Opinion
No. 05-09-00740-CR
Opinion Filed July 27, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F08-56703-H.
Before Justices RICHTER, LANG-MIERS, and MYERS.
MEMORANDUM OPINION
A jury convicted Alfredo Valdez Diaz of murder and assessed his punishment at 50 years in prison and a $10,000 fine. On appeal, appellant argues that the trial court improperly restricted his cross-examination of the lead detective in the case. We affirm the trial court's judgment. Augustine Plancarte was shot and killed in front of Lago Mexico, a 24-hour restaurant in Dallas, Texas. Rojelio Portillo, a security guard for the restaurant, saw two vehicles, a Jeep and a Suburban, drive onto the parking lot. The Jeep backed into a parking space, and the Suburban, driven by Plancarte, stopped in front of the Jeep. Portillo saw two men get out of the Jeep. The driver of the Jeep walked to Plancarte's Suburban and got in on the passenger side. He left the door open, with one leg hanging out the door. The passenger stayed partially in or by the Jeep. When Portillo realized that the three men knew each other, he went back inside the restaurant. About five minutes later, he heard gunshots. He ran outside and saw two men running toward the Jeep and leaving; they were the same two men he saw drive up in the Jeep. Meanwhile, the Suburban was slowly rolling forward; Plancarte had been fatally shot. Detective Eduardo Ibarra investigated the murder. His investigation led to the arrest of Samuel Benitez and appellant. Although Portillo was unable to identify the men, Benitez met the description that Portillo gave of the driver of the Jeep, and appellant met the description that Portillo gave of the passenger. Benitez told Detective Ibarra that appellant shot Plancarte and hid the gun in appellant's apartment. The police found the gun hidden in appellant's mattress and a box of ammunition hidden behind a dresser drawer in appellant's apartment. The gun was the gun used to kill Plancarte, and only appellant's fingerprints were on the box of ammunition. The State charged appellant with murder. In his sole issue on appeal, appellant argues that the trial court improperly limited his cross-examination of Detective Ibarra during the following exchange:
Q. And Benitez told you other things that didn't seem true as well' [sic] right?
A. Like what? Elaborate.
Q. I'm sorry?
A. Like what.
[THE STATE]: Judge, I'm going to object to the hearsay. We're way afield here.
THE COURT: Sustained.Appellant contends that by sustaining the State's objection, the trial court violated his rights under the Confrontation Clause to show that "Benitez had a clear motive to lie in order to avoid punishment or shift blame." He also contends that the question did not elicit hearsay because it was not offered for the truth of the matter asserted. When the trial court excludes evidence, the proponent of the evidence must preserve the error by making an offer of proof or a bill of exceptions. See Reyna v. State, 168 S.W.3d 173, 176 (Tex. Crim. App. 2005); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). In addition to informing the court of the substance of the evidence sought to be admitted, the proponent of the evidence must tell the trial court why the evidence is admissible. Tex. R. App. P. 33.1(a)(1); Reyna, 168 S.W.3d at 176. Appellant asked a general question about whether Benitez told Detective Ibarra "other things that didn't seem true." But he did not make an offer of proof specifically inquiring into those "other things." See Tex. R. App. P. 33.1(a). Although appellant contends that the substance of the evidence was apparent from the context in which he asked the question, the record does not support this contention. In addition, appellant did not argue that the exclusion of the evidence violated his rights under the Confrontation Clause. See Reyna, 168 S.W.3d 179 (Confrontation Clause must be raised at trial to preserve for appellate review). And he did not argue that the testimony he sought to elicit from Detective Ibarra was not hearsay. See id. Consequently, appellant did not do "everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question." Id. (quoting Martinez v. State, 91 S.W.3d 331, 335-36 (Tex. Crim. App. 2002)). We resolve appellant's sole issue against him. We affirm the trial court's judgment.
The Suburban was at times also referred to as a Tahoe.