamilton’s testimony , but he argues that “there was only documentation of payment [i.e., cancelled checks] for a tot al of $2,096.06 in this case.” While acknowledging that caselaw holds that the property owner’s testimony is sufficient to prove pe cuniary loss, see Campbell , 426 S.W.3d at 785 ( holding that property owner’s unobjected

- to testimony regarding insurance payment

was sufficient to prove cost of repairs ) , Amberson argues “that just means that Hamilton’s testimony could provide the bare min imum level of proof required to prove that particular element” and that a juror may lawfully require more than the legal threshold of sufficient evidence to find gu ilt beyond a reasonable doubt. We agree that a reasonable juror could have required this. However, that is not the standard that we must apply. It “is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the
lesser

- included offense for the finde r of fact to consider before an instruction on a
lesser

- included offense is warranted.” Sweed v. State , 351 S.W.3d 63, 68 (Tex. Crim. App. 2011) (quoting Skinner v. State , 956 S.W.2d 532, 543 (Tex. Crim. App. 1997) , cert. denied , 523 U.S. 1079 (1998) ). “ Meeting this threshold requires more than mere speculation

—

it requires affirmative evidence that both raises the lesser

- included offense and rebuts or negates an element of the greater offense.” Cavazos v. State , 3827

S.W.3d 377, 385 (Tex. Crim. App. 2012)

. The fact that the jury might have disbelieved that the cost of repairs was $12,000 ( as Hamilton testified he received in insurance proceeds) , that the jury might have disbelieved that the cost of repairs was more than $7,500 ( as shown by the invoices ) , or that the jury might have believed that the cost of repairs was less than $2,500 ( as evidenced through cancelled checks) is not affirmative evidence that the total cost of repairs was limited to only the sum of the
cancelled checks

. Cf. C

o alwell v. Stat

e , No. 04

- 16

- 00358

- CR, 2017 WL 4014707, at *5 (Tex. App.

— San Antonio Sept. 13, 2017, no pet.) (mem. op., not designated for publication) (concluding that facts in stalking case did not raise lesser

- included offense of harassment because although the jury m ight have believed that only a single
inciden t of harassment occurred, that wa s not affirmative evidence that the harassing
emails were sent not on multiple dates, but on only one date).
B ecause there is no affirmative evidence allowing a rational factfind er to find
that if Amberson was guilty, he was guilty only of criminal mischief of $750 or more but less than $2,500 , the trial court did not err by refusing to give an instruction on
the lesser

- included offense of Cl ass

- A misdemeanor criminal mischief

. S ee Rousseau , 855 S.W.2d at 675 (holding that appellant was not entitled to a charge on the lesser

included offense because there was no evidence that if appellant was guilty, he was guilty only of the lesser

- included offense); cf. Benefield v. State , 38 9 S .W.3d 564, 574

– 77 (Tex. App.

— Hous ton [14th Dist.] 2012, pet. ref’ d) (holding that no evidence in the record permitted a jury to rationally find that if appellant was guilty, she was guilty8

only of the lesser

- included offense of misdemeanor misapplication o f fiduciary property valued at less than $1,500) . We therefore overrule Amberson’s first issue.
I V
. Evidentiary Challenges In his second issue, Amberson argues that the trial court reversibly erred by admitting State’s Exhibits 21, 22, 23, 24, 25, 26, a nd 27

— copies of documents showing amounts spent on repairs to the car wash

— over his hearsay objections. In his third issue, Amberson argues that the trial court reversibly erred by admitting State’s Exhibits 28, 29, and 30

— copies of cancelled checks fo r r epairs to the car
wash

— ove r his best

- evidence objection.
A. Standard of Review We review a trial court’s evidentiary rulings under an abuse

- of

- discretion
standard. See Jenkins v. State , 493 S.W.3d 583, 607 (Tex. Crim. App. 2016). A trial judge’s decisi on is an abuse of discretion only when it falls outside the zone of reasonable disagreement. Winegarner v. State , 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the cas e. Gonzalez v. State , 195 S.W.3d 114, 126 (Tex. Crim. App.), cert. denied , 549 U.S. 1024 (2006). B. Applicable Law Hearsay is an out

- of

- court statement that a party offers to prove the truth of
the matter asserted within the statement. Tex. R. Evid. 80 1(d). Hearsay is generally9

inadmissible unless it falls within one of the enumerated exceptions. See generally Tex.
R. Evid. 802

– 804 (defining inadmissible hearsay and its exceptions)

. Under the exception found in Texas Rule of Evidence 803(6), r ecords of regularly

- conducted activity, more commonly known as business records, may be admitted if the records were made at or near the time of the event, they were recorded by someone with knowledge, and it was common practice to keep such a re cord in the

cour se of regularly conducted business. Tex. R. Evid. 803(6). This information is established through the testimony of the custodian of the business record or other qualified witnesses or through a business

- records affidavit that complies with rule 902(10). Tex. R. Evid. 803(6)(D) , 902(10)

. Under the best

- evidence rule , to prove the contents of a writing, a party is required to tender the original. Tex

. R. Evid . 1002. However, a photocopy of an original is admissible to the same extent as the original un less its authenticity is questioned or its admission would be unfair. Tex

. R. Evid

. 1001(d), 1003

. Error in the admission of evidence is generally considered nonconstitutional error to which we apply rule 44.2(b), and we disregard the error if it did not affect the appellant’ s substantial rights. Tex. R. App. P. 44.2(b); see Solomon v. State , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the ju ry ’ s verdict.” King v.
State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not intervene if after examining the whole record, including the character of the alleged error and how it10

might be considered in connection with other evidence in the case , there is a fair
assurance that the e rror did not influence the jury or had but a slight effect. Motilla v.
State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Solomon , 49 S.W.3d at 365).
C. Relevant Portions of the Record
Both the State and Ambe rson questioned H amilton outside the presence of the jury regarding S tate’s Exhibits 21 through 30. With regard to State’s Exhibits 21 through 27

—

invoices and receipts (collectively, invoices) related to the repairs made to the car wash, most of which con tain ed handwritten notations regarding the date and check number that Hamilton used to pay the invoices

— Amberson questioned Hamilton about whether he knew how the invoices were generated , whether he knew what information was used to generate the invoices, and whether he knew the policies or procedures that were in place to create the invoices. Hamilton answered that he had no personal knowledge of how the invoices were generated. Amberson made a hearsay objection to State’s Exhibits 21 through 27 , arguing that the State did not
prove that Hamilton was the custodian of records for each of the documents

. Amberson explained, “[Hamilton] cannot testify that these entries were made at or near the time by someone with personal knowledge. As he himself is not a part of those companies. And so there is not an authentication[,] .

. . [ and] the business
record s exception has not been met.” The trial court ove rruled Amberson’s objection.11

State’s Exhibits 28 through 30 reflect copies of three cancel l ed checks for
payments Hamilton made for some of the repairs to the car wash

. Ambe rson objected based on the best

- evidence rule and argued, “I realize these are self

authenticated commercial paper; however, that requires the original at that point i n time, which we do not have.” The trial court o verruled Amberson’s objection. D. Analysis 1. State’s Exhibits 28 through 30 With regard to State’s Exhibits 28 through 30, the copies of the cancel l ed
checks constitute duplicates and wer e therefore admissible, unless thei r authenticity was challenged

. 3 See Tex. R. Evid. 1003. Amberson’s sole argument is that “[i]n lodging a ‘best evidence’ objection, [he] raised a question as to the authenticity of the original checks and alerted the trial court that it would be unfair t o admit the duplicates i n lieu of the originals.” Amberson relies on the following statement from Menefee v. State : “An objection that evidence is not the ‘best evidence’ asserts that a copy or reproduction of a writing, recording, or photograph is inade quate and should be replaced by the original.” 928 S.W.2d 274, 278 (Tex. App.

— Tyler 1996, no pet.).
In Menefee , the appellant “ objected to the admission of certified copies of prior judgments because the certified copies were not the ‘ best evidence ’ of t he judgments. ”

3 As noted by the trial court when it ruled on the admissibility of the cancelled checks, “given the business practices of banks today, I would guess this is as good as i t gets for an original check.”12

Id. But the Menefee court summarily held, “Th is objection is without merit.” Id. We
reach the same conclusion. Because rule 1003 specifically allows for duplicates to be admitted in the absence of an authenticity challenge, 4 w e hold tha t the trial court did not err by overruling Amberson’s best evidence objection to State’s Exhibits 28 through 30

. See Tex. R. Evid. 1003. We overrule Amberson’s third issue. 2. State’s Exhibits 21 through 27 As set forth above, the trial court treated State’s Exhibits 21 through 27 as
Hamilton’s business records. With regard to the custodial requirement inherent in the
business

- records exception to the hearsay rule, rule 803(6) does not require that the person authenticating the record be either the cr eator of the record or have personal knowledge of the information recorded therein

. See Desselles v. State , 934 S.W.2d 874, 876 (Tex. App.

—

Waco 1996, no pet.); Brooks v. State , 901 S.W.2d 742, 746 (Tex. App.

— Fort Worth 1995, pet. ref’d). Rather, the test ifying witness need only have knowledge of how the record was prepared. Desselles , 934 S.W.2d at 876; Brooks , 901
S.W.2d a t 746. Hamilton disclaimed any personal knowledge of how the invoices were created. As a result, the State did not establish that t he invoices reflected in State’s Exhibits 21 through 27 were made in the ordinary course of business, that they
were made at or near the time of the event s they record ed , and that they were made

4 Amberson did not challenge the authenticity of the copies of the cancelled checks in the trial court, but he instead specifically stated that the copies of the cancelled checks were self

- authenticated.13

by a person with knowledge who was acting in the regular cour se of business. See Tex. R. Evid. 803(6); Johnson v. State , No. 12

- 10

- 00277

- CR, 2011 WL 3328687, at *3 (Tex. App.

—

Tyler July 13, 2011, pet. ref’d ) (mem. op., not designated for publication) (holding that trial court erred by admitting into evidence record s for which sponsoring witness was not the custodian). Because Hamilton was unable to prove up the requirements for the invoices to constitute business records under rule 803(6), we hold that the trial court erred by admitting State’s Exhibits 21 through 27 and therefore proceed to a harm analysis. Here, the error does not rise to the level of reversible error. Based on the record before us, the challenged evidence could have had no more than a slight effect

on the jury’s decision. The jury had before i t Hamilton’s unobjected

- to testimony that
he had received a little over $12,000 from his insura nce provider to cover the damage.
See Estrada v. State , 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting that any error with respect to admission of comp lained

- of evidence was harmless in light of “very similar evidence” admitted without objection) , cert. denied , 562 U.S. 1142 (2011) ; McNac v. State , 215 S.W.3d 420, 424

– 25 (Tex. Crim. App. 2007) (in harm analysis, concluding that the “unchallenged evidence [was] essentially cumulative” of the challenged evidence)

. Hamilton also testified without objection about each of the
invoices and the canceled checks

. See Estrada , 313 S.W.3d at 302 n.29; McNac , 215
S.W.3d at 424

– 25.14

The jury also had before it mult iple photographs showing the damage to the car wash, including the gaping hole in the brick wall where the coin machine had been
located before it was forcibly removed. The State thus did not have great need for this particular evidence because it otherwi se had presented sufficient evidence to establish the pecuniary loss attributable to the criminal mischief. Based on our review of the record, any error the trial court might have theoretically committed by admitting State’s Exhibits 21 through 30 did not have a substantial a nd injurious effect on the jury’ s determination of Amberson’s guilt

. See Tex. R. App. P. 44.2(b) ; Greenwood v. State , 948 S.W.2d 542, 552

– 53 (Tex. App.

— Fort Worth 1997 , no pet.) (holding that admissio n of document , which did not have proper business records predicate established, was harmless because witness testified without objection to the
same fact contained in the document )

. We overrule Amberson’s second issue

. V. Closing Argument In his fourth issue, Amberson argues that the t rial court abused its discretion and denied him his right to counsel by sustaining the State’s ob jection to his closing
argument: And Mr. Hamilton testified a couple of times that he wasn’ t allowed to do the electrical work because he wasn ’ t permitted. And that on commercial businesses, you have to be permitted. And yet he also did some of the electrical work himself. So what is it? He also said the electrical work, the conduit and stuff had to be replaced. Mr. Mueller said all of this is original. None of that is new. None of that was purchased recently. That ’ s all original.15 [PROSECUTOR]: Objection, facts not in evidence.
THE COURT: Sustained.
A. Standard of Review and Applicable Law
We review a trial court’ s ruling on an improper

- jury

- arg ument objection by the
State for an abuse of discretion. See Davis v. State , 329 S.W.3d 798, 825 (Tex. Crim. App. 2010), cert. denied

, 565 U.S. 830 (2011). Permissible jury argument falls into four distinct categories: (1) summary of the evidence; (2) r easonable deductions from the evidence; ( 3) response to opposing counsel’ s argument; or (4) a plea for law
enforcement. Brown v. State , 270 S.W.3d 564, 570 (Tex. Crim. App. 2008), cert. denied , 556 U.S. 1211 (2009). An appellant is al lowed to argue reaso nable, good

- faith
deductions from the evidence. Cannady v. State , 11 S.W.3d 205, 213 (Tex. Crim. App.) , cert. denied , 531 U.S. 850 ( 2000) ; Cantu v. State , 939 S.W.2d 627, 633 (Tex. Crim. App. ),
cert. denied , 522 U.S. 994 (1997)

. This includes the appella nt’ s opinion about what the evidence shows as long as the opinion is based on the record evidence and does not constitute sworn testimony. See McKay v. State , 707 S.W.2d 23, 37 (Tex. Crim. App. 1985) , cert. denied

, 479 U.S. 871 (1986)

. Improper denial of jury argument may constitute denial of the right to counsel if the argument is one the appellant is entitled
to make. Davis

, 329 S.W.3d at 825

. Denial of the right to counsel is an error of constitutional magnitude. See U.S. Const. amend. VI; Tex. Const

. art. I, § 10; see also Lemos v. State , 130 S.W.3d 888, 892

– 93 (Tex. App.

— El Paso 2004, no pet.) (“A criminal defendant’ s constitutional rights16

to counsel and to a jury trial encompass a right to have his theory of the case argued vigorously to the jury.” ). When an error is of constitutional magnit ude , we must evaluate harm under r ule 44.2(a), which requires us to reverse unless we determine beyond a reasonable doubt that the error did not contribute to appellant’ s conviction.
See T ex. R. App. P. 44.2(a)

. B. Relevant Testimony During defense counsel’s cross

- examination of Paul Mueller, who leased the car wash from Hamilton, she asked him to identify Defendant’s Exhibit 1, whic h wa s a photograph of Mueller standing next to the interior of the wall that w as rep laced at
the car wash. The trial court admitted Defendant’s Exhibit 1, and defense counsel asked Mueller about the wiring depicted in the picture: Q. (By [Defense Counsel]) I ’ m going to circle all of the conduit here. All of the conduit that is i n this picture is the original conduit

-- or in the circle, excuse me

-- is the original conduit that was in that room prior to the damage; is that correct?
A. Correct. Q. And this electrical box is the same electrical box that was there prior to the d amage; is that correct?
A. Yes. Q. And as well as the one next to it, correct?
A. Yes. Prior to Mueller’s testimony, Hamilton had testifie d on direct that electrical repairs were performed after the coin machine was forcibly removed from the car17

w a sh. The State showed Hamilton State’s Exhibit 3, which depict ed the exter ior of
th e same wall that wa s depi cted in Defendant’s Exhibit 1. Hamilton testified that the
exterior wall contained the electric meter box but that the interior contained the
brea ker boxes and addition al wiring. When the State asked Hamilton, “ So quite a bit of electrical work on this wall, in addition to the masonry work? ” Hamilton answered,
“Yes.” Later during Hamilton’s testimony, t he State showed Hamilton S tate’s Exhibit 32, which depicted the exterior of the damaged wall after it was repaired, and asked,

“ Is that a new meter box that I’ m pointing to? ” Hamilton responded, “ Yes. The actual other meter box was bent up pretty bad. ”
On cross

- examination, defense counsel questio ned Hamilton about the electrical repairs: Q. And that all of the electrical conduit had to be replaced and repaired?
A. On the inside. Most of it

-- some of it had to be replaced. Most of it had to be repaired and replaced. All of the conduit on the outside was replaced. Q. Okay. And you said the electrical box had to be replaced, correct?
A. Define electrical box. Q. We have the outside box?
A. The meter. Q. Which is the meter, correct?
A. Yes.18

Q. And then there was additional electri cal work that had to be done for the conduit and everything that was on the backside of the wall?
A. Yes. C. Analysis Amberson argues that “everything to which the State objected was proper
either as a summation of the evidence or a reasonable d educti on from the evidence[.]” Amberson further argues that “the trial court abused its discretion when it sustained the State’s objection and violated [his] right to counsel by preventing his counsel from making an argum ent she was entitled to make.”
Assumin g without deciding that the trial court abused its discretion by sustaining the State’s objection, we must determine whether the error was harmful. Amberson argues that this court “should have a reasonable doubt about whether the error contributed to [his ] conviction” because “[t]he objected

- to argument was part and parcel to [his] broader argument that the State had not met its burden of proof o n the pecuniary

- loss element.” Defense counsel argued during closing without objection that [the State] chose to char g e him with this crime. Where is their proof? And value, cost to repair, heck, the owner made three grand on this case. Insurance g ave him twelve grand, and he spent nine. Where is the cost? You saw receipts, but you’ ve not heard from a single person that did the work in this case. You did not hear from the electrical person. You did not hear from the brick mason that repaired the walls. You have not heard from anybody that actually did the work in this case.19 And the only evidence of payme nt that you ’ ve seen is two checks. One for $1,900, which doesn ’ t match the receipt that he received. He actually modified that himself and made it $1,900 versus $1,500 that was originally on that receipt. And one for $196. There is a check for $400, bu t as you ’ ve heard, that’s not part of the pecuniary loss in this case. So where is the value? The State has to prove that beyond a reasonable doubt to you.
Fro m our review of defense counsel’ s entire closing argument, we conclude that s he
was allowed t o make, and did make, the argument that the State had not proved the pecuniary

- loss element of felony criminal mischief

— th at the pecuniary loss was more than $2,500 but less than $30,000

— but the jury disagreed. As we held above,
Hamilton’s unobjected

- to t estimony regarding the insurance proceeds he received was sufficient to prove the pecuniary

- loss eleme nt of felony criminal mischief. See Campbell , 426 S.W.3d at 785

. Moreover, even excluding the $4,750 paid to elec tricians,
the total cost of the bricks, the masonry work , and the welding was more than $2,500

. We therefore conclude that any possibl e error in sustaining the State’ s objection to defense counsel’s closing argument was harmless beyond a reasonable doubt and did
not contribute to Amberson’s co nviction

. See Tex. R. App. P. 44.2(a ); McG ee v. State , No. 05

- 12

- 01074

- CR, 2014 WL 261060, at *9 (Tex. App.

— Dallas Jan. 23, 2014, pet. ref’d) (mem. op., not designated for publication) (ho lding harmless any error in sustaining State’s objection to closing argument because appellant was allowed to make desired argument without objection at another point during closing) . W e overrule Amberson’s fourth issue.20 VI. Conclusion Having overruled Amberson’s four issues, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth Bon nie Sudderth Chief Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: November 15, 2018