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 Sudderth, C.J.; Meier and Gabriel, JJ.

Memorandum Opinion by Chief Justice Sudderth

AARON AMBERSON, Appellant

V.

THE STATE OF TEXAS
2

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 after pleading true to 

the habitual-offender enhancement allegations. See Tex. Penal Code Ann. § 28.03 

(West Supp. 2018). We affirm.

II. Background1

A 9-1-1 caller reported that someone driving an older model gray Ford 

Expedition had attached a chain to that vehicle and had pulled a coin-dispensing 

machine out of the wall of a car wash near Main Street in The Colony. After spotting

a vehicle matching that description parked at a Taco Bell not far from the car wash, 

police entered the restaurant and arrested 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, which totaled over $8,000. 

 

1Because Amberson challenges only the amount of pecuniary loss—not the 

sufficiency of the evidence to support the remaining elements of his conviction for 

criminal 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 determine 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 article 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 alleged 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 permit a jury to 
4

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 in 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 whether 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 criminal 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)2the amount of pecuniary 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 

 

2Although the jury charge allowed the jury to convict Amberson if it found that 

he “intentionally and knowingly damage[d] or destroy[ed] tangible property,” we 

proceed solely under the theory of criminal mischief by damage. 
5

repairs and, thereby, pecuniary loss. Campbell v. State, 426 S.W.3d 780, 785 (Tex. Crim. 

App. 2014).

The 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 the 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 the amount of pecuniary loss is $2,500 or more but less than $30,000. 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. See id.

§ 28.03(b)(3), (4); Holz, 320 S.W.3d at 345, 347. Therefore, we focus our analysis on

whether a rational jury could have found 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 that 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 controvert Hamilton’s testimony, but he argues that 

“there was only documentation of payment [i.e., cancelled checks] for a total of 

$2,096.06 in this case.” While acknowledging that caselaw holds that the property 

owner’s testimony is sufficient to prove pecuniary 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 minimum 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 guilt 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 finder 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, 382 
7

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. Coalwell v. State, 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 might have believed that only a single 

incident of harassment occurred, that was not affirmative evidence that the harassing 

emails were sent not on multiple dates, but on only one date).

Because there is no affirmative evidence allowing a rational factfinder 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 Class-A misdemeanor criminal mischief. See Rousseau, 

855 S.W.2d at 675 (holding that appellant was not entitled to a charge on the lesserincluded offense because there was no evidence that if appellant was guilty, he was 

guilty only of the lesser-included offense); cf. Benefield v. State, 389 S.W.3d 564, 574–77 

(Tex. App.—Houston [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 guilty 
8

only of the lesser-included offense of misdemeanor misapplication of fiduciary 

property valued at less than $1,500). We therefore overrule Amberson’s first issue.

IV. 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, and 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 for repairs to the car 

wash—over 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 decision 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 case. 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. 801(d). Hearsay is generally 
9

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), records 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 record in the 

course 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 unless 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 jury’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 it 
10

might be considered in connection with other evidence in the case, there is a fair 

assurance that the error 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 Amberson questioned Hamilton outside the presence of the 

jury regarding State’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 contained 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 

records exception has not been met.” The trial court overruled Amberson’s 

objection. 
11

State’s Exhibits 28 through 30 reflect copies of three cancelled checks for 

payments Hamilton made for some of the repairs to the car wash. Amberson 

objected based on the best-evidence rule and argued, “I realize these are selfauthenticated commercial paper; however, that requires the original at that point in 

time, which we do not have.” The trial court overruled 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 cancelled 

checks constitute duplicates and were therefore admissible, unless their 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 to admit the 

duplicates in 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 inadequate 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 the judgments.” 

 

3As 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 

it gets for an original check.” 
12

Id. But the Menefee court summarily held, “This 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 we hold that 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 creator 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 testifying witness need only have 

knowledge of how the record was prepared. Desselles, 934 S.W.2d at 876; Brooks, 901 

S.W.2d at 746. Hamilton disclaimed any personal knowledge of how the invoices 

were created. As a result, the State did not establish that the 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 events they recorded, and that they were made 

 

4Amberson 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 course 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 records 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 it Hamilton’s unobjected-to testimony that 

he had received a little over $12,000 from his insurance 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 complained-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 multiple 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 otherwise 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 and 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 admission 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 trial court abused its discretion 

and denied him his right to counsel by sustaining the State’s objection 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-argument 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) reasonable 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 allowed to argue reasonable, 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 appellant’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 rights 
16

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 magnitude, we must 

evaluate harm under rule 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 Tex. 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, which was 

a photograph of Mueller standing next to the interior of the wall that was replaced 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 in 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 damage; 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 testified on direct that electrical 

repairs were performed after the coin machine was forcibly removed from the car 
17

wash. The State showed Hamilton State’s Exhibit 3, which depicted the exterior of 

the same wall that was depicted in Defendant’s Exhibit 1. Hamilton testified that the 

exterior wall contained the electric meter box but that the interior contained the 

breaker boxes and additional 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, the State showed Hamilton State’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 questioned 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 electrical 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 deduction 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 argument she was entitled to make.” 

Assuming 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 on 

the pecuniary-loss element.” Defense counsel argued during closing without 

objection that

[the State] chose to charge him with this crime. Where is their proof?

And value, cost to repair, heck, the owner made three grand on 

this case. Insurance gave 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 payment 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, 

but 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.

From our review of defense counsel’s entire closing argument, we conclude that she 

was allowed to make, and did make, the argument that the State had not proved the 

pecuniary-loss element of felony criminal mischief—that 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 testimony regarding the insurance proceeds he received was 

sufficient to prove the pecuniary-loss element of felony criminal mischief. See 

Campbell, 426 S.W.3d at 785. Moreover, even excluding the $4,750 paid to electricians, 

the total cost of the bricks, the masonry work, and the welding was more than $2,500.

We therefore conclude that any possible 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 conviction. See Tex. R. App. P. 44.2(a); McGee 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) (holding 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). We 

overrule Amberson’s fourth issue.
20

VI. Conclusion

Having overruled Amberson’s four issues, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: November 15, 2018