Opinion
NUMBER 13-17-00484-CR
08-16-2018
NICOLAS MANUEL LUNA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant Nicolas Manuel Luna appeals from his conviction of two counts of manufacture-delivery of a substance in penalty group 1 in an amount of one gram or more but less than four grams, second-degree felonies enhanced to first-degree felonies under the habitual offender statute. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c) (West, Westlaw through 2017 1st C.S.). By one issue, Luna contends that his right to confront a witness was violated when the trial court limited his cross-examination. We affirm.
I. PERTINENT FACTS
As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts in this opinion except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
Kelly Gibbs, a detective with the Victoria Police Department, testified that Lela Allen worked as a confidential informant for the Victoria Police Department. Allen testified that she assisted the department in performing undercover purchases of cocaine from Luna on May 13, 2014 and May 16, 2014.
During cross-examination, Luna's trial counsel asked Allen about her experience as a confidential informant and her negotiating skills. Allen acknowledged that when she purchased the drugs from Luna, she negotiated with him so that he would decrease the price of the drugs. Luna asked Allen how she had learned to negotiate and if she had learned it from buying marihuana. Allen replied that she learned to negotiate from "[t]he streets." The State prosecutor objected on the basis that the question was argumentative. The trial court overruled the objection and instructed Luna's trial counsel to re-ask the question. Luna's trial counsel asked, "How did you learn to negotiate in that manner?" Allen replied, "In the streets." The following exchange then occurred:
[Luna]: In the streets. You typically negotiate marijuana sells like that or—
[The State]: Objection, relevance.
[Trial] Court: Objection is sustained. You don't have to answer that one.
[Luna]: How did you learn to negotiate like that?
[Allen]: The streets.
[Luna]: What does that mean?
[Allen]: I hung around in the streets. I hung around with people that did that stuff and knew what they was [sic] doing. That's how I learned it.
After the State and defense rested, the jury convicted Luna of two counts of manufacture-delivery of a substance in penalty group 1 in an amount of one gram or more but less than four grams. See id. This appeal followed.
II. DISCUSSION
By his sole issue, Luna contends that the trial court violated his Sixth Amendment right to confrontation when it limited his cross-examination of Allen. However, as shown above, when the trial court committed the alleged error, Luna did not object on Confrontation Clause grounds.
To preserve error for appellate review, a party is required to make a timely objection or make a request or motion to apprise the trial court what the party seeks. Dollins v. State, 460 S.W.3d 696, 698 (Tex. App.—Texarkana 2015, no pet.) (citing TEX. R. APP. P. 33.1(a)). Doing so gives the trial court an opportunity to remedy any purported error. Id. To "preserve error regarding improperly excluded evidence, a party must timely object, obtain a ruling from the trial court . . . and prove the substance of the excluded evidence via an offer of proof." Id. at 698-99 (citing TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a); Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim. App. 2007)). Confrontation Clause complaints are subject to these same preservation requirements. In Matter of E.H., 512 S.W.3d 580, 586 (Tex. App.—El Paso 2017, no pet.) (citing Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (concluding that the appellant failed to preserve his Confrontation Clause complaint because he did not argue to the trial court that the Confrontation Clause demanded admission of the proffered evidence)). Thus, a Confrontation Clause objection must be made at trial or it is waived on appeal. In Matter of E.H., 512 S.W.3d at 586.
Here, when the trial court sustained the State's objection to Luna's cross-examination of Allen, Luna did not object at any time to the ruling on any basis including that the trial court violated his confrontation rights. In addition, Luna did not provide an offer of proof to show the substance of the excluded evidence. Accordingly, because Luna failed to preserve his Confrontation Clause complaint, we overrule his sole issue. See Reyna, 168 S.W.3d at 179 (explaining that because the appellant "'did not articulate'" that the Confrontation Clause demanded admission of the evidence, the trial court did not have an opportunity to rule on that rationale and that as the losing party, the appellant "must 'suffer on appeal the consequences of his insufficiently specific offer'"); In Matter of E.H., 512 S.W.3d at 586 (determining that the appellant had not preserved his Confrontation Clause complaint on appeal because the appellant did not object on Confrontation Clause grounds when seeking admission of certain evidence failing to put the trial court on notice of his objection); Dollins, 460 S.W.3d at 698-99 (concluding that the appellant did not preserve his Confrontation Clause complaint when the trial court limited his cross-examination of a witness). We overrule Luna's sole issue.
IV. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed this 16th day of August, 2018.