Affirmed and Memorandum Opinion filed February 21, 2013.

In The

Fourteenth Court of Appeals

NO. 14-11-01102-CR

JAIME RICARDO PEREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1746613

M E M O R A N D U M O P I N I O N

Appellant presents four issues in this case, each relating to the trial court’s 

admission of medical records. We must decide whether the trial court erred by 

admitting those records after the conclusion of closing argument, whether the 

admission violated appellant’s right to confrontation, and whether the trial court 

violated appellant’s right to counsel by denying his request for additional closing 

argument. We conclude that the trial court erred by admitting the records at such a 
2

late stage in the proceedings. However, because the contents of the records were 

proved by other properly admitted evidence, we conclude that the error was 

harmless. We affirm the judgment of the trial court.

BACKGROUND

Appellant was charged with assaulting his wife, the complainant. The 

incident allegedly occurred on March 23, 2011, after appellant woke up to find that 

the complainant was not by his side in bed. She had slept overnight, as she had 

recently been doing, in the guest bedroom adjacent to her son’s bedroom. The 

complainant preferred to sleep with her two-year-old son nearby, in case he had an 

asthma attack during the night. This sleeping arrangement was the source of some 

disagreement in the family, appellant believing that his son should be weaned from 

his mother’s excessive attention.

When her son woke up earlier than usual on the day of the incident, the 

complainant went to his room, lay down in front of his crib, and tried to comfort 

him back to sleep. Appellant entered the bedroom later that morning and angrily 

told the complainant that she must stop sleeping with their child. As the 

complainant attempted to leave, appellant grabbed her body and slammed her 

forehead into the door frame. He yelled at her again, ordering her to get ready for 

the day. The complainant went to her bathroom, where she crouched down as if to 

protect herself. Using both hands, appellant pulled her up by the hair, then slapped 

her in the face with an open palm. As the complainant stepped into the shower, 

appellant hit her once more in the back of the head. He then left for work.

That morning, the complainant contacted a divorce attorney, who advised 

that she see a doctor. The complainant visited her family physician that same 

afternoon. The day after her examination, the complainant went to the police 

station and gave a statement to the authorities. During the police interview, a 
3

deputy constable took photographs of the complainant’s face. The pictures show 

bruising around her eye, but no other marks or abrasions.

In a hearing conducted the morning of trial, appellant objected to the 

prospective admission of State’s Exhibit 1, a 90-page collection of the 

complainant’s medical records. The records spanned several years of treatment, 

dating as far back as 2007. In pertinent part, the records documented that on the 

day of the incident, the complainant had presented with an “injury to head” 

because of an “assault by husband.” The records specified that the injury was 

inflicted on the right side of the complainant’s head, that she was bruised, and that 

there was mild tenderness around the orbital bone. The records also showed that 

after examining these injuries, the complainant’s doctor recommended that she 

have x-rays and a CT scan performed, which she did. Appellant objected that many 

pages from the exhibit were irrelevant because they predated the charged offense. 

He also objected that no one was available to interpret the records, in light of the 

State’s indication that it would not call the complainant’s family physician.

The prosecutor responded that she had subpoenaed all of the complainant’s 

medical records because she anticipated a defensive claim that the complainant 

suffered from depression. The prosecutor explained that should the defense make 

such a claim, all of the records would be relevant because they showed that the 

complainant never complained of depression or of any similar disorder. The 

prosecutor stated that if the defense did not challenge the complainant’s 

psychological history, she would agree to limit the admission of evidence to only 

those records generated since the day of the incident. As the prosecutor explained, 

these selected records would be offered simply “to back up the assertion that [the 

complainant] went to [the doctor’s office], got treated, made an outcry, there was a 

diagnosis made as a result of that, and she was seen in the days after that as well.” 
4

Appellant objected that even if the exhibit were admitted for a limited purpose, the 

records still contained prejudicial language.

The parties eventually arrived at a mutual agreement for admitting the 

records as evidence. The agreement called for a multi-step procedure, beginning 

with the admission of the entire exhibit for record purposes only—i.e., for 

inclusion in the record, but not for publication to the jury. Following that limited 

admission, the parties agreed to meet and mutually decide which portions of the 

records to furnish to the jury. To assuage appellant’s concerns, the prosecutor also 

agreed to redact any prejudicial language from the portions ultimately selected. 

The trial court approved this arrangement, and stated further that “nothing is going 

in front of the jury unless we come to an agreement or I make a ruling on it.” The 

court proposed that the trial proceed as planned, that testimony be heard until the 

end of the day, and that both sides come to a consensus on the records before the 

jury returned the following morning. Both sides assented to that procedure.

For its first witness, the State called the custodian of records from the 

complainant’s doctor’s office. In the presence of the jury, the custodian laid the 

foundation for the complainant’s medical records to be admitted as business 

records. The prosecutor then offered the records to opposing counsel, which 

prompted the following comments and ruling:

STATE: Your Honor, may I tender to opposing counsel?

COURT: You may.

DEFENSE: Your Honor, the Defense has no objection for record 

purposes.

COURT: Then State’s Exhibit No. 1, at this time, will be admitted 

as record purposes only.

The State passed the custodian of records without discussing the contents of 

the exhibit. Appellant did not cross-examine the witness.
5

The State later called the deputy constable who had interviewed the 

complainant. The deputy testified about his encounter with the complainant the day 

after the incident as well as the photographs that were taken of her. The 

complainant testified next, and she discussed the details of the assault at greater

length. The State rested without publishing the medical records to the jury, and the 

complainant’s family physician was never called to testify. Consequently, the State 

never proved the relevancy of the records, either in whole or in part.

The defense proceeded with appellant’s testifying on his own behalf. 

Appellant denied that he had ever assaulted his wife. He argued that the 

complainant had fabricated her story, speculating that she had brought these

allegations to build a case for divorce. Under this theory, appellant claimed that the 

complainant was going to seek sole custody of their son, then relocate to Germany, 

her country of origin. The defense neither suggested that the complainant had 

suffered from depression, nor moved to strike or otherwise complain about the

medical records for any reason.

Both sides rested at the end of the first day of trial. Before the jury was 

released, the trial court allowed each side to deliver its closing argument. The 

prosecutor briefly mentioned the medical records in her first closing argument. 

Without discussing the contents of the records, the prosecutor remarked that the 

complainant had visited her physician on the day of the incident, and that the 

records were one of the first things discussed at trial. Appellant did not object to 

the prosecutor’s statements, and in his argument that followed, he did not refer to 

the complainant’s medical records or the effect of their limited admission.

After closing arguments had concluded, the court released the jury with 

instructions to begin deliberations the following morning. Once the jury was 

excused, the trial court recalled that the parties had not yet met to discuss which 
6

portions of the exhibit to admit as evidence. The record reflects the following 

exchange:

COURT: Okay, guys, good job. We’ll be in recess until tomorrow 

morning.

DEFENSE: What time do you want us back?

COURT: 9:30.

DEFENSE: 9:30?

COURT: Unless – actually, guys – okay. I’ll give you a choice. 

You can work on the medicals right now; you can work 

on them early in the morning. Okay? So you can come 

here early and do them, or you can wait and do them to 

see which one – what part you’re going to let in. I need 

photos – copies of those photos here in the morning. So, 

I’ll leave that up to you: Work late, come early. It’s your 

choice.

The court immediately recessed for the evening.

After deliberations began the next day, the jury sent the trial court a note 

requesting to see the complainant’s medical records and the photos taken of her 

shortly after the incident. In a hearing outside the presence of the jury, the trial 

court announced that the attorneys for both sides had reduced the medical records 

to eight pages for submission to the jury. Although the prejudicial portions from 

those records had been redacted, appellant still asserted various objections to their 

admission. Appellant first objected to the records as a whole, claiming that they 

had been offered without the foundation of an expert, in violation of his right to 

confrontation. Appellant also objected that all evidence in the case had been closed 

and that it was too late to publish new evidence to the jury. The trial court 

overruled the objections, noting that “the medical records . . . were already in,” and 

that the parties had previously reached an agreement regarding their admission as 

evidence.
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Appellant then objected that he had not been given an opportunity to argue

to the jury about the medical records because they had been admitted for record 

purposes only. The court overruled this objection as well, stating “you knew the 

records were there, we already had notice that they were going to be back up, and 

you had the opportunity to argue if you so chose.” The trial court also denied 

appellant’s request for additional closing argument to address the medical records.

After receiving the redacted medical records, the jury found appellant guilty 

of the charged offense. Punishment was assessed at 180 days’ confinement, which 

the trial court probated for one year of community supervision. Appellant now 

appeals.

UNTIMELY ADMISSION

We begin with appellant’s third issue, which focuses on the timing of the 

records’ admission. Appellant argues that the trial court erred by admitting the 

records during jury deliberations, citing the rule that no new evidence may be 

admitted after the parties have delivered their closing arguments. The State 

challenges the premise of this argument. It contends that the records were not 

“new,” that they had already been admitted as evidence during its own case-inchief, and that the trial court did not err by sending that evidence to the jury upon 

its request.

We disagree with the State’s characterization. When State’s Exhibit 1 was 

offered during trial, the court clearly ruled that the exhibit was admitted “as record 

purposes only.” The exhibit was not published to the jury at that time, the court did 

not indicate that the exhibit was admitted for all purposes, and it did not say that 

the exhibit was admitted subject to a condition. By limiting the scope of the 

admission to record purposes only, the court effectively ruled that no part of the 

exhibit would be considered as evidence until further ruling. See Alridge v. State, 
8

732 S.W.2d 395, 398 (Tex. App.—Dallas 1987, pet. ref’d) (holding that jury could 

not consider exhibits admitted for record purposes when determining the truth of 

an enhancement paragraph).

The record shows that the trial court fully understood the impact of this 

ruling. During the pretrial hearing, the exhibit’s limited admission had been 

discussed approvingly by the trial court. The court agreed to let the parties defer 

until a later time a decision as to which portions of the exhibit should be offered as 

relevant and admissible. During trial, the court admitted the exhibit for record 

purposes “at this time,” a comment suggesting that the limited admission was only 

temporary. The court also indicated that it anticipated a second ruling when it 

instructed the parties to “work on the medicals,” an instruction delayed until after 

closing arguments had concluded. Based on this record, we agree with appellant 

that no part of the exhibit had been admitted as evidence by the end of closing 

argument.

We review a trial court’s decision to admit or exclude evidence for an abuse 

of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The 

trial court abuses its discretion when its decision is arbitrary, unreasonable, or 

without reference to guiding rules or principles. Makeig v. State, 802 S.W.2d 59, 

62 (Tex. Crim. App. 1990).

Appellant contends that the trial court abused its discretion by admitting the 

records because the admission came during jury deliberations. For authority, 

appellant cites article 36.02 of the Texas Code of Criminal Procedure, which

provides as follows: “The court shall allow testimony to be introduced at any time 

before the argument of a cause is concluded, if it appears that it is necessary to a 

due administration of justice.” Tex. Code Crim. Proc. art. 36.02. Although this

provision has existed in various forms since 1856, its language has remained 
9

unchanged. See Peek v. State, 106 S.W.3d 72, 75 n.8 (Tex. Crim. App. 2003) 

(providing citations to earlier forms). For more than a hundred years, Texas courts 

have construed it as a blanket prohibition on the introduction of evidence after both 

sides have concluded their closing arguments. See Pena v. State, 353 S.W.3d 797, 

808 (Tex. Crim. App. 2011) (“The introduction of evidence after the conclusion of 

closing arguments is prohibited.”); Beeler v. State, 374 S.W.2d 237, 239 (Tex. 

Crim. App. 1964); Reed v. State, 76 Tex. Crim. 335, 338, 174 S.W. 1065, 1066 

(1915); Galan v. State, 76 Tex. Crim. 619, 629, 177 S.W. 124, 129 (1915), 

overruled on other grounds by Wolfe v. State, 147 Tex. Crim. 62, 178 S.W.2d 274 

(1944); Lockett v. State, 55 S.W. 336, 336 (Tex. Crim. App. 1900); Lorance v. 

State, 37 Tex. Crim. 453, 453, 36 S.W. 93, 93 (1896); Williams v. State, 35 Tex. 

Crim. 183, 189, 32 S.W. 893, 894 (1895); Ming v. State, 24 S.W. 29, 29 (Tex. 

Crim. App. 1893); Allman v. State, 164 S.W.3d 717, 719 (Tex. App.—Austin 

2005, no pet.). The statute is “mandatory,” and permits no exceptions. See Lockett, 

55 S.W. at 336; Allman, 164 S.W.3d at 719. It provides a bright line rule, bringing 

predictability to the criminal trial pattern, and ensuring that the jury may not be 

unduly influenced by the introduction of newly discovered evidence. See Williams, 

35 Tex. Crim. at 189, 32 S.W. at 894 (“There must be an end to the introduction of 

evidence somewhere . . . .”).

The State suggests that appellant cannot complain about the records’ 

untimely admission because appellant agreed to meet with the prosecutor and 

mutually decide which portions of the exhibit were relevant and admissible. 

According to the State, appellant’s assent to this procedure demonstrated a tacit 

acknowledgment that the jury was entitled to review this evidence. The parties’ 

agreement is not determinative, however. Even with the court’s approval, the 

parties cannot agree to disregard a mandatory statute. The meeting and resolution 
10

of evidentiary disputes should have taken place before closing argument. After 

closing argument, the court had no discretion to admit any further evidence. The 

untimely admission was therefore erroneous. See Tex. Code Crim. Proc. art. 36.02; 

Pena, 353 S.W.3d at 808; Allman, 164 S.W.3d at 721.

A violation of Article 36.02 is subject to a harm analysis for 

nonconstitutional error. See Allman, 164 S.W.3d at 721. Under this standard, error 

must be disregarded unless it affects a defendant’s substantial rights. Tex. R. App. 

P. 44.2(b). An error affects a defendant’s substantial rights when the error has a 

substantial and injurious effect or influence on the jury’s verdict. King v. State, 953 

S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or only a slight 

influence on the verdict, the error is harmless. Id.

The eight pages of medical records submitted to the jury do not contain any 

facts not already established by other properly admitted evidence. In material part, 

the records reflect that the complainant presented with an assault by her husband 

and that there was bruising to her right eye. The records do not detail any 

particulars of the alleged assault, other than to say that the complainant’s head was 

hit against a door frame. These same facts were established by the complainant’s 

own testimony and the testimony of the deputy constable who took her statement 

and observed her injuries. These facts were also evidenced by the pictures of the 

complainant taken by the deputy a day after the incident. Because the contents of 

the records were proved by other properly admitted evidence, we conclude that the 

records’ admission, though improper, was harmless. See Brooks v. State, 990 

S.W.2d 278, 287 (Tex. Crim. App. 1999) (“Moreover, any error in admitting the 

evidence was harmless in light of other properly admitted evidence proving the 

same fact.”); Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.—Houston [14th 

Dist.] 2007, no pet.). Appellant’s third issue is overruled.
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CONFRONTATION CLAUSE

In his fourth issue, appellant argues that the trial court violated his Sixth 

Amendment right to confrontation by admitting the complainant’s medical records 

without the testimony of her family physician. Appellant contends that the records 

were prepared in anticipation of litigation, and therefore, that he was entitled to 

cross-examine the doctor who created them. To reach appellant’s constitutional 

argument, we must first determine whether the medical records are “testimonial” 

and subject to the Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 

821 (2006) (holding that only testimonial statements are subject to the 

Confrontation Clause); Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding 

that the testimonial statements of a witness who did not appear at trial are 

inadmissible unless the witness was unavailable to testify and the defendant had a 

prior opportunity for cross-examination). Our review is bifurcated. We consider de 

novo all questions of law. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 

2006). If resolution on the ultimate question turns upon an issue of fact, we review 

for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 

1997).

The Supreme Court has not crafted an exclusive definition for classifying 

which types of statements are testimonial in nature. See Davis, 547 U.S. at 822 

(providing one standard “[w]ithout attempting to produce an exhaustive 

classification of all conceivable statements”). However, in Crawford, the Court 

held that the Confrontation Clause applies only to witnesses who “bear testimony,” 

and testimony, in turn, is typically a “solemn declaration or affirmation made for 

the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51.

In the interrogation context, the Court has specifically noted that statements 

are nontestimonial “when made in the course of police interrogation under 
12

circumstances objectively indicating that the primary purpose of the interrogation 

is to enable police assistance to meet an ongoing emergency.” Davis, 547 U.S. at 

822; see id. at 822 n.1 (cautioning that a court should not imply that statements 

made in the absence of interrogation are necessarily nontestimonial). Statements 

are testimonial, on the other hand, “when the circumstances objectively indicate 

that there is no such ongoing emergency, and that the primary purpose of the 

interrogation is to establish or prove past events potentially relevant to later 

criminal prosecution.” Id.

Even though the complainant’s physician was not engaged in a police 

interrogation at the time of her examination, the foregoing standards are still 

instructive. See De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) 

(applying same standards from Davis when determining whether medical records 

created by non-governmental employees were testimonial in nature). We therefore 

consider the primary purpose of the physician’s encounter, objectively evaluating 

its circumstances and the statements and actions of the parties involved. See 

Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011).

The complainant provided the only testimony regarding the circumstances 

surrounding her medical examination. She testified that, following the alleged 

incident, she first spoke with a divorce attorney, and “because of [her] injuries,” 

the attorney “advised [her] to see a doctor.” There was no testimony about the 

physician’s reasons for creating the medical records. An inference could be made 

that the records were created primarily for the purpose of establishing or proving 

events related to the assault. In the nonredacted version of the records, the 

physician noted that the complainant “contacted [a] lawyer” and “will make a 

police report.” These notations could support a finding that the records were made 

in anticipation of litigation, and therefore, are testimonial.
13

But a plausible inference could also be made that the records were created 

simply for the purpose of medical diagnosis. As the complainant testified, the 

divorce attorney instructed her to see a physician “because of [her] injuries,” and 

the records show that the doctor recommended further tests based upon her

examination of the complainant. Under this theory, the trial court could have found 

that the records were nontestimonial because they were made in the physician’s 

ordinary course of business, and for the objective purpose of evaluating the 

complainant’s condition and defining the scope of her care. See Tex. R. Evid. 

803(6) (creating hearsay exception for such records); Melendez-Diaz v. 

Massachusetts, 557 U.S. 305, 324 (2009) (explaining that business records are not 

testimonial because they are generally created for the administration of an entity’s 

affairs and not for the purpose of establishing or proving some fact at trial); id. at 

312 n.2 (noting that “medical reports created for treatment purposes . . . would not 

be testimonial under our decision today”); see also Berkley v. State, 298 S.W.3d 

712, 715 (Tex. App.—San Antonio 2009, pet. ref’d) (holding medical records 

nontestimonial); Smith v. State, No. 05-09-01408-CR, 2011 WL 3278528, at *2 

(Tex. App.—Dallas Aug. 2, 2011, pet. ref’d) (not designated for publication)

(same).

An appellate court reviewing the trial court’s decision on the admissibility of 

evidence may reverse it only for an abuse of discretion—i.e., only when the trial 

court’s decision lies outside the zone of reasonable disagreement. Shuffield v. 

State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). The trial court here was not 

presented with any direct evidence explaining the reasons for the physician’s 

creation of medical records. Inferences could be made both ways as to whether the 

records were produced in anticipation of litigation. In such a situation, the trial 

court could reasonably find that the records were nontestimonial and created 
14

primarily for the purpose of medical diagnosis. Cf. Goodman v. State, 302 S.W.3d 

462, 470 (Tex. App.—Texarkana 2009, pet. ref’d) (concluding that trial court did 

not abuse its discretion in deciding that blood results were nontestimonial where 

“[t]here was evidence cutting both ways” regarding the reason for the blood draw). 

We find no abuse of discretion. Appellant’s fourth issue is overruled.

CLOSING ARGUMENT

In his first and second issues, appellant contends that the trial court violated 

his right to effective assistance of counsel by denying him the right to argue his 

version of the case as a whole. Claims regarding deprivations of constitutional 

rights present questions of law, which we review de novo. See Lilly v. Virginia, 

527 U.S. 116, 137 (1999).

In every criminal prosecution, the accused enjoys a right to effective 

assistance of counsel guaranteed by both the federal and state constitutions. See 

U.S. Const. amend. VI; Tex. Const. art. 1, § 10. These constitutional guarantees 

have been interpreted to mean that the accused has a right to be heard in argument 

both as to the law and the facts of the case at the conclusion of testimony. See 

Herring v. New York, 422 U.S. 853, 863 (1975); Ruedas v. State, 586 S.W.2d 520, 

522 (Tex. Crim. App. [Panel Op.] 1979); Ferguson v. State, 133 Tex. Crim. 250, 

253–54, 110 S.W.2d 61, 63 (1937); Anselin v. State, 72 Tex. Crim. 17, 18, 160 

S.W. 713, 714 (1913); Spangler v. State, 42 Tex. Crim. 233, 252–53, 61 S.W. 314, 

322 (1900).

Appellant argues that his constitutional rights were violated because the trial 

court denied his request for additional closing argument to address the untimely 

admitted medical records. Appellant does not cite any direct authority for this 

argument. Cases examining the right to closing argument have found reversible 

error where a trial court completely denies an opportunity for closing summation.
15

See Ruedas, 586 S.W.2d at 524; Anselin, 72 Tex. Crim. at 18, 160 S.W. at 714. 

Reversible error has also been found where a court unreasonably limits the time 

available for closing argument, and where a court permits closing argument but 

restricts counsel from arguing a legitimate inference from the record. See Dang v. 

State, 154 S.W.3d 616, 622 (Tex. Crim. App. 2005); Lemos v. State, 130 S.W.3d 

888, 892–93 (Tex. App.—El Paso 2004, no pet.). We are aware of no authority

where error was predicated on the denial of additional closing argument after the 

trial court improperly admitted new evidence.

Appellant argues that we should find error, nonetheless, based on an analogy 

to Murray v. State, 857 S.W.2d 806 (Tex. App.—Fort Worth 1993, pet. ref’d). The 

issue in Murray focused not on the admission of additional evidence, but on 

changes made to the jury charge after closing argument had concluded. In that 

case, defense counsel discovered that an important instruction had been omitted 

from the jury charge. Id. at 807. When counsel delivered his closing argument, he 

claimed that because of the omission, his client could not be found guilty as 

charged. Id. After the jury commenced deliberations, the trial court decided to 

supplement the charge with the omitted instruction. Id. at 808. The defendant 

argued on appeal that the change was tantamount to the denial of argument. The 

court of appeals agreed, holding that the change had effectively “repudiated” 

counsel’s closing argument and allowed the jury to convict the defendant on a 

theory not available for comment. Id. at 811–12. 

Murray is distinguishable because the decision in that case was based on the 

trial court’s “repudiation” of counsel’s closing argument. The reviewing court

found reversible error because the supplemental instruction was equivalent to the 

trial court’s “answering defense counsel’s oral argument with a written rebuttal.” 

Id. at 811 (quoting Moore v. State, 848 S.W.2d 920, 923 (Tex. App.—Houston [1st 
16

Dist.] 1993, pet. ref’d)). Appellant has not demonstrated how the trial court’s 

admission of medical records, though improper, had the same effect of 

“repudiating” his counsel’s closing argument.

Counsel made a compelling argument addressing all of the material evidence 

in the case. Counsel argued that appellant was the victim of a scheme for divorce. 

He referenced the complainant’s encounter with her divorce attorney, her intent to 

be awarded sole custody of their son, and her desire to leave the country with her 

son. Counsel also noted that the photographic evidence of assault was problematic. 

He observed that there were no marks on the complainant’s forehead, which cast 

doubt on her accusation that she had been pushed into a doorway. He also argued 

that the evidence of bruising around the eye was inconsistent with an accusation 

that the complainant was hit with an open-handed slap. While the medical records 

tended to lend support to the State’s case, their untimely admission did not 

eviscerate or repudiate counsel’s closing argument in the same manner or to the 

same degree as the supplemental charge in Murray. The complainant’s credibility 

was still at issue, even after the records’ admission.

Even assuming that the trial court erred by denying additional closing 

argument, appellant has not demonstrated harm. Appellant’s only argument 

regarding harm is that he was not given an opportunity to minimize the impact of 

the medical records during closing argument. But appellant never identified to the 

trial court, or to this court on appeal, what his argument would have been had he 

been allowed to address the jury for a second time. Moreover, the medical records 

were cumulative of other evidence introduced at trial, which appellant thoroughly 

addressed in his closing summation. The record does not indicate what additional 

argument, if any, could be made that had not already been covered. We overrule

appellant’s first and second issues.
17

CONCLUSION

The trial court erred by admitting new evidence after the parties had 

delivered their closing arguments. However, the error was not reversible because it 

did not affect appellant’s substantial rights. Having overruled appellant’s 

remaining points of error, we affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby.

Do Not Publish — Tex. R. App. P. 47.2(b).