Opinion
No. 05-02-00465-CR.
Opinion Filed April 4, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 59th District Court, Grayson County, Texas, Trial Court Cause No. 45087. Affirmed.
Before Justices MOSELEY, LANG, and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment. The Honorable Justice Ed Kinkeade was originally assigned to the panel for this case; however, due to his retirement from this Court on November 18, 2002, Justice Lagarde was assigned to hear the case prior to its submission on January 22, 2003. She has reviewed the briefs and the record in this case.
MEMORANDUM OPINION
A jury convicted Donald Crit Markham of aggravated sexual assault of a child, his daughter, E.M. A trial court assessed punishment at fifty years confinement. Markham appeals. In a single issue, Markham asserts the trial court erred by prohibiting him from producing evidence that a third person had an opportunity and a motive to sexually assault E.M. The background of the case and the evidence adduced at trial are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. Markham specifically asserts the trial court erred by preventing Markham from asking his former wife whether her father had an opportunity and motive to sexually assault E.M. In his brief, Markham "concedes that a strong bill [of exception] and appellate record was not set forth on this point." Actually, no formal bill of exception was prepared to preserve this point of error. Nevertheless, Markham has the burden on appeal to see that a sufficient record, including a bill of exception, if needed, is presented to show error requiring reversal. Tex. Rs. App. P. 33.1, 33.2; see also Rojas v. State, 943 S.W.2d 507, 510 (Tex.App.-Dallas 1997, no pet.); Medina v. State, 828 S.W.2d 268, 270 (Tex.App.-San Antonio 1992, no pet.). After reviewing the record, we conclude Markham has not met his burden of presenting a sufficient record to support his point of error. See Rojas, 943 S.W.2d at 510. Absent a sufficient record, or a bill of exception, we have nothing upon which to rule; thus, Markham has waived this point of error. See Duran v. State, 844 S.W.2d 745, 747 n. 3 (Tex.Crim.App. 1993) (assertions in the brief which are not supported by the appellate record will not be considered). Moreover and in any event, contrary to Markham's assertion, the record we do have shows Markham asked his former wife whether her father had an opportunity to sexually assault E.M. She responded, "Never." Additionally, the only reference to when E.M.'s grandfather could have had an opportunity to sexually assault E.M. was when E.M. was two months old; the sexual assault occurred when E.M. was five years old. Furthermore, the record reflects no evidence linking E.M.'s grandfather to her sexual assault. Evidence regarding a third party's motive for committing a crime is inadmissible when there is no evidence linking the third party to the crime. Spence v. State, 795 S.W.2d 743, 754-55 (Tex.Crim.App. 1990). Therefore, Markham had no right to question his ex-wife about any potential motive her father may have had. See id. Accordingly, we overrule Markham's only point of error. Having overruled Markham's only point of error, we affirm the trial court.